Docket No. 1341

TECH-STEEL, INC.

OSHRC Docket No. 1341

Occupational Safety and Health Review Commission

October 17, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of Judge J. Paul Brenton's decision to not assess penalties for an admitted violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").

Respondent did not dispute the fact that aisles and passageways in its workplace were obstructed by scrap metal, extension cords, welding leads and hoses in contravention of the requirements of 29 C.F.R. 1910.22(a)(1) and 22(b)(1). n1

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n1 The standards provide as follows:

22(a) Housekeeping. (1) All places of employment, passageways, storerooms and service rooms shall be kept clean and orderly and in a sanitary condition.

22(b) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

[*2]

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Rather, it requested that its practice be sanctioned through an interpretation of the cited standards. On the evidence of record, Judge Brenton concluded that the obstructions could be "virtually eliminated" by relocation of welding units, cords, leads, and hoses. We agree.

He then determined that a penalty should not be assessed. In this regard he concluded as a matter of law as follows:

VI: Where there is a failure to reveal, by reliable, substantial and probative evidence, an essential element by which the gravity of a particular violation may be determined, the proof is devoid of a material matter necessary to sustain the proposed penalty, and thus this penalty is subject to vacation.

VII: At such time as the affirmative adjudication of the initial citation becomes in law a finality, the employer thereupon is automatically placed on probation conditioned by the extraordinary penaities provided in Section 17(d) of the Act for any failure to correct the violation.

VIII: . . . [U]nless there is, upon an initial citation, a showing of need for the proposed penalty, for the purpose and [*3] function of carrying out the Congressionally declared purpose and policy of the Act predicated upon one or more of the means by which it is to be accomplished, then that penalty deserves no further consideration and it should be vacated.

We disagree with the conclusions and therefore reject them. Conclusion VI was predicated on an erroneous reading of our decision in Baltz Brothers Packing Company, 2 OSAHRC 384, BNA 1 O.S.H.C. 1118, CCH Employ. S. & H. Guide para. 15,464 (1973). As we said in Baltz, in evaluating the gravity of a violation consideration "should" be given to a number of factors; n2 we did not say each factor constituted an essential element of proof. n3 Conclusion VII relates to no issue in this case and is therefore rejected. Conclusion VIII is contrary to the policy we announced in Hydroswift Corporation, 1 OSAHRC 921, BNA 1 O.S.H.C. 1065, CCH Employ. S. & H. Guide para. 15,275 (1972). Moreover, the conclusion is predicated on the judge's view that a penalty under the civil provisions of the Act is "a fine imposed for the Commission (sic) of a crime". The judge's view and conclusion are rejected for being contrary to Hydroswift and for being [*4] contrary to the plain terms of Section 17 of the Act.

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n2 2 OSAHRC at 387.

n3 See also Broadview Construction Company, 2 OSAHRC 210, 213, BNA 1 O.S.H.C. 1083, CCH Employ. S. & H. Guide para. 15,399 (Reve. Com'n. 1973).

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We turn now to the question of whether a penalty should be assessed on the facts of record. It is undisputed that Respondent's employees were exposed to obstructions existing in the aisles and passageways. The obstructions were of such nature that injuries including fractures were a distinct possibility. On the other hand it appears that the rate of incidence of injury is low. Accordingly, we find the gravity of the violation to range from low to moderate. Respondent has no history of previous violations. It employs 40 people and is therefore of relative small size. The record reveals that Respondent has an active, on-going safety program, and we conclude that its actions have been taken in good faith. On balance, we conclude that a civil penalty of $30 is appropriate.

Accordingly, [*5] the decision of the judge is affirmed to the extent that it is consistent herewith and a penalty of $30 is assessed. It is SO ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The assessment of an appropriate penalty is a subjective determination. What we have here is a ruling by a trial judge that zero is proper and a reversal by two Commission members who feel that $30 is proper.

Will this $30 assessment contribute to the goals for which this law was enacted? Or will it be counter-productive?

Former Commissioner Alan F. Burch accurately reflected my views on this when, speaking for a unanimous Commission, n4 he observed:

It has been the Commission's experience that the proposal of small penalties in these circumstances is often interpreted by employers as harassment.

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n4 Secretary v. General Meat Company, 1 OSAHRC 403, 406 (1972).

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Burch went on to label this an "understandable reaction" and Judge Brenton in this case reached a similar conclusion. In my opinion harassment, or anything approaching its [*6] appearance, has no place in achieving America's occupational safety and health goals.

The Judge reached the proper disposition in this case and I think it is an error to reverse him.

[The Judge's decision referred to herein follows]

BRENTON, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et. seq. hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

The Citation alleges that as the result of an inspection of a workplace under the ownership, operation or control of the Respondent, located at or near Freeport Center, Clearfield, Utah, and described as follows: structural steel fabrication, the Respondent has 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 August 7, 1972 alleges that the violations result from a failure to comply with certain standards promulgated by the Secretary by publication in the Federal Register on May [*7] 29, 1971 (36 FR 10466), and codified in 29 CFR Part 1910.

The description of the alleged violations contested contained on said Citation is as follows:

Citation Number 1:

Item 1: 29 CFR 1910.22(a)(1).

Work areas in the three small overhead crane bays in the welding area were obstructed by welding leads, burning hoses, material storage, electrical extension cords and scrap metal.

29 CFR 1910.22(b)(1),

Aisles and passageways used in conjunction with material handling by the three small overhead cranes in the welding area were not clear of obstructions.

The standards as promulgated by the Secretary provide as follows:

Item 1 of Citation -- Subpart "D" 29 CFR 1910.22(a)(1):

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

29 CFR 1910.22(b) Aisles and passageways.

(1) Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and whenever turns or passage must be made. Aisles and passage ways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard. [*8]

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, Respondent was notified by letter dated August 7, 1972, from Charles F. Hines, Area Director of the Salt Lake City, Utah area, that the Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the contested violations alleged in the amount of $30.00.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Ogden, Utah on December 7, 1972.

This cause is now before this Review Commission Judge for determination on the pleadings, the transcript of the testimony, the exhibits, record, oral arguments and briefs of the parties.

The salient facts as delineated from the transcript, record and exhibits are:

FINDINGS OF FACT

1. The Complaint alleges that Respondent is engaged in a business affecting commerce which is admitted by Respondent's answer. The matter was not contested and no issue thereon has emerged in any manner at any time (Totality of the R. and Tr.).

2. All pleadings, documents and notices required to be posted were posted on the bulletin board by [*9] the timeclock in Respondent's plant (Respondent's answer).

3. Respondent is engaged in custom structural steel fabrication of beams of various size for buildings (Tr. 33).

4. Welding cable, burning hose, electrical extension cords, working material and scrap were in and about the aisles and passageways of the work area in Respondent's plant (Tr. 9, 11, 12, 14, 15, Ex. 1, 2 and 3).

5. These aisles were utilized by the workmen in moving and guiding loads of material by means of overhead cranes to various places in the performance of their work (Tr. 15, 26).

(a) Also, they wers used at various places along the way to perform their several fabricating jobs upon the material (Exhs. 1 and 2; Tr. 11, 13).

6. The several passageways were utilized as a means of ingress and egress to the several work areas (Tr. 11, 13 and 14).

7. Scrap, burning hoses and working material have been abated from the aisles and passageways (Tr. 22 and 25).

8. Perfection in the entire elimination of welding leads and electrical cords from the aisles under the peculiar facts and circumstances here is impossible (Tr. 25).

9. Abatement of the welding leads and electrical cords from the aisles [*10] is accomplished by relocation of the welding units and running the electrical cords and welding leads up and down the outside edges of the aisleways (Tr. 29, 30).

10. The workmen as they perform their work can so arrange the welding leads and hoses and the electrical cords so that they are virtually eliminated from the aisleways (Tr. 37, 38).

11. Any site within an aisle occupied by a workman and his equipment in the performance of his work is a complete obstruction to passage at that point (Tr. 38).

12. The incident of tripping over or entanglement with either an electrical cord or a welding lead is zero for the several years of operation although these cords and leads have apparently been allowed to encroach upon the aisleways of the welding area in a haphazard manner during the time each workman was performing his work with the utilization of these cords and leads (Totality of the Tr.).

13. The proposed penalty for the contested item of the Citation is $30.00, (Exh. C-4), bottomed on the following considerations:

(a) Three instances of alleged violations (Exh. C-4).

(b) Either tripping resulting in a fall or working material tumbling usually requires medical attention [*11] (Tr. 15, 16, 17).

(c) Overall instances of anticipated injury because of the hazards alleged are remote and minimal (Tr. 18, 42 43 and the totality of the R. and Tr.).

(d) Employees lacked discipline in their own conduct in the employment of safety practices and measures (Tr. 18, 19).

(e) Forty (40) persons perform work functions within Respondent's plant (Tr. 19).

(f) Respondent had no previous history as to any safety violations (Tr. 20).

(g) Abatement appeared as no problem (Tr. 20).

14. Abatement date was only in contention in so far as it may relate to whether abatement is absolute or substantial and relative (Tr. 4).

15. All alleged violations have been abated excepting welding leads and electrical extension cords from aisles and passageways, especially that of cross-overs, thus leaving for determination the issue of what constitutes abatement within the confines of the standards alleged, and the issue of the legality of the proposed penalty (Totality of the R. and Tr. 6).

THE ISSUES

This case was tried on the proposition that the separate alleged violations, 29 CFR 1910.22(a)(1) and 22(b)(1), were combined in relation to the facts and circumstances attributable [*12] to that being contested. This was apparent inasmuch as an aisle is a passageway whereas all passageways are not aisles. Also mechancial handling equipment was not used in all aisles and passageways in question.

Sec. 1910.22(a)(1) is a housekeeping standard containing three significant mandates: "clean, orderly and sanitary." Clean means free from dirt, unsoiled, unstained and it may mean free from obstructions or encumberances. Also, clean is synonymous with neat and immaculate. Orderly means arranged or disposed in a neat, tidy manner or regular sequence as opposed to haphazard or chaotic. Sanitary means of or pertaining to health and refers more especially to conditions affecting health or measures guarding against infections or disease.

Sec. 1910.22(b)(16) is specifically an aisle and passageway standard applicable only where mechanical handling equipment is used. Its one significant mandate is: "kept clear." Clear has many meanings and connotations. In the context as used in this standard, clear may or could mean to put in order; tidy up; remove obstructions; make free of obstructions or obstacles; or to pass by or over without contact or entanglement.

It is also significant [*13] to observe that the phrases "shall be kept clear" and "with no obstruction across or in aisles that could create a hazard," appearing in the latter standard cited above, are contained within the same sentence. This surely indicates that the fashioners of the standard tended to give meaning and substance to the first quoted phrase by the addition of the latter quoted phrase, in respect to aisles.

Undoubtedly clean and orderly as used in the housekeeping standard, and their respective application to the facts and circumstances in this case, mean free from obstructions and haphazardness so as to prevent the likelihood of injury. Likewise it appears certain that clear in the aisles and passageways standard is used in the sense that it means to be able to pass by or over without contact or entanglement.

Respondent, during trial, admitted that the alleged obstruction existed but defended its position on abatement on the ground that there was just no way to achieve total perfection in any reasonable way. Complainant, through his Compliance Officer, an expert witness in the industrial safety field, agreed that this position was valid and subsisting.

Nevertheless the standards [*14] may not be erased to accomodate the Respondent. They may, however, be judicially interpreted to achieve the end in view, which is, to assure so far as possible every workman safe and healthful working conditions.

Several alternatives were suggested for implimentation in order to correct the problems to the end that cords and leads would not encroach upon the aisles in a manner that could create a hazard.

In addition the evidence relating to the actual physical operation with the welding area is suggestive of other measures thay may be utilized to attain the desired end. This revelation stems from the fact that when a workman is stationed at a particular place within an aisle engaged in the performance of his work his body and working equipment becomes at that place a natural barrier to passage. The only areas thus exposed to passage would be to each side of this workman to the next workman stationed in the aisle doing the same of similar work. It logically follows, therefore, that the cords and leads attached to these operations may and should be brought to the aisles, obstacle free, then orderly positioned and run outside the edges of the aisles to the point of operation and [*15] if there is a rare instance where a cross over cannot be eliminated, then in this event, the cross over should be positioned at right angle to the aisle within the boundary of the passageway then being blocked by the workman and his equipment. Each move by a workman, up and down an aisle from one place of work to another, should be accorded the same procedure.

The hazard presented by allowing leads and cords to run in the aisles in a disorderly and haphazard manner is the injury to be occasioned by a fall resulting from contact or entanglement. Obviously the standards on which the issue in the case are grounded are for the protection of the unwary, negligent, inadvertent or obstinate employee. According to the facts and circumstances in evidence here the Respondent has had no employee as such at any time. There was practically no showing made by the Complainant as to the degree of probability of injury. The evidence is inconclusive, direct or inferentially, as to the number of employees exposed and the duration thereof. There was some evidence as to severity in that a trip and fall case or material tumbling case could require medical attention. Severity alone, however, [*16] does not make out a complete case for gravity, high or low, in considering the appropriateness of the penalty.

The Review Commission has declared that one essential element of gravity is the degree of probability of an injury occurring as a result of a violation as well as severity, exposure and extent of the violation. Secretary of Labor v. Blatz Bros. Packing Co. Accordingly when there has been a failure in the proof as to any one or more of the elements upon which gravity must be predicated it would appear that there has been a failure to substantiate the proposed penalty.

THE EXERCISE OF THE POWER TO ASSESS PENALTIES

The penalty proposed here is in the nature of a forfeiture of a sum of money as a punishment imposed or incurred for a violation of law. The Congress characterized penalties under the Job Safety Act as civil. The Secretary may propose them, but only the Review Commission is clothed with the authority to assess them. It just seems that very broad discretion should be exercised in asserting this power so conferred. This suggests a compulsion to give due consideration to the purpose and the function to be served by the assessment of [*17] a penalty before any other considerations are undertaken. This is predicated on the proposition that penalties are not made mandatory under the Act except for the word "shall" as it may or should be construed in Sec. 17(b). Even there a wide pecuniary discretion may be exercised, from one (1) cent to $1000.00. In any event the inquiry here, and in like and similar cases, should be as to any useful purpose or function to be derived by the assessment of a $30.00 penalty for a non-serious violation. Is the penalty to act as a deterrent? Is it to vindicate the breach of a standard? Is it assessed just to sting the Respondent? If punishment is the end in view how does a $30.00 assessment under all the facts and circumstances here relate to that end? Isn't the end in view to assure so far as possible every workman safe and healthful working conditions? If the answer to the latter question is yes, is there any relevance to a $30.00 penalty? And finally does not the final affirmance of an initial non-serious violation, or any initial violation under the Act, automatically place the employer on probation subject to the provisions of Section 17(d) and in certain cases Section [*18] 17(e) of the Act?

The answers to these questions should be an assist in resolving the initial confrontations encountered in the matter of assessment of penalties; especially when consideration is given to the fact that Congress neatly characterized penalties as "civil." This adjective used to describe the kind or nature of the penalty assessed is suspect to the employer. Call it what you will, as far as he is concerned the assessment of a penalty is a fine imposed for the Commission of a crime. The word "civil" is probably used to describe more matters, things and people than any other word in our vocabulary. This is equally the case in all governmental affairs. As a result it has as many connotations as it has uses which is staggering to say the least. But again to the employer the connotation is that the Omnipotent Federal Government has moved into his private domain and exacted a fine to punish him for an act of commission or omission of which in the majority of cases he is unaware. He can and does understand, "thou shall not kill," but he is oblivious to, "thou shall not run cords and leads haphazardly in aisleways," when this condition had never, in all prior experience, [*19] deprived a workman of a safe place to work.

In all common probability the Congress used the term "civil penalty" in the sense that it denotes a sanction for civil disobedience. So again, by whatever terminology it is described it is that part of a law which signifies the evil or penalty which will be incurred by the wrongdoer for his breach of it.

The point of this discourse on assessment of penalties is to focus attention to the proposition, that to assess a penalty, without first affirmatively finding one or more attributes, the purpose or the function, to be served by it, may be tantamount to a denial of due process of law.

Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights; but not necessarily judicial proceedings; it may include summary proceedings if not arbitrary or unequal.

Due process of law in the Fifth Amendement refers to that law of the land which derives its authority from the inherent and reserved powers of the sovereignty of the United States exerted within the limits of those fundamental principles of liberty and justice which [*20] lie at the basis of all our civil and political institutions. It implies conformity with the natural and inherent principles of justice and requires that no one shall be condemned in person or property without opportunity to be heard. The proceedings must be appropriate to the case and just to the parties affected and pursued in the ordinary manner and adopted to the end to be obtained with opportunity to be heard, when necessary, for the just protection of rights.

Each penalty assessed should stand in the relation of an effective tool to carry out the purpose and policy of the Act as set forth in part (b)(1) through (13) inclusive of Section (2).

Therefore it would appear that the possessors of the power to assess a civil penalty under the Act should be provided with substantive awareness by reasonable, probative and substantial evidence, of the necessity of a penalty for the avowed purpose or function of it making an effective contribution in carrying out the purpose and policy of the Act by one or more of the means enunciated, being (1) through (13) inclusive of part (b) of Section (2) of the Act, otherwise the proposed penalty, if affirmed or modified, is vindictive, retributive, [*21] arbitrary, capricious, whimsical and fanciful.

It may well be that the occupants of the Ivory Towers will look askance upon the foregoing dissertation. Moreover, in all common probability, little note will be made of what has been said here today, nor will it be long remembered. Nevertheless, if this exercise in rhetoric flushes out a vent to the imagination, culminating in genuine progressive thinking, it shall not have been in vain as and for the inheritors of the past and the beneficiaries of the future.

CONCLUSIONS OF LAW

Where the Complaint alleges that the Respondent is engaged in a business affecting commerce and the Respondent, at no time in the course of the proceedings, denies either generally or specifically, this allegation, and there is an admission thereof by the answer, it will be deemed thereby that jurisdiction of the cause and the parties in the Review Commission is established.

Where at the hearing of a contested Citation, the primary issue presented is the kind of abatement that will satisfy the legal impositions of the standards, admittedly violated, it is incumbent upon the trier of the facts and law to define a requisite abatement, based [*22] upon the facts and circumstances in evidence, that will satisfactorily meet the requirements imposed.

III

Where the thrust of the aisles and passageways standard is, that they shall be kept clear, it shall be interpreted to mean, to be enabled to pass by or over without contact or entanglement.

When it is admitted, by the promulgator of the standard, that abatement of the violation cannot be achieved perfectly, under the peculiar facts and circumstances then and there existing, then the manner and method of abatement employed or adopted, that substantially and relatively eliminates the anticipated hazard, will satisfy the legal imposition of the standard alleged.

In this case when welding leads and electrical cords are employed in aisleways by bringing them there, obstacle free, run outside the edges of the aisle to the point of work performance, and any crossover is run at right angle to the aisle within the boundary of the passageway then blocked by the workman and his equipment, this shall be tantamount to abatement of the Citation.

Where there is a failure to reveal, by reliable, substantial and probative evidence, an essential element by which the gravity [*23] of a particular violation may be determined, the proof is devoid of a material matter necessary to sustain the proposed penalty, and thus this penalty is subject to vacation.

VII

At such time as the affirmative adjucation of the initial Citation becomes in law a finality, the employer thereupon is automatically placed on probation conditioned by the extraordinary penalties provided in Section 17(d) of the Act for any failure to correct the violation.

VIII

The principles of justice and fairness upon which this nation was founded command an awakening to the proposition expressed here today to wit: that unless there is, upon an initial Citation, a showing of need for the proposed penalty, for the purpose and function of carrying out the Congressionally declared purpose and policy of the Act predicated upon one or more of the means by which it is to be accomplished, then that penalty deserves no further consideration and it should be vacated.

ORDER

Wherefore it is ordered that:

1. The Citation herein be and the same is hereby affirmed.

2. That the violations of 29 CFR 1910.22(a)(1) and (b)(1) as charged under Item 1 of the Citation may be corrected by following the [*24] Conclusion of Law as laid down under IV hereinabove set forth.

3. That the proposed penalty herein be and the same is hereby vacated.

It is so ordered.