FORD MOTOR COMPANY

OSHRC Docket No. 13682

Occupational Safety and Health Review Commission

August 29, 1977

[*1]

Before BARNAKO, Chairman, and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Regional Solicitor

W. J. Rooney, Ford Motor Company, for the employer

John Scott, Health & Safety Rep., Local 425 UAW, for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On March 15, 1976, Administrative Law Judge James A. Cronin held respondent Ford Motor Co. in willful violation of section 5(a)(1) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"] and assessed a civil penalty of $10,000.

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n1 Section 5(a)(1) requires that, "each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

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I granted a petition for discretionary review filed by respondent raising the following issues: n2

(1) Whether the facts justify a determination that respondent committed a willful [*2] violation within the meaning of section 17(a) of the Act?

(2) Whether imposition of the maximum penalty of $10,000 is justified?

(3) Whether the Act violates the Seventh Amendment right to a jury trial?

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n2 Former Commissioner Moran issued a direction for review which did not specify any issues.

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For the reasons given below, we affirm the Judge's decision.

On March 16, 1975, a fatal accident occurred on respondent's freight elevator #13097 at its automobile assembly plant in Lorain, Ohio. Following the accident complainant Secretary of Labor conducted an inspection of the elevator and subsequently issued a citation for willfull violation of section 5(a)(1) of the Act alleging as fallows:

The employer failed to furnish his employees working in or around the Westinghouse freight elevator #13097 near Column W-20, operating between the first floor "Passenger body drop" in Department 30 and the second floor paint area, employment and a place of employment which was free from recognized hazards that were causing of were [*3] likely to cause death or serious physical harm to his employees in that:

1. The south gate and door seals, locks or fasteners were deliberately removed, to meet a production requirement, and were not replaced.

2. The employer required or allowed employees to operate the elevator without proper safeguards.

3. In the absence of interlocks, the south elevator doors and gate were to be sealed. Such seals were not in place and the door and gate were therefore not rendered unoperative.

A penalty of $10,000 was proposed by the complainant for the violation.

The essential facts are not in dispute. Respondent's freight elevator is used frequently as a personnel lift, transporting maintend employees between the first and second floor of the assembly plant. An auto body lift that is used to transfer automobiles between the two floors is also located in the plant. During the three or four occasions a year the auto body lift is out of service, respondent's supervisory personnel decide whether to use the freight elevator to transfer automobiles until the auto body lift is repaired. If the decision is made to use the freight elevator, a maintenance crew opens the south (rear) elevator [*4] and shaftway doors and pins up the inside safety gate. Also, the fuses on the north doors are removed to render the doors inoperative in a closed position. Although the auto bodies would fit into the elevator with the south doors closed, the doors are left open to prevent loss of production time. n3 Because the south shaftway doors are also left open, supervisory personnel are stationed at the elevator on both floors to guard the open shaftways. A maintenance crew member then operates the elevator between the floors.

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n3 On the average, the freight elevator is used to transfer autos for 1/2 - 1 hour, depending upon the duration of the breakdown of the auto body lift.

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When installed in 1958 the elevator was equipped with operative interlocks on both the north (front) and south (rear) doors. These devices, which are required by the Ohio Elevator Code, prevent the elevator from operating while the doors are open.

On five occasions between September 1968 and April 1973 State elevator inspectors found that the interlocks [*5] on the south doors had been removed. Pursuant to the Ohio Elevator Code, the inspectors ordered that either the interlocks be replaced or the south doors be sealed shut. Unless these measures were taken, the state would not issue an operating certificate, without which it is illegal to operate an elevator. Accordingly, on September 15, 1972, respondent's plant engineering manager, Carl Sandvik, issued a memorandum to his maintenance supervisors ordering them to:

Provide a hasp on the outer [shaftway] rear [south] doors and padlock same with only Maintenance Department to have key. Weld a clip on the inner [elevator] doors so that they cannot be raised. When rear door has to be used for production, lock would be removed and clip knocked off.

During State inspections in September 1973 and November 1974 it was observed that although the interlocks had not been replaced the south elevator doors, as ordered by Mr. Sandvik, had been sealed. As indicated in the memorandum, however, whenever it was necessary to use the elevator as an auto body lift the clip on the south elevator doors would be removed. n4

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n4 Ohio State Inspector Wilbur Martin testified that because the welds on the rear doors were often broken he on one occasion ordered that they be sealed with masonry work.

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During a breakdown of the auto body lift on February 11, 1975, respondent, pursuant to its usual procedure, utilized the freight elevator to transport automobiles. Mr. Sandvik, who was responsible for the safety of the elevator, testified that after the auto body lift had been repaired he never gave instructions to either reinstall the lock or reweld the clip to the elevator door, and that he did not know whether such measures had been taken (see Tr. 191).

On March 16, 1975, two employees, Charles McDaniel and Jack Athey, used the elevator to return tools from the first floor to the second floor. While ascending, the elevator stopped, apparently because the north shaftway doors were ajar, thereby breaking contact with the elevator and causing the interlock to operate. The emergency alarm was not operating. The two employees began to call for help. After approximately one minute, McDaniel suggested that they attempt [*7] to open the first-floor rear doors, which were still accessible from their position, and he was able to open the rear doors. With the doors open, there was approximately a two-foot gap between the floor of the elevator and the door jamb. McDaniel squeezed through the opening to lower himself to the floor. At that instant an electrician on the second floor who had heard the noise from the elevator observed that the elevator doors on that floor were separated. He pushed the doors together causing the elevator to resume operation. McDaniel was pinned between the elevator floor and the shaft and then dropped into the elevator pit 7 feet below.

At the hearing, respondent admitted that by allowing the elevator to operate without either sealing the south doors or providing interlocks for them, it committed a serious violation of section 5(a)(1) of the Act. It argued however, that its failure to provide the safeguards did not constitute a willful violation.

In his decision, Judge Cronin concluded that the evidence "indisputably" established a willful violation of section 5(a)(1) of the Act. The Judge found that respondent "consciously and intentionally adopted" a production method [*8] which it knew to be proscribed by Ohio state law. According to the Judge, the willful violation occurred on February 11, 1975, the last time the elevator was used as an auto lift. He also stated that with the violation established on that date, the burden shifted to respondent to rebut a presumption that the failure to abate the hazard by the date of the fatal accident was not willful. He observed, however, that it is not a defense to a charge of "willfulness" that an employer inadvertently failed to take the steps necessary to eliminate a willfully created recognized hazard. Finally, Judge Cronin found that in light of the gravity of the violation, respondent's size, and its history of continuous use of the elevator while in the violative condition, a penalty of $10,000 is appropriate. n5 As modified infra the Judge's decision is affirmed.

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n5 Under section 17(a) of the Act, a $10,000 penalty is the maximum that can be assessed for a willful violation.

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In its brief on review, respondent again concedes that [*9] the violative condition resulted in a serious violation of section 5(a)(1) of the Act, but argues that the Judge erred in finding that the violation is willful. According to respondent, the evidence fails to demonstrate anything approaching a knowing, conscious and deliberate "flaunting" of the Act. Moreover, respondent takes exception to that portion of the Judge's decision in which he found that the violative condition existed, not only on the day of the accident, but whenever the freight elevator was used as an auto body lift.

In Kent Nowlin Construction, Inc., 5 BNA OSHC 1051, 1977-78 CCH OSHD para. 21,550 (Nos. 9483 et al, 1977) the Commission held that a willful violation is established when the evidence shows that the respondent was aware of the requirements of the Act, yet made a conscious and deliberate decision not to comply. See also Intercounty Constr. Co. v. O.S.H.R.C., 522 F.2d 777, 779 (4th Cir. 1975), cert denied, 423 U.S. 1072 (1976); F.X. Messina Corp. v. O.S.H.R.C., 505 F.2d 701, 702 (1st Cir. 1974). In so holding, the Commission rejected the proposition that a willful violation could be established only upon a showing that the violation [*10] was the result of a reckless and defiant disregard of the Act. See e.g., Frank Irey Jr., Inc. v. O.S.H.R.C., 519 F.2d 1200 (3d Cir. 1974), aff'd on rehearing, 519 F.2d 1215, aff'd 97 S.Ct. 1261 (1977). n6

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n6 The issue in Irey both on rehearing and before the Supreme Court was the constitutionality of the Act's enforcement scheme and did not encompass the definition of a "willful violation."

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Under either definition, however, we find that a willful violation is established under the facts of this case. On five occasions between September 1968 and April 1973 Ohio State elevator inspectors found respondent's elevator operating without the required interlocks on its rear doors. Rather than reinstalling the interlocks, respondent chose to seal the doors shut. Although this action brought the elevator into compliance with state regulations, respondent, as part of its regular operating procedure, would remove the lock and clip whenever the elevator was used as an auto body lift. Respondent clearly [*11] knew that it was illegal to operate the freight elevator with the rear doors operative while not equipped with interlocks. Nevertheless, following the freight elevator being returned to normal service after the February 11, 1975 breakdown, Mr. Sandvik, who was responsible for compliance with the state elevator code and who wrote the memorandum of September 1972 which ordered the clip on the doors removed when necessary for production, never gave instructions to either reinstall the interlocks or render inoperative the rear doors. Indeed, Mr. Sandvik did not know whether the rear doors had been locked after the elevator was returned to regular service. n7 The condition was allowed to continue for over a month, until after the fatal accident of March 16, 1975, at which time the interlocks were reinstalled on the rear doors.

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n7 Mr. Sandvik testified that there were no interlocks on the door for one year preceding the accident.

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Respondent knew that it was in contravention of State law to operate its elevator with the [*12] rear doors operative without being provided with interlocks, and concedes that the practice is a "recognized" hazard likely to cause death or serious injury to its employees. Nevertheless, respondent took no steps to ensure that the hazard would be abated. n8 We find that respondent's inaction constituted a clear disregard and indifference to its compliance responsibilities.

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n8 Respondent asks the Commission to consider the numerous inspections in which the freight elevator was found to be in compliance with the State code. We note, however, that most of these inspections occurred before September 1968 when the interlocks were first found to have been removed. There is no evidence indicating whether respondent's work practice before that time required the use of the elevator as an auto body lift. Moreover, during the inspections of September 1973 and November 1974 the doors complied with the State code because they were sealed. It is because respondent removed the lock and clip to facilitate the use of the elevator as an auto body lift, without resealing the south doors after use, that the case is here before us. Under the circumstances, we do not consider the inspections during which the elevator was in compliance to be relevant to the violative condition existing on March 16, 1975.

[*13]

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Respondent also argues that the conduct of its employees in trying to escape from the elevator was unforeseeable and constituted an isolated and idiosyncratic act which should not be considered in determining whether the violation was willful. We are not persuased. Our conclusion that a willful violation exists is not based upon the occurrence of the accident. Moreover, we do not consider the behavior of the employees to be unforeseeable or idiosyncratic. Evidence reveals not only that the freight elevator had a history of stalling but also that the emergency alarm was not operating properly. Under these circumstances, we do not consider the employees' attempt to escape to be unforeseeable. Cf. Southern Railway Co., 3 BNA OSHC 1657, 1975-76 CCH OSHD para. 20,091 (No. 5960, 1975).

We read respondent's brief to challenge the Judge's conclusion that its practice of using the freight elevator as an auto body lift is a recognized hazard. According to respondent, the practice is not hazardous because supervisors guard the elevator shaftways when the elevator is used. We are not persuaded. [*14] Respondent's argument overlooks the fact that the hazard has two dimensions. First, there is the danger of the open shaft. This is alleviated by the posting of guards. But the second is the danger to employees within the elevator. The second danger resulted in the accident described in the evidence. Also, Marvin K. Cooper, a member of respondent's maintenance crew, testified that he would operate the elevator between floors during its use as an auto body lift. In short, while respondent's procedure eliminated the danger of the open shaftway, it still exposed employees within the elevator to the hazard created by the open doors. n9

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n9 We decide only the case before us. We express no opinion as to whether the use of the elevator as an auto body lift would constitute a "recognized hazard" if, during the use, the elevator doors were closed and equipped with functioning interlock devices.

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Respondent also contends that the penalty procedure of the Act violates its right to a jury trial under the Seventh Amendment. [*15] The Commission does not have the authority to rule on the constitutionality of the Act. Georgia Electric Co., 5 BNA OSHC 1112, 1977-78 CCH OSHD para. 21,613 (No. 9339, 1977). It would appear the objection is preserved only for possible judicial review. Cf. Todd v. S.E.C., 137 F.2d 475 (6th Cir. 1943). We note however that the Supreme Court in Atlas Roofing Co. v. O.S.H.R.C. and Frank Irey Jr., Inc. v. O.S.H.R.C., 97 S.Ct. 1261 (1977) recently held that the Seventh Amendment does not apply to the Act's penalty procedure.

Finally, we consider the $10,000 penalty assessed by the Judge to be appropriate. Respondent's failure to bring its elevator into compliance with the Ohio State Elevator Code, despite numerous orders to do so by State inspectors, and its allowance of the hazardous condition to exist constituted a flagrant disregard of its duty under the Act to furnish a safe place of employment. Moreover, the employees' continuous use of the elevator during the existence of this condition is a matter of high gravity.

Accordingly, it is ORDERED that the Judge's [*16] decision is affirmed and a penalty of $10,000 is assessed.