OTIS ELEVATOR COMPANY

OSHRC Docket No. 2006

Occupational Safety and Health Review Commission

September 24, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge David G. Oringer dated August 22, 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 in all respects.

[The Judge's decision referred to herein follows]

ORINGER, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as "the Act") to review Citations issued by the Secretary of Labor (hereinafter referred to as "Complainant") pursuant to section 9(a), and a proposed assessment of penalties thereon issued pursuant to section 10(a) of the Act.

The Citation issued on December 13, 1972 and Complaint filed on January 22, 1973, a lege that Otis Elevator Company, the employer (hereinafter referred to as "Respondent"), on November 24, 1972, at a work place under its ownership, operation and control, violated three (3) occupational safety and health standards promulgated pursuant to section [*2] 6 of the Act, which were described in Complainant's Citation as "not serious," and read as follows:

Citation No. 1

29 CFR 1926.150(c)(1) -- Fire protection -- (c) Portable firefighting equipment -- (1) Fire extinghishers and small hose lines. (i) A fire extinguisher, rated not less than 2A, shall be provided for each 3,000 square feet of the protected building area, or major fraction thereof. Travel distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 feet.

29 CFR 1926.350(a)(1) -- Gas welding and cutting. (a) Transporting, moving, and storing compressed gas cylinders. (1) Valve protection caps shall be in place and secured.

29 CFR 1926.350(a)(9) -- Gas welding and cutting. (a) Transporting, moving, and storing compressed gas cylinders. (9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

The yiolations as alleged by the Complainant are described as follows:

Citation Number 1

Item Number -- Standard or regulation allegedly violation -- Description of alleged violation

1. -- 29 CFR [*3] 1926.150(c)(1) Page 7352 As adopted by 29 CFR 1920.12 -- Failure to provide a fire extinguisher rated not less than 2A for each 3,000 Sq. Ft. of the unprotected building area or major fraction thereof travel distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 ft. Location: Floors (4) thru (13)

2. -- 29 CFR 1926.350(a)(1) Page 7367 As adopted by 29 CFR 1910.12 -- Failure to provide valve protection caps for gas (compressed) cylinders; Location: (a) 1st. floor (1) oxygen and (1) acytelene (b) 13th floor (3) oxygen and (2) acytelene cylinders.

3. -- 29 CFR 1926.350(a)(9) Page 7367 As adopted by 29 CFR 1910.12 -- Failure to secure a compressed gas cylinder in an upright position. Location: (a) 1st. fl. (1) oxygen and (1) acytelene cylinder (b) 13th fl. (3) oxygen and (2) acytelene cylinders.

Notification of Proposed Penalty was issued by the Complainant on even date, to wit, December 13, 1972, proposing to assess a penalty of $30.00 for the alleged nonserious violations described above. In a letter dated December 27, 1972, the Respondent filed a notice of intention to contest the Citation and the proposed penalty.

This cause [*4] was referred to the Occupational Safety and Health Review Commission for hearing pursuant to section 10(c) of the Act on February 5, 1973, and the within case was assigned to the undersigned on March 22, 1973 for hearing pursuant to section 12(e) of the Act.

Pursuant to notice, the hearing was held on May 1, 1973, in New York, New York.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the Citation, Notification of Proposed Penalty, Notice of Contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, supports the following:

FINDINGS OF FACT

1. The Respondent, Otis Elevator Company, is a corporation organized under the laws of the State of New Jersey, with executive offices located at 260 Eleventh Avenue, in the City and State of New York (T. 5).

2. The Respondent has manufacturing plants throughout the country for the manufacture of elevator parts and ships from these plants to various locations in other states (T. 5 & 6).

3. The Respondent is one of the largest elevator companies in the area, with [*5] approximately 1,310 employees out of a field of approximately 2,400 men, and has total sales for the year that the violation was alleged, in the amount of $340,000,000 (T. 6).

4. As a result of an inspection of a work site of the Respondent, on November 24, 1972, by an authorized representative of the Secretary, the Respondent was issued one Citation alleging three (3) violations described as "not serious" and, in addition thereto, was issued a Notification of Proposed Penalty on even date, to wit, December 13, 1972 (Citation and Notification of Proposed Penalty) (T. 21).

5. On the date of the inspection concerned herein, the Respondent's employees were exposed to fire hazard, in that his employees worked in an area where fire extinguishers graded not less than 2A were not provided for each 3,000 square feet of the protected building area of major fraction thereof, and only one fifty-five gallon open drum of water without fire pails was located on the floor. While there was a dry stand pipe available, the water line was frozen and there were no hoses on the spigots (T. 27, 28, 29, 30, 47, 48, 49, 50).

6. On the date of the inspection concerned herein, employees of the Respondent [*6] were exposed to the hazard of compressed gas cylinders without valve protection caps being in place and secured (T. 23, 24, 25, 26, 27, 35, 37, 41, 42, 44, 45, 46, 47, 60, 61).

7. On the date of the inspection concerned herein, the Respondent's employees were exposed to the hazard of a compressed gas cylinder that was not secured in an upright position at a time that it was neither hoisted nor carried (T. 23, 24, 25, 26, 27, 35, 37, 41, 42, 44, 45, 46, 47, 60, 61).

8. The gas cylinders did not belong to the Respondent, but to an organization known as Peter B. Ratti Associates (T. 37, 46).

9. The penalty as proposed by the Complainant is appropriate in the instant cause.

DISCUSSION

The Respondent argues that inasmuch as it does not own or control either the gas cylinders or the fire equipment nor has the responsibility for furnishing the same, it cannot be charged with a violation of the standards alleged to be violated in the instant cause. The Act makes each employer responsible for the safety of his employees, at least to the extent that it requires that he furnishes them a place to work free from hazards. In the case at bar, the hazards existed and were easily [*7] ascertainable to the Respondent. The Respondent has a duty to see to it that he does not allow, suffer, permit or direct his employees to work at a work site that contains hazards, regardless of who may control the work site, or who may own the hazardous equipment. The gravamen of the violation is allowing one's employees to work in a work site that contains hazards. In the event that this Respondent had no employees at the work site or refused to send its employees into a work site that contained hazards, then, and in such case, it would not face an allegation of violation of the Act. Once however, the Respondent allows, suffers, permits or directs its employees to enter or work upon a work site wherein hazards are located and thereby exposes its employees to such hazards, it is exposed to a Citation and a penalty under this Act.

The Respondent quoted during the trial and in his brief, the case of R.H. Bishop Co., This case, decided by my learned colleague, Judge Goldstein, is presently on review by the Commission, and has not yet become a final decision of the Commission. I have only seen the excerpt from the Decision contained in the [*8] Commerce Clearing House reports, which states that a plumbing and heating subcontractor on a construction site was not responsible for safety violations that were caused or created by other subcontractors or the general contractor. I do not know whether this is an accurate summary of the Judge's Decision, however it is not, in my opinion, a direct statement of the law. The question is whether or not the Respondent's employees are exposed to violations on a work site. If they are, then the Respondent may well be in violation. Also quoted in Respondent's brief is the matter of Cam Industries, Inc., I have no quarrel with that concept. The Respondent in his brief, further relates that Judge Cronin went on to say that there is nothing in the legislative history that Congress intended to hold employers responsible for [*9] all violations of the Act, irrespective of fault. I agree with that contention, however, that does not accurately describe the situation of the case at bar. In this cause, the cylinders on the first floor were clearly in view and were seen by the Respondent's own witness, as well as the Compliance Officer, and certainly that which occurred on the thirteenth floor was available to ascertainment by any employer who wished so to do. The Commission has often held that an employer has final responsibility for compliance with the provisions of the Act, Secretary of Labor v. National Realty and Construction Co., Inc., Secretary of Labor v. Arnold Hansen, dba, Hansen Brothers Logging, The Commission however, has also stated that this responsibility is not absolute. Secretary of Labor v. Standard Glass Co., Inc., Secretary of Labor v. Mountain States Telephone and Telegraph Co.,

In the instant cause, the Respondent's employees were exposed to hazards that were obvious or easily ascertainable to this Responddent. True, the contractual responsibility for [*10] fire equipment, and the ownership of the cylinders may not lie with this Respondent, nevertheless, once an employer allows, suffers, or permits employees to work in a work place, he is responsible to see to it that standards properly promulgated by the Secretary, are complied with. The only way to avoid exposure to a violation of such standards, would be to prohibit exposure of his employees to such violations. It seems to me that an employer may not delegate or assign his responsibility for the safety of his employees to another, under this Act.

Insofar as the penalties are concerned, while the Commission has stated that miniscule penalties do nothing to enhance the furtherance of the Act, (see Secretary of Labor v. J.E. Chilton Millwork & Lumber Co., Inc., Secretary of Labor v. General Meat Co., Inc., Secretary of Labor v. Hydroswift Corp.,

The other cases related in the Respondent's brief n1 are, in my opinion, not at all analogous to the case at bar.

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n1 The Secretary presented neither brief, nor proposed findings of fact or conclusions of law.

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Based on the foregoing considerations, the Judge makes the following:

CONCLUSIONS OF LAW

1. At all the times herein mentioned, the Respondent was engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Respondent was, on the date of the inspection at its work site herein concerned, and at all other times mentioned herein, an employer subject to safety and health regulations promulgated by the Secretary of Labor.

3. On the date of the inspection herein concerned, the Respondent was in violation of that standard found at 29 CFR 1926.150(c)(1), on the thirteenth floor.

4. On the date of the inspection herein concerned, the Respondent was in violation of that standard found at 29 CFR 1926.350(a)(1).

5. The Respondent, on the day of the inspection herein concerned, was in violation of that standard found at 29 CFR 1926.350(a)(9).

6. [*12] The Respondent, on the day of the inspection herein concerned, was not in violation of 29 CFR 1926.150(c)(1), insofar as floors four through twelve are concerned, in that the Secretary failed to sustain the burden of proof of violation as to those floors.

7. The penalty proposed for the violation of item No. 1, of the Citation insofar as the thirteenth floor is concerned, in the sum of $30.00 is appropriate.

8. The proposed assessment of no penalty, for violations of items No. 2 and 3 of the Citation, are appropriate in the instant cause.

In view of the foregoing; having given due deliberation to the gravity of the violation, the size of the Respondent's business, the presence or absence of good faith of the Respondent, and its history; and good cause appearing therefore, it is ORDERED, that

1. The Citation for nonserious violation bearing item No. 1, alleging violation of that standard found at 29 CFR 1926.150(c)(1), is herewith affirmed, insofar as the thirteenth floor is concerned.

2. The allegation of violation of 29 CFR 1926.150(c)(1), insofar as floors four through twelve are concerned, is herewith vacated.

3. The allegation of violation by the Respondent of that [*13] standard found at 29 CFR 1926.350(a)(1), is herewith affirmed.

4. The allegation of violation by the Respondent of that standard found at 29 CFR 1926.350(a)(9), is herewith affirmed.

5. The penalty proposed in the sum of $30.00 for the violation of item No. 1, found proven insofar as the thirteenth floor is concerned, is herewith affirmed.

The proposed assessment of no penalty for violation of items No. 2 and No. 3 of the Citation, is herewith affirmed.

SO ORDERED.