MIDWEST BY PRODUCTS, INC.  

OSHRC Docket No. 2840

Occupational Safety and Health Review Commission

July 15, 1975

  [*1]  

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

  BY THE COMMISSION: A decision of Review Commission Judge Alan M. Wienman, dated January 22, 1974, is before the Commission for review pursuant to 29 U.S.C. §   661(i).   The issues before the Commission are as follows:

(1) Did the Judge err in vacating items 2 and 9 of the citation for nonserious violations of 29 C.F.R. § §   1910.151(b) and 1910.110(d)(10), respectively, on the basis that these standards are unenforceably vague?

(2) Should item 5 of the citation for a nonserious violation of 29 C.F.R. §   1910.309(a) be vacated because the incorporation by reference therein of provisions of the National Electrical Code is impermissible under the Act?

Although the respondent initially contested items 2, 5, and 9 of the citation, it later admitted these violations in its answer.   In the proceedings below, the respondent consistently limited its dispute to the appropriateness of the penalties proposed by complainant.   Under these circumstances, the Commission finds that issue (2) is moot and, assuming arguendo that the Commission has the authority to consider the validity of Secretarial standards, that the Judge erred in vacating [*2]   items 2 and 9 of the citation.   See 5 U.S.C. §   557(c).

Considering the entire record in conjunction with the criteria specified in 29 U.S.C. §   666(i), the complainant's penalty proposals of $30.00 and $45.00 for items 2 and 9, respectively, are considered appropriate.

The Judge's decision as to items 2 and 9 of the citation for non-serious violations is reversed and those items are affirmed.   Penalties of $30.00 and $45.00 are assessed respectively for those items.   The remaining findings of the Judge are affirmed.

[The Judge's decision referred to herein follows]

  WIENMAN, 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 Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.   The Citations allege on the basis of an inspection of a workplace under the ownership, operation or control of Respondent located at Grand Island, Nebraska, that the Respondent violated the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor   [*3]   pursuant to Section 6 thereof.

The Citations, issued April 10, 1973, allege both serious and nonserious violations of the Act.

The Citation for Serious Violation sets forth the alleged violations in the following form:

Date on which

Standard or regulation

Description of alleged violation

alleged violation

allegedly violated

must be corrected

29 CFR 1910.212(a)(1)

Part (a)

May 14, 1973

Page 22273, Column 3

(Cooker room).   The inclined 8-

inch screw conveyor to the

right of the steps leading to the

cooker platform in the cooker

room is not provided with bar-

rier guarding or other safety

devices that would prevent

employees from falling from

the steps into the conveyor

below.

The horizontal mounted 8-inch

screw conveyor that runs in

front of the two cookers is

not provided with a barrier

guard or safety device that

would prevent employees from

becoming entangled in the con-

veyor from the front side or

from the end adjacent to the

aisle area.

The 14-inch screw conveyor in

the raw material storage area

is not provided with a barrier

or safety device that would

protect employees from falling

into the conveyor at the point

in which the conveyor and

ladder leading to the upper

platform intersect.

29 CFR 1910.23(o)(3)

Part (b).

May 14, 1973

Page 22109, Column 2

(Cooker room) The crossover

platform over the 8-inch hori-

zontal screw conveyor in front

of the cookers is not provided

with a standard railing in that

the crossover platform railing

has no mid-rail.   The pit

mounted, 14-inch screw con-

veyor in the raw materials

holding area is not provided

with a standard railing along

the aisle area adjacent to the

pit, just inside the door, in

that no mid-rail is provided

leaving a 41-inch opening

through which an employee

could fall.

29 CFR 1910.212(a)(1)

Part (c).

May 14, 1973

Page 22273, Column 3

(Second floor storage room)

The endless belt conveyor

used to convey sacked product

to the second floor storage

room has ingoing nip points at

the point where the belt comes

in contact with the upper

pulleys.

  [*4]  

  Standards 1910.212(a)(1) and 1910.23(c)(3) are included in this serious violation. The reason being in some instances lack of barriers or safety devices and lack of standard railings over dangerous equipment.   They are grouped   because both apply to the same equipment.   However, the method of guarding the conveyors is optional on the part of the employer.

Violation for nip point on conveyor belt is added because it also is violation of 1910.212(a)(1).

The alleged violations in this Citation for Serious Violation were cited from the Federal Register dated October 18, 1972, Volume 37, Number 202.

The standard codified as 29 CFR 1910.212(a)(1) provides as follows:

(a) Machine guarding -- (1) Types of guarding. One or more method of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.   Examples of guarding methods are -- barrier guards, two-handed tripping devices, electronic safety devices, etc.

The standard codified as 29 CFR 1910.23(c)(3) provides as follows:

(3) Regardless of height, open-sided [*5]   floors, walkways, platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard railing and toe board.

Pursuant to enforcement procedures set forth in Section 10(a) of the Act, Respondent was notified by letter dated April 10, 1973 from Warren Wright, Area Director, Occupational Safety and Health Administration, U.S. Department of Labor that he proposed to assess a penalty of $650.00 for the alleged serious violation.

The Citation for Other Than Serious Violation issued April 10, 1973 alleged ten violations, but Area Director Wright informed Respondent that he proposed to assess penalties for only five of the alleged violations as follows: Item No. 1: $35.00; Item No. 2: $30.00; Item No. 4: $30.00; Item No. 5: $40.00; and Item No. 9: $45.00.

Respondent filed a timely Notice of Contest in which it indicated it wished to contest the Citations and the proposed assessment of penalties.   After Complaint was filed, however, Respondent filed an Answer in which it admitted violation of   Items 2 through 10 inclusive of the Citation for Other Than Serious Violation. It denied [*6]   Item 1 of this Citation, an alleged violation which is set forth on the Citation in the following form:

Standard or regula-

Date on which

Item

tion allegedly

Description of alleged

alleged violation

number

violated

violation

must be corrected

1

29 CFR 1910.25(d)

(Shop/garage area) the

May 14, 1973

(2)(viii)

portable 10-foot stepladder

Page 22116, Column 1

in the shop/garage area had

faulty center holding devices,

and the siderails were in a

badly deteriorated condition.

(Upstairs skinning room) The

8-foot stepladder in the up-

stairs skinning room has a

broken, back siderail that has

improvised wire repairs.

 

In its Answer Respondent also denied the allegations of the Citation for Serious Violation and contested all proposed penalties as excessive.   However, subsequent to the hearing Respondent filed proposed Findings of Fact, and a proposed order urging that Respondent be found in violation of the Act as charged in the Citation for Serious Violation, but that the penalty for said violation be reduced to $325.00.

THE ISSUES

No jurisdictional questions are in issue, the parties having pleaded facts sufficient to establish that the Respondent [*7]   is subject to the Act, and that the Commission has jurisdiction of the parties and the subject matter.   The chief issues for resolution are whether the Respondent violated the safety regulation codified as 29 CFR 1910.25(d)(2)(viii) as alleged in Item 1 of the Citation for Other Than Serious Violations; and what penalties, if any, are appropriate for the serious violation and Items 1, 2, 4, 5, and 9 of the Citation for Other Than Serious Violation.

  SUMMARY OF THE EVIDENCE AND DISCUSSION

Nonserious Violations: Citation Item 1

OSHA Compliance Officer Jeff C. Spahn, Sr., testified that he inspected Respondent's rendering plant on March 28, 1973.   He observed two ladders in poor repair.   A ten foot portable stepladder situated in the shop garage area was equipped with a steel center holding device that was pulled from the back frame of the ladder, and the side rails of the ladder were splintered, cracked and badly deteriorated.   In the skinning room where one employee was working the day of the inspection an eight foot stepladder had a cracked back side rail and had been wrapped with what appeared to be bailing wire in improvise repair.

On cross examination Mr. Spahn stated [*8]   that he did not recall if the Plant Manager had told him that the stepladders were not owned by Respondent, but were owned by an electrician doing some work on the day of the inspection. Mr. Spahn recalled that there was a man making electrical repairs, but he did not think he was apprised of the fact that he was an outside electrician. The ladder in the garage shop area did not appear to be in use at the time.   The ladder in the skinning room was set up but no one was on it.

Ernest W. Meininger, Vice-President of Respondent, testified that the Company used no ladder in its skinning room, and the ladder Spahn observed there belonged to an electrician wiring a lift hoist.   The ladder in the storage area was not in use.   Mr. Meininger admitted that he was not at the plant on the day of the inspection but that he had called the electrician, one Max Bowman, on the previous day.

The foregoing record supports a finding that none of Respondent's employees were using either ladder observed by the Compliance Officer, and Citation Item 1 and the penalty proposed therefor should be vacated.

Nonserious Violations: Citation Item 2

Item 2 of the Citation for Other Than Serious Violation was [*9]   referenced to the standard codified as 29 CFR 1910.151(b).   This regulation provides as follows:

  (b) In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available.

Respondent initially contested all Citation Items but later admitted a violation of 29 CFR 1910.151(b) in its Answer.   However, subsequent to the hearing in this case the Occupational Safety and Health Review Commission rendered a decision in Secretary of Labor v. Sante Fe Trail Transport Company,

Nonserious Violations: Citation [*10]   Item 4

Citation Item 4 alleged violations of the standards codified as 29 CFR 1910.215(a)(2) and 29 CFR 1910.215(a)(4).   These regulations deal with guard design and work rests on abrasive wheel machinery.   The first cited section provides, in pertinent part, that a safety guard shall cover the spindle end, nut, and flange projections, and the guard shall be mounted so as to maintain proper alignment with the wheel. The second cited section provides, in pertinent part, that on offhand grinding machines, work rests shall be used to support the work.   They shall be of rigid construction and designed to be adjustable to compensate for wheel wear.   They shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage.

Mr. Spahn testified that he observed an old 12 inch abrasive wheel grinder in the skinning room which had neither spindle end guarding nor work rests.   The grinder was used to sharpen a skinning knife and was operated at a speed of about 1200 RPMs.   The hazard, Mr. Spahn explained, was that the knife could be wedged in between the wheel and [*11]   the bottom periphery of the grinder causing wheel breakage or a kick back of the knife and a severe cut.   He appraised the hazard as "moderate."

On cross examination Mr. Spahn admitted that he did not recall if he had asked how often the abrasive wheel was used "but the impression I got it was not used very often."

Mr. Spahn proposed an unadjusted penalty of $100.00 for Item 4.   This was then reduced by allowing Respondent a 20 percent credit for its history of no previous safety violations, 10 percent for good faith and 5 percent for size.   The penalty was further reduced an additional 50 percent by an abatement credit and a $30.00 adjusted penalty resulted.   There was some indication in the testimony that Respondent may have been entitled to an additional 5 percent reduction for size because its average number of employees was less than 20, a critical figure in OSHA guidelines.   More important, we feel, is the low gravity of the hazard and minimal employee exposure.   The violation bears too direct a relationship to employee safety to be dismissed as a de minimis situation, and a penalty of $15.00 would appear appropriate under the circumstances.

Nonserious Violations: Citation [*12]   Item 5

Citation Item 5 alleged three separate violations of the standard codified as 29 CFR 1910.309(a), a "catch all" regulation which adopts several provisions of the National Electric Code.   Specifically, Respondent was charged with admittedly unsafe conditions relating to a portable electric drill which was not provided with a path or a ground because a ground conductor was broken off; a 220 volt motor with wires exposed to moisture or contact; and toggle type light switches not provided with a cover plate.   A number of employees were exposed to these conditions, and the hazards could range from mild shock under ordinary conditions from a 110 volt circuit to severe injury or death from a 220 volt shock under wet conditions.   The proposed penalty of $40.00 appears appropriate in view of the gravity of the hazard and should be affirmed.

  Nonserious Violations: Citation Item 9

In its Answer Respondent also admitted a violation of the regulation codified as 29 CFR 1910.110(d)(10) relating to a 1,000 gallon propane tank installed at the east side of a driveway which Complainant alleged was not protected from damage by motor vehicles.

Regulation 29 CFR 1910.110(d)(10) provides [*13]   as follows:

(10) Damage from vehicles. When damage to LP-Gas systems from vehicular traffic is a possibility, precautions against such damage shall be taken.

Although Respondent admitted a violation of 29 CFR 1910.110(d)(10) The Commission rule enunciated in the Sante Fe Trail Transport Company case appears peculiarly applicable, and the undersigned Judge is loathe to affirm any violation of what he deems to be an unenforceably vague regulation.

The cited standard appears to suffer from a double deficiency.   First, an employer is not apprised of when it must take affirmative action under the standard, much less given directions as to the nature of the required conduct.   The standard, as written, can be invoked at the Area Director's discretion whenever damage to an LP-Gas system from vehicular traffic is a "possibility." As defined in Webster's Third New International Dictionary, a "possibility" relates to "the character, condition, or a fact of being possible whether theoretically, in general, or under a particular set of conditions." However remote or theoretical the possibility of damage, the standard mandates the taking of "precautions," and therein lies a greater vice.   [*14]   What, indeed, is a precaution? Exhibit G-2, a photograph of Respondent's propane tank, shows a white cylindrical container.   Is the use of white paint to make the tank more easily visible a "precaution" within the meaning of the standard?   Or must warning signs or barrier guards be erected to satisfy 29 CFR 1910.110(d)(10)?   The first aid regulation condemned in Santa Fe Trail Transport Company appears a model of precision when contrasted with the language of 29 CFR 1910.110(d)(10).   This is a case of first impression, the first reported instance in which the standard in question has been the subject of litigation.   Nevertheless we conclude that the regulation is so vague that no penalty can be posited thereon despite the admission in Respondent's Answer.

  The Serious Violation

In its Answer Respondent denied the allegations of the Citation for Serious Violation, but at the hearing made no effort to controvert the Compliance Officer's testimony relative to unguarded screw conveyers. Subsequent to the hearing Respondent submitted proposed findings in which it acknowledged that the exposed screw conveyors constituted a violation of the Act and that should an employee [*15]   fall into or become entangled in a conveyer death or serious physical harm would result therefrom.   Respondent does not contend that it did not or could not with the exercise of reasonable diligence have known of the unsafe conditions, and a serious violation is therefore deemed to exist within the meaning of Section 17(k) of the Act.

Respondent nevertheless suggested the probability or likelihood of injury from employee contact with an unguarded conveyor is moderate and that a penalty of $325.00 would be appropriate for the serious violation.

We do not approve of the Secretary's methodology in computing a proposed penalty for the serious violation. As explained by the Compliance Officer, it is the Secretary's policy to commence his calculations with a $1,000.00 unadjusted penalty in all cases of serious violation. The Secretary appears to ignore the probability factor in proposing assessments for serious violations.

In the instant case several sections of eight inch and 14 inch screw conveyers were not properly guarded or barricaded, and a number of Respondent's employees were exposed to the hazard. Mr. Spahn noted three employees working in the cooking room at the time of   [*16]   his inspection near portions of an unguarded inclined conveyer. Two employees were exposed to the conveyer in a raw material storage area, and he noted three people working in a raw material holding area.   Weighing the gravity of the violation together with the statutory reduction factors relating to Respondent's size, good faith and safety history, we deem a penalty of $400.00 appropriate for the serious violation. We expressly note that the Citation for Serious Violation as issued contained an inappropriate allegation of a nonserious violation relating to the nip points on a belt conveyer, but no consideration was given to this allegation in arriving at a penalty for the serious violation.

  FINDINGS OF FACT

1.   Respondent, Midwest By Products, Inc., is a corporation with its principal place of business located at Grand Island, Nebraska, where it is engaged in rendering and boning animal carcasses, a business affecting commerce.

2.   On March 28, 1973 an authorized representative of the Secretary of Labor inspected the Respondent's plant at Grand Island, Nebraska accompanied by a representative of Respondent.   As a result of said inspection, the Secretary issued to Respondent [*17]   one Citation for Serious Violation and one Citation for Other Than Serious Violation pursuant to Section 9(a) of the Act.

3.   In its Answer Respondent denied Item 1 of the Citation for Other Than Serious Violation, but admitted violations alleged in Items 2 through 10, inclusive, of said Citation.   The Secretary proposed monetary penalties for Items 1, 2, 4, 5 and 9, and Respondent contested all proposed penalties.

4.   In its Answer Respondent denied the allegations of the Citation for Serious Violation; however, subsequent to the presentation of evidence at the hearing Respondent submitted proposed Findings of Fact admitting a serious violation of the Act but urging reduction of the proposed penalties therefor.

5.   The evidence with respect to Item 1 of Citation for Other Than Serious Violation established that there were two defective stepladders on Respondent's premises on March 28, 1973, but one ladder was in storage and the second belonged to a non-employee electrician, and neither ladder was used by Respondent's employees.

6.   Subsequent to the hearing in this cause the Occupational Safety and Health Review Commission issued a Decision in the case of Secretary of Labor   [*18]     v. Santa Fe Trail Transport Company,

7.   On March 28, 1973 Respondent failed to provide barrier guarding or other safety devices on an inclined eight inch screw conveyer near its cooker platform, a horizontal mounted eight   inch screw conveyer in front of two cookers, and a 14 inch screw conveyer in its raw material storage area.   On said date Respondent also failed to provide a standard railing on a cross over platform over an eight inch screw conveyer in front of the cookers and along an isle area adjacent to the 14 inch screw conveyer in the raw materials holding area.   The evidence further established that if an employee were to become entangled in any of the aforementioned screw conveyers he would likely suffer serious physical harm or possibly death.

CONCLUSIONS OF LAW

1.   Respondent is an employer within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 and is subject to the jurisidction of the Occupational [*19]   Safety and Health Review Commission.

2.   The allegation in Item 1 of the Citation for Other Than Serious Violation that on March 28, 1973 Respondent violated the Occupational Safety Standard codified as 29 CFR 1910.25(d)(2)(viii) is not sustained by the evidence or record.

3.   On March 28, 1973 Respondent was not in violation of the Occupational Safety Standards codified as 29 CFR 1910.151(b) and 29 CFR 1910.110(d)(10) as alleged in Items 2 and 9, respectively, of the Citation for Other Than Serious Violation for the reason that said regulations are unenforceably vague under the rules enunciated by the Commission in Secretary of Labor v. Santa Fe Trail Transport Company,

4.   On March 28, 1973 Respondent violated Section 5(a)(2) of the Act by failing to comply with the Occupational Safety and Health Standards set forth in Items 3, 4, 5, 6, 7, 8, and 10 of the Citation for Other Than Serious Violation issued April 10, 1973, and it is concluded that a total penalty of $55.00 is appropriate for said violations.

5.   On March 28, 1973 Respondent also violated Section 5(a)(2) by failing to comply with the Occupational Safety and Health Standards codified [*20]   as 29 CFR 1910.212(a)(1) and 29 CFR 1910.23(c)(3).   Violation of the aforesaid standards constituted a serious violation within the meaning of Section 17(k) of the Act.   Due consideration having been given to the evidence of record it is   concluded that a civil penalty in the amount of $400.00 is appropriate for said violation.

ORDER

Based on the above Findings of Fact and Conclusions of Law, it is ORDERED that:

1.   The Citation for Other Than Serious Violation issued Respondent on April 10, 1973 is hereby modified by vacating the allegations that Respondent violated the safety standards codified as 29 CFR 1910.25(d)(2)(viii), 29 CFR 1910.151(b) and 29 CFR 29 CFR 1910.110(d)(10).   The remainder of said Citation allegations, set forth in Items 3, 4, 5, 6, 7, 8 and 10, are hereby affirmed and a total penalty of $55.00 is assessed for said nonserious violations.

2.   The Citation for Serious Violation issued Respondent on April 20, 1973 is hereby affirmed, and a penalty of $400.00 is assessed for said serious violation.