JOHNS MANVILLE SALES CORPORATION

OSHRC Docket No. 3163

Occupational Safety and Health Review Commission

November 18, 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 April 15, 1974, is before this Commission for review pursuant to 29 U.S.C. §   661(i) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § §   651 et seq., 84 Stat. 1590).

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.  

CONCURBY: CLEARY

CONCUR:

  CLEARY, COMMISSIONER, concurring: Chairman Moran directed review of this case in order to determine whether the Administrative Law Judge erred in finding violations of the occupational safety and health standards published at 29 CFR §   1926.150(c)(1)(i) and 29 CFR §   1926.25(a).   Neither party petitioned for review by the full Commission and neither party has filed briefs on the above issue, thereby suggesting that no further contest exists.   See Bouma Post Yards, No. 1318 (October 18, 1974).   Also, no overriding public policy considerations mandate that the Commission addresses itself to the issue.   Cf.   Brennan v. O.S.H.R.C. & John J. Gordon Co., 492 F.2d 1027,   [*2]   1032. For these reasons, I concur in affirming the disposition of the case by the Administrative Law Judge.

[The Judge's decision referred to herein follows]

ORINGER, JUDGE: 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 a Citation 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 or about May 25, 1973 alleges that as a result of an inspection of the Respondent's work place on May 2, 3, 4, 7 and 9, 1973, the employer (hereinafter referred to as "Respondent"), at a work place under its ownership, operation and/or control, violated five (5) "non-serious" occupational safety and health standards duly promulgated pursuant to section 6 of the Act.   The standards allegedly violated by the Respondent read as follows:

Item 1 -- 29 CFR 1926.25(a) -- During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared [*3]   from work areas, passageways, and stairs, in and around buildings or other structures.

Item 2 -- 29 CFR 1926.25(b) -- Combustible scrap and debris shall be removed at regular intervals during the course of construction.   Safe means shall be provided to facilitate such removal.

Item 3 -- 29 CFR 1926.25(c) -- Containers shall be provided for the collection and separation of waste, trash, oily and used rags, and other refuse.   Containers used for garbage and other oily, flammable, or hazardous wastes, such as caustics, acids, harmful dusts, etc. shall be equipped with covers.   Garbage and other waste shall be disposed of at frequent and regular intervals.

Item 4 -- 29 CFR 1926.150(c)(1)(ii) -- One 55-gallon open drum of water with two fire pails may be substituted for a fire extinguisher having a 2A rating.

Item 5 -- 29 CFR 1926.150(c)(1)(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.

The violations, as alleged by the Complainant, are described as follows:

Item [*4]   Number -- Standard or regulation allegedly violated -- Description of alleged violation

1. -- 29 CFR 1926.25(a) page 27509 as adopted by 29 CFR 1910.12 -- Scrap lumber with protruding nails and all other debris not kept cleared from work areas, passageways, and stairs: 1) All levels N-8 to T-10 and Penthouse levels.

2. -- 29 CFR 1926.25(b) page 27509 as adopted by 29 CFR 1910.12 -- Combustible scrap and debris not removed at regular intervals:

1) Entire building N-8 to T-10 and Penthouse Levels.

3. -- 29 CFR 1926.25(c) page 27509 as adopted by 29 CFR 1010.12 -- Containers not provided for the collection and separation of waste, trash and other refuse.   Containers used for garbage, flammable or hazardous wastes must have covers,   and be disposed of at frequent and regular intervals: 1) All levels N-8 to T-10 and penthouse.

4. -- 29 CFR 1926.150(c)(1)(ii) page 27515 as adopted by 29 CFR 1910.12 -- 55-gallon drums of water provided as substitute for fire extinguisher do not have 2 fire pails for each drum: 1) Entire building from N-8 level to T-10 and Penthouse levels.

5. -- 29 CFR 1926.150(c)(1)(i) page 27575 as adopted by 29 CFR 1910.12 -- 55-gallon drums of water provided [*5]   as substitute for fire extinguisher not located so as to limit travel from any point to nearest drum to no more than 100 feet.   Entire building from N-8 level to T-10 and penthouse levels.

A Notification of Proposed penalty was issued to the Respondent by the Complainant, on even date, to wit, May 25, 1973, proposing penalties of $30 for Item No. 1; $30 for Item No. 2; no penalty for Item 3; no penalty for Item No. 4; no penalty for Item No. 5; totaling $60 in penalties for all of the alleged non-serious violations described above.

In a letter dated May 29, 1973, the Respondent filed a notice with the Complainant, contesting the Citation and the penalties proposed therefore.   The Notice of Contest was received by the Occupational Safety and Health Review Commission on June 4, 1973, pursuant to Section 10(c) of the Act.   The case was assigned to the undersigned on August 7, 1973 for hearing pursuant to Section 12(e) of the Act.

Pursuant to notice, the hearing was held on September 25, 1973, in New York City.

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   [*6]   of Contest, Pleadings, Representations, Stipulations and Admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, support the following

FINDINGS OF FACT

1.   The Respondent, Johns Manville Sales Corporation, is incorporated in the State of Delaware and has its principal place of business at 560 South Third Advenue, Mount Vernon, New York (Tr. p. 5).

2.   The Respondent receives substantial amounts of goods from outside the State of New York and gets materials from   plants in Ohio which cross State lines by trailer and/or train (Tr. 5 and 6).   The Respondent's average daily number of employees is between 60 and 70 (Tr. 7).

3.   As a result of an inspection beginning May 21, 1973, conducted in a work place wherein the Respondent employed employees, by an authorized representative of the Secretary, the Respondent was issued one Citation alleging five (5) non-serious violations, and in addition thereto, received a Notification of Proposed Penalty, proposing penalties aggregating $60 (Citation and Notification of Proposed Penalty) (Tr. 12).

4.   The Respondent filed a timely Notice of Contest with a representative of the Secretary [*7]   of Labor indicating its intent to contest the citation and proposed penalties (Notice of Contest).

5.   During the time of the inspection herein concerned, there was scrap lumber with protruding nails, combustible scrap and debris, not kept cleared from work areas, passageways and stairs, on Level N6 whereat the Respondent had employees exposed to such hazards (Tr. 25, 26, 27, 28, 29, 38, 40, 41, 42, 43, 44).

6.   On the day of the inspection herein concerned, the Respondent had two employees on Level N6 who were working and exposed on a floor that did not have fire extinguishers rated not less than 2A provided for each 3,000 square feet of the protected building area or major fraction thereof, and the traveling distance from any points of the protected area to the nearest fire extinguisher or substitute exceeded 100 ft.   On this floor, rather than fire extinguishers of the type described, there was substituted, therefore, 55-gallon open drums of water, however two fire pails were not supplied with each 55-gallon open drum of water and in addition thereto, the distance between them exceeded 100 ft. (Tr. 44, 45, 46, 47, 48, 49, 50, 51, 52).

7.   The criteria delineated in Section 17(j)   [*8]   of the Act was utilized by the Complainant in arriving at the penalty proposed for Item 1 of the citation, and therefore was appropriate in the instant cause (Tr. 69, 70, 71, 72, 73, 74, 75, 76, 77, 78).

DISCUSSION

The preponderance of credible evidence of record discloses that there was an accumulation of debris and lumber with nails   and scrap of such a nature that would cause a hazard to those working on Level N6.   Two of the Respondent's employees were exposed to this hazard at the time of the inspection and accordingly, I find that the Respondent violated that standard found at 29 C.F.R. 1926.25(a).   In my opinion, however, he should not have been charged with violating those standards found at 29 C.F.R. 1926.25(b) and 29 C.F.R. 1926.25(c), as separate and distinct violations.   I think it was sufficient to charge him with a violation of housekeeping. It was Congress' intent that the citation and the penalty proposed apprised the Respondent of the violation and what was expected of him, and I find that the alleged violations of 29 C.F.R. 1926.25(b) and 29 C.F.R. 1926.25(c) merged with that violation charged in 29 C.F.R. 1926.25(a).   This would not occur in every case,   [*9]   but under the facts of this case, in my opinion, one violation of housekeeping covered the situation as existed in the instant cause.

Insofar as the allegations of violations of those standards filed at 29 C.F.R. 1926.150(c)(1)(ii) and 29 C.F.R. 1926.150(c)(1)(i) are concerned, this tribunal cannot see how the Respondent can be charged with both.   The standard found at 29 C.F.R. 1926.150(c)(1)(i) is in fact a genuine standard.   It requires a fire extinguisher rated less than 2A to be provided for each 3,000 square feet of a protected building area or major fraction thereof.   It further mandates that the traveled distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 ft.

That portion of the standard found at 29 C.F.R. 1926.150(c)(1)(ii), however, is not in fact a standard.   It allows a Respondent a substitute for the type of fire extinguisher described in the preceeding standard.   A Respondent cannot be charged with two violations in this case.   Assuming that he had neither 55-gallon open drums of water on the premises whatsoever nor fire extinguishers on the premises, he only could have been charged with a violation of 29 C.F.R. 1926.150(c)(1)(i)   [*10]   for failure to have fire extinguishers. The Secretary allows a substitute for the fire extinguisher, to wit, a 55-gallon open drum of water with two fire pails. The fact that the Respondent did not have fire extinguishers, but had 55-gallon open drums of water without the fire pails, constitutes one violation, that of 29 C.F.R.   1926.150(c)(1)(i), and accordingly the violation charged of 29 C.F.R. 1926.150(c)(1)(ii) must fall.

Complainant argues that this Respondent must be found in violation for exposure on all four floors of the building.   I find this argument totally without merit.   On the day of the inspection herein concerned, housekeeping violations were found on Level N6.   The inspector found similar situations on other levels.   There is no proof, however, as to when the Respondent's employees would be working on such floors, and if, on the dates that they reached such floors, that such violations would exist.   Speculation that at sometime in futuro employees of the Respondent may be working on such floors, and further speculation that at such a point in time similar violations would exist as on the day in question, may not be utilized to sustantiate a violation,   [*11]   in my opinion.   This is not the same situation as a working floor in a factory where there are 20 unguarded machines, all of which may well be used during a day by employees doing various tasks in that plant.   The instant situation is completely different and there is no way of ascertaining what violations would exist on a given floor at a given point in time.   Certainly, if this Respondent's employees were going to be doing duct work a week later in the penthouse of this building, there is no way of ascertaining on the day of inspection, that a week later in the penthouse the same violations would be existing.   One may not predicate a violation on such sheer speculation of what will occur in futuro. The evidence adduced clearly evidences housekeeping violations on Level N6 on the day in question.   Employees of the Respondent were not proven to be exposed to hazards on any other levels of the building.

The Respondent argues that he is not in violation because if, in fact, there was scrap metal, lumber and debris creating hazards on that floor, his men did not create such conditions.   This contention is wholly without merit.   When an employer exposes his employees to a hazard   [*12]   that constitutes a violation of a standard, then and in such case he is in violation, whether or not he created the condition.   The employer has a duty to see to it that these employees are not exposed to hazards prohibited by the Secretary's standards, regardless of who may have created them.

Insofar as the penalties are concerned, I find that the penalty   proposed by the Secretary for violation of Item No. 1 of the Citation in the amount of $30 was computed in accordance with those items mandated by Congress in Section 17(j) of the Act, and accordingly the penalty proposed is appropriate.   I further find that the Secretary's proposal to assess no penalties for the alleged violation of that standard found at 1926.150(c)(1)(i) is appropriate in the premises herein.   Accordingly, total penalties in the amount of $30 are appropriate in the instant cause.

Based on all of the foregoing considerations, the judge makes the following

CONCLUSIONS OF LAW

1.   At all times herein mentioned, this 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 dates of the [*13]   inspection at its workplace herein concerned, and at all of the times mentioned herein, an employer subject to the safety and health regulations promulgated by the Secretary of Labor and referred to in the Citation and Complaint herein.

3.   The Respondent, on the days of the inspections herein concerned, was in violation of that standard found at 29 C.F.R. 1926.25(a) on Level N6 only.

4.   The alleged violations of those standards found at 29 C.F.R. 1926.25(b) and 29 C.F.R. 1926.25(c), in the instant cause merged with that violation found at 29 C.F.R. 1926.25(a) and accordingly the separate allegations of violation of 29 C.F.R. 1926.25(b) and 25(c) in the instant cause are not found.

5.   The Respondent, on the days of the inspection herein concerned, was in violation of that standard found at 29 C.F.R. 1926.150(c)(1)(i) on Level N6 only.

6.   The Respondent was not in violation of that portion of the standard found at 29 C.F.R. 1926.150(c)(1)(ii).

7.   The penalty proposed for Item I of the Citation, to wit, the proven violation of 29 C.F.R. 1926.25(a), in the amount of $30, was computed in accordance with Section 17(j) of the Act and is appropriate.

8.   The penalty proposed for [*14]   Item 2 of the Citation, to wit, the alleged violation of 29 C.F.R. 1926.25(b), must be vacated.

  9.   The proposal by the Complainant to assess no penalty for the violation of 29 C.F.R. 1926.150(c)(1)(i) found proven herein, is appropriate.

In view of the foregoing, good cause appearing therefore, it is ORDERED that:

1.   Item 1 of the Citation alleging violation of 29 C.F.R. 1926.25(a) is herewith AFFIRMED.

2.   Item 2 and Item 3 of the Citation alleging violations of 29 C.F.R. 1926.25(b) and 29 C.F.R. 1926.25(c) are herewith VACATED, inasmuch as they are merged with that violation found in Item 1 above.

3.   Item 4 of the Citation alleging violation of 29 C.F.R. 1926.150(c)(1)(ii) is herewith VACATED.

4.   Item 5 of the Citation alleging violation of 29 C.F.R. 1926.150(c)(1)(i) is herewith AFFIRMED.

5.   The penalty in the sum of $30 proposed to be assessed for Item 1 of the Citation is herewith AFFIRMED.

6.   The penalty in the sum of $30 proposed to be assessed for Item 2 of the Citation is herewith VACATED.

7.   The proposal of the Complainant to assess no penalty for Item 5 of the Citation herein found proven is herewith AFFIRMED.

8.   The total penalties assessed,   [*15]   in the aggregate, amount to $30.

SO ORDERED.