C & R CABINET COMPANY

OSHRC Docket No. 4049; 3736 (Consolidated)

Occupational Safety and Health Review Commission

May 23, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A July 30, 1974, decision of Review Commission Judge Paul L. Brady is before the Commission for review pursuant to 29 U.S.C. 661(i). That decision is affirmed except insofar as it failed to assess a penalty for the respondent's failure to comply with the occupational safety and health standard codified at 29 C.F.R. 1903.16.

The respondent by its own admission was found to be in violation of 29 C.F.R. 1903.16, which implements 29 U.S.C. 658(b) to require the posting of a copy of a citation near the place of the alleged violation. Although the complainant proposed a penalty of $500.00 for this violation, the Judge assessed no penalty therefor.

The language of 29 U.S.C. 666(h) clearly requires the assessment of some penalty where a posting violation has been established as it provides that:

Any employer who violates any of the posting requirements, as provided under the provisions of this chapter, shall be assessed a civil penalty of up to $1,000 for each violation. (Emphasis added.)

The Judge's assessment of no penalty was therefore error.

The intent of this posting requirement is obviously [*2] to inform affected employees of alleged health and safety hazards in their work environment. In this way, employees can more meaningfully participate in insuring their health and safety and further the enforcement of the Act.

Although the citation was not posted, it was in fact in the possession of certain employees who were in charge of abating the conditions listed upon that citation. However, the purpose of the posting requirement is to notify all affected employees that they are working under hazardous conditions in order that they can exercise their right to call upon the complainant to enforce the Act's abatement requirements. See 29 U.S.C. 657(f)(1) and 659(c). That right was frustrated here, particularly since a followup inspection disclosed that the hazardous conditions enumerated in the citation had not been fully abated.

We agree with the Judge that respondent demonstrated good faith, but believe that more than a nominal penalty is appropriate. After a review of the record and giving due consideration to the factors enumerated in 29 U.S.C. 666(i), we conclude that a $75.00 penalty is appropriate.

Accordingly, a $75.00 penalty is assessed for the [*3] respondent's violation of 29 C.F.R. 1903.16.

[The Judge's decision referred to herein follows]

BRADY, JUDGE: This consolidated proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act) to contest the penalty proposed for a violation and to contest a proposed additional penalty for failure to correct violations, issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to Section 9(a) of the Act. Complainant alleges that as the result of certain inspections of Respondent's workplace located at 2810 Sanderwood, Memphis, Tennessee, Respondent violated section 5(a)(2) of the Act by failing to comply with the specific Occupational Safety and Health Standards promulgated by the Secretary pursuant to Section 6 thereof, and it also failed to correct certain violations, for which the penalties were proposed.

Docket Nos. 3736 and 4049 were consolidated on October 1, 1973, and the hearing was held January 30, 1974, at Memphis, Tennessee. No additional parties sought to intervene in the consolidated proceeding.

There is no dispute that on May 7, 1973, an inspection [*4] of the aforesaid workplace revealed thirteen violations, which were not contested. A follow-up inspection on June 22, 1973, found that six of the violations had not been completely abated, although the date for abatement was set for June 17, 1973. Also, during the inspection it was learned that Respondent had failed to post the citation as required by the Act.

Mr. William A. Wilson, Compliance Officer, testified that the initial inspection was conducted with Respondent's superintendent Mike Spawn. He returned May 8th in order to discuss the results of the inspection, and review records with Mr. Calvin Hill, owner. It was indicated that at the conference the abatement periods were discussed, and agreed upon.

The follow-up inspection on June 22, 1973, revealed that items 2, 3, 4, 6, 7 and 8 of the citation had not been abated. Items two, three and four related to powermatic hand fed ripsaws. (Exhs. 1, 2) A total of four saws were found to be without guards during the original inspection and two were not guarded at the time of the follow-up inspection. (Exhs. 3, 4) Additional guards had been received by Respondent however the manufacturer failed to forward certain [*5] installation brackets. One of the unguarded machines was found to be in use. The spreaders under item 3 had not been provided on the two saws as depicted in Exhibits 1-4 and non-kickback fingers or dogs were not provided under item 4.

Although the radial saws had been provided with guards there were no adjustments made to return the saw to its starting position as indicated in Item 6. Item 7 and 8 were not corrected in that some pinch points had not been guarded. (Ex. 8, 9)

Mr. Wilson testified that under items 3 and 4 a kickback problem was presented which could throw material from the saw blade on the operator. He indicated that one accident of this type had been recorded by Respondent but it was not serious. Due to the violation of Item 6 it was possible for an employee to accidentally knock the guard up causing an injury due to the saw blade being improperly guarded. Item 7 involved a problem of pinch point injuries which could involve an operator's finger or hand. One new machine was temporarily guarded pending contact with the manufacturer to provide further protection. Item 8 represented a pinch problem on a conveyor which could possibly result in loss of an arm. [*6]

Mr. Wilson did not recall in his experience, anyone ever having a hand caught in the conveyor sanding machine.

In response to a question regarding Respondent's cooperation and good faith attempts to correct the violations, Mr. Wilson stated . . . "I believe if you had of posted that citation out there on that post like it should have been where those men could have seen what the violations were that you could have gone to Florida and vacationed and when you had gotten back your work would have been done but you didn't do that."

Mr. Raymond Finney, Acting Area Director, who calculated the proposed penalties, stated the purpose of posting citation is to assure notice of a particular violation to the employees at the location where the violation occurred. In the present instance this would be approximately 13 locations. Mr. Hill contends that the citation was not posted because the company had no bulletin board at the time and that the corrections were not made simply because of a lack of time. Also, the citations were given to the persons responsible for making the corrections.

Mr. Finney testified regarding the computations contained in Exh. 13, the notification of [*7] failure to correct the alleged violations, and proposed additional penalty. Also, the computation of penalty for failure to post the citation. He pointed out that the original proposed penalty and the proposed penalty for failure to abate were based upon the criteria of Respondent's size, good faith, and history. Also, the proposed penalty for failure to post the citation had been set in accordance with Complainant's Operations Manual.

As previously set forth, Respondent does not deny the failure to abate the alleged violations, but contests the amount of the proposed penalty in view of the efforts to abate.

Section 17(j) of the Act expressly requires the Commission to give "due consideration" to the size of the employers business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. The Commission stated that the four criteria cannot always be given equal weight, as the gravity of the offense is the principal factor to be considered in assessing an appropriate penalty. Secretary of Labor v. Nacirema Operating Company, Inc., In Secretary of [*8] Labor v. National Realty and Construction Company, Inc.,

In determining the proposed additional penalty it must be held that the factors specified in Section 17(j) of the Act were not given due consideration in view of the circumstances in this case. The proposed additional penalty was based upon a procedure set forth in complainant's compliance operations manual. The computation included the gravity factor of the violations of 29 CFR 1910.213(c)(1), and 29 CFR 1910.213(h)(1), items 2 and 4 respectively of the citation, which were the only violations originally determined by complainant to be of a level that warranted assessment of a penalty. This is true although items 2, 3, 4 concerned the regulation at 29 CFR 1910.213, and the proper guarding of powermatic table top hand fed ripsaws. Further, [*9] the inspecting officer noted that some guards for these saws were not installed as the manufacturer failed to provide brackets for such installation.

Under item 6 of the citation which involved radial saws, it was indicated that the saws had not been adjusted to return to its starting position although item 5 of the original citation has been corrected which involved a blade guard device for the radial saws that adjusted itself to the thickness of the material to be cut. With reference to the sander in item 7 of the citation the inspection revealed that it was new equipment, which had been partially guarded by the manufacturer and further temporary guarding had been provided. Item 8 involved a sander with a conveyor that ran over a pulley, which had pinch points. The testimony indicated efforts had been made to correct this condition but there were some exposed areas remaining.

During the follow-up inspection it was also revealed that the citation had not been posted as required. Respondent admits that the citation was not posted, but questions the effect posting would have on abatement of the violations involved. The Compliance Officer indicates that posting would [*10] provide notice which would have served to bring about abatement within the prescribed period. He admits that failure to post the citation does not further endanger the employees but provides notice of the hazards.

Mr. Hill contends that the citation was received by the persons who were responsible for correcting the violations, which accounts for the work that had been completed.

The record clearly reflects good faith efforts on the part of the Respondent to correct the violations found during the initial inspection, which resulted in abatement of 7 of the original 13 violations. The evidence also indicates that only one non-serious accident had occurred in the operation of the machinery which gave rise to the original violations.

The Respondent also has maintained throughout that every resonable effort had been made to correct the violations but the period of time allowed for abatement had been insufficient. It is noted however that no attempt was made to obtain an extension of time, or apply for a temporary variance, although such procedures were made known to Respondent.

In determining a reasonable and appropriate penalty under the circumstances of this case, giving due [*11] consideration to the size of Respondent's business, gravity of the violations, good faith of Respondent and its history of previous violations, a daily penalty of $25.00 is deemed in order. Also, the sum of $75.00 which was previously credited for abatement should be assessed.

FINDINGS OF FACT

1. C & R Cabinet Company, has a plant and place of employment at 2810 Sanderwood, Memphis, Tennessee, where at all times hereinafter mentioned it was engaged in the business of manufacturing cabinets.

2. On May 7, 1973, an authorized representative of the Secretary conducted an inspection of Respondent's aforementioned worksite. As a result of such inspection a citation setting forth 13 violations was issued May 11, 1973, with notice of proposed penalty. No notice of contest was filed.

3. On June 22, 1973, a reinspection of Respondent's workplace was conducted which resulted in the issuance of a citation, and notice of proposed penalty on July 12, 1973.

4. As a result of the reinspection on June 22, 1973, a Notification of Failure to Correct Violation and of Proposed Additional Penalty was issued on July 18, 1973, for failure to abate items 2, 3, 4, 6, 7 and 8 of the citation [*12] issued May 11, 1973.

CONCLUSIONS OF LAW

1. C & R Cabinet Company, at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein, pursuant to Section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a) of the Act.

3. Respondent failed to correct the violations of 29 CFR 1910.213(c)(1), 29 CFR 1910.213(c)(2), 29 CFR 1910.213(c)(3), 29 CFR 1910.213(h)(4), 29 CFR 1910.213(p)(4), and 29 CFR 1910.212(a)(1) by June 17, 1973, and was five days in default of the abatement date at the time of the inspection.

4. The proposed additional penalty in the sum of $1,675 is excessive and penalty of $25 per day is proper and reasonable for failure to correct the aforementioned violations, in addition to the previously allowed abatement credit in the sum of $75.00.

5. Respondent was in violation of the standard, at 29 CFR 1903.16 as set forth in the citation of July 12, 1973.

ORDER [*13]

Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is

ORDERED:

That the Notification of Failure to Correct Violation is affirmed. The proposed additional penalty is hereby modified and an additional penalty in the amount of $825.00 is assessed.

That the citation issued July 12, 1973 is affirmed. The proposed penalty is hereby vacated.