WORCESTER PRESSED STEEL COMPANY

OSHRC Docket Nos. 4237; 4430 *

* The second docket number (4430) was inadvertently assigned when the Secretary's amended notice of proposed penalties was filed with the Executive Secretary.

Occupational Safety and Health Review Commission

October 28, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: The August 5, 1974, decision of Administrative Law Judge William E. Brennan is before the full Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. Judge Brennan held that all but three of the forty items contained in the citation issued to respondent, Worcester Pressed Steel Company, were final orders of the Commission as the result of agreement among the parties to the prehearing conference. n1 He thereafter affirmed items 4 and 14 of the citation on the facts established by the Secretary of Labor at the hearing; he affirmed all of the prescribed abatement dates; he assessed several penalties in amounts higher than those proposed by the Secretary; and finally, he vacated item 20 of the citation and the proposed penalty, therefor.

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n1 Pursuant to a motion filed by the Secretary of Labor, a prehearing conference was held in Worcester, Massachusetts, on December 4, 1973. At that time respondent conceded the factual allegations of all items of the citation except items 4 and 14. Respondent's employees were represented at this conference by the President and Vice President of Local No. 1513, United Steel Workers of America, respondent's authorized employee representative.

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Commissioner Moran directed review of the Judge's decision on several issues. His August 26, 1974, direction questions the authority of this Commission to assess penalties in excess of the amounts proposed by the Secretary. With respect to this issue Chairman Barnako and Commissioner Cleary would note that the authority of this Commission to assess penalties in light of the whole record, even if this results in an assessment in an amount greater than that initially proposed by the Secretary of Labor, has been settled since Dixie Elec. Inc., No. 1345 (November 14, 1973). The Commission's interpretation of its authority in this regard has been accepted by those courts in which the issue has been litigated. California Stevedore & Ballast v. O.S.H.R.C., 517 F.2d 986, (9th Cir., May 21, 1975); REA Express, Inc. v. O.S.H.R.C., 495 F.2d 822 (2d Cir. 1974). Chairman Barnako would also note that the O.S.H.R.C. does not normally assess penalties higher than those proposed by the Secretary and that higher assessments have been made only in those few cases where the evidence of record [*3] supports a greater assessment under the statutory criteria. Chicago Bridge & Iron Co., 13 OSHRC 356 (1974); J.M. Roofing Co., 14 OSAHRC 306 (1974).

Commissioner Moran's October 9, 1974, direction invited submissions on three issues. Issues one n2 and three n3 will not be examined here inasmuch as they had been previously resolved by the parties at the prehearing conference.

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n2 Issue one of the October 9, 1974, direction reads as follows:

(1) Does the occupational safety and health standard codified at 29 C.F.R. 1910.22(a)(1) adequately inform employers what must be done to be in compliance therewith?

n3 Issue three of the October 9, 1974, direction reads as follows:

(3) Does the evidence of record establish a failure to comply with the standard codified at 29 C.F.R. 1910.133(a)(1)?

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Direction two of the October 9, 1974, direction posed the following question:

Is the charge that respondent failed to comply with the occupational safety and health standard codified at 29 C.F.P.. 1910.176(a) effectually [*4] a duplication of the charges of failure to comply with the standards codified at 29 C.F.R. 1910.22(b)(1) and 22(b)(2)?

In response, the Secretary of Labor moved to withdraw item 14 of the citation conceding that the citation of respondent for the section 1910.176(a) violation was redundant. We accept his motion to withdraw the citation for item 14.

Having resolved the issues raised by Commissioner Moran that are relevant to the proper disposition of this case we affirm the Judge's decision as modified by this opinion.

It is hereby ORDERED that the decision of the Administrative Law Judge holding respondent in violation of section 5(a) of the Act for noncompliance with safety standard 29 CFR 1910.176(a) and assessing a $100 penalty therefor is reversed. Citation item 14 and the assessed penalty therefor are vacated. It is further ORDERED that the aforementioned decision as modified by this opinion be affirmed.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, COMMISSIONER, concurring in part and dissenting in part: I concur in the Commission decision except insofar as it assesses penalties for 10 violations in an amount which exceeds that proposed by the Secretary [*5] of Labor therefor by a total of $705. By increasing these penalties the Commission has not only exceeded its statutory authority and purpose but has effectively warned employers who might be inclined to seek a just disposition of the charges against them, that they will thereby expose themselves to further penalty liability.

In REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974), one of the two Federal cases cited in the Commission decision, the Circuit Court only considered the appropriateness of the penalty and did not consider either the statutory or constitutional basis for the Commission's assertion of authority to raise penalties. In that case, neither party raised the issue of the penalty increase either at the hearing or on appeal. On the other hand, another Circuit Court has expressed disfavor with the Commission's assertion of this power. Frank Irey, Jr., Inc. v. OSAHRC, 519 F.2d 1200 n.3 (3d Cir. 1974) (panel opinion).

In addition the "authority" to raise penalties, which my colleagues claim to be included in Secretary v. Dixie Electric, Inc. 5 OSAHRC 201 (1973), is nonexistent. Only 9 lines of that decision discuss this issue -- all of which are [*6] contained in the dissent filed by the same member who is dissenting in this case.

An employer cited for a violation of this Act has the choice of accepting the penalty proposed for the violation by the Secretary of Labor or contesting that amount before this Commission. If no contest is filed, the penalty assessed is the penalty proposed. The amount cannot be increased. Consequently, only those cited employers who assert their constitutional and statutory rights to a hearing can be penalized in an increased amount.

As a fundamental proposition, this situation deprives such an employer of his constitutional right to equal protection and due process. What the Commission is saying with this decision is that the threat of increased penalties is to fall solely upon those cited employers who choose to contest the Secretary's action against them. In my opinion, this creates an irrational basis for selection of the class of employers upon whom this burden falls as well as an irrational means of effectuating any valid legislative policy. Since experience shows that less than five percent of cited employers assert their right to contest, the remaining 95 percent are free [*7] of the threat of increased penalties. I fail to see how any of the worthwhile purposes that motivated the enactment of this law can be served by such an irrational result.

In short, this Commission is today sending out the word to the employers of America that they had better accept the penalty proposals established by the Secretary of Labor because if they come here seeking relief we may well up that penalty. Few things could create a more chilling effect upon any employer who wishes to have his day in court.

The lead opinion asserts that the Commission has assessed penalties higher than those proposed only in a "few cases." In my opinion, the Commission has raised penalties in a sufficient number of cases to establish the aforementioned chilling effect on employers. In addition to the four cases cited in the lead opinion, see, e.g., Secretary v. Stoughton Body, Inc., 19 OSAHRC 98 (1975); Secretary v. Colorado Fuel and Iron Steel Corporation, 18 OSAHRC 607 (1975); Secretary v. California Stevedore and Ballast Company, 16 OSAHRC 800 (1975); Secretary v. General Electric Co., 16 OSAHRC 272, 293 (1975); Secretary v. Allied Structural Steel Company, 14 OSAHRC [*8] 689 (1975); Secretary v. Shaffer Construction & Engineering Co., 14 OSAHRC 322 (1974); Secretary v. Lipsky and Rosenthal, Inc., 8 OSAHRC 375 (1974); Secretary v. Plastering, Inc., 8 OSAHRC 150 (1974); Secretary v. Home Supply Company, 7 OSAHRC 527 (1974); Secretary v. Painting Unlimited, Inc., 7 OSAHRC 257 (1974); Secretary v. Beall Construction Company, 6 OSAHRC 582 (1974); Secretary v. Smith Masonry Contractors, Inc., 6 OSAHRC 385 (1974); Secretary v. Aro, Inc., 5 OSAHRC 914 (1973); Secretary v. Luther Marvin Robbins, 5 OSAHRC 719 (1973); Secretary v. Dixie Electric, Inc., 5 OSAHRC 201 (1973); Secretary v. Tacoma Boatbuilding Company, 4 OSAHRC 607 (1973); Secretary v. B. Heckerman Iron Works, Inc., 3 OSAHRC 1165 (1975); Secretary v. M.A. Swatek & Co., 2 OSAHRC 1276 (1973); Secretary v. Allen Clark, Inc., 2 OSAHRC 1145 (1973); Secretary v. Somerset Tire Service, Inc., 2 OSAHRC 984 (1973); Secretary v. Dreher Pickle Company, 2 OSAHRC 497 (1973); Secretary v. Baltz Brothers Packing Company, 2 OSAHRC 384 (1973); Secretary v. Wetmore & Parman, Inc., 2 OSAHRC 288 (1973); Secretary v. Texports Stevedore [*9] Company, 2 OSAHRC 275 (1973); Secretary v. Broadview Construction Co., 2 OSAHRC 210 (1973); Secretary v. Independent Stave Company, 2 OSAHRC 26 (1972); Secretary v. Martin & Nettrour Contracting Company, 2 OSAHRC 19 (1972); Secretary v. J.L. Manta, Inc., 2 OSAHRC 1 (1972); Secretary v. Pittston Stevedoring Corporation, 1 OSAHRC 765 (1972); Secretary v. Eller Brothers, Inc., 1 OSAHRC 638 (1972); Secretary v. Sperry Rand Corp., 1 OSAHRC 464 (1972); Secretary v. Johns-Manville Fiber Glass, Inc., 1 OSAHRC 253 (1972); Secretary v. Mobile Coating, Inc., 1 OSAHRC 241 (1972); Secretary v. Hidden Valley Corporation of Virginia, 1 OSAHRC 62 (1972); Secretary v. Marine Repairs, Inc., 1 OSAHRC 19 (1972); Secretary v. Norfolk Shipbuilding & Drydock Corporation, 1 OSAHRC 1 (1971).

It is true, of course, that under 29 U.S.C. 661(i) this Commission has the sole authority to assess penalties whenever a proposed penalty is contested. This authority, however, is limited by the provisions of 29 U.S.C. 659(c) which provides that when a proposed penalty is contested by an employer "the Commission shall afford an opportunity for a hearing . . . in [*10] accordance with section 554 of title 5, United States Code . . . ." This language incorporates by reference the Administrative Procedure Act and binds the Commission to its provisions. That Act provides that when matters are submitted to a Federal adjudicatory body for resolution, the agency is authorized to adjudicate only those issues in dispute between the litigants.

The only penalty dispute between these litigants is whether the amounts proposed by the Secretary are proper -- as complainant maintains -- or too high, as respondent asserts. In ruling that the Secretary's proposed penalty is not high enough, the Commission has ruled on an issue not submitted by the parties nor in dispute between them. This is clearly beyond the power of any adjudicatory body subject to the provisions of the Administrative Procedure Act.

The Secretary has the sole responsibility for enforcing the Act. This Commission has no compliance responsibilities whatsoever. Its role is strictly adjudicatory. Its only function is to serve as the tribunal where employers (and employees in certain limited respects) may seek relief from enforcement actions initiated by the Secretary. Once [*11] the Secretary proposes a penalty, it is the Commission's function to hear and decide whether the proposal is proper or too high. Any other action by the Commission amounts to an encroachment upon the Secretary's enforcement powers, and seriously undermines the very reason for establishing this Commission as an independent tribunal, separate and distinct from the Department of Labor. During the legislative process leading to enactment of this law there were many who believed that the Secretary of Labor should have the adjudicatory authority which was eventually given to this Commission. Had that position become law, it staggers the imagination to believe that once an employer had contested a penalty proposal of the Secretary, the self-same official would increase that proposal after hearing the employer's prayer for relief. n4

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n4 This point and several others were discussed at greater length by the author of this opinion in a note published in the Spring 1974 edition of The Federal Bar Journal: Moran, An Oversight of Penalty Increases and Adjudicatory Functions Under the Occupational Safety and Health Act of 1970, 33 Fed. Bar Jour. 138.

[*12]

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It is elementary fair play that when an employer who has been cited for a violation feels he has been unjustly charged, he should be permitted to contest the citation without the fear of having the penalty increased. The penalty-increasing tendencies of the two members who make up the majority in this case play directly into the hands of those who would discourage employers from contesting the Labor Department's enforcement actions. There are many reported instances of cited employers who have asked the persons who cited them for guidance on what they ought to do -- only to be told that one of their options is to contest the citation before this Commission but that this process could lead to higher penalties than those proposed.

There is no way an employer can be penalized any amount in excess of that proposed by the Secretary if he does not assert his right to a hearing. Only if he asserts this constitutionally mandated right does he run the risk of an increased penalty -- an increase which is imposed by a tribunal created to provide "relief" -- not retributive justice. To say that the [*13] result reached in this case satisfies the due process requirement of the Constitution -- or fair play -- or any valid purpose of law -- is pure gibberish.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE: This action arises under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c), (hereinafter the Act).

It resulted from an inspection of Respondent's large metal stamping plant at Worcester, Massachusetts, conducted by Compliance Officer Jaros on May 15, 16, 17 and 22, and June 19, 1973.

After the issuance of the Non-Serious Citation herein, alleging 40 numbered Items of violation of Section 5(a)(2) of the Act, and a Notification of Proposed Penalties totaling $950, and after the filing of a Notice of Contest, Complaint and an informal Answer herein, this case came on for a pre-trial hearing in Worcester on December 4, 1973.

Jurisdiction of the Complainant and the Review Commission was conceded by Respondent at this hearing and is not at issue in this case.

It was further determined at this pre-trial that the Respondent wished to contest only the following:

1. The violations alleged in Items numbered 4 and 14 of [*14] the Citation, -- paragraphs III(d) and (n) of the Complaint.

2. The abatement dates (as amended by the Complaint) for Items numbered 2, 4, 14, 20, 30, 31 and 40 of the Citation -- paragraphs III(b), (d), (n), (t), (dd), (ee) and (nn), of the Complaint.

3. All proposed penalties. (Penalties were proposed for Items numbered 1, 2, 3, 9, 13, 14, 15, 16, 17, 19, 20, 30, 31, 32, 35, 36 and 37, totaling $950.00). (See Prehearing Order dated December 7, 1973, R. p. J-5 and transcript of said hearing).

The hearing thereafter began on January 15 and continued without interruption concluding on January 17, 1974.

The Respondent was represented by its President and chief operating officer, Mr. Baldwin, an educated businessman but not a lawyer. n1 He waived representation by counsel.

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n1 Mr. Baldwin holds both B.S. and M.B.A. degrees from Harvard University.

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The Complainant was ably represented by his counsel, John S. Casler, Esq.

No other person desired party status.

Complainant's brief was filed on April 3, [*15] 1974. (R. p. J-17). Respondent filed no post-hearing documents (R. p. J-16).

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations, admissions and arguments of the parties, it is concluded that the substantial evidence of record considered as a whole supports the following findings of fact and conclusions of law.

The parties stipulated the following:

The Respondent, Worcester Pressed Steel Company, is a Massachusetts corporation with its principal office and plant located at 100 Barber Avenue, Worcester, Massachusetts. It is one of the larger metal forming or stamping companies in this geographic area. All of the equipment involved in this case is under Respondent's control. It has no known history of prior violations and suffered a $200,000 loss in 1972. Respondent has approximately 300 daily employees on the average.

Because of the number of matters for which review is sought (two violations, seven amended abatement dates and seventeen proposed penalties) they will be taken in chronological order as they appear in the Citation and Complaint herein.

The Complainant's principal witness was the [*16] Compliance Officer who conducted the inspection of Respondent's plant, Mr. Jaros. He is a Registered Safety Engineer with over twenty-four years of broad and extensive safety experience, including conducting safety inspections, training safety personnel and supervisors and conducting safety meetings and seminars in both private industry and government. Prior to his safety experience, he was a foreman in a sheet metal shop where his responsibilities included the design, construction and installation of machine guarding equipment. He had conducted safety inspections of approximately 24 metal forming or metal stamping "press shops" which included all large "press shops" in the Worcester area. He evidenced a thorough knowledge of "press shop" operations, particularly as they relate to worker safety and had spoken before various groups concerning this subject, including the Central Massachusetts Safety Engineers and the Worcester Metal Stamping Group.

The five day inspection he conducted at Respondent's plant was made in the constant company of representatives of both management and union members. It included the usual opening and closing conferences and in effect, amounted [*17] to a competent and thorough safety survey of Respondent's manufacturing facilities. During this inspection, Mr. Jaros made detailed and extensive written notes and encouraged management representatives to do the same. (See Exh. C-33). In addition, he took approximately 70 photographs, 24 of which were introduced as exhibits relevant to the contested matters (See Exhs. C-1 through C-24). In summary, the long and detailed testimony of Mr. Jaros conclusively demonstrated that this inspection was carried out in a highly objective, skilled, and professional manner.

As to the proposed penalties and abatement dates generally.

Upon the conclusion of the active phase of the inspection, Mr. Jaros reviewed his findings with management at the closing conference. He went over each of the Items of alleged violation with management and because of Respondent's claim that due to the large number of alleged violations, extended abatement periods would be required, Mr. Jaros recommended rather long abatement periods which are reflected in the Citation herein. Thereafter, Mr. Baldwin discussed these abatement dates with the Boston Area Director and some abatement periods were further extended [*18] by the Director and are reflected in the Complaint herein.

In light of the evidence of record, it is my view that these abatement dates generally, as well as all proposed penalties, are extraordinarily lenient and minimal. Therefore, consistent with the provisions of Section 17 of the Act (29 U.S.C. 666) and based upon this evidence of record, appropriate changes are made infra.

Item No. 1 -- Paragraph III(a) Complaint Contested: -- Proposed Penalty of $75.00

29 CFR 1910.22(a)(1) provides: --

All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

As stated by the Complainant's counsel in brief, --

There is a simple and well recognized correlation between housekeeping and safety. Since poor housekeeping is a quick and relatively inexpensive matter to correct, the state of housekeeping frequently is a reliable indication of an employer's attitude toward safety. If supervision is genuinely concerned over employee safety, one of the most obvious and inexpensive steps to take is to clean up waste materials that pose obvious tripping hazards. If, on the other hand, production is the only priority, [*19] housekeeping will often evidence this. (Brief p. 2).

After the four day inspection of Respondent's plant, Mr. Jaros testified that Respondent's housekeeping was, ". . . of a generally poor nature and it was far below (from) what I would consider acceptable housekeeping for an operation of this sort."

He considered "a very large" percentage of the plant to be in violation of the cited Standard, with the exception of the lunch room and lavatory areas which were acceptable.

He characterized the Respondent's housekeeping practices from either the production or maintenance point of view, to be intolerable. When Respondent's housekeeping was compared to that of other companies he had inspected, Mr. Jaros stated,

To be perfectly honest, I would consider the housekeeping to be among the 2 or 3 worst operations that I have seen since I started inspecting during this program. n2

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n2 Mr. Jaros has been a Compliance Officer since April 18, 1971.

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He found the housekeeping "particularly bad" in the East and West Press Shops, [*20] the main press shop and in the hobo cylinder test area in Building No. 8. These poor conditions were noted specifically around presses numbered 150A, 150B, 400 and 800 in Building No. 5. It consisted of piles of scrap material, unused dies, unused tools and excess materials (See Exhs. C-8, C-10, C-19). Poor housekeeping was acute in the shipping area of Building No. 10 (See Exhs. C-3, C-4). These conditions were also observed in the service area and maintenance shop located on a balcony in Building No. 2 (See Ex. C-8) as well as in the pipefitters shop in Building No. 6 (See Exh. C-9). As to conditions in the hobo testing room located in Building No. 8, a room used to test a certain product called a hobo cylinder, See Exh. C-10. As to the general state of lack of good housekeeping, see also Exhs. C-37 through C-41.

In fact, the lack of acceptable housekeeping was so general that it became an impossible task for Mr. Jaros to note and photograph all incidents thereof, and the foregoing were merely examples of this general condition.

The poor housekeeping conditions observed included materials strewn around the floors to form ". . . somewhat of an obstacle course for [*21] anyone to reach material against the wall. . ." (Exh. C-3), material, ". . . all over the place. . ." in the pipefitters shop which created, ". . . a hazard for any person, whether he be a pipefitter or not, to go in there and do any work." (Exh. C-9), heavy coatings of grease on floors, cartons and boxes ". . . all jumbled up, . . ." skids leaning against poles and boxes and materials piled up against the wall (Exh. C-3).

The local union President, Mr. Ciuffredo, confirmed Mr. Jaros' opinion that Respondent's housekeeping ". . . was terrible" as did Vice President Chiras, stating it was "poor."

The evidence establishes that Respondent's poor housekeeping practices -- enhanced the tripping and injury hazards because much of the disaray involved heavy scrap material, metal and tools with sharp edges capable of inflicting serious lacerations if an employee tripped or slipped hitting this material. Additionally, such unstored heavy material undoubtedly contributed to or caused lifting injuries.

Some weeks before the hearing, Complainant's counsel requested permission to review the injury reports maintained by Respondent pursuant to Section 8 of the Act, (29 U.S.C. 657). [*22] Respondent's President refused. These documents were produced, pursuant to subpoena, on the morning this hearing commenced.

Respondent's "Log of Occupational Injuries and Illnesses" (OSHA Form No. 100, Exh. C-44) does not set forth the "cause" of the reported injuries, merely the nature of such injury. No accident investigation reports were supplied by Respondent. However, an examination of Respondent's "Log of Occupational Injuries and Illnesses" reveals a number of accidents, which raises the serious question as to whether they were caused by or were aggravated by Respondent's poor housekeeping. n3 No clarification was offered by Respondent.

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n3 See Exh. 44, for 1972: -- case no. 252; 59; 422; 0-32; 161; 155; 51; 54; 176; 82; 159; 202; 907; 215; 117; 190; 104; 423; 62; 404; 127; 74; 851. Exh. 44 for 1973: -- case no. 455; 169; 920; 552; 264; 104; 259; 162; 116; 124; 76; 416; 212; 284; 905; 936; 550; 264; 197; 63; 80; 114; 52; 559; 185; 168; 94; 957; 93; 70; 137.

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With the very brief opportunity which Mr. Jaros [*23] had to examine these injury reports on the morning this hearing began, he was able to determine that two of Respondent's employees were definitely injured because of poor housekeeping practices. Mr. Papole on September 28, 1973, fell over a bundle of wire on the floor of Building No. 9 sustaining a fractured right elbow (Exh. 44, case no. 185). Mr. Cote on October 26, 1973, walked into a large tool on the floor of the main press shop sustaining an injury to his right ankle (Exh. 44, case no. 93).

As to the proposed penalty of $75.00 which is contested under this Item, in view of the deplorable housekeeping conditions found to exist generally throughout Respondent's plant, with the tripping and falling hazards caused thereby, aggravated by the type of materials strewn around, it is concluded that the proposed penalty is not appropriate.

Consistent with the provisions of Section 17(j) of the Act, (29 U.S.C. 666(j)) considering that Respondent is one of the larger press shops in the Worcester area employing on the average, 300 daily employees in two shifts, the extent of Respondent's poor housekeeping practices, the potential for employee injury, the absence of any effective safety [*24] program, (which shall be commented upon infra), the absence in the evidence of record of any demonstrable good faith by Respondent, and the lack of any previous violations, it is my opinion that a penalty in the amount of $200.00 is just and appropriate based upon Item No. 1 of the Citation herein.

Item No. 2 -- Paragraph III(b) Complaint Contested: -- Proposed Penalty $40.00 and amended abatement date of July 29, 1974.

29 C.F.R. 1910.22(a)(3) provides:

To facilitate cleaning, every floor, working place, and passageway shall be kept free from protruding nails, splinters, holes or loose boards.

Mr. Jaros testified to having observed holes in the floors of work areas in Building No. 10 and in the passageway between Buildings No. 9 and 10, used by employees and forklift trucks. (See Exh. C-1 as an example of cracks in a concrete floor in a main passageway). Loose and rough boards were noted quite generally throughout Respondent's plant which condition was admitted to by management during the inspection. A large percentage of these floors, made of either wood or concrete, had holes, depressions and loose boards. Mr. Jaros gave as examples of this condition, the floors [*25] in Building No. 10; Building No. 2 (Exh. C-15); Building No. 3; holes in the wooden floor in the welding area and in the vicinity of stairs going to a second floor. Additionally, accumulations of grease and other chemical agents had been allowed to build up, particularly in the press shop. Exhibit C-6 depicts the holes in the passageway between Building No. 9 and 10. ". . . a main thoroughfaire for the forklift trucks, and any pedestrian traffic that had to commute between these two buildings."

This condition of course presented significant tripping and slipping hazards, which hazards were aggravated by the poor housekeeping conditions also generally prevailing throughout Respondent's plant. Thus an employee who slipped or was tripped by the holes, cracks, depressions, loose boards, etc., in the plant's floors faced an increased hazard of striking some of the sharp, metal unstored material stacked around throughout the plant. Additionally, the poor floor conditions increased the possibility of heavy loads transported by the forklift trucks being dislodged and striking the driver or nearby fellow workers, as well as making the manuvering of these trucks, in extremely [*26] cramped quarters, more difficult.

Shortly after the inspection herein, on June 20, 1973, one employee, Mr. St. Francis while pushing a truck of steel hit a hole in the floor causing him to fall forward striking the steel, receiving a deep laceration of his left wrist (Exh. C-44, case no. 165, June 20, 1973).

Mr. Jaros, in the limited time available before the hearing on January 15th, when the injury reports were delivered to Complainant, was unable to locate any further employee injuries definitively caused by the poor floor conditions in Respondent's plant. His evaluation of these injury reports was also hindered because of the lack of detailed information on these forms.

At any rate, the poor condition of Respondent's floors, when compared to other facilities inspected by Mr. Jaros, was characterized by him to be ". . . excessive for the size of the operation."

Mr. Baldwin did testify that the condition prevailing between Building No. 9 and No. 10 had been corrected by filling the holes and paving the area (Exh. C-6). He further testified: "A number of things are being done constantly to repair the floors. This is something that would pertain to maintenance and this is being [*27] done regularly." Thus some, unspecified, corrective actions have been taken relating to Respondent's floor problems.

As explained by Mr. Jaros, the abatement set forth for this Item invoives, "We're not talking about very large areas that had to be ripped out. We're talking about replacing boards here and there, and we're talking about patching concrete floors; in this particular case these conditions could have been taken care of by a simple maintenance man."

Consequently an original abatement date of approximately 6 months was recommended by Mr. Jaros, which was later amended by the Area Director to 13 months (July 29, 1974), not because of the time required to abate this one Item, but because Respondent was obligated to correct 40 Items of alleged violations. Lastly, although this business had been located at its present site, in one form or another, since 1883, Mr. Jaros thought its age to be "comparable with (other) plants in the area," some plants being older, some not as old.

Based upon the foregoing state of the evidence, it is concluded that the amended abatement date of July 29, 1974, is eminently fair and reasonable and is affirmed. n4

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n4 (See opinion of Mr. Jaros).

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Because of the extent of the condition noted and the employee hazards created thereby balanced against the fact that some corrective measures had been begun at least at the time of the hearing, it is concluded that the proposed penalty is not appropriate but rather a minimal penalty of $100 is appropriate.

Item No. 3 -- Paragraph III(c) Complaint Contested: -- Proposed Penalty of $60.00

29 C.F.R. 1910.22(b)(1) provides:

Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and whenever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

The evidence establishes that Respondent has seven forklift trucks which are used to move heavy equipment and heavy material in and about the various buildings at its plant site. n5 Mr. Jaros observed numerous incidents, basically in Buildings Numbered 2, 5, 6 and 10, in the press [*29] areas, where there was inadequate clearance for the safe operation of these forklift trucks, and in some areas, no adequate clearance whatever. In fact, "On a couple of occasions, when we were in the press shop making the inspections, we observed the forklift truck operators inching their way throughout the building, and in some cases, he had to get off to move some of the materials out of his way so that he could get by."

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n5 Respondent occupies 15 buildings at this site (Exh. C-23).

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This condition was found, ". . to be a very general condition, particularly in the press shops."

As to Building No. 10, Mr. Jaros testified, "There was, virtually, no easily negotiable path up through the steel shed. You could not get materials out from the back of the steel shed, and you could not even look at the back without having to climb over materials in order to do so."

The absence of clear aisles and passageways in Respondent's plant was confirmed by the union President, Mr. Ciuffredo.

The hazards to employees [*30] of such conditions, is, of course, obvious. Workers could be crushed between the heavily loaded forklifts and stationary heavy equipment such as the presses or auxiliary equipment, or against the large amounts of improperly scattered heavy metal material and tools lying about the plant as found in Item No. 1 supra.

Indeed, one employee, Mr. Sencabaugh, a press operator, on March 26, 1973, sustained "contusions and abrasions" of his right leg and ankle when he stepped back from his operation of a press into the forks of a forklift truck. (Exh. C-44, case no. 76, March 26, 1973).

On April 3, 1973, employee Johnston, while working as a helper on a press, was struck in the back by a forklift truck which, at the time, was loaded with material and was backing up. He sustained a "back strain." (Exh. C-44, case no. 416, April 3, 1973).

As pointed out by Complainant's counsel in brief, Respondent's emphasis upon business costs and production requirements resulted in cramming as much equipment and material in to any and all available space, thereby sacrificing clear and unobstructed aisles and passageways. This result was the natural outgrowth of Respondent's attitude concerning clear [*31] aisles and passageways, succintly summed up by its Chief Safety Officer, Mr. Pacek:

. . I don't think there is anything sacred about an aisle. In my opinion, aisles are fine, but in a business situation such as this, you have to use all available space. (See Complainant's Brief, p. 5).

Based upon the rather large extent of this violation at Respondent's plant site, the serious hazards to employees created thereby and the demonstrated absence of good faith by this Respondent, it is concluded that the proposed penalty of $60.00 is inappropriately low. The evidence of this record fully supports a minimal penalty of $100.00 based upon the violation set forth in Item No. 3 of this Citation.

Item No. 4 -- Paragraph III(d) Complaint Contested: -- The presence of the violation abatement date -- October 29, 1973 No penalty was proposed.

29 C.F.R. 1910.22(b)(2) provides:

Permanent aisles and passageways shall be appropriately marked.

The evidence of record conclusively establishes two things. First, that Respondent did have, in various locations throughout its plant, aisles and passageways used for the movement of equipment, material and employees, which aisles were "permanent" [*32] within the meaning of the cited Standard, and secondly, in the words of Mr. Jaros, there was; "A complete absence, in the simplest terms of the word, of any form of aisle identification or marking."

Mr. Jaros determined the existence of regularly used aisles and passageways by observing ". . . how the materials were handled and how the main traffic was going." He stated, "During the time of my inspection, I observed people and industrial trucks using, what seemed to be, regular passageways, because they would always move along these routes. I observed them going through Building No. 2 into 5, 6, 7, 8 and 10. I observed them going through the center of the shipping and receiving area."

The total absence of any markings on these aisles or passageways was conceded by management representatives during the inspection and by Respondent's President during the hearing.

Respondent defends this violation by arguing that it has no "permanent" aisles and/or passageways in its plant, because it moves its presses and supporting equipment around frequently, and thus no markings are necessary.

The evidence does not support the factual portion of this argument. Mr. Pacek, Respondent's Director [*33] of Industrial Relations and Manager of Safety, when pressed for details as to how many presses were moved about, and with what frequency, was not able to give specific information, although he did admit that a number of large presses remained in place from 1 to 2 years, or longer (R. 418-437). In his opinion, any press was "moveable" that was not anchored to a foundation.

The Respondent produced no detailed information on the movement of their presses within their shops.

On the other hand, the union President, an employee of Worcester Pressed Steel for 23 years, testified that "there are some aisles that we call permanent and they are being used all the time." Although he readily admitted that ". . . certain presses are probably moved every couple of weeks," he stated that approximately 85% of the presses in use by Respondent remain in one place ". . . for relatively long periods of time." Additionally, a number of the photographs taken by Mr. Jaros clearly evidence aisles and passageways, albeit cluttered or obstructed aisles. (See Exh. C-1, C-2, C-16, C-22).

The word "permanent" means, "to remain; lasting or intended to last indefinitely; lasting a relatively long [*34] time." n6 "Fixed, continuing, lasting, stable, enduring as opposed to 'temporary' but not always meaning 'perpetual'." n7

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n6 Webster's New World Dictionary, 2nd College Ed. 1972.

n7 Black's Law Dictionary, Rev'd 4th Ed. 1968.

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Thus as used in the Standard at issue, the term "permanent aisles" clearly means aisles which do exist or are intended to exist for a relatively long time. No exact time frame can be affixed as to how long any aisle or passageway must exist to be classified as "permanent."

Any space which is recognized and used as a passageway by employees due to the nature of their work on a continuing basis for a relatively long period, with the knowing concurrence of management constitutes a "permanent" aisle or passageway as used in the cited Standard.

Therefore, Respondent's defense to this Item of violation is rejected. The evidence clearly establishes the violation.

As to the five month period allowed for abatement, I find this to be most reasonable and generous.

The correction of this violation [*35] is a relatively simple and inexpensive task. All that is required is to clean the floors by scraping or wire brushing the build-up of grease and grime on the floors, and then to paint aisle markings. Various other types of aisle markings are readily available at minimum costs, such as masking tape, highway cones, ropes on stanchions, etc. Indeed, if some of Respondent's presses are moved about with the frequency which is alleged moveable markings should be of considerable benefit to assist the orderly flow of men and materials.

Of course, compliance with Item No. 3 herein, clearing the clutter and obstruction from Respondent's aisles, will facilitate compliance with this Item.

The existence of the violation and abatement date of October 29, 1973, are affirmed. Because of the interrelation of this Item with Item No. 3, no penalty is appropriate in the circumstances.

Item No. 9 -- Paragraph III(i) Complaint Contested -- Proposed Penalty of $65.00

29 C.F.R. 1910.37(q)(1) n8 provides:

Exits shall be marked by a readily visible sign. Access to exits shall be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visible to [*36] occupants.

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n8 At the hearing Complainant's motion to amend Paragraph III(i) of the Complaint to correct a typographical error was granted without objection. Standard cited in Complaint changed from 1910.37(g)(1) to 1910.37(q)(1) as set forth in the Citation.

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Mr. Jaros testified that he could recall no exits throughout Respondent's plant being properly marked. Because many of Respondent's buildings are large, the area around the exits were quite dark, particularly in the winter time when the large doors were closed. In Building No. 5 and No. 2, in press shop areas, there were heavy accumulations of grease on the floor and machines which, in the event of fire, would cause heavy smoke. The employee hazard is obvious.

Correction of this condition was recommended by Respondent's Safety Director, Mr. Pacek, to top management over one year prior to Mr. Jaros' inspection. Top management had not corrected it.

Mr. Baldwin testified that this condition ". . . has been taken care of."

In the light of the evidence of record, [*37] the proposed penalty of $65.00, although lenient, is appropriate.

Item No. 13 -- Paragraph III(m) Complaint Contested: -- Proposed Penalty of $45.00

29 C.F.R. 1910.133(a)(1) provides --

Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

This violation was noted by Mr. Jaros in Respondent's tool room and maintenance shop where lathe operators and welders were observed working without eye protection.

The employee hazard caused by this condition is injury to the eyes from flying metal from the lathes and flash burns from welding operations. Although there was a sign in the tool room reading "Eye Protection Area," no one in the room was wearing eye protection. [*38] Although some eye shields were observed by Mr. Jaros in a box in one shop, he saw no employees wearing this equipment. In fact, when Mr. Jaros discussed this condition with management, they in effect admitted that the requirement for eye protection had lapsed and management was not requiring the use of such equipment by employees.

A number of entries in Respondent's Injury Records indicate that the hazards created by such a non-enforcement attitude have resulted in eye injuries. (See Exh C-44, case no. 54, July 24, 1973; no. 263, August 7, 1973; no. 113, September 27, 1973; no. 127, November 8, 1973; no. 424, November 9, 1973, no. 281, February 14, 1973; no. 185, January 25, 1972; no. 155, May 24, 1972, no. 263, June 5, 1972; no. 552, July 7, 1972; no. 0-20, September 20, 1972).

This absence of requiring the use of eye protection had been brought to the attention of top management by Mr. Pacek long before the inspection. Nothing had been done.

Based upon the injuries demonstrably caused by Respondent's failure to comply with the cited Standard, and the total absence of any good faith or concern for employee safety in this area, it is concluded that the proposed penalty is not [*39] appropriate. A penalty in the amount of $200.00, although minimal is appropriate based upon the evidence of this record.

Item No. 14 -- Paragraph III(n) Complaint Contested: -- Presence of violation Proposed Penalty of $50.00 Amended abatement date January 29, 1974

29 C.F.R. 1910.176(a), of the "Material Handling and Storage Standards," provides:

Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard. Permanent aisles and passageways shall be appropriately marked.

This Item involves primarily the active shipping and receiving areas located in Respondent's Building No. 10. n9 It involves the same general type of condition as found in Items numbered 3 and 4, to wit, obstructed aisles and failure to appropriately mark aisles and passageways. Exhibit C-2 shows the general chaotic condition of this area, a forklift truck used within the area, obstructed aisles and the absence of any marking of the aisle which is visible. [*40] Exhibits C-3, C-4 and C-5 confirm the lack of any decernible order in this area. Mr. Jaros testified to observing mechanical equipment operating in the area, to the lack of "sufficient safe clearances," and the absence of any aisle markings.

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n9 Mr. Jaros also found the same type of conditions in Buildings No. 11, No. 12 and No. 13, inactive storage areas.

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The evidence of record thus conclusively establishes the presence of the violation.

The hazards created by the violation are rather obvious. As shown in Exh. C-5, much of the material stacked in this area are coils of metal, each weighing over 100 pounds. This and other material were stacked 5 to 6 feet high. The conditions found made operating the forklift trucks difficult, because of the lack of "sufficient safe clearance," increasing the possibility of injury to the equipment operators by falling coils of metal or other material. In the event of such an accident, when removing or placing material, any injury could be severe because of the weight [*41] of the material.

The original abatement date was set as July 29, 1973, which was amended to January 29, 1974. Correction of this condition requires minimal cost and effort. All that is required is the use of a forklift truck to rearrange the stored material into some semblance of order thereby creating aisles with "sufficient safe clearance" for use by the mechanical handling equipment used in this area and then appropriately marking these aisles -- so that some order can be maintained.

These conditions, like those commented upon under Items No. 3 and No. 4, are indicative of Respondent's emphasis upon utilizing every inch of space in its plant for further production aims at the expense of employee safety. It is another example of Respondent's lack of good faith in providing its employees with safe and healthful working conditions.

Upon this state of the evidence, the $50.00 proposed penalty is not appropriate. Because of the hazards to employee safety created by these conditions, of which management was fully cognizable, a penalty of $100.00, although minimal, is appropriate.

The amended abatement date of January 29, 1974, is most generous. Corrections can be easily accomplished [*42] within this period and it is therefore, affirmed.

Item No. 15 -- Paragraph III(o) Complaint Contested: -- Proposed Penalty of $40.00

29 C.F.R. 1910.178(e)(1) provides:

(1) High Lift Rider trucks shall be fitted with an overhead guard manufactured in accordance with paragraph (a)(2) of this section, unless operating conditions do not permit.

Mr. Jaros testified to observing two of Respondent's seven forklift trucks without overhead protection. He photographed one forklift depicted in Exh. C-7 was used to move material around in Building No. 10.

The hazard of operating such trucks without adequate overhead protection is, again, obvious, particularly in a heavy metal stamping type of business such as conducted by Respondent. Indeed, Mr. Jaros testified to having investigated two fatal accidents involving forklift trucks without overhead guards where the loads became dislodged, crushing the drivers. In a plant such as Respondent's where the movement of heavy and often sharp metal material is common place, and where the aisles and passageways were badly cluttered and obstructed, employee hazard was greatly increased.

However, in view of the fact that Respondent leased [*43] the forklift trucks at its plant, which of course, does not relieve it from responsibility of compliance with the Act and cited Standard as these machines were under the direction and control of Respondent, and in view of the fact that 5 of the 7 forklifts did have adequate overhead protection, (See Exh. C-6), it is concluded that the proposed penalty of $40.00, although minimal, is appropriate.

Item No. 16 -- Paragraph III(p) Complaint Contested: -- Proposed Penalty of $50.00

29 C.F.R. 1910.178(1) provides:

Only trained and authorized operators shall be permitted to operate a powered industrial truck. Methods shall be devised to train operators in the safe operation of powered industrial trucks.

Mr. Jaros testified that during his inspection he was able to locate only two of Respondent's employees who had received training in the proper operation of forklift trucks and to having observed four other employees operating this equipment. He asked Respondent's Safety Director, Mr. Pacek, how many operators were properly trained and received no answer. Respondent was unable to furnish Mr. Jaros with any type of list, oral or written, of employees who had received adequate training. [*44]

Under the conditions existing at Respondent's plant site, obstructed aisles and passageways, movement of heavy material, cracked floor surfaces and holes in travel-ways between buildings, proper training was indeed, critical.

Upon the evidence of this record, it is concluded that the proposed penalty of $50.00, although minimal, is appropriate.

Item No. 17 -- Paragraph III(q) Complaint Contested: -- Proposed Penalty of $75.00

29 C.F.R. 1910.178(p)(1) provides:

(1) If at any time a powered industrial truck is found to be in need of repair, defective, or in any way unsafe, the truck shall be taken out of service until it has been restored to safe operating condition.

Mr. Jaros testified that during his inspection on May 15th, he observed the forklift truck shown in Exh. C-7 being operated with no brakes. He tested this equipment and ascertained it had absolutely no braking capacity. On the following day, he observed the same forklift moving material, still with no brakes. Later the same day, Mr. Jaros observed another, 3-wheeled forklift truck, moving material in Respondent's plant, without any brakes, the operator lowering the load to the floor in order to stop the [*45] truck.

Again, the hazard is so obvious as to not warrant comment. However, this hazard was increased at this plant site, because it was necessary for forklifts to "inch their way along" the cluttered and obstructed aisles and passageways, sometimes having to stop and move material out of the way before they could proceed.

This is yet another example of management's disregard for employee safety and the requirements of the Act. When the forklift depicted in Exh. C-7 was detected without brakes on May 15, it should have been immediately put out of service for repair. It was not. Indeed, neither forklift should have been allowed to function at any time without brakes. Both were for a period of time, which can not be accurately determined from the evidence.

The proposed penalty of $75.00 is not appropriate. Based upon the patently demonstrated bad faith of Respondent and due to the serious hazards presented by the violation, compounded by the hazardous aisle and passageway conditions found at Respondent's plant site, a minimal penalty of $150.00 is demanded and is appropriate.

Item No. 19 -- Paragraph III(s) Complaint Contested: -- Proposed Penalty of $40.00 n10

[*46]

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n10 The original abatement date of January 28, 1974 (See Citation) was amended to July 29, 1975, by Complainant. The Secretary's Motion to Amend his Complaint to reflect this amended date was granted (See R. pp. J-7 and J-9). This amended abatement date was not contested.

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29 C.F.R. 1910.212(a)(1) provides:

(1) Types of guarding. One or more methods 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-hand tripping devices, electronic safety devices, etc.

Mr. Jaros testified that this violation involved the absence of guards on rotating rollers on machinery, particularly connected to presses, used to feed stock into presses, as well as rollers used to draw stock from stamping machines. (See Exh. C-17 as an example) He stated, "There was a general absence of guards which are commonly used in [*47] the business on the ingoing nip points."

Typical of this condition were the rollers located in the East Press Shop, Building No. 5 on the "straightening row X14, X82, and X81." These are power driven rollers capable of catching and drawing employees' fingers and hands into them causing injuries. After reviewing his inspection notes, Mr. Jaros testified to having observed 17 or 18 specific instances of this violation.

At least one injury was reported by Respondent which was clearly caused by this violation. Mr. Colon on September 8, 1972, a press operator, was starting a coil of material into the feed roller, caught his left index finger between the rollers sustaining "bursting type lacerations, no fracture." One week lost time was reported.

In view of the extent of this violation generally throughout Respondent's plant and the very real hazard to employees caused thereby, it is concluded that the penalty of $40.00 as proposed is not appropriate. A minimum penalty of $100.00 is demanded by the evidence of record and as is appropriate.

Item No. 20 -- Paragraph III(t) Complaint Contested: -- Proposed Penalty $90.00 Amended Abatement date July 29, 1975

The Standard cited [*48] to support this alleged violation, "failure to provide adequate point of operation guards on mechanical power presses and other production machines." (Complaint, para. III(t)), is 29 C.F.R. 1910.212(a)(3). This Standard is a "general" Standard, which, if a more specific Standard is applicable to the cited condition, may not be used to support a violation. 29 U.S.C. 658(a); 29 C.F.R. 1903.14(b); 29 C.F.R. 1910.5(c).

Indeed, 29 C.F.R. 1910.212(a)(3)(ii) provides: ". . . the guarding device shall be in conformity with any appropriate standards therefore, . . . ."

The specific Standards applicable to the power presses used by Respondent are found at 29 C.F.R. 1910.217(c) in the Subpart entitled "Mechanical Power Presses."

Subparagraphs (a)(1), (2) and (3) of 29 C.F.R. 1910.217 declare various dates when "New Installations," "Former installations" and "All installations" of power presses must conform to the point of operation guarding requirements of 1910.217.

The evidence of this record most reasonably supports the conclusion that the 106 mechanical power presses at Respondent's plant site should be classified as "Former installations," i.e., installed prior to August 31, 1971, [*49] as Worcester Pressed Steel has been in operation at this location for some 90 years, and there is no evidence whatever that this Respondent has installed any new presses since it assumed management and control of this business on December 30, 1971. Under the provisions of 1910.217(a)(2), "All mechanical power presses installed prior to August 31, 1971, shall be brought into conformity with the requirements of this section not later than August 31, 1974."

Thus I am constrained to hold n11 that although the evidence establishes conclusively that 52 of Respondent's presses were not equipped with adequate point of operation guarding, (Exh. C-14, C-17, C-18, C-21, Exh. C-11), which have resulted in numerous serious injuries to employees (Exh. C-44); no chargeable violation existed at the time of the inspection herein, May, 1973, and Respondent has until August 31, 1974, to comply with this Standard. Secretary v. Stevens Equipment Co.; 2 OSAHRC 1501. Item No. 20 and the penalty proposed thereon must therefore be vacated.

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n11 Although I may respectfully disagree with majority opinions, I am bound by them. (See all opinions in Stevens Equipment Co., infra), Secretary of Labor v. Continental Steel Corporation, Docket No. 3514-P, May 7, 1974; Secretary of Labor v. New Haven Foundry, Docket No. 4514-P, May 7, 1974.

[*50]

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Item No. 30 -- Paragraph III(dd) Complaint Contested: -- Proposed Penalty $55.00 Amended Abatement date July 29, 1975

29 C.F.R. 1910.219(d)(1) provides:

(1) Guarding. Pulleys, any parts of which are seven (7) feet or less from the floor or working platform, shall be guarded in accordance with the standards specified in paragraphs (m) and (o) of this section. Pulleys serving as balance wheels (e.g., punch presses) on which the point of contact between belt and pulley is more than six feet six inches (6 ft. 6 in.) from the floor or platform may be guarded with a disk covering the spokes.

Mr. Jaros testified to observing not less than 130 instances where pulleys and drive belts on Respondent's presses and other types of machinery were inadequately guarded. Of the 130 instances detected, 73 involved presses. However, many of the inadequately guarded wheels and pulleys did have some guarding although not adequate because employees could become entangled. As an example, Mr. Jaros photographed the back of a press (Exh. C-13), with a material cart behind this press, in a position which, when retrieved [*51] by an employee, would expose this employee to the unguarded side of the large pulley or wheel. He also photographed another press where some of the guarding had been removed and was on the floor next to the press (Exh. C-14).

He further testified that correction of this condition was neither complicated nor difficult, entailing the fabrication of sheet metal guards to correct the inadequate guarding which was present.

Based upon the fact that this Item involves inadequate guarding, rather than the total absence of guarding, and the relatively low likelihood of employee injury, it is concluded that the proposed penalty of $55.00 is appropriate. Because of the number of presses and machines needing additional guarding, the amended abatement date, although most lenient, is affirmed.

Item No. 31 -- Paragraph III(ee) Complaint Contested: -- Proposed Penalty of $55.00 Amended Abatement date July 29, 1975

29 C.F.R. 1910.219(f)(1) provides:

(f) Gears, sprockets, and chains.

(1) Gears. Gears shall be guarded in accordance with one of the following methods:

(i) By a complete enclosure; or

(ii) By a standard guard as described in paragraph (o) of this section, at least seven [*52] (7) feet high extending six (6) inches above the mesh point of the gears; or

(iii) By a band guard covering the face of gear and having flanges extended inward beyond the root of the teeth on the exposed side or sides. Where any portion of the train of gears guarded by a band guard is less than six (6) feet from the floor a disk guard or a complete enclosure to the height of six (6) feet shall be required.

Mr. Jaros testified that during his inspection he observed not less than 50 instances where gears were inadequately guarded, of which 44 were connected to presses. Again, as in the prior violation, most instances involved incomplete or inadequate guarding, not a total absence of any gear guarding (Exh. C-14). As pointed out by the inspector, the hazard was aggravated by the poor housekeeping in Respondent's plant.

Again, only sheet metal work was needed to correct this violation.

Based upon this evidence of record the proposed penalty, although small, is appropriate. Due to the extent of the corrections required for compliance, the amended abatement date although liberal, is affirmed.

Item No. 32 -- Paragraph III(ff) Complaint Contested: -- Proposed Penalty $40.00

29 C.F.R. [*53] 1910.219(f)(3) provides:

(3) Sprockets and chains. All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive extends over other machine or working areas, protection against falling shall be provided. This subparagraph does not apply to manually operated sprockets.

This evidence reveals that 11 conveyors had a total absence of guards on the sprockets and chains used to drive or operate this type of equipment. Exhibit C-16 graphically portrays this type of violation. The hazard to employees is self-evident. The violation was readily admitted by management. These conveyors were used on a daily basis by employees in Respondent's production process and thus, employee exposure, observed by Mr. Jaros, was frequent. Abatement can be easily accomplished by sheet metal guards.

Because this violation involved the total absence of guards, and due to the relatively constant employee exposure to the hazards existing at these 11 conveyors, the proposed penalty of $40.00 is not appropriate. A minimal penalty of $100.00 is appropriate and reasonable.

Item No. 35 -- Paragraph III(ii) Complaint Contested: [*54] -- Proposed Penalty $60.00

Article 110-17(a) of the 1971 National Electrical Code, as adopted by 29 C.F.R. 1910.308(a) and 309(a) provides that all live parts of electrical equipment operating at 50 volts or more shall be guarded from accidental contact by approved cabinets or other forms of approved enclosures.

Mr. Jaros testified that he observed this violation, ". . . in many areas due to loss of cover plates on receptacles smashed receptacles, open control in fuse box covers and missing junction box covers." In some cases covers to receptacles were left open, in others the covers were missing.

Exhibit C-21 depicts exposed live wires carrying in excess of 50 volts, in four locations indicated by arrows. (behind the hole on the control panel were exposed live wires).

Exhibit C-23 depicts a control box, with missing cover thereby exposing numerous live wires. This box was located outside of the foreman's office in the east press shop in Building No. 5.

Exhibit C-24 depicts a damaged electrical outlet, at about eye level, exposing live wires. This condition was found in various locations throughout the plant.

The inspector testified, "We encountered, during the course [*55] of our inspection, enough of these situations so that we became very concerned with the . . . adequacy of the electrical maintenance."

The evidence also reveals that Respondent's Safety Manager, Mr. Pacek, had recommended that this condition be rectified early in 1972. At the time of the inspection in May of 1973, the condition still existed.

Based upon the presence of the serious electrical hazard caused by this violation, (Respondent's presses operate on 110 volt current), by its demonstrated poor faith in allowing this condition to persist for such a length period, and the fact that correction entailed merely normal maintenance by one of Respondent's two licensed electricians, it is concluded that the lowest appropriate penalty is $100.00.

Item No. 36 -- Paragraph III(jj) Complaint Contested: -- Proposed Penalty of $45.00

Article 110-22 of the 1971 National Electrical Code as adopted by 29 C.F.R. 1910.308(a) and 309(a) provides that each disconnecting means for electric motors and appliances must be legibly marked to indicate its purpose unless located and arranged so the purpose is evident.

Mr. Jaros testified that this violation involved lathes, drill presses and other [*56] electric machines located in the tool room on the second floor of Building No. 5 and the maintenance shop in Building No. 2. At each location, the main electric line for these machines ran along the 17 foot high ceilings of the first floor below these rooms. The disconnect switches were thus located on the first floor ceilings neither accessible nor detectable from the second floor tool room and maintenance shop.

The employee hazard is obvious. Any maintenance work done on these machines should be accomplished only after the machine is disconnected from its power source to render it inoperable and incapable of causing any electric shock. The location of the disconnect switches, on the high ceiling of the floor below the room where the machines are located, in an inaccessable location not legibly marked, increase the risk of maintenance work being attempted on these machines without first disconnecting them from their power source. The possibility of electric shock or injury to maintenance personnel working on a machine which has not been electrically disconnected is consequently increased.

Mr. Page admitted to Mr. Jaros that this violation existed.

Based upon this [*57] evidence of record, the proposed penalty is not appropriate. Again, correction of the violation merely required the services of one of Respondent's licensed electricians to properly install legibly marked disconnect switches. It is concluded that because of the very real hazard presented to the maintenance personnel by this violation, a minimal penalty of $100.00 is appropriate.

Item No. 37 -- Paragraph III(kk) Complaint Contested: -- Proposed Penalty of $65.00

Article 250-5(b)(1) of the 1971 National Electrical Code, as adopted by 29 C.F.R. 1910.308(a) and 309(a) provides that alternating electric current systems of 50 volts or over shall be grounded so that the maximum voltage to ground on the ungrounded conductors will not exceed 150 volts.

Mr. Jaros testified that Respondent's plant is wired for 110 and 240 volt alternating current and a great many of the outlets wired to these voltages were ungrounded. In fact the condition was so general throughout the plant that he gave up trying to tabulate them all. Mr. Page, Respondent's Safety Director, was unable to give Mr. Jaros the number of outlets in this plant. He also observed some machines which were properly equipped with [*58] three pronged plugs, but which were of no protection because of the unavailability of properly grounded receptacles.

The employee hazard is obvious, electrocution or electric shock. In fact, Mr. Jaros had previously investigated a fatal accident where the internal ground within a machine had failed, which was connected to an ungrounded outlet, which electrocuted the user of the machine.

Again, correction of this violative condition required merely the services of one of Respondent's licensed electricians to install properly grounded receptacles.

Due to the widespread instances of this violation and the obvious employee hazard the proposed penalty is not appropriate. A minimal penalty of $100.00 is appropriate.

Item No. 40 -- Paragraph III(nn) Complaint Contested: -- Abatement Date -- July 29, 1974

Article 400-4(1) of the 1971 National Electrical Code, as adopted by 29 C.F.R. 1910.308(a) and 309(a) provides that flexible cord shall not be used as a substitute for the fixed wiring of a structure; (except for certain data processing systems not applicable here).

Mr. Jaros testified that generally, throughout Respondent's plant, flexible, temporary cord was being used [*59] to connect a variety of machines to power sources. He found it particularly evident in Building No. 8, where a certain product was manufactured. Evidently, a number of fabricating machines are rearranged periodically within this building leading to Respondent's use of the temporary cords. The problem however, was that the temporary cords extended considerable distances exposing such cords to the possibility of damage and the consequent hazard of electric shock.

The abatement period of approximately one year from the inspection is deemed appropriate as the condition can be rectified as suggested by Mr. Jaros, by the installation of overhead electric conduits with receptacles which would allow for the use of short (no longer than 15 foot) flexible cords to the machines, and allow for the rearrangement of these machines as needed.

Respondent contests the various elements of the Items detailed supra on a number of grounds.

First, Respondent argues that no single penalty nor abatement date poses an insurmountable problem, but when the extent of the violative conditions are totaled and when the penalties are totaled, it is the magnitude of this overall picture which presents problems. [*60]

The short answer to this is that the magnitude of Respondent's non-compliance with the Act and Standards establishes beyond question the dire need for immediate and swift corrective actions in order ". . . to assure so far as possible every working man and woman safe and healthful working conditions and to preserve our human resources --" (Sec. 2(b) of the Act, 29 U.S.C. 651(b)).

The extent of violative conditions found in Respondent's plant have produced injury statistics which, when compared to other firms in the industry, are deplorable. For the second half of 1971, Respondent's rate of disabling injuries was well over four times that of the industry as a whole for 1970. For 1972, Respondent's rate was almost seven times the 1970 industry rate. Respondent's severity rate of injury was almost 3 times that of the national average for this industry. (Exh. C-34, C-35, C-36). Respondent's own records (Summaries of Occupational Injuries and Illnesses, OSHA Form No. 102, Exh. C-34, C-35 and C-36) show a definite upward trend of injuries at its plant. For 1973, the total lost time from injuries and illnesses was 2-1/2 times greater than for 1972 with twice as many cases [*61] reported.

Respondent's Safety Manager argued that such a poor showing was caused by the need to employ unskilled labor or men who have a lack of experience in industrial work. The evidence however, shows that more often than not, the accident victims are skilled workers who have been in the employ of Worcester Pressed Steel for many years or even decades. (Exh. C-44). Indeed, if Respondent's assertions can be given credence, greater safety efforts and swifter abatement of the violative conditions would appear advisable.

Respondent claims to have an "informal" but "highly active" safety program, consisting chiefly of a "safety committee" and an educational program for its employees.

The evidence, however, fully substantiates the opinion of Mr. Jaros: -- "I thought the program was totally ineffective, if, in fact, they did have any Safety Program as we call it."

No recent meetings had been held by this committee. When Mr. Jaros asked union representatives about meetings of this committee, they advised that the last meeting had been held so long ago that they could not recall the time. In fact, when questioned by Mr. Jaros, Mr. Pacek was unable to name or provide a list of the [*62] members of this safety committee, finally declaring that it was "deactivated" at some unspecified time.

Mr. Pacek was unable to supply any written minutes or notes of past meetings of Respondent's safety committee. Respondent has no written safety program.

Although Mr. Pacek asserted that the Respondent's supervisors had authority to discipline employees who violated any safety provision, it was brough out that no employee had been terminated under present management for failure or refusal to obey any safety program.

As to the educational argument advanced by Respondent, it has no merit. The evidence establishes that Mr. Pacek did attend yearly safety courses lasting for one week. However, he held no training meetings with employees and could cite only one training program which he had run for any employees (to abate Item No. 16). He had not shown any safety films for any other employees nor had any been scheduled. The fact that no safety education reached down to the employee level was confirmed by the union Vice-President, Mr. Chiras.

Therefore, Respondent's argument that if it is pressed to correct the violative conditions found, its educational program will [*63] have to be suspended, is totally without merit.

What has happened at Respondent's plant is that production has taken precedence above everything else, including safety. This, of course, accounts for the poor housekeeping violation, for the absence of adequate clear aisles, for cramming as much material and machinery into whatever space is available, and for many other of the violations noted. Thus many suggestions of its Safety Manager went unheeded and unimplemented by Management.

Additionally, management's attitude toward safety was succintly and perhaps inadvertently stated by Mr. Pacek, -- "Safety is, primarily the job of the employee."

Such an antiquated attitude of course has resulted in the lack of any meaningful "safety program" at Worcester Pressed Steel and is contrary to the Act and indeed, to current sound business practices.

Respondent's contention that its ability to abate the violative conditions are hampered by the unavailability of labor in the Worcester area is unsupported by the evidence. When production demands required, an extra electrician was hired. No showing whatever was made by Respondent of any efforts to hire additional workers it claims [*64] it will need to correct the safety violations found. However, two welders and two machine repairmen, skilled laborers of the type which could be utilized in effecting corrections, have been recently laid off by Respondent. Respondent further argues that part of the problem of obtaining employees to effect abatement is the prospect of having to terminate these employees once abatement is accomplished. There is no merit in this argument. The extent of work required to bring Respondent's plant into compliance with the Act and Standards promulgated thereunder, coupled with the increasing production levels testified to by Respondent, leads to the reasonable conclusion that there is and will continue to be a continuing need for adequate maintenance staffing for the foreseeable future.

The final contention of Respondent is that correction of the violative conditions would be financially impossible and it seeks abatement dates extending well into 1976 (See Exh. R-42).

The abatement dates requested are totally unrealistic and unreasonable and are unsupported by the substantial and creditable evidence of this record. As pointed out by Complainant's counsel in brief, such extended dates [*65] ". . . would amount to a virtual four and a half year exemption from the Act." I see nothing in the Act which grants either the Complainant or the Commission such "broad exemption powers." (Complainant's Brief, p. 21).

Respondent's financial argument was presented basically by its Vice-President of Finance and Treasurer, Mr. Vogel. Although carrying rather impressive academic credentials, n12 his testimony constituted rather simplistic assertions with no underlying data or facts which could be used to evaluate these assertions. A good example of this is Respondent's Exhibit R-13 -- a bare listing of "Approximate Sales" and "Approximate Loss" for Worcester Pressed Steel for 3 years, 1970 through 1972. Of course, present management did not buy control of this company until December, 1971. This exhibit is so devoid of any basic data that evaluation of these figures is impossible. No profit and loss statement was presented in any form for 1973 because Respondent's books had not been closed.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n12 Mr. Vogel holds a PhD degree from Harvard Business School in Agricultural Business Management and instructs at that institution in that field.

[*66]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

However, this witness did testify that Respondent has operated profitably since taking over this company in December of 1971, although the company had sustained losses under prior management.

Respondent then argued that because of the losses sustained under prior management, it could not be anticipated that money could be raised under present management to pay for abatement. Again, these are merely assertions unsubstantiated by any data or any showing that additional financing had been either sought or refused by anyone. In fact, serious objection was lodged to Complainant's attempt to fathom the rather complicated present ownership of this company.

This witness did not know how much present management expended on maintenance in 1972 and could not even give any estimates. Although Respondent offered to supply this figure for the record, such information was never supplied. (See R. p. J-16).

Respondent's Exhibit R-12 -- its "Estimated Costs of Compliance with . . ." the citation at issue is another example of an unsupported statement completely lacking in basic underlying data, necessary for a [*67] reasonable evaluation of such costs. Mr. Page, the representative of management who prepared this exhibit was not produced as a witness as he was in a hospital. No other witness presented by Respondent had sufficient knowledge of the figures appearing in this exhibit or the computations underlying them, to allow meaningful analysis.

Respondent's financial argument was summed up by witness Vogel -- "I am afraid that we would end up . . . we would, basically, take funds that were considered for production expenditures and we would take that cash away from production needs, and thereby limiting production, thereby limiting profits and we would thereby get ourselves into a whirlpool which could drive us to the sinking point."

This again confirms Respondent's relative priority of production over safety. Regardless of the economic soundness of this statement, (there are those who believe safety is a sound business practice), the definitive answer to this argument is that Respondent, like all businesses, must conform to the requirements of the law, including the Occupational Safety and Health Act of 1970, as a condition precedent to continued business activity so that this [*68] nation's human resources, working men and women, are assured safe and healthful working conditions. (Sec. 2(b) of the Act, 29 U.S.C. 651(b)).

The remainder of Respondent's arguments have been considered and are rejected as not supported by the evidence of record or the law.

Based upon the foregoing findings and conclusions and pursuant to the provisions of Section 10(c) and 12(j) of the Act, it is hereby, ORDERED:

1. That the existence of the 40 violations set forth in the Citation and Complaint herein except for Items numbered 4, 14 and 20, have become final orders of the Commission by operation of Section 10(a) of the Act (29 U.S.C. 659(a)).

2. That Items number 4 and 14 are AFFIRMED.

3. That Item number 20 and the penalty proposed thereon are VACATED.

4. That all abatement dates, as amended and as set forth in the Complaint, herein, are AFFIRMED.

5. The following civil penalties, based upon the following Items, are assessed:

Item No.

Penalty

 1

$200.00

 2

$100.00

 3

$100.00

 9

$ 65.00

13

$200.00

14

$100.00

15

$ 40.00

16

$ 50.00

17

$150.00

19

$100.00

30

$ 55.00

31

$ 55.00

32

$100.00

35

$100.00

36

$100.00

37

$100.00

Total   $1,615.00

[*69]