CLOVER BEEF COMPANY
OSHRC Docket No. 439
Occupational Safety and Health Review Commission
July 26, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: On October 5, 1972, Review Commission Judge William E. Brennan issued a decision in this case holding that the respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act) by its failure to properly ground certain fixed and portable electrical equipment in accordance with the provisions set forth at 29 C.F.R. 1910.314(d)(1) and 29 C.F.R. 1910.314(d)(4)(iii)(c). He assessed a total penalty of $80 for the two alleged violations. Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission.
The Commission has reviewed the entire record in this case, and the brief filed by complainant. On the basis of such review, the Commission (1) affirms the finding of a violation resulting from noncompliance with 29 C.F.R. 1910.314(d)(4)(iii)(c) and the $35.00 penalty assessed therefor, and (2) finds that the Judge erred in holding that respondent did not comply with 29 C.F.R. 1910.314(d)(1).
Respondent is a Pennsylvania corporation engaged in the business of receiving, processing, packing and preparing meat products. On December 30, 1971, a representative of the complainant conducted an inspection of respondent's workplace and determined that the exposed, noncurrent-carrying metal parts of certain equipment located there were not grounded. Subsequently, on January 10, 1972, complainant issued a citation to respondent, Item No. 1 of which alleged a nonserious violation of the Act in that:
The exposed noncurrent-carrying metal parts of the following fixed equipment were noted not to be grounded: (a) Tape machine and staple machine in the loading area, (b) Time clock in loading area, and (c) Sump pump located in the basement compressor room.
The citation alleged that these facts were a violation of the occupational safety and health standard set forth at 29 C.F.R. 1910.314(d)(1) which provides as follows:
(d) Equipment grounding -- (1) Fixed equipment -- general. Under any of the conditions of this subparagraph, exposed, non-current-carrying metal parts of fixed equipment, which are liable to become energized, shall be grounded:
(i) Where equipment is supplied by means of metal-clad wiring;
(ii) Where equipment is located in a wet location and is not isolated;
(iii) Where equipment is located within reach of a person who can make contact with any grounded surface or object;
(iv) Where equipment is located within reach of a person standing on the ground;
(v) Where equipment is in a hazardous location;
(vi) Where equipment is in electrical contact with metal or metal lath;
(vii) Where equipment operates with any terminal at more than 150 volts to ground . . . [emphasis added].
There is substantial evidence in the record to support the Judge's finding that the equipment in question was not grounded. However, this fact, in and of itself, is not enough to establish a violation of the provision under which respondent was cited. The express language of that standard makes it abundantly clear that not every failure to ground fixed equipment is a violation. Indeed, since the standard requires grounding of fixed equipment only under the seven specified conditions enumerated, the burden is on complainant to show by competent evidence which of those seven conditions existed at respondent's workplace thereby necessitating the grounding of such equipment.
That was not done in this case. Neither the citation, the complaint, the transcript nor the Judge's decision disclose any conditions which would create the need for grounding under the cited standard. Without such a showing in the record, noncompliance with the same cannot be established.
Accordingly, it is ordered that the Judge's decision holding respondent to be in violation of section 5(a)(2) of the Act by a failure to comply with 29 C.F.R. 1910.314(d)(1) is reversed, and the penalty of $45 is dismissed. In all other respects, the Judge's decision is affirmed.
[The Judge's decision referred to herein follows]
BRENNAN, JUDGE, OSAHRC: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et. seq. (hereinafter the Act), to review a Citation for Non-Serious Violations issued by the Secretary of Labor, (hereinafter Secretary) pursuant to Section 9(a) of the Act, and penalties proposed thereon issued pursuant to Section 10(a) of the Act.
On January 10, 1972, the Secretary through the Philadelphia Area Director of the Occupational Safety and Health Administration, issued to Clover Beef Company, 820 West Girard Avenue, Philadelphia, Pennsylvania, (hereinafter Respondent) a Citation alleging violations of Section 5(a)(2) of the Act in that Respondent failed to comply with two Occupational Safety and Health Standards duly promulgated under Section 6 of the Act.
Item number 1 of this Citation alleges a non-serious violation of the Standard set forth at 29 CFR 1910.314(d)(1) in that:
The exposed non-current-carrying metal parts of the following fixed equipment were noted not to be grounded: (a) Tape machine and staple machine in the loading area, (b) Time clock in loading area, and (c) Sump pump located in the basement compressor room. (R. p.1, Exh. G-1)
Item number 2 of this Citation alleges a non-serious violation of the Standard set forth at 29 CFR 1910.314(d)(4)(iii)(c) in that:
The exposed non-current-carrying metal part of a hand-held electric metal saw in the beef cooler were (sic) not grounded. (R. p1, Exh. G-1)
By his Notification of Proposed Penalty also dated January 10, 1972, the Secretary, pursuant to Section 10(a) of the Act, notified the Respondent of his intention to propose the following penalties, $45.00 as to Item No. 1 and $35.00 as to Item No. 2 (R.p.2, Exh. G-2).
The Respondent pursuant to Section 10(c) of the Act, through a letter from its Executive Vice-President dated January 14, 1971 (1972) gave notice of its intention to contest both the Citation and proposed penalties.
This case was thereafter referred to the Occupational Safety and Health Review Commission (hereinafter Commission) for hearing, pursuant to Section 10(c) of the Act, notice thereof being given to the parties of record by the Commission on January 21, 1972.
On January 31, 1972, the Secretary filed his Complaint with the Commission and Respondent filed its Answer on February 3, 1972.
On February 15, 1972, this case was assigned to the writer for hearing, notice thereof being given the parties of record on the same date.
By notice dated February 23, 1972, this case was scheduled for hearing for March 31, 1972, at Philadelphia, Pennsylvania, which hearing date was postponed to April 21, 1972, upon Respondent's request.
The hearing was held as recheduled in Philadelphia. After an extension of time upon the Secretary's request was granted, the Secretary on June 19, 1972, filed his Proposed Findings, Conclusions and Brief in support thereof. No such submissions have been filed by Respondent.
Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, the representations and admissions of the parties, it is concluded that the substantial evidence on the record considered as a whole supports the following:
FINDINGS OF FACT
The full and accurate name of Respondent is Clover Beef Company. It is a Pennsylvania corporation with its principal office and place of business located at 820 West Girard Avenue, Philadelphia, Pennsylvania. At this location, (hereinafter workplace) Respondent is engaged in the business of receiving, processing, packing and preparing meat products and shipping said products in interstate commerce. In furtherance of this business, Respondent owns and controls all of the machinery and equipment referred to in the Citation herein, and employs 23 employees at its Philadelphia plant. It had gross annual sales for 1971 of approximately $4,000,000.
There are approximately 20 other firms in the Philadelphia area engaged in the same or similar type of business as Respondent, i.e., meat processor and wholesaler, and Respondent ranks itself in the lower 20% as to relative size.
Respondent's employees are represented by Local 195, Amalgamated Meat Cutters and Butcher's Union, AFL-CIO, which union was notified of the proceedings herein. The Citation, Notice of Proposed Penalties and Notice of Time and Place of Hearing were posted at the workplace, ". . . for several weeks" (Tr. 10) after their receipt.
No affected employees or any representative of Local 195 expressed any desire prior to or during the hearing to participate as a party herein. It was stipulated by the parties that no injuries were connected with the alleged violations and that Respondent has no previous history of violations of the Act.
On December 30, 1971, Occupational Safety and Health Compliance Officer Devorris made an inspection of Respondent's workplace. This officer has been engaged in the field of industrial safety and hygiene for the past 32 years and is a Certified Safety Professional and Industrial Hygienist by the American Society of Safety Engineers and the American Industrial Hygiene Association. During this career he has inspected approximately 150 meat processing plants in the area of safety practices. During this inspection Devorris was accompanied by Respondent's acting plant manager, Mr. Jones, and by the union shop steward.
At the loading area of Respondent's workplace, Devorris found an electric stapler, tape machine and time clock, all of which were fixed equipment which were not properly grounded.
The electric stapling machine was connected by a two-strand wire extension cord through a two-pronged plug to a two-hole electric outlet. Proper grounding of this equipment required either a three-strand wire connection to the properly grounded outlet, or the proper use of an adaptor to fit into the two-hole electric outlet. This machine was not properly or effectively grounded when observed during this inspection.
The electric tape machine was connected by a three-strand wire cord, through an adaptor to a two-hole electric outlet. However, the "pig-tail" or ground wire of the adaptor was hanging free, not properly connected to the electric outlet receptacle and thus this machine was not properly or effectively grounded when observed during this inspection.
The electric time clock was connected by a two-strand wire through a two-pronged plug to a two-hole electric outlet and was not properly grounded when observed during this inspection.
In the basement area of Respondent's workplace the Compliance Officer found an electric sump pump used for pumping water which was connected by a two-strand wire through a two-pronged plug to a two-hole electric outlet. This pump was not properly grounded when observed during this inspection.
The failure to properly ground the foregoing items of fixed equipment constitute the violations alleged in Item No. 1 of the Citation herein, which, it is charged, violated the Standard set forth at 29 CFR 1910.314(d)(1).
Immediately adjacent to the loading area at Respondent's workplace there is located a beef cooler, with a door opening onto the loading area. During the inspection of December 30, 1971, Officer Devorris went into this cooler, and found a portable, hand-held electric saw which was connected by a two-strand wire through a two-pronged plug to a two-hole electric outlet. This equipment was not properly grounded when observed during this inspection. The inspecting officer also noted that the floor both in the cooler and in the adjacent loading area was damp, due to traffic in and out of the cooler.
The failure to properly ground this portable piece of equipment constitutes the violation alleged in Item No. 2 of the Citation herein, which, it is charged, violated the Standard set forth at 29 CFR 1910.314(d)(4)(iii)(c).
During his inspection, Officer Devorris, by the use of a testing device, in the presence of Respondent's representative and shop steward, tested the internal wiring at the loading area, and found the internal wiring in the building to be properly grounded. The pieces of fixed and portable equipment identified supra, as connected to this internal wiring system were not properly grounded however, because in effect, as connected, they could not and did not utilize the electrical systems proper grounding.
A closing conference was held by this inspector with Mr. Levinson, the man having over-all responsibility for Respondent's operations, on January 3, 1972, after his return from Florida. Also present at this conference was Respondent's Acting Plant Manager and shop steward who had accompanied Mr. Devorris during the inspection. The violations and Standards were discussed during this conference.
The Assistant Area Director, Mr. Allendorf received Officer Devorris' report of this inspection and reviewed it with him. As a result thereof, Mr. Allendorf specifically determined that the violations observed were not of a serious nature based upon the low probability of death or serious physical harm resulting from the use of this ungrounded equipment, and the relatively low gravity of any injury which might occur.
He further computed the proposed penalties herein by application of three factors, a) probability or likelihood of injury or disease, b) the severity of any injury or disease if any occurred, and c) the extent to which the cited Standards had been violated. Based upon Compliance Officer Devorris' observations during the inspection, he found that approximately 60% of the fixed equipment and approximately 30% of the portable equipment located at Respondent's workplace was not properly grounded. He further determined that the probability factor rated in the lowest range for the fixed equipment and low range for the portable equipment. He also rated the severity factor as to both types of equipment in the low range. Applying these factors together with a reduction in the proposed penalty of 35%, 20% for no previous history of violations, 5% for Respondent's size and 10% for good faith and an additional 50% reduction for abatement, the proposed penalties of $45.00 for Item No. 1 and $35.00 for Item No. 2 were computed. The Citation and Notice of Proposed Penalties were then issued to Respondent on January 10, 1972 (Exh. G-1, 2, 3).
RESPONDENTS POSITION
Respondent was represented in this case by Mr. Levinson. He has been with this business concern for 20 years, during most of this time as a partner. Since its incorporation about two years ago he has been Respondent's Executive Vice-President, the man in charge of Respondent's Philadelphia operations and a major stock holder. He was the only witness appearing on behalf of this Respondent.
In the absence of proposed findings, conclusions or brief, Respondent's position must be gleaned from Mr. Levinson's statements and testimony.
Respondent first contends that all of its electrical work, including the furnishing and installation of the adaptors in question, was done by an independent electrical contractor and hence Respondent should not be held responsible for the alleged violations.
During his testimony, Mr. Levinson conceded that the electric time clock did not have an adaptor and was thus not properly grounded. As to the other pieces of equipment, however, Respondent contends that each had an adaptor in use at the time of the inspection, and pursuant to Article 250-59(a) of the National Electrical Code, made applicable to the conditions at its workplace by the Standard set forth at 29 CFR 1910.309, said pieces of equipment were properly grounded (Exh. R-1).
DECISION
There is no merit in either of Respondent's contentions. As to its first contention, this case does not involve the internal wiring of Respondent's workplace, ostensibly installed by an electrical contractor, which, upon test was found to be properly grounded. It is the improper connection of the pieces of electrical equipment involved, either by the use of two-strand wires or through an adapter not properly installed which constitute the violations herein.
The substantial and creditable evidence of record establishes that the stapling machine, sump pump and electrical portable saw were connected by two-strand wires to two-pronged plugs into two-hole electrical outlets, with no adaptors in use. The electric tape machine was connected by a three-strand wire through an adaptor to a two-hole electrical outlet, but the ground wire of the adaptor was not connected in any way to the grounded electric outlet.
Respondent's contention, through the testimony of Mr. Levinson, that the electric staple machine, tape machine, sump pump and portable electric saw were, on the day of the inspection, connected to the electric outlets through properly installed adaptors is not creditable and is given no weight. The evidence clearly reveals that Mr. Levinson was not present in Respondent's workplace on the day of the inspection, and he had been absent therefrom for approximately the preceding week on vacation. His testimony that he was sure each of the pieces of equipment were grounded through the proper installation of adaptors on the date of the inspection, based upon his use of this equipment or observation of others using the equipment, in light of his many and varied responsibilities and extremely busy and multi-faceted work load at the workplace, is equally not creditable and is given no weight. Mr. Levinson's testimony does reflect a rather thorough understanding of the Act and regulations promulgated thereunder as they pertain to Respondent's type of business. This knowledge included the proper installation of electrical adaptors. He testified concerning his activities as Vice-President of the Boneless Meat Dealers Association in studying the Act, alerting the industry members of the Act's requirements and of forming a safety committee at Respondent's workplace and instituting safety and sanitation procedures in anticipation of expected inspections under the Act. Clearly, he, and the Respondent through this man who was in charge of its Philadelphia plant, had knowledge of the Act's requirements.
As to Respondent's contention that the installation of the adaptors was done by an independent electrical contractor, this defense was interjected through the testimony of Mr. Jones, Respondent's "inside salesman" and acting plant superintendent. This witness was called by the Secretary and this particular testimony elicited through his cross-examination by Respondent (Tr. 94, 95). This witness was non-responsive, evasive, and his testimony indefinite. It is concluded that this testimony has dubious credibility, is insubstantial and no weight is accorded it. However, even if adaptors were provided and installed by an electrical contractor, the proper installation thereof, which Mr. Levinson testified to having knowledge of, was the Respondent's responsibility. The legislative history of the Act makes it clear that the final responsibility for compliance with the requirements of the Act is lodged with the employer (See Senate Report 91-1282, p. 11).
Respondent's reliance on Article 250-59(a) of the National Electrical Code is misplaced on two grounds. First, the regulation set forth at 29 CFR 1910.309 adopting the standards of the National Electrical Code was not effective until February 15, 1972, a month and one half after the inspection (See 36 F.R. No. 157, pp. 15101, 15107, August 13, 1971). Secondly, even if the cited article of the National Electrical Code was in effect on December 30, 1971, the substantial evidence of this record establishes that Respondent was not in compliance therewith in that no adaptors were in use on the instant electric equipment except for the tape machine, and the adaptor in use on this piece of equipment was not properly installed.
The specific determination of the Assistant Area Director based upon the recommendations of the long experienced and highly qualified investigating Compliance Officer, that these violations were of a nature other than serious, is supported by the substantial evidence of record. This record fails to disclose any substantial evidence to the contrary and this determination, on the evidence of this record, is accorded determinative weight (See U.S. v. Shimer, 367 U.S. 374, (1961) 81 S. Ct. 1554 and cases cited at p. 1560).
The violations herein found to exist at Respondent's workplace on December 30, 1971, were corrected within the time period set forth in the Citation by the installation of three-hole electric outlets at this workplace.
The penalties proposed here, $45.00 based upon Item No. 1 and $35.00 based upon Item No. 2 were computed by the Assistant Area Director pursuant to the Secretary's guidelines, which include consideration of the factors set forth in Section 17(j) of the Act. The guidelines established by the Secretary and utilized herein reflect the Secretary's attempt to establish a relatively uniform system of proposing civil penalties and is in accord with the expression of congressional intent appearing at page 16 of Senate Report 91-1282:
We would expect the Secretary, therefore, to develop an internal manual or guide which would include a set of principles to follow in determining the proper amount of civil penalties to be applied to violations under the Act.
It is my opinion, based upon the record in this case, that the penalties proposed herein although of a relatively small monetary amount, will contribute, as far as this Respondent is concerned, to effectuating the objectives of the Act. This case, in my view, falls outside of the Commission's policy annunciated in Secretary of Labor v. J.E. Chilton Millwork & Lumber Company, Inc.,
Due consideration having been given the provisions of Section 17(j) of the Act as applicable to the evidence of record, it is concluded that the proposed civil penalties in the total amount of $80.00 are appropriate.
CONCLUSIONS OF LAW
At all times involved in this case, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.
At all times involved in this case, Respondent furnished employment to its employees at a workplace located at 820 West Girard Avenue, Philadelphia, Pennsylvania and the Act is applicable to such employment within the meaning of Section 4(a) of the Act.
On January 10, 1972, the Secretary, pursuant to the provisions of Section 9(a) and 10(a) of the Act, issued to this Respondent a Citation and Notification of Proposed Penalty in the total amount of $80.00.
On January 14, 1972, pursuant to the provisions of Section 10(c) of the Act, this Respondent timely filed with the Secretary its notification of intent to contest the Citation and proposed penalty. The Secretary thereupon transmitted this case to the Commission which, pursuant to the provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.
On December 30, 1971, the Respondent herein, at its workplace located at 820 West Girard Avenue, Philadelphia, Pennsylvania violated Section 5(a)(2) of the Act by failing to comply with the Occupational Safety and Health Standard promulgated pursuant to the Act as set forth at 29 CFR 1910.314(d)(1) in that it failed to properly ground an electric tape machine, an electric staple machine and electric time clock which were located in the loading area of its workplace and an electric sump pump located in the basement area thereof, which were items of fixed equipment with exposed, non-current carrying metal parts which were liable to become energized, thereby exposing employees regularly using this equipment to the hazard of possible electrical shock.
On December 30, 1971, the Respondent herein at the foregoing workplace, further violated Section 5(a)(2) of the Act by failing to comply with the Occupational Safety and Health Standard promulgated pursuant to the Act as set forth at 29 CFR 1910.314(d)(4)(iii)(c) in that it failed to properly ground a portable hand held electric saw located in the beef cooler at its workplace, thereby exposing employees regularly using this equipment to the hazard of possible electrical shock.
The foregoing violations based upon the evidence of this record were properly determined to be of a nature other than serious by the Secretary's authorized representative.
Due consideration having been given to the provisions of Section 17(j) of the Act as applicable to the evidence of record, and weighing this evidence particularly in relation to the gravity of the violations herein found to exist, it is concluded that the proposed civil penalty in the total amount of $80.00 is appropriate.
Based upon the foregoing findings and conclusions, and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, it is hereby
ORDERED:
That the Citation and civil penalty proposed thereon, dated January 10, 1972, directed to the Respondent herein, be AFFIRMED.
Pursuant to Section 17(j) of the Act, said civil penalty in the total amount of $80.00 is hereby assessed against the Respondent herein, payment thereof to be made to the Secretary within thirty days of the entry of the final order herein.