ROGGE LUMBER SALES, INC.  

OSHRC Docket No. 491

Occupational Safety and Health Review Commission

October 23, 1973

 

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge Robert N. Burchmore.   Judge Burchmore concluded that Respondent had failed to post a previous uncontested citation alleging 27 non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ).   The Judge further held that Respondent had failed to abate three items of this previous citation within the time period permitted for their correction. He assessed penalties totalling $1,300.

We note that the parties stipulated on review that they are satisfied with the Judge's disposition of the case.   We have reviewed the record and find no prejudicial error therein.

Accordingly, it is ORDERED that the decision of the Judge be and the same is hereby affirmed.

[The Judge's decision referred to herein follows]

BURCHMORE, JUDGE, OSAHRC: On October 19 and 20, 1971, the Secretary of Labor caused an inspection to be made of a planing mill and a sawmill operated by the respondent, Rogge Lumber Sales, Inc., near Bandon, Oregon.   As a result of   the inspection a non-serious citation was issued on November 16, 1971, in which 27 violations of the regulations contained in 29 CFR 1910 were charged; penalties in the aggregate amount of $125 were   proposed, and the final abatement date fixed was December 28, 1971.   The employer did not contest the citation or proposed penalties which therefor became the final oreder of this Commission by operation of section 10(a) of the Occupational Safety and Health Act of 1970.

A follow-up inspection was conducted on January 13, 1972, pursuant to which the Secretary, on January 20, 1972, issued a Notification of Failure to Correct three of the violations charged in the November 16 citation, and issued a new, nonserious citation charging violation of 29 CFR 1903.16(a) through failure to post the original citation.   Penalties in the amount of $4810 were proposed for the failure to correct and $500 for the failure to post.   Timely notice of contest was filed whereby this Commission acquired jurisdiction in the premises.   The proceeding was assigned to the undersigned judge for hearing and determination.

A prehearing conference was held at Eugene, Oregon, on May 1, 1972, at which the   parties agreed to submit the case on a stipulation of facts in lieu of oral hearing.   A stipulation was subsequently filed which sets forth all the facts upon which the parties rely in support of their respective positions.   The stipulation was posted at the place of employment in the manner prescribed by law, together with a notice to employees to notify the judge if an oral hearing was desired.   No employee has requested such a hearing although the time allowed for such request has expired.   Opportunity was afforded for the filing of briefs, but neither the employer nor the secretary filed one.

The pleadings and the stipulation establish that each violation occurred as alleged; the only issue between the parties is the amount of the penalties to be assessed and the adequacy of the consideration that was given to the statutory criteria for the assessment of penalties. The criteria are set forth in section 17(j) of the Act and they include the size of the business of the employer, the gravity of the violation, the good faith of the employer and the history of previous violations.

As alleged in the January 20 citation, respondent failed   until January 13, 1972, to post   the citation that was issued to it on November 17, 1971.   The Secretary proposes a penalty of $500 for that violation and it is stipulated that the penalty proposal was determined "in accordance with Agency procedures in Section B(9)(a)(2) of the Compliance Manual."

The referenced section of the compliance manual provides: "A proposed penalty of $500 shall be assessed for each citation not so posted. The proposed penalty shall not be adjusted nor shall abatement credit be given." That provision constitutes an arbitrary and inflexible rule requiring the proposing of a minimum $500 penalty in every case, and it allows no consideration whatever to be given to the 17(j) criteria.   Section 17(i) of the Act requires that a penalty shall be assessed in each such case of failure to post, but it provides for a penalty in any amount up to $1000, which would manifestly include penalties less than $500.   Since the rule in the Secretary's manual requires a minimum penalty of $500 without exception, its effect would be equivalent to amending the Act.   For the reasons stated, I conclude that the proposal is entitled to no weight and that the statute requires that this Commission assess a penalty de novo, giving due consideration to the statutory criteria in 17(j).

Similar de novo assessment of penalties is required in connection with the respondent's failure to correct three of the original violations.   This is so because in each instance the proposed penalty was arrived at by applying another arbitrary and inflexible rule in the Secretary's compliance manual: Chapter XI, Section B(8)(e).   That rule provides that a penalty of not less than $100 per day shall be proposed for each day that a cited violation continues after the expiration of the abatement period.   Section 17(d) of the Act provides that a penalty up to $1000 per day "may" be proposed for failure to correct a cited violation, but the Secretary's rule precludes the proposing of any penalty less than $100 per day even after due consideration of the 17(j) criteria.   In this case the parties have stipulated that the Secretary did give consideration to   the criteria in arriving at the original penalties for the initial citation.   But, as the Secretary's rule requires, no consideration was given the criteria in arriving at the penalties now proposed for the failure to correct.   The Secretary's proposals are therefor not entitled to be given any weight by this Commission, which must instead consider the statutory criteria and assess appropriate penalties in accordance therewith.

Turning now to the facts relating to the 17(j) criteria it is noted, first, that there is no evidence of any history of previous violations by this employer, although it appears there was a contemporaneous citation at another facility.   It is stipulated that respondent conducts a small operation with a small staff of office personnel and small mill operations at two locations.   Communications between the operations are sometimes not good, and respondent had no personnel familiar with the Act.   It had copies of the rules and regulations but was not familiar with their details, particularly with respect to extensions of time.   Respondent did request more time for abatement but its request was late, being filed on January 9, 1972, and it was therefor denied.

The stipulation reveals that the original citation, which respondent failed to post, was one which was not contested by respondent so no hearing was involved.   Also, respondent timely corrected 24 of the 27 violations cited, in addition to the 16 violations cited at the other mill. Beyond that, the circumstances surrounding each of the three particular violations which respondent failed to correct shed further light on the matter of good faith, as well as the element of gravity of violation.

Failure to maintain an adequate supply of potable drinking water, in violation of section 141(b)(1)(i) of the regulations, was not timely corrected by the employer.   As to this it is stipulated that in prior years respondent had driven wells in a vain effort to find water. After the citation was received, a plumbing firm was contacted for information about water dispensers, but nothing was done, and it was not until after the reinspection that   respondent secured a milk dispenser from a local dairy and that solved the problem.

Failure to provide adequate toilet facilities, in violation of section 141(c)(1)(i), was also corrected only after expiration of the abatement date and after reinspection. Respondent did experience difficulty in obtaining materials locally, but the evidence does not show that such difficulties could not have been overcome within the time allowed.   Rather it is evident that respondent labored under the misapprehension that it could have an extension of time for the asking.

The Secretary considered the statutory criteria and proposed no penalty for either the toilet or the drinking water violation.   A small penalty of $10 was proposed and collected for the remaining offense: failure to provide a walkway of sufficient width for safe employee passage around the end of a gang trimmer at the sawmill, a violation of section 265(c)(4)(i).   Respondent offers no specific matter in mitigation of its failure to correct that violation, except to point out that it was then working on 16 violations cited at its sawmill located at Port Orford, Oregon.

The record shows that Secretary allowed 28 days to elapse between the original inspection and the issuance of the initial citation; that another 42 days were allowed by the Secretary for abatement of each of the violations involved in this proceeding; and that reinspection was not made for 16 days after the abatement date.   It is for those 16 days that a penalty must now be assessed for each failure to correct.

Considering all of the circumstances in the light of the statutory requirements, it is my judgment that the appropriate penalty for failure to post is $100 and that a penalty of $25 per day for 16 days is appropriate for the failure to make timely correction of each of the three originally cited violations.

Premises considered, it is ORDERED that the citation for failure to post be and the same is hereby affirmed and a penalty of $100 is assessed therefor, that the notification of failure to correct items 12, 13 and 18 of the initial   citation be and the same is hereby affirmed and a total penalty of $1200 is hereby assessed therefor, and that this proceeding be and the same is hereby discontinued.