OSHRC Docket No. 531

Occupational Safety and Health Review Commission

August 15, 1973


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



  VAN NAMEE, COMMISSIONER: On June 1, 1972, Judge John J. Larkin issued a proposed decision in the above-captioned case vacating three of four contested items of Complainant's citation.   The fourth item was affirmed.   The Judge assessed no penalty for the violation.   Review of the Judge's proposed decision was directed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ).

We have reviewed the record and find no prejudicial error in the Judge's decision.

Accordingly, it is ORDERED that the Judge's decision is affirmed in all respects.

[Judge's decision referred to herein follows]

LARKIN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C., 651 et seq. (referred to as the Act) to review a "Citation" and "Notification of Proposed Penalty" in the total amount of $140.00, issued by the Secretary of Labor (referred to as the Secretary) pursuant to Section 9(a) and 10(a) respectively of the Act.

The trial was held on April 17, 1972 at Jacksonville Beach, Florida, as a result of a   citation issued by the Secretary on January 20, 1972 and contested by respondent as follows:

29 CFR Section 1910.28(a) -- Scaffold on marine railway without guardrails.

  29 CFR 1910.252(b)(2) -- Input power terminals on A.C. arc welding machine with exposed wire parts; improper terminal connections with U-bolts.

29 CFR 1910.252(b)(4) -- Insulation on electrode lead cables broken in 4 places.

29 CFR 1910.157(c) -- Portable fire extinguishers providing structure and occupancy protection are not provided.

Penalties were proposed in a notification issued on January 20, 1972 in the amounts of $30, $35, $45, and $30 respectively.

The standards cited by the Secretary in his complaint provide more specifically as follows:

1910.28(a)(3) -- Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor.

1910.252(b)(2)(iv)(c) -- Input power terminals, tap change devices and live metal parts connected to input circuits shall be completely enclosed and accessible only by means of tools.

1910.252(b)(4)(ix)(c) -- Work and electrode lead cables should be frequently inspected for wear and damage.   Cables with damaged insulation or exposed bare conductors shall be replaced.   Joining lengths of work and electrode cables shall be done by the use of connecting means specifically intended for the purpose.   The connecting means shall have insulation adequate for the service conditions.

1910.157(c) -- Fire extinguishers shall be provided for the protection of both the building structure, if combustible and the occupancy hazards contained therein.

Respondent is a sole proprietor doing business as Rawls General Repair (Tr. 5-8).   It is engaged in the repair, cleaning, washing, and painting of commercial fishing boats, some of which operate beyond the three-mile limit of the Florida coastline (Tr. 6, 13), and is an "employer" affecting interstate commerce.   It employs six to eight employees (Tr. 8).   Respondent's place of business occupies approximately a half acre at Fernandina Beach, Florida (Tr. 14).   It has two marine railroads, an open-side shed approximately 40 by 50 feet and an enclosed side metal   building used for general storage (Tr. 13, 14).   The business has been operated for approximately 20 years while Mr. Rawls has been employed full-time as a maintenance mechanic for Ranier Company at Fernandina Beach, Florida (Tr. 8).

On January 18, 1972, an inspection was made of respondent's business by the Secretary's Compliance Officer (Tr. 13).   A scaffolding of one of the marine railroads was observed to be without adequate guard rails (Tr. 14, 15).   The Compliance Officer did not measure the distance from the bottom of the scaffold to ground level (Tr. 33).   This distance was less than ten feet (Tr. 57, 58).

The Compliance Officer noted that U-clamps were being used to connect a cable to an arc welder and that the cable contained four broken places (Tr. 15-16).   He did not recall whether the U-clamp and broken places were on a power input cable, an electrode cable or a ground cable (Tr. 34-40).   There are two cables leading from the welder to the point of work or operation (Tr. 70).   One is positive (electrode) and the other negative (ground), and this circuitry makes the electricity effective at the point of welding (Tr. 70, 71).   The defects alleged in the citation and complaint pertained to the ground cable only rather than either the input power cable or the electrode cable (Exh. 1, Tr. 69-72).

The Compliance Officer found no water or soda and acid-type fire extinguishers or established fire station (Tr. 25, 49).   This equipment was considered necessary due to the premises containing the open-side wooden shed (Tr. 51, 52).   The floor of this shed contained saw dust and wood chips (Tr. 52, 61, 62).

Respondent immediately installed three ABC fire extinguishers when the standard was called to its attention (Tr. 62-63).

The respondent has had no seriously injured employees during its prior 20-year history of operation (Tr. 63).


Respondent contests the four alleged nonserious violations   and assessment of proposed penalties of $30, $35, $45 and $30, respectively.

Section 5(a)(2) provides that each employer shall comply with Occupational Safety and Health Standards promulgated under the Act.

Section 17(c), as pertinent, provides that any employer who has received a Citation for a violation of any standard specifically determined not to be of a serious nature may be assessed a civil penalty of up to $1,000 for each violation.

Section 17(j) as pertinent, provides that the Commission shall have authority to assess all civil penalties giving due consideration to the appropriateness of the penalty with respect to the size of the business,   the gravity of the violation, the good faith of the employer, and the history of previous violations.

Part 2200.33 of the Rules of Procedure of the Review Commission, as pertinent provides that the burden of proof shall be on the Secretary to sustain the assertions contained in the Citation and Notification of Proposed Penalty.

Respondent contends that it is not in violation of the platform or scaffold standard as the scaffold was less than ten feet above ground level. The Compliance Officer being honest in testifying admitted that he did not measure the distance. The respondent testified that the scaffold platform was less then ten feet off ground level. In view of the conflicting testimony and the absence of demonstrative evidence or testimony as to specific measurements by the Secretary who has the burden of proof, the record leaves no alternative but a conclusion that the Secretary has failed to sustain the burden of proof. The issue must be decided for the respondent.

Respondent denies that any of the power cables to or from the arc welder were connected by U-bolts or contained any broken places.   It admits that the ground cable contained defects, but contends that the danger involved was minimal.   The citation as descriptive of the alleged violation involving the U-bolts states, "Input power terminals   on AC arc welding machine with exposed wire parts; improper terminal connections with U-bolts." The complaint cites the specific standard as 1910.252(b)(2)(iv)(c), which section is quoted above.   The respondent offered into evidence a photograph of the arc welder in dispute showing the input power terminal with enclosed electrical plug and the end attachment to the machine secured within an enclosed terminal box.   There is no showing of exposed wire parts or terminal connections with U-bolts.   Respondent testified that the alternating current input cable was without splice and U-bolt, and this testimony is substantiated by the photograph.   The record leaves no alternative but a conclusion that the Secretary has failed to prove that respondent was in violation of the standard cited and as alleged in the Secretary's pleading.   This issue is decided for the respondent.

The third item contested in the citation is stated as "Insulation on electrode lead cables broken in 4 places." The complaint alleges ". . . that the insulation on electrode lead cables at #1 marine railway was broken in four places." Respondent denies that the electrode lead cable was broken or damaged in any way.   Respondent's son testified that the facility was inspected by another Federal safety inspector approximately seven to eight months before the inspection in dispute.   This inspector advised respondent that the lead or electrode cable must have connectors at least every ten feet to be stored when not in use.   The electrode cable was replaced at that time to conform with this requirement.   The Compliance Officer recognizes that the cable involved was probably the ground cable and incorrectly identified in the citation as an electrode cable. Hence, it must be concluded that the proof does not conform with the pleadings and this issue must be decided for respondent.

Respondent admits that it did not have water-type fire extinguishers nor was a water supply located at a designated fire station. The defense to the Secretary's proof was that adequate supply was available through a 80-gallon water tank, and hoses used to wash vessels.   Respondent has a wooden structure susceptible to fire and the CO[2] extinguishers available would be ineffective to combat this type of fire hazard.   The alternatives available do not meet the requirements of the standard and the record shows that respondent was in violation of the cited standard.

This leaves for decision a determination of the amount of penalty, if any, that should be imposed.

Respondent was unable to furnish its gross income or annual volume.   It employs six-to-eight employees and its owner has regular employment elsewhere.   The Secretary recognizes respondent as a small employer.

Respondent's owner testified the business has had no serious injuries during its twenty years of operation.   He testified that he is interested in promoting safety and was misled as a result of the earlier inspection that he was not in compliance as he had immediately conformed with the one suggestion brought to his attention.

The gravity of the violation consisted of fire hazard to wooden vessels being repaired and the one wooden structure on the premises.   Although not meeting the standards, water sources were available in the event of fire.   The Secretary considers the violation not of a serious nature and proposes a $30 penalty.

It is concluded that when the gravity of the violation, good faith, history of previous violations and respondent's size are taken into consideration that no penalty should be imposed.

In passing, the Secretary's counsel and compliance officer should be complimented for their fairness and assistance to the respondent at the trial.   Especially, the compliance officer should be complimented for his honesty and fairness in his testimony.   Both speak well of the caliber of the Secretary's staff.


The Secretary has failed to prove that respondent was in violation of Sections 29 CFR 1910.28(a)(3);   1910.252(b)(2)(iv)(c); and 1910.252(b)(4)(ix)(c) and penalties of $30, $35, and $45 are not sustained.   Respondent violated 29 CFR 1910.157(c), but when considered in the light of the size of respondent's business, the gravity of the violation, good faith and history of previous violations, no penalty should be assessed against the respondent.

It is therefore ORDERED:

That the Secretary's Citation for non-serious violation of Sections 29 CFR 1910.28(a)(3); 1910.252(b)(2) and 1910.252(b)(4) is not affirmed and the Citation for nonserious violation of Section 29 CFR 1910.157(c) is affirmed, but no penalty shall be assessed against the respondent.