SECRETARY OF LABOR,

Complainant,

v.

SPOT-BILT, INC.,
Respondent.

OSHRC Docket No. 79-5328

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

Following an inspection of its Bangor, Maine sport shoe manufacturing plant by a compliance officer of the Occupational Safety and Health Administration, Spot-Bilt, Inc. was cited for allegedly violating three standards pertaining to safe exits.  The citations alleged that Spot-Bilt locked and obstructed an exit door and removed the exit sign from the door.  Administrative Law Judge Richard DeBenedetto concluded that Spot-Bilt did not violate the standards and vacated the citations.  We affirm the judge's disposition.

Spot-Bilt's plant consists of three building segments situated and connected like a "U."  In the center of the "U" is an open courtyard.  The door in question leads from the bottom of the "U" to the courtyard and is the only door leading from the building to the courtyard.  Around the outside of the "U" are nine other doors that provide egress from the plant.  One of these south exits is directly opposite the courtyard door.  The courtyard door was once marked and maintained as an exit but, because Spot-Bilt found that employees were using the door for unauthorized egress during work hours and because of break-ins, Spot-Bilt locked the door permanently and removed the handle and exit sign.  During the inspection, a lawn mower, some shoe carts, and sheets of plywood blocked the way to the door.

The courtyard door is in a large room, referred to as the packing area, about 100 feet in the north-south direction, and 120 feet in the east-west direction.  The south exit directly opposite the courtyard door is the only door in the room leading directly outside the plant.  The east and west walls of the packing area each have two door openings leading to adjacent rooms where other exits from the plant are located.[[1]]  Thus, an employee seeking to leave the room in an emergency would have five potential means of egress even with the courtyard door locked.  Approximately ten employees normally worked in the packing area.

The citations alleged that the courtyard door failed to comply with 29 C.F.R. 1910.36(b)(4), 1910.37(k)(2), and 1910.37(q)(1). These standards provide:

1910.36 General requirements.

(b) Fundamental requirements.

(4) In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied.  No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is [sic] continually on duty and effective provisions are made to remove occupants in case of fire or other emergency.

1910.37 Means of egress, general.

(k) Maintenance and workmanship.
(2) Means of egress shall be continuously maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency
(q) Exit marking.  (1) 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 the occupants.

II
The Secretary argued to the judge that, because the courtyard door had once been an exit, Spot-Bilt was required to maintain it as an exit in compliance with the cited standards unless the company bricked or boarded up the door so as to entirely eliminate any question as to whether the door was or was not an exit.  The Secretary relied on previous cases in which the Commission found employers in violation of section 1910.36(b)(4) by maintaining locked exit doors:  Westinghouse Broadcasting Co., 80 OSAHRC 8/A2, 7 BNA OSHC 2158, 1980 CCH OSHD 24,194 (No. 76-1036, 1980); Winn-Dixie Atlanta, Inc., 78 OSAHRC 44/A2, 6 BNA OSHC 1625, 1978 CCH OSHD 22,762 (No. 76-515, 1978); Techno Products, Inc., d/b/a Techno Truck Manufacturing Co., 76 OSAHRC 13/D1, 3 BNA OSHC 2009, 1975-76 CCH OSHD 20,413 (No. 3624, 1976).  The Secretary argued that, under these cases, any door leading directly to the outside of a building is an exit door that must be maintained in accordance with the cited standards.   The Secretary contended in particular that the second sentence of section 1910.36(b)(4) is an "absolute prohibition against the locking or fastening of a door that provides a means of egress from the inside of a building."

Spot-Bilt argued to the judge that the company did not violate the cited standards because the employees in the packing area had free egress through the south door and the courtyard door was "inoperative" as an exit, not a locked exit as the Secretary maintained.  Spot-Bilt contended that the cases on which the Secretary relied were not dispositive because, in those cases, the locked doors were the only doors leading to the outside from the rooms in question and employees occasionally used the locked doors during their work activities.  Spot-Bilt emphasized that the cited standards do not contain "an absolute prohibition against all closing of former exits," and do not "require that an employer seeking to render an exit inoperable must rebuild a wall in order to achieve that purpose."  Judge DeBenedetto agreed with Spot-Bilt's arguments and vacated the citation.

III
The Secretary relies on several Commission precedents in alleging that the courtyard door violated section 1910.36(b)(4).  In the earliest of the cases, Techno Truck, the Commission found that the employer violated the standard by locking a door leading to the outside of the building, considering it irrelevant that employees had free and unobstructed egress from the building even with the one door locked.  The Commission held that the second sentence of the standard, prohibiting any "lock or fastening to prevent free escape from the inside of the building," creates a requirement independent of the first sentence, which requires that exits be maintained so as to provide free and unobstructed egress from all parts of the building at all times.   Subsequently, in Winn-Dixie and Westinghouse, the Commission relied on this interpretation in finding violations of the standard.

We believe that the Commission's interpretation of section 1910.36(b)(4) in Techno Truck was erroneous.  The purpose of the standards in section 1910.36 is to assure that workplaces have adequate exits in the event of a fire or other emergency.   This purpose pervades the section.  Thus, section 1910.36(b)(1) states, in part:

Every building or structure, new or old, designed for human occupancy shall be provided with exits sufficient to permit the prompt escape of occupants in case of fire or other emergency.

Section 1910.36(b)(2) provides:

Every building or structure shall be constructed, arranged, equipped, maintained, and operated as to avoid undue danger to the lives and safety of its occupants from fire, smoke, fuses, or resulting panic during the period of time reasonably necessary for escape from the building or structure in case of fire or other emergency.

Section 1910.36(b)(3) states:

Every building or structure shall be provided with exits of kinds, numbers, location, and capacity appropriate to the individual building or structure, with due regard to the character of the occupancy, the number of persons exposed, the fire protection available, and the height and type of construction of the building or structure, to afford all occupants convenient facilities for escape.

Section 1910.36(b)(8) requires:

Every building or structure, section, or area thereof of such size, occupancy, and arrangements that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, shall have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions.

Section 1910.36(b)(4) also has as its purpose the provision of adequate emergency egress by requiring "exits . . . arranged and maintained so as to provide free and unobstructed egress from all parts of the building or structure. . . . . " Given this purpose, we do not read the second sentence as creating an independent duty to leave all doors unlocked if there is otherwise free and unobstructed egress from all parts of the building at all times.  The second sentence of the standard cannot be read in isolation.  The purpose of the sentence is to create an exception to the requirement of "free" egress or escape set forth in the first sentence.  That exception refers to buildings such as penal institutions in which it is the common practice to lock all doors leading to the outside. Clearly, section 1910.36(b)(4) precludes an employer from locking all of the doors leading to the outside of a building, but it does not logically follow that the standard precludes the locking of a single door when other means of egress are readily available. Accordingly, we overrule Techno Truck, Winn-Dixie, and Westinghouse to the extent they hold that section 1910.36(b)(4) is violated whenever a door leading to the outside of a building is locked.  Instead, we interpret the standard to require the Secretary to prove that the locked door deprives employees of free and unobstructed egress from the areas of the building or structure in which they work in order to establish a violation.

In this case, in addition to the south exit, there were means of egress at each of the four corners of the packing room.  It is difficult to envision any type of emergency in which employees would not be able to use one of the five doors leading from the packing room as a means of egress.  Certainly, the Secretary did not prove otherwise.  Accordingly, the Secretary failed to prove that Spot-Bilt's locking of the south door deprived employees of free and unobstructed egress from all parts of the packing room and therefore he did not show that Spot-Bilt violated section 1910.36(b)(4).

IV
We also conclude that Spot-Bilt did not violate sections 1910.37(k)(2) and 1910.37(q).  These charges were based on Spot-Bilt's removal of the "Exit" sign from above the north door and its obstruction of the door with various materials.   However, the reason Spot-Bilt took these actions was to eliminate the door's identity as an exit.  The basis of the Secretary's charges is not that Spot-Bilt obstructed the door and removed the sign but that the company did not go further and brick or board up the door.  We agree with the judge that an employer is not required to brick or board up a door in order to discontinue it as an exit.  In this case, Spot-Bilt took adequate steps to eliminate the use of the door for any purpose and therefore did not violate sections 1910.37(k)(2) and 1910.37(q).

The judge's decision is affirmed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  JUN 20 1984

CLEARY, Commissioner, dissenting:

The majority, having examined a diagram of Spot-Bilt's plant, finds that persons who may be in the packing room when a fire or other emergency occurs have numerous possible means of egress available and it therefore does not matter that one of the doors leading to the outside of the plant was locked and partly obstructed.  Unfortunately, if an emergency arises, the persons whose lives my be endangered will not have the leisure to examine diagrams, but will have to make a rapid decision on how to exit the plant. Should they attempt to exit through the door that is locked, the time they waste may mean the difference between life and death.  To avoid such danger, the Secretary's standards recognize that a building must not only have an adequate number of exits, but that these must be unambiguously identifiable and accessible.  In this case, Spot-Bilt violated those standards by locking and obstructing the courtyard door in the packing room.

Spot-Bilt's packing room had a real need for adequate fire exits.  Cans of flammable liquids were stored throughout the room.  The flammable liquids were used in the room for spray painting and for cleaning residues from the shoes Spot-Bilt manufactured. Despite the presence of "No Smoking" signs, the OSHA compliance officer who inspected the plant observed employees smoking. He also observed improper electrical wiring that could serve as an ignition source.  The compliance officer considered the room to be a high fire hazard area, and the record supports that evaluation.

According to both the compliance officer and Spot-Bilts superintendent, at the time of the inspection there was only one operative exit door from the packing room -- the south door.  The north door leading to the courtyard had once been marked and maintained as an exit, but Spot-Bilt removed the "Exit" sign and locked the door, primarily to prevent employees from leaving the building without authorization during working hours.  The door was also partially obstructed by shoe carts and other materials.  However, photographic exhibits show that the obstructions did not cover the top half of the door, which contained a window.  The presence of the window indicated that the door led to the outside.  Therefore, in an emergency, people might well have attempted to leave the building through the door.  As the compliance officer stated, "In an emergency, if the lights were off . . . people would go for the light, the light on the doorway, and they wouldn't be able to make it out the doorway."

The majority reasons that there were at least five ways in which a person could escape the packing room in an emergency.  But four of these, the doors that led to adjacent rooms instead of directly to the outside, were not marked as exits, and even Spot-Bilt's superintendent did not consider them to be exits.  Thus, there is no reason to conclude that these doors provided free and unobstructed egress from the plant.  Indeed, two of the doors lead to a room which contained aisleways totally obstructed with shoe carts.  Had employees tried to escape through those two doors, they would have found their way blocked and lost precious time.  Of course, it is possible that all employees could have found a safe way out of the packing room in an emergency, but it is unreasonable to interpret the standards in such a way that employees' lives depend on their ability to guess correctly.

In prior decisions, the Commission has interpreted the fire exit standards so as to eliminate the need for guesswork in an emergency. Westinghouse Broadcasting Co., 80 OSAHRC 8/A2, 7 BNA OSHC 2158, 1980 CCH OSHD 24,194 (No. 76-1036, 1980); Winn-Dixie Atlanta, Inc., 78 OSAHRC 44/A2, 6 BNA OSHC 1625, 1978 CCH OSHD 22,762 (No. 76-515, 1978); Techno Products, Inc., 76 OSAHRC 13/D1, 3 BNA OSHC 2009, 1975-76 CCH OSHD 20,413 (No. 3624, 1976).  The majority now overrules those decisions and permits employers to lock and obstruct exit doors as long as there is some way for persons to get out of the plant in an emergency.

Essentially, what the majority has done is to take a standard requiring that there should be sufficient exits from a building in the event of fire, and that none of the exit doors should be locked, and convert it into a standard which says there should be a sufficient number of exits from a building in the event of fire.  If the Secretary, as administrator of this statute had chosen to rewrite the standard in this fashion, it is within his province to do so, but it is not within the discretion of this Commission to simply revise a regulation of the Secretary of Labor to delete certain mandates which Commissioners do not agree with.  It is not possible to read the last provision of this standard to simply create an exception for mental or penal institutions as the majority suggests.  [[1]]  The standard says "No lock or fastening to prevent free escape from the inside of any building shall be installed . . ." [emphasis supplied].  The exception for mental and penal institutions then follows this phrase.  The majority interprets this exception to negate the entire rule.  In my opinion, the standard prohibits locked doors for the obvious reason that a locked door is dangerous in the event of a fire because it could, at a minimum, cause employees to waste valuable time in attempting to exit through it.  This plain import of the standard is distorted by the majority to conclude that only the requirement that there should be sufficient exits is to have any effect.

The majority concludes in support of its position that 1910.36 has as its principal purpose the assurance of adequate exits in the event of fire.  They then recite certain provisions of 1910.36.  However, the regulations governing egress from buildings in the event of fire encompass all of Subpart E of Part 1910 including 1910.35 through 40, and the Subpart is not confined to the number of exits, but also the design of exits, the kinds of exits, and the capacity appropriate to the individual building ( 1910.36(b)(i)(ii) and (iii), 1910.37).  The volume of the standards alone indicates at a glance that the provisions do not stop at enumerating a safe number of exits.

The Judge in the case and the majority agree that an employer is not required to brick or board up a door in order to discontinue it as an exit.  They further conclude that Spot-Bilt took adequate steps to eliminate the use of the door for any purpose, and therefore did not violate 1910.37(k)(ii) and 1910.37(q).  Contrary to the Secretary's position, I agree that the Respondent is not required to brick or board up the door.  However, I do not believe that Spot-Bilt adequately eliminated the door's identity as an exit.  Section 1910.37(q)(ii) states

Any door, passage, or stairway which is neither an exit nor a way of exit access, and which is so located or arranged as to be likely to be mistaken for an exit, shall be identified by a sign reading "Not An Exit," or similar designation, or shall be identified by a sign indicating its actual character, such as "To Basement," "Store Room," "Linen Closet," or the like.

From the preceding, it is apparent that Subpart E provides a clearly discernible scheme as to when doors should be locked and unlocked, and how they should be marked.  The whole Subpart is part of a program for protection of occupants of buildings in the eventuality of fire developed by the National Fire Protection Association.  The program evolved undoubtedly after years of study and experience, and is not to be avoided by the simple expedient of locking a door and piling materials in front of it, nor can the standard blithely be read to mean only that a building is protected against fire if a certain number of exits are provided.

I would reaffirm the Commission's prior decisions interpreting the fire exit standards and would find that Spot-Bilt violated the cited standards as alleged.


The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] A diagram of the physical layout of the plant was introduced into evidence as Exhibit C-1.  The parties agreed that the exhibit accurately showed the layout of the plant, although there was some uncertainty as to whether its scale was entirely correct.  Exhibit C-1 shows four door openings from the packing room into adjacent rooms, and also shows exits to the outside from these adjacent rooms.  The four door openings are located near the northeast, northwest, southeast, and southwest corners of the packing room.

[[1]] The National Fire Protection Association 101-1970 Life Safety Code is identified in 1910.39 as the source of the Secretary's standards in Subpart E of Part 1910.  Section 5-2131 of this document provides

"An exit door shall be so arranged as to be readily opened from the side from which egress is to be made at all tines when the building served thereby is occupied.   Locks, if provided, shall not require the use of a key for operation from the inside of the building."

It is apparent that the provision prohibiting the locking of doors was not simply an afterthought to refer to penal institutions.