SECRETARY OF LABOR,

Complainant,

v.

COLECO INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 84-0546

DECISION

BEFORE: FOULKE, Chairman;

MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

Following the investigation of a fatality at one of its facilities, the Secretary of Labor issued a citation alleging that Coleco Industries, Inc. had willfully violated section 5 (a) (1) , 29 U.S.C. 654(a)(1), [[1/]] of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The citation alleged that safety equipment on an elevator, which had inadvertently been set in motion and crushed an employee, was either missing or had been rendered inoperative. Former Review Commission Administrative Law Judge David J. Knight found that Coleco had willfully violated section 5(a)(1) and assessed a $10,000 penalty. Based on the reasons set forth below, the Commission agrees with the judge's conclusions that Coleco willfully violated section 5 (a) (1) and that a $10,000 penalty is appropriate.

I. Factual Background

Coleco is a toy manufacturer with a manufacturing and distribution complex in Amsterdam, New York. Building 8 in Coleco's complex is a ten-story warehouse used to receive, store and ship raw materials and finished products. The building contains two freight elevators, designated numbers 12 (the west elevator) and 13 (the east elevator). The elevators are used to move goods onto the building's upper floors for storage and onto the lower floors for shipping. Most materials moved by the elevators are stored on pallets and moved on and off the elevators by forklifts.

On February 17, 1984, Coleco employee Blaine Lamson was using a forklift to load material onto elevator 12 from the third floor when the elevator unexpectedly began to rise. This resulted in him being crushed to death between the forklift and the top of the elevator hoistway opening. OSHA was notified of the fatality and investigated the incident.

The record in this case reveals the following essentially undisputed facts. On the third floor, elevator 12 opened on its east side. On that side the elevator had a gate, but it did not have a sill plate. (A sill plate is a steel plate used to bridge the gap between an elevator car and the floor at which it is stopped.) With a sill plate in place, forklift trucks pass more easily over the gap. On the elevator's west side there was a sill plate, but no gate. At the time of the fatality, the doors on the east side of the elevator were open, and Lamson had opened the gate on that side to load the elevator.[[2/]]

Because the locking mechanism on the handle that operated the sill plate on the west side of the elevator did not work, and there was no gate on that side, if the sill plate were to fall, it would rest against the elevator doors. If the elevator began to move with the sill plate against the door, the plate could come into contact with stationary components in the elevator shaft and possibly be damaged itself or damage other equipment.

In order to avoid such damage, employees usually wedged a piece of wood between the sill plate handle and the side of the elevator to keep the sill plate upright. Lamson, however, had taken a length of "avis strap," a type of strap used to secure packages to pallets, and tied one end of the strap to the sill plate handle and the other end to the elevator control handle. Unfortunately, this effort apparently failed to secure the sill plate. The sill plate fell, pulling the sill plate handle, which in turn pulled the elevator operating control clockwise and caused the elevator car to rise. Lamson's forklift was partially on the car at the time, and the resulting fatal injury occurred.

On each floor of building 8 were doors that, when open, could provide access to elevators 12 and 13. When closed, the doors would isolate the elevator shafts on that floor. The elevator doors were manually-operated and bi-parting, i.e., when a door was opened, the bottom half would retract into the floor and the top half would retract into the ceiling. The doors rode within vertical rails at the sides of each door opening. Each elevator door was equipped with an electrical interlock switch that was designed to prevent elevator movement when the door was not fully closed. However, doors and rails were often damaged so that some of the doors could not fully close. Even when one set of doors could not fully close, an elevator could only be operated by bypassing the interlocks. Coleco employees accomplished this by installing a jumper cable in the control panel of the elevator engine room. Production demands made it necessary to keep the elevators running, and because the doors and rails were frequently damaged, it was common for employees to operate the elevators with the interlock switches intentionally bypassed.

The east side of elevator 12 was equipped with a gate which, when closed, isolated the car from the elevator shaft in which it moved. The gate moved vertically to open and close, and it was equipped with "contacts" -- electrical devices like those used on door interlocks--that were designed to prevent the elevator from moving when the gate was not fully closed. At the time of the accident, the elevator moved with the east gate in the open position, indicating that the contact switch for that gate was bypassed. The gate on the west side of elevator 12 had been missing for approximately six months at the time of the accident. Coleco had fabricated a gate for the west side; however, it had not been installed by the time of the accident. Since the west gate was missing, the interlock for that gate could not be relied on to prevent the elevator from moving.

The sill plate on the east side of elevator 12 was hinged to the elevator car floor so that it could be raised or lowered. It was also equipped with an interlock that prevented the car from moving if the plate was not in the fully raised position. This interlock also had been bypassed. The sill plate could be raised or lowered by moving a handle in the elevator car. The handle was supposed to lock in position when the plate was upright. However, at the time of the accident, the handle did not lock in position.

Each elevator car's up-and-down movement was regulated by an electrical control in the car. When the control was in its upright, or neutral, position, the elevator would not move. When the control was rotated clockwise, the elevator would move up; and when rotated counterclockwise, the elevator would move down. The knob on the control was supposed to be spring loaded, so that the knob would have to be pulled outward before the control would rotate. However, because the spring-loading mechanism was defective on elevator 12, the control apparently could rotate without the knob being pulled.

Following her investigation of the accident, the Secretary issued a citation charging Coleco with a willful violation of section 5(a)(1) of the Act. Item 1(a) of the citation alleged that Coleco "[e]mployees were permitted to load, unload, ride in and work near" elevator 12 "without adequate precautions taken to prevent the elevator car from moving, when it should not," in that, at the time the elevator moved: (1) all its access (hoistway) doors were not fully closed and not equipped with functioning door interlocks, (2) its east gate was not fully closed and not equipped with a functioning electric contact switch, (3) its west end gate had been removed and the electric contact switch for the gate was not functioning, (4) its west end sill plate lacked a functioning electric contact switch, and (5) its west end sill plate control lever was not functioning and was tied to the elevator's control lever. Item 1(b) of the citation alleged, with respect to elevator 13, that its access doors were not fully closed and lacked functioning door interlocks, and that its car gates lacked functioning electric contact switches.

The citation recommended the following abatement measures: (1) the repair or replacement of all the electric interlocks and contact switches referred to in the citation, (2) the installation of the missing car gate on elevator 12, (3) the repair of elevator equipment malfunctions and nonuse of malfunctioning elevators, (4) the prohibition of the bypassing of electric contact switches and interlocks, and (5) the maintenance of all sill plates in proper condition.

Judge Knight affirmed the citation. He found that the operation of elevators 12 and 13 exposed Coleco employees to hazards that "could cause or would likely cause death or serious physical harm" and that Coleco had actual knowledge of the hazards, which resulted from its failure to use door interlocks, as well as gate and sill plate contact switches. He also found that Coleco had "constructive notice" that the absent preventive devices must be used on its elevators. The judge concluded that the violation was willful because Coleco acted with plain indifference to the requirements of the Act and was "inattentive", to the safety of its employees who used the elevators.

II.

Proof of a Section 5(a)(1) Violation

(a) The Secretary's Prima Facie Case

To prove that an employer violated section 5(a)(1), the Secretary must show: (1) that a condition or activity in the employer's workplace presented a hazard to employees, (2) that the cited employer or the employer's industry recognized the hazard, (3) that the hazard was likely to cause death or serious physical harm and (4) that feasible means existed to eliminate or materially reduce the hazard. United States Steel Corp., 12 BNA OSHC 1692, 1697-98, 1986-87 CCH OSHD 27,517, p. 35,669 (No. 79-1998, 1986).

There is little dispute over the first, third and fourth elements, and the Commission concludes that the Secretary has established those elements of her burden of proof. With respect to the first element, whether the Secretary established that the elevators presented a hazard to Coleco employees, the record clearly shows that the system of interlocks and contacts that would ordinarily prevent Coleco's elevator cars from moving, unless the doors and gates were completely closed had been bypassed, allowing the cars to move whether the doors and gates were open, closed, or missing. Numerous employees testified that they either regularly or occasionally operated the elevators or used forklift trucks to transport freight onto the elevators. The Secretary's elevator expert, Crager, testified that the absence of functioning inter-locks meant that an elevator could operate with its doors opens, which meant that a person or forklift could fall into the open shaft. Crager also testified that the absence of an elevator gate and functioning interlocks was hazardous because a person on a moving car could be struck by a projection in the elevator shaft or fall into a space between the car platform and the hoistway walls. [[3/]] The accident itself demonstrates that the lack of functioning door interlocks permitted an elevator to move while it was being loaded, subjecting the employee doing such work to numerous hazards, including the hazard of being crushed between the moving elevator and the stationary hoistway structure. Also, employees Reese and Farina testified that employees standing on the shop floor occasionally stuck their heads into the elevator shaft to look for or call an elevator, thereby exposing themselves to the hazard of being struck by a moving elevator.

In regard to the third element of proof, we agree with Judge Knight's finding that the hazard of an elevator potentially able :o move with its doors and gates open could cause death or serious physical harm. Coleco has not taken exception to this finding. Here, the hazard caused the death of an employee. See Simplex Time Recorder Co., 12 BNA OSHC 1591, 1597, 1984-85 CCH OSHD 27,456, p. 35,572 (serious violation evident from death of employee).
As to the fourth element of the Secretary's burden of proof, we acknowledge Judge Knight's finding--to which Coleco does not take exception--that after the occurrence of the fatality, Coleco prohibited the operation of unsafe elevators and either immediately repaired them or shut them down. We find that such actions represented a feasible means of eliminating or materially reducing the alleged hazards.

With respect to the remaining element of the Secretary's prima facie case, whether she proved that either Coleco or its industry recognized the cited hazard, the parties strongly disagree. We need not reach the question of industry recognition, however, because the evidence convincingly establishes that Coleco had actual knowledge of the alleged hazards. See Brennan v. Vy Lactos Laboratories, Inc., 494 F.2d 460, 463-464 (8th Cir. 1974) (actual employer knowledge of hazard satisfies general duty clause "recognition" requirement).

We base this finding of employer knowledge on the following evidence. First, Coleco learned of at least some of the hazards alleged in the citation from a letter written on November 18, 1982, by the president of Simmons Elevator Co., which Coleco had hired to service and inspect its elevators. In the letter, Simmons Elevator's president, Ben C. Stanley, wrote to Coleco's president, Arnold Greenberg, regarding the condition of the elevators at the Amsterdam complex. The letter read in part:

Because of their condition and the fact that the people in the plant will never agree to a time when the elevators can be repaired, your production in Amsterdam is in great jeopardy and could be shut down at any time. Also, if a New York State inspector were to come in and check the elevators, he would immediately shut down ten of the thirteen elevators, possibly all of them.

These elevators are in very poor condition; i.e., the doors, gates, rails, just to mention a few items.

I realize that you are not an elevator man ... I just want to make you aware that you are in a potentially disastrous position as far as liability and production.
We have been servicing your elevators for several years ... trying to work through ... your people [including a "Dick Suplicki"]. These people are aware that there is work which needs to be done on the elevators and want the work done. However, there does not appear to be any sort of system whereby the elevators can be shut down in order to make the repairs. It appears that the biggest concern is slowing down production because of elevator shut downs due to repairs.

I think it would be a good idea if I could meet with you ... I could show you some of the problems that exist and how dangerous some of these conditions are ... I think this would be a start ... towards making these elevators safe... we ... want you to be aware of these hazardous conditions, in the hope that ... [they] can be remedied.

The letter also made it clear that Richard Suplicki, Coleco's plant engineer at the time of the fatality, had been advised of the problems. In early 1983, soon after the Simmons Elevator letter was written, Suplicki had been given responsibility for maintenance in building 8, which included elevator maintenance. Suplicki, along with others at the Amsterdam facility, received a copy of the letter from Stanley. Suplicki testified that he merely put the letter in a file he kept on elevators, and he took no action in response to the letter.

The letter, however, clearly informed Coleco that there were serious safety problems with its elevators. Although it did not provide detailed information about the condition of the elevators, the letter specifically refers to the "very poor condition" of elevator doors and gates, both of which figure prominently in this case. We, therefore, reject Coleco's argument that the letter did not identify any specific hazard.

Second, the inadequacies of Coleco's elevators were also brought to its attention by the monthly elevator maintenance reports that Simmons Elevator provided for Coleco. After the conduct of each monthly inspection of Coleco's elevators, Simmons Elevator provided Coleco with check-off sheets that showed the results of the inspection and indicated elevator parts that needed repair or replacement. The sheets sometimes contained handwritten comments about problems with those parts.

According to the check-off sheet for February 9, 1984--eight days before the accident--the front gate for elevator 12 was not being used and the rear gate was missing. The sheets for January of 1984 and November and December of 1983, note that the door and gate interlocks for elevators 12 and 13 were intentionally bypassed and that the "[d]oors [to elevator 13] are being left open while running[,] not good" (emphasis in the original). For October of 1983, the sheet covering elevator 12 states "Hoistway Doors Jumped Out - Unsafe" (emphasis in the original).

These check-off sheets were either given directly to Coleco plant engineer Suplicki or left for him to review. Thus, they provided further notice to Coleco of the cited elevator hazards. We, therefore, conclude that there is no merit in Coleco's arguments that the check-off sheets did not identify a specific hazard, and that the information it received from Simmons Elevator led it to believe that its elevator problems were being corrected.

Finally, a number of Coleco employees testified that their supervisors knew that elevators 12 and 13 were regularly operated with their doors or gates open, as well as with their door and gate interlocks bypassed, and that the rear gate for elevator 12 was missing. One employee testified that he "ran the elevator for a long time and ... 90% of the time they [the doors and gates] didn't work, especially the gates." That same employee also testified that he would tell his supervisors about doors not closing and gates not working and that the supervisors "would tell [you] that they would fix them but they didn't." Other employees testified to the same effect and also that even though their supervisors knew the elevators operated with their doors or gates open, the supervisors told the employees to continue to run the elevators until the elevators stopped functioning. We find that this employee testimony further establishes that Coleco had actual knowledge of the alleged hazards at elevators 12 and 13.

Based on the above cited evidence, we conclude that the Secretary has established that Coleco had actual knowledge of the alleged hazards presented by the nonfunctioning door and gate interlocks and unclosed doors on elevators 12 and 13, as well as the missing gate of elevator 12. Accordingly, we find that the Secretary has proven all the elements of a section 5 (a) (1) violation. However, we find that the Secretary failed to prove that either Coleco or its industry recognized the hazard created by the lack of a functioning electrical contact switch for the sill plate in elevator 12 and we, therefore, vacate item 1(a) (4) of the citation. We also vacate item 1(a)(5) of the citation, regarding the nonfunctioning sill plate control lever. Judge Knight concluded that the allegation was a "peripheral issue ... not within the proof of the section 5 (a) (1) charge." Since the Secretary relies on the judge's decision, she apparently does not wish to pursue the allegation; we therefore affirm the judge as to this allegation.

(b) Coleco's Affirmative Defenses

Coleco argues that the citation is defective because it specifies only the means of abatement, and it does not specify a hazard. Under Commission precedent, Coleco argues, a hazard must be defined in such a way that the citation apprises the employer of its obligations, and identifies conditions or practices over which it can reasonably be expected to exercise control. Coleco relies on Pelron Corporation, 12 BNA OSHC 1833, 1835, 1986-87 CCH OSHD 27,605, p. 35,872 (No. 82-388, 1986), citing Davey Tree Expert Co., 11 BNA OSHC 1898, 1899, 1983-4 CCH OSHD 26,852, p. 34,399 (No. 77-2350, 1984). Coleco's argument is without merit. The citation here clearly identifies hazardous conditions over which Coleco exercised control. The citation alleges that:

Employees were permitted to load, unload, ride in and work near Freight Elevator #12 [and 13] ... without adequate precautions taken to prevent the elevator car from moving, when it should not ....

Thus, the crux of the hazard alleged by the Secretary was Coleco's failure to prevent employee exposure to elevators that could move unexpectedly.
Coleco also appears to argue that the citation is defective because it fails to specify generic hazards. There is no merit to this suggestion. The Secretary is not required to frame a section 5(a)(1) hazard in generic, i.e., broad, general terms. Davey Tree, 11 BNA OSHC at 1899, 1983-84 CCH OSHD at p. 34,399. Moreover, the circumstances of the accident and the testimony at the hearing--that employees could fall into an open shaft while working outside the shaft, be struck by a projection in the shaft while riding the elevator or be struck by the elevator while calling for the elevator--establish the existence of broad, generic hazards.

Coleco also argues that the Secretary's failure to adopt an American National Standards Institute ("ANSI") standard on elevators [ANSI A17.1-1971, entitled "Elevators, Dumbwaiters, Escalators and Moving Walks"] as an OSHA standard under section 6(a) of the Act, 29 U.S.C. 655(a), should preclude her from attempting to enforce it under section 5(a)(1). Coleco further claims that the Secretary's failure to adopt the ANSI standard improperly subjects it to dual state-federal enforcement in that it will have to comply with the ANSI elevator standard and the New York State elevator code.[[4/]] Both of these arguments are without merit.

The Secretary is not attempting to enforce the ANSI standard here, but is relying on it as general evidence of the hazards presented and to show industry recognition of the hazards. Such reliance is permitted. Duriron Co., 11 BNA OSHC 1405, 1407 n. 2, 1983-84 CCH OSHD 26,527, p. 33,798 at n. 2 (No. 77-2847, 1983), aff'd, 750 F.2d 28 (6th Cir. 1984). Because we find that Coleco acquired knowledge of the hazards through its own supervisors and the warnings of Simmons Elevator, we do not rely on the ANSI standard as evidence of industry recognition.

In arguing that it is being forced improperly to comply with both the state elevator code and the requirements of the general duty clause, Coleco alleges that the New York State code does not require certain of the measures the Secretary would have Coleco implement of its elevators to enhance employee safety. However, this fact alone does not establish that Coleco is exempt from compliance with the general duty clause. As the United States Court of Appeals for the First Circuit stated in Puffer's-Hardware v. Donovan, 742 F.2d 12, 16 (1st Cir. 1984):

There is nothing in either the language of [the] Act or its history that indicates that Congress intended compliance with the minimum standards of applicable state law to create an exemption from the general duty clause.

Consequently, Coleco's argument is rejected.

Finally, Coleco argues that it was improperly cited under section 5(a)(1), because specific OSHA standards apply to its door interlocks and sill plates. Since we do not base our finding of a violation on the condition of the sill plates on elevator 12, we need only address Coleco's contention that a specific OSHA wall opening standard addresses the same hazards as the citation's allegation that the elevator door interlocks were bypassed.

The wall opening standard on which Coleco relies is at 29 C.F.R. 1910.23(b)(1)(f), which provides that "[e]very wall opening from which there is a drop of more than 4 feet shall be guarded by one of the following: (1) Rail, roller, picket fence, half door, or equivalent barrier." Coleco points out that the Secretary's elevator expert testified that functioning door interlocks are intended to prevent elevator hoistway doors from being opened when the elevator is not stopped at a particular floor, and that the expert identified two hazards associated with open hoistway doors: (1) persons might fall into the hoistway, and (2) a person might place part of his body into the hoistway and be struck by a moving elevator car. Coleco asserts that it was taking the type of precautions required by the wall opening standard by placing pallets in front of partially-open doors to keep people from falling into the elevator shaft and by closing doors seen to be ajar. The record shows, however, that the precautions taken by Coleco, regardless of whether they were sufficient to withstand a citation issued under section 1910.23(b)(1)(f), did not abate other hazards, not encompassed by that standard, that exist when an elevator door interlock fails to function. The most obvious of these hazards is sudden and unexpected elevator movement. Such movement can have devastating effects when an employee is loading freight on an elevator, as in this case. See Puffer's Hardware, 742 F.2d at 14; St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840, 842 (8th Cir. 1981); Ford Motor Co., 5 BNA OSHC 1765, 1766-67, 1977-78 CCH OSHD 22,106, p. 26,638 (No. 13682, 1977). Moreover, the means of abatement sought by the Secretary here go considerably beyond the picket fences and other barriers contemplated by the wall opening standard. We, therefore, reject Coleco's argument. The citation encompasses hazards that would exist even if there were full compliance with the wall opening standard. Accordingly, we find that Coleco violated section 5(a)(1).

III.

Willfulness

Under Commission precedent, a violation is willful if "it was committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety." U.S. Steel, 12 BNA OSHC at 1703, 1986-87 CCH OSHD at p. 35,675.

Judge Knight found that, although it recognized the hazardous condition of its elevators, Coleco gave overriding consideration to production. He found that Coleco repaired the elevators only when it was convenient to do so, and then only to keep them in operation, not out of any concern for safety. He also found that the only precaution Coleco took to abate the dangerous conditions created by the elevators was to barricade open elevator doors when the elevator was not at the level of the doors. The judge correctly observed that this precaution did not afford any protection to employees on the elevators. He concluded that Coleco "acted with intentional disregard, was plainly indifferent to requirements of the Act, and was markedly inattentive to the safety of its personnel using its elevators[--]all in the name of production."

Coleco argues that the record shows that it was not indifferent to the safety of its employees and that it spent considerable amounts of money and employee time to modernize and repair its elevators. Coleco points out that at the time of the accident, while running at full production, it had shut down elevator 13 for major repairs and had scheduled elevator 12 for repairs after elevator 13 was back in operation. It also notes that it took steps to minimize hazards to employees by barricading open elevator doors.

The record clearly demonstrates that Coleco knew that interlocks and contacts are intended to make elevators operate more safely. It also knew that the interlocks and contacts for elevators 12 and 13 were bypassed on a regular, long-term basis, and that one of the gates to elevator 12 was missing. Coleco had completed construction of a new gate for elevator 12 at least two weeks before the accident occurred, but had failed to install it. Coleco had received ample warning of these and other problems with elevators 12 and 13 from: Simmons Elevator's November 1982 letter; Simmons Elevator's monthly inspection reports during the six months prior to the accident; and its own employees. Nevertheless, at the time of the accident, and after Coleco's door and gate problems had been highlighted by the Simmons Elevator letter, Coleco still allowed elevators 12 and 13 to operate with unsafe doors and elevator 12 to operate without one of its gates. Also, although the record establishes that Coleco expended considerable funds and employee work hours in repairing and maintaining its elevators, and that it had temporarily shut down elevator 13 for repairs, we agree with the judge that "all [Coleco's] ... efforts were designed to insure elevator operation rather than safe elevator operation." The fact that Coleco sometimes blocked access to open elevator doors does not significantly detract from this conclusion. Thus, the evidence clearly establishes Coleco's plain indifference to the safety of its employees, which establishes a willful violation.

Coleco also points to two cases, with allegedly analogous facts, in which the Commission found that violations were not willful, citing R.D. Anderson Construction Co., 12 BNA OSHC 1665, 1669, 1986-87 CCH OSHD 27,500, p. 35,641 (No. 81-1469, 1986) and U.S. Steel, 12 BNA OSHC at 1704, 1986-87 CCH OSHD at p. 35,675.

These cases do not lend support to Coleco. The employer in R.D. Anderson had taken a series of significant steps to comply with the standard cited there. The employer in U. S. Steel had made efforts to abate the cited hazard and had concluded that its employees were not exposed to the hazard. Here, Coleco only addressed its elevator hazards to the extent that the hazards interfered with production. Accordingly, we find that the violation was willful.

IV.

ORDER

Judge Knight assessed the Secretary's proposed penalty of $10,000 for Coleco's willful violation of section 5 (a) (1). After consideration of the penalty factors enumerated in section 17(j) of the Act, 29 U. S. C. 666 (j), we conclude that the assessed penalty is appropriate.

Accordingly, Item 1 of willful citation 1 (with the exception of vacated parts (a) (4) and (a) (5)) is affirmed as a willful violation, and a penalty of $10,000 is assessed.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner


Dated: January 14, 1991


SECRETARY OF LABOR,

Complainant,

v.

COLECO INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 84-0546

DECISION AND ORDER

Appearances:  

For complainant

Patricia M. Rodenhausen, Esquire
Regional Solicitor
U. S. Department of Labor

New York, New York

By:

Harry W. Scott., Jr.,
Esquire

For respondent

W. Scott Railton, Esquire,
and James F. Kearney, Esquire
Reed, Smith, Shaw & McClay
Washington, D. C.

The Event:

An employee of the respondent, Coleco Industries, Inc., a large manufacturer of toys, at its Amsterdam, New York, facility, an the morning of February 17, 1984, working alone drove a forklift truck carrying pallets onto elevator no. 12 in building no. 8. While he was in this process, half on the elevator, it began to rise and he was pinned between the elevator entrance and the forklift truck's seat. The employee was killed.

Statement of Proceedings:

The Occupational Safety and Health Administration of the U. S. Department of Labor (OSHA or complainant) conducted an inspection of the elevators in building 8 over the period February 17 to March 7, 1984. As a result, it issued[[1/]] a citation on May 7, 1984, which respondent duly contested,[[1/]] alleging a willful violation of the general duty clause, 29 U.S.C. 654(a)(1), requiring that each employer furnish his employees with a place of employment free from recognized hazards which might cause death or serious physical harm.[[2/]] A proposed civil penalty in the amount of $10,000 was assessed and abatement was to be accomplished within a month.

Hearings were held on March 25 through 27 and April 29, 1985, with both parties represented by counsel. No affected employee or his representative appeared after due notice (Transcript, hereafter Tr., 4). Post-hearing proposed findings and motions (to impose sanctions) were completed by December 8, 1985. Respondent admits the jurisdictional facts alleged in the complaint (Tr. 4) and I conclude that the Commission's power to decide this matter is proper. 29 U. S. C. 652(3), (5) and 653(a).

The Evidence:

James F. Cahill, an OSHA compliance officer, arrived at building 8 on Friday, February 17, 1984, to investigate the conditions surrounding the death of employee Blaine Lamson that day on elevator 12 in building 8 (Tr. 22-27). This is a 10-story building with shipping done from the second floor (Tr. 87) and is a warehouse facility (Tr. 71) served by two elevators, numbers 12 and 13, on the west and east ends, respectively (Tr. 33, 49). Both elevators are of the same type, but 13 was not in use on that day (Tr. 49). The elevators are used heavily carrying loads for 30 to 40 trucks a day (Tr. 70).

The accident occurred on the third floor (Tr. 29) and according to Mr. Pakenas, respondent's safety coordinator, Mr. Lamson was loading pallets onto elevator 12 with a forklift truck. The elevator began to rise and the employee was pinned between the elevator's entrance and the seat of the truck. When the elevator was lowered, Mr. Lamson was dead (Tr. 31-32). The truck's steering column was broken and the LP gas canister at the truck's rear was bent and flattened (Tr. 33-34, 37).

The truck was halfway onto the elevator (Tr. 36). No one witnessed the event (Tr. 37-38). The elevator, 18 feet long, 9 feet wide and 7 feet high (Tr. 481), with access from either side on most floors, was fitted with bi-parting vertical-type doors. The inside gate was up, but Mr. Cahill saw no gate on the opposite side. The sill plate (a metal, raisable plate bridging the gap between the building's floor and elevator) was down (Tr. 34) and there was none on the operator's side (Tr. 35). The missing gate had been off for about six months Mr. Knapp, the shipping department supervisor, told Mr. Cahill (Tr. 35-36).

An Avis strap, a nylon packing strap, was tied from the sill plate to the sill plate's control level (Tr. 34) and then to the elevator's control lever (Tr. 47, 131-132, and photo exhibits C-2, 4 and 5). The plate's control lever was not operating properly so it was either braced by a piece of wood (photo exhibit C-2) or tied with the Avis strap (Tr. 45).

Mr. Cahill testified that the electric contacts prevent the elevator's operation if the door is open, the gate is up, or the sill plate is down. The elevator was equipped with these contacts (Tr. 38-40, 124-126) so employees and Mr. Knapp, Mr. Suplicki (the plant engineer) and Mr. Pakenas, told Mr. Cahill (Tr. 42).
David Stadel, respondent's manager of safety and environmental services, showed Mr. Cahill reports noting that the contacts were bypassed or jumped (Tr. 40, 66). These are on the records reported to respondent by an elevator maintenance company which inspected the elevators, namely, the Simmons Elevator Comp (Simmons) (Tr. 57-58).

Four months before the accident, from October 1983 through January 1984, Simmons had inspected all of respondent's elevators and exhibit C-6 is the result in the form of checklists (front side) and notes (back side). An "X" on the checklists indicates a negative condition (Tr. 58, 60-61, 65), but this is not explicit (Tr. 85-86). For various dates, there are 12 reports concerning elevator nos. 12 and 13 (Tr. 62, 67). Among other matters, these reports show that the elevators' contact switches were not working and had even been jumped (Tr. 64-65).

Elevator no. 13, according to Mr. Cabill, was used between February 22 and March 7, 1984. It could be operated with its gates and doors open and on February 21, after the accident, employees refused to ride on it. Then it was taken out of service (Tr. 50, 52-55).

Ordinarily, if an elevator developed an operational problem, Mr. Knapp would notify the maintenance department and go on with the regular work (Tr. 70). Mr. Reed, the distribution manager (Tr. 4/29,65), [[3/]] had reported elevator number 12's sill plate malfunction to maintenance on the day before the accident and on the day itself (Tr. 129-130). But since the products had to be shipped, the elevator had to be kept in use (Tr. 70-71 ). According to Mr. Reed's statement to Mr. Cahill, there were continuing problems with the elevators and maintenance worked on them constantly. However, that work is not scheduled to interfere with production and maintenance is done around the shipping schedules (Tr. 72).

Respondent's safety manual contains nothing about elevator safety; in fact, there is no written program or policy covering the safe operation of elevators (Tr. 72-73). According to Mr. Reed's comment to Mr. Cahill, if a problem occurs, an employee is instructed to inform his supervisor and continue working (Tr. 73). Further, and Mr. Stadel also reported this, no preventive maintenance is done; but problems or damage to an elevator are handled as they might occur (Tr. 76). Employees confirmed this to Mr. Cahill adding that a maintenance repair would not be done for a long time (Tr. 74).

Mr. Cahill recommended the maximum civil penalty of $10,000 because 20 employees on all three shifts were constantly exposed to the dangers presented by these elevators and, compounding the hazard, they were subject to the stress of the pressure of production. "It was go, go, go...." (Tr. 79-81).

Richard Suplicki testified that as the plant engineer (assuming that position at the end of 1982), he is responsible for all maintenance of manufacturing machines including elevators (Tr. 134-135). He had no experience with elevators and so an elevator consultant was retained, namely, Simmons through its president, Ben Stanley, and inspections were conducted on a monthly basis (Tr. 135-136).

Simmons used a check-off sheet with comments on the back and in the column labeled remarks. Mr. Suplicki received a copy of these (Tr. 137-138). He would give this to maintenance to make repairs which they could do such as fuse and broken bolt replacement and straightening gates and rails (Tr. 4/29, 8).[[4/]] Simmons did major work such as replacing doors and interlocks and repairing contacts (Tr. 4/29, 32).

Maintenance supervisors report to him and he would expect them to schedule repairs if they saw a malfunctioning elevator. They had no specific instructions; this was just his expectation (Tr. 140-141). Regular inspections are conducted by maintenance men and the findings are reported to the supervisors who would schedule repairs (Tr. 142-143). And Mr. Suplicki would expect that, if a repair had to be done immediately, the department head would be notified and the work arranged to be done. That has happened, but Mr. Suplicki couldn't remember an instance (Tr. 143-144).

He received the Simmons report on the condition of the elevators (exhibit C-6) and gave them to the maintenance supervisor. Mr. Suplicki would "expect" them to investigate as a normal function, but he did nothing to be assured that the repairs were made (Tr. 162-163).

This exhibit shows that in January 1984 the car gates were both "jumped out" on elevator 12 and the hoist doors "need work." "Jumped out" generally means, according to Mr. Suplicki, bypassing the contacts. Similarly, this condition existed on elevator 13 as of December 16, 1983, and the car could operate with the doors open. The Simmons report underscored this condition as "not good." On November 23, 1983, the doors and gates of both 12 and 13 were jumped out. And on October 31, 1983, the hoistway doors on number 12 were jumped out. Here the report underscores "unsafe" (Tr. 165-168).

No one, Mr. Suplicki testified, is ultimately responsible for the maintenance of the elevators. So, in February 1984, he described maintenance as a centralized department and "no one particular person that was responsible" (Tr. 161).

He described the maintenance problems as recurring but not continuous (Tr. 169). As a normal routine he did not check to see if a problem was corrected (Tr. 170).

Mr. Suplicki received a copy of a letter from Mr. Stanley of Simmons to respondent's president, Arnold Greenberg, dated November 8, 1982 (Tr. 155, 160; exhibit C-7). This is a three-page document making three points: 1. the elevators are in "very poor condition;" 2. that respondent's position is "disastrous" concerning potential liability and production; and 3. scheduling of repairs is very difficult due to the need for the elevators.

As a result of this letter and another one, Simmons repaired elevators 12 and 13 between December 1982 and January 1983, according to Mr. Suplicki. Otis Elevator did some cable and mechanism repairs on number 13 in February 1984. By that time, as described below, if respondent could handle some of the repairs, they would (Tr. 171-174).

But the elevators in building 8 do operate 24 hours a day (Tr. 138-139, 146, 174). Mr. Suplicki did not know what instructions are given to employees should they discover a malfunction (Tr. 139). Before February 1984, he did not know that a gate was missing from number 12, but he knew a gate was being fabricated by the maintenance department (Tr. 144) It was not put in place before that accident because of scheduling, i.e., the necessity to close the elevator down for three-quarters of a day (Tr. 145-146). He did not know how long the new, completed gate was in the shop before it was installed (Tr. 146).

The missing gate had been equipped with a contact so it would have had to have been closed to operate the elevator. That contact, Mr. Suplicki learned as a result of his investigation of the accident, was in a good working condition. But it had been deactivated or tied off (Tr. 147-148). The contact on the sill plate of number 12 was not working on the day of the accident. It had not been bypassed and was repaired later (Tr. 152).

Interlocks had been jumped with a wire in the machine room located on the first floor, a room to which only maintenance personnel had access (Tr. 150). But Mr. Suplicki did not know who did this and would prefer to repair rather than jump (Tr. 4/29, 62-63).

Repair work was always necessary on elevators 12 and 13. Their doors and rails were abused by forklifts hitting them and the doors would be difficult to open and close (Tr. 148-149). This is an ongoing situation (Tr. 151) and it would require one to four hours to straighten a door or rail by various means (Tr. 153-154). To prevent this type of damage, employees would be reprimanded (Tr. 154, 155).

When Mr. Suplicki was placed in charge of maintenance in January 1983, the employees in that department were all handymen and not journeymen mechanics. He began hiring experienced men in the various maintenance fields and thus was able to take on more of the work that would have been given to outside contractors (Tr. 4/29, 6, 9). Thus, in late 1982, the maintenance men would not do any work on interlocks but in 1983, they could repair them, gates and doors. Simmons would do only what inside men could not do (Tr. 4/29, 43-49, 61). All repair work was done around production schedules (Tr. 4/29, 57-58).

A system was devised to keep track of work needed to be done and when it was accomplished and how long it took (Tr. 4/29, 10-13; exhibit R-7). Sometime in early 1983, a program of elevator repair was begun as well as weekly inspections by the maintenance department (Tr. 4/29, 17-18, 25-26). Simmons inspected the elevators on a monthly basis (Tr. 4/29, 83).

The letter of November 1982 from Mr. Stanley to Mr. Greenberg (exhibit C-7) generated work done on the elevators (Tr. 4/29, 28). Bids were received, Simmons obtained the contract, and repairs took almost a year (1983) to complete throughout the facility (Tr. 4/29, 29, 35, 55).

Elevator 13 was repaired over the period February 9 to 20, 1984 and these were extensive (Tr. 4/29, 16-17). Elevator 12 was scheduled to be done after that (Tr. 4/29, 20). The repairs to that elevator took about a week before it went back into service (Tr. 4/29, 27).

Five employees in building no. 8 were called by complainant. Uniformly they testified that prior to the accident and going back as far as ten years, the elevators there could be operated with their doors and gates open (Tr. 217, 184-185, 193-194, 222-223, 261-262, 279). The rule was: run them until they stop (Tr. 192, 228, 252). And maintenance would then make repairs (Tr. 209, 256-257, 264, 276) according to two of these employees. Once repaired, the elevators would operate properly for a time (Tr. 197, 285). But not all repairs were made immediately, such as the broken sill plates (Tr. 209). There are assigned personnel as elevator operators; but, if they are not available, any employee will run them (Tr. 184. 197-198, 229-232, 265-266).

These employees reported elevator malfunctions to their supervisors and the plant manager and these saw the abnormalities in any event since they, too, rode the lifts (Tr. 189, 192-1949 216, 22, 225-226, 262, 264 267, 273-274, 280). At one labor-management meeting, it was brought up that elevator doors on number 12 dropped from the second floor down to the first about a month before the accident. It was two weeks before these were repaired (Tr. 267-268).

One employee testified that the elevator control lever on number 12 "sometimes" did not lock into neutral (Tr. 188); and another said it never did (Tr. 225). Still another did see the elevator rise when it should not have but not to the extent that occurred at the accident (Tr. 272). Because door latches did not work, one employee even opened them from the outside (Tr. 274). No employee testifying ever saw an Avis strap used as the deceased used it (Tr. 201, 236-237, 239, 256). Rather, a board had been used to brace the sill plate's handle to prevent it from falling over for about two weeks (Tr. 189, 219, 220-221, 264; exhibit C-2).

The safety switch on the elevator's (no. 12) control panel shuts the elevator down completely. But no instructions were given an its use (Tr. 191, 223-224). One employee was told never to use it (Tr. 198). Since the accident on February 17, 1984, one employee, at least, was instructed to shut off the elevator (Tr. 224). That employee and another were unaware that elevators were equipped with interlocking devices (Tr. 223, 281).

Since the accident, a malfunction is corrected right away or the elevator is shut down (Tr. 211, 228) because the union refused to use an unsafe elevator (Tr. 269).

Forklift trucks or their loads could hit the elevator's closed doors since skids were used to block openings on floors where the doors did not close completely and the elevator was not at that landing (Tr. 211-212, 235). One sill plate which protects the door when open was missing from elevator 12 for probably more than a week (Tr. 205, 221-222, 232, 250, 262, 279).

Elevator number 12 was missing a gate and its new one, made in the machine shop, sat on the sixth floor for months until installed after the accident (Tr. 223, 279). One employee testified that there never had been the second gate on this elevator (Tr. 262).

An employee testifying about his training was taught on the use of the elevator control lever but not about what he should do should the elevator move with the door or gate open (Tr. 227). Another testified the doors would remain up to three inches open and they never closed squarely (Tr. 274). But it was easier to run them with the doors so open (Tr. 282, 284).

Elevator number 13 also ran with open doors (Tr. 28), but another employee indicated that there the gates would not shut but the doors would (Tr. 227). Doors jam (Tr. 233). Supervisors used to "holler" for freight through the open doors into the shaft (Tr. 273-274).

Donald Karl, called by complainant, worked in respondent's maintenance department for three and a half years, at the time of the hearing, repairing elevators. A Mr. Vulo is his supervisor (Tr. 302-303). He testified that the gate missing from elevator 12 had been gone since at least November 1982. He was asked to make another in January 1984 and fabricated a new gate in three days at respondent's machine shop finishing two weeks before the accident. Because of other work, the gate was not installed until after the accident (Tr. 302, 303-304).

The elevators run continuously and, prior to the accident, if any repair could be done in a half-hour, it would (Tr. 309); but there were only two maintenance men and not enough time to maintain all 13 elevators (Tr. 302, 308).

He knew the elevators would operate with the doors and gates open (Tr. 303); he knew that all gates had contacts which were not operative (Tr. 304-305); and that the latching mechanism on the sill plate lever was hard to lock. The maintenance department built that lever (Tr. 306). And five or six months before the accident, he knew that the safety circuits had been jumped. He told this to Mr. Vulo and Mr. Suplicki and he knew that Simmons Elevator Company told them (Tr. 307).

According to Mr. Karl, the doors are the elevators' major problem and take many, many hours to repair (Tr. 307-308).

Before the accident, in 1983, the maintenance department would inspect the elevators on a weekly basis, grease and oil them and make small repairs; after that, it was done daily (Tr. 308-309, 315-316).

Mr. Karl worked with the Simmons Elevator repair personnel and he used their report sheets to inspect the elevators and do the repairs. He kept his own records in a three-ringed notebook (exhibit R-4). There he recorded problems, where he found them, when he did repairs, and how long it took (Tr. 310-312, 318). This was in addition to the respondent's work order and timecard records (Tr. 312). Should another repairman correct a problem, he would not know this until his next inspection (Tr. 330-331). He reviewed the data in his book with Mr. Vulo on a daily basis and thus work assignments were devised (Tr. 322).

The sill plate lever, to which the deceased had tied the Avis strap, had a bent latch so that it was not aligned with the hole locking it in place. The latch would drop into the hole but only after much effort. He did repair this but even before that there was no need for any make-shift device, according to Mr. Karl (Tr. 315-317). On the day of the accident, that sill plate was not equipped with an electrical contact (Tr. 343). Mr. Karl was not told that one was required there (Tr. 343).

Doors must be in near-perfect alignment to run smoothly up and down, but the rails are bent frequently due to the carelessness of forklift operators. This type of damage occurred frequently on both number 12 and 13 elevators (Tr. 313-314). Sill plates are constantly wearing and every three weeks something must be replaced. They take abuse which the doors would without them (Tr. 314-315).

According to safety codes, Mr. Karl testified, if an elevator gate is missing, the elevator cannot operate and that is their condition today. Before the accident, the elevators would continue to run without gates (Tr. 339-341).

Mr. Karl was never instructed to remove bypasses he found in the machine room. If he did, the elevators would stop (Tr. 344). His book, exhibit R-4, shows, however, that interlocks which had been jumped were cleared in certain cases when the underlying problem could be repaired (Tr. 344-348; exhibit R-4 pages 7, 9, 11).

The safety switch on the elevator control plan (exhibit C-5) is for emergency use only; but since the accident, it is used as an added safety feature in conjunction with others (Tr. 350-351).

Elevator number 13 on February 17, 1984, was being repaired and was shut down. Elevator number 12 was to be shut down and repaired when 13 was back in service (Tr. 353).

Bradley Hill works with Mr. Karl in maintenance and has done so for almost two years (Tr. 287-288, 299). During 1982, the elevators were inspected on a monthly basis. He would lubricate bearings and check oil levels (Tr. 293-294). Simmons Elevator inspected monthly also (Tr. 295). Now, respondent's maintenance department inspects daily and an unsafe elevator will be shut down, in fact, both elevators in building 8 could be closed (Tr. 300-301).

David Stadel assumed the position as respondent's Manager of Safety and Environmental Services two or three months before the accident and served as the safety engineer before that (Tr. 358-359, 4/29, 87). As a witness called by complainant, he testified that he had no specific duty in building 8 and its elevators and no specific function with the safety committee (Tr. 359). He coordinates safety, suggests improvements, inspects the facility with the safety committee monthly, and that is the extent of his safety responsibility (Tr. 373-375). Robert Freedman, Director of Human Resources, is the highest ranking employee concerning safety matters (Tr. 370).

According to respondent's handbook, safety is "everyone's responsibility" (Tr. 359). The supervisors in that building (Messrs. Knapp, Reed, Hewitt and Belfance), as part of management, would be responsible for safety there (Tr. 360).

There is no training program in elevator safety. The deceased's use of the Avis strap was unsafe and a violation of company policy as would management's non-action would be if they knew of such use. A supervisor should have removed the strap immediately (Tr. 366-368).

Prior to the accident, Mr. Stadel noticed that the doors on elevator 13 were ajar at the first-floor level and he told Mr. Suplicki and Mr. Reed about it (Tr. 360-361). He told them to correct this without specifying a time. It did not have to be done right away and he did not know of any arrangements made to accomplish the repair. But he did know that it was repaired (Tr. 361-362).

He also told these same men to repair the interlocks on elevator 13 because he saw it operating with the doors open. There was a problem of scheduling the repair and a week later it was done. That was satisfactory to him (Tr. 363-365).

He did not order these gentlemen to repair these conditions: "It was a suggestion." They could have refused and, if the conditions were sufficiently severe, he would take the matter to a higher level (Tr. 375-376).

In December 1983, he was advised that the New York State Department was not enforcing the state's elevator code. That Department made an inspection after the accident but did nothing beyond that (Tr. 371-372).

Called by respondent, Mr. Stadel testified that his function is to improve the safety program and issue the safety manual (Tr. 4/29, 88). When he assumed his position, respondent's accident rate was 12.8 (about 12 employees out of 100 hurt severely enough to require a doctor's care). But no accident occurred on an elevator (Tr. 4/29, 89). Mr. Stadel's education and work experience are heavily weighed in safety matters, but he has had no training in elevator safety (Tr. 4/29, 105-106).

Mr. Stadel's guide for safety matters is the National Safety Council's handbook. He considers this a recognized book and he uses it as a quick reference for many subjects including elevator safety (Tr. 4/29, 91-93).

Mr. Stadel was unable to obtain a copy of the New York State Code on elevator safety (which was not being enforced) from the senior consultant or inspector to whom he spoke in December 1983. Rather he referred to the ANSI code (ANSI A17.1-1971) (Tr. 4/29, 90-91). He ordered a copy of that in December 1983 and received it after the accident on February 23, 1984 (Tr. 4/29, 93-94).

The state investigated the accident on two occasions concerning building 8 and eventually--after first identifying nothing wrong--sent a notice of violation in May 1984 which included two other buildings. Mr. Stadel gave this notice to Mr. Suplicki to correct the deficiencies (Tr. 4/29, 95-99).

William S. Crager, a safety consultant for elevators, moving walks and dumbwaiters, was called as complainant's expert witness. He has been consulting since 1967 (Tr. 478) and has been inspecting elevators since 1923 (Tr. 496). His qualifications are shown on exhibit C-9 (Tr. 479). He served as the chairman of the ANSI A17 committee for 15 years, was chairman of the executive committee, an honorary member and chairman emeritus (Tr. 504). He is a certified safety professional and a registered professional engineer in California. He has worked on the development of many state and local elevator codes (Tr. 509-515).

Mr. Crager inspected the elevators in building 8 and heard the testimony of all of complainant*s witnesses (Tr. 480).

In all of his experience, he has never seen an elevator with such a combination of safety devices made inoperative in order to permit the car to move. This was caused primarily by the lack of maintenance (Tr. 496).

He listed the hazardous conditions which existed for a length of time as: no electric contacts on the sill plate and two are required; no gate, contacts on other gates and doors shorted out; doors left open; and the operating lever was defective since it would not lock into neutral position (Tr. 486-487, 490). Had it locked into position, this accident would not have happened even with the Avis strap wound around the lever and pulling on it (Tr. 494-495, 547).

Gates prevent a person being caught on the projection of a wall while the car is in motion (Tr. 486) and contacts prevent movement if a gate or door should be open so an employee on a forklift would not fall down with the machine or be decapitated (Tr. 491-492).

It is not an acceptable practice to operate a car with the doors open indicating eight contacts have been shorted out even for a day or two (Tr. 498-499). The hazards on this elevator are those with which safety experts are familiar and would "positively" guard against (Tr. 499).

The ANSI Code A17.1 (1971) covers all of these matters: the switch; the gate contacts; the gates; the emergency release switch; the car emergency stop switch; the hinged platform; the door interlocks; prohibition against jumping; and the machine room (Tr. 502-503).

The New York State Code Rule No. 8 covers the operation of elevators in factories and mercantile establishments and covers the matters substantially as the ANSI Code (Tr. 505-506, 508). Most local codes use the ANSI standard as their starting points (Tr. 515-516).

Mr. Crager applied the 1971 ANSI code to these elevators for they underwent major repair or modernization in 1973 (Tr. 517, 518). The sections he enumerated are long existing (Tr. 517). And while the ANSI standard permits exceptions ( 2) to its requirements granted by application, reasonable safety measures during the relaxed period must be assured (Tr. 540).

The National Safety Council's Accident Prevention Manual for Industrial Operations (8th Ed.) is, according to Mr. Crager, only a reference book and not a code so it uses the term "should" implying a permissiveness and not a mandate as the term "shall" is interpreted. At page 265 of the Manual, it reads that interlocks for freight elevators should be used (Tr. 555-557, 565).

But, Mr. Crager pointed out on redirect examination, the Manual directs users to the basic ANSI standard, A17.1 (ch. 7 of the Manual, p. 258) which uses the mandatory term "shall" differentiating it by definition from the permissive "should" (Tr. 561). And respondent has had the Manual in its possession since June 23, 1983 (Tr. 562).

Clifford Reed, called by respondent, is the Distribution Manager coordinating shipping and receiving in buildings 5 and 8 (Tr. 4/29, 65-66). Building 8 is 10 stories tall with three docks on the second floor and two at the first. The elevators are the only way to move goods between the floors and no elevators, no shipping (Tr. 4/29, 67). The elevators had to be kept going for production purposes end it was possible but slower to operate with only one elevator in building 8 (Tr. 4/29 83, 85). In the extreme, it might be possible to ship out of building 4 should both elevators be down in building 8 (Tr. 4/29, 68). The elevators are greased either early in the morning or on Saturdays (Tr. 4/29, 72).

Elevator breakdown is frequent and at times they wouldn't operate at all. Sometimes the employees complained because of non-operation or doors hard to close. But they did not complain about safety conditions (Tr. 4/29, 70-71).

Mr. Reed would notify maintenance should a malfunction occur and, on occasion, would go there (Tr. 4/29, 69). But no maintenance would be scheduled unless an elevator was not working at all (Tr. 4/29, 71).

And he never complained to maintenance on any matter related to safety (Tr. 4/29, 72). He saw elevators operate with doors open about six inches and instructed that they be closed, but employees did not complain about the open doors (Tr. 4/29, 77-78). And, as he recalls, the union never brought up the elevators at the monthly labor-management meetings (Tr. 4/29, 79).

In February 1984, he reported the sill plate condition on elevator 12 to maintenance; and, when nothing was done, he went to report it personally the morning of the day of the accident or day before. It was a constant problem (Tr. 4/29, 73-74).

Mr. Reed saw employees use elevator 12 with one gate missing and one sill plate gone but never reported these matters. And while the doors were difficult to close, he doesn't recall a time when they couldn't be closed completely (Tr. 4/29, 80-81).

Elevator 12 was scheduled for repair when 13 was put back in service (Tr. 4/29, 75).

Respondent's expert, John McAulay, has been a consulting engineer for five years and before that was employed by Otis Elevator Company for 31 years in the Door Group. He was engaged in research and development; his articles have been published; he has taught the subject to new engineers; he holds several patents; and he has belonged to the ANSI A17.1 Committee for 15 years. He is a mechanical engineer and licensed by New York State as a Professional Engineer. He has worked on maintenance of elevators for seven months as a routeman covering a large territory for Otis and this included freight elevators (Tr. 4/29, 107-115; exhibit R-14).

He inspected elevators 12 and 13 in January or February 1985, almost a year after the accident (Tr. 4/29, 136-137). Based on that and the testimony of Messrs. Suplicki, Karl, and Hill (Tr. 4/29, 116), he would rate respondent's maintenance program as an eight out of a possible perfect ten (Tr. 4/29, 117). Its safety program is embryonic but moving in the right direction (Tr. 4/29, 150). While he regards Mr. Karl's program as "stellar" (Tr. 4/29, 117), the eight is based mainly on the outside service company which respondent relied upon. That reliance allowed the eight rating even though respondent--a company with 13 elevators--had no written program covering elevator safety (Tr. 4/29, 122-123, 144-145). The eight rating is not based on the conditions of the elevators in February 1984 but takes into account all of the improvements before and after that date (Tr. 4/29, 153-154, 156). He does not like to see jumpers in a control room, but he considered this in his rating (Tr. 4/29, 148-49). Bypassing creates a hazard, but open doors could be barricaded to prevent people falling from a floor (Tr. 4/29, 158-159).

Mr. McAulay served as chairman of the ANSI Hoistway Committee of A17.1 which renders interpretations of the standards, about 40 a year (Tr. 4/29, 118- 130). In his opinion, because the code is technical and difficult to read without training and preferably hands-on experience, Mr. Suplicki would not understand it because a good knowledge of the operation is first necessary (Tr. 4/29, 121-122, 138, 142). But he never asked Mr. Suplicki if he understood the code, in fact, he never spoke to him beyond a "good morning" (Tr. 4/29, 164). He did not know what training either Mr. Suplicki or Mr. Stadel had (Tr. 4/29, 140).

Mr. McAulay regarded Simmons Elevator elevator maintenance reports (exhibit C-6) as not saying enough. They do not inform respondent as to the floors where a repair is needed or where the doors need work nor where an interlock is jumped out (Tr. 4/29, 123-125, 130). He considered Simmons warning letter to respondent (exhibit C-7) as too broad concerning the conditions and he would not write it in that fashion; but he never spoke to Mr. Stanley of Simmons (the author of the letter) (Tr. 4/29, 160-161).

The New York State Code for Elevators, according to Mr. McAulay's review, does not include a necessity for gates or sill plates. And he does not consider the absence of the latter as creating a hazard. They are permitted but not required by the ANSI code. While, if asked, he would suggest their use, the local code would govern since the ANSI code has no enforcement procedures. He doubts whether Mr. Suplicki could figure all of this out (Tr. 4/29, 130-132, 135).

Contentions of the Parties, Findings of Fact and Conclusions of Law:

Despite respondent's claim that there is no evidence to support findings that it should have recognized the alleged necessity to use interlocks, electric gate contacts and electric sill contact switches to avoid any hazard likely to cause death or serious injury (post-hearing brief, p. 4), I find

1) Respondent had actual knowledge of this specific hazard based on
a) Simmons Elevator Company's letter to respondent's president dated November 18, 1982, (exhibit C-6) in which the general state of disrepair of the elevators is stated to put ". . . you ...in a potentially disastrous position as far as liability and production" (page 1) and "We merely want you to be aware of these hazardous conditions" (page 2) and "... there must be some way around this situation [i.e., production] in order to keep these elevators in safe running condition" (page 2);
b) Respondent acted on this letter and repairs were made by in-house personnel and Simmons, but the latter's monthly reports (exhibit C-6) showed that devices to prevent elevator movement when a door or gate is open were almost continually bypassed month to month and that was described by Simmons to respondent as "not good," "unsafe" and "doors don't latch, need to be fixed for safety;"
c) These monthly reports were received and reviewed by Mr. Suplicki, the plant engineer, and all supervisory personnel in building 8 witnessed the elevators operating with doors and gates open; and
d) Employees were instructed to operate the elevators with doors and gates open and unlatched until they (the elevators) were incapable of further movement. This direction was given because of the absolute necessity for the use of the elevators to continued production round the clock.
Further, respondent had constructive notice that the preventive devices must be used on the elevators. I find

2) Respondent's Manager of Safety and Environmental Services relied on the National Safety Council's handbook and this told him
a) Interlocks and contacts should be used and that he should refer to the ANSI A17.1-1971 standard;
b) He had that handbook in his possession some six months before ever seeking out a copy of the ANSI standard on the proper operation and maintenance of elevators; and
c) In the exercise of minimal diligence, respondent would have discovered the hazard and its prevention through the use of the ANSI standard any explanation of it through its expert, Simmons Elevator Company, who had informed it of the dire consequences of not complying and allowing the malfunctions to continue unabated in its letter of November 18, 1982, (exhibit C-6) which in addition to the unsafe conditions, Simmons warned that should the local authorities inspect, the elevators would be shut down immediately. As discussed below, the thread of one of respondent's defenses is that the local code (New York State Code 8) was the authority here.
In the final analysis, I find

3) Respondent recognized the hazard of an elevator potentially able to move with its doors and gates open; it took steps to repair these deficiencies; but repair was delayed until either employees voiced their fright; complete breakdown was imminent; or production scheduling permitted shutdown. Unfortunately, the latter permit occurred just about the time of the accident.[[5/]]

4) In the meantime while the elevators were in a state of disrepair, employees were given no special instruction--in fact, there was no policy regarding the safe operations of elevators either written or oral, employees were merely shown how to make them go--to mitigate the hazard by using the emergency stop switch to completely shut down an elevator at a floor, rather one employee was told not to use it; or by the assignment of an employee specifically as the full-time operator when interlocks and contacts were jumped out.

5) In this same vein, I find, based on Mr. Crager's evidence, that had the interlocks and contacts been operative on February 17, 1984, and the control lever been capable of locking into the neutral position, the accident would not have occurred even with the deceased's unusual use of the Avis strap wound around that lever. Thus, the consequences of his idiosyncratic, demented or suicidal conduct in using the strap, could have been avoided had an effective safety policy regarding operation and maintenance been in effect.

6) To repeat, the evidence on elevator policy and it is overwhelming by employees and management alike, is that they must run, run, run regardless.

7) Following the accident, no elevator was permitted to operate if it were deemed unsafe but was repaired immediately or shut down.[[6/]]

Based on these facts, I conclude that a violation has been established in that respondent had actual knowledge of the hazard [[7/]] of allowing the operation of elevators 12 and 13 with the interlocks and electrical contacts on the doors, gates (on elevators 12 and 13) and sill plate being bypassed or jumped out (this applies in addition to 12) and that it failed to abate or counter these hazards by instituting timely repair and maintenance programs but allowed the elevators to run for inordinate periods of time in a state of disrepair. It took no steps to instruct employees on operating the elevators as safely as possible when malfunctions existed to accommodate production nor did it assign full-time operators during those periods to assure that a stopped elevator is stopped. The hazard of operating the elevators without these devices could cause or would likely cause death or serious physical harm.

Thus, the elements of a section 5(a)(1), the general duty clause, violation have been shown. St. Joe Minerals, above, at footnote 5.

I further conclude that the violation was willful. That characterization will exist where an employer has violated the Act voluntarily with intentional disregard or plain indifference to the Act.

A prior citation or accident is not necessary to put an employer on notice that a subsequent citation could be deemed willful. Although as relevant as these may be, a "marked inattention to safety" will support and justify a charge of willfulness. St. Joe Minerals, 647 F.2d 840 (8th Cir. 1981) at 848 and note 19 (quoted material).

Respondent contends that such blindness to safety is not present in this case. It reasons that (1) the elevators were absolutely required to continue production; (2) they were subject to great abuse and damage; (3) in November 1982 it began a program of repair after being advised by Simmons that there might be a problem [i.e., "which Simmons thought to exist" (brief p. 46)]; (4) thereafter, Simmons never complained of problems (brief p. 46); (5) the plant engineer moved promptly to build in-house expertise and those personnel spent 2100 hours repairing (exhibit R-12); (6) Simmons continued repair work from December 1982 to February 1984; and (7) only a freak accident defeated respondent's efforts.

Thus, it concludes there is no justification to find a willful violation (brief, pp. 44-49).

These contentions are not supported by the record and I find with reference to them

1) Simmons month to month in 1983 reported the jumps and bypasses by at least "X's" on its inspection reports;

2) On at least three of these, that condition was described with a reference to a danger;

3) Whatever repair work was done was accomplished when production best allowed it; but

4) The rule was that the elevators must run;

5) Employees reported malfunctions to supervisors regularly;

6) Elevator 13 was shut down for repair when breakdown was imminent and employees balked at using it;

7) Respondent produced no evidence other than the hours and money spent on maintenance to show that elevators 12 and 13 were in any better condition at the end of 1983 than they were at the beginning indicating that no preventive maintenance was performed, no safeguards or training were instituted to prevent damage and the time and money expended were only to repair necessary items to forestall shutdowns; and

8) After the accident, no elevator ran unless all safety items were in place and operative yet production was not affected as far as this record would indicate. Hence a safe operation could have been accomplished had more attention been shown.

In St. Joe Minerals, the court affirmed the Commission's violation of section 5 (a) (1) concerning its freight elevators but did not affirm that as willful. Respondent here claims that the fact patterns are comparable and no willfulness may be justified here. In respondent's analysis of that case, it omits to mention that when interlocks were bypassed

An employee was also assigned to assist in opening and closing the doors and to prevent the elevator from moving while being loaded or unloaded . . .
***
...the petitioner's [St. Joe] conduct falls short of plain indifference to the general duty clause. (647 F.2d at 848-849).

There is nothing in the record before me to show any precautions whatsoever, except for barricading open elevator doors to prevent a fall through that area when the elevator was not at that level, taken to protect a person on the lift, loading or unloading it, at a time when safety mechanisms were not operative which was most if not all of the time according to employees as buttressed by the Simmons' inspection reports.

I find that respondent acted with intentional disregard, was plainly indifferent to requirements of the Act, and was markedly inattentive to the safety of its personnel using its elevators all in the name of production. I conclude that respondent willfully violated section 5(a)(1), the general duty clause.

The record is sufficient to show that respondent realized the hazard its elevators 12 and 13 presented through the warnings sounded by Simmons in November 1982. If Simmons did not sufficiently describe the conditions and consequences as its expert, Mr. McAulay, would have done, this does not provide relief. Once it was advised of the hazardous condition which it attempted to correct in a manner configuring with its production schedule, it alone was responsible not Simmons. Brock v. City Oil Well Service, __F.2d__ (No. 85-4375, 5th Cir., July 30, 1986). In any event, Simmons notified respondent in monthly reports to its plant engineer that interlocks on doors were bypassed or jumped and this was unsafe. Mr. McAulay agrees that such action creates a hazard. His abatement plan would be to barricade open doors to prevent falls, a matter not directly connected to this proceeding as explained below.

Respondent was made aware of a hazard contemplated by section 5(a)(1) and allowed it to continue. Therefore, reference to the ANSI standard, the New York State Code and the application to local authorities to do the remodeling and construction of the elevators in 1972-1973 as shown in exhibit C-8, in whatever building those elevators might be are not determinative here. Any of these would put respondent on notice for the necessity of the safety devices specified in each but that notice was sufficiently supplied by Simmons' warnings and respondent, in accordance with its production schedule and in derogation of employee safety, acted on those warnings.

Exhibit C-8 is respondent's application for a building permit to the local authority and concerns elevators but is insufficient to be related specifically to elevators 12 and 13. Whatever elevators they are, their location is the Amsterdam facility. In the application, respondent specifically agrees to be bound by the New York State Construction Code. That application is dated February 15, 1973. Simmons warned respondent in November 1982 that should local authorities inspect, elevators 12 and 13 would be shut down immediately. Simmons was respondent's expert. Respondent acted on its advice. Is there doubt that the local code was applicable to these elevators? Is there doubt that respondent was on constructive notice of the requirements of the local code? Hardly.

Respondent, throughout this proceeding, has argued that this section 5(a) (1) citation must be dismissed because the State of New York regulates the safety of elevator operation (brief pp. 15-19). Under section 667(a) of the Act [29 U.S.C. 667(a)], a state may assert jurisdiction over any safety or health issue where no federal standard is in effect. The argument is that to allow the 5(a)(1) citation here would permit dual enforcement not contemplated by the Act. Earlier in this case, this question was decided;[[8/]] but, if that were respondent's belief that it was regulated by a local authority, it may hardly be heard not to claim that it was not, at least, on constructive notice of the local requirements. Whatever mistake was made in this regard (Mr. Stadel being told by a local state official that the local code was not in effect) may go to the characterization of the violation as willful but not to the issue of constructive notice. Otherwise, to follow respondent's argument to its end, these elevators were subject to absolutely no standard at all. But to the contrary, respondent through the letter and inspection reports of Simmons, was actually aware of each and every deficiency and the elevators' unsafe conditions.

The order below affirms the citation as follows: Respondent willfully violated the general duty clause in that it permitted elevator 12 in building 8 to be operated:

1) Without a functioning hoistway door interlock system;

2) Without a functioning electric contact switch on the car's installed gate;

3) Without a functioning electric contact switch on a gate because the gate itself was not installed;

4) Without a functioning electric contact switch on the car's sill plate; and

5) Without an operating control lever capable of locking into its neutral position.
The safeguards of these items are all designed to prevent elevator movement when it should not or when a mischance occurs. It is the prevention of that which complainant proved by a preponderance of the evidence. The non-locking lever to operate the sill plate contributed to this, but it is a peripheral issue and not within the proof of the section 5 (a) (1) charge.

So, too, the citation is affirmed with regard to elevator 13 for it also, in February 1984, was permitted to be operated

1) Without a functioning hoistway door Interlock system; and

2) Without functioning electric contact switches on its gates.

The limit of complainant's proof makes immaterial respondent's defense that certain standards apply to certain conditions so a 5 (a) (1) charge may not lie. Specifically, 29 C. F. R. 1910.23 (b) (1) requiring protection of wall openings (elevator doors open when elevator not at that level); 29 C. F. R. 1910.178(j) and (n;(11), (12) and 29 C. F. R. 1910.30(a) covering bridge (sill) plates (brief pp. 19-25).

The complainant's evidence presented under the citation and complaint all went to the hazard of chance elevator movement. Expert Crager's statement of the danger presented by an open elevator door exposing the gaping shaft was not pursued and was not specifically addressed to the allegations of the complaint. Had respondent moved to strike that statement, for the reason stated, that motion would have been granted.

The $10,000 civil penalty, the maximum allowable on a charge of willfulness [29 U.S.C. 666(a)], is proposed giving full weight to the gravity of the violations. 29 U.S.C. 666(1). Twenty employees over the three shifts round the clock were exposed to death or serious physical harm. The respondent's commitment to safety, i.e., its good faith, was minimal in that all of its efforts were designed to insure elevator operation rather than safe elevator operation (Tr. 79-81). Civil penalties have as their purpose the encouragement of the Act's main purpose of insuring a safe workplace. Zemon Concrete Corp. v. Marshall, 683 F.2d 176 (7th Cir. 1982). I conclude that the proposed penalty is appropriate.

A review of the corrections to the transcript suggested by complainant in its motion to correct shows them to be proper and they are allowed.

Motion for Sanctions:

Respondent, contending that statements in complainant's brief seriously misstate and mischaracterize the record, asks that sanctions be imposed suggesting that all the pleadings be stricken and the citation be vacated insofar as it alleges willfulness and that an award of attorney's fees and expenses would not be inappropriate. (Respondent's motion to impose sanctions, filed September 30, 1985, pp. 5-6).

This is based on Rule 11 of the Federal Rules of Civil Procedure. That rule makes an attorney signing a pleading responsible for its propriety; and sanctions, such as expenses, may be imposed for a violation. Complainant responded to this (filed December 9, 1985) countering every alleged misstatement.

It appears from the respondent's reply brief (the basis of the motion for sanctions) that the foundation of its motion is complainant's (1) equating a bypass or jump to knowledge of a hazard; (2) his assumption that respondent knew interlocks and contacts were safety devices; and (3) his assumption that respondent knew that failure to use these creates a hazard. None of this has any basis whatsoever in the record according to respondent's motion.

On the theory that those personnel at respondent's facility are intelligent and responsible men, complainant could justifiably infer that they would know from Simmons' correspondence using terms such as disastrous, hazardous, elevators would likely be shut down, and the like, that something involving safety was involved. Further, its maintenance report (exhibit C-6) of October 31, 1983, remarks "Elev. #12 Hoistway Doors--Jumped Out--UNSAFE," surely could support an allegation that respondent knew, or should have known that bypasses create hazards, and that interlocks and contacts are safety devices.

Respondent's motion is not well taken. Complainant's statements of the record and arguments are within the bounds of propriety. Respondent's motion for sanctions is denied.

ORDER:

Based on these findings and conclusions and after considering the parties' proposals, which to the extent shown above are adopted or, otherwise rejected as not supported by the preponderance of the evidence or precedent, it is ordered that the citation issued May 7, 1984, is affirmed in that respondent willfully violated 29 U.S.C. 654(a)(1) in that it permitted elevators 12 and 13 in building 8 to be operated without interlocks and contact switches on the doors and gates and, in addition, permitted elevator 12 to be operated without an electric contact on its sill plate and without an elevator control lever capable of locking into the neutral position. A civil penalty in the amount of $10,000 is assessed therefor.

David J. Knight
Judge

Dated: October 20, 1986
Boston, Massachusetts



FOOTNOTES:

[[1/]] 29 U.S.C. 654(a)(1) provides:

654. Duties of employers and employees
(a) Each employer--
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees[.]

[[2/]] As explained more fully below, the doors of the elevator are part of the building's structure, while the gates are attached to the elevator car. Thus, each elevator has only one set of gates, but has doors on each floor of the building.

[[3/]] We also note that Crager testified, with respect to elevator 12, that in his 58 years of experience with elevators he had never seen an elevator with such a "combination of so many safety devices... made inoperative to permit the car to be put in motion with the required protections such as gates and doors in the open position." He stated that if he had seen the elevator operating that way, he would have recommended that it be "shut down immediately until all safety devices were made to properly operate ..."

[[4/]] New York State authorities also inspected Coleco's elevators after the fatality. They issued Coleco a notice that alleged violations existed at the elevators in building 8. The notice did not refer to the conditions cited by the Secretary.

[[1/]] Under the Occupational Safety and Health Act of 1970, 29 U.S.C. {secs} 651, et. seq., citations are issued after inspection and may be contested within a 15-working-day period. 29 U.S.C {secs} 658 and 659 (a). Respondent's notice of contest is dated May 24, 1984.

[[2/]] The specific allegations are:
Concerning elevator 12:
1. Interlocks not functioning so that elevator could move with its doors open;
2. The elevator gate (east end) did not have a functioning contact so that the elevator could move with the gate open;
3. The elevator gate (west end) was missing and its contact was not functioning;
4. The west end sill plate's contact was not functioning; and
5. The west end sill plate's control level (to raise and lower it) was not functioning.
Concerning elevator 13:
1. Interlocks not functioning so that elevator could move with doors open; and
2. The elevator car gates' contacts were not functioning.

[[3/]] See footnote 4, below.

[[4/]] The pages for the four-day hearing run consecutively for the first three days, March 25, 26 and 27, and then begin again for the April 29 hearing. The transcript for the latter day's hearing is noted as "Tr. 4/29."

[[5]] Given the hazard, it appears that right-minded man do not dispute the possible consequences of death or serious injury. St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840 (8th Cir. 1981) at footnote 9. Thus, it is not necessary to find, based on expert Crager's testimony untouched by cross-examination, that an employee could be decapitated by an elevator moving when it should not.

[[6/]]The evidence by employees to this effect was not objected to and thus the conflict between the press for production versus the feasibility for safe operation and timely repair is resolved. See Fed. R. of Evid. Rule 407.

[[7/]] Assuming respondent could not have known of the requirements of the New York State Code 8 regulating elevators or the ANSI A17.1 (1971) and that the toy manufacturing industry, as the relevant industry here, does not recognize the hazard; this actual knowledge is sufficient under section 5(a)(1), the general duty clause. See Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977) at 910; and cf., Cape & Vinyard Div. of The New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975) at 1152 and n.5.

[[8/]] This question was decided on respondent's application to depose a certain federal official and that permission was denied to it. The decision there is attached hereto as Appendix A and the question raised is not further discussed herein.