MURIEL MANUFACTURING COMPANY

OSHRC Docket No. 873

Occupational Safety and Health Review Commission

July 26, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with our orders directing review of a decision rendered by Judge Donald K. Duvall. Judge Duvall vacated two items of Complainant's citation in accordance with the parties' stipulation that Complainant would be unable to prove that Respondent violated section 5(a)(2) tf the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") as alleged in these items. Respondent admitted the remaining items of this citation and accordingly the Judge affirmed these items. Respondent also admitted, and the Judge affirmed, two violations of section 8(c) of the Act. An aggregate penalty of $250 was assessed.

Review was directed on the issues whether the Judge gave due consideration to the requirements of section 17(j) of the Act in assessing the penalties and whether he erred by basing his assessment, in part, on the assumption that Respondent would abate the violations within the period of time permitted for their correction. *

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* Review was also directed on the question whether the citation was issued with reasonable promptness. The issue was not raised during the hissue formulation stage of these proceedings. Accordingly, we do not consider it. Chicago Bridge and Iron Company, O.S.H.R.C. Dkt. No. 744, BNA 1 O.S.H.R. 1485, CCH Emply. S. & H. Guide para. . . ., (Rev. Com'n. January 24, 1974).

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We conclude that the Judge's assessment was made according to his independent consideration of the statutory criteria. On the record his assessment is appropriate.

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

CONCURBY: MORAN; CLEARY

CONCUR:

MORAN, CHAIRMAN, concurring: I find that the Judge assessed an appropriate penalty.

Because the respondent's notice of contest challenged only the penalty proposed by the complainant, I agree that we should not consider whether the citation was issued with reasonable promptness as required by 29 U.S.C. 658(a). Secretary v. Losli, Inc.,

CLEARY, COMMISSIONER, concurring: I concur in Commissioner [*3] Van Namee's disposition of this case.

Counsel for the authorized employee representative, the International Ladies Garment Workers Union (I.L.G.W.U.), has taken the position that respondent contested only the proposed penalties in this case. Therefore, it is argued that the citation and the abatement dates it contained should have been deemed final orders of the Commission upon the expiration of the 15 working-day period prescribed for notices of contest under section 10(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). The employee representative's argument on the effect of a contest only to proposed penalties predated the Commission's recent decision in Florida East Coast Properties, Inc., No. 2354 (February 5, 1974), and is consistent with it.

At the hearing, the employee representative introduced evidence to show that respondent had not complied with the abatement requirements for certain items of the citation. n1 This evidence was introduced to rebut the presumption of timely abatement complainant made here, in accordance with its general policy of reducing its proposed penalties by 50% for other than [*4] serious violations.

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n1 The items in question are item 1, concerning housekeeping (29 CFR 1910.22(a)(1); item 4, concerning maintenance of means of egress by the wooden exit doors (29 CFR 1910.36(d)(1); and item 8, concerning point of operation guarding of sewing machines (29 CFR 1910.212(a)(3)(ii)).

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The employee representative's concern for prompt abatement and its participation in these proceedings is commendable. In the normal case its position would be well justified. This case is unusual, however, in that respondent's notice of contest and answer to the complaint both were filed within the 15 working-day period allowed for notices of contest. Both documents contain explanations of the conditions in question. Though the explanations are not free from ambiguity, they may be construed as presenting defenses to each item challenged by the employee representative. It is proper to consider the explanations in the light most favorable to respondent. Florida East Coast Properties, Inc., supra.

Because [*5] of these peculiar circumstances, I would conclude that respondent contested the items in question and that the abatement periods on them were thereby tolled. However remiss respondent has been in maintaining safe and healthful working conditions, it has no legal duty in this particular case to abate the violations in question until the entry of a final order by the Commission, under section 10(b) of the Act.

[The Judge's decision referred to herein follows]

DUVALL, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act) contesting a citation for 14 non-serious violations under Sec 5(a)(2) of the Act, with a total proposed penalty of $320.00, issued by the Complainant on May 3, 1972, against this Respondent, a contract sewer of ladies garments, under the authority of Section 9(a) of the Act. Respondent's notice of contest of the citation is dated May 5, 1972.

In its answer (dated May 24, 1972) to Complainant's complaint (dated May 18, 1972) Respondent admitted the violations shown in the citation as Item No. 2 (29 CFR 1910.22(d)(1)), Item No. 6 (29 CFR 1910.157(a)(1)), [*6] Item No. 7 (29 CFR 1910(d)(3)(iv), Item No. 12 (29 CFR 1910.309(a)), Item No. 13 (29 CFR 1903.2), and Item No. 14 (29 CFR 1904.2 and 1904.3). At the hearing in this matter, duly held before me on September 13, 1972, at Scranton, Pennsylvania, a stipulation was entered into by the parties and accepted by the judge under which, in effect, (1) Complainant amended its Citation and Notification of Proposed Penalty by deleting Item Nos. 9 and 10 thereof and the corresponding subsections (j) and (k) of the Complaint, relating to the standards cited at 29 CFR 1910.215(a)(1) and 29 CFR 1910.215(a)(4), respectively; and (2) Respondent admitted all the remaining violations alleged in the Citation, namely, Item Nos. 1 (29 CFR 1910.22(a)(1)), 3 (29 CFR 1910.23(d)(1)(i)), 4 (29 CFR 1910.309(a)) Tr. 14-17, 26-28).

and (c)(2)(iii)), 8 (29 CFR 1910.212(a)(3)(ii)), and 11 (29 CFR 1910.309(a)). (Tr. 14-17, 26-28).

The amended Citation, showing Item Number, standard violated, description of violation, and required abatement date, and the amended Notification of Proposed Penalty, showing the proposed penalties, read substantially as follows:

Item No. 1 -- 29 CFR 1910.22(a)(1) -- Place of [*7] employment was not kept clean and orderly and in a sanitary condition. Dirt and dust accumulations were prevalent around the perimeter of the working area and in the rest-rooms. -- May 18, 1972 -- $35.00.

Item No. 2 -- 29 CFR 1910.22(d)(1) -- Certificate indicating approved floor load for the plant was not marked on a plate and affixed in a conspicuous place. -- June 2, 1972 -- $0.

Item No. 3 -- 29 CFR 1910.23(d)(1)(i) -- The following flights of stairs, having one open side, did not have a standard stair railing on the open side.

a) Stairway leading to the basement.

b) Stairway leading from rear fire exit.

June 2, 1972 -- $55.00.

Item No. 4 -- 29 CFR 1910.36(d)(1) -- The following means of egress was not continuously maintained free of all impediments to full instant use in case of fire or emergency.

a) Stairway leading to basement -- a broken step was noted.

b) The two wooden exit doors were noted to be very difficult to open.

May 18, 1972 -- $55.00.

Item No. 5 -- 29 CFR 1910.157(c)(1)(ii) and (c)(2)(iii) -- Portable fire extinguisher was not provided in the basement for the protection of both the building structure and the occupancy hazards contained therein. -- May [*8] 18, 1972 -- $35.00.

Item No. 6 -- 29 CFR 1910.157(a)(1) -- The portable fire extinguisher on the first floor was not maintained in a fully charged condition. The pressure gage on this extinguisher indicated an empty condition. -- May 18, 1972 -- $0.

Item No. 7 -- 29 CFR 1910.157(d)(3)(iv) -- The fire extinguisher did not have a durable tag securely attached to show the maintenance of recharge date and the initials or signature of the person who performed the service. -- May 18, 1972 -- $0.

Item No. 8 -- 29 CFR 1910.212(a)(3)(ii) -- The points of operation on at least 10 of the singleneedle sewing machines were not guarded to prevent operators' fingers from passing under the needle. -- June 2, 1972 -- $35.00.

Item No. 11 -- National Electrical Code, NFPA 70-1971, Art. 250-42, as adopted by 29 CFR 1910.309(a) -- The exposed noncurrent-carrying metal parts on the following fixed equipment were not grounded:

a). Bench grinder in the workshop.

b). A tacking machine and a hemming machine.

May 18, 1972 -- $35.00.

Item No. 12 -- National Electrical Code, NFPA 70-1971, Art. 400-5, as adopted by 29 CFR 1910.309(a) -- Flexible cords leading to two sewing machines were not [*9] used in continuous lengths without a splice. -- May 18, 1972 -- $0.

Item No. 13 -- 29 CFR 1903.2 -- The OSHA notice, informing employees of their rights and obligations under the Act, was not posted as required. -- Immediate -- $0.

Item No. 14 -- 29 CFR 1904.2, and 1904.3 -- A log of occupational injuries and illnesses (Form OSHA No. 100) was not being maintained as required. -- May 18, 1972 -- $0.

The sole issue for decision herein is the appropriateness and reasonableness of the proposed penalties under Section 17 of the Act for the alleged violations contested, Respondent contending that such penalties are unjust and unfair considering the "minor nature" of the violations and his alleged immediate correction of them (Tr. 29).

DISCUSSION

The proposed penalties, based on the Notification of Proposed Penalty, as amended, total $250.00, with Citation Item Nos. 2, 6, 7, 12, 13 and 14 carrying no proposed penalties. Complainant's Assistant Area Director (H. Donald Allendorf) gave credible, unrebutted testimony at the hearing that in his review and preparation of the citation and proposed penalties in this case he considered the gravity of each violation, the size of Respondent's [*10] business, Respondent's good faith respecting a safety program, and its previous history of no safety and health violations under the Act, weighing all these factors in accordance with the guidelines prescribed in Complainant's Compliance Manual (Tr. 30-39).

Specifically, in determining the gravity of each violation, Complainant considered (1) the probability or likelihood of injury, grading this factor A, B, C or X in ascending order of probability; (2) the severity of injury, graded on the same scale; and (3) the percentage of items in violation of a particular standard relative to total number of items in Respondent's establishment covered by the same standard. Next, point values were attributed to the letter and percentage ratings as follows: A=1, B=2, C=3 and X=4; 0-15%=1, 15-50%=2, 50-90%=3, and 90-100%=4. Factors (1)-(3) are weighted by multiplying (1) & (2), respectively, by 3, and (3) by 2. Applying this formula to violation Item No. 1 (housekeeping), factor (1) was rated 2 times 3-6, factor (2) was rated 1 times 3-3, and factor (3) was rated 2 times 2-4, for a total point value of 13 which, applied to the table shown on the Penalty Assessment Rating sheets (Complainant's [*11] Exhibit C-2 & C-3), gave an unadjusted penalty of $115 (Tr. 31-36).

The foregoing procedure, with varying rating values for the various violations as evaluated by Complainant, was followed in determining unadjusted penalties for each of the other remaining violations, to wic:

Item No. 2 -- 0

Item No. 3 -- $175.00

Item No. 4 -- $175.00

Item No. 5 -- $115.00

Item No. 6 -- $0

Item No. 7 -- $0

Item No. 8 -- $115.00

Item No. 11 -- $115.00

Item No. 12 -- $0

Item No. 13 -- $0

Item No. 14 -- $0

The proposed penalty for each violation was determined finally by applying four penalty adjustment factors to the foregoing unadjusted penalties. Thus, a 20% reduction was allowed on the basis of Respondent having no previous history of violations under the Act; a 5% reduction was allowed on account of the size of Respondent (less than 100 employees); a 10% reduction was allowed by reason of Respondent's good faith in having an average safety program; and a 50% reduction was accorded Respondent on the assumption that it would abate the cited violations in accordance with the abatement dates prescribed in the Citation (tolled until a final order of the Commission is issued) (Tr. 36-37). [*12] Rounded off, these adjustments resulted in the proposed penalties set forth in the Notification of Proposed Penalty, totalling $320.00, reduced to $250.00 in the Notification as amended.

At the hearing Counsel for the International Ladies Garment Workers Union urged that Respondent be denied the benefit of the 50% abatement credit based on the testimony of record that Respondent had not abated all violations (Tr. 109). While there is evidence of record tending to show non-abatement of certain violations, including Citation Item Nos. 1 (housekeeping), 4 (exit doors), and 8 (machine guards) (Tr. 78-81, 84-86, 91-92, 95-100), Sec. 17(d) of the Act provides that the abatement "period shall not begin to run until the date of the final order of the Commission in the case of any review proceeding under section 10 initiated by the employer in good faith and not solely for delay or avoidance of penalties." Accordingly, in the circumstances of this case it would be premature to grant the Union's request, even if the record clearly showed the extent of non-abatement of each violation. Indeed, it has been held that under Sec. 10(c) of the Act the Commission's jurisdiction and authority [*13] in such cases is limited to the issue of the reasonableness of the abatement period and does not extend to the issue of whether or not abatement has in fact occurred. See In Re Mobil Oil Corporation,

At the hearing (Tr. 52) and in its pleadings (notice of contest and answer), Respondent contended that the proposed penalties were excessive for a small business, and were unjust because the alleged violations were of a minor nature and were promptly corrected. Actually, under Sec. 17(c) of the Act Respondent could be assessed a civil penalty of up to $1,000 for each violation determined not to be of a serious nature. Viewed in this perspective, and noting the evidence of record that, in accordance with Sec. 17(j) of the Act, the proposed penalties took into consideration the size of the business, the gravity of each violation, and Respondent's good faith and history of previous violations, the proposed penalties appear not unreasonable or inappropriate. Indeed, but for the recommendation of the compliance officer who conducted the inspection and Respondent's unrebutted assurance [*14] of abatement, I would have been inclined to assess a penalty for the violation shown at Citation Item No. 6 (under charged fire extinguisher) since, to my mind, the gravity of that violation is no less than the violation shown at Citation Item No. 5 (fire extinguisher not provided in basement), which carried a $35.00 proposed penalty. In any event, under the circumstances of this case I can find no overriding considerations, whether related to the nature of the violations, the size of Respondent's business, or otherwise, which would warrant any modification of the proposed penalties herein in order to best effectuate the purposes of the Act. Cf. Secretary of Labor v. Colonial Craft Reproductions,

While the evidentiary record partially supports Mr. Rosenberg's contention that some of the employees took off the guards he supplied for some of the sewing machines, it also shows that he had no consistent procedure for enforcing that safety provision (Tr. 54-56, 102). It further appears that Respondent is a mediumsized firm in the industry (Tr. 74-75), with about 30 employees and an annual gross volume in the range of $75,000-$175,000 (Tr. [*15] 18-19, 107). Respondent contends that he should have been given a specific amount of time to correct the cited violations before a penalty was levied since, as a small businessman, he did not understand the law until the specific violations were cited to him by the compliance officer at the time of inspection (Tr. 52). The record shows that Part 1910 of the Occupational Safety and Health Standards, including all the violations carrying penalties in this case, was published in the Federal Register on May 29, 1971 (36 F.R. 10466 et seq. ) and the these standards were adopted from previously established industry standards (Tr. 57, 104). Mr. Rosenberg did testify that sometime during 1972 he phoned the executive director of the Atlantic Apparel Association, of which he is a member, for specific information concerning the Act but the Association had no such information available at the time (Tr. 61-62). The record does not show that Respondent made any other efforts to understand the Act's requirements, such as by contacting the nearest OSHA officer for further information prior to the inspection on April 13, 1972. The Act (Section 17) clearly authorized the assessment [*16] of penalties for first violations of the Act and the standards duly promulgated thereunder.

FINDINGS OF FACT

The record herein as a whole contains reliable, probative and substantial evidence to support the following findings of fact:

1. Respondent is Harold Rosenberg, doing business as Muriel Manufacturing Company, a proprietorship, with its principal place of business located at 120 Chestnut Street, Dunmore, Pennsylvania 18512 (J-8, Complainant's Exhibit C-1).

2. Respondent is in the business of contract sewing on ladies' garments and both receives and ships raw materials and finished merchandise across state lines in commerce (J-8, Complainant's Exhibit C-1).

3. The machinery and equipment on the premises of Respondent's workplace were under his ownership or control (J-8, Complainant's Exhibit C-1).

4. Respondent has no history of previous violations of laws or regulations affecting employee health and safety and the alleged violations resulted in no injuries to employees or other persons (J-8, Complainant's Exhibit C-1).

5. Respondent had about 30 employees on an average daily basis and is a small to medium sized business in the apparel industry (J-8, Tr. [*17] 74-75, Complainant's Exhibit C-1).

6. The Citation, Notice of Contest, and Notice of Hearing were promptly posted on the bulletin board at its workplace by Respondent and he received or served on the other parties, as appropriate, all pleadings in this matter (Commission File J-8, 6, 11 and 12, Complainant's Exhibit C-1).

7. Respondent's workplace was inspected on April 13, 1972 by Complainant's compliance officer who reported observing on that date 12 non-serious violations of Complainant's occupational safety and health standards under Sec 5(a)(2) of the Act which violations, carrying proposed penalties totalling $250.00 and more particularly set forth in the Citation and Notification of Proposed Penalty issued on May 3, 1972, as amended by stipulation of the parties on September 13, 1972, being item numbers 1 through 8 and 11 through 14, were admitted by Respondent at the hearing held on September 13, 1972, at Scranton, Pennsylvania (Complaint, Tr. 107).

8. In computing the proposed penalties totalling $250.00 for the 12 violations admitted by Respondent, Complainant considered the appropriateness of each penalty with respect to the size of Respondents business, [*18] the gravity of the violation, Respondent's good faith and history of previous violations (Tr. 36-37).

CONCLUSIONS OF LAW

1. Respondent is and at all times material hereto was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, and he Commission has jurisdiction of the parties and of the subject matter herein.

2. Respondent is and at all times material hereto was subject to the requirements of the Act, including Section 5(a)(2) and the occupational safety and health standards duly promulgated thereunder.

3. The citation for non-serious violation, notification of proposed penalty, notice of contest, notice of hearing, and all pleadings in this matter were properly served or posted in accordance with the notice and service requirements of the Act, including Section 9, and the pertinent regulations duly promulgated thereunder, including Section 2200.7 of the Commission's Rules of Procedure (29 CFR Part 2200; 36 F.R. 17409, 17410 (August 31, 1971)).

4. On April 13, 1972, Respondent was in violation of Section 5(a)(2) of the Act and the following occupational safety and health standards, which were duly promulgated on May 29, 1971, [*19] and enumerated in the Citation issued on May 3, 1972, as items numbered 1 through 8 and 11 through 14:

(1) 29 CFR 1910.22(a)(1)

(2) 29 CFR 1910.22(d)(1)

(3) 29 CFR 1910.23(d)(1)(i)

(4) 29 CFR 1910.36(d)(1)

(5) 29 CFR 1910.157(c)(1)(ii)

(6) 29 CFR 1910.157(a)(1)

(7) 29 CFR 1910.157(d)(3)(iv)

(8) 29 CFR 1910.212(a)(3)(ii)

(11) 29 CFR 1910.309(a), adopting National Electrical Code, NFPA 70-1971, Art. 250-42

(12) 29 CFR 1910.309(a), adopting National Electrical Code, NFPA 70-1971, Art. 400-5

(13) 29 CFR 1903.2

(14) 29 CFR 1904.2 and 1904.3

5. The penalties proposed for the foregoing citation items numbered 1 through 8 and 11 through 14, totaling $250.00, are appropriate, having been determined in accordance with the provisions of Sections 17(c) and (j) of the Act.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, good cause appearing, it is hereby ORDERED, that:

1. Complainant's citation of Respondent for nonserious violations of Section 5(a)(2) of the Act, issued on May 3, 1972, be and hereby is affirmed, with the exception of item numbers 9 and 10 which are hereby vacated.

2. Complainant's notification of proposed [*20] penalty issued on May 3, 1972, be and hereby is affirmed, with the modifications that item numbers 9 and 10 therein are vacated, leaving a total civil penalty of $250.00.