STOUGHTON BODY, INC.

OSHRC Docket No. 935

Occupational Safety and Health Review Commission

July 7, 1975

[*1]

Before MORAN, Chairman; CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Robert P. Weil dated July 19, 1973, is before the full Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. The issues on review concern only items 1, 5, and 10 of the citation for non-serious violation and part 4 of the citation for serious violation.

The Commissioners agree that the Judge erred in vacating part 4 of the alleged serious violation. The evidence of record indicates that respondent's notice of contest was limited solely to the penalty proposed for this item. Thus, this part of the citation became final by operation of law and is unreviewable. Section 10(a) of the Act; Florida East Coast Properties, Inc., No. 2354 (February 5, 1974). Accordingly, the citation is affirmed as to this. After considering the factors set forth in section 17(j) of the Act, we agree with the Secretary's total proposed penalty and assess that penalty for the four parts of the serious violation.

Concerning items 1, 5, and 10 of the citation for nonserious violation, the Commission [*2] is deadlocked. Rather than further delaying this nearly two-year-old case until a third member is appointed to the Commission, the Commission as presently constituted agrees to dispose of the case at this time.

Accordingly, with respect to items 1, 5, and 10, the decision of the Judge is affirmed by an equally divided Commission. This decision shall have no precedential weight.

Chairman Moran would vacate item 1 because of the invalidity of the reinspection ordered by the Judge, would assess only a penalty of $85 for item 5, and would affirm the Judge's vacating of item 10. Chairman Moran's separate opinion is attached.

Commissioner Cleary would affirm the Judge's finding of a violation in item 1, would agree with the Judge's assessment of a $150 penalty in item 5, and would reverse the Judge and find the presence of a tripping hazard to which respondent's employees were exposed, and therefore find a violation in item 10. Commissioner Cleary's separate opinion is attached.

I

CLEARY COMMISSIONER: The citation for non-serious item I alleged that, because of inadequate ventilation, welders in respondent's main and subassembly areas were subject to welding fumes in contravention [*3] of 29 CFR 1910.252(f)(1)(ii). A penalty of $125 was proposed for this item.

Respondent filed a timely notice of contest as to this item. The Secretary's complaint and respondent's answer framed the issue with respect to this item as whether the cited standard was applicable to respondent's working conditions. At a pretrial hearing on October 4, 1972, the Judge directed the Secretary to reinspect respondent's plant for the purpose of verifying respondent's claim that it had abated many of the alleged violations and therefore should be assessed a reduced penalty.

The reinspection was conducted on October 11, 1972. The hearing took place on October 19 and 24, 1972, during which time item 1 was tried as an alleged failure to comply with 29 CFR 1910.252(f)(1)(ii), in that employees were exposed to harmful welding fumes that allegedly consisted of ozone.

On November 13, 1973, a second reinspection of respondent's plant was conducted, although the purpose of the reinspection is not clear. As a result of tests made on November 29, 1972, the Secretary determined that the hazard associated with the welding area was not excessive ozone, but excessive iron oxide.

On February 9, 1973, [*4] after the hearing but before the Judge issued his decision, the Secretary moved to amend the complaint to allege that the excessive concentrations of iron oxide and the failure to provide respirators constituted a failure to comply with 29 CFR 1910.93. Respondent did not object to the amendment. In fact, on February 23, 1973, it moved to withdraw its notice of contest as to amended item 1 and on March 1, 1973, it submitted a plan for implementing engineering controls to reduce the concentrations of iron oxide.

In his decision of July 19, 1973, Judge Weil affirmed the amended item. Review was then directed on whether the Judge erred in granting the amendment.

On the matter of whether the Judge had authority to order a reinspection, in my opinion the Judge was acting within his powers by suggesting that the Secretary reinspect respondent's plant in order to determine if there had been abatement. Rule 66 of the Commission's rules of procedure requires that the Judge "assure that the facts are fully elicited." Moreover, under both the Commission's rules and well-settled principles of administrative law in general, administrative law judges have wide latitude as to all [*5] phases of conduct of the hearing process. See Fairbank v. Hardin, 429 F.2d 264 (9th Cir.), cert. denied, 400 U.S. 943 (1970); Cella v. United States, 208 F.2d 783 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954). As a representative of the public interest, the Commission is more than "an umpire blandly calling balls and strikes for adversaries appearing before it." Scenic Hudson Preservation Conference v. F.P.C., 354 F.2d 608, 620 (2d Cir. 1965), quoted in Brennan v. O.S.H.R.C. & John J. Gordon Company, Inc., 492 F.2d 1027 (2d Cir. 1974).

Administrative law judges not only have the authority but the duty to call witnesses that are relevant to a case. Aero Corp., 149 N.L.R.B. No. 114, 16 Ad. L. 2d 491 (1964). They can examine witnesses. International Bhd. of Elec. Workers, AFL-CIO v. N.L.R.B., 432 F.2d 965 (8th Cir. 1970); N.L.R.B. v. American American Art Indus., 415 F.2d 1223 (5th Cir. 1969). See rule 66(j) of the Commission's Rules of Procedure. Administrative law judges can even suggest the amendment of a legal theory. Mount Hope Finishing Co., 106 N.L.R.B. No. 95, 3 Ad. L. 2d 640 (1953). The failure of a judge to fully elicit [*6] the facts of a case may constitute an abuse of discretion. Henning v. Gardner, 276 F. Supp. 622, 625 (N.D. Tex. 1967). In some instances a judge may abuse his discretion by not reopening a hearing to take additional evidence. See Brennan v. O.S.H.R.C. & John J. Gordon Co., supra and cases cited therein.

From the foregoing it is clear that the Judge was acting within his authority by requesting the Secretary to conduct a reinspection. Moreover, even if the Judge's action could be characterized as ultra vires, respondent has never raised an objection. In fact, respondent expressly withdrew its notice of contest and agreed to abate the violation. Therefore, the parties' actions are tantamount to a settlement, which in this case is consistent with the Act's purpose and should not be disturbed.

It should also be noted that, had Judge Weil denied the Secretary's motion to amend the citation, the Secretary could have issued a separate citation. That would be impossible at this time, however, because of the six-month statute of limitations contained in section 9(c) of the Act. Thus, not only would the Secretary's case be prejudiced by reversing the Judge's [*7] granting of the amendment, but respondent's employees would be without benefit of an abatement order that would limit their exposure to the admittedly excessive levels of iron oxide.

For these reasons I would affirm the Judge's disposition as to non-serious item 1.

II

Concerning item 5 of the citation for non-serious violation, the issue on review was whether the Judge erred in raising the penalty from $85 to $150. The Judge considered evidence obtained from the first reinspection in his penalty assessment.

As noted earlier, the Judge was acting within his authority in requesting the reinspection, and after the reinspection it was proper to consider the additional evidence in his penalty assessment.

It is also well settled that when an employer contests the Secretary's proposed penalty, the Secretary's assessment becomes purely advisory. The Judge is then required to independently compute an appropriate penalty, giving due regard to the penalty assessment factors listed in section 17(j) of the Act. As a result, the Judge may assess a penalty that is higher than the penalty originally proposed by the Secretary. California Stevedore & Ballast Co. v. O.S.H.R.C., No. 73-3103 [*8] (9th Cir., May 21, 1975).

I would affirm the Judge's assessment of a $150 penalty for this item for the reasons he has assigned.

III

Concerning item 10 of the citation for non-serious violation, the issue on review was whether the Judge had jurisdiction over this item. I agree with the Judge that the Commission had jurisdiction over this item because the notice of contest clearly contested the existence of a violation I disagree, however, with the Judge's vacating of this item.

Respondent was cited for a failure to comply with 41 CFR 50-204-3(c), n1 which requires that storage areas be kept free from accumulation of materials that constitute tripping hazards. Judge Weil vacated this item because there was inadequate proof that there was a lack of sanitation.

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n1 An identical provision is contained in 29 CFR 1910.176(c). Why this was not cited initially is puzzling.

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The standard in question, 41 CFR 50-204-3(c), provides as follows:

Material Handling and Storage

(c) Storage areas shall be kept [*9] free from accumulation of materials that constitute hazards from tripping, fire, explosion, or pest harborage. Vegetation control will be exercised when necessary.

It is apparent that even if sanitation were within the purview of the standard, the standard is designed to cover other hazards, including tripping hazards. The Judge has recognized that respondent's employees were exposed to a tripping hazard; hence, a violation has been proved.

I would reverse the Judge and find a violation as to this item.

MORAN, CHAIRMAN: I would find, contrary to my colleague, that Judge Weil erred in granting the complainant's post-hearing motion to amend the complaint to substitute a violation of 29 C.F.R. 1910.93 for that originally charged. Reversal is required because the Judge departed from his role as an impartial trier of the facts by ordering the complainant to conduct the reinspection that resulted in the complainant's motion to amend.

The Act provides for the Secretary of Labor to be the enforcer of its provisions. The role of the Commission is strictly limited to adjudicatory functions. Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir. 1974); Secretary [*10] v. Wetmore & Parman, Inc., 2 OSAHRC 288 (1973).

A respondent in an administrative proceeding is entitled to a fair hearing by an unbiased and nonpartisan trier of facts. NLRB v. National Paper Co., 216 F.2d 859 (5th Cir. 1954). When a Judge assumes a prosecutorial role, the respondent is denied this fundamental right of due process. Wasson v. Trowbridge, 382 F.2d (2d Cir. 1967); Amos Treat & Co., Inc. v. SEC, 306 F.2d 260 (D.C. Cir, 1962); NLRB v. Phelps, 136 F.2d 562 (5th Cir. 1943). Accordingly, I would find that the Judge's intrusion into the prosecution of the instant case requires vacation of the amended charge.

Furthermore, I would vacate the original charge of noncompliance with 29 C.F.R. 1910.252(f)(1)(ii). Ordinarily, that violation would have become a final order of the Commission because the respondent did not contest it within 15 working days after receipt of the notification of proposed penalty and, therefore, would not be subject to corrective action by the Commission. Secretary v. OSAHRC and Bill Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973); Secretary v. Florida East Coast Properties, Inc., 6 OSAHRC 404 (1974); 29 U.S.C. [*11] 659(a). However, considering the Judge's reservations as to the validity of this charge in conjunction with the complainant's motion to amend, I am satisfied that the complaint intended to release the respondent from the violation as originally charged. Fed. R. Civ. P. 60(b)(5). In such a situation, equity requires that the violation be invalidated. United States v. Jordan, 186 F.2d 803 (6th Cir. 1951), affed, 342 U.S. 911 (1952); Fed. R. Civ. P. 60(b)(5).

I would also find that the reinspection of October 11, 1972, which was conducted pursuant to the Judge's direction at a pretrial conference, resulted in prejudice to the respondent with regard to the penalty assessed for the violation of 29 C.F.R. 1910.107(b)(10).

The respondent was charged with failing to comply with that standard on the basis that a glass panel for illuminating the inside of a paint spray booth was broken. The respondent contested only the penalty of $85.00 proposed for this violation. The inspector who conducted the reinspection on October 11th testified that the charged violation had been corrected. In addition, he stated that the reinspection revealed that six other panels were broken. Relying [*12] heavily on this information, the Judge assessed a penalty of $150.00 for the charged violation.

Review was directed on whether the Judge erred in assessing penalties greater than those proposed by the complainant; I have disagreed with penalty increases in general in a number of other decisions. n2 In this case, the penalty increase is particularly repugnant because of the Judge's intercession into the prosecutorial functions. This improperly tainted his penalty assessment for the reasons previously expressed.

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n2 See, e.g., Secretary v. Painting Unlimited, Inc., 7 OSAHRC 257 (1974); Secretary v. Beall Construction Co., 6 OSAHRC 582 (1974); Secretary v. Luther Marvin Robbins, 5 OSAHRC 719 (1973); Secretary v. California Stevedore and Ballast Co., 4 OSAHRC 642 (1973); Secretary v. Tacoma Boatbuilding Co., 4 OSAHRC 607 (1973); Secretary v. M.A. Swatek and Co., 2 OSAHRC 1276 (1973).

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Item 10 of the "Citation" alleged that the respondent had violated 41 C.F.R. 50-204.3(c) n3 in that [*13] the floors in its warehouse were uneven and contained holes and puddles. In his complaint, the complainant amended the citation to allege a violation of 29 C.F.R. 1910.141(a)(1) which was entitled "Sanitation" and provided that:

All places of employment, passageways, storerooms, and servicerooms shall be kept clean and orderly and in a sanitary condition.

Judge Weil vacated the citation on the basis that there was inadequate proof of a lack of sanitation.

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n3 The text of this standard is contained in Commissioner Cleary's opinion.

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Commissioner Cleary expresses the opinion that 41 C.F.R. 50-204.3(c) is the standard in question. I fail to understand how he has reached this conclusion. The complainant amended the citation in the complaint to allege a violation of 29 C.F.R. 1910.141(a)(1). n4 Furthermore, since the complainant's counsel referred to this standard during the course of the hearing and introduced a copy of it into evidence, it is clear that the case was tried as a violation of 29 C.F.R. 1910.141(a)(1). [*14]

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n4 The Judge stated that 41 C.F.R. 50-204.3(c) is "now 29 C.F.R. 1910.141(a)(1)." This is obviously in error since these two standards were not the same. As noted in footnote 1, 41 C.F.R. 50-204.3(c) is identical to 29 C.F.R. 1910.176(c). However, the Judge's error was not prejudicial since his ruling was based on the text of 29 C.F.R. 1910.141(a) which was the standard in issue.

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Commissioner Cleary finds that complainant has established a violation of 41 C.F.R. 50-204.3(c) in that the uneven floor constituted a tripping hazard. Although 41 C.F.R. 50-204.3(c) refers to tripping hazards, 29 C.F.R. 1910.141(a)(1) is a sanitation standard with no such reference. Accordingly, I conclude that the Judge properly vacated the alleged violation.

[The Judge's decision referred to herein follows]

WEIL, JUDGE: This is a proceeding by the Secretary of Labor under the Occupational Safety and Health Act of 1970, 29 USC Section 651 et seq., for an order affirming citations for serious and non-serious [*15] violations of the Regulations and affirming penalties against respondent aggregating $1780.00.

Respondent, a Wisconsin corporation conducting a business affecting commerce, manufactures cargo trailers at a plant in Stoughton, Wisconsin, where it employs about fifty-eight people. In February 1972 the hourly compensated employees had as their bargaining representative Local 1406, International Association of Machinists, AFL-CIO; but on June 27, 1972, Local 1406 withdrew as bargaining representative; and after due posting no employee representative has appeared in these proceedings. Furthermore although the facts of the case are not the most simple -- the citation for serious violation is in four items and the citation for non-serious violation contains thirteen more -- respondent has appeared throughout pro se in the person of Mr. Donald Wahlin, its president, who is not a lawyer. Hence the case was approached in the spirit that it imposed on the Commission a special duty to see to it that all of the pertinent facts were brought out; that the Secretary was held to the necessity for proving his case; and most important, that in accordance with the remedial purpose of the act, [*16] the proceeding was so conducted as to bring it about, as far as possible, that respondent's employees have a safe place in which to work.

With these considerations in mind there will be dealt with, seriatim, the citation for serious violation and the items of the citation for non-serious violation.

I

The nature of the case alleged by the Secretary on the citation for serious violation has some unusual features. Hence it may be more easily considered in the light of a review at this point of the basic legal propositions involved. The test by which a serious violation is distinguished from a non-serious violation is twofold: (1) whether an accident if it occurs, would be likely to result in serious rather than non-serious injury. Crescent Wharf & Warehouse Co., OSAHRC No. 1, April 27, 1973, pp 7-10; Natkin & Co., OSAHRC No. 401, April 27, 1972, pp 2-4; Standard Glass & Supply Co., OSAHRC No. 585, April 27, 1973, pp 2-4; and (2) whether respondent knew of the dangerous condition or could have known of it with the exercise of reasonable diligence, Act, Section 17(k). And this difference in quality is reflected in the mandate that in respect of a serious [*17] violation a penalty must be imposed (but compare Remark Building Service Co., Inc., OSAHRC No. 2052, June 22, 1973, pp 5-6), while in the case of a non-serious violation, the imposition of a penalty is discretionary. Act, Section 17, subsections (b) and (c).

The citation for serious violation is pleaded in Paragraphs IV(a)(1) and IV(b) of the complaint. These paragraphs allege four instances in which respondent was in continuing breach of various standards and that, occurring simultaneously and in one area of respondent's plant, together they constituted one serious violation within the meaning of Section 17(k) of the Act, for which complainant proposed a single penalty of $850. The four items are as follows: First, that oxygen cylinders were stored dangerously, i.e., intermingled with fuel gas cylinders, without separation by the required fireproof partition and too near combustible materials namely within six feet of a pile of truck tires and within twelve feet of an above ground 1000 gallon gasoline tank, all contrary to 29 CFR Section 1910.252(a)(2)(iv)(c); second, that the area of the tank was not properly drained or diked, contrary to 29 CFR Section 1910.106(b)(7)(a); [*18] third, that respondent failed to take adequate precautions to prevent ignition in the area of the gasoline tank, contrary to 29 CFR 1910.106(b)(6); and fourth, that in the area where the fuel gas cylinders were stored, respondent failed to post signs forbidding smoking and open flames, contrary to 29 CFR Section 1910.252(a)(3)(a). The citation required abatement within specified periods ranging from 10 to 22 days, which periods complainant in Paragraph IV(d) alleged to be reasonable. Finally in paragraph IV(e) complainant alleged that the proposed penalty of $850 is appropriate under the tests set forth in Section 17(j) of the Act.

Respondent's answer is commendably precise. It admits the four items of breach of the Regulations but denies that, taken together they created the risk of death or serious bodily harm. Furthermore respondent alleged in effect in the alternative that if in fact such condition existed, it could not have known of the same through the exercise of diligence. See answer, in the form of a letter dated June 29, 1972, addressed to the Solicitor of Labor, first paragraph on page 3. Respondent also denied that the proposed periods for abatement were [*19] reasonable id., second paragraph; and it denied that the proposed penalty was appropriate. See notice of contest, first paragraph of letter dated May 23, 1972, addressed to Mr. Robert R. Hanna, Occupational Safety and Health Administration, Milwaukee, Wisconsin. This is exactly the way complainant understood the issues to have been framed. Complainant's brief, pp 2-3.

The pleadings thus present three basic issues (1) Did the coexistence of any of the four admitted non-serious violations in fact create the condition in which, if a fire or explosion occurred, death or serious physical harm to employees would be a probable result, as opposed to the probability of lesser injuries or no injuries? (2) If the first question be answered in the affirmative, did respondent know of the condition, or could respondent have known of it with the exercise of reasonable diligence? Act, Section 17(k); And (3) if, again, the two preceding questions be answered in the affirmative, were there any of the admitted, non-serious violations which, while not contributing to the probability of serious injury, still increased the gravity of the violation by increasing the probability that such fire [*20] or explosion could occur?

In support of complainant's case the Secretary relied mainly on the testimony of Mr. Levand, the compliance officer, who qualified as an expert in industrial safety matters.

On Item 1 Mr. Levand testified that when he made his inspection on April 13, 1972, he found respondent's supply of oxygen cylinders stored in an outdoor wire cage in which he also found "a" fuel gas cylinder and "a" cylinder of acetylene gas; that the oxygen cylinders were not separated from the other cylinders either by 20 feet or by a barrier at least five feet high, having a fire-resistance rating of at least half an hour, and that they were within twenty feet of combustibles, i.e., the pile of truck tires and the gasoline tank; that the gasoline tank steadily gave off vapor at its vent pipe; that oxygen alone will not start a fire but will support combustion; that if it combined with the gasoline vapor it would make the vapor burn much more fiercely and so make it a potential source of death or serious physical harm to personnel; and that a fire at the tank might in turn make the nearby oxygen and acetylene cylinders leak.

As to Item 2, Mr. Levand testified that the area [*21] of the gasoline tank was not properly drained or diked, in that the ditch next to the tank leads past the cage in which the oxygen cylinders were stored and emptied into a sunken roadway which terminates adjacent to the main building. According to Mr. Levand this drainage facility increased rather than decreased the danger which arose from the elements referred to in Item 1, and constituted a direct violation of the second cited standard, which requires that "the area surrounding a tank . . . shall be provided with drainage . . . to prevent accidental discharge of liquid from endangering adjoining property or nearby waterways."

Notably Mr. Levand gave no evidence as to the effect of the presence of the one cylinder of fuel gas intermingled with the oxygen cylinders in the storage cage, and while Mr. Levand referred in his testimony to increased danger due to the presence of the cylinder of acetylene gas unseparated from the oxygen cylinders, there was no reference to acetylene gas either in the pleadings, or in the pleaded standards and, quite properly, none in complainant's proposed findings. Hence acetylene and its possible effect herein will be disregarded. But this is not [*22] fatal to complainant's case. Mr. Levand clearly expressed the opinion that the gasoline tank, the oxygen cylinders and the pile of tires were enough to create a condition in which a fire or explosion, if it occurred, could cause serious injury.

Respondent offered no evidence to negate Mr. Levand's proposition that the close proximity of the gas cylinder storage cage, the gasoline tank and the pile of tires created a condition in which, if fire or explosion occurred, it would be a violent, dangerous fire which would probably result in serious injuries. Instead, Mr. Wahlin, respondent's president and chief executive officer, made it clear from his testimony that he knew the position and the physical layout of the gas cylinder storage cage, having erected the facility in response to a citation from the State of Wisconsin; that he knew of the location of the gasoline tank, having moved the tank to that location in response to a direction by the local fire department; that he knew of the drainage facility for the gasoline tank; and that he knew of the location of the tires but thought that they did not constitute a violation because they were not "highly" combustible; but that, [*23] prior to receipt of the citation he did not know that these conditions were dangerous or violations of the applicable standards.

From the foregoing I conclude that the storage of the oxygen cylinders, the gasoline tank and its drainage, the pile of tires, and respondent's notice of these facts, (Items 1 and 2) constituted a serious violation. I now proceed to consider whether the other two violations, respondent's failure to take adequate precautions against fire or explosion in the area of the vent pipe of the gasoline tank (Item 3), and to post no smoking signs in the area of the fuel gas storage (Item 4), made the serious violation more grave by increasing the probability of ignition.

In support of Item 3, Mr. Levand testified that in violation of the standards there was no sign identifying the tank as containing gasoline and warning against smoking, open flames and other sources of ignition, and that the absence of these warnings increased the danger of ignition from the sources mentioned, including tools giving off sparks and hot engines of passing vehicles. Mr. Levand also gave it as his opinion that it would have been "appropriate" to shade the tank from the heat of the [*24] sun, which heat would increase the rate of vaporization at the vent pipe, and to equip the tank with lightning rods in addition to grounds, although shading and lightning rods are not required by the Regulations.

In defense Mr. Wahlin testified that respondent had adequately warned passersby by painting the tank bright red, a designation which, he said, was reserved by law in Wisconsin for gasoline tanks and was generally understood by people in the area (Clt's. Ex. 16).

As to Item 3, I conclude that the failure to post the area of the gasoline tank vent pipe in breach of the cited standard increased the gravity of the serious violation deriving from Items 1 and 2 discussed above, by increasing the probability that a physically harmful fire or explosion might occur. To be sure, respondent by its answer admitted that its failure to post the tank area was a violation; hence the validity of the regulation as in effect requiring a double warning in Wisconsin is not, stricti juris, in issue. But there remains in issue a question as to the extent to which the failure to give verbal warning ought to be given weight in determining the gravity of the serious violation. Assuming [*25] then that there was a Wisconsin rule which gave to painting the tank red the connotation which respondent claims for it, I cannot find that the Federal standard was unreasonable and capricious or unfairly discriminatory, and therefore entitled to less than full effect for the purpose mentioned above. It seems clear that Section 6(a) of the Act conferred on the Secretary power to promulgate a nationwide requirement in the premises, to which local rules must be subordinate if they conflict.

As to Item 4, it is admitted that at the time of the first inspection there were no signs prohibiting smoking and the carrying of open flames in the fuel gas storage area; but I reject this as evidence of conduct by which respondent subjected itself to an increased penalty in respect of the serious violation. The standard requires such posting only in the case of a facility "inside a building" and "for storage in excess of 2,000 cubic feet total gas capacity of cylinders . . . ." Complainant's Ex. 17 shows clearly that respondent's facility was a wire cage, out of doors; and there was no evidence as to its capacity, which respondent challenged.

Summing up, then, I affirm Items 1, 2 and 3 of the [*26] citation for serious violation and dismiss Item 4. I find that Items 1 and 2 combined to constitute a serious violation and that Item 3 made the serious violation more grave.

As to an appropriate penalty I have considered all of the evidence on the criteria mentioned in Section 17(j) of the Act, and note herewith certain facts from which inferences may be drawn regarding respondent's good faith in meeting its responsibilities to its employees in safety matters. After receiving the citation respondent took prompt and effective steps to move the gasoline tank, to rebuild the storage facility for the gas cylinders, and to post the facility with warning signs (respondent's Exs. 2, 3). As indicated in part above, respondent had had a long history of safety violations for which it had been cited by the State of Wisconsin and which were pending for some four years (complainant's Exs. 27, 28, 34; respondent's Ex. 1). But after the outdoor gas cylinder storage facility which Mr. Levand saw (respondent's Ex. 17) had been constructed by respondent in 1968 in response to one such citation (respondent's Ex. 27, Item 4), and after respondent had moved the gasoline tank from an earlier [*27] location which had been objected to by the Fire Department, respondent heard no more pre-OSHA complaints about gas cylinder storage or about the gasoline tank despite four reinspections by the State and semi-annual inspections by respondent's fire insurance and workmen's compensation carriers. The gas cylinder storage facility and the gasoline tank were prominent, permanent, outdoor features of respondent's not very large plant area (complainant's Exs. 16, 17), easily visible to the several groups of trained observers who made repeated inspections. From these circumstances respondent's belief, up to Mr. Levand's inspection, that it had remedied its safety problems in these areas was not without some justification.

I find that the appropriate penalty in respect of the citation for serious violation to be $300 and assess that amount. In so doing I have not overlooked the circumstance that although respondent apparently understood Section 1910.252(a)(2)(iv)(c) as prohibiting the location of a gasoline tank within 20 feet of the oxygen cylinder storage cage, since respondent admitted non-serious violation of that provision, the violation was nevertheless not an act in blatant defiance [*28] of the plain language of the standard, of such a nature that the public interest called for the imposition of the heaviest penalty authorized. The provision relied on by the Secretary is part of Subpart Q of Section 1910, which regulates welding procedures and so deals with the location of the gasoline tank only incidentally, as part of its treatment of the storage of oxygen cylinders. In that connection a possible question is suggested as to whether the standard is entirely clear in prohibiting gasoline in a storage tank from being located within twenty feet from oxygen cylinders in storage without a further fire resistant barrier between them, or whether the tank itself constitutes such barrier within the meaning of the standard. This question is not made the easier by the circumstance that Subpart H of Section 1910 contains Subsection 106 which, in Paragraphs (b)(2)(iii) and (e)(1)(a), (e)(2)(i) and (e)(2)(ii)(c), refers directly to the location of above ground tanks for the storage of flammable or combustible liquids with respect to important buildings on the same property, especially in industrial plants where the use of such liquids is incidental, and where large [*29] quantities of such liquids are necessary. Notably, these provisions contain no prohibition of oxygen cylinder storage within the area.

II

In the citation for non-serious violation Item 1 sets forth that welders in the main and subassembly areas were subject to welding fumes entering their respective breathing areas due to inadequate ventilation, in breach of 29 CFR Section 1910.252(f)(1)(ii); and this condition was to be abated by June 21, 1972. By notice the Secretary proposed a penalty of $125 in respect of the violation. In his complaint the Secretary alleged the violation in Paragraph IV(a)(2); he alleged that the period of abatement was reasonable in Paragraph IV(d); and he alleged that the proposed penalty was appropriate in Paragraph IV(e). All of these allegations were deemed in issue; and the Secretary sought to prove the violation by the testimony of Mr. Levand that under respondent's method of welding, the welding are liberated harmful quantities of ozone. Mr. Levand claimed that the condition which he observed was covered by the above cited standard, which provides as a supplement to the general requirements that special ventilation or respiratory devices may be [*30] made necessary by "atmospheric conditions." In opposition respondent contended that its process, welding mild steel with carbon dioxide, was a very common one, which was covered not by Section 1910.252(f)(1)(ii) but by Section 1910.252(f)(2); that in comparison with usual industrial practice respondent had very few welders working in the spaces which it assigned to welding operations; and that its operations were within the limits set forth in the last sentence of Section 1910.252(f)(2) for welding with natural ventilation only.

After the pretrial hearing the Secretary at my request had caused a reinspection of respondent's plant to be made on October 11, 1972, in order to enable the compliance officer to testify with respect to respondent's claim that it had abated many of the violations. During the reinspection the Secretary made tests of the atmosphere in the welding areas. These tests indicated to the Secretary that whatever might be the case with respect to excessive ozone under Section 1910.252(f)(1), the areas were seriously polluted, during welding operations, by excessive iron oxide, in breach of 29 CFR Section 1910.93. Accordingly the Secretary moved pursuant [*31] to Rule 15(a), FRCP, to amend Item 1 of the citation for non-serious violation and the relevant paragraphs of the complaint so as to delete all reference to a breach of Section 1910.252(f) because of the presence of ozone and substitute therefor a new Item 1 and new paragraphs of the complaint alleging that welders in respondent's plant were exposed to excessive iron oxide fumes, in breach of Section 1910.93; and that abatement was to be by engineering controls to the extent feasible, otherwise by appropriate respirators. See motion papers and letters of the Regional Solicitor dated November 28, 1972 and February 13, 1973.

The motion, served February 9, 1973, based on tests made November 29, 1972, came long after the original inspection (April 13, 1972) and the citation (May 8, 1972). The six months' statute of limitations contained in Section 9(a) of the Act was not involved, since the February amendment would cite respondent for an alleged violation which had occurred not in the previous April but in the previous November; and it seemed clear that the main purpose of the Act, namely to bring about safe working conditions as quickly as possible, would be served by granting the [*32] motion. In the alternative, if I denied this motion, I would have to go through the sterile process of deciding whether to affirm or dismiss an item of the citation which the Secretary had come to deem moot, while forcing the Secretary to bring a separate proceeding on what further testing had revealed to be the real ground of complaint, with possible duplication of the evidence already in the record as to the kind of welding carried on, the number of welders, the physical makeup of respondent's plant and its operations adjacent to the two welding areas, and respondent's history of previous safety violations and its size. Accordingly on consent I heard the motion on February 12, 1972, and granted it on condition that the Secretary send respondent a copy of the report on the air sample tests, and that within ten days respondent either withdraw its notice of contest or request a hearing on the new allegation added by the amendment, all of which allegations would be deemed denied. Consistent with my hope that this procedure would bring about a speedy disposition, respondent withdrew its notice of contest as to Item 1 on February 23, 1972, and on March 1, 1973, respondent [*33] presented to the Secretary its plan for engineering controls to eliminate the iron oxide condition.

Accordingly Item 1 of the citation for non-serious violation, as amended, is affirmed, and the penalty of $125 proposed by the Secretary in respect thereof is approved as appropriate and assessed.

III

Item 2 of the citation for non-serious violation also deals with respondent's welding operations. It alleges that respondent was permitting its operations to be carried on in such a way as to expose the eyes of adjacent workmen who are not welders and who are not protected by welder's goggles, to so-called "flash burns" from the ultraviolet rays emitted by are welding, in violation of 29 CFR Section 1910.252(c)(2)(iii), which provides in part that "workers . . . adjacent to the welding areas shall be protected from the rays by . . . screens . . . or shall be required to wear appropriate goggles."

The citation asserted that the violation was occurring in both the subassembly area and the main assembly area. The citation called for abatement on or before June 5, 1972, about four weeks after service of the citation by mail on May 8, 1972. The penalty proposed in respect of violation [*34] in the two areas was $85. The violations are alleged in Paragraph IV(a)(3) of the complaint. That the period for abatement was reasonable is alleged in Paragraph IV(d); and the appropriateness of the penalty is alleged in Paragraph IV(e). The answer admits the violations as alleged. As to the subassembly area it pleads that "welding shields around the welding areas have been installed as of 2 June." And as to the main assembly area it refers to the circumstance that respondent had requested a "waiver." Answer, Paragraph 2(3). Respondent denies that the period for abatement was reasonable. Answer Paragraph 2(b), second paragraph. And in the notice of contest respondent had, as aforesaid, denied the appropriateness of all penalties.

Treating the condition in the subasse ably area as a separate subitem of Item 2, the issue was thus presented whether a penalty should be assessed in respect of the admitted violation there, especially in view of the steps which respondent alleged that it took in the direction of abatement.

Mr. Levand, the compliance officer testified that the ultraviolet rays emitted by are welding burn the eyes, producing no symptoms at the time of exposure, [*35] but severe pain several hours later, yet no permament disability.

The configuration of the welding operation in the subassembly area and the surrounding areas of the plant are shown in the photographs taken by Mr. Levand and Mr. Masarik, his assistant, complainant's Exs. 19, 20 and 31, and in Mr. Wahlin's diagrams, respondent's Exs. 2A and 5. The welding operation is carried on in a roughly rectangular space at the corner of the building. Two sides are formed by outside walls of the building and one of the other sides is formed by an interior wall separating the welding space from offices. The fourth side has no permanent partition to separate it from a large manufacturing area within which people work and move to and fro. Also, the office space has another partition at right angles to the one mentioned above; and the outside of this other partition forms one wall of a passageway along which workers move. On respondent's Ex. 5, this would be the left hand wall of the passageway.

When Mr. Levand made his first inspection, on April 13, 1972, he found one shield in place, creating only a partial barrier between the welding space and the large area beyond. According to Mr. Levand [*36] this left exposed to the welding rays workers in most of the large area and workers in the passageway moving toward the welding space (complainant's Ex. 21). After service of the citation, respondent installed two more screens so that they extended the line of screening formed by the one screen originally in place. These three screens together created a barrier shutting off the large manufacturing area from the welding space (respondent's Ex. 31). But there was a conflict between Mr. Levand and Mr. Wahlin as to the location of the passageway. Mr. Levand testified that the passageway opened onto the welding space between the line of three screens and the parallel outside wall of the building so that a workman walking down the passageway toward the welding space would see behind the line of screens and so not be protected from the rays. According to Mr. Wahlin's evidence the passageway came out beyond the line of screens -- further away from the outside wall than the line of screens -- so that the screens would protect most of the people in the passageway. On respondent's Ex. 2A the corner of the office area, which defined the location of the passageway, Mr. Levand placed [*37] at Point A, while Mr. Wahlin placed it at Point B. Point C was the end of the line of the three screens. But Mr. Wahlin finally conceded that there might be part of the passageway within which a worker facing toward the welding operation would not be protected by the line of three screens; and Mr. Wahlin agreed that respondent would install additional screening to block off the gap between the line of screens and the end of the passageway (respondent's Ex. 5).

Mr. Levand gave no evidence as to the number of workers in the large area to the right of the line of screens as shown on respondent's Ex. 5, who were exposed when there was only one screen in place at the time of the first inspection; but he testified that the passageway was "heavily traveled . . . ."

Mr. Wahlin contradicted that evidence. He testified that the "traffic flow" was in the large area to the right, and that there was some but little traffic in the passageway. It is reasonable to infer that Mr. Wahlin, respondent's president, was more familiar with the traffic flow in the plant and hence better qualitifed to testify about it than Mr. Levand, who was in the plant only when he made his inspections; and complainant [*38] made no attempt to negate Mr. Wahlin's testimony on this point either by cross examination or by contradictory evidence.

Mr. Wahlin argued that complainant had failed to make out its case in two further respects: That welding rays are harmful only within some given distance and only if the exposure continues for an interval of 30 to 45 seconds minimum, and that complainant had offered no evidence on these points.

Finally, Mr. Wahlin testified that all of respondent's operating personnel were required to wear clear goggles to protect their eyes from flying particles and these goggles reduced by 11% the harmful effect of the welding rays. And based thereon, I infer that respondent argues that the presence of those safety goggles materially reduced the gravity of the violation. I reject this argument. These were not goggles which could take the place of screens; and there was no evidence from a qualified source either confirming Mr. Wahlin's statement about the effect of clear goggles on ultraviolet rays or indicating how an 11% reduction would affect the exposure to flash burns which Mr. Levand, a safety and health expert, testified could result from exposure such as [*39] might be sustained by workmen in respondent's plant.

I also reject respondent's argument based on lack of proof as to the length of time during which workers were exposed to the rays. The portion of the standard quoted above which is here material requires screening or appropriate goggles to protect all "adjacent" personnel, irrespective of the probable period of exposure. There is no ambiguity, to resolve which I may engraft upon the standard the further limitations which respondent suggests.

However respondent's point that the requirement of screening or goggles applies only in favor of persons "adjacent" to the welding operation is a valid one.

I find that on April 13, 1972, respondent was in violation of 29 CFR Section 1910.252(e)(2)(iii) in that the welding operation in the subassembly area was not duly screened. I find that the violation exposed to the welding rays numbers of adjacent personnel in the large manufacturing area shown as to the right of the welding space in respondent's Ex. 5; but complainant did not show by the weight of the evidence that there were more than a few persons in the passageway who were adjacent to the welding operation. I find that respondent [*40] demonstrated good faith by promptly installing additional screens to shield personnel in the large manufacturing area, and in agreeing to install one or more screens as may be necessary to close off the welding operation from employees in the passageway.

Coming now to that portion of Item 2 of the citation for non-serious violation which refers to unshielded rays emitted by welding in the main assembly area, it must first be noted that respondent's defense, pleaded in Paragraph 2(3) of its answer, was that by letter dated May 23, 1973, addressed to Mr. Hanna, the Area Director of OSHA in Milwaukee, it had requested "a waiver on the two locations in the main assembly area. The welding is incidental over an area 45' X 40'." At the opening of the hearing I pointed out that the statue made no provision for "waivers" but it did provide for "variances"; and that it appeared that respondent's request was in substance a request for a permanent variance under Section 6(b)(6)(d) of the Act. I ruled that such application if granted would be effective in the future but that it would not affect respondent's liability to be assessed a penalty if a finding was made that the condition [*41] of its workplace at the time of complainant's inspection constituted a violation of the cited standard. Thus respondent's defense was held insufficient in law and the parties went on to try the question of fact as to the existence of a violation deriving from welding rays in the main assembly area.

The welding space in the main assembly area is rectangular in shape, in a corner of respondent's plant, with the space enclosed on one long side and one short side by outside walls of the building. On the first inspection Mr. Levand found the other long side partially shut off from the rest of the plant by two large racks on which materials were stored, which were reasonably opaque. But there was an open aisle between the two racks along which the rays were visible; and on the other short side, the welding was fully open to view by adjacent workmen carrying on other manufacturing operations. On receipt of the citation respondent conceded that shielding was needed to enclose the other short side and to this end it put in place a 6' X 6' screen. Respondent disputed Mr. Levand's conclusion that the opening between the racks should be covered, urging that the racks placed passing workers [*42] at least 30 feet from the welding rays and so, in effect, made them non-adjacent. Later in the trial, however, respondent receded from this position and agreed to screen off the gap between the racks (complainant's Exs. 18, 30; respondent's Ex. 6).

I find that on April 13, 1972, respondent was in violation of 29 CFR 1910.252(e)(2)(iii) in that the welding operation in its main assembly area was not duly screened. I find that the violation exposed to welding rays numbers of adjacent personnel in the manufacturing area beyond the short side of the welding space, shown as to the right of the welding space in respondent's Ex. 6; but complainant did not show by the weight of the evidence that the passageway between the racks was used by a significant number of persons other than the welders, who were equipped with protective goggles. I find that respondent demonstrated good faith in promptly installing a screen to the right of the welding operation and in agreeing to screen the passageway between the racks.

I affirm Item 2 of the citation for non-serious violation. On the evidence bearing on all of the criteria set forth in Section 17(j) of the Act I find appropriate and [*43] assess a penalty in the amount of $50.

IV

Item 3 of the citation for non-serious violation alleges that work platforms on which personnel stand from four to seven feet above ground were defective as set forth in five separate subitems, some as to minimum in width and some as to required toeboards and railings. Thus Subitem 1 alleges deficient railings and toeboards in the work platform in the assembly line area; Subitems 2 and 3 alleged deficient railings and toeboards in the work platforms used in painting the rear of trailers and the front of trailers, respectively, and Subitems 4 and 5 alleged deficiently narrow platforms used in painting the rear and the front of trailers, respectively. The proposed period for abatement expired June 5, 1972, four weeks from the date of the citation; and the proposed penalty was $125. In its notice of contest respondent sought only an extension of time -- 30 days -- to abate all subitems. In Paragraph IV(a)(4) of the complaint the first four subitems are alleged; in Paragraph IV(d) of the complaint it is alleged that the suggested period for abatement was reasonable; and in Paragraph IV(e) it is alleged that the proposed penalty is appropriate [*44] under Section 17(j) of the Act. In the answer, Paragraph 2(4), it is pleaded that the work platform in the assembly line area had been reconstructed in accordance with the standard by June 2, 1972, and that work platforms for painting the front and rear of the trailers were reconstructed in accordance with the standard by June 23, 1972.

The standard, 29 CFR Section 1910.23(c)(2), provides in effect that each work platform four feet or more above ground shall be protected by a "standard railing" and a "toeboard"; that the "standard railing" shall consist of a top rail 42 inches high and a mid-rail halfway between the top rail and the floor of the platform; that a toeboard shall extend four inches above the floor of the platform; and that where the exigencies of function require that railings and toeboards be omitted on one side, the platform shall be at least eighteen inches wide. When Mr. Levand made his inspection on April 13, 1972, none of the work platforms complied with the standard. See, e.g., complainant's Exs. 22 and 23. The old work platforms were dangerous, according to Mr. Levand, in that omission of the railings might cause a workman to fall off backwards; [*45] and omission of the toeboards might cause tools and materials to fall on people below. When he reinspected on October 11, 1972, he found that all but one of the work platforms had been replaced by well built platforms (complainant's Ex. 33), all of which compiled except that on one the top rail was 30-1/2 inches high instead of 42 inches high and there was no mid-rail; and on the other new platforms the top rail was 36 inches high. Respondent conceded that the new work platforms were defective as indicated and would have to be corrected accordingly.

I affirm Item 3 of the citation for non-serious violation in all five subitems. On the evidence bearing on all the criteria set forth in Section 17(j) of the Act I find appropriate and assess the penalty proposed, in the amount of $125.

V

We now reach three uncontested items of the citation for non-serious violation, Items 4, 9 and 12.

Item 4 alleges that in breach of 29 CFR Section 1910.157(a)(2), access to the fire extinguisher in the door department was blocked by debris and improperly stored material.

Item 9 alleges that in breach of 29 CFR Section 1910.314(d)(4)(c), on the cord plug of a hand drill used in the assembly area [*46] there was no provision for a ground.

And Item 12 alleges that in breach of 41 CFR Section 50-204.66(d), "cylinders" in "the storage enclosure" which were empty were not marked empty.

In each case immediate abatement was called for in the citation but no penalty was proposed.

None of these items was contested and no objection to the no-penalty proposal was filed by any employee or employee representative although the time therefor has long since expired. Hence under Section 10(a) of the Act these items are deemed the final order of the Commission.

VI

Item 5 of the citation for non-serious violation alleges that the glass panel covering the lighting unit in the spray painting booth was cracked, contrary to the requirements of 29 CFR Section 1910.107(b)(1) that such panels "shall effectively isolate the spraying area from the area in which the lighting unit is located . . . ." The citation called for abatement in two weeks, by May 22, 1972; and a penalty of $85 was proposed. No contest was interposed except as to the appropriateness of the proposed penalty. Item 5 of the citation is affirmed.

As to the penalty, Mr. Levand testified that in the booth respondent employed [*47] paint using toluol as a thinner; that toluol is highly flammable and explosive, comparable in these respects with gasoline; and that if vaporized paint based on toluol came in contact with an electric spark given off when the lighting unit was switched on or off, the resulting explosion would probably blow down the building. He testified further that on his reinspection on October 11, 1972, he found that the glass panel described in the citation had been replaced. But offsetting the mitigating effect of the good faith thereby demonstrated, the second inspection showed six other glass panels cracked (complainant's Ex. 24). On the evidence bearing on all the criteria set forth in Section 17(j) of the Act I find appropriate and assess the penalty in the amount of $150, the amount which I would have assessed absent all evidence as to occurrences after the first inspection.

VII

Items 6, 7 and 8 of the citation for non-serious violation allege violations of 29 CFR Section 107 in connection with the storage and handling of toluol. Its use by respondent is alleged to have violated three subsections of Section 107, which, as here material, provide as follows:

Subsection (b)(9) [*48] Cleaning. Spray booths shall be so installed that all portions are readily accessible for cleaning. A clear space of not less than 3 feet on all sides shall be kept free from storage or combustible construction.

Subsection (3)(2) Quantity. The quantity of flammable or combustible liquids kept in the vicinity of spraying operations shall be the minimum required for operations and should ordinarily not exceed a supply for 1 day or one shift.

Subsection (3)(9) Grounding. Whenever flammable liquids are transferred from one container to another both containers shall be effectively bonded and grounded to prevent discharge of sparks of static electricity.

The citation proposed as the date for abatement of the violations alleged in all three items May 16, 1972, eight days from the date of the citation; and the notice of proposed penalties suggested $85 in respect of each item.

The notice of contest objected to all penalties and requested a 30-day extension of the period for abatement to enable it to move the drums out of the spraying area.

The complainant referred to the several violations in Paragraph IV(a) as follows. In Subparagraph 6 it alleged that an unspecified number [*49] of 55-gallon drums of flammable liquids were stored within three feet of the spray booth; in Subparagraph 7 it alleged that flammable liquids in excess of one day's supply were stored in the vicinity of the spray booth; and in Subparagraph 8 it alleged that two of the 55-gallon drums from which flammable liquids are transferred to another container were not bonded and grounded. In Paragraph IV(d) of the complaint it is alleged that the period for abatement set forth in Item 6 was reasonable; and in Paragraph IV(e) it is alleged that the proposed penalties are appropriate. In the answer, Paragraph 2, Subparagraphs 6, 7 and 8, it is alleged that by June 16, 1972 the date to which respondent had requested an extension of the period for abatement, the drums were removed from the spraying area, leaving only one day's supply; and that the drums have been duly grounded.

When Mr. Levand made his inspection on April 13, 1972, he found adjacent to the spray booth one 55-gallon drum about half full of toluol and five or six drums or six or seven drums containing toluol-based paint in red, zinc chromate, white, gray and "aluminum color." Mr. Propans, respondent's superintendent, [*50] whose statement Mr. Levand accepted, told Mr. Levand that respondent was using the paints in varying quantities, depending on the color, ranging from a drum a week to a drum every two months. Mr. Levand did not know how much paint respondent was using a day; and while he knew that in the spraying area there were drums containing some paint in the colors mentioned, he did not know how much any of the drums contained. Thus cross-examination showed that Mr. Levand had basis for his opening categorical statement only to the extent that there was half a drum of toluol within three feet of the spray booth, which violated Subsection (b)(9) by its presence and which further violated Subsection (e)(2) by reason of the circumstance that a day's supply was about a fifth of a drum, whereas respondent had in the spraying area about half a drum. As to toluol-based paint, the evidence was too vague to serve as a basis for heavier penalties.

Mr. Levand's testimony sustains the allegations of Subparagraph 8 of the complaint that two of the drums were not grounded and lacked equipment for bonding.

I affirm Items 6, 7 and 8 of the citation for non-serious violation.

In mitigation Mr. Wahlin put [*51] forward several considerations. Respondent's operation was such that it had to have available a supply of toluol and of toluol-based paints in a number of colors, three or four of which colors it used each day; and the 55-gallon drums which Mr. Levand saw were the containers in which it was feasible for respondent to acquire these materials. Respondent's practice had resulted in a citation under a State standard worded similarly to Subsection (e)(2) of the Federal Standard. While contending that the standard was directive rather than flatly obligatory, respondent had agreed with Wisconsin to discontinue storing paint in the spraying area and to substitute for such storage a new building to be used as a paint vault. It had applied for a permit for the construction of the building in February or March, 1972, had received the permit in August or September, had commenced construction six to eight weeks prior to October 24, 1972, and expected to complete the building and change over to the new practice in 45 days after October 24th. Under these conditions Wisconsin permitted respondent to continue the old practice in the interim; but meantime respondent had moved the drums [*52] from the immediate area of the spray booth. From these circumstances respondent could infer that its practice was not causing substantial danger to its employees.

With respect to grounding and bonding, all drums had been grounded prior to the close of the second session of the final hearing, on October 24, 1973; and, said Mr. Wahlin, all would be equipped for bonding within 15 days thereafter.

Mr. Levand confirmed that on his reinspection, made October 11, 1972, he found that Items 6 and 7 had been fully abated.

On the evidence bearing on the criteria set forth in Section 17(j) of the Act I find appropriate in respect of these three items an aggregate penalty of $100 and assess the same accordingly.

VIII

Item 10 of the citation for non-serious violation alleges that in breach of 41 CFR Section 20-204.3(c), now 29 CFR Section 1910.141(a)(1), respondent permitted the floors of a warehouse building forming part of its plant to become uneven and wet, with holes in which water collected. Abatement was called for by June 21, 1972; and a penalty of $85 was proposed. The notice of contest requested a "waiver" in respect of the violation on the grounds that the structure was rented, [*53] not owned by respondent; and that the building is used only for "incidental storage," with no continuous employee activity therein. The penalty was contested.

In the complaint the facts of the violation are alleged in Paragraph IV(1)(9), the reasonableness of the abatement date in Paragraph IV(d), and the appropriateness for the proposed penalty in Paragraph IV(e). In its answer, Paragraph 2(9), respondent alleges that it has filled the holes in the floors but that it is impossible for it to make them even. It refers to respondent's request for a "waiver"; and it alleges that the building is used for "incidental storage" and is "unoccupied." In Paragraph (6) of the answer, respondent denies that the proposed period for abatement is reasonable.

The standard relied on by the Secretary is headed "Sanitation." In pertinent part it provides that "All places of employment . . . storerooms, and service rooms should be kept clean . . ."; that "the floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition"; and that "To facilitate cleaning, every floor . . . shall be kept free from holes. . . ."

For complainant Mr. Levand testified that [*54] he found holes in the floors which might cause an employee to trip; that water on the floors made them slippery; and that on his reinspection these conditions had not been remedied.

In mitigation Mr. Wahlin put forward two points. First, that the building was not within the standard because no regular manufacturing operation was carried on there, it being the place where the less frequently needed material was stored. This was moved in and out by one employee only, the forklift truck operator. Mr. Wahlin took inventory of the contents of the building himself; and the only other employee whose work permitted him to enter the building was the plant superintendent. Second, the floors were concrete. They had buckled and were wet because of leaks in the roof. The building was very old. It was rented from month to month from Wisconsin Tobacco Company, which would be obliged to demolish the building on March 1, 1973, the expiration of Wisconsin Tobacco's ground lease. In the premises it would be unreasonable to compel respondent to rebuild the roof and the floors.

I cannot accept respondent's contentions. The statute requires that every part of a plant be kept safe for the workers, [*55] the storage spaces as well as the manufacturing spaces. And if the employer chooses to use a building as part of his plant, he must keep it safe, whether it belongs to him or to a sublessor or to the dominant landlord. But there are other reasons why a penalty should not be here imposed.

Despite Mr. Levand's opinion cited above that the standard is to protect employees against tripping and slipping on the floors, it seems clear that the standard prohibits holes and wetness in order to promote ease of adequate cleaning and general sanitation. I cannot find that complainant has proved that the floors in question were in a condition on April 13, 1972, such as would prevent sanitation adequate for a warehouse for least-often needed material, sufficiently inactive so that it could be operated by one lone employee. No real failure of such sanitation was established and accordingly I dismiss Item 10 of the citation for non-serious violation.

IX

Item 11 of the citation for non-serious violation alleges that respondent breached 41 CFR Section 50-204.4(c), now 29 CFR Section 1910.37(g) by failing to erect proper exit signs. Abatement was required by May 30, 1972. A fine of [*56] $85 was proposed.

By letter dated May 23, 1972 to Mr. Hanna, the Milwaukee Area Director, respondent's Ex. 2, p. 3, respondent requested a "waiver" of the standard on the ground that the building was "unoccupied" and had no electric service. In its notice of contest respondent referred to this request, and entered an objection to the proposed penalty.

In his complaint, the Secretary alleged the violation in Paragraph IV(a); he alleged that the proposed date for abatement was reasonable in Paragraph IV(d); and he alleged that the proposed penalty was appropriate in Paragraph IV(e).

In its answer, Paragraph 2(10), respondent referred to its request for a waiver on the ground that the building had no electric service; and it alleged that "Unlited" exit signs had been posted; and in Paragraph (b) respondent denied that the date for abatement was reasonable.

In Mr. Levand's testimony, the violation boiled down to complainant's omission to post exit signs in the warehouse. Respondent had assumed that the standard required lighted exit signs, based on which assumption it had requested a "waiver" in respect of Item 11; but upon being advised by Mr. Levand that unlighted signs would [*57] comply, it erected such signs prior to Mr. Levand's reinspection.

At the pretrial conference complainant's able counsel had not been sure whether the standard called for a lighted or unlighted sign (6); and I find that the violation resulted from an honest and understandable misunderstanding. I find further that respondent showed its good faith by posting unlighted signs as soon as the error was pointed out. Accordingly I affirm Item 11 of the citation for non-serious violation but find that no penalty would be appropriate.

X

Item 13 of the citation for non-serious violation alleges that there was no fire fighting equipment in the warehouse, in violation of 41 CFR 50-240, 113, now 29 CFR Section 1910.177(b)(3). The date for abatement fixed in the citation was June 21, 1972, and the proposed penalty was $85.

The notice of contest took issue only as to the appropriateness of the proposed penalty.

In the complaint the violation is alleged in Paragraph IV(a)(11); the reasonableness of the period for abatement is alleged in Paragraph IV(d) and the appropriateness of the penalty is alleged in Paragraph VI(e).

In its answer, respondent alleged in Paragraph 2(11) that fire [*58] fighting equipment had been installed in its warehouse; and in Paragraph (b) respondent denied that the proposed period for abatement was reasonable.

The evidence showed not only that no fire fighting equipment had been installed in the warehouse at the time of the first inspection but that, contrary to respondent's categorical statement in its answer, which is dated June 29, 1972, no such equipment had been installed at the time of the second inspection, on October 11, 1972. Respondent's attempted explanation that the installation had not been effected because there was no electric service in the warehouse with which to power a drill does not impress me with its good faith effort to meet this basic requirement for a safe working place for its employees, or with its care in stating the facts in its answer. Its compliance as of November 13, 1972, as established in a third inspection, reported to me by Mr. Grant in his letter of November 28, 1972, with copy to Mr. Wahlin, is noted.

Item 13 of the citation for non-serious violation is affirmed and a penalty in respect thereof is assessed in the amount proposed, $85.

[Reinstated by the Commission on 7/18/72.]

CHALK, JUDGE: [*59] The Notice of Contest is dismissed as Respondent has not timely furnished certification of compliance with the service requirements of Commission Rule 2200.7(b)(1) pertaining to Notices of Contest, as directed by letter from this Commission dated May 26, 1972. The Citations and proposed penalties are affirmed.

It is so ORDERED.