LEE WAY MOTOR FREIGHT, INC.
OSHRC Docket No. 1105
Occupational Safety and Health Review Commission
April 23, 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 my order and Chairman Moran's separate order directing review of a decision issued by Judge John Castelli. Judge Castelli concluded, inter alia, that Respondent did not commit non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act") by violating standards published at 29 C.F.R. 1910.22(c) and 29 C.F.R. 1910.151(c). n1
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n1 29 C.F.R. 1910.22(c) provides:
Covers and guardrails. Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.
29 C.F.R. 1910.151(c) provides:
Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.
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In directing [*2] review I requested submissions on the questions (1) whether the Judge erred in vacating the citation as to 29 C.F.R. 1910.22(c), and (2) whether his conclusion that Okite is a corrosive material within the meaning of 29 C.F.R. 1910.151(c) was erroneous. n2
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n2 Review was also directed on the question whether the citation was issued with reasonable promptness. The issue was not raised during the issue 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 Employ. S. & H. Guide, para. 17, 187 (Rev. Com'n. January 24, 1974).
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We have reviewed the entire record. For the reasons stated hereinafter we adopt the Judge's decision only to the extent it is consistent with the following decision.
CITATION FOR VIOLATION OF 29 C.F.R.
1910.22(c) (NON-SERIOUS)
Respondent, an interstate motor carrier, operates a freight transportation and terminal facility in Oklahoma City, Oklahoma. As a daily practice, its [*3] drivers park their rigs (consisting of a tractor and trailer) 100 feet from Respondent's service area. From there, a tractor mechanic drives the rig into a building for servicing.
The rigs are driven over one of four service pits. n3 The pits are 100 feet long, 31 inches wide, 4 feet deep, and are parallel to each other. They are 19 feet, 5 inches apart.
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n3 All four pits are used for inbound traffic. One of the four pits is usually limited to "come back work". This work is done after the rig is serviced and taken out of the area. When the truck is ready for the driver and he believes that there is an uncorrected problem, the rig may be returned.
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A three man team works on the rig. The team spends approximately 20 minutes with each rig. A serviceman then drives the rig out of the area. Members of the team must get into the pits to perform their duties. Only members of the service team enter the service area.
Respondent has not provided guardrails or covers for any of its pits. Each of the four service lanes [*4] can accommodate two rigs. It is uncommon for eight rigs to be in the service area simultaneously. At the time of Complainant's inspection, for example, one pit was completely open while others were covered by only one rig.
When one of Respondent's mechanics or servicemen wishes to cross an uncovered pit, he simply steps over it. On occasion the floor area surrounding the pits gets wet with oil, ice, snow, rain water, or a combination of the foregoing.
The Judge concluded that Complainant failed to establish Respondent was in non-serious violation of 29 C.F.R. 1910.22(c). He reasoned that the evidence presented indicated that Respondent's inspection operation presented a low degree of probability of injury and a low level of gravity type hazards at the maintenance pits. For this reason he vacated. We do not agree.
The cited standard clearly prescribes that covers or guardrails shall be provided to protect open pits. The standard by its plain terms assumes the existence of a hazard with regard to open pits and does not require that a hazard be proven before non-compliance with its terms is established.
However, non-compliance with the terms of a standard does not [*5] necessarily establish a non-serious violation of the Act. If the hazard does not have a direct or immediate relationship to occupational safety or health the violation is de minimis, n4 and the citation should be vacated on that basis.
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n4 29 U.S.C. 658(a).
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The relevant facts, as noted above, indicate that Respondent's failure to provide covers or guardrails exposes its service personnel to the hazards of tripping, slipping, or falling into an unguarded pit. Such hazards do have a direct and immediate relationship to the safety of employees. Complainant has therefore established a non-serious violation of 29 C.F.R. 1910.22(c).
Respondent contends by way of defense that the standard under which it was cited does not apply to its servicing operations. The basis of this contention is that the standard was derived from standards promulgated under the Walsh-Healey Act (41 U.S.C. 35 et seq. ), that under Walsh-Healey the standard was promulgated under the heading "Material handling and storage," and [*6] that the Walsh-Healey standard was not applicable to transportation companies. The defense is without merit.
As currently published, n5 the standard is applicable to industry generally. n6 Congress specifically directed Complainant to promulgate n7 established federal standards n8 as occupational safety and health standards and it intended the standards to apply to industry in general. S. Rep. No. 2182, 91st Cong., 2d Sess. 5, 6 (1970); H. Rep. No. 1291, 91st Cong. 2d Sess. 16, 17 (1970). Indeed, Congress itself adopted the Walsh-Healey standards as occupational safety and health standards of general application. n9
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n5 Complainant has proposed to amend Subpart D, Walking-Working Surfaces; 29 C.F.R. 1910.21 et seq., 38 Fed. Reg. 24300 (1973).
n6 Domestic, mining; or agricultural work and measures for the control of toxic materials are specifically exempted from the requirements of 29 C.F.R. 1910.22.
n7 Section 6(a) of the Act provides as follows:
Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.
n8 Section 3(10) of the Act, in relevant part, provides as follows:
The term "established Federal standard" means any operative occupational safety and health standard established by any agency of the U.S. presently in effect . . . .
n9 Section 4(b) of the Act, in relevant part, provides as follows:
Standards issued [under the Walsh-Healey Act (41 U.S.C. 35 et seq. )] and in effect on or after the effective date of this Act shall be deemed to be occupational safety and health standards issued under this Act, as well as under such other Acts.
[*7]
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By way of a second defense Respondent states that it would be difficult for it to comply with the standard. Assuming, arguendo, that compliance would present difficulties Respondent is not thereby relieved from its obligation to comply. That does not mean that Respondent was or is not without means of seeking relief. Under section 6(f) of the Act it could have challenged the standard in the court of appeals following its promulgation. It did not do so. Even so, it may apply to Complainant under section 6(d) for a variance from the standard, or it may make application under section 6(b) for an amendment of the standard.
Complainant proposed a $30 penalty for the alleged violation of 29 C.F.R. 1910.22(c). We consider that proposal to be reasonable and it is hereby assessed. In reaching our conclusion, we place particular emphasis on the gravity of the violation. Though, on the one hand, the chance of an accident occurring due to Respondent's uncovered and unguarded pits is somewhat remote because only service personnel enter the area, should an accident occur, it could be of a relatively serious [*8] nature. On balance, we conclude that the gravity of the violation was low to moderate.
We have also given due consideration to the other factors enumerated in section 17(j) of the Act. Respondent's business is large. There is no evidence of its lack of good faith, and it has no history of past violations.
CITATION FOR VIOLATION OF 29 C.F.R. 1910.151(c) (NON-SERIOUS)
29 C.F.R. 1910.151(c) requires that where an employee's eye or body may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing must be provided within the work area for immediate use. Judge Castelli held, in vacating the citation, that Respondent's facilities were suitable for the purposes stated in the standard. We do not reach that question.
In response to our direction for review, Complainant states that "a review of the evidence of record as a whole indicates that [Complainant]. . . failed to sustain his burden of proof as to the alleged violation of 29 C.F.R. 1910.151(c)." Presumably this means he either agrees with Judge Castelli or he agrees that the evidence does not establish Okite as an injurious corrosive material. The Judge's decision to vacate [*9] will be affirmed.
For the reasons given the Judge's order is modified to affirm the citation for violation of 29 C.F.R. 1910.22(c), a penalty of $30 is assessed for such violation, and as modified it is affirmed. It is so ORDERED.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case by Commissioner Van Namee.
The "reasonable promptness" issue was raised for the first time in the direction for review. It was not raised before or during the hearing, and the issue is not something jurisdictional to be raised at any stage of the proceedings or considered by the Commission even though it is not raised by the parties. See the majority opinion subscribed by Commissioner Van Namee and Chairman Moran in Chicago Bridge & Iron Co., No. 744 (January 24, 1974). n10 It is now well settled that under these circumstances the issue should not be examined; e.g., Morrison-Knudsen Co. & Assoc., No. 692 (March 28, 1974); Advance Air Conditioning, No. 1036 (April 4, 1974).
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n10 My views concerning the application of the term "reasonable promptness" are consonant insofar as the disposition of this case is concerned. For my full views on this subject, see Chicago Bridge & Iron Co., supra (dissenting opinion).
[*10]
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Concerning the citation for the violation of § 1910.22(c), I would add one comment to the disposition by my colleague concerning the contention that the standard was derived from those issued under the Walsh-Healey Act (41 U.S.C. § 35 et seq. ), and that under the Walsh-Healey Act the standard was not applicable to transportation companies. The Walsh-Healey Act does not apply to government contracts for the carriage of freight or personnel under published tariff rates, or to common carriers subject to the Communications Act of 1934. 41 U.S.C. § 43. The Walsh-Healey Act, however, does apply to hauling operations that are incidental to Federal supply contracts. In this regard, I take official notice of sections 37(m) and 40(i) of the Department of Labor's Rulings and Interpretations No. 3, Rev. January 31, 1961, BNA Walsh-Healey Manual 99:13. It is clear, therefore, that the coverage of vehicle maintenance pits maintained by an employer under such circumstances would be covered by the Walsh-Healey Act and the standard involved.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: I would dispose of this [*11] case on the grounds that the citation, having been issued 83 days after the inspection, was invalid since it was not issued pursuant to the mandate of 29 U.S.C. § 658.
Both the lead opinion and the concurring opinion, however, improperly treat respondent's defense that the standard under which it was cited, 29 C.F.R. § 1910.22(c), was inapplicable. The Commission's response is that this was an established Federal standard under the Walsh-Healey Act which the Secretary of Labor promulgated under this law and it therefore applies to everyone.
This overlooks the definition of the term "established Federal standard" in 29 U.S.C. § 652(10):
The term . . . means any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act" [emphasis supplied].
The Walsh-Healey standards were promulgated in accordance with the formal rule-making provisions of the Administrative Procedure Act (APA) which requires that proposed rules be published in the Federal Register to notify those affected by them of the proposal and to permit public [*12] comment thereon prior to the time they become effective.
Thus, in theory, the Walsh-Healey safety and health standards had been scrutinized and those affected had their chance to present their diverse views. In reality few employers paid much attention to them, and this apparent apathy resulted in some of the vaguest standards that perhaps have ever been promulgated.
The inattention was understandable, if regrettable. In the first place, the Walsh-Healey standards were applicable only to those firms who were contractors with the Federal government for the "manufacture or furnishing of materials, supplies, articles and equipment in any amount exceeding $10,000 . . ." Consequently, the vast majority of employers were unaware of the existence of the standards or the law itself.
Secondly, it is quite likely that the relatively limited enforcement effort under Walsh-Healey served to lull even those few employers subject to its coverage into a lack of concern for the content of the standards issued under the law. In fiscal year 1969, for example, fewer than 3,000 of the estimated 75,000 companies affected by Walsh-Healey were inspected for job safety and health conditions [*13] (compare this with the 4 to 5 million companies covered by this Act). These inspections resulted in only 34 formal complaints, and only 32 formal hearings. While the Walsh-Healey Act provides for the "blacklisting" of the violators for up to three years, and over 33,000 total violations were found in the inspections, this sanction was applied in only two instances in that period. In fiscal year 1968 there had been 1,570 firms inspected, 27 companies issued, and two firms "blacklisted." So it is extremely doubtful that when the standards under this law were promulgated they caused any great concern or interest. Of course no one had the slightest inkling that this process would make them either established Federal standards or candidates for immortalization as a result thereof.
I doubt that this standard could be regarded as either "operative" or "in effect" on the basis of the foregoing history. There is also some question as to whether the Secretary of Labor had the authority to promulgate binding standards under the Walsh-Healey Act. Although that law was passed in 1936 no standards were issued until 1960 and those that were issued then appear to be more in the nature of guidelines [*14] than binding regulations.
In addition, the standard under consideration here does not appear to me to qualify as an "occupational safety and health standard," as defined in 29 U.S.C. § 652(8). Established Federal standards must also meet such requirements. 29 U.S.C. § 652(10)
The disposition of this case, however, should be resolved in accordance with 29 U.S.C. § 658(a).
On the basis of an inspection conducted on March 23, 1972, a citation was issued on June 14, 1972. Thereafter, on June 16, 1972, an amended citation was issued. Thus, there was an interval of 83 days between the inspection and the issuance of a correct citation.
As I indicated in Secretary v. Advance Air Conditioning, Inc., In that case, although the "reasonable promptness" issue was not asserted by the respondent, the Judge raised the issue sua sponte by requesting briefs thereon. In the instance case, the issue was not directly raised below. However, that should not affect the issue.
The reasonable promptness [*15] requirement of section 658(a) must be met in order to establish subject matter jurisdiction. A failure to do so renders the citation null and void. Of course, a jurisdictional issue may be raised by the Commission at any time on its own motion. See Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939); Hackner v. Guaranty Trust Company of New York, 117 F. 2d 95 (2d Cir. 1941); Fed. R. Civ. P. 12(h)(3). In my opinion, the invocation of the doctrine of waiver in cases such as this contravenes the statutory duty of this Commission.
I also disagree on the merits with the Commission's reversal of Judge Castelli's decision on the § 1910.22(c) charge.
Considering the overall conditions existing in the respondent's workplace, the area director who issued the citation concluded that the only feasible way for the respondent to comply with the standard was to use nylon cable. Since the standard does not require nylon cable and the use of the protective measures enumerated in the standard would have severely disrupted the respondent's work, it is improper to affirm the violation. See e.g., Secretary v. La Sala Contracting Company, Inc., OSAHRC Docket No. [*16] 1207, February 23, 1973; Secretary v. Tilo Company, Inc.,
Finally, the Commission errs in holding that:
The standard by its plain terms assumes the existence of a hazard with regard to open pits and does not require that a hazard be proven before non-compliance with its terms is established.
What a standard assumes is irrelevant because the mere fact that the provisions of a standard have not been followed is not enough to establish a violation of the Act. There is no violation unless the evidence establishes that the respondent's employees were actually exposed to an unsafe working condition by the failure to comply with the standard. Secretary v. Home Supply Company, Secretary v. A. Munder & Son, Inc.,
[The Judge's decision referred to herein follows]
CASTELLI, 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., hereafter called the Act) contesting an Amended Citation issued by the Complainant against the Respondent under the authority vested in Complainant [*17] by Section 9(a) of that Act. The Amended Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 3000 West Reno Street, Oklahoma City, Oklahoma, and described as Lee Way Motor Freight, Inc., the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The Amended Citation, which was issued on June 16, 1972, alleges that 28 nonserious violations resulted from a failure to comply with standards promulgated by the Secretary and codified in 29 C.F.R. Part 1910.
The Respondent filed with the Secretary a notice of contest on June 29, 1972, contesting violations as alleged in Items 4, 16, 20 and 24 of the Amended Citation. It does not contest the remaining 24 alleged violations, avering that said violations have been corrected prior to the abatement date established in the Amended Citation, and offers to pay the respective penalties proposed for the aforesaid violations upon their approval by the Review Commission or the Review Commission Judge. It was [*18] stipulated and agreed upon by the parties herein that the aforesaid uncontested violations together with the proposed penalties related thereto be eliminated as issues in the hearing, and such was approved by the undersigned Judge.
Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated June 16, 1972, from J. T. Knorpp, Area Director of the Tulsa, Oklahoma area, Occupational Safety and Health Administration, U.S. Department of Labor, proposing to assess penalties for the violations as alleged in the Amended Citation in the amount of $390.00. However, as previously agreed upon and approved by the Hearing Judge, the only penalties that are at issue before the Commission are for the above-mentioned contested violations totaling $90.00.
After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Oklahoma City, Oklahoma, on September 20, 1972.
The Secretary of Labor was represented by Mr. Scott H. Strickler, Regional Solicitor's Office. The Respondent was represented by Mr. Ben L. Burdick, Attorney at Law. No affected employee [*19] or representative thereof sought to participate in the hearing, although given an opportunity to do so. Proposed findings, conclusions, and orders, as well as reply findings have been submitted by counsel.
ISSUES PRESENTED
The description of the alleged violations contained in said Amended Citation which were contested reads:
Item 4. 29 C.F.R. 1910.22(c). Covers and/or guardrails were not provided to protect employees from the hazards of open vehicle servicing pits in the in-bound service department shop. Proposed penalty $30.00.
Item 16. 29 C.F.R. 1910.151(c). Suitable facilities for quick drenching or flushing of the eyes and body were not provided at caustic solution (Okite) dip cleaning tank. No penalty.
Item 20. 29 C.F.R. 1910.212(a)(1). Point of operation guarding was not provided on the Chicago rivit machine located in the trailer shop, and the foot pedal and/or treadle mechanism was not provided with guard, whose operation exposed the employee to injury. Proposed penalty $30.00.
Item 24. 29 C.F.R. 1910.242(b). Compressed air used for cleaning purposes was in excess of 30 psi; i.e., at work bench in body shop, truck spray room, work bench outside and near [*20] spray room area and work area in radiator shop. Proposed penalty $30.00.
The standards as promulgated by the Secretary cited in the above alleged violations provide in part:
Item 4. 29 C.F.R. 1910.22(c)
This section applies to all permanent places of employment, except where domestic, mining, or agricultural work only is performed. Measures for the control of toxic materials are considered to be outside the scope of this section . . .
(c) Covers and guardrails. Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.
Item 16. 29 C.F.R. 1910.151(c)
(c) Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.
Item 20. 29 C.F.R. 1910.212(a)(1)
(a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples [*21] of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.
Item 24. 29 C.F.R. 1910.242(b)
(b) Compressed air shall not be used for cleaning purposes except where reduced to less than 30 psi and then only with effective chip guarding and personal protective equipment.
The issues thus presented for decision in this matter are: (1) Whether it was established that Respondent violated 29 C.F.R. 1910.22(c), 29 C.F.R. 1910.151(c), 29 C.F.R. 1910.212(a)(1), and 29 C.F.R. 1910.242(b) as described by Items 4, 16, 20 and 24 of the Amended Citation and, (2) if there were violations of said standards, whether the proposed penalties relating thereto were reasonable and appropriate, considering the gravity of the violations, the size of the employer's business, his past history, and good faith.
THE EVIDENCE
The evidence of record establishes that the Respondent is a corporation employing approximately 150 persons at a workplace located at 3000 West Reno Street, Oklahoma City, Oklahoma, engaged in the operation of interstate freight transportation and terminal facilities. Respondent's workplace consisted of three buildings: a trailer shop, the inbound [*22] service department which is a combination tractor repair shop and vehicle maintenance pit area, and a wash rack building.
The inbound service department consisted of four lanes and that each lane had a pit, 31 inches wide, approximately 100 feet long and 4 feet deep. The distance between pits was 19 feet, 5 inches. The lanes were used for trailer and tractor maintenance, preventive maintenance, inspection lanes and safety lanes. There was a tractor mechanic, a trailer mechanic and a service man assigned to one unit and that they made a visual inspection underneath and topside for defects. All brakes were adjusted and all minor repairs were made, as well as oil changing and greasing of equipment.
On March 23, 1972, Otto B. Medlin, a compliance safety and health officer for the Occupational Safety and Health Administration, United States Department of Labor, inspected the entire facilities located at Respondent's workplace, and found 28 alleged nonserious violations of standards promulgated under the Occupational Safety and Health Act of 1970, including the four standards herein contested and at issue in this proceeding.
The compliance officer testified that on the [*23] day of his inspection, he observed four vehicle maintenance pits in the inbound service department. At no time during the 15 to 20 minutes when in the vicinity of these pits were there two combination units (tractor and trailer) on any one pit. Moreover, he observed that there were no formal coverings on any of the pits or a barricade, standard railing, or any type of warning device around any pit, although three lanes were only partially covered by combination units. He did not specifically identify the number of employees who were in the work area, but indicated that he saw possibly two or three employees working in the area.
The Respondent's Assistant Director of Maintenance testified with regard to this alleged violation that the drivers leave the equipment, and the combination units are driven over the pits by maintenance employees only, who then work on them both from within the pit and at the edge of the pit. The driver never has any reason to come into the inbound service department. The service floor between each pit contains three support columns, a large heating ventilation duct, together with a "Christmas tree" tool storage tier, some trash barrels and [*24] a tool board. On occasion, there was oil on the floor and that trucks and trailers dripped rain or snow on the floor. The maintenance service men were generally responsible for cleaning up their work area during the work shift. The vehicle maintenance pit area was well-lighted continuously and open for operation 24 hours a day. In the two years of operation, the only day it was closed was on a Christmas day.
The maximum capacity of each pit is two combination units and the total capacity of the service area is eight combination units. The normal time required for working on a combination unit was approximated at 20 minutes, and that the number of combination units serviced in an average 24-hour period ranges from 100 to 120. Whether pits were covered at any one time depended upon the number of vehicles being serviced, with more than seven combination units being in the area at any one time a rarity. Periodically, more than one pit was completely uncovered, and in some instances uncovered for as long as two hours. If the maximum number of combination units were being serviced at one time, there could be twelve people working in the area, but rarely as many as 24.
The Assistant [*25] Director of Maintenance testified that yellow guidelines were painted on the service area floor, and that if you put up rails, ropes, cables or chains close to this second yellow line, that it would create a hazard to vehicles coming in and leaving. Moreover, the use of such guardrails intermittently when the pits were not covered might create an additional hazard for working employees if, when relying on them, they were not in place. He stated that another problem which prevented the effective placing of guardrails without unduly interferring with normal operations of the pits was the existence of a portable ladder on swivel castors which was worked down between the trailer and center post, and used to repair lights on the side and rear of the trailer at the top.
On two occasions, employees have fallen into service pits at the Respondent's workplace: (1) An intoxicated employee fell into one of the pits which was in existence prior to the present newly constructed pits, and (2) an employee fell into one of the present pits when it was under construction. No regular maintenance employee of the service pit area has fallen into the pits or been injured due to a hazard [*26] created by the service pits now in use.
Robert Begeman, Vice-president of Engineering Services of the Transport Insurance Company, testified as an expert witness. As part of his duties he is responsible for assisting policyholders, large trucking companies, in improving their safety program. In connection with his work, he inspected the service areas and terminal area of the trucking firms and made written reports as to safety on forms relating to OSHA standards.
He testified that he could not recollect a single personal injury involving a grease or inspection pit and that a review of the claims department files of his employer, which insures 230 -- 240 large motor carriers, for the past five years reveals no record of personal injury involving a lubrication or inspection pit reported by a policy holder. In his opinion the installation of guardrails or ropes would add nothing to the additional safety of the Respondent's operation in the inbound inspection area. He did not consider the below surface inspection area as creating an unusual hazard to the employee, primarily because these employees were familiar with the area and were constantly going from ground level [*27] into the recessed area to work. He estimated that the men work in recessed pits forty percent of their time. Moreover, he stated that he had inspected at least 200 of these inspection and service areas for the motor carriers that his company insured and that he had not seen a guardrail between the pits or around them in a single motor transportation company.
Testimony was submitted by complainant regarding several available guardrails and or removable barricades that were allegedly suitable and could be applied to the Respondent's operation which would comply with the applicable standard without creating additional hazards.
The evidence of record further establishes that the compliance officer during his inspection observed a tank containing Okite in the steamroom which is used and was being used at that time by an employee to degrease and clean metal parts. Okite is a chemical which on contact may cause skin burns. Within 8 to 10 feet of the Okite tank in the steamroom the Respondent had a screw-type water faucet connected with cool city water with a hose attached not having a pressure regulator which was available to the Okite tank worker for removing Okite from the skin or [*28] eyes.
Mr. Medlin, at the time of inspection, further observed a Chicago rivet machine in the trailer shop building which was used to rivet a lining to brake shoes. There was no footguard on the machine's foot pedal known as the "treadle mechanism." When the pedal was pressed by the foot, it activated a downward stroking ram at the machine's point of operation. Also observed at that time was that there was no guarding at the machine's point of operation, and that the placing of an employee's hand or arm in this area while the machine was operating could result in serious injuries. The machine which was in operation at the time of the inspection was replaced by a new machine which has a pedal guard on it. Respondent inquired of the manufacturer concerning the installation of a point of operation guard for the new machine and was informed that there was none available. The complainant introduced evidence that there were various available methods of point of operation guarding which would not prevent use of Respondent's riveting machine for the riveting of brake lining to the brake shoe, and were commercially available at Positive Safety Manufacturing Company and at Searjeants. [*29] The evidence showed that foot pedal guard portion of the citation has been corrected and that Respondent will correct the point of operation guard if one can be found which is functional in the operation of riveting linings to brake shoes.
Located at a workbench in the body shop, outside and near the spray room area, at a truck spray room bench, and the work area in the radiator shop, were four hoses equipped with nozzles designed to perform cleaning operations. A regulator on the central air supply indicated that the pressure in the air hoses was 130 psi at the time of inspection. None of the hoses contained a regulator to reduce pressure below 30 psi. The hose in the radiator shop is used to clean radiators which have been dipped in a cleaning solution and involves the use of air, or air mixed with water. The Respondent has corrected all the compressed air hoses to where the velocity is below 30 psi, except the 30 psi requirement on the hose used in the radiator shop. The Assistant Director of Maintenance testified that radiators cannot be cleaned with a hose utilizing pressures of only 30 psi. The employee who does this work per shift is an experienced radiator [*30] expert and wears goggles, a plastic helmet, a rubber apron, rubber boots and rubber gloves. He testified that the cleaning of a radiator in a closed compartment, with all the equipment that the employee wears, is effective chip guarding, and is in compliance with the general interest of the standard even though the psi is in excess of 30.
Mr. James T. Knorp, the Area Director, Tulsa, Oklahoma area office, Occupational Safety and Health Administration, testified concerning the computation of, and explained how, the amount of proposed penalties were determined. On the basis of established policy, he explained that abatement of violations, Respondent's size, its good faith and history, as well as the probability of an accident occurring and the severity of an injury that might occur (gravity) were taken into account in assessing the proposed penalties.
DISCUSSION OF THE EVIDENCE
The complainant contends in its well-prepared brief that the Respondent employer is subject to the requirements prescribed by standard 29 C.F.R. 1910.22(c), and that the vehicle maintenance pits herein under discussion, are "open pits" as contemplated by the standard, and that since workmen in the area of [*31] the vehicle maintenance pits, they presented the same hazards as "open pits." Therefore, a failure to provide covers or guardrails to protect workmen from the hazards of the vehicle maintenance pits resulted in a violation of the above-stated standard.
The Respondent, however, argues that the standard was not applicable to the specially constructed inspection and service area pits. Moreover, it alleges that these pits do not present the hazards found near "open pits" as contemplated by the standard, for the reason that the areas are well-lighted and used continuously on a 24-hour basis, and that the men working these areas were familiar with the conformation of the service area and were required constantly to work in and out of the pit depression. It is contended that the guardrails or covers would unduly impede the movement of employees in their normal operations and create an additional safety hazard. It is argued that the standard cited herein describes only the general requirement of the walking-working surfaces part of the standards, and that there are specific standards in 29 C.F.R. 1910.23 for the guarding of floor and wall openings and holes, but that servicing [*32] areas, lubrication pits, and inspection pits are not mentioned or described in either the general requirements section or the specific section of 1910.23. Moreover, since section 1910.22(c) was adopted from the Walsh-Healey Act which applied to manufacturers selling to the Government and specifically exempted transportation companies, it is argued that in the face of this exemption the instant Act did not contemplate such standard to apply to sophisticated inbound inspection areas as constructed at Respondent's place of business.
29 C.F.R. 1910.22(c) is a general standard providing general requirements that covers and/or guardrails be provided to protect employees from the hazards of open pits, tanks, ditches, etc., in all permanent places of employment, except where domestic mining or agricultural work only is performed.
The primary question raised by such a general standard is whether the burden of proof was met by the complainant to sustain the subjective judgment of the compliance officer that there were "open pit" hazards presented by the vehicle maintenance pits, which were encountered by the workmen in a manner capable of causing injury. If this judgment based upon facts [*33] which are established by the preponderance of the evidence is sustained, then the Respondent must react to the hazards by providing covers and/or guardrails to avoid violation of the standard. The complainant argues that hazards presented by open pits are that an employee may trip, slip or stumble, and thereby fall into the pits, and that the Respondent's vehicle maintenance pits presented these hazards to its employees working around such pits.
Title 29, Chapter 20, Occupational Safety and Health Review Commission Rules of Procedure, subpart 2200.33 and found at 2200.73(a) in the amended rules provide that the burden of proof shall rest with the Secretary in a proceeding commenced by the filing of a notice of contest. The undersigned Judge is not persuaded by the evidence that this burden of proof was sustained in this instance.
The evidence demonstrated that there were no accidents in the vehicle maintenance pit area suffered by any employee since the construction of the new pits two years ago. One accident was reported at the old pit site when an inebriated employee fell into the pit, and an employee was injured during the period when the new pits were being constructed. [*34]
Mr. Robert Begeman, an expert witness, stated in his testimony that during his tenure as safety engineer, safety director, director of transportation, and maintenance director for several large interstate freight transportation and terminal facilities, he could not personally recall a single personal injury involving a grease pit or inspection pit operation similar to that used by the Respondent. He stated after an inspection of the claim department files of his insurance company, which insures 230 to 240 large motor carriers, he was unable to find any record of personal injury involving a lubrication or inspection pit reported by a policyholder over a period of the last five years. He stated, moreover, that he had inspected at least 200 of these inspection and service areas for motor carriers in the industry, and that he had not seen a guardrail between the pits or around them in a single motor transportation company.
This line of testimony was further buttressed by that of employee witnesses who stated that they had not been involved in any accidents causing injuries due to any working conditions at the maintenance pits, and had no knowledge of any other employee [*35] who had incurred injuries due to unsafe working conditions of such pits.
No probative evidence to the contrary was submitted by the Secretary to rebut this testimony, although the compliance officer stated that when he was employed with the Air Force and the Navy, they had vehicle servicing pits which, although smaller in size and involved in a less sophisticated operation, had removable guardrails.
Therefore, it appears from the total sum of the evidence that the Respondent's sophisticated inbound inspection operation presented a low degree of probability of injury and low level of gravity type hazards at their vehicle maintenance pits which are, by degree, not hazards of "open pits" as contemplated by the standard, justifying the application of the standard that covers and/or guardrails be provided to safeguard the workmen. To find otherwise, would require evidence of more probative value, such as a showing of bodily impairment as a result of accidents, other than the two trivial occurrences related, and a showing of a general condition in the industry of lost time accidents directly related thereto. No such evidence was offered.
29 C.F.R. 1910.151(c) provides for suitable facilities [*36] for quick drenching or flushing of the eyes and body within the work area for immediate emergency use when eyes or body of a workman may be exposed to injurious corrosive material. It is uncontroverted that Respondent had, within 8 to 10 feet of a tank containing Okite (a corrosive substance), a screw-type water faucet connected with cool city water with a hose attached which was available for immediate emergency use by the worker for removing Okite from the skin or eyes. The only question is whether or not such facilities are suitable for quick drenching or flushing of the eyes or body. The complainant, at the hearing, referred to a standard found at 29 C.F.R. 1910.94(d)(vii), which provided for more specific and sophisticated facilities, for purposes of clarifying or refining the meaning of 29 C.F.R. 1910.151(c), which, if applied, would in effect replace the cited standard. It has been consistently held by the Commission that a Respondent cannot be held for a violation with which he was not charged in the citation and, consequently, had no opportunity to prepare a defense. The evidence of record supports a finding that the facilities herein afforded and used [*37] by Respondent are suitable for the purposes defined by the standard cited.
The Secretary has sustained the burden of proof necessary to establish violation regarding item 20 of the amended citation, standard 29 C.F.R. Part 1910.212(9)(1). The standard provides that a duty to install machine guarding arises where employees are exposed to hazards created by a machine's points of operation area. The evidence clearly establishes that the operation of the rivet machine would expose the employee to injury if an employee placed his hand or arm into the riveting machine's point of operation. Although Respondent argues that its method of operation is such that an employee, if properly following operation procedure, could never get any part of his body into the points of operation area; however, it is noted that accidents usually result from uncontemplated circumstances.
The Respondent concedes violation of the standard at the time of inspection insofar as not having guards placed at the treadle mechanism or at the point of operation area. The Respondent has introduced evidence only to explain the background of the violation, stating the new installed machine, although correcting [*38] the treadle mechanism guard, had no point of operation safety guard because the manufacturer informed that none was available. However, substantial evidence clearly establishes that there were various available methods for point of operation guarding which were functional to the Respondent's operation and commercially available. The evidence is clear that Respondent was in violation of standard 29 C.F.R. Section 1910.212(a)(1). Despite part abatement of the violation, that portion of the violation which continues justifies the modest amount of the penalty proposed by the Secretary.
Subsection 29 C.F.R. 1910.242 provides compressed air shall not be used for cleaning purposes except where reduced to less than 30 psi, and then only with effective chip guarding and personal protective equipment. The evidence of record establishes that Respondent had compressed air hoses utilizing pressures in excess of 30 psi located at various places at plant including the radiator shop and that such hoses were set up for use as cleaning devices and were so used. All hoses cited in violation of the standard have been adjusted to where the pressures are under 30 psi except in the radiator shop. [*39] The Respondent contended that truck radiators cannot be properly cleaned without pressures of more than 30 psi being used, and since it has provided effective chip guarding and personal protective equipment at the shop, the standard should be reasonably enforced by permitting pressures in excess of 30 psi under carefully prescribed safe-guards so as to allow proper cleaning of radiators
However, the standard requires that all three factors be met: (1) effective chip guarding, (2) personal protective equipment, and (3) a reduction of the air pressure below 30 psi. The absence of any one of the three factors constitutes a violation of the standard.
The Respondent presents circumstances which are grounds upon which it may request a variance. The authority to promulgate standards is not with the Review Commission, but is placed specifically with the Secretary of Labor, and the determination of the wisdom and practicability of such standards remains within the jurisdiction of the Secretary. Section 16 of the Occupational Safety and Health Act gives the Secretary of Labor the power to grant variances, tolerance, and exemptions. Thus, the petition for variance must be made [*40] through the Secretary of Labor rather than in a proceeding before the Occupational Safety and Health Review Commission.
The question of future compliance is not before the Judge, his jurisdiction being restricted to the question of whether there was a violation as charged, and if so, whether the assessed penalty was appropriate.
In the instant case, the complainant sustained the burden of proof in establishing a violation of the standard prescribed by 29 C.F.R. Section 1910.242(b). Although partial abatement of the violation manifests good faith effort to correct the conditions, that condition of the violation unabated justifies the modest amount of the penalty proposed by the Secretary.
FINDINGS OF FACT
1. Respondent, a corporation with a place of business at 3000 West Reno Street, Oklahoma City, Oklahoma, on March 23, 1972, was engaged in the operation of interstate transportation and terminal facilities.
2. Respondent on March 23, 1972, at the time of inspection by the compliance officer, employed workmen who were affected by the twenty-eight items set forth in the amended citation issued June 16, 1972, as violations of standards promulgated pursuant to the Occupational [*41] Safety and Health Act of 1970 for which penalties were proposed.
3. All items of the amended citation issued June 16, 1972, relating to violations of standards promulgated pursuant to the Occupational Safety and Health Act of 1970, except those listed as 4, 16, 20 and 24 have been admitted by the Respondent and were not at issue at this proceeding.
4. The Respondent in its specially constructed inbound inspection area operated four unguarded lubrication, inspection and safety pits, which presented low level of gravity type hazards and where no personal injuries attributed to the unguarded pits were reported during its two years of existence.
5. There was no showing by the evidence of a general condition, industrywide, of lost time accidents directly related to this specific type of operation.
6. Respondent had within 8 to 10 feet of the Okite tank in the steamroom a screw-type water faucet connected with cool city water with a hose attached for immediate emergency use by workmen at the Okite tank.
7. On March 23, 1972, at the time of the inspection, the Respondent had in operation a Chicago riveting machine which had no foot guard on the treadle mechanism and no guard at [*42] the machine's point of operation wherein persons could sustain injury.
8. Respondent by a new installation abated the violation concerning the treadle mechanism guard, although it continues to operate the machine without point of operation guarding when informed by the machines's manufacturer that none was available.
9. Point of operation guarding which was functional to the Respondent's operation of the machine is commercially available.
10. The compressed air hoses utilizing pressures in excess of 30 psi have been adjusted by Respondent to pressures under 30 psi except in the radiator shop where, in order to effectively clean radiators, higher pressures are necessary and used in conjunction with carefully followed safeguards.
CONCLUSIONS OF LAW
1. On March 23, 1972, Lee Way Motor Freight, Inc., Respondent, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.
2. Section 5(a) of the Act (29 U.S.C. 654(a)(2)) imposed a duty [*43] on Respondent to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a)(2) of the Act.
3. All violations of standards contained in the amended citation and the respective proposed penalties therein, except those alleged in items 4, 16, 20 and 24, having been admitted by the Respondent are deemed final orders of this Commission.
4. The complainant has failed to sustain the burden of proof that failure to provide covers or guardrails around the four lubrication, inspection and safety pits in the inbound inspection area by the Respondent was a violation of standard 29 C.F.R. 1910.22(c) item 4 of the amended citation issued June 16, 1972.
5. The complainant has not sustained the burden of proof that Respondent failed to provide suitable facilities with reference to standard 29 C.F.R. 1910.151(c), item 16 of the amended citation issued June 16, 1972, for quick drenching or flushing of the eyes and body in the vicinity of an Okite dip tank.
6. Respondent violated Section 5(a)(2) of the Act on March 23, 1972, by its noncompliance of standard 29 C.F.R. 1910.212(a)(1), item 20 of the amended citation issued June 16, 1972, by failing [*44] to provide guarding to the treadle mechanism and to the point of operation of a Chicago riveting machine and of standard 29 C.F.R. 1910.242(b), item 24 of the amended citation by using air hoses for cleaning purposes at a pressure in excess of 30 psi.
7. The total proposed penalty for the aforesaid violations set forth in conclusions 3 and 6 above in the amount of $360.00, is appropriate giving due consideration to the size of the business of the employer, the gravity of the violation, the good faith of the employer, the employer's previous history, and its action to abate the conditions.
ORDER
Based on the above findings of fact and conclusions of law, it is ORDERED that:
1. Items 4 and 16 of the amended citation issued Respondent June 16, 1972, alleged violations of 29 C.F.R. 1910.22(c) and 29 C.F.R. 1910.151(c) and the proposed penalty thereon be, and the same is vacated.
2. Items 20 and 24 of the Secretary's amended citation issued Respondent June 16, 1972, alleging violations of standards 29 C.F.R. 1910.212(a)(1) and 29 C.F.R. 1910.242(b) and the respective proposed penalties totaling $60.00 are affirmed in all respects.
3. All other violations of standards [*45] herein contained in the amended citation issued June 16, 1972, having been admitted by the Respondent and deemed final orders of this Commission, together with the respective proposed penalties therein in the total amount of $300.00 are affirmed in all respects.
4. The original citation dated June 14, 1972, and the proposed penalties issued in connection therewith are vacated.