ST. MARY'S COTTON MILL, DIVISION OF LESHNER CORPORATION

OSHRC Docket No. 1183

Occupational Safety and Health Review Commission

June 18, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On January 11, 1973, Judge Charles K. Chaplin issued his decision in this case.

On February 13, 1973, review by the Commission of the Judge's decision was ordered pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter "the Act") on the single issue of whether the citation was issued with "reasonable promptness" as required by section 9(a) of the Act. This issue and the related question of whether the Commission can raise an issue not in contention at the hearing are the only issues briefed by the Secretary. Respondent, although expressing an intent to file a brief, did not do so.

The Commission has reviewed the entire record and finds no prejudicial error in the Administrative Law Judge's decision.

The issue of "reasonable promptness" 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 [*2] majority opinion subscribed by Commissioner Van Namee and Chairman Moran in Chicago Bridge & Iron Co., No. 744 (January 24, 1974). It is now well settled that under these circumstances the issue should not be examined. E.q., Morrison-Knudsen Co. & Assoc., No. 692 (March 28, 1974); Advance Air Conditioning, No. 1036 (April 4, 1974).

In view of the absence of prejudicial error, the Administrative Law Judge's decision is affirmed in all respects.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: In this case, 64 days expired between the inspection which disclosed the violation and the issuance of a citation. During that period employees' lives were presumably in danger. Congress didn't want this type of foot-dragging by the Secretary of Labor. It therefore required him to issue citations promptly following any inspection which discloses hazard to employees. While there are some who will condone this dawdling and dilly-dallying by the Secretary while hazards persist, I am not among them. My views upon the reasonable promptness requirement have been expressed in detail in Secretary v. Advance Air Conditioning, Inc., [*3] and Secretary v. Lee Way Motor Freight, Inc.,

[The Judge's decision referred to herein follows]

CHAPLIN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act), wherein Respondent contests citations dated June 27, 1972, as amended June 30, 1972. The citations allege that as a result of an inspection of Respondent's workplace in April 1972, the Complainant found Respondent in nonserious violation of the standards contained in 29 CFR 1910 in 19 separately stated instances, to wit:

Item number -- Standard or regulation allegedly violated -- Description of alleged violation

1 -- 29 CFR 1910.242(b) -- Failure to reduce shop air used for cleaning purposes to a pressure below 30 p.s.i. e.g. (22) air nozzles in West Building basement and (4) air nozzles in East Building first floor operating at pressures in excess of 30 p.s.i.

2 -- 1910.219(d)(1) -- Failure to provide guards for pulleys located seven (7) feet or less from the floor or working platform in accordance with paragraphs (m) & (o) of this section. e.g. (11) serger [*4] machines (2) bench grinders, (5) straight sides (2) sewing machines (6) automatic stitchers in West Building basement and a circular saw, drill, rewinding machine, (59) serger machines in East Building without pulley guards.

3 -- 29 CFR 1910.212(a)(5) -- Failure to guard the periphery of the blades of a fan situated less than seven feet above the floor. Guards shall have openings no larger than one-half inch. e.g. (2) fans in the West Building basement and one fan in the East Building first floor inadequately guarded.

4 -- 29 CFR 1910.157(a)(6) -- Failure to mount portable fire extinguisher weighing 40 pounds or less at a height of 5 feet or below measured from the top of the extinguishers. e.g. One fire extinguisher in Room W-1, (3) in Room W-2 in West Building basement and one in West Building first floor improperly mounted.

5 -- 29 CFR 1910.212(b) -- Failure to anchor fixed machinery. e.g. Unanchored bench grinder in Room W-1, West Building basement.

6 -- 29 CFR 1910.215(b)(4) -- Failure to provide proper gap of 1/8 inch between wheel and work rest. e.g. Bench grinder in Room W-1, West Building basement without work rest.

7 -- 29 CFR 1910.262(o) -- Failure to guard all [*5] revolving blades on shearing machines so that the opening between the cloth surface and the bottom of the guard will not exceed three-eighths inch. e.g. Cutting table knife in West Building first floor, and (8) tailor knives in the East Building basement with unguarded blades.

8 -- 29 CFR 1910.308 and 1910.309(a) N.E.C. of N.F.P.A. 70-1971. Article 250-42(a) -- Failure to ground exposed noncurrent carrying metal parts of fixed equipment that are likely to become energized under abnormal conditions and located within 8 feet vertically or 5 feet horizontally of ground or grounded metal objects and subject to contact by persons. e.g. Serger #5 in the West Building basement, bench grinder in Room W-1 in West Building basement, and (2) sewing machines in Room W-2 in West Building basement ungrounded.

9 -- 29 CFR 1910.37(q)(1) -- Failure to mark exits by readily visible signs. e.g. Unmarked exit in Southeast corner of West Building basement and in Northeast corner of West Building first floor.

10 -- 29 CFR 1910.212(a)(1) -- Failure to provide machine guarding to protect the operator and other employees in the area from hazards such as those created by point of operation, [*6] ingoing nip points, or rotating parts. e.g. Six Aerohem automatic stitchers in Room W-2 of West Building basement with unguarded blades and a package tying machine in the East Building first floor with unguarded arm.

11 -- 29 CFR 1910.213(i)(1) -- Failure to guard all portions of the saw blade of a bandsaw except for the working portion of the blade between the bottom of the guide rolls and the table; also the front and back of the bandsaw wheels shall be enclosed by solid material or wire mesh or perforated metal not less than 20 Gage material. Openings shall not be greater than 3/8 of an inch. e.g. Band saw blade unguarded in Room W-12 West Building, first floor.

12 -- 29 CFR 1910.22(d)(1) -- Failure to provide sign or plate showing approved floor loads placed in a conspicuous manner by a building official or an authorized agent. e.g. Floor capacity signs missing throughout plant.

13 -- 29 CFR 1910.23(b)(3) -- Failure to guard every window wall opening at a stairway landing, floor, platforms or balcony, from which there is a drop of more than 4 feet, and where the window opening is below the landing with standard slots, standard grill work, or standard railing and standard [*7] toe board. e.g. Unguarded window at stairwell landing between second and third floor of the East Building.

14 -- 29 CFR 1910.22(b)(2) -- Failure to mark permanent aisles and passageways throughout plant. e.g. Aisles unmarked throughout the plant.

15 -- 29 CFR 1910.176(b) -- Failure to provide storage for materials so as not to create a hazard and secured against sliding or collapse. Poor pipe storage practices in the Maintenance Room of the East Building basement.

16 -- 29 CFR 1910.213(a)(12) -- Failure to cover with an exhaust hood or guard the portion of the saw on all circular saws, either beneath or behind the table where there is a possibility of contact. e.g. Unguarded circular saw blade in the Maintenance Room of East Building basement.

17 -- 29 CFR 1910.22(a)(1) -- Failure to maintain all places of employment, passageways, storerooms and service rooms clear and orderly and in a sanitary condition. e.g. Poor housekeeping with boards, wire, etc. on the floor of the maintenance room of East Building basement.

18 -- 29 CFR 1910.215(a)(2) -- Failure to provide safety guard to cover spindle end, nut and flange projections on abrasive wheel machinery. e.g. End [*8] guard missing on pedestal grinder in the Maintenance Room of the East Building basement.

19 -- 29 CFR 1910.219(f)(1) -- Failure to guard gears by a complete enclosure, a standard guard, or by a band guard. e.g. Unguarded gears on the Schnutz was cloth cutting machine in the East Building, first floor.

Penalties were proposed for items 2, 7, 8, 10, 11, 13, 15, 16, 18 and 19, ranging from $30 to $60 and aggregating $375. Respondent filed its notice of contest July 18, 1972, proposing to contest the proposed penalties. On July 28, 1972, the Secretary served a complaint on Respondent and other interested parties. The Complaint further amended the citation by changing the standard for item 6 to 1910.215(a)(4). Respondent in its answer to the complaint admitted it was subject to the Act but that in view of its cooperation, good faith, lack of serious nature of the alleged violations, and its agreement to abate and its actual abatement of the alleged violations, imposition of a penalty was not justified and such penalties were arbitrary, capricious, unjustified and unconstitutional. Further that the Act as administered and applied with respect to Respondent, and particularly [*9] without limitation, as requiring Respondent to pay penalties in view of abatement, is unconstitutional.

This cause was referred to the undersigned for trial which was held November 16, 1972, in Cincinnati, Ohio. There were no representatives of Respondent's employees at this trial. At the time of trial the parties stipulated that Respondent was engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, that Respondent's premises in St. Mary's, Ohio were under the ownership and/or control of Respondent at all times material herein and that the proposed abatement dates were reasonable.

THE ISSUE

At the trial it was determined that the only justifiable issue was respecting the proposed penalties for items 2, 7, 8, 10, 11, 13, 15, 16, 18 and 19. The complainant offered testimony in explanation of the methodology utilized in determining whether each item cited warranted a penalty and, if so, how much. It was testified respecting the above indicated items that the likelihood of injury was moderate respecting items 2, 8, 10, 11, 15, 16, 18 and 19 and high respecting items 7 and 13. In the latter instances any resulting injury would have been severe enough [*10] to require a doctor. The instances where the cited situation existed were isolated except items 8 and 10 there were some instances (more than isolated) and items 2 and 7 there were many instances (more than 50%). Respondent was allowed the maximum reductions of 20% for its good faith and history but no reduction for size since it had over 100 employees. In addition an overall reduction of 50% was applied based on Respondent's abatement of all items cited. Respondent offered testimony that less than 5 employees utilized the stairway, the subject of item 13.

At Respondent's request the time to file proposed findings of fact, conclusions of law and memorandum of applicable law in support thereof was extended to December 13, 1972. Complainant has submitted its proposals but as of the date of this decision Respondent had not filed any further papers.

FINDINGS OF FACT

1. Respondent concedes the existence of the factual situations alleged by the Complainant in the 19 items of the citation.

2. Respondent was accorded a 20% reduction for its good faith and 20% reduction for its previous history of no violations under the Act. No reduction was accorded for [*11] size because Respondent had over 100 employees.

3. Respondent was accorded an overall additional reduction of 50% based on projected abatement of all items cited, which was accomplished.

4. The factual situations reflected by the 19 cited items constitute a hazard to the employees of Respondent.

5. While Respondent is a smaller business than its competitors it is not a small business as measured against business in general.

6. The Respondent's work situations for which it was cited and for which penalties were proposed are not de minimis.

CONCUSIONS OF LAW

1. Respondent was at all times mentioned herein and is now an employer with employees and is engaged in a business affecting commerce with the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Review Commission has jurisdiction over this matter and the parties.

3. The regulations found in 29 CFR 1910 were applicable to Respondent and it violated 19 specific subsections thereof, constituting violations of Section 5(a)(2) of the Act.

4. All of the violations were nonserious. The penalties proposed for items 2, 7, 8, 10, 11, 13, 15, 16, 18 and 19 were, in the light of Respondent's [*12] size, gravity of the violations, Respondent's good faith and its history of no previous violations, appropriate within the meaning of Section 17(j) of the Act.

5. The penalties proposed did not deprive Respondent of any of its constitutional rights.

In view of the foregoing, having given due consideration to the appropriateness of the penalty proposed with respect to the size of Respondent's business, the gravity of the violation, the good faith of Respondent and its history of no previous violations, now therefore, it is ORDERED that:

The amended citation and proposed penalty respecting items 2, 7, 8, 10, 11, 13, 15, 16, 18 and 19 be, and the same are, hereby affirmed.