OSHRC Docket No. 1189

Occupational Safety and Health Review Commission

July 24, 1973


Before MORAN, Chairman; VAN NAMEE AND CLEARY, Commissioners



  MORAN, CHAIRMAN: On January 10, 1973, Review Commission Judge Vernon Riehl issued a decision in this case holding that the respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) by failure to comply with certain occupational safety and health standards promulgated under section 6 of the Act.   He assessed a penalty of $95.00.   Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission.

After a review of the record in this case, including the brief filed by complainant, the Commission finds no error in that decision.

Accordingly, the Judge's decision and penalty assessment is affirmed in all respects.

[The Judge's decision referred to herein follows]

RIEHL, 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) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a)   of that Act.   The Citation alleges that an inspection of a workplace under the ownership, operation and control of the Respondent revealed the existence of workplace conditions that violate Section 5(a)(2) for the reason that   these conditions failed to comply with certain Occupational Safety and Health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued July 13, 1972, alleges that the violation results from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register.   The description of the alleged violations contained in said Citation states:

Item 1a.   29 CFR 1910.37(g) Page 10496, Col. 1 -- Means of egress if not substantially level and differences in elevation are not negotiated by stairs or ramp.   (West wall, cutting room).

Item 1b.   29 CFR 1910.37(q)(1) Page 10496, Col. 3 -- Exits not marked by a readily visible sign.   (Cutting room).

Item 2.   29 CFR 1910.157(a)(6) Page 10602, Col. 3 -- Extinguishers having a gross weight not exceeding 40 pounds were not installed so that the top of the extinguisher is 5 feet or less above the floor. (General).

Item 3.   29 CFR 1910.212(a)(5) Page 10633, Col. 1 -- Fans with the periphery of the blades less than seven feet above the floor not guarded with a guard having openings no larger than 1/2 inch.   (General).

Item 4a.   29 CFR 1910.215(a)(2) Page 10637, Col. 2 -- The safety guard on the bench grinder does not cover the spindle end, nut, and flange projections.   (Maintenance shop).

Item 4b.   29 CFR 1910.215(a)(4) Page 10637, Col. 2 -- Work rest not provided to support the work on offhand grinding machines. (Maintenance shop).

Item 5.   29 CFR 1910.309(a) Page 10699, Col. 3 which adopts the National Electrical Code NFPA 70-1971, ANSI C1, 400-4 -- Flexible cord used as a substitute for fixed wiring.   (Factory-switch machine).

Date on Which All Alleged Violations Must be Corrected; August 14, 1972.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter from the Occupational Safety and Health Administration, that the U.S. Department of Labor proposed to assess the penalty for the violations alleged in the amount of $95.

  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 Kansas City, Missouri, on October 17, 1972.


Respondent by its Answer, and by stipulation at the hearing (T. 4, 5) limits its contest to the reasonableness of the proposed penalties.

At the hearing the Respondent agreed that there was no question as to the jurisdiction or the fact that there is a violation, and, that it was just a simple question as to the amount of the penalty (T. 5).   A careful review of the total evidence of record establishes that the penalties established following the Citation are reasonable and fair under the Act.

We had some thought of increasing the penalty on Items 1(a) and (b) because we felt that a company with 160 employees having an unmarked exit door over six feet above the ground, might well (in so doing) cause some of the employees to severely injure themselves from a fall.   We considered this especially in view of the fact that some of the employees are in their 60's, and, very easily could have been injured from a six foot or so fall to the ground because they had no knowledge that there was a lack of steps just outside the door.

However, we note that the Respondent did have a good safety record; that they had had frequent inspections from insurance companies and state agencies.   Also, when inspections had been conducted that the Respondent had always taken care of the safety requirements required following such an inspection. The evidence of record indicates that the plant on inspection was found to be in good physical condition and that the employees seemed to be working   in a safe manner.   We note also that Respondent was quick to say he would correct any violations that were found and that he would do something to take care of them.

Based upon a stipulation of the parties made at the hearing, upon testimonies of witnesses and the total record, we make the following findings of fact, conclusions of law and order:


(1) On July 6, 1972, an authorized representative of the Secretary of Labor, Compliance Safety and Health Officer Jack C. Murray, conducted an inspection of Respondent's workplace.

(2) Based on Mr. Murray's inspection, a Citation was issued alleging other than serious violations to the Act.   There were five items alleged as violations, two of which (Items 1 and 4) contain two subsections.

(3) The Respondent, by its Answer, and by stipulation at the hearing, limited its contest to the reasonableness of the proposed penalties (T. 5).

(4) Respondent is a manufacturer of clothing and has 162 employees at its plant (T.5).

(5) In proposing the penalties to be assessed against Mr. Murray considered a number of factors (T.10).

(6) In determining the gravity of the alleged violations, three factors were taken into account; namely, the likelihood of accident or illness, occurring as a result of a violation, the severity of any such accident or illness, and the extent of the violation (T. 12).

(7) The determination of likelihood means the proability of an accident occurring ("based on experience and conditions existing") (T. 12).   Severity relates to the amount of injury or illness which could result (T.12-13).   Factors included in the determination by   the compliance officer are, for example, whether the person would require only first first aid treatment; whether doctor's treatment is required; or whether hospitalization for 24 hours or more would be necessary (T. 13).   In determining the extent of the violation such matters were considered as whether the violation was isolated, whether some violations were observed or whether many violations were observed (T. 13).   Each of the three categories are further subdivided into four groups, A, B, C, and X; numerical values are assigned within these groups (T. 13).   The numerical values range from 2 to 13 for likelihood; from 2 to 13 for severity; and from 0 to 11 for extent of violations (see Exhibit G-7).

(8) The criteria utilized for making these adjustments are indicated on Exhibit G-7 (T. 12-14).   After a number is assigned to each range, namely, likelihood, severity and extent, then those numbers were totaled, and that total figure was then transferred to a penalty assessment worksheet (T. 14-15).   At that point good faith, size, and history were considered (T. 15).   For good faith an adjustment of 20 percent was made based on the company's apparent genuine interest in safety and health and the fact that the employer had a good safety program.   For size there was no adjustment made because the number of employees of Respondent was in excess of 100.   For history, an allowance of 20 percent was made because there had been no previous violations by the Respondent of the Act.

(9) With respect to each proposed penalty, Mr. Murray utilized a methodology outlined in the preceding Finding of Fact.

(10) With respect to Item Number 1(a) and (b) in the Citation evidence of record shows and Respondent admitted, that a violation of 29 CFR   1910.37(j) had occurred.   The violation consisted of a means of egress not being substantially level and of exits not being marked by readily visible signs.   Further that there was a drop of approximately six feet at the exit doors on the west side of the plant (T. 17).   The hazards were considered during possible emergency situations, namely, fire (T. 17).   Also considered in the evaluation of penalty was the fact that there were sprinklers in the building and that, on the other hand, there were combustible materials in the building (T. 17).   There was a boiler which might explode, therefore raising the possibility of employees needing to make emergency exits (T. 18).   The severity of an injury which could result from the violation was considered.   Also, because of the possible emergency panic conditions that might occur, there could be broken bones (T. 18).   Accordingly, the severity of the violation was considered to be moderate. The extent of the violation was considered to be low because there were other exits outside the room.   Based on the above procedure, Respondent was allowed 14 points for gravity of the violation cited in Items 1(a) and (b).   Using Exhibit G-7, the 14 points resulted in an unadjusted penalty of $115 (Exhibit G7, T. 18); then 20 percent for good faith, 20 percent for history, and zero for size (T. 15), reduced the unadjusted penalty by 40 percent and also a 50 percent abatement credit was allowed, on the assumption that abatement would be made promptly (T. 18-19).

(11) In relation to Item Number 2 evidence establishes that the fire extinguishers were installed too high above the floor (Citation; T. 19).   On this item the following factors were taken into consideration in proposing no penalty for the violation: the likelihood of injury was low because the fire extinguishers were only a foot higher than required by the standard; the   potential injury would result in minor foot injuries, or facial irritation, and the extent of the violation was moderate (T. 19-21).   The total number of points was 10, and, accordingly, no penalty was proposed (Exhibit G-7; T. 20).

(12) In regard to Item Number 3, improperly guarded fan blades were found to exist (Citation; T. 21).   On this item the following factors were taken into account in proposing a penalty of $30 for the violation: the likelihood was low because the fans were not normally moved; thus, the danger of accidental contact by the fingers with a moving blade was not great (T. 22).   The severity was found medium because anyone cut by a fan would need a doctor's treatment.   The extent of the violations was medium because about half the fans did not have adequate guards. The total number of points given was 13, yielding an unadjusted penalty of $100 and a proposed penalty of $30 (Exhibit G-7; T. 22).

(13) On Item 4(a) and 4(b) an inadequate guard was found on a bench grinder and a lack of a work rest to support the work (Citation; T. 22-23).   No penalty was proposed because it was considered the likelihood of injury was low because most of the work was performed at the front of the stone, and the machine was only used occasionally; the severity amounted only to first aid treatment; and the extent of the violation was found to be low because only one machine, used in maintenance work, was involved (T. 22-23).   Accordingly, a numerical total of 7 points resulted in a proposed penalty of zero (Exhibit G-7; T.23).

(14) On Item Number 5 of the Citation the record shows that a flexible cord was being used as a substitute for fixed wiring (Citation; T. 23-24).   A penalty of $30 was proposed on this violation because the likelihood of injury was low because the machines were not normally   moved, and the cords were in good condition (T. 24).   Also, since electrical fire or shock could result, the severity was viewed as moderate. The extent of the violations was also moderate since only three cords were found in violation (T. 24-25).   A total numerical value of 13 was given which yielded an unadjusted penalty, which was subsequently adjusted to $30 (T. 25).


Based on the aforesaid findings of fact and the credible evidence of record, we find the following conclusions of law:

(1) The Respondent violated Sections 29 CFR 1910.37(j), 29 CFR 1910.37(q)(1), 29 CFR 1910.157(a)(6), 29 CFR 1910.212(a)(5), 29 CFR 1910.215(a)(2), CFR 1910.215(a)(4) and 29 CFR 1910.309(a).

(2) The proposed penalty for each item of the violations set forth in the preceding paragraph are appropriate under the facts and circumstances of the action.   Each of these penalties are reasonable under the circumstances involved and the penalties proposed for said violations took proper account of the statutory criteria and the regulations established for their enforcement, and, are supported by evidence of record.


Based upon the findings of fact and conclusions of law, and the total credible, probative evidence of record, it is hereby ordered:

(1) The Citations issued for non-serious violations be, and the same, are hereby affirmed.

  (2) The penalties for the foregoing Citations, mentioned in paragraph 1 of this Decision are hereby affirmed.