GENERAL ELECTRIC COMPANY

OSHRC Docket No. 12063

Occupational Safety and Health Review Commission

March 28, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

R. W. O'Keefe, Department Counsel, General Electric, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as "the Act"], a decision of Administrative Law Judge William E. Brennan has been directed for review before the Commission on the basis of the Secretary's exceptions raising the following issue:

Whether the Administrative Law Judge erred in vacating the alleged non-serious violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1910.22(c).

For the reasons given below, the Judge's decision is reversed and the citation is affirmed.

Respondent, General Electric Co., maintains a facility in Erie, Pennsylvania for the manufacture of railroad locomotives and cars. A spray paint room that is 100 feet long and 21 feet wide, which is used to paint the assembled cars is located in building 12 of the facility. The room contains a pit that is 98 feet long, 4 feet [*2] wide, and 5 feet deep, which is used to facilitate painting the underside of the cars. Rails are located on the floor on either side of the pit to accommodate the car wheels.

A powered personnel carrier used by employees painting the sides, tops, and ends of the cars is located along each side of the paint room. Each carrier is mounted on a vertical steel column which traverses the length of the room on rails in the floor and ceiling.

When a railroad car is being painted, it covers most of the pit. After painting is completed, the car is rolled out, and the pit is left unguarded. Thereafter, a general cleanup begins. The painting process results in a large amount of debris consisting mostly of masking paper and tape. Between 50 and 150 cubic feet of paper may accumulate at times covering the floor of the room to a depth of one foot. The cleanup crew usually consists of two painters. To sweep the room, the crew members use long-handled industrial brooms, scrapers, and shovels. They sweep the debris either into the pit or into a corner of the room. In both cases the refuse is later put into boxes and removed. The entire cleanup procedure usually requires 1/2 to 1-1/2 hours. [*3] The painters never approach closer than two to three feet from the edge of the pit. In order to prevent slipping they wear nonskid shoes, and all spilled paint is cleaned up immediately. A "job hazard analysis" was prepared for each room in the facility and has been distributed to employees. The analysis for the spray paint room warns of the presence of the pit and cautions employees to "avoid unnecessary closeness."

When the compliance officer arrived at the facility, the spray paint room was littered from the previous painting operation. Mr. Melvin Wilcox, a manufacturing engineer employed by respondent, testified that after the compliance officer's arrival he remembered that the facility had previously been cited for a housekeeping violation. He, therefore, assembled an 8-10 member crew which was sent into the spray paint room by foreman McLaughlin to remove the debris. When the compliance officer entered the room he observed two employees jumping into the pit, and several employees coming within one foot of its edge.

On the basis of these observations, respondent was cited for a repeat n1 violation for noncompliance with the standard at 29 CFR 1910.23(c)(1). n2 A penalty [*4] of $110 was proposed. At the beginning of the hearing, the Secretary moved to amend the citation to allege, in the alternative, a nonserious violation of either 29 CFR 1910.23(a)(5) n3 or 29 CFR 1910.22(c). n4 Although respondent objected to the motion, it stated that it was prepared to meet the substantive issues raised by the amendment on the condition that, if necessary, it be allowed time to introduce additional evidence. Accordingly, the amendment was granted.

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n1 Respondent had previously been issued a citation for failure to comply with 1910.23(c)(1) on December 2, 1974. That citation was not contested and became a final order of this Commission.

n2 1910.23 Guarding floor and wall openings and holes

* * *

(c) Protection of open-sided floors, platforms, and runways

(1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section), on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

n3 1910.23

(a) Protection for floor openings

* * *

(5) Every pit and trapdoor floor opening, infrequently used, shall be guarded by a floor opening cover of standard strength and construction which should be hinged in place. While the cover is not in place, the pit or trap opening shall be constantly attended by someone or shall be protected on all exposed sides by removable standard railings.

n4 1910.22 General requirements.

* * *

(c) Covers and guardrails.

Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.

[*5]

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In his decision, the Judge concluded that none of the cited standards applied to respondent's spray paint room. He held that 1910.23(c)(1) was inapplicable because the room was not an "open-sided floor." He also found that 1910.23(a)(5) was improperly cited because the pit was frequently used and the guarding requirements of the standard apply only to pits which are infrequently used. Finally, noting that the paint room was accessible only to authorized personnel, the Judge concluded that the pit was not "open" and, accordingly, is not regulated by 1910.22(c). Judge Brennan also found that all possible methods of guarding would create a greater hazard than would exist had the pits not been guarded. Moreover, he held that the situation observed by the compliance officer was an isolated event which contravened respondent's work rules. Noting that no employee had ever fallen into the pit, he concluded that during respondent's normal cleanup procedure the pit does not pose a hazard to the cleaning crew.

Respondent argues that 1910.22(c) is not applicable to the facts of this case, but if applicable [*6] compliance with the standard would pose a greater hazard than would noncompliance. Respondent further contends that it had already reduced the hazard posed by the pits by restricting access to the room to authorized personnel, that the cleanup technique used on the day of the inspection constituted an isolated incident, and that citing three standards in the alternative violates the Act. The Secretary contends that 1910.22(c) is applicable, that respondent's failure to guard the pits constituted a hazard, that the events on the day of the inspection were not an isolated instance, that the usual cleanup procedure also violates the requirements of the standard, and that compliance with the standard would not create a greater hazard than noncompliance.

We agree with the Judge, for the reasons he has set forth, that the standards at 1910.23(a)(5) and 1910.23(c)(1) are inapplicable to the facts of this case. He erred, however, by holding that 1910.22(c) was not applicable on the ground that the pit was not "open" within the meaning of the standard because it was inaccessible to unauthorized personnel. Confronted with the same argument, the U.S. Court of Appeals for the Tenth [*7] Circuit in Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir., 1975) stated that:

The purpose of the standard is of course to protect the employees who are working in the area, not those who are barred from the area. They need no protection. And the standard itself suggests that a "pit" is an "open pit" unless there be appropriate cover or guardrails.

511 F.2d at 869

The Judge also erred in concluding that during respondent's usual work procedures the pit does not present a hazard. During the cleanup operation employees routinely come within three feet of the pit's edge on a floor inundated with debris. We find that the employees had access to the hazard. Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976).

Inasmuch as respondent's employees were exposed to the hazard of the open pit during their regular operating procedures, we do not pass upon respondent's defense that the events actually observed by the compliance officer during his inspection were the result of an isolated and unforeseeable violation of respondent's work rules. Employees were regularly exposed to the unguarded pit and our finding is not [*8] predicated on the unique circumstances arising from the compliance officer's presence.

Respondent also argues that the methods of abatement suggested by the Secretary would increase the risk of injury. n5 The Judge agreed, holding that respondent established the "greater hazards" defense discussed in Industrial Steel Erectors, 1 BNA OSHC 1497, 1973-74 CCH OSHD para. 17,136, (No. 703, 1974). We are not persuaded. The greater hazards defense is available only in limited circumstances, and is not available in circumstances that may permit a variance under section 6(d) of the Act. Industrial Steel Erectors, supra; George A. Hormel and Co., 2 BNA OSHC 1190, 1974-75 CCH OSHD para. 18,685 (No. 1410, 1974), aff'd on reconsideration, 2 BNA OSHC 1282, 1974-75 CCH OSHD para. 18,881 (1974). n6 There is no indication that resort to the variance procedure would be inappropriate. Therefore, the "greater hazards" defense must fail.

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n5 Respondent contends, for example, that the process of installing covers or guardrails would entail greater employee exposure to the open pit than currently exists. Moreover, respondent expressed fears that a cover on the pit would trap volatile paint fumes, thereby creating a danger of explosion or fire. In this regard, the Secretary observes in his brief that respondent could utilize a grated cover which would allow the pit to ventilate. The Secretary further argues that a rail mounted sliding cover could be installed which would not require excessive employee exposure.

n6 Respondent's argument that George A. Hormel and Co., supra. is not good authority because it has not subsequently been relied upon by the Commission is without merit. See, e.g., Russ Kaller, Inc., t/a Surfa-Shield, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976).

[*9]

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Finally, respondent objects to the Secretary's amendments to the original citation which were granted by the Judge at the beginning of the hearing. Although it objected to the amendments, respondent indicated that it was prepared to address the amended citation. Further, respondent has given no indication that it was prejudiced by the amendment. n7 Therefore, we find that the Judge properly granted the Secretary's motion to amend the citation. See Ringland-Johnson Co., 4 BNA OSHC 1343 1976-77 CCH OSHD para. 20,801 (No. 3028, 1976), petition for review docketed, No. 76-1687, 8th Cir., August 12, 1976.

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n7 Respondent made no effort to avail itself of the opportunity to present additional evidence.

Respondent's objection to the Secretary's alternatively citing three standards is without merit. Alternative pleading is expressly permitted by Fed. R. Civ. P. 8(e) and, in my view, should be encouraged by the Commission. See Henkels & McCoy, 4 BNA OSHC 1502, 1976-77 CCH OSHD para. 20,944 (No. 8842, 1976).

[*10]

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Regarding the penalty we find the gravity of the violation to be moderate. Despite respondent's precautions, at least two employees were regularly exposed to the hazard of the open pit. We find the $55 penalty proposed by the Secretary to be appropriate.

Accordingly, it is ORDERED that the Judge's decision is reversed. The citation for nonserious violation of 29 CFR 1910.22(c) is affirmed and a penalty of $55 is assessed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Brennan's conclusion in his well-reasoned decision, attached hereto as Appendix A, that respondent did not violate any of the three regulations cited in the charges is imminently correct. Therefore, his decision should be affirmed.

Furthermore, vacation of the citation is required because the motion to amend the citation should have been denied. The citation, as issued, alleged noncompliance with 29 C.F.R. 1910.23(c)(1), a standard which the majority correctly finds is inapplicable to the facts of this case. Amendment of the citation, over respondent's objections, to charge violations of different standards is improper. n8 However, [*11] even assuming that the amendment was proper, the evidence establishes (1) that respondent's employees are not exposed to a hazard by the presence of the open pit in the spray paint room and (2) that required abatement would detract from, rather than enhance, employee safety.

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n8 Because of the unique nature of citations under the Act, 29 U.S.C. 658(a), such amendments are inherently prejudicial and should, except in the most extraordinary circumstances, be denied. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion). Section 658(a) says nothing about relieving the Secretary of Labor from complying with the particularity requirements for citations in those cases where the cited employer fails to show that he was prejudiced by the Secretary's failure to comply therewith.

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The evidence indicates that respondent's two man crew is in the paint room when the pit is unguarded for the purpose of a general cleanup following painting. Cleanup operations take approximately 1/2 to [*12] 1 1/2 hours to complete and the employees are never closer than 2 or 3 feet from the edge of the pit. Additionally, the employees wear nonskid shoes and are warned against approaching too close to the pit. In contrast to these apparently safe work practices, suggested abatement methods would require these same employees to work closer to the pit for longer periods of time.

Judge Brennan concluded, based on respondent's evidence, that the alternative abatement methods "would subject its 2-man painter crews to greater hazards than any which may arise under the established work practices." Respondent has established the affirmative defense recognized by this Commission in Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974), that the safety or health of its employees, under the facts presented, would be diminished rather than enhanced by compliance with the standard. n9 The law as stated in Industrial Steel Erectors is correct and should be followed. A contrary holding runs afoul of the Act's laudable goal of achieving safe and healthful working conditions. n10

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n9 The Commission did not state in that decision that the defense would be unavailable in circumstances that may permit a variance, and it is wrong for the Commission to place that limitation thereon. Secretary v. George A. Hormel and Company, 11 OSAHRC 725 (1974) (dissenting opinion).

n10 Similarly, that goal cannot be achieved so long as complainant's inspectors spend their time looking for insignificant hazards rather than significant ones. In this case, the followup inspection on a prior housekeeping violation caused respondent to depart from its normal safe cleanup procedure in order to rapidly correct the situation and thereby avoid another citation for a housekeeping violation. This unusual departure from normal procedure could have resulted in needless employee injuries.

[*13]

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Appendix A

DECISION AND ORDER

Marshall H. Harris, Regional Solicitor

Howard K. Agran, U.S. Department of Labor, for the Secretary of Labor

R. W. O'Keefe, General Electric Company, for the Respondent

Brennan, W.E.; A.L.J.

This action arises under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c) (hereinafter the Act), to review a Citation for "Repeated" violation of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2) and penalty proposed thereon issued pursuant to Sections 9(a) and 10(a) of the Act, 29 U.S.C. 658(a) and 659(a) by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Pittsburgh, Pennsylvania (hereinafter Complainant), to General Electric Company (hereinafter Respondent), following an inspection of Respondent's Transportation Systems Business Division located at 2901 East Lake Road, Erie, Pennsylvania (hereinafter Erie plant).

On November 1, 1974 Compliance Officer Joseph Chmielewski conducted an inspection of Respondent's Erie plant which was confined to Building No. 12 at this [*14] location, which houses among other things, a general assembly area for the manufacture of transportation vehicles, i.e., railroad locomotives and cars.

As a result of that inspection, Respondent was issued a Citation for alleged Nonserious violations of 29 U.S.C. 659(c) on December 2, 1974, consisting of ten numbered Items. Item number 2 alleged a violation of the Occupational Safety and Health Standard set forth at 29 C.F.R. 1910.23(c)(1) in that, "The open-sided floor, in the following location, which was four (4) feet or more above the adjacent floor level was not guarded by standard railings or the equivalent: (a) Section 9-D of Building 12 - Pit Area." n1

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n1 At the trial herein, Compliance Officer Chmielewski explained that in Section 9-D of Building No. 12, an open shop or general assembly area, there were about 8 pits, each measuring about 90 feet long, 5 feet in depth and 4 1/2 feet in width. Six of these eight pits were adequately protected with pipe and chain guardrails. Two were not. These two pits formed the basis for that charge (Tr. 24-30, Exh. C-1 - C-4).

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Item number 1 of that Citation alleged a so-called "housekeeping violation," of 29 C.F.R. 1910.22(a)(1), to wit, "The following areas, were not kept clean and orderly: (a) Section 9-D of Building 12 (b) Section 7-D of Building 12 (c) Pit Area of Building 12."

The Citation of December 2, 1974 was not contested by Respondent and thus became a final Order of the Review Commission by operation of Section 10(a) of the Act, 29 U.S.C. 659(a).

On December 19, 1974 Officer Chmielewski conducted a follow-up inspection of Respondent's Building 12, all abatement dates set forth in the Citation of December 2, 1974 having passed.

As a result of this follow-up inspection, Respondent was issued on January 6, 1975 the Citation for "Repeated" violation here under review, for which a civil penalty of $110 was proposed (R. p. 1, 2).

Respondent filed a timely Notice of Contest to this Citation and penalty proposal (R. p. 3).

Thereafter a Complaint was duly filed as was Respondent's Answer thereto (R. p. 6, 7).

Pursuant to prior written notice (R. p. J-1, J-3), this matter came on for trial at Erie, Pennsylvania, both parties being represented [*16] by counsel. No effected employees or representatives thereof desired party status (Tr. 2).

Post-trial briefs were received from both parties (R. p. J-10, J-11).

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations, admissions and arguments of the parties, it is concluded that the substantial, reliable and probative evidence of this record considered as a whole supports the following findings of fact and conclusions of law.

The following matters were stipulated to or admitted in pleadings.

Respondent, General Electric Company, is a New York corporation having its principal offices located in Fairfield, Connecticut and its Transportation Systems Business Division at 2901 East Lake Road, Erie, Pennsylvania, where it manufactures transportation products, shipping its finished products throughout this country and the world. This company is, and at all relevant times, was engaged in a business affecting commerce. No injuries are associated with this case. No other companies are engaged in a similar business in the same geographical area. Respondent's 1973 sales totaled 11.5 billion dollars. It has [*17] 12,900 employees working at its Erie plant, with 9,450 of these employees employed in the Transportation Systems Division. No guardrails are considered necessary by Complainant when a vehicle is being painted in the paint spray room in question (Tr. 2-5, 7; R. p. 6, 7).

Based upon these facts it is concluded that Respondent is an employer engaged in a business affecting commerce and, upon the filing of the Notice of Contest herein, the Review Commission has jurisdiction in this matter.

At the outset of the trial, before any evidence was received, Complainant moved to amend the Citation herein, to allege, in the alternative, a Nonserious violation of the Standards set forth at 29 C.F.R. 1910.22(c)(1) or 1910.23(a)(5) on the grounds that the same facts underlying the original "Repeated" Citation might also constitute a violation of either one or both of the Standards sought to be pleaded in the oral Motion to Amend (Tr. 7-9). The penalty proposed for any violation of the Standards sought in the Motion to Amend was reduced to $55 (Tr. 10).

Respondent objected to this Motion upon the grounds that it would result in a failure to comply with the requirements set forth in Section 9 of [*18] the Act, 29 U.S.C. 658, regarding the issuance of Citations with reasonable promptness, that citations be in writing and describe the nature of the violation with particularity (Tr. 9, 10).

Complainant's Motion was granted after Respondent's counsel stated that he was prepared to meet the substantive issues raised by the amendment, upon the condition, however, that if Respondent desired to introduce additional evidence because of the amendment, additional time and opportunity would be granted (Tr. 11-13).

This case thus presents the basic questions of whether the conditions found in the follow-up inspection of December 19, 1974, in Respondent's paint spray room in Building 12 at its Erie plant, constitute a "Repeated" violation of the 29 C.F.R. 1910.23(c)(1) as originally alleged, or a Nonserious violation of either 19 C.F.R. 1910.22(c)(1) or 1910.23(a)(5). If any violation is established, it must also be determined what, if any, civil penalty is appropriate.

The citation for "Repeated" violation issued to Respondent on January 6, 1975, sets forth the following:

Standard Allegedly

Description of

Abatement

Violated

Alleged Violation

Date

29 CFR 1910.23(c)(1)

The open-sided floor, in

Immediately

the following location,

upon receipt

which was four (4) feet

of citation

or more above the adja-

cent floor level was not

guarded by standard rail-

ing or the equivalent:

(a) Paint spraying area

The employer was previous-

ly cited for a violation

of this Occupational Safety

and Health Administration

Standard which was con-

tained in Item Number Two

(2) of the Citation issued

December 2, 1974.

[*19]

As mentioned earlier, a penalty of $110 was proposed. The cited Standard and those added by Complainant's Amendment of the Citation, in pertinent part provide:

29 C.F.R. 1910.23(a)(1)

Protection of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides.

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

29 C.F.R. 1910.22(c) n2

Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.

29 C.F.R. 1910.23(a)(5)

Every pit and trapdoor floor opening, infrequently used, shall be guarded by a floor opening cover a standard strength and construction which should be hinged in place. While the cover is not in place, the pit or trap opening shall be constantly attended by someone or shall [*20] be protected on all exposed sides by removable standard railings.

There is no substantial disagreement in the evidence of this record on the following facts.

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n2 In his motion to amend, Complainant's counsel arroneously identified this Standard as 1910.22(c)(1) (Tr. 7). There is no subparagraph (1) under paragraph (c) of 1910.22.

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When Officer Chmielewski returned to Respondent's Erie plant on December 19, 1974 to conduct a follow-up inspection to determine if abatement of the previously cited conditions had been affected, he was accompanied by Mr. McBee, Respondent's Administrator for Occupational Safety and Health matters, Mr. Hewitt, Respondent's Safety Supervisor for Building 12 and Mr. Allen, who was in charge of manufacturing in this building.

While making his check on abatement in the manufacturing area of Building 12, the Compliance Officer ". . . noted a lot of activity near the spray room (located in Building 12) with people coming out, and people going in. I looked into the spray room, and I observed [*21] the employees (from 8 to 10, Tr. 32) working in the room near an open-sided pit, which was approximately 90 feet long, and about 4 1/2 feet across, and about 5 feet in depth. There were no guardrails around the pit, or anything to prevent an employee from falling into the pit." (Tr. 30, 31, parentheses supplied.)

At the outset, it should be noted that the subject of this case is a pit within Respondent's paint spray room in Building 12, shown as the yellow shaded area on the schematic plan of Building 12, Exh. R-1. It is immediately to the north (or right on Exh. R-1) of the general assembly area in Building 12, which was the subject of the Citation issued Respondent on December 2, 1974. n3

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n3 Exhibit R-2 is a photograph of a portion of the general assembly area showing temporary guardrails around the pit at that location and abatement of the poor housekeeping conditions which were the subject, in part, of Items Numbered 1 and 2 of the prior Citation.

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This paint spray room in Building 12 is a completely enclosed [*22] room, including a ceiling. The east and west sides of the room are steel. The north and south steel walls each contain a large overhead steel roll door, which are opened to allow entry and exit of locomotives and other vehicles which are to be painted within the room. "Man doors," or doors for the use of employees, are located in the north and south walls as well as an emergency exit to the outside in the east wall (Tr. 162, 163, Exh. R-3). This paint spray room is designated a "Restricted Area" and only "Authorized Personnel" have access to this room (Tr. 163, Exh. R-3). The only personnel who are authorized to enter this room are Respondent's painters, assigned tasks within this room and their supervisors (Tr. 163).

This room measures approximately 100 feet in length and 20 feet in width. Down the center of this room there is a pit, 98 feet long, 4 feet 2 inches wide and 5 feet deep. Along each edge of this pit are rails, on which vehicles are rolled into the room for painting. The pit is used by the painters to paint the undersides of the locomotives and transit cars manufactured by Respondent. A steel ladder is permanently affixed at the north end of this pit for access [*23] in and out of the pit. The walls of the pit are concrete, as is its floor, which is below ground level. Nothing is stored in the pit so that the painters working within it are not obstructed in their painting duties. The floor of the pit as well as the floor of the ground level above the pit are kept free of oil and grease. The room is equipped with forced ventilation and air filters, as well as batteries of 1,000-foot candle powered lights which are explosion-proof. When this room is not in use, a 20-foot candle power light remains on to provide sufficient illumination for someone to enter the room and turn on the main lighting.

Along each side of this room there is located a "man carrier" or powered personnel carrier. Each carrier is mounted on a steel vertical column. The vertical column runs horizontally along the length of the room, on a rail in the floor and another rail in the ceiling. The carrier mounted on the vertical column is a three-foot 7-inch-wide work platform, enclosed on three sides by heavy steel guardrails. The painter, who operates the carrier using controls on the platform, moves the carrier vertically up or down, horizontally along the length of the [*24] room, and can also swing the carrier out away from the wall of the room to paint the top, front or rear of the vehicle being painted. When these carriers are in their stored position, i.e., with the platform centered over the rail upon which it moves, the clearance between the carrier on the east side of the room and the east wall is 1 foot 10 inches, and a 6-inch clearance exists between the west wall and the carrier used on that side of the room.

These "man carriers" were designed, manufactured and since 1968 have been used by Respondent to expedite and make more safe the painting of transportation vehicles at its Erie plant. Their use makes unnecessary any scaffolds or ladders in the painting rooms (Tr. 162-176, Exhs. R-5, 6, 7, 8, 9).

Normally, the paint spray room in question is used exclusively to paint locomotives and transit cars. This work consists of two phases, the actual priming and painting of the vehicle and the cleaning of the room after the painted vehicle is wheeled out of the room. A painting "crew" consists of two painters. Locomotives, the most numerous type of vehicle painted in the paint room in question, vary from 56 to 72 feet in length and approximately [*25] 10 feet 3 inches in width. Transit cars, also painted in this room, vary from 80 to 85 feet in length (Tr. 165). Thus, when these vehicles are being painted, most of the pit in question is covered by these vehicles. A metal "cross over" plate, 30 inches wide and weighing 79 pounds is installed at either end of the pit to provide a means for painters to go from one side of the pit to the other (Tr. 170, 209, 210). No question is raised in this case of Respondent's practices which are followed when a vehicle is within the paint room being painted (Tr. 3).

The painting of a locomotive requires from 3 to 7 eight-hour shifts for the 2-man painter crews. During this work phase, thousands of feet of masking paper and tape are used to effect the various painting designs ordered by the customer. (See photo Exh. R-11 for an example of a completed locomotive). During the painting operation from 50 to 150 cubic feet of paper and tape accumulate on the floor of the paint room and in the pit (Tr. 177, 178, 231). Except for the underbody of the vehicle being painted, which is accomplished from the pit below the vehicle, the sides, top and ends of the vehicle are painted primarily from the [*26] "man-carriers." (Some of the lettering on vehicles is done by specialized painters working from the "deck" or catwalk running along the side of the locomotive itself (Tr. 244).

When the painting phase of the work is completed, the vehicle is rolled out of the spray room and the cleanup phase takes place. This work is done by the 2-man paint crew assigned to this room first reporting to this location after the painting phase is completed (Tr. 65-67).

The cleanup phase normally takes from 1/2 to 1 1/2 hours to complete. Large pieces of masking paper may first be removed. Then the two painters, using long-handled industrial brooms, scrapers, and shovels sweep the remaining paper and tape debris into the pit. They do not come closer than 2 to 3 feet to the edge of the pit. The debris in the pit is then swept to one end, put into containers and removed from the paint room. An alternative method is to sweep the debris on the floor on each side of the pit into piles at one end of the room, remove this trash and then sweep down the pit and remove the debris therefrom (Tr. 66, 67, 70, 197, 198, 205, 236, 245, 252, 285).

Respondent has an extensive safety program in effect at its Erie [*27] plant. This program is administered by a plant safety council consisting of fifteen members, one member from each product department at this plant, and chaired by Mr. McBee, Respondent's Administrator of Occupational Safety and Health matters at Erie. It employs six safety engineers, four full-time and two part-time, the latter two having other safety-related responsibilities (Tr. 104, 105).

The Locomotives Product Department, within which the paint spray room in question is structured, has two full-time safety engineers, a Mr. Schuler and a Mr. Dickey. This department has a safety award program, safety suggestion program and safety monitoring program. Each paint room employee is supplied a written "Job Hazard Analysis" which specifies each job step, any potential accident or hazard possibility and the required safe practices and equipment to be followed and utilized n4 (Tr. 192).

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n4 See a copy of the Job Hazard Analysis for "Spray Painting" foreword to Complainant's counsel, pursuant to his request, after the close of the trial herein.

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Page 4 of this analysis sets forth the following "Required safe practices"; "Be aware of pit presence and avoid unnecessary closeness to pit. Make sure steel walkways/work platforms are over pit."

It further specifies at page 6, in relation to the cleanup phase; "Use broom to sweep debris ahead of you. Avoid unnecessary closeness to pit edge. Use long-handle scraper or shovel to remove material and tape stuck to floor. Clean off excessive paint buildup (over 1/4" thickness) from equipment and surfaces and floors." (Tr. 192.)

The Respondent additionally provides its Erie plant employees with a printed booklet covering "Work Practices: Procedures and Conduct." n5 In pertinent part, this booklet provides, at page 3, "Each employee is expected to work safely and to use safety equipment when necessary. Each employee is required to adhere to safety rules and procedures, including the use of safety equipment when specified, and report unsafe conditions to his supervisor immediately." Under the "Conduct Rules" section of this brochure, engaging in "Unsafe practices" and "violating any safety rules" are grounds for discharge or other disciplinary action. [*29]

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n5 A copy of this booklet was supplied under the same circumstances as noted at fn. n4 supra.

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Paint room employees are required to wear safety shoes having nonskid soles. All paint spills are to be cleaned up immediately to avoid slipping hazards. They are supplied with respirators, and safety cans, and instructed concerning their use and cautioned concerning the fire hazards existing because of the nature of the paint room operation; including the function and operation of flash arrestors and fire-fighting equipment (Tr. 192-193).

On the day of the inspection here involved, December 19, 1974, the painting of a locomotive in the spray room at issue had been completed at or near the end of the third shift, around 7:30 a.m. The completed locomotive had been removed from the paint room but the third shift paint crew did not have adequate time to clean up the room. The first shift paint crew had not arrived at the paint room and thus this room contained the usual debris from a locomotive painting job (Tr. 113).

A [*30] Mr. Melvin Wilcox, a manufacturing engineer in Building 12, having technical responsibilities such as troubleshooting transit car malfunctions and designing special tooling, testified at trial (Tr. 132-157). He has been in his present job for about 5 years. Prior to that, for some 25 years, he was a foreman. His current position is not concerned with management and he has no employees under his direct supervision. On December 19, 1974, he was aware of the prior inspection and Citation and the fact that poor housekeeping was one of the prior conditions which had been cited. On that morning, he looked into the paint spray room in question to see if the locomotive, ". . . an impressive sight" (Tr. 134), was still there. He noted the uncleaned condition of the room and notified his safety man. Later in the morning, word passed around Building 12 that an OSHA inspection was in progress. When Mr. Wilcox received this information, he, ". . . immediately went and started action, and had men go in there and start to clean it out." (Tr. 135.)

The evidence further reveals that on the morning in question, December 19, an 8- to 10-man assembly crew had caught up on its regularly assigned [*31] work and were doing cleanup tasks in Building 12. This crew was sent into the spray room in question by its foreman, Mr. McLaughlin to clean up the room when word of the OSHA inspection spread around Building 12. This was the first and only time such a crew had ever been used for a cleanup of the paint room in question. Foreman McLaughlin was not present in the paint room during this cleanup operation. Two employees of this crew jumped into the pit in question to clean it, using the steel ladder to exit the pit. Some came within one foot of the edge of the pit. This cleanup operation, which took from 1/2 to 1 hour, was in progress when Officer Chmielewski came upon this scene and photographed it and forms the basis for this case (Tr. 31-61, Exhs. C-5, C-6).

Respondent defends against this alleged violation on a number of grounds.

The first is, that the Standard cited in the original "Repeated" Citation, and those added by amendment, do not apply to the factual situation existent during the follow-up inspection, and thus the Citation must be vacated.

On the record of this case, Respondent must prevail in its defense to this action.

The Standard cited in the original "Repeated" [*32] Citation, by its clear terms, refers to and is applicable to "open-sided" floors or platforms. These terms are not defined in the Standards. However, a reading of paragraph (c) of 29 C.F.R. 1910.23, leads inescapably to the conclusion that the working surfaces therein alluded to, i.e., opensided floors, platforms and runways, refer to surfaces which are elevated above adjacent ground or floor levels. Complainant argues that the paint room in question, having a pit running down its length, consists of three floors, i.e., two floors on either side of the pit which are enclosed on three sides (by the walls of the paint room), the fourth side at the pit being "open sided," and the floor of the pit. Thus the Standard originally cited applies. (See Complainant's Brief, pp. 6, 7). I am unable to subscribe to such a tortured construction of 29 C.F.R. 1910.23(c)(1). This case involves one floor, at ground level, and one pit n6 below ground level running the length of the paint room (See Exhibits C-5, C-6).

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n6 The term "pit," which is undefined in the Standard cited, means; "a hole or cavity in the ground; and area below floor level or ground level." Webster's New World Dictionary, Md. Coll. Ed. 1972; -- "A hole, shaft or cavity in the ground formed naturally (as by erosion) or artificially (as by digging); an often sunken or depressed area designed for a particular use or purpose with reference to the surrounding or adjacent floor area." Webster's Third New International Dictionary, Unabridged, 1971. See also the definitions of "floor opening," and "platform" in the "definitions" section of 29 C.F.R. 1910.21.

[*33]

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The term "pit" is referred to in the definition of a "floor opening" at 29 C.F.R. 1910.21(a)(2) and is used elsewhere in the "walking-working surfaces" Standards, i.e., 1910.22(c) and 1910.23(a)(5). If the drafters and promulgators intended the cited Standard to apply to "pits," they were under the obligation so to state. No mention of the word "pit" appears in the originally cited Standard, 1910.23(c)(1), which leads me to the conclusion that that Standard was not intended to apply to pits.

It is therefore concluded that the Standard cited in the originally issued "Repeated" Citation, 29 C.F.R. 1910.23(c)(1), does not apply to the pit located in Respondent's paint spray room in Building 12 at its Erie plant, and this alleged violation must be vacated.

The next question raised by this case is whether the Standards set forth at 29 C.F.R. 1910.22(c) and 1910.23(a)(5), which were added by amendment, were violated by Respondent upon the evidence adduced herein. The Standard set forth at 1910.22(c) provides that:

Covers and/or guardrails shall be provided to protect personnel from the hazards of open [*34] pits . . . etc.

The key terms here involved are "open pits," which are not defined in the walking-working surfaces Standards. As noted supra, the common and ordinary meaning of the word "pit" is an area below ground or floor level. The word "open" is defined as: "in a state which permits access, entrance, or exit; in a state which permits freedom of view or passage, not enclosed, fenced in, sheltered, screened, etc.; unobstructed; clear." (Webster's New World Dictionary, 2nd Coll. Ed., 1972.)

As to the "pit" in question here, it was not "open" to the 12,900 employees working at Respondent's Erie plant nor to the 1,000 assembly employees working in Building 12, as it was completely enclosed within the steel paint room itself, to which access was limited to authorized employees only, that is the 2-man paint crews and their supervisors.

The physical layout of the pit within the paint room differs significantly from the pits in the assembly area of Building 12, which were the subject of the prior Citation herein. The subject of the prior Citation was 2 of 8 pits in an "open," general assembly area, which were accessible to the large number of employees working in the assembly area. [*35]

As to the 2-man paint crews assigned to the paint room, of course the pit in question was not "open" whenever a vehicle was in this room to be painted, and this case is not concerned with that phase of the work cycle performed in that room. As to the cleanup phase normally performed by the painters the evidence conclusively establishes that the pit in question does not pose a "hazard" to these individuals. These employees are instructed by Respondent of the presence of and potential danger connected with this pit. Their work instructions are to remain as far away from the pit as possible during cleanup, and they are provided with longhandled brooms, scrapers and shovels so that these instructions may be complied with. The evidence establishes that the painters are acutely aware of the presence of the pit (they use it to paint the underbody of vehicles) and in fact do not normally go closer than 2 or 3 feet to its edge when cleaning this room (Tr. 66, 70, 245, 285).

The absence of any "hazard" caused by this pit in this paint room is further established by the unrebutted evidence that no one has been injured by falling into this pit, nor was any testimony presented that anyone [*36] ever did fall into it. To the contrary, the testimony of long-term employees (Tr. 69, 71, 245, 281), including the safety engineer having jurisdiction over this room, Mr. Dickey (Tr. 158, 208), and the painter who is the union safety monitor and stewart, to whom employee safety complaints are directed (Tr. 268, 269, 271) as well as his alternate (Tr. 280, 281) establish that these individuals have never heard of anyone falling into the pit in question. Respondent has no recent record of any injury caused by falling into paint room pits (Tr. 115).

Upon this state of the evidence it is concluded that the pit in question, which is an integral part of the specialized spray paint room involved, to which access is limited to authorized painting employees, who have been thoroughly trained to carry out the specialized work tasks performed in this room, does not present a hazard within the meaning of the Standard set forth at 29 C.F.R. 1910.22(c).

As to the assembly crew employees who were observed by the Compliance Officer during his follow-up inspection cleaning this room, the evidence conclusively establishes that this incident was a "one-time" event of short duration (Tr. 47, 49, 54, [*37] 57, 59, 115). It was initiated by Respondent's employee Mr. Wilcox, a non-management employee (who in the past had been a foreman) when he learned of the OSHA follow-up inspection, knew of the prior housekeeping citation, and sought to avoid another such violation knowing that the paint room in question had not yet been cleaned after its most recent use. Foreman McLaughlin, although well motivated as was Mr. Wilcox, but acting beyond his own area of responsibility without the knowledge of management, and contrary to management's instructions and established work practices, sent the assembly crew into the paint room to clean it. He was not present in the paint room during the operation.

Upon this unrebutted evidence, the affirmative defense of an "isolated occurrence" has been established by Respondent. The cleanup of the paint room by an assembly crew was a deviation from Respondent's work rules and instructions, which are enforced, and this deviation was unknown to management until detected by the compliance officer and management's representative during the course of the follow-up inspection.

Secretary of Labor v. Standard Glass Company, 1 OSAHRC 594 (1972); Secretary [*38] of Labor v. Mississippi Valley Erection Company, 5 OSAHRC 483 (1973); Secretary of Labor v. Murphy Pacific Marine Salvage Company, 15 OSAHRC 1 (1975).

The last Standard relied upon by Complaint, set forth at 29 C.F.R. 1910.23(a)(5), provides in pertinent part:

Every pit . . ., infrequently used, shall be guarded by a floor opening cover of standard strength and construction which should be hinged in place. While the cover is not in place, the pit . . . shall be constantly attended by someone or shall be protected on all exposed sides by removable standard railings.

Upon the evidence of this record, this Standard is not applicable to the pit in question because this pit is "frequently" used, during both the painting phase and cleanup phase followed in this paint room. During this use, the pit is "constantly attended" by the 2-man paint crews. Thus by its clear terms, this Standard, directed to "infrequently" used pits, is not applicable.

Further, when this paint room is not in use, the entire steel room is closed and no unauthorized personnel are permitted access thereto. Thus the sealed off paint room, completely enclosing the pit, provides greater protection [*39] to Respondent's employees than the measures called for under the cited Standard.

One further point merits mention. Much time at trial was devoted to exploring the possibility of using temporary guardrails around the pit in question, or covering the pit, or using a static line to which employees could tie off, during the cleanup phase of the work cycle. The evidence presented by Respondent however, clearly establishes that such practices would subject its 2-man painter crews to greater hazards than any which may arise under the established work practices.

The use of temporary guardrails is not practical. There is no room within the paint room to store the 36 lengths of pipe posts, nor 196 feet of chain necessary to effect this measure. Thus it would have to be stored outside of this room, which means it would have to be carried into the room, erected prior to the cleanup, dismantled and carried out of the room after the cleanup to allow the next vehicle to be painted. This practice would subject the employees to material handling injuries which constitute from 24 to 35 percent of this plant's injuries. Further, in order to utilize temporary railings, employees would have to [*40] clean the pipe sockets, install the pipe, and remove the railing after cleanup, which would cause the employees so engaged to be exposed to the pit for approximately 4 1/2 man-hours as compared to the 1 1/2 man-hours under current practices, and to work closer to the edge of the pit than presently necessary.

The use of pit covers is likewise not practical. It would also necessitate that employees handle about 39 covers each weighing about 80 pounds, again subjecting the employees to material handling injuries. Further, installation and removal of the covers would cause significantly increased exposure of the employees to the pit and would make cleaning the top edges of the pit, under the covers impossible. Additionally, it would make cleaning the pit under the covers difficult and create the possibility of entrapping volatile fumes from paint cans, paint over spray and debris, which would constitute a fire hazard.

The use of static lines, along each side of the paint room, to which the painters could tie off with safety lines, is not practicable. n7 This practice had been considered by Respondent and rejected because the tie lines would become entangled with the painter's movement [*41] during cleanup, and tripping hazards would be created by their use. Further, paint over spray would foul the static line impeding efficient utilization thereof. More importantly, the painting operations carried on in this room create the danger of fires, even during the cleanup operation with large amounts of paper and tape, in part covered with paint, paint over spray, empty paint cans and attendant violative fumes, and general debris existing prior to cleanup. Employees have panicked during paint room fires at this plant. Safety lines would impede immediate exit from this room in case of a fire.

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n7 No mention of static lines or any similar device is made in the Standards relied upon by Complainant.

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Thus the evidence of this record establishes that the practices suggested by Complainant would increase the risk of employee injury over those present under Respondent's established procedures. Institution of these practices, even if they were feasible, would diminish rather than enhance the safety of employees. [*42] Such a result is contrary to the objectives of the Act. Thus the "greater hazards" defense established by the Review Commission in Secretary of Labor v. Industrial Steel Erectors, Inc., 5 OSAHRC 154 (1974) n8 has been established by Respondent, and the Citation, herein, as amended must be vacated.

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n8 See also: Secretary of Labor v. American Bridge, Division of U.S. Steel Corp.; 12 OSAHRC 22 (1974); Secretary of Labor v. Carpenter Rigging and Contracting Corp.; 15 OSAHRC 400 (1975).

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Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c) and 12(j) of the Act (29 U.S.C. 549(c) and 661(i)),it is hereby,

ORDERED:

That the Citation for "Repeated" violation herein, issued to Respondent on January 6, 1975, as amended, and proposed penalties based thereon, be VACATED.

Dated: November 25, 1975

Hyattsville, Maryland

WILLIAM E. BRENNAN, [*43] Judge, OSAHRC