MORRIS ENTERPRISES INCORPORATED

OSHRC Docket No. 12283

Occupational Safety and Health Review Commission

April 8, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Andrew Morris, Sr. Morris Enterprises, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On October 7, 1975, Administrative Law Judge Ben D. Worcester vacated items one and four of a citation alleging an other than "serious" violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter "the Act"). On November 6, 1975, the petition for discretionary review filed by the Secretary of Labor was granted, and submissions were invited on the following principle issues:

(1) Whether the Administrative Law Judge erred in vacating item 1 because a finding may not be made on the basis of uncorroborated hearsay?

(2) Whether the Administrative Law Judge erred in vacating item 4 because the non-complying conditions were not permanent?

We answer these questions in the affirmative.

Item one of the citation alleged that, contrary to 29 CFR 1910.213(c)(1), a table-top saw had an unguarded blade. n1 There is no question that the saw lacked a guard. Judge Worcester vacated this item, however, [*2] because there was no reliable evidence that the saw was ever used by employees. The Secretary argues that there is reliable evidence of actual use, but that in any case, proof of actual use is unnecessary if a violative condition is accessible to employees. At the time Judge Worcester issued his decision, however, the Commission had not yet overruled its precedents requiring proof of actual use. In Harold Christiansen, BNA 4 OSHC 1020, CCH 1975-76 OSHD para. 20,517 (No. 3108, 1976), the Commission subsequently held that proof that a tool in violative condition is available for use is enough to establish a violation of section 5(a)(2) of the Act. The record before us shows that saw trimmings were present on the saw table. Respondent's president, Andrew Morris, Sr., testified at the hearing that the unguarded saw is used regularly, though there was no work to be done with it on the day of inspection. Under similar circumstances, we have held such evidence enough to establish actual use. Huber, Hunt, Nichols & Blount Brothers, BNA 4 OSHC 1406, 1408, CCH 1976-77 OSHD para. 20,837 (No. 6007, 1976). Moreover, a salesman of the respondent and son of the president, Andrew [*3] Morris, Jr., accompanied the compliance officer as respondent's walkaround representative. The compliance officer testified that Mr. Morris, Jr., told him that the saw was used. This statement is the admission of a party-opponent through his agent or employee and is therefore not hearsay. It is plain that a person representing an employer in a "walkaround" is at least implicitly authorized to speak for the employer concerning the subject of the inspection. Fed. Rules Evid. Rule 801(d)(2)(C). Also, a statement in the walkaround is within the scope of that person's agency or employment as respondent's representative. Fed. Rules Evid. Rule 801(d)(2)(D). See Stephenson Enterprises, Inc., BNA 4 OSHC 1702, 1703, 1705, CCH 1976-77 OSHD para. 21,120 (No. 5873, 1976); Huber, Hunt, Nichols & Blount Brothers, 4 OSHC at 1409. Accordingly, the preponderating evidence supports our findings that the saw was both available for use, and actually used. The item must therefore be affirmed.

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n1 That standard states, in pertinent part, that "each circular hand-fed ripsaw shall be guarded by a hood. . . ."

[*4]

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Item four of the citation alleged that two stairways lacked standard stair railings contrary to 29 CFR 1910.23(d)(1)(ii). Judge Worcester vacated this item because the conditions were not shown to have been permanent. The Secretary argues that permanency is not a material issue of fact because the standard applies regardless of permanency, and because permanency is not a tenable reason for vacating the item if the standard was indeed breached. We agree. Neither 29 CFR 1910.23(d)(1) nor section 5(a)(2) itself conditions an employer's duty to comply with the Secretary's standards on the length of time to which employees may be exposed to a hazard. Protection is extended to employees on those occasions when violative conditions are accessible. Cf. Huber, Hunt, Nichols & Blount Brothers, 4 OSHC at 1408, and cases cited. Because the permanency of a violative condition, however, affects the gravity of the violation, it is relevant in any penalty assessment. See Konkolville Lumber Company, Inc., BNA 3 OSHC 1796, 1798, CCH 1975-76 OSHD para. 20,224 (No. 2437, 1975).

The 13-riser stairway [*5] in the overhead storage platform area and the five-riser lower portion of the double stairway in the other storage area had two open sides and lacked both stair railings and handrails. The upper portion of the latter double stairway had one open side.

The citation alleged that by not providing stair railings on the open sides, respondent had failed to comply with section 1910.23(d)(1)(ii). That standard applies, however, only to "stairways less than 44 inches wide having one side open . . . ." Thus, it is not the standard specifically applicable to the stairway in the overhead storage area and the five-riser lower portion of the double stairway in the other storage area, both of which had two open sides. n2 On review, the Secretary argues that Judge Worcester improperly denied a motion to amend the pleadings under Fed. R. Civ. P. 15(a) to allege noncompliance with section 1910.23(d)(1)(iii), which applies to "stairways less than 44 inches wide having both sides open," and requires "at least one stair railing on each side." Judge Worcester himself pointed out the miscitation, but denied the resulting motion to amend because respondent objected that the late change would be unfair [*6] to him. We note, however, that there is no proof that the stairways in question were less than 44 inches wide. Nevertheless, respondent's stairways lacked stair railings on all open sides. Section 1910.23(d)(1) requires stair railings on all open sides regardless of the width of the stairs. n3 The stairs' width affects only the installation of handrails n4 and the necessity for a midrail, matters which are not at issue here. The width of the stairs and the applicability of any particular subparagraph of section 1910.23(d)(1), therefore need not be resolved in this case. See Stephenson Enterprises, Inc., 4 OSHC at 1704 n.4. Thus, we affirm item four of the citation on the ground that respondent failed to comply with section 1910.23(d)(1).

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n2 Section 1910.23(d)(1)(ii) is, however, the standard specifically applicable to the upper portion of the double stairway, which had only one open side.

n3 Section 1910.23(d)(1) reads in its entirety as follows:

1910.23 Guarding floor and wall openings and holes.

* * *

(d) Stairway railings and guards.

(1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified in subdivisions (i) through (v) of this subparagraph, the width of the stair to be measured clear of all obstructions except handrails:

(i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending.

(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on open side.

(iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side.

(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side.

(v) On stairways 88 or more inches wide, one handrail on each enclosed side, one stair railing on each open side, and one intermediate stair railing located approximately midway of the width.

n4 Section 1910.21(a) defines "handrail" and "stair railing" for section 1910.23 as follows:

1910.21 Definitions.

(a) * * *

(3) Handrail. A single bar or pipe supported on brackets from a wall or partition as on a stailway or ramp, to furnish persons with a handhold in case of tripping.

* * *

(8) Stair railing. A vertical barrier erected along exposed sides of a stairway to prevent falls of persons.

[*7]

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We now turn to the assessment of penalties. The Secretary proposed penalties for items one had four of $25 and $35 respectively. Respondent is a small employer, with no previous history of violations, and its good faith was attested to at the hearing. We therefore accept the Secretary's advice on the penalty assessments.

Accordingly, item one of the citation is affirmed, and a $25 penalty is assessed. Item four is affirmed to the extent that it alleges a failure to comply with 29 CFR 1910.23(d)(1), and a $35 penalty is assessed.

So ORDERED.

CONCURBY: BARNAKO; MORAN (In Part)

CONCUR:

BARNAKO, Chairman, Concurring:

I concur. As to item one, however, I do not rely on the statement made by Andrew Morris, Jr. The evidence preponderates in favor of finding a violation in view of the testimony of Respondent's president and in view of the saw trimmings observed by the compliance officer. Huber, Hunt, Nichols & Blount Bros. Corp., 76 OSAHRC 71/A2, 4 OSHC 1406, 1408, OSHD para. 20,837 (1976); Harold Christiansen, 76 OSAHRC 36/D10, 4 OSHC 1020, OSHD para. 20,517 (1976).

Accordingly, I do not find it necessary [*8] to hold that any statement made by an employer's walkaround representative is an admission by a party opponent within the meaning of Rule 801(d)(2) of the Federal Rules of Evidence (1975).

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with my colleagues' affirmance of item 4, but disagree with their affirmance of item 1 which should be vacated because the standards codified at 29 C.F.R. 1910.213 were improperly promulgated and are therefore invalid. Secretary v. Noblecraft Industries, Inc., OSAHRC Docket No. 3367, November 21, 1975 (dissenting opinion).

Since this decision does not address all of the matters covered in Judge Worcester's decision, his decision is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Matthew J. Rieder, for the Secretary

Andrew Morris, Sr., pro se, for the Respondent

Ben D. Worcester, Judge, OSAHRC

This proceeding arises pursuant to a notice of contest filed by the respondent, on February 7, 1975, under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter called the Act. On January 2, 1975, [*9] a citation was issued alleging that the respondent had violated section 5(a)(2) of the Act. The matter came on to be heard in Fairmont, West Virginia, on July 16, 1975.

THE ISSUES

As the result of an inspection of the premises that Morris Enterprises occupies in Osage, West Virginia on December 20, 1974, by compliance officers Theron Jack and James Pennington, the Secretary issued a citation alleging that the respondent had committed 17 separate non-serious violations of the Act as defined in section 17. The Secretary proposed that a total penalty of $355 be assessed abainst Morris Enterprises.

The respondent, who was not represented by counsel, has not filed a brief. The complainant's counsel has attempted, in his brief, to revive the question of the meaning of the pro se respondent's notice of contest. This issue was disposed of by the order of June 17, 1975 denying the Secretary's motion to dismiss on the authority of Secretary of Labor v. Philadelphia Coke Division,    OSAHRC   , Docket No. 6448, September 5, 1974, where the Commission held that writings filed during the 15-day period provided for in section 10 of the Act are to be given a liberal interpretation [*10] citing Secretary of Labor v. Bill Echols Trucking Company, 487 F.2d 230, 234 (5th Cir. 1973).

Section 8(e) of the Act provides that a representative of both the employer and the employees "shall" be given an opportunity to accompany the representatives of the Secretary during the inspection "for the purposes of aiding such inspection." The testimony revealed that the respondent's representative was the son of the proprietor of Morris Enterprises who is only a salesman and knew little about the operation of other phases of the business. He was of little if any help, but nevertheless the employer was represented. No employee participated in the inspection, but it was revealed through the testimony of a former employee that the inspector talked to him on the day of the inspection. This satisfies that part of section 8(e) which specifies that where there is no authorized representative accompanying the inspector that the employees' interests must be protected through consultation with employees concerning matters of safety and health in the work place. The inspection was valid.

FINDINGS OF FACT

All of the alleged violations were said to constitute failure to comply [*11] with the provisions of the standards published in Title 29 of the Code of Federal Regulations, Part 1910. For the purposes of clearity and simplification in the discussion of the issues and standards, they will hereinafter be referred to by section number only.

The compliance officers did not see any work being done. Their recommendation that citations be issued was based entirely upon admissions of the respondent's salesman, Andrew Morris, Jr. The Secretary did not offer him as a witness. Three citations involved such things as inadequate fire protection and an improperly maintained bench grinder which the respondent admitted was being used in the business. In those instances actual performance of work in the presence of the compliance officer or testimony by the employees performing the work is not required to establish a violation. Accordingly, items 3, 5, 7, 13 and 16 will be affirmed. Items 8, 9 and 10 were vacated at trial together with the proposed penalty of $25 for the alleged violation described in item 9 on motion of the Secretary, since the evidence revealed that each of the instances described in items 7, 8, 9 and 10 were part of the same violation. Item 7 was [*12] amended to include the language of items 8, 9 and 10 as subparts of item 7.

The Secretary has failed to sustain the burden of proof of violation as alleged in the remaining items. Accordingly, items 1, 2, 4, 6, 11, 12, 14, 15 and 17 and all proposed penalties thereon will be vacated.

In item 1 it was alleged that employees were exposed to a hazard from an unguarded table top saw. No one was observed using the saw. The Secretary relies solely upon a hearsay statement by a salesman that the saw may have been used sometime. Conceding that hearsay evidence is admissible, a finding may not be made on the basis of uncorroborated hearsay. See Secrsetary of Labor v. B & K Paving Company, 11 OSAHRC 444, 445 (1974); Secretary of Labor v. Donald G. Lambert Contractor, Inc., 2 OSAHRC 72, 77 (1972). Hearsay evidence, to be admissible, must be reliable, probative and relevant. Secretary of Labor v. Bethlehem Steel Corporation, 16 OSAHRC 527, 543 (1975). The compliance officers should have inquired as to who was the operator of the saw do that person could be called to testify. The complainant has failed to prove that there was a violation as alleged in item 1. [*13]

In item 2 the respondent is alleged to have violated section 309(a), adopted from the National Electric Code, because several different electrical hand-tools in the door and table shop and garage were not grounded. There is no proof that this equipment was being used or that there was any intention by any of the employees of Morris Enterprise employees to use this equipment. A building supply business has this type of hand-tool available for many other purposes besides its own use, such as rental to customers, sale and repair. Here the Secretary again attempted to establish a violation on the basis of uncorroborated hearsay. The burden of proof of a violation as alleged in item 2 has not been sustained.

In item 3 there was an allegation of a violation of the same standard for failing to properly protect employees against contact with a junction box, a fuse and switch box, both in the warehouse; the switch of an air compressor in the cement plant, and a switch and junction box inside the cement plant, and a fuse and switch box near the discharge conveyor at the cement plant. Photographs taken by the compliance officers received in evidence supported the allegations. The respondent's [*14] chief officer Andrew Morris, Sr. admitted that the conditions shown by the photographs in fact represented existing conditions on the day of inspection. There were employees present and the plant was in operation. It is not necessary that the Secretary present eyewitnesses of employee exposure under these circumstances. The burden of proof has been met. This item of the citation should be affirmed.

In item 4 it was alleged as a violation of section 23(d)(1)(ii) for failure to properly guard stairs by means of a railing. However, it was brought out in cross-examination of the compliance officer and by the testimony in chief of Andrew Morris, Sr., that the building was being remodeled and that these steps were a part of the construction project. This was not a permanent condition. The burden of proof of this alleged violation was not sustained.

It is not disputed that there were no exit signs as required by section 37(q)(1) as alleged in item 5. This requires affirmance of this citation.

In item 6 it was alleged that there was a violation of section 23(c)(1) for failure to guard open-sided floors in the warehouse by means of a standard railing. However, at the trial the [*15] photographs introduced in evidence and the testimony of the compliance officers revealed that what was described as a floor was actually a type of shelf in the warehouse for storage of materials. No one was seen on this shelf nor is there any proof that it was necessary for employees to climb upon the shelf. There was a ladder leaning against one of the storage area shelves but this does not establish as a fact that employees were exposed to a hazard there. The Secretary has failed to prove that the standard cited was violated or that it is applicable.

It is not disputed that fire extinguishers were not maintained as required by section 157 of Part 1910. The allegations of item 7, as amended, have been sustained by the evidence. The proposed penalty of $25 is reasonable.

It was revealed through testimony that the alleged violation described in item 11 of section 157(c)(1)(vi) involved the same group of fire extinguishers referred to in items 7, 8, 9 and 10. Again the Secretary has sought to fractionalize one hazard into a number of separate violations. For that reason item 11 must be vacated.

Alleged violation of section 106(d)(7)(i) as described in item 12 was revealed to [*16] pertain to fuel pumps across a public thoroughfare from the respondent's place of business. Andrew Morris, Sr. testified that due to a dispute with their fuel supplier the pumps had been out of use for several months. They were inoperable at the time of the inspection. He said that fire control equipment had been furnished when the pumps were in use and that fire hydrants and a fire station were within 50 feet of the pumps. Diligent inquiry by the Secretary's compliance officer would have revealed all of these facts. There is no proof of a violation of section 106 as alleged in item 12.

It is not disputed that Morris Enterprises failed to supply fire extinguishers in three separate areas as alleged in item 13. There was a violation of section 157(c)(1)(ii). The testimony of the Secretary's witnesses corroborated this allegation. This item accordingly must be affirmed. No penalty was proposed.

In item 14 where it was alleged that failure to post load limit signs in the second floor storage area was a violation of section 22(d)(1). Andrew Morris, Sr. conceded that no load limit signs were posted. The compliance officer testified that the purpose of such signs was to alert [*17] employees to the maximum load the fork could carry. However, he did not explain how employees were to ascertain the weight of any material being deposited there. No penalty was proposed. The respondent did not dispute the testimony of the Secretary's witnesses. Item 14 should be affirmed.

In item 15 there was an alleged violation of section 215(a)(2) because no safety guard was provided to cover the spindle end, nut and flange projections on a bench grinder. The Secretary's inspectors failed the ascertain whether this grinder was in this condition when in actual use or whether the guard had been removed for maintenance purposes. There was no proof that this grinder was ever used by respondent's employees in the condition it was observed on the day of inspection at any time. In the absence of such proof this item and the proposed $25 penalty must be vacated.

Andrew Morris, Sr. admitted that the bench grinder described in item 16 was used by his employees while there was more than the required space adjustment specified by section 215(a)(4) as alleged in item 16. Accordingly, item 16 for which no penalty was proposed, should be affirmed.

In the allegation of a violation of [*18] section 22(b)(1) Morris Enterprises, Inc. is charged with failure to keep the aisles of passageways of the warehouse free of obstructions. The compliance officer testified that unspecified material was rather haphazardly placed in the warehouse but what, if any, hazard to employees existed is not clear. The witness' recollection of what he saw there seemed to be rather vague. The burden of proof for this alleged violation has not been sustained. No penalty was proposed.

CONCLUSIONS OF LAW

Upon consideration of the foregoing findings of fact and the record as a whole, it is concluded as a matter of law as follows:

1. Morris Enterprises, Inc. is an employer subject to the provisions of the Occupational Safety and Health Act of 1970.

2. Morris Enterprises, Inc. violated section 309(a) of part 1910 as alleged in item 3. Under the provisions of section 17 of the Act a penalty of $65 is appropriate for such violation.

3. Morris Enterprises, Inc. violated section 37(q)(1) as alleged in item 3; section 157(c)(1)(ii) as alleged in item 13; section 215(a)(e) as alleged in item 16 for which no penalties were proposed.

4. Respondent violated section 157(a) as alleged in item [*19] 7, as amended.

5. The Secretary has failed to sustain the burden of proof of the alleged violation described in items 1, 2, 4, 6, 11, 12, 14, 15 and 17. Accordingly, the proposed penalties pertaining to some of these items totaling $265 should be vacated.

ORDER

It is therefore hereby Ordered that:

1. Item 3 of the citation and the proposed penalty of $65 be affirmed.

2. Item 7 of the citation, as amended, and the proposed penalty thereon of $25 be affirmed.

3. That items 5, 13 and 16 of the citation for which no penalties wre proposed be affirmed.

4. That items 1, 2, 4, 6, 11, 12, 14, 15 and 17 and the proposed penalties thereon in the amount of $265 be vacated.

5. That a penalty of $90 be assessed.

BEN D. WORCESTER, Judge, OSAHRC

Dated: OCT. 7, 1975, Hyattsville, Maryland