SAVINA HOME INDUSTRIES, INC.

OSHRC Docket No. 12298

Occupational Safety and Health Review Commission

January 6, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Edgar Wm. Dwire, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Vernon Riehl, dated September 18, 1975, which is attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. 661(i). Review was directed on whether Judge Riehl erred in vacating a notification of additional proposed penalties for failure to abate three previous violations of 29 U.S.C. 654(a)(2).

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n1 Chairman Barnako does not agree to this attachment.

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Respondent is engaged in the manufacture of modular homes at a plant in Wichita, Kansas. As a result of an inspection conducted on November 26, 1974, respondent was issued a citation which alleged several non-serious violations of the Occupational Safety and Health Act. Judge Riehl held in Docket No. 11909 n2 that respondent failed to timely contest [*2] this citation and that it became a final order by operation of law pursuant to 29 U.S.C. 659. n3 A followup inspection of respondent's worksite was conducted on January 27, 1975, and, as a result thereof, respondent was issued a notification for failure to abate. Respondent contested this notification.

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n2 That case was consolidated with the instant case for hearing and decision below.

n3 The decision in Docket No. 11909 is not before us because it was not directed for review and, therefore, became a final order of the Commission pursuant to 29 U.S.C. 661(i).

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Before examining the evidence in this case, it will be useful to review what complainant must prove to establish a failure to abate and what an employer may assert as a defense to such a charge. Where, as here, the original citation is not timely contested and there is a reinspection subsequent to the expiration of the abatement date specified in that citation, the complainant's prima facie case of failure to abate is made upon showing that: (1) the original [*3] citation has become a final order of the Commission, and (2) the condition or hazard found upon reinspection is the identical one for which respondent was originally cited. An employer may rebut this prima facie case by showing that the condition has in fact been corrected or, if not corrected, that the employer has prevented the exposure of his employees to the violative condition. Secretary v. York Metal Finishing Company, 7 OSAHRC 845 (1974). The prima facie case may also be rebutted by a showing that the condition for which the employer was cited was in fact not violative of the Act either at the time of the original inspection or at the time of reinspection. Secretary v. Franklin Lumber Co., Inc., 9 OSAHRC 922 (1974). The evidence as to each of the charges is hereafter considered with these principles in mind.

The Recordkeeping Charge

Respondent was charged with noncompliance with 29 C.F.R. 1904.2(a) for failing to maintain a log of recordable injuries and illnesses at the inspected establishment. The log was not produced for complainant's inspector either at the time of the original inspection or reinspection. The cited standard requires that such a log [*4] be maintained at each establishment on OSHA Form No. 100 or a private equivalent.

During the course of the hearing, respondent's secretary-treasurer produced an OSHA Form 100 on which injuries for the years 1971 through 1974 had been recorded. The evidence also reveals that respondent's administrative office where the logs were kept was moved from the inspected worksite to a new location in the same city between the time of the initial inspection and the reinspection.

Section 1904.2(a) requires an employer to "maintain" a log of injuries and illnesses at each establishment. Even though respondent did not produce this log at the time of initial inspection, it was in compliance with the requirements of this standard since it did maintain such a log at the cited establishment. n4

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n4 Section 1904.2(a) requires that an employer maintain a log in each "establishment," a term which is defined at 29 C.F.R. 1904.12(g). Respondent clearly satisfied this requirement at the time of the initial inspection because the logs were maintained at the cited worksite. In Secretary v. Franklin Lumber Co., Inc., supra, we held that compliance with a standard either at the time of inspection or reinspection constitutes a defense to a failure to abate charge. Therefore, it is unnecessary to consider the issue of whether the cited worksite was an "establishment" at which a log must be kept at the time of the reinspection.

[*5]

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The First Aid Training Charge

The charge under 1910.151(b) involves the lack of availability at the worksite of a person or persons adequately trained to render first aid. Respondent's foreman testified that he had received first aid training from the local fire department in 1970 and that he had retained the knowledge he had gained during this training. Each of the two courses the foreman had taken, the Red Cross standard course and the Red Cross advanced course, included approximately 25 hours of training. Although the foreman had received Red Cross first aid certification as a result of this training, his certification had expired about a year and a half prior to the first inspection.

Complainant contends that the foreman's first aid training does not satisfy the requirements of the standard because of the expiration of his first aid certification. We reject this contention because the standard requires only that an individual "be adequately trained to render first aid" and not that he hold first aid training certification. The evidence presented demonstrates that the foreman was adequately [*6] trained because he had in the recent past had extensive first aid training. Thus, respondent was in compliance with 1910.151(b).

The Fire Extinguisher Charge

Respondent was charged with noncompliance with 1910.157(a)(3) in that a fire extinguisher was obscured from view by a welder's hood hanging on it. A welding hood was hanging on the same fire extinguisher at both the time of initial inspection and the reinspection. Section 1910.157(a)(3) provides in relevant part:

"Marking of location. Extinguishers shall not be obstructed or obscured from view."

In Webster's dictionary, "obscure" is define as ". . . to conceal or hide by covering or intervening." n5 Both the terms "conceal" and "hide" indicate that in order to be obscured, an object must be covered in a manner which prevents an individual from seeing it or discerning what it is. Similarly, "obstruct" is defined as ". . . to cut off from sight." n6

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n5 Webster's New Collegiate Dictionary (7th ed. 1970).

n6 Id.

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An examination of the photographic [*7] exhibits shows that a sufficient amount of the extinguisher was visible to enable an individual to discern that the object on which the hood was hanging was a fire extinguisher. Therefore, the fire extinguisher was not obstructed or obscured within the meaning of the standard.

Accordingly, the Judge's vacation of the notification for failure to abate in its entirety is affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

The Administrative Law Judge vacated the "Notification Of Failure To Correct Alleged Violation And Proposed Additional Penalty" for violations of 29 CFR 1904.2(a) and 29 CFR 1910.157(a)(3) finding that the evidence was "even," and "evenly balanced," respectively. There are no subsidiary findings of fact. The decision is therefore deficient under section 557(c) of Title 5, U.S. Code, and Commission Rule 90(a), 29 CFR 2200.90(a). Therefore, I would remand for additional findings of fact.

The majority has exercised its discretion to make its own findings of fact. But then proceeds to err in the same manner as the Administrative Law Judge concerning the alleged record-keeping violation by not making any subsidiary findings to support the ultimate finding that [*8] Savina maintained a job injury log at its establishment. This is disturbing because any such finding requires an evaluation of the credibility of Mrs. Savina's testimony. Her credibility has been seriously challenged by the Secretary. Yet, neither the Administrative Law Judge nor the majority comment on the matter.

As the presence of the log involves a credibility evaluation, the presiding officer should be required to make that evaluation. Evansville Materials, Inc., BNA 3 OSHC 1741, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975).

Regarding the alleged failure to abate the violation of 29 CFR 1910. 157(a)(3), the concealment of the fire extinguisher, the majority vacates the additional proposed penalties after looking at the photographs. What the photographs represent is the use of the fire extinguisher as a hat rack for a welding helmet. The photographs show that fire extinguisher was not fully visible. Therefore, the view of the fire extinguisher was "obscured." See the safety cases cited in Words and Phrases, "obscure."

Finally, I dissent from the majority's vacation of the proposed penalties for failure to abate the violation of 29 CFR 1910.151(b). The [*9] majority concludes that an employee with an expired first-aid training certificate is "adequately trained" under the standard. I disagree. The employee involved had taken two Red Cross safety courses more than four and one-half years before the initial inspection. I would hold this to be inadequate.

APPENDIX A

EUGENE F. DE SHAZO, United States Department of Labor, Office of the Solicitor, For the Complainant

EDGAR WILLIAM DWIRE and EDMUND R. LEARNED, For the Respondent

Hearing held in Wichita, Kansas, April 30, 1975, Judge Vernon Riehl presiding.

STATEMENT OF CASE

Vernon Riehl, Judge, OSAHRC

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 contesting a citation issued by the complainant against the respondent under the authority vested in the complainant by section 9(a) of that Act. The citation alleges that an inspection of a workplace under the operation and control of the respondent revealed the existence of workplace conditions that violate section 5(a)(2) of the Act for the reasons that these conditions fail to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to [*10] section 6 thereof.

As a result of an inspection, by a compliance officer from OSHA, respondent was issued a citation for other than serious violations and a notification of proposed penalty on December 5, 1974, pursuant to section 9(a) of the Act (docket number 11909). This citation and notification of proposed penalty were received by respondent on December 9, 1974 (docket number 11909, T. 6-48). The aforesaid citation was not timely contested and it became a final order of the Review Commission on December 31, 1974 (docket number 11909, T. 6-48). The Secretary had originally filed a motion to dismiss respondent's notice of contest on the grounds that the complainant admitted receiving the citation and notice of proposed penalties on December 5, 1974, and did not attempt to contest the citation or notice for 24 working days, or until January 10, 1975. Section 10(a) of the OSHA Act 1970 (29 U.S.C. 659(a)) provides that where the employer fails to notify the Secretary of its intent to contest the citation or notice of proposed penalties within 15 working days, the citation and notification of proposed penalty becomes a final order of the Commission and not subject to review by [*11] any court or agency.

The OSAHRC Chief Administrative Law Judge, Charles Chaplin, denied this motion; however, without prejudice to right to renew before the assigned trial judge.

The case was heard on April 30, 1975, at Wichita, Kansas. Mr. DeShazo renewed this motion to dismiss respondent's answer at the hearing. Testimony was taken as to the facts surrounding the actual date of the answer filed by respondent (T. 9-39).

The record will show that the respondent had full knowledge of what was going on and had plenty of time in which to file a notice of contest but did not do so timely and therefore the citation and penalty became final by operation of law.

Inspection was made on November 26, 1974. The notice of contest received on January 10, 1975. The 15th working day after receipt of the citation is December 31, 1974 (T. 9-10). Respondent went to the OSHA office and made an oral request for contest on January 9, 1975, which is 7 working days after the expiration of the time in which he could successfully contest the citation (T. 10). The mail was certified on December 5, 1974. The receipt (exhibit G-1) was signed on December 9, 1974, by Mrs. M. Savina, respondent's wife [*12] and an officer of the corporation (T. 12). January 10, 1975, is the postmark date on the notice of contest (T. 13, exhibit G-2). The factory was reinspected on December 5, 1974. Respondent met with compliance officer Anthony on December 7. Respondent said he was too busy to meet with the compliance officer on the 6th and told him to wait until the 7th. The compliance officer read off the list of violations (exhibit G-1) received on the 9th.

Mrs. Savina signed for the citation and notification of proposed penalty on December 9th (exhibit G-1). Respondent, during the 15 day period in which he was given to answer, did talk to his attorney, Mr. Dwire (T. 24) and told him he was being investigated by OSHA. He did not remember whether or not he told him he had a citation, but he did tell Mr. Dwire that he was going to have to use him. He told Mr. Dwire that he was going to have to come down and see him (T. 25). He also told him he received the citation and penalty papers (exhibits G-1, G-2; T. 25). When cross-examined by Mr. DeShazo, respondent stated his wife was vice-president, secretary treasurer of the corporation; that he had read the citation and notice of penalties when [*13] he received them. In particular he read the third paragraph on the first page which notified him of 15 working days in which to file a notice of contest (T. 29). He therefore knew at the time he received the citation that he had 15 working days in which to contest it (T. 30).

Shortly after that, respondent discussed the matter with his attorney, Mr. Dwire, but doesn's remember whether or not he told Mr. Dwire he had 15 days in which to contest. He did not send the papers to his attorney (T. 30). He said he did not hire Mr. Dwire in full at that time and was waiting to try to comply with the order. He admitted that a number of the items cited for which penalties were proposed (docket number 11909) were violations (T. 33-34). The respondent did not give his lawyers the citation and proposed penalty papers right away. Unfortunately, he waited beyond 15 working days before taking any action to contest the citation and thereby, by operation of law, the citation and proposed penalties became affirmed. Accordingly, the complainant's motion to dismiss (docket number 11909) was sustained. The citation and penalties are affirmed. Any further discussion of docket number 11909 is moot. [*14]

At the same time we sustained the Government's motion to dismiss the notice of contest, we also overruled the respondent's motion (T. 36-37) to dismiss both cases on Constitutional and other grounds. Thereafter, the Government proceeded with its evidence on case number 12298. The remaining issues to be decided are those involved in docket number 12298.

On January 31, 1975, respondent was issued a Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty on the following items:

Citation Number 1

Item 2a, 29 CFR 1904.2(a) Failure to maintain in this establishment a log of all recordable occupational injuries and illnesses for this establishment.

Item 6, 29 CFR 1910.151(b) Failure to provide employees with a person or persons adequately trained to render first aid.

Item 7, 29 CFR 1910.157(a)(3) A general portable fire extinguisher mounted on a pillar at the west end of the shop, is obscured from view by a welder's hood hanging on it.

DISCUSSION

Mr. DeShazo, in the outset of his brief, states:

"This case is a classic example of the Shakesperean apothegm "much ado about nothing."

We couldn't agree more.

However, Shakespeare's play "Much [*15] Ado About Nothing" was a romantic comedy and in the instant case we are confronted with what amounts to a tragedy.

Insofar as the instant case is concerned, the line of dialogue in "Much Ado About Nothing" that best applies to our case is the remark of the constable, Dogberry: "I beseech your worship to correct yourself for the example of others."

Statistics reveal that prior to the advent of the Occupational Safety and Health Act that there were about 14,000 people killed every year (more a year than the yearly loss in the Vietnam War) in industry. Also, 200,000 people received serious injuries such as the loss of an arm from an uncovered saw, a death from improperly shored trenches, men killed by poisonous gasses when entering tanks without proper precautions, employees electrocuted by improper covering of electric wires or improper conduct around them, and a host of other deaths and injuries that arise from simply neglecting to take proper safety methods to protect employees while they are occupied at the worksite of their employer. Employees hands or fingers are chopped off by unguarded presses or other machinery. Employees are dying from cancer due to exposure to asbestos, [*16] vinyl chloride or other unsafe chemical substances.

This Judge's life has been one of being employed in industrial plants in my early youth and seeing rather tragic accidents due to failure to provide safety mechanisms, employment as a ditch digger when in my teens and working 10 to 12 feet in unshored trenches below the ground level. Also knowing of some of my co-workers being crushed to death by trench collapses. Later on in my career for a period of over 25 years, we handled compensation cases at a local, and later at a national level. It has been our unfortunate experience to meet with widows following the death of their husbands through some mishap, in which he was killed, due to lack of adequate protection. It is always embarrasing to appear at a compensation conference and make the arrangements for the payment of compensation to the widow and the surviving children. It is always difficult to deal with an employee who has lost an arm or leg, make arrangements for an artificial limb, or to appear with him at various conferences before the industrial commission. No amount of commiseration on your part can heal the wounds of people crippled in such accidents.

Following [*17] such accidents, it has also been my experience to appear at numerous safety conferences at which we made recommendations to try to keep from having additional accidents of such serious nature.

We have dealt, through a period of years, with hundreds of such cases involving death, fractured backs, loss of limbs, and other accidents such as loss of fingers, acare and cuts, cases of skin dermatitis, mental cases caused by blows on the head of employees who did not wear protective helmets or other equipment. In short, we have in a period of 25 to 30 years witnessed a tremendous amount of tragedy, suffering, loss of health, and, all arising for the most part out of injuries which could have been prevented by using proper safety precautions.

All of these deaths, all of these injuries, all of this suffering and occupational disease caused through lack of proper safety precautions have been tremendously expensive. The deaths and injuries cause from hundreds to tens of thousands of dollars of expense to the companies who employ these people. The companies simply pass on this cost of injury to the public who buys their products. When the public buys a product they pay for the material that [*18] goes into it, the labor that goes into it and also the monetary cost of disability and suffering of employees injured in the process of manufacturing.

What we are saying is that for this Nation to go on as it was and continue to have 14,000 deaths and 200,000 serious maiming injuries a year is indeed expensive. It indeed adds to the cost of every product that you use when manufactured by companies who do not have the proper safety practices.

What isn't generally known by either industry or the public is the simple fact that 90 to 95 percent of the present standards which we are enforcing through the Occupational Safety and Health Act are standards that have been in existence for many years.

These standards have been compiled by insurance companies, and people who specialize in safety and others so concerned. The Occupational Safety and Health Act has simply adopted these previous standards and made them into law. This was done for the simple reason that these measures, while they were perfectly proper guidelines to use in effecting safety, were not followed in many, many instances by the industries involved.

All of these standards which were in existence for many years before [*19] being adopted by the Government are simply a product of the accumulative wisdom of those engaged in safety. These standards are simply the best set forth regulations to cope with industrial accidents that mankind has been able to devise to this date. They are admittedly not perfect as admittedly almost no thing in creation is.

They are in the process of constantly being studied and revised. Many committees meet to discuss the total problem. Representatives of industry, labor and others are continually meeting, discussing these standards, and making suggestions for change. There are continuous meetings to discuss the impact on health of various chemicals such as asbestos, vinyl chloride, toxic gases and other chemicals used in industry.

To reach the optimum point in the creation of standards in order to protect the employee is a tremendous task. It is a continuing task. It is a task that will not be completed for many years as the circumstances in industry change due to the changing nature of the chemicals and other elements needed by industries.

Following the hearing, we were informed that the instant case had been the subject of considerable coverage by television and newspapers. [*20]

Respondent has apparently made up his mind about OSHA. We had an opportunity to observe the respondent throughout the hearing. He is (we feel sure) just as interested in safety as the Department of Labor. It is our total opinion that there is no real gap between his desires for safety and that of the Government's, or that of the total industry, or for that matter the employees themselves.

During the hearing, he said: "I welcome safety. I don't welcome the manner in which OSHA inspects. It would be like if you had a big tiger in front of you with his teeth snarling and you had a club, and a man told you to throw the club away and let the tiger bite you. Would you do it?" (T. 143-144)

Respondent further testified that a plumber inspector from the city could inspect his plant and it would be alright. He also admitted that if you are in violation, you can be fined for violation of the city electrical code. He even admitted that there is a possibility of being put in jail for violating a city electrical code, and, also that he could lose his license for such violation (T. 144). These city inspectors, it must be noted, can walk onto any job in construction without a search warrant [*21] and make an immediate inspection. If there is a violation, they can take appropriate legal action.

Somehow or other the respondent has decided that it is improper for the Federal Government to enforce the Occupational Safety and Health Act by walking onto a job and making an inspection, but it is seemingly alright if the city or state does it.

Respondent stated the he didn't treat the city inspectors the same way. He admitted that he could be fined by his breaking a law in a building ordinance violation (like plumbing without a license) or doing electrical work without a license (T. 145).

A good example of his total testimony might be summarized by the following exchange:

JUDGE RIEHL: Well, plumbing has to do with safety.

THE WITNESS: Yes, sir.

JUDGE RIEHL: You can get dysentary and die from it, kidney troubles, if you put in plumbing wrong. That's why they have inspections. I don't want to belabor the point.

THE WITNESS: I believe in safety. I just don't believe in the manner that it's done. That's the objection. (T. 145)

(By Mr. Dwire) Now, sir, in regard to these licenses you received, does the City of Wichita ever conduct any inspections?

ANSWER: Yes, sir, every [*22] building.

Q. Now you have testified, sir, in response to the Judge's question regarding OSHA. Would you make a comprison in the type of inspection the city inspectors make from the type of inspections you feel you received from the OSHA Inspectors?

ANSWER: If the city inspector finds a violation, he sits down and discusses it with you --

MR. DE SHAZO: I object, Your Honor, it's irrelevant to the case.

JUDGE RIEHL: It is a little bit irrelevant but we'll let the answer stand.

Also, if you'll explain what happens when he absolutely violates the law.

THE WITNESS: He discusses the violation and asks what, you know, determines how to correct it. At times there are different situations that arise that may require a little different ruling than what -- that is determined so --

JUDGE RIEHL: Let me ask you this: If the city catches you in a flagrant violation, do they take away your license? (emphasis added)

THE WITNESS: Yes, sir, they would take it away from you.

JUDGE RIEHL: They're a lot more drastic than any of these OSHA Regulations if they take away your license. That's your living isn't it?

THE WITNESS: No, sir, that's not more drastic. A city license is a privilege. [*23]

JUDGE RIEHL: Yes. But it'll mean if you were a electrician, taking away your license. Isn't that your livelihood entirely if that's your only profession?

THE WITNESS: If you are not a good electrician, your license should be taken away.

JUDGE RIEHL: The point I am making is the penalty is rather severe?

THE WITNESS: Yes, sir, but that's a privilege.

JUDGE RIEHL: We're getting a little far afield. I know what you're leading up to, Mr. Dwire, you are trying to make a comparison. But there is really no comparison. It's comparing oranges with peanuts.

But I wanted to bring that point forth, that there is a far more drastic penalty . . . .

THE WITNESS: . . . . However, a city license is a privilege and if you violate that privilege, it is taken away from you. OSHA has given me no privileges. (T. 151, 152, 153)

We note that the Solicitor in his brief has stated as follows:

"One would indeed have to be born yesterday to believe that the unguarded saws, which were corrected by merely removing the saw blades rather than providing hoods and spreaders, will not be returned to use in their original unguarded condition when the full complement of workers returns to the plant. [*24] Thus, while many of the violations were "abated" by temporarily removing the violative piece of equipment from service, few, if any, items were legitimately corrected so that the machinery could continue to be used and still comply with the standards."

Later on in his brief, the Solicitor indicated that this is not an issue in the case. Indeed, it is not. We are only considering the matter before us as a result of respondent's receiving a notification of failure to correct alleged violations and the proposed additional penalties. Of course, we cannot indulge in any inferences or conclusions based on the respondent exercising his Constitutional rights of insisting on a search warrant.

Even if it were an issue in this case, we would give the respondent the benefit of doubt and feel that he would indeed put proper protective equipment on unguarded saws. We believe this for the simple reason that respondent is well represented by counsel who would undoubtedly inform him that to again use unguarded saws would be a "willful violation". This would of course subject him to much more severe penalties. Further than that, we simply do not believe that respondent would subject his own [*25] employees to the danger of amputation of fingers, hands or arms from violation of the protective shields previously on unguarded saws.

The evidence in our opinion very clearly establishes that the respondent is somewhat unsophisticated insofar as keeping records as required by the Act. We are going to rule that the evidence is even on this matter and therefore we will be compelled to vacate the citation in regard to keeping a log of recordable occupational injuries and illnesses because the complainant has not met the burden of proof.

We note that there was some confusion in the transition and the work schedule of respondent, and other requirements imposed on him during the period in question. We are taking that into account.

In regard to the absence of a trained first aider, we are going to vacate this citation and penalty for the reason that we believe there is substantial compliance with the Act within the meaning of the standard. Respondent's employee's (Mr. Martin) first-aid card contained an expiration date of April 9, 1973, but the first-aid knowledge in his brain did not expire with the expiration date of April 9, 1973.

In regard to the violation concerning the fire [*26] extinguisher, we are again holding that the evidence is evenly balanced and therefore we are compelled to vacate the citation and the proposed penalty.

The Solicitor is right in that this case is indeed "much ado about nothing". We feel also that it is a tragedy that such massive misunderstandings of the motives on both sides has arisen. We would point out, in the unlikely event that there would be repeated violations of the standards in the future, that respondent conceivably could be in willful violation. We feel however that this is unlikely and that respondent is motivated as much as the Department of Labor towards providing safety for its employees and that he will comply with the standards in the future.

At the start of the case, respondent's attorney moved to dismiss cause 12298. During the course of exchange with respondent's attorney, Dwire, over this motion, we pointed out that by operation of law the case is over with when the 15 days expire and no action has been taken. Respondent had a chance to use his attorney to give him these pleadings and to give him a chance to file appropriate answers. Apparently, respondent was undecided whether or not to hire Mr. Dwire [*27] or to muddle along himself. In the process of doing this, he went too far without giving attorney Dwire any opportunity whatsoever to do what he would normally have done automatically, namely, file the proper papers in cause 11909 (T. 45, 46).

FINDINGS OF FACT

1. Respondent is a corporation with its corporate office located in Wichita, Kansas. It had a workplace located at 5700 South Hoover Road, Wichita, Kansas, where it is engaged in mocular building manufacturing (answer, T. 75).

2. Respondent employs approximately 12 employees and on January 27, 1975, had approximately two employees in its activities at the aforesaid workplace and is engaged in a business affecting commerce (answer).

3. Following an inspection by a compliance officer of OSHA, respondent was issued a citation for other than serious violations and a notification of proposed penalty on December 5, 1974, pursuant to section 9(a) of the Act. This citation and notification of proposed penalties were received by respondent on December 9, 1974, (docket number 11909, T. 6-48).

4. The aforesaid citation and notification of proposed penalties (docket 11909) was not timely contested and became a final order [*28] of the Review Commission on December 31, 1974 (T. 6-48).

5. As a result of a subsequent inspection of respondent's aforesaid workplace by a compliance officer on January 27, 1975, respondent was issued a notification of failure to correct alleged violations and of proposed additional penalties on January 31, 1975, pursuant to section 9(a) of the Act. This notification was received by respondent on February 3, 1975. On February 11, 1975, respondent filed with a representative of the Secretary a notice of intent to contest the notification of failure to correct the alleged violation and the proposed additional penalty pursuant to section 10(c) of the Act. This notice was duly transmitted to the Occupational Safety and Health Review Commission (answer).

6. The evidence is evenly balanced as to whether or not, on January 27, 1975, at respondent's aforementioned workplace at the west end of the shop, there was a general portable fire extinguisher obscured from view by a welder's hood hanging over the fire extinguisher (exhibit G-3, entire record).

7. Respondent's employee, who was working at its workplace on the date of reinspection, January 27, 1975, had two first-aid cards (T. [*29] 142, 143).

8. Employee Martin attended two months of first-aid training courses given through a volunteer fire department (T. 110, 111). This first-aid course was taught by a fireman from the Wichita Fire Department. The training course consisted of three hour sessions given twice a week (T. 121, 122).

9. One of the courses taken by employee Martin was advanced first aid.

10. The two courses covered, mouth-to-mouth resuscitation, applying tourniquets, treatment of cuts, eye injuries, broken bones, etc. During the courses, Mr. Martin learned how to treat different types of injuries and practiced different methods of treating first-aid cases (T. 123-124).

11. The card Martin received from the American Red Cross contained an expiration date of April 9, 1973.

CONCLUSIONS OF LAW

1. Respondent is an employer within the meaning of the Act.

2. Jurisdiction of the parties is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act, and the citation was issued in accordance with section 9(a) of the Act.

3. The violations described in the citation issued December 5, 1974, became a final order on December 31, 1974 (docket number 11909). [*30]

4. The respondent has substantially complied with the standard requiring a person or persons adequately trained to render first aid (T. 142, 143).

5. The Secretary has failed to carry the burden of proof to show that the respondent has been in violation of 29 CFR 1904.2(a); 29 CFR 1910.151(b) and 29 CFR 1910.157(a)(3) as alleged in cause number 12298.

DECISION

1. The citation issued December 5, 1974, became a final order of the Commission December 31, 1974, and the violations described in the citation together with the proposed penalties are hereby affirmed (cause number 11909).

2. The citation and the proposed additional penalties in cause number 12298 (29 CFR 1904.2(a), proposed penalty $350; 29 CFR 1910.151(b), proposed penalty $210 and 29 CFR 1910.157(a)(3), proposed penalty $350) are vacated.

Vernon Riehl, Judge, OSAHRC

Date: September 18, 1975