OSHRC Docket No. 123

Occupational Safety and Health Review Commission

May 15, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



  BURCH, COMMISSIONER: On February 15, 1972, Judge David G. Oringer issued his recommended decision and order in this case affirming, with one exception, the Secretary's citation for other than serious violations and the penalties proposed therefore.

Thereafter, on February 22, I directed that the Judge's report in this case be reviewed by the Commission in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat 1590, hereinafter referred to as "the Act").

The Commission has reviewed the rulings of the Judge and finds no prejudicial error therein.   The Commission has also reviewed the entire record in this case and has considered the briefs, arguments and exceptions of the parties.   We adopt the Judge's recommended decision and order to the extent that it is consistent with the following.

On October 4, 1971, the respondent was issued a citation for non-serious violations of 7 separate Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to section 6 of the Act, together with a notification of proposed penalty in   [*2]   the total amount of $198.   A timely notice of contest was filed by the respondent and the matter proceeded to hearing before Judge Oringer who affirmed 6 of the   violations with $159 proposed penalties and dismissed one violation (Item 5 -- lack of privacy in men's toilet facility) which he properly found was de minimis.

The sole issue for determination on review is whether any penalty should be assessed in this case for the remaining violations considering this employer's past history, good faith and the gravity of the violations. n1

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n1 The methodology utilized by the Secretary for computing proposed penalties has been amended since the issuance of the notification of proposed penalty in this case, and the Commission notes that no penalty would now be proposed for 3 of the violations (Items 1, 3, and 6).

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Respondent is engaged in the custom manufacture of wood products, fixtures and other millwork.   It employs approximately 50 employees at its Nashville, Tennessee workplace. Respondent is engaged in one   [*3]   of five industries with the highest accident rates, the so-called "target industries," designated by the Secretary for priority inspection.

Evidence adduced at the hearing reveals that respondent sustained only nine lost time accidents during the last 5 years.   This supports its representation that a meaningful commitment to the objective of assuring safe and healthful working conditions for its employees has been implemented.   The record also shows that respondent took immediate steps to abate the instant alleged violations.

Section 17(j) of the Act provides that:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

  In order to maintain uniformity in proposed penalties, the Secretary has promulgated a method for determining proposed penalties for non-serious violations of the Act.   That formula, as recently amended, appears to be well designed to assist OSHA personnel in arriving at equitable proposed [*4]   penalties in such cases, especially since the gravity of the violation is explored in some detail as the first step in the computation process.   However, as the Commission stated in its opinions in Secretary of Labor v. Nacirema, Secretary of Labor v. Hidden Valley Corporation of Virginia,

The Commission is of the opinion that the principal purpose of this Act is to obtain compliance with its requirements in order to ensure a safe and healthful workplace. Relatively minor monetary penalties do little to effectuate this objective.   We, therefore, will look carefully at cases involving such proposed penalties. This is a case where the proposed penalty adds nothing to the objectives of the Act.

Accordingly, in view of respondent's excellent safety record in this high hazard industry, the immediate attention to abatement, and the low level of gravity of the violations charged, we conclude that no penalty   [*5]   should be assessed.

Accordingly, IT IS ORDERED that the Judge's order be amended to delete the affirmance of the Secretary's notification of proposed penalties for the violations set forth in paragraph 2 of said order.

No penalty is assessed.

  [The Judge's decision referred to herein follows]

ORINGER, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as "the Act") to review a citation issued by the Secretary of Labor (hereinafter referred to as "complainant") pursuant to section 9(a), and a proposed assessment of penalties thereon issued pursuant to section 10(a) of the Act.

The citation issued on October 4, 1971, and complaint filed on November 5, 1971, allege that J.E. Chilton Millwork and Lumber Company, Inc., the employer (hereinafter referred to as "respondent"), on or about September 24, 1971, at a workplace under its ownership, operation and control, violated seven occupational safety and health standards promulgated pursuant to section 6 of the Act, namely, 29 C.F.R. 1910.151(b), 1910,22(a), 1910.141(g)(1), 1910.157(d)(2)(i), 1910.141(c)(2)(i), 1910.314(d)(4),   [*6]   and 1910.242(b).   Notification of proposed penalty was issued by the complainant, also on October 4, 1971, proposing to assess total penalties of $198.   The citation and notice of proposed penalties were served upon respondent by certified mail on October 7, 1971, and respondent filed notice of intention to contest the citation and proposed penalties with complainant on October 26, 1971.

This cause was referred to the Occupational Safety and Health Review Commission for hearing pursuant to section 10(c) of the Act on October 27, 1971, and on December 9, 1971, the undersigned was appointed, and the within case was assigned to him for hearing pursuant to section 12(e) of the Act.

Pursuant to notice, the hearing was held on December 22, 1971 in Nashville, Tennessee.

  Having heard the testimony of the witnesses and having considered the same together with the citation, notice of proposed penalties, notice of contest, pleadings, representations and admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, supports the following findings of fact:


1.   Respondent, J.E. Chilton Millwork and Lumber Company, Inc.,   [*7]   is a Tennessee corporation with its office, plant, and principal workplace located in Nashville, Tennessee, (hereinafter referred to as "the workplace"), where it has been and is engaged in the business of manufacturing wood products, fixtures, and other millwork on a custom basis.   (Complaint and Answer; Tr. 60-61).

2.   Respondent regularly has ordered, received, and used lumber, supplies, and materials produced and furnished by suppliers outside the state of Tennessee, and many of the products manufactured by respondent regularly are sold and shipped to purchasers outside the state of Tennessee.   (Complaint and Answer).

3.   Inspection of respondent's workplace to determine respondent's compliance with the Occupational Safety and Health Act of 1970 (hereinafter referred to as "the Act") was conducted on September 24, 1971, by James Stanley Broos, Compliance Safety and Health Officer, Occupational Safety and Health Administration, United States Department of Labor.   (Tr. 6-8).

4.   Subsequent to the inspection of respondent's workplace on September 24, 1971, respondent, on October 4, 1971, was issued a citation for violations (other than serious) of seven standards promulgated    [*8]   pursuant to section 6 of the Act, and notice of proposed penalties. (Complaint and Answer; Citation and Notice of Proposed Penalties; Tr. 19).

5.   Notice of Contest dated October 22, 1971, was filed by the respondent and was forwarded to the Commission.   (Tr. 2).

6.   The citation issued on October 4, 1971, was prominently posted at various locations throughout respondent's workplace, as were copies of the complaint and answer, and notice of the time and place of hearing of this matter.   (Tr. 58-60).

7.   Neither a representative of the employees nor any individual employee appeared at the hearing as a party, although three employees of the respondent, including two executives, testified for the respondent.   (Tr. 58-95).

8.   Prior to and on September 14, 1971, no person at or on the respondent's workplace, was specifically trained to render first aid.   (Tr. 8, 9).

9.   The respondent's workplace is located at a measured driving distance of 1.4 miles, and one or two traffic lights, from the nearest hospital.   (Tr. 64, 69).

10.   Prior to and on September 24, 1971, a storeroom in respondent's workplace contained debris, scrap material and cardboard boxes on the floor, and metal pieces [*9]   projecting and protruding from a bin and storage rack at head and/or face level.   (Tr. 10, 40, 41, 65, 66, 82, 83).

11.   Prior to and on September 24, 1971, employees ate lunch at various locations in and about the workplace, no lunchroom facilities having been provided by the respondent.   The respondent does not require employees to eat on the premises, however, the lunch period is for a duration of thirty (30) minutes and the closest restaurant recalled is approximately four (4)   blocks from the workplace. (Tr. 13, 14, 41, 42, 53, 54, 56, 66, 67).

12.   Respondent's manufacturing processes which generate considerable quantities of sawdust and wood chips throughout the workplace, involve the use of substantial quantities of volatile solvents, washing materials, paint, and paint thinner.   (Tr. 54).

13.   Prior to and on September 24, 1971, respondent maintained an automatic sprinkler system, serviced by the American District Telegraph (A.D.T.).   (Tr. 68, 73, 75).

14.   Prior to and on September 24, 1971, the respondent did not maintain a program of monthly inspection of fire extinguishers located upon the premises of its workplace. (Tr. 12, 18, 19, 37).

15.   Prior to   [*10]   and on September 24, 1971, the toilet facilities consisting of commodes did not occupy separate compartments and were not separately partitioned. (Tr. 14, 15, 68, 93).

16.   Prior to and on September 24, 1971, the restrooms at respondent's workplace were dirty and unsanitary, in that there were buildups of brown substances in the commodes, and buildups of dirt in the lavatories, and items on the floor. (Tr. 14-16, 54).

17.   Prior to and on September 24, 1971, a refrigerator, hot plate, and coffee pot, located in the shipping clerk's office, and a Nehi machine, were not properly grounded to prevent hazards from electric shock.   (Tr. 16, 44, 69, 70, 71, 77, 78).

18.   Prior to and on September 24, 1971, a boring machine which was located in a corner of the respondent's workplace floor near a molding machine was not properly grounded to prevent hazards of electric shock.   (Tr. 16, 69, 70, 71).

19.   On September 24, 1971, and for sometime prior   thereto, the boring machine was not in use but was subject to use if needed.   (Tr. 44, 77, 78).

20.   Prior to and on September 24, 1971, air hoses in excess of 30 PSI, bearing compressor gauges of 100 PSI, were used for cleaning and [*11]   blowing away piles of chips and dust.   (Tr. 17, 18, 46, 47, 71, 72, 86, 87, 89).

21.   Uncontroverted testimony discloses that the respondent has taken steps to abate the conditions complained of in the citation and complaint.   (Tr. 64-72, 80, 81).

22.   Employees of the respondent have had nine (9) work related injuries at respondent's workplace in the last five (5) years, six (6) of which resulted from lifting and one of which resulted in the severing of an employee's fingertip.   (Tr. 62-63).

23.   The respondent employs approximately 49 employees.   (Complaint and Answer).

24.   Prior to and on September 24, 1971, the respondent did not have a formal safety program including formal employee safety training, however, respondent did have and did furnish protective equipment, posted general safety information, and investigated accidents.   The respondent's management was found generally cooperative by the Department.   (Respondent's Exhibit #1) (Tr. 28, 29, 33, 50-55).

25.   The Department's compliance officer considered the violations, in his expert judgment, to be other than serious.   (Tr. 24, 57).


The respondent, in his oral argument (Tr. 98 et seq. ) and in his conclusions [*12]   of law, (pps. 10, 11) asserts that three of the standards of the Secretary contained in the citation, and which he is alleged to have violated do   not "bear(s) directly on the safety or health of employees," and are "unreasonable."

In both his oral and written arguments, the respondent attacks the standard contained in 29 C.F.R. 1910.141(c)(2)(i).

The Act reads in section 2(b), as follows:

The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources --

(3) by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to business affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act;

The Act, in section 3 thereof, relates,

For the purposes of this Act --

(8) The term "occupational safety and health standard" means a standard which requires conditions,   [*13]   or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

Title 29 C.F.R. Part 1910.141(c)(2)(i), violation of which has been charged to this respondent, reads as follows:

Each toilet facility (closet) shall occupy a separate compartment, which should be equipped with a door latch, and clothes hanger. n1

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n1 Emphasis supplied by Hearing Examiner.

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This standard contains language mandatory as well as hortatory.   That part of the standard requiring a separate compartment, preceded by the word "shall," is mandatory and the lack of partitions about a commode constitutes a violation.

  That part of this standard, however, relating to a door, a latch, and a clothes hanger, preceded by the word "should" is merely hortative, and does not constitute a violation of said standard and may not result in a proposed penalty. (See motion of the Secretary in Secretary of Labor   [*14]   v. American Airlines, Inc., OSHRC Docket #397.)

While the Compliance Operations Manual of the Department of Labor, Occupational Safety and Health Administration does not have the force and effect of a statute, or regulation promulgated pursuant to statutory authority granted therefore, the Hearing Examiner must give Official Notice to such an official document purporting to be a guiding authority to those officers of the Department, within whose purview and responsibility, lies the mandate of compliance with the statute and regulations to be enforced.   Section VIII, page 7 of that manual reads, in pertinent part, as follows:

De Minimis

In such situations, a notice of De Minimis violation shall be issued, with no proposed penalty. Lack of partitions in sanitary toilet facilities would be a De Minimis violation.

In view of this exposition of the policy of the Secretary, it is difficult to see how a citation and proposed penalty may be issued for this violation.   The hearing examiner is in agreement with the Secretary's guidelines to his compliance officials insofar as this violation is concerned, and the citation and proposed penalty issued therefore must fall and a De Minimis [*15]   notice therein be substituted, particularly in view of the uncontroverted testimony that this De Minimis violation has been abated.

It is noted herein that part of the description of the alleged violation of 29 C.F.R. 1910.141(c)(2)(i), relating   to the men's rest rooms in both buildings being dirty, does not appear in any part whatsoever of the standard quoted.   The proof of record, however, does disclose violation of section 1910.141(a)(1)(i) and/or 1910.22(a), for the latter of which the respondent has been cited, and for which a proposed penalty issued.

The respondent next attacks as unduly restrictive, that standard numbered 29 C.F.R. 1910.141(g)(1).   The subject standard reads, as follows:

(g) Lunchrooms -- (1) General.   In all places of employment where employees are permitted to lunch on the premises, an adequate space suitable for that purpose shall be provided for the maximum number of employees who may use such space at one time.   Such space shall be physically separate from any location where there is exposure to toxic materials.

The hearing examiner is of the opinion that this standard is eminently reasonable insofar as the health and safety of employees   [*16]   are concerned and, in particular, with respect to a woodworking plant such as the respondent's.   This standard, in the setting described in the proof of record, is certainly not one of aesthete, but one reasonably concerned with health and safety, and well within the purview of the congressional mandate.

The third standard asserted by the respondent to be restrictive is that standard bearing number 29 C.F.R. 1910.157(d)(2)(i) which reads, as follows:

(2) Inspection. (i) Extinguishers shall be inspected monthly, or at more frequent intervals when circumstances require, to insure they are in their designated places, to insure they have not been actuated or tampered with, and to detect any obvious physical damage, corrosion, or other impairments.

The trier of the issues finds that fire extinguishers have a specific purpose to fulfill in the area of safety, not satisfied by sprinkler systems alone.   The inspection   requirements for the purposes enumerated in the standard appear reasonable and well within the legislative contemplation of the Congress, when it enacted the governing statute.

For the reasons above stated, the hearing examiner finds that the standards are well [*17]   within the mandate given the Secretary by the Congress.

Based upon all of the foregoing, the hearing examiner makes the following


1.   At all times herein mentioned the respondent was and still is an employer engaged in a business affecting commerce within the meaning of section 3 of the Occupational Safety and Health Act, and the Commission has jurisdiction of the parties and of the subject matter herein.

2.   Pursuant to section 6(a) of the Occupational Safety and Health Act, the Secretary of Labor, on April 27, 1971, adopted 29 C.F.R. 1910, to become effective generally on August 27, 1971.   The standards alleged to be violated in complainant's citation and complaint were therefore in full force and effect as regards respondent and its employees on September 24, 1971.

3.   Respondent was, on September 24, 1971, and at all other times mentioned herein, an employer subject to the aforesaid safety and health regulations promulgated as 29 C.F.R. 1910 by the Secretary of Labor.

4.   Respondent was in violation of the standard at 29 C.F.R. 1910.151(b) on September 24, 1971, and prior thereto, in that no person at respondent's workplace was adequately trained to render [*18]   first aid, and respondent's workplace was 1.4 measured miles distance, and not in near proximity, to an infirmary, clinic, or hospital.

  5.   Respondent was in violation of the standard at 29 C.F.R. 1910.22(a), on September 24, 1971, and prior thereto, in that a storeroom at its workplace and the men's rest rooms were not maintained in a clean and orderly condition.

6.   Respondent was in violation of the standard at 29 C.F.R. 1910.141(g)(1), on September 24, 1971, and prior thereto, in that employees were allowed to eat lunch on the premises of the workplace, without an adequate space suitable for that purpose being provided.

7.   Respondent was in violation of the standard at 29 C.F.R. 1910.157(d)(2)(i), on September 24, 1971, and prior thereto, in that fire extinguishers were not inspected at monthly intervals to assure that they were in their designated places, that they had not been actuated or tampered with, and that they had not been obviously damaged, corroded, or impaired.

8.   Respondent was in violation of the standard at 29 C.F.R. 1910.141(c)(2)(i), on September 24, 1971, and prior thereto, in that each toilet facility (closet) in respondent's rest rooms did not [*19]   occupy a separate compartment.

9.   The violation referred to in item (8) above, was a De Minimis violation and no citation or proposed penalty should have issued therefore.   A notice of De Minimis violation should issue in substitution therefore.

10.   Respondent was in violation of the standard at 29 C.F.R. 1910.314(d)(4), on September 24, 1971, and prior thereto, in that a refrigerator, hot plate, coffee pot, soft drink dispenser and boring machine on the premises of respondent's workplace were not grounded.

11.   Respondent was in violation of the standard at 29 C.F.R. 1910.242(b), on September 24, 1971, and   prior thereto, in that respondent permitted its employees to use compressed air for cleaning purposes at pressures substantially in excess of 30 pounds per square inch.

12.   With the exception of that violation mentioned in items 8 and 9 above, the other aforementioned violations of standards promulgated pursuant to, and within the purview, of the Act, and those conditions and practices giving rise to those violations, had a direct and immediate relationship to safety and health, but did not constitute "serious" violations within the meaning of the Act.

13.   Violation [*20]   of 29 C.F.R. 1910.141(c)(2)(i) is a De Minimis violation and the citation and proposed penalty therefore was not appropriate.

14.   A notice of De Minimis violation is the appropriate remedy for violation of 29 C.F.R. 1910.141(c)(2)(i), in this cause.

15.   The penalties proposed to be asserted against the respondent for the other violations are in this cause, appropriate and reasonable.

In view of the foregoing; having given due deliberation to the gravity of the violations, the good faith of the respondent, and its history; and good cause appearing therefore, it is ORDERED, that:

1.   The citation and notice of proposed penalty issued for violation of 29 C.F.R. 1910.141(c)(2)(i) be and the same, is hereby vacated.

2.   That part of the complainant's citation charging violations of 29 C.F.R. 1910.151(b), 1910.22(a), 1910.141(g)(1), 1910.157(d)(2)(i), 1910.314(d)(4), and 1910.242(b), be and the same is hereby affirmed.

3.   The complainant's proposed penalties for violations of those standards enumerated in (2) above, individually and in the total amount of $159.00 be and the same, are hereby affirmed.