THE HOUSE OF GLASS

OSHRC Docket No. 12484

Occupational Safety and Health Review Commission

March 25, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman, Regional Solicitor, U.S. Department of Labor

Kenneth B. Clark, President, The House of Glass, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On February 7, 1975, following an inspection of its place of business by authorized representatives of complainant Secretary of Labor, respondent employer was issued a citation alleging eight violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as "the Act"]. Respondent was also issued a notification of proposed penalties informing it that complainant proposed penalties for four of the eight alleged violations, specifically items 1, 3, 6, and 8 of the citation. n1

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n1 The aggregate proposed penalty was $145. This figure broke down as follows: Item 1 - $30; Item 3 - $45; Item 6 - $30; Item 8 - $40.

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Within fifteen working days of its receipt of the citation and [*2] notification of proposed penalties, respondent filed a letter asking that all proposed penalties be "dropped," and indicating specific instances of disagreement as to six of the eight alleged violations. This letter did not, however, specifically take issue with the merits of the violations alleged in items 3 and 8 of the citation.

In paragraph III of the complaint, complainant averred that respondent had contested all alleged violations and proposed penalties with the exception of the violation alleged in item 8 of the citation. Regarding item 8, complainant averred that:

Respondent has not contested item no. 8 of the citation. Accordingly, said item is not in issue in this proceeding, having become a final order of this Commission by operation of section 10(a) of the Act, and said item no. 8 of the citation is therefore not subject to review by any court or agency.

While respondent agreed with most of complainant's interpretation of its notice of contest, it specifically rejected the averments regarding its alleged failure to contest item 8. In paragraph III of its answer respondent stated that:

On February 27, 1975 we did protest the citations and the penalties for the alleged [*3] violations. We did include item no. 8 in this protest. Please refer to the last paragraph of my letter of protest.

The last paragraph of respondent's "letter of protest" (notice of contest) reads as follows: "We strongly protest the fine of $145.00 for alleged violations of nonserious items and ask that it be dropped."

After joinder of issue, a hearing was held in this matter before Administrative Law Judge John J. Morris. At the hearing complainant offered evidence on all of the eight alleged violations and their corresponding proposed penalties even though according to the pleadings complainant took the position that item 8 was not before the Commission.

On January 5, 1976, Judge Morris issued a decision disposing of seven of the eight items in the citation and their proposed penalties. n2 The Judge did not resolve the issue raised in the pleadings as to whether item 8 of the citation was contested. Indeed, he made no findings regarding the contesting of any of the items or penalties. Instead, he disposed of seven of the items on their merits but omitted any discussion of item 8 or its proposed penalty even though complainant had addressed the merits of item 8 and its proposed [*4] penalty in his posthearing brief.

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n2 Judge Morris affirmed items 2 through 7 of the citation and assessed civil penalties of $45 and $30 for items 3 and 6, respectively. Item 1 and its $30 proposed penalty were vacated when the Judge granted complainant's motion to withdraw the item.

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Neither party sought review of the Judge's decision. Nevertheless, on January 28, 1976, Commissioner Moran ordered review without specifying any issues. Pursuant to the request for submissions in the review order, respondent filed a letter requesting review ". . . because we question the competence of the compliance officer." Respondent asserted that, inasmuch as item 1 was withdrawn by complainant on the ground that the violation as cited did not occur, ". . . the balance of the citation could be as much in error as item 1 proved to be." Respondent did not refer to any specific instances of error in the Judge's findings regarding the six items affirmed. Complainant filed no response to the order directing review.

We have reviewed [*5] the Judge's decision insofar as it relates to the six items affirmed. Admissions by respondent, uncontroverted testimony, and photographic exhibits amply support Judge Morris' findings and conclusions regarding items 2 through 7. Moreover, we have not been directed to any specific error and have been unable to discover any reversible error through our own examination of the record. Under these circumstances, we affirm Judge Morris' decision insofar as it relates to the merits of items 2 through 7 and the assessment of appropriate penalties. n3

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n3 Included within our disposition is an affirmance of the Judge's disposition of the merits of the violation alleged in item 3 of the citation. As noted, there is some question as to whether respondent contested the violation alleged in item 3 so as to allow the commission to exercise jurisdiction without contravening section 10(a) of the Act. As will be discussed infra, however, we need not resolve this issue.

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As noted above, respondent's notice of contest does not [*6] clearly indicate an intention to contest the merits of the violations alleged in items 3 and 8. Under the circumstances of this case, however, it is unnecessary to resolve the issue of what items have been contested because it makes no difference in outcome whether we deem the items final orders or rule on their merits. In either case both items would be affirmed. The Judge's findings and conclusions underlying his affirmance of item 3 are amply supported in the record, and we would therefore affirm his disposition. Also, as to item 8, our review of the record leads us to conclude that the alleged violation was established. n4 The item alleged three instances of noncompliance with Article 250 -- 45(d) of the National Electrical Code (NEC) as incorporated by 29 CFR 1910.309(a). As incorporated, the cited portion of the NEC requires grounding of certain electrical equipment connected by a cord and plug. Respondent admitted that the three pieces of equipment named in the citation were not grounded. We, therefore, affirm item 8 of the citation. n5

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n4 We are exercising our authority under 5 U.S.C. 557(b) to make findings of fact and conclusions of law as to this item. Such a course is particularly appropriate under the circumstances of this case because the Judge's decision does not comport with the requirements of 5 U.S.C. 557(c) and there is no real dispute on the record as to the relevant facts. See Duane Smelser Roofing Co., 4 BNA OSHC 1948, 1976-77 CCH OSHD para. 21,387 (No. 4773, 1976).

n5 We reject respondent's argument that its noncompliance should be excused because the equipment was ungrounded when purchased. The standard admits of no such qualification.

[*7]

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Respondent objected to the $40 penalty proposed by complainant for this item. In our opinion, the proposed penalty is appropriate. The hazard created by ungrounded electrical equipment is possible electrocution to anyone in contact with the equipment. A total of five employees were exposed regularly to the ungrounded radial saw, finger pull machine, and refrigerator. Under the circumstances, we regard the gravity of the violation as moderate. Respondent is a small employer with no history of previous violations. Moreover, respondent evinced good faith by abating as to all three pieces of equipment prior to the hearing. Considering the above, a $40 penalty is appropriate.

It is ORDERED that items 2-8 of the citation be affirmed and a total penalty of $115 be assessed.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

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

I agree with the affirmance of item 6, but I would vacate items 2, 3, 4, 5, 7 and 8 n6 of the citation because those items allege noncompliance with invalid standards.

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n6 Item 8 is properly before us since respondent's answer showed respondent's intent to contest that item of the citation. See Secretary v. William W. Turnbull, d/b/a Turnbull Millwork Company, OSAHRC Docket No. 7413, December 15, 1975.

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Item 2 alleges that respondent failed to comply with the fire extinguisher standard codified at 29 C.F.R. 1910.157(a). As I explained at some length in my dissenting opinion in Secretary v. Collator Corporation, OSAHRC Docket No. 2004, February 25, 1976, the standards published at 29 C.F.R. 1910.157 were not promulgated in accordance with the mandate of 29 U.S.C. 655(a) since the purpose of the fire extinguisher standards is to protect property rather than the "safety and health" of employees. They are therefore unenforceable.

Items 3, 4 and 5, alleging violations of various subsections of 29 C.F.R. 1910.213, should be vacated since the standards published at 29 C.F.R. 1910.213 were also improperly promulgated. For a full discussion of my reasons for this conclusion, see my dissenting opinion in Secretary v. Noblecraft Industries, [*9] Inc., OSAHRC Docket No. 3367, November 21, 1975.

Finally, items 7 and 8, alleging violations of 29 C.F.R. 1910.309(a) which incorporates by reference the National Electric Code, NFPA 70-1971, should be vacated since the incorporation by reference fails to comply with the reasonable availability requirements of the Administrative Procedure Act. Secretary v. Leader Evaporator Company, Inc., OSAHRC Docket No. 5225, June 10, 1976 (dissenting opinion).

Since this decision does not cover all the matters discussed in Judge Morris' decision, his decision is attached hereto as Appendix A.

Appendix A

DECISION AND ORDER

January 5, 1976

Ann M. Noble, Office of Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor, for the Complainant

Kenneth B. Clark, President, Pro Se, The House of Glass, for the Respondent

Hearing conducted in Great Falls, Montana June 11, 1975. Judge John J. Morris presiding.

Morris, Judge, OSAHRC: Complainant alleges multiple violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act). The citation alleges that respondent violated Section 654(a)(2) of the Act while engaged [*10] in a retail glass and glazing business in Great Falls, Montana.

The initial issue for consideration is the jurisdiction of the Commission. In other words, does respondent engage in a business affecting commerce?

The evidence: respondent receives the majority of its glass from Detroit, Michigan. Glass sales constitute twenty percent of its business (Tr. 4, 44, 45). Respondent employs 13 persons including stockholders and officers (Tr. 5, 47).

Section 652 of the Act defines "Commerce" as:

". . . trade, traffic, commerce, transportation, or communication among the several States, or between a State and any place outside thereof, or within the District of Columbia, or a possession of the United States (other than the Trust Territory of the Pacific Islands), or between points in the same State but through a point outside thereof. . . ."

Section 652(5) of the Act defines an employer to be a person engaged in a business "affecting commerce who has employees. . . ." Judicial interpretation of the term "affecting commerce" includes indirect activities which in isolation might be deemed to be merely local, but which nonetheless affect commerce. N.L.R.B. v. Superior Lumber Company [*11] 121 F.2d 823 (3rd Circ., 1971; 50 A.L.R. 2d 1228, 1235). In addition the size of the business enterprise involved is not controlling unless Congress makes it so, N.L.R.B. v. Fainblatt et al, 306 U.S. 601, 59 S.Ct. 668, 672. An example of the size of enterprises which have been determined to have an affect on commerce may be found in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82 wherein a farmer exceeded his wheat allotment of 11.1 acres. An additional 11.9 acres was ruled by the Court to be within the statutory scheme of the Agricultural Adjustment Act of 1938 (as amended). On the stated facts respondent employer engages in a business affecting commerce and hence is subject to the Act. Secretary v. John J. Gordon, Inc. 492 F.2d 1027 (1974).

Item 1 alleges a non-serious violation of 29 CFR 1910.93(a)(h)(1). Complainant moved to withdraw this item and to vacate the proposed penalty of $30 (Tr. 3-4). The notice of hearing was duly posted (Tr. 3-4). No person objected and the motion should be granted.

Item 2 alleges a nonserious violation of 29 CFR 1910.157(a)(1), it reads:

A fire extinguisher in the basement was not maintained in a fully charged condition. [*12]

The standard reads:

1910.157 Portable fire extinguishers.

(a) General requirements-(1) Operable condition. Portable extinguishers shall be maintained in a fully charged and operable condition, and kept in their designated places at all times when they are not being used.

The evidence: A portable fire extinguisher did not have a full charge. Its gauge registered in the danger zone (Tr. 4-5, 8-9, 33; compl's ex. 1). One employee was exposed to the hazard (Tr. 10). Other fire extinguishers bearing the same inspection date showed a proper charge (Tr. 28).

Respondent's defense that other persons frequently checked and presumably improperly charged the extinguisher cannot prevail. An employer cannot contract away his liability under the Act: Secretary v. Bruce Masonry, Inc. 7 OSAHRC 532; Secretary v. Otis Elevator Company 12 OSAHRC 127. The lack of any other extinguisher in the basement serves to accentuate the hazard (Tr. 54).

Item 3 alleges a nonserious violation of 29 CFR 1910.213(h)(i). It reads:

The DeWalt radial saw, SN 59100801, in the shop was not provided with a lower blade guard to help protect employees from accidental contact.

(Proposed civil penalty: [*13] $45.)

The standard reads:

1910.213 Woodworking machinery requirements.

(h) Radial saws. (1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper hood shall be constructed in such a manner and of such material that it will protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed.

The evidence: Respondent admits the DeWalt radial saw trough did not have a lower blade guard (Tr. 4-5, 10, 28). When purchased in 1960 the manufacturer's design did not incorporate such guards (Tr. 34, 48, 11; compl's. ex. 2). Complainant proposed a civil penalty after considering gravity, respondent's prior history, size and good faith (Tr. 12). A 50% abatement credit reduced the final proposed penalty to $45 (Tr. 13).

In Secretary v. J.R. Simplot Company [*14] 10 OSAHRC 581 (1974); Secretary v. Amercian Brush Company, 6 OSAHRC 511 (1974) Commission Judges characterized the violation of this standard as "serious" within the statutory definition of Section 666(j). The above cases and related Commission decisions establish the law in this area. No substantial controversy exists in connection with item 3. Contrary to respondent's contentions the proposed penalty should be affirmed.

Item 4 alleges a nonserious violation of 29 CFR 1910.213(h)(2). The citation reads:

The DeWalt radial saw, SN 59100801, used for ripping in the shop was not provided with nonkickback fingers or dogs to oppose the thrust or tendency of the saw to pick up the material and throw it back toward the operator.

(Proposed civil penalty: none.)

The standard reads:

1910.213 Woodworking machinery requirements.

(h) Radial saws.

(2) Each radial saw used for ripping shall be provided with nonkickback fingers or dogs located on both sides of the saw so as to oppose the thrust or tendency of the saw to pick up the material or to throw it back toward the operator. They shall be designed to provide adequate holding power for all the thicknesses of material being [*15] cut.

The evidence: The DeWalt saw lacked nonkickback fingers when used for crosscutting wood (Tr. 13, 40). While not necessary for all operations such devices prevent the blade from throwing material back at the operator (Tr. 14, 29). Respondent had such devices available (Tr. 49). One employee used the saw (Tr. 14).

Item 5 alleges nonserious violation of 29 CFR 1910.213(h)(4). The citation reads:

The DeWalt radial saw, SN 59100801, in the shop was not installed so that the cutting head would return to the start position when released by the operator.

(Proposed civil penalty: none.)

The standard reads:

1910.213 Woodworking machinery requirements.

(h) Radial saws.

(4) Installation shall be in such a manner that the front end of the unit will be slightly higher than the rear, so as to cause the cutting head to return gently to the starting position when released by the operator.

The evidence: The cutting head on the DeWalt saw upon release failed to return to a starting position. It would not return at all thereby exposing an employee to moving blades (Tr. 15-16; compl's ex. 2.) Respondent's contention that the return device constitutes accessory equipment cannot prevail [*16] (Tr. 3). The standard recognizes no such distinction. Further, blocks can be inserted to give the table on which the saw is located a slight slope thereby affecting a return of the cutting head.

Item 6 alleges a nonserious violation of 29 CFR 1910.219(d)(1). The citation reads:

Pulleys and associated parts less than 7 feet from the floor on the finger pull machine in the sheeney area were not guarded to help prevent employees from getting caught in the nip points.

(Proposed civil penalty: $30.)

The standard reads:

1910.219 Mechanical power-transmission apparatus.

(d) Pulleys-(1) Guarding. Pulleys, any parts of which are seven (7) feet or less from the floor or working platform, shall be guarded in accordance with the standards specified in paragraphs (m) and (o) of this section. Pulleys serving as balance wheels (e.g., punch presses) on which the point of contact between belt and pulley is more than six feet six inches (6 ft. 6 in.) from the floor or platform may be guarded with a disk covering the spokes.

The evidence: An unguarded belt pulley created a nip point 56 inches above ground level (Tr. 17, 18, 35; compl's. ex. 3). Two employees operating the finger pull [*17] machine would be in close proximity to the nip points (Tr. 19, 20; compl's. ex. 3).

Item 7 alleges a nonserious violation of Section 240-16, National Electrical Code, NFPA 70-1971 as adopted by 29 CFR 1910.309(a). The citation reads:

Overcurrent devices (switchbox) in the receiving room were not readily accessible.

(Proposed Civil penalty: None.)

The cited National Electrical Code reads:

240-16. Location in Premises. Overcurrent devices shall be located where they will be:

(a) Readily accessible, except as provided in Sections 230-91 and 230-92 for service equipment and Section 364-11 for busways.

(b) Not exposed to physical damage.

(c) Not in the vicinity of easily ignitible material.

(d) Occupant to Have Ready Access. Each occupant shall have ready access to all overcurrent devices protecting the conductors supplying his occupancy.

The evidence: A shipment of material temporarily blocked access to circuit breaker boxes (Tr. 20, 30-31, 35). Respondent contends a person could climb over the obstacles to reach the safety equipment. Further, the material was in the process of being removed to storage at the time of the inspection (Tr. 51).

Respondent's argument overlooks [*18] the NEC requirement that switch boxes shall be "readily accessible". The necessity of climbing over material to reach such boxes does not comply with the regulations. The fact that the material was in the process of being removed at the time of the inspection relates to issues of exposure and any resultant penalty. Complainant proposes no civil penalty for this violation.

The proposed civil penalties for items 3 and 6 fall within the Commission doctrine assessing penalties where the gravity is other than low in order to remind employers that "their primary responsibility under the Act is adherence to its protective mechanisms" Secretary v. Hydroswift 1 OSAHRC 921 (1972). For other cases assessing small monetary penalties for defective equipment see Secretary v. Osborne Apparell Manufacturing Company 4 OSAHRC 399 (1973); Secretary v. Amcor, Inc. 5 OSAHRC 235 (1973).

FINDINGS OF FACT

1. Respondent employer purchases a majority of its glass to be resold at retail from Detroit, Michigan.

2. The glass sales constitute twenty percent of respondent's business in Montana.

3. Complainant moved to vacate citation 1, item 1 and the proposed civil penalty of $30 for [*19] the alleged violation of 29 CFR 1910.93(a)(b)(1).

4. Respondent's fire extinguisher was not maintained in a fully charged condition.

5. Respondent's radial saw did not have a lower blade guard.

6. Respondent's radial saw was not provided with nonkickback fingers.

7. The cutting head of respondent's radial saw would not return to the starting position when released.

8. An unguarded pulley created an exposed nip point 56 inches off the ground.

9. Access to switchboxes was blocked by material. To reach the switchboxes it would be necessary to climb over material.

CONCLUSIONS OF LAW

1. Respondent is subject to the Act (Facts 1, 2).

2. Complainant's motion to vacate item 1 (and the proposed penalty of $30) for the alleged violation of 29 CFR 1910.93(a)(h)(1) should be granted (Facts 3).

3. Respondent violated 29 CFR 1910.157(a)(1) and item 2 should be affirmed (Facts 4).

4. Respondent violated 29 CFR 1910.213(h)(i) and item 3 and the proposed penalty of $45 should be affirmed (Facts 5).

5. Respondent violated 29 CFR 1910.213(h)(2) and item 4 should be affirmed (Facts 6).

6. Respondent violated 29 CFR 1910.213(h)(4) and item 5 should be affirmed (Facts 7). [*20]

7. Respondent violated 29 CFR 1910.219(d)(1) and item 6 with the proposed penalty of $30 should be affirmed (Facts 8).

8. Respondent violated Section 240-16, National Electrical Code, NFPA 70-1971 as adopted by 29 CFR 1910.309(a) and item 7 should be affirmed (Facts 9).

ORDER

Based on the foregoing findings of fact and conclusions of law it is hereby ADJUDGED and ORDERED:

1. Citation 1, item 1 and the proposed penalty therefor are VACATED.

2. Citation 1:

Item Number

Proposed Civil Penalty

2

None

3

 $45

4

None

5

None

6

 $30

7

None

Are AFFIRMED.

So ordered in the City and County of Denver, Colorado.

John J. Morris, Judge, OSAHRC