ALLWAY TOOLS, INCORPORATED

OSHRC Docket No. 12573

Occupational Safety and Health Review Commission

February 25, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

Donald Gringer, Pres., Allway Tools, Inc., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This matter involves a contest of a notification for failure to abate. Respondent was originally cited in that exits in its workplace were obstructed contrary to the requirements of 29 C.F.R. 1910.37(k)(2) and in that locks had been installed on exits so as to prevent free escape contrary to the requirements of 29 C.F.R. 1910.36(b)(4). On reinspection, the Secretary's representative determined that abatement had not occurred, and failure to abate penalties of $1,380 and $1,925 respectively were proposed. Following a hearing Judge Seymour Fier assessed penalties of $1,380 and $100 respectively. On July 25, 1975 Respondent wrote Judge Fier. It accepted his decision concerning the locked exits but asked for review of the obstruction allegation. The Judge filed his decision with the Commission's staff on August 12, 1975 without changing assessments. His decision was not forwarded to the Commissioners until September 23, 1975. [*2] Review was ordered on September 25, 1975. The order for review stated that the Judge's decision was not brought to the attention of the Commissioners until after expiration of the normal period specified by 29 U.S.C. 661(i). By its terms it vacated the September 11, 1975 final order date on the Judge's decision and granted Respondent's petition for review pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.

Respondent has not filed a brief on review. The Secretary has filed a brief wherein he states that the Commission is without authority to review the record. He relies on Brennan v. OSHRC (S.J. Otinger, Jr. Construction Co.), 502 F.2d 30 (5th Cir. 1974), in which the Court held that the Commission lacks jurisdiction to reconsider, pursuant to Fed. R. Civ. P. 60(b), a Judge's decision which has not been directed for review within the period specified in 29 U.S.C. 661(i).

This case, however, is distinguishable from Otinger. In this matter although the order for review specified that review was directed pursuant to Fed. R. Civ. P. 60(b), and said that the Judge's decision became final on September 11, 1975 it is clear that review was directed within [*3] the terms of 29 U.S.C. 661(i). n1 As noted in the order for review, the Judge's decision was not brought to the attention of the Commissioners until after expiration of what was expected to be the statutory review period, i.e., until after September 11, 1975.

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n1 Assuming arguendo that review was directed pursuant to Rule 60(b), we would still conclude that the case was properly before us. In Monroe & Sons, Inc., No. 6031 (Jan. 21, 1977), we respectfully declined to follow the Otinger decision, and held that we could set aside a final order under the circumstances permitted by Rule 60(b). In addition to setting forth specific conditions under which a final order may be set saide, Rule 60(b) permits such action for "any other reason justifying relief from the operation of the judgment." In our judgment, such relief is justified under the facts of this case. The delay in issuance of the direction for review was in no way due to any fault on Respondent's part. Respondent is therefore entitled to have its exceptions to the Judge's decision considered. See 5 U.S.C. 557(c). Furthermore, review was directed immediately after the error was discovered, and only two weeks after the Judge's decision had apparently become final. Under these circumstances, our action in setting aside the final order is not unduly burdensome to the Secretary. See Monroe & Sons, Inc., supra (slip opinion at p. 6).

[*4]

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Section 661(i) provides as follows:

A hearing examiner appointed by the Commission shall hear, and make a determination upon, any proceeding instituted before the Commission and any motion in connection therewith, assigned to such hearing examiner by the Chairman of the Commission, and shall make a report of any such determination which constitutes his final disposition of the proceedings. The report of the hearing examiner shall become the final order of the Commission within thrity days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission.

Clearly, the statute contemplates a filing with the Commission members such that they have the opportunity to review the record for thirty days. Any other construction of the statutory terms can result in parties not having their objections to a Judge's decision brought to the attention of the Commissioners such that they are deprived of the opportunity for agency review because of matters beyond their control. Gurney Industries, 6 OSAHRC 634, BNA 1 OSHC [*5] 1376, CCH OSHD para. 16,805 (R.C. 1973); Robt. W. Setterlin & Sons Co., 76 OSAHRC 53/D8, BNA 4 OSHC 1214, CCH OSHD para. 20,682 (R.C. 1976).

We turn now to the merits of the case. Respondent accepted the Judge's decision insofar as he assessed a penalty for failure to abate locked exits. As for the obstructed exit charge, Respondent's letter of July 25, 1975 states that the exhibits show that the exit was "partially blocked." The original citation was for two partially blocked exits. Accordingly and in view of Judge Fier's evaluation of the evidence of record we conclude that Respondent did fail to abate. We do not think Respondent seriously contends to the contrary.

It does appear, however, that Respondent seeks a reduction in the penalty. The Judge assessed the proposed penalty of $1,380 because in his view it was not inappropriate. He concluded that it was in keeping with the intent and purpose of the Act. He did not make findings of fact as to this proposed penalty whereas he made specific finding of fact concerning the proposed penalty for the locked exit charge. As to that charge he noted that Respondent is a responsible businessman with a relatively small business. [*6] He also noted that Respondent was confused by the regulations, and that the proposed penalty was severe.

We would apply these findings to the obstructed exit charge. In addition, we note that the violation was of relative low gravity since few employees were enposed and the obstruction to the exit was capable of being removed with relative ease. Further, both the Judge and the Secretary's representative agreed that Respondent's plant was clean, well kept, and well attended. On balance, we assess a penalty of $300.

Accordingly we modify the Judge's decision to assess a penalty of $300 for the failure to abate the violation of 29 C.F.R. 1910.37(k)(2) and his decision as modified is affirmed.

So Ordered.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Although I agree that this case is properly before us, n2 I am compelled to dissent because of my colleagues' erroneous disposition of the 29 C.F.R. 1910.37(k)(2) n3 charge. Their holding means that an employer can be held liable for noncompliance with 1910.37(k)(2) whenever a room exit is obstructed, regardless of how small the room may be, how many other adequate exits it contains, and how many employees worked therein. I cannot [*7] join in such a ridiculous result. n4

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n2 See Secretary v. Monroe & Sons, Inc., OSAHRC Docket No. 6031, January 21, 1977.

n3 That standard provides that:

"Means of egress shall be continuously maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency."

n4 It is well-settled that a failure to abate charge must be vacated if the originally cited condition was not a violation of the Act at the time of the original or subsequent inspection. Secretary v. Franklin Lumber Co., 9 OSAHRC 922 (1974).

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The alleged failure to abate pertains to an exit to the outside which was located in respondent's dipping room. The record establishes that one employee and sometimes two worked in this 35' by 12' room which had three doors. Aside from the blocked street exit, there were two other doors in the room that led to adjoining rooms or buildings which had exits to the outside.

Section 1910.37(k)(2) does not state that all means of egress must be free of obstructions or [*8] impediments to full and instant use. Furthermore, the objective of the standard is clear: adequate escape routes in "case of fire or other emergency." The Secretary of Labor's regulations specify that the number of exits provided must be "appropriate to the individual building or structure, with due regard to the character of the occupancy, the number of persons exposed, the fire protection available, and the height and type of construction of the building or structure." 29 C.F.R. 1910.36(d)(3). Considering the small size of respondent's dipping room along with the fact that only two employees worked therein, it is abundantly clear that two exits were adequate to provide escape routes from the room. Thus, irrespective of the obstructive exit, respondent satisfied the safety objective of 1910.37(k)(2).

The Judge apparently affirmed the charge under the belief that the two unobstructed exits were "passageways" instead of "means of egress." That holding, however, does not comport with the following definition as prescribed by the Secretary:

"A means of egress is a continuous and unobstructed way of exit travel from any point in a building or structure to a public way and consists [*9] of three separate and distinct parts: the way of exit access, the exit, and the way of exit discharge. A means of egress comprises the vertical and horizontal ways of travel and shall include intervening room spaces, doorways, hallways, corridors, passageways, balconies, ramps, stairs, enclosures, lobbies, escalators, horizontal exits, courts, and yards."

Thus, contrary to the Judge's apparent mistaken belief, a "means of egress" need not exit directly to the outside.

Since this decision does not discuss all the matters covered in Judge Fier's decision, his decision is attached hereto as Appendix A so that the law of this case may be known.

Appendix A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor and Helen Bodian, for Complainant

Mr. Don Gringer, Allway Tools, Inc., For the Respondent

Fier, Judge:

This is a proceeding pursuant to chapter 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et, seq, hereinafter called the Act), wherein the respondent contested both the fact violation and the proposed penalty for failure to correct alleged nonserious violations of section 654 of the Act, and failure [*10] to comply with standards codified at 29 CFR 1910.36(b)(4), page 23531; and 29 CFR 1910.37(k)(2), page 23533.

The standard at 1910.36(b)(4) provides:

"In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency."

The standard at 1910.37(k)(2) provides:

"Means of egress shall be continuously maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency."

The record shows that as a result of an inspection made on January 9, 1975, by an OSHA compliance officer, a citation was issued alleging six nonserious violations, two of which are the subject matter of this proceeding. The record further shows that the respondent did not contest the violations and made payment of the proposed penalties in the total amount of $225.00. [*11] Nonserious violation item no. 5 is concerned with the fastenings on the exit doors (29 CFR 1910.36(b)(4)); and item no. 6 is concerned with the blocking by approximately fifty percent of each of two exit doors (29 CFR 1910.37(k)(2)). The amount of the proposed penalty for item no. 5 was $70.00; and $50.00 for item no. 6. These amounts, in addition to the other proposed penalties were paid. The citation also stated that the violations were to be corrected immediately upon receipt of the citation. It is noted that the citation was issued on January 20, 1975.

On February 19, 1975, a reinspection was conducted by the same compliance officer who noted that item no. 5 and item No. 6 were not corrected. As such, a notification of failure to correct the alleged violations, and assessment of a proposed additional penalty in the amount of $1,925.00 for item no. 5 and $1,380.00 for item no. 6 was served on the respondent. n1

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n1 Section 17(d) of the Act.

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With respect to the additional penalties proposed by the complainant, [*12] section 17(j) of the Act provides that due consideration shall be given "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."

Charges and discussion of evidence

Respondent has admitted that it is an employer within the meaning of section 652 of the Act and that it employs approximately 20 employees in and about the aforesaid worksite; and, that its business affects commerce within the meaning of such section.

The unrebutted evidence on the record shows that at the time of the first inspection January 9, 1975, of the respondent's premises, the alleged violations were not contested by the respondent and the proposed penalty was paid. (T. 8, 9) * The record states that on February 19, 1975, the compliance officer made a reinspection of the premises and noted that two of the prior violations still existed. The compliance officer testified that on the initial inspection, the Assembly Stamping Area Exit and Dipping Room Exit were approximately fifty percent obstructed. On the reinspection, the exits were approximately 100 percent obstructed by a table, a barrel, and other [*13] materials. This doorway is the prime means of egress from the "Dipping Room". The compliance officer testified that he made note of his findings and reported them to his supervisor, who in turn promptly issued a notification of failure to correct.

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* Transcript of hearing.

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The respondent, in his testimony, alleges that this was a one time happenstance committed by an employee without the knowledge or consent of the employer. It is also stated that this same employee has a language barrier and may not have understood the notice that was posted. The respondent also sought to show that the egress from the building was not "fully" obstructed, since there were other means by which to leave the premises as noted in respondent's Exhibit B in evidence. However, a review of the testimony and the exhibits, revealed that the alleged other means of egress, were in fact passageways to other parts of the building. It was also established that other employees, while not in the vicinity of the particular exit at the time, do [*14] come into the room where the obstructed exit is and as such could be prevented from making a safe exit in an emergency. In considering the gravity of this nonserious violation, the respondent contends that there are other exits from the building available. The other two openings noted in respondent's Exhibit B, are not exits but lead to exits nearby.

The respondent submitted photographs marked as (Exhibit-A) showing the approximate description and layout of his plant. The Administrative Law Judge notes that it appears to be clean, well kept, and well attended. The compliance officer testified that this was essentially true. While the obstruction of the door may not have been considered to be a serious violation, the facts show that the exit was fifty percent obstructed on the first occasion and one hundred percent obstructed on the second occasion. The Administrative Law Judge is thus persuaded to conclude that the respondent is in violation of 29 CFR 1910.37(k)(2). The respondent cannot absolve himself of responsibility by stating that his employee had a language barrier. The proposed penalty of $1,380.00 is considered not inappropriate and in keeping with the intent and [*15] purposes of the statute.

The remaining contested nonserious violation is also concerned with the egress from the occupied building. (29 CFR 1910.36(b)(4)) The testimony of the compliance officer showed that on both inspections the bolts on each of the doors were unfastened and able to move freely without any obstruction, both on the initial inspection and on the reinspection. n2 The evidence also showed that at the exact time the compliance officer made his reinspection, a locksmith appeared on the premises for the purpose of installing the panic locks required. It is further noted that the respondent contends that he had difficulty in obtaining the proper locks needed to secure his premises and submitted an affidavit in support of this contention. (Note answer pleading.) While the evidence does demonstrate that the respondent did not have the locks installed at the time of the reinspection, it is also evident that he did take steps to correct the violation.

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n2 T. 36

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The Administrative Law Judge has observed the [*16] respondent and considered his testimony. Mr. Gringer appears to be a responsible businessman with a relatively small business. He appeared without the benefit of legal counsel. He testified that he was confused by the regulations since he must also comply with other governmental laws and did not fully comprehend the gravity of this situation. As such the intent of the statute is not necessarily to punish but to correct.

The Administrative Law Judge is persuaded to conclude that had the respondent filed for an extension of the abatement period, because he was unable to obtain the necessary custom-made locks in the allotted time, the abatement period could have been extended. In view of his asserted lack of knowledge he allegedly proceeded as expeditiously as he could to obtain the required locks.

It would be contrary to the intent of the statute to assess a penalty in this instance, as severe in nature as the one proposed by the Secretary. As such, the Administrative Law Judge finds that an appropriate penalty of $100.00 would be in keeping with the spirit and the intent of the statute.

FINDINGS OF FACT

On the basis of the citation, notice of proposed penalty, notice [*17] of contest, pleadings, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the basis of the record as a whole, a preponderance of the evidence supports the following findings of fact:

1. In January and February 1975, and at all times material thereto, Allway Tools, Inc., respondent herein, was engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. On January 9, 1975, a Compliance Safety and Health Officer (CSHO) inspected respondent's worksite at 1513 Olmstead Avenue, Bronx, New York, on behalf of the Secretary of Labor. As a result of that inspection Citation Number 1 (Nonserious 6 items) was issued to respondent on January 20, 1975. On January 20, 1975, a Notification of Proposed Penalty was issued to respondent proposing penalties of $225.00. The respondent did not contest the violations and made payment of the above amount. (File and Transcript, pp. 8, 9; Exh. C-1.)

3. On February 19, 1975, a reinspection of the above premises was made by the same (C.S.H.O.), at which time two of the above previously cited violations were found not [*18] to be abated; (29 CFR 1910.36(b)(4)) in that locks or fastenings preventing free escape from the inside of the plant were not yet installed on designated exits; and 29 CFR 1910.37(k)(2) means of egress required to be continuously maintained free of obstruction to full instant use in case of fire or other emergency, specifically around the dripping room exit.

4. The evidence of record shows that the panic or safety locks were to be installed by a locksmith who arrived while the (C.S.H.O.) was making the reinspection. (T. 57-60)

5. The evidence of record shows that the dipping room exit which was previously cited as being approximately fifty percent obstructed at the time of the first inspection, was found to be one hundred percent obstructed at the time of the reinspection. (T. 18, 37, 38)

From the foregoing Findings of Fact we now make and enter the following:

CONCLUSIONS OF LAW

1. At all times material hereto, Allway Tools, Inc., respondent herein, was an employer engaged in a business affecting commerce within the meaning of section 3 of the Occupational Safety and Health Act of 1970. On March 6, 1975, respondent filed a letter contesting the Notification of Failure [*19] to Correct Alleged Violation and of proposed Additional Penalty. Respondent thereby brought itself and the subject matter of this proceeding within the jurisdiction of the Occupational Safety and Health Review Commission pursuant to section 10 of the Act.

2. The failure of the respondent by February 19, 1975, to abate the prior violation of the door fastenings was a violation of safety standard codified at 29 CFR 1926.36(b)(4).

3. The failure of respondent by February 19, 1975, to abate the prior violation by providing egress free of all obstruction or impediments to full instant use in the case of fire or emergency was a violation of 29 CFR 1910.37(k)(2).

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown, it is hereby

ORDERED that, the penalty of $1,925.00 proposed in connection with Citation Number 1 - item 5; 29 CFR 1926.36(b)(4), be modified to $100.00 and as so modified be, and the same hereby is, Assessed, and it is further

ORDERED that the penalty of $1,380.00 proposed in connection with Citation Number 1 - item 6; 29 CFR 1910.37(k)(2), is Affirmed.

Dated: August 12, 1975

New York, New York

SEYMOUR FIER, [*20] JUDGE, OSAHRC