OSHRC Docket No. 1278

Occupational Safety and Health Review Commission

June 18, 1973


Before MORAN, Chairman; VAN NAMEE, Commissioner



  MORAN, CHAIRMAN: On February 14, 1973, Review Commission Judge John J. Larkin issued a decision in this case holding that respondent had violated section 5(a)(2) 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) because of a failure to comply with 5 separate occupational safety and health standards.   He assessed penalties in the total amount of $150.   Thereafter, pursuant to section 12(j) of the Act, I directed that this decision be reviewed by the Commission to ascertain whether the Secretary had met his burden of proof as to a finding of noncompliance with the occupational safety and health standard published as 29 C.F.R. 1910.106(e)(2)(ii)(b).

Subsequent to this direction for review, complainant filed with the Commission a notice that he was withdrawing his charge that respondent failed to comply with that standard.

Since complainant has expressly changed his position regarding the charge in question, and after reviewing the record as a whole, that portion of the decision of the Judge finding respondent in violation of the Act for failure to comply with the occupational safety and health standard published as 29 C.F.R. 1910.106(e)(2)(ii)(b) and the assessed penalty of $30 therefor are reversed.   In all other respects, the Judge's decision is affirmed.  



  VAN NAMEE, COMMISSIONER, concurring: I concur in   vacationof the citation and proposed penalty for violation of 29 C.F.R. 1910.106(e)(2)(ii)(b) solely on the ground that the evidence fails to establish a violation of the cited standard.

[The Judge's decision referred to herein follows]

LARKIN, 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. (referred to as the Act) to review a "Citation" and "Notification of Proposed Penalty" in the total amount of $150 issued by the Secretary (referred to as the Secretary) pursuant to Sections 9(a) and 10(a) of the Act.

The proceeding grows out of a citation issued on August 2, 1972, as a result of an inspection on July 31, 1972, citing a failure to conform with certain published standards.   Although the Citation contained 20 items, by motion granted at the trial, Respondent removed from its notice of contest all except items 9, 10, 13, 14, and 16 in the Citation.   More specifically of the items left at issue, the Citation provides:

An inspection of a workplace under your ownership, operation, or control located at 550 West 84th Street, Hialeah, Florida 33014, and inspected on July 31, 1972 and described as follows -- aluminum extrusions to finished screen enclosures, doors, and manufacture wall decor -- has been conducted.

Description of alleged violation -- Abatement date 29 C.F.R. 1910.106(e) -- Failure to provide proper storage facilities for flammable and combustible liquids, and to bond and ground containers, in paint area. -- August 22, 1972 29 C.F.R. 1910.107(c) -- Failure to provide explosion proof lighting and fans in the paint spray area. -- August 22, 1972 29 C.F.R. 1910.157(a) -- Failure to maintain ready access and to properly mount portable fire extinguishers. -- August 22, 1972 29 C.F.R. 1910.157(d) -- Failure to have portable fire extinguishers thoroughly examined and recharged at prescribed intervals. -- August 22, 1972   29 C.F.R. 1910.213(c) -- Failure to provide blade guards, spreaders and non kick-back fingers on the table saws in the fabricating areas. -- August 22,   1972

The alleged standards provide:

29 C.F.R. 1910.106(c)(2)(ii)(b)

The quantity of liquid that may be located outside of an inside storage room or storage cabinet in a building or in any one fire area of a building shall not exceed:

(1) 25 gallons of Class IA liquids in containers

(2) 120 gallons of Class IB, IC, II, or III liquids in containers. 29 C.F.R. 1910.107(c)

(6) . . .   Electrical wiring, motors, and other equipment outside of but within twenty (20) feet of any spraying area, and not separated therefrom by partitions, shall not produce sparks under normal operating conditions and shall otherwise conform to the provisions of subpart S of this part for Class I, Division 2 Hazardous Locations.

(7) Lamps.   Electric lamps outside of, but within twenty (20) feet of any spraying area, and not separated therefrom by a partition, shall be totally enclosed to prevent the falling of hot particles and shall be protected from mechanical injury by suitable guards or by location.

29 C.F.R. 1910.157(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.

(2) Location.   Extinguishers shall be conspicuously located where they will be readily accessible and immediately available in the event of fire.   They shall be located along normal paths of travel.

29 C.F.R. 1910.157(d)

Inspection, maintenance, and hydrostatic tests -- (1) General.

(i) The owner or occupant of a property in which extinguishers are located shall be responsible for such inspection, maintenance, and testing. . . .

(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. . . .

(3) Maintenance.   (i) At regular intervals, not more than 1 year apart, or when specifically indicated by an inspection, extinguishers   shall be thoroughly examined and/or recharged or repaired to insure operability and safety; or replaced as needed . . . . 29 C.F.R. 1910.213(c)

Hand-fed ripsaws. (1) Each circular hand-fed ripsaw shall be guarded by a hood which shall completely enclose that portion of the saw above the table and that portion of the saw above the material being cut . . . .

(2) Each hand-fed circular ripsaw shall be furnished with a spreader to prevent material from squeezing the saw or being thrown back on the operator . . . .

(3) Each hand-fed circular ripsaw shall be provided with nonkickback fingers or dogs so located as to oppose the thrust or tendency of the saw to pick up the material or to throw it back toward the operator . . . .

On September 5, 1972, the Secretary filed a complaint in response to Respondent's Notice of Contest filed on August 9, 1972, and on September 22, 1972, Respondent filed an answer.

The trial was held on January 8, 1973, at Miami Springs, Florida.


1.   Respondent is a corporation doing business at 550 West 84th Street, Hialeah, Florida, where it is engaged in producing aluminum screens, doors, and other products (Complaint and Answer; Par. II).   It is a business affecting interstate commerce within the meaning of the Act (Complaint and Answer, Par. II).   Respondent employed in excess of 20 employees (Tr. 33).

2.   On July 31, 1972, Respondent's facility was inspected by an employee of the Secretary (Tr. 13, 15 and Citation).

3.   Respondent had approximately 200 gallons of paint including more than 25 gallons of lacquer and lacquer thinner stored in open shelves adjacent to the   spray area (Tr. 18, 19, 39, 40, 42).   Lacquer and paint thinner contain a tyrene backing with a flashpoint of approximately 80-85 degrees (Tr. 18).   Respondent had a sprayer and an assistant working inside the adjacent paint spray room (Tr. 19-21).

4.   There were three banks of fluorescent lighting and an air fan for ventilation in the paint spray area that did not contain an explosion-proof casing (Tr. 20-21, 40).   The sprayer and an assistant were exposed to this condition (Tr. 21).

5.   There were three or four fire extinguishers that Respondent's workmen had piled material against and blocked access for instant use (Tr. 21).   One of these was located by the paint spray booth and two located in the fabricating area (Tr. 22).   There were three or four extinguishers required for the size of its plant (Tr. 49, 50).

6.   One fire extinguisher contained a tag indicating it was last inspected in March 1969 (Tr. 22).   This was a soda-ash extinguisher that had been used by Respondent in its old building (Tr. 65).   The fire extinguishers were not inspected by Respondent on a monthly or more frequent basis (Tr. 23, 65).   The operating extinguishers had been inspected within the year prior to the time at issue, but they did not contain a tag indicating the inspection or the date of inspection (Tr. 23-24, 50, 63).

7.   The table saws located in the fabricating area contained adjustable blades for raising and lowering the blades (Tr. 24).   These table saws did not contain a hood-guard, spreaders, or kick-back fingers (Tr. 24-25).   Respondent used a jig that fitted over the blade that protected the blade from exposure while the jig was in use (Tr. 51).   The saw was used for purposes without the jib (Tr. 52).

8.   Respondent had a very good safety record with a   history of no fires or injuries (Tr. 42, 46).   Respondent seemed sincerely interested in the safety and welfare of its employees (Tr. 53).


The issue for decision is whether Respondent was in violation of Section 5(a)(2) of the Act for failure to conform to certain published standards of the Secretary.

Respondent does not seriously contest the fact that conditions failed to meet the criteria in the applicable standards.   Respondent's defense lies instead: the Act deprives it of its constitutional rights against self incrimination; it has been cited for violation of standards that should instead be enforced at the point of origin of the product (the manufacturer); enforcement of the standards places it in an unfair competitive position; and the Government in the initial inspection of a plant should help to establish good safety practices rather than use the cooperativeness of the employer to cite violation and assess penalties.

Respondent's defenses were presented by its President who did a most admirable, sincere, and capable presentation.   The real problem is that Respondent's defenses are being voiced in the wrong forum.   As pointed out to Respondent at the close of the case, the constitutionality of the Act must be litigated before the Federal judiciary and Respondent's other contentions should be pursued with its congressional representatives who wrote and hold the power to change, rescind, or nullify the Act.

In all fairness to the Secretary, it is noted that Respondent was cited for 20 alleged violations.   A review of these items fails to reveal any one of the 20 that should be classified as of a de minimus nature.   Hence, the Secretary would have been within his right to propose   penalties as to each of these 15 additional items.   Instead, he proposed penalties as to only five items and these in an insignificant amount.   In addition, he did not oppose Respondent's Motion to Withdraw the non-asserted penalty items from litigation.   It can only be concluded that the Secretary has been most lenient and fair with Respondent.

The real determination must be the proper amount of penalty for the five items left in dispute.   Technically, these are to be considered under Section 17(j) of the Act in the light of the size of Respondent, the gravity of the violations, Respondent's good faith, and history of previous violations.

All that is known of Respondent's size is that it has in excess of 20 employees.

Not a great deal of light was shed on the gravity of the violations.   At least two employees were exposed to some possibility of fire or explosion due to storage of the paint cans in open storage in conjunction with the nonexplosion proof lights and fan. It must be assumed that all employees were exposed to the fire extinguisher violations, but such exposure is offset by the fact that Respondent had twice as many extinguishers as required for the size of its plant. The number of table saws and the extent of exposure to each is not shown.   It would have to be assumed that the operator was exposed, but the extent and duration is not shown.

Respondent's good faith is not doubted.   Its president was most conscientious in his attitude toward safety and a concern for the safety of his employees.   Following the inspection, he took immediate steps toward abating the conditions and obtained an insurance survey to establish a safety program.

Respondent had no record of injuries.

In view of the lack of more specific facts as to Respondent's size and the gravity of the violations and   relying heavily upon Respondent's good faith and safety history, it is concluded that the $30 penalty as to each item in dispute proposed by the Secretary should be affirmed.


1.   Respondent was in violation of Section 5(a)(2) of the Act for its failure to conform to the provisions of 29 C.F.R. 1910.106(e), and a penalty in the amount of $30 is appropriate.

2.   Respondent was in violation of Section 5(a)(2) of the Act for its failure to conform to the provision of 29 C.F.R. 1910.107(c), and a penalty in the amount of $30 is appropriate.

3.   Respondent was in violation of Section 5(a)(2) of the Act for its failure to conform to the provisions of 29 C.F.R. 1910.157(a), and a penalty in the amount of $30 is appropriate.

4.   Respondent was in violation of Section 5(a)(2) of the Act for its failure to conform to the provisions of 29 C.F.R. 1910.157(d), and a penalty in the amount of $30 is appropriate.

5.   Respondent was in violation of Section 5(a)(2) of the Act for its failure to conform to the provisions of 29 C.F.R. 1910.213(c), and a penalty in the amount of $30 is appropriate.


That the Secretary's Citation is affirmed and a penalty in the amount of $30 shall be assessed against Respondent for each of the items 9, 10, 13, 14, and 16 in the Citation.