TITANIUM METALS CORPORATION OF AMERICA
OSHRC Docket No. 15051
Occupational Safety and Health Review Commission
March 11, 1977
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
Baruch A. Fellner, Office of the Solicitor, USDOL
John M. Orban, Associate Regional Solicitor, USDOL
Kenneth R. Cass, Allegheny Ludlum Industries, Inc.
Edward S. Suvoski, Jr., President, USA Local 4856, for the employees
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest [*2] issue.
The Judge's decision is accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
DECISION AND ORDER
Albert Escobedo and John M. Orban, Associate Regional Solicitor, U.S. Department of Labor
Kenneth R. Cass, Allegheny Ludlum Industries, Inc., for the Respondent
Edward S. Suvoski, Jr., President, United Steelworkers Of America, Local 4856, for the employees
Oringer, Judge: In this unusual case, after an inspection of the respondent's worksite, on June 11, 1975, by a representative of the complainant, the respondent was issued three citations on July 29, 1975, pursuant to section 9(a) of the Act, one of which is at issue [*3] in the case at bar. This citation alleges a serious violation of the standard found at 29 C.F.R. 1910.176(a), which violation was described as follows:
"Employer failed to maintain aisles and passageways (road) clear and in good repair, with no obstruction across or in aisles that could create a hazard in that:
a. Entrance across railroad tracks into J-1 building; passageway had dips and ruts (2-2 1/2") over which forklift trucks carrying containers (pots) of molten metal, had to travel.
b. Railroad crossing at avenue G, east of 11st Street [sic] had dips and ruts (2-2 1/2") over which forklift trucks carrying containers (pots) of molten metal had to travel."
Subsequent thereto, on August 21, 1975, the complainant amended the citation against the respondent, so as to allege a violation of the same standard in a non-serious manner, and described the violation in an identical manner as found in the original citation.
On August 25, 1975, the respondent again amended the citation, changing the numbers thereof, alleging a violation of the same standard in a non-serious manner and describing the violation in an identical manner. This reamended citation was served upon the respondent [*4] on or about August 28, 1975, thereby extending the final date for contesting the notice of contest until fifteen working days after August 28, 1975.
On August 26, 1975, the complainant reinspected the respondent's premises and, as a result of the reinspection, on September 4, 1975, issued against the respondent a notification of failure to correct alleged violation and proposed additional penalty. The penalty finally proposed for the reamended non-serious violation, alleged in its citation of August 25th, was $80. The penalty proposed in the notification of failure to correct alleged violation and proposed additional penalty was $480. On September 12, 1975, within the fifteen working day period allowed for contesting the final reamended citation served on the respondent on August 28, 1975, and fully within the period prescribed for contesting the notification of failure to abate, the respondent filed a timely notice of contest to both the reamended citation, as finally served on August 28, 1975, and to the notification of failure to abate, in the same notice of contest
The standard, allegedly violated, reads as follows:
SUBPART N - MATERIALS HANDLING AND STORAGE
29 C.F.R. 1910.176 [*5] -- HANDLING MATERIALS -- GENERAL
(a) Use of mechanical equipment.
Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard. Permanent aisles and passageways shall be appropriately marked.
The respondent argues that this standard is not applicable to the facts contained in the case at bar in that it applies to interior movement and not exterior. This tribunal does not agree with that premise. The standard concerns handling materials and, while it does pertain to interior areas, it also pertains to loading docks and "wherever turns to passage must be made."
In my opinion, this standard applies to exterior areas or interior areas so long as handling materials by use of mechanical equipment is concerned.
The respondent also vehemently argues that absence the fact of a final order or formal admission of violation by respondent, the Secretary was without authority to reinspect for violation until the 15-working day period for [*6] contest had elapsed. This tribunal does not find this argument valid. In view of the decision of the Court of Appeals in Secretary of Labor, Petitioner, v. Occupational Safety and Health Review Commission and Kesler & Sons Construction Company, respondents, 513 F.2d 553 (1975) and Secretary of Labor, Petitioner, v. Haybuster Manufacturing Co. & Occupational Safety and Health Review Commission, respondents, 524 F.2d 222 (1975).
The court in each of the two cases cited was unequivocal in its opinion that the Secretary could reinspect without waiting fifteen days if the abatement date set forth in the citation had passed. The complainant, however, is in error in relying upon the two cases above cited as sustaining the viability of its notification of failure to correct the alleged violation and the proposed additional penalty, in the instant cause.
In Kesler, supra, and Haybuster, supra, the respective respondents failed to file a notice of contest to the original citation within the fifteen day statutory period. In the instant cause, the respondent filed a notice of contest within the fifteen day period, thereby tolling abatement until the resolution of [*7] the contested original reamended citation and a final order by the Commission. The only argument against the viability of the notice of contest filed by the respondent in the instant case would be to show a lack of good faith by the respondent in filing its notice of contest and no such argument has been made by the government nor has any lack of good faith been found by this tribunal. Accordingly, the timely notice of contest to the reamended original citation tolled abatement and the notification of failure to correct and the proposed additional penalties must fall, in the instant cause. Both Kesler and Haybuster clearly pointed out that the respondents in those cases failed to file a notice of contest to the original citation. In the instant cause, while the Secretary had a right to go in and inspect prior to the fifteen day period expiring, inasmuch as it demanded immediate abatement, nevertheless the timely notice of contest filed enentually against the original citation tolled abatement, therefore invalidating the notification of failure to correct as well as the proposed imposition of additional penalties.
As the respondent points out in his brief, the field [*8] operations manual of the Occupational Safety and Health Administration states, inter alia,
"Where such a follow up disclosed that an employer has failed to abate a violation within the period specified in the citation, the fifteen working days allowed for contest has not yet expired, and the employer has not yet exercised his appeal rights, proposed penalties for failure to abate will be assessed against the employer in accordance with the procedures outlined in paragraph B.8.C. (1) of this chapter -- subject to cancellation if the employer subsequently files a notice of intention to contest." (Underscoring supplied.)
While the compliance and field operations manuals cannot overcome a standard properly promulgated, or the enabling statute itself, nevertheless, the complainant's minions, particularly his representatives such as the compliance officers and counsel, should be aware of the operations manuals of the Secretary and should comply therewith. This tribunal notes, however, that this entry in the manual may have been made prior to Kesler and Haybuster, supra, and may have led the compliance officers and counsel to believe that this portion of the manual [*9] was no longer viable in view of the cases cited above. As previously related, however, the two cases cited by the complainant in his brief, to wit, Kesler, supra, and Haybuster, supra, are not analogous in that in the instant cause a notice of contest was timely filed by the respondent herein.
The entire progression of events in the case at bar leads one to believe that this is a paradigm of how not to proceed in the enforcement of the Occupational Safety and Health Act. In fact, this case might be given the title of one of the great plays of the immortal bard, Shakespeare, to wit, "The Comedy of Errors."
In the instant case, the citation was amended three times, the last citation being issued on the 25th and received by certified mail by the respondent on the 28th of August, 1975. The Secretary, two days before the receipt of the final edition of the original citation, reinspected for failure to abate. While this may not have been an invalid reinspection, had a notice of contest not been timely filed, such a progression of events holds the Act up to ridicule. To compound the progression of errors, at the time of the trial a fourth amendment had to be made by [*10] counsel because there was an error in the complaint.
Insofar as the original violation is concerned, this tribunal finds that the standard is the proper standard to utilize in this case, and that the Secretary proved its case insofar as the original violation is concerned by a preponderance of credible evidence of record. There is no question that the passageways were not in good repair and that it was hazardous to carry molten magnesium chloride in pots that were not closed, over such areas and where there was danger of men being burned, and, in fact, where one employee was burned. The argument of respondent, that the employee's conduct was the cause of the accident, is found to be specious and without merit. The men were expected to work without stopping and to transport a certain number of pots and had to work rapidly and continuously. It should have been foreseen by the employer that an accident could happen, and the conditions should have been remedied prior to the inspection by the Secretary's representatives.
Comment must be made, however, on the abatement date affixed by the Secretary. It seems obvious that abatement could not have been immediately completed in the [*11] instant cause, and, had the Secretary demanded that abatement be started immediately, this tribunal could understand such direction. It is obvious, however, that construction repairs had to be made, and the only way abatement could have completed immediately would be to close the entire job for two or three weeks until the road was completed. This, in my opinion, would be unreasonable. It is reasonable to state, that while a portion of the area could be blocked off, such as the respondent did, it is further reasonable to expect that the respondent would order its employees to slow down and would thereby expect less trips made by those employees because of the slowing down of their work until the roads were repaired. It was further reasonable for the Secretary to expect that the pots would be far less full than they were at the time of the inspection, therefor again slowing down the work performed by the employees but contributing to their safety. It was further reasonable for the Secretary to assume that the construction job would start immediately. This would have been a sensible plan of abatement and should have been the directions given to the respondent insofar as [*12] abatement was concerned. It was, however, in my opinion, unreasonable to expect immediate abatement. You certainly could not make all of the repairs immediately. This tribunal agrees with the estimates, both by the Secretary's witness and by the respondent's witness, that at least two weeks would have been needed to repair the areas concerned and one week additional for the concrete to set, a total of three weeks. Thus, the demand for immediate abatement is unreasonable and only results in opposition by a respondent to proper compliance.
This does not excuse the respondent for having exposed their employees to burns from the molten magnesium chleride coming from the pots during movement thereof. This tribunal, accordingly, finds that the penalty proposed in the sum of $80.00, for the violation originally found, to be reasonable and appropriate in the premises.
Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the original, amended, and reamended citations, notification of proposed penalty, as amended, notification of failure to correct and proposed additional penalties, notice of contest, pleadings, representations, [*13] stipulations and admissions of the parties, the preponderance of the credible evidence of record supports the following
FINDINGS OF FACT
1. The respondent, Titanium Metals Corporation of America, is engaged in and employs employees in the operation of refining raw type titanium, quantities of which are shipped to various places outside the State of Nevada, from its workplace in Henderson, Nevada. (Complaint and Answer.)
2. The complainant issued to the respondent a citation on July 29, 1975, as a result of an inspection that took place on June 11, 1975, alleging therein a serious violation of the standard set forth at 29 CFR 1910.176(a). (See original serious citation.)
3. By an amended citation issued on August 21, 1975, the original serious citation was amended to a non-serious citation and numbered Citation No. 2, Item No. 1. The description of the alleged violation, as appeared in the amended citation, was identical to the description of the alleged violation, in the original serious citation. The abatement date was also identical, to wit, "Immediately upon receipt of this citation." (See original serious citation and see amended non-serious citation, issued August [*14] 21, 1975.)
4. By a second amended citation issued on August 25, 1975, and received by the respondent on August 28, 1975, the above referenced non-serious Citation No. 2, Item No. 1, alleging a violation of 29 CFR 1910.176(a) was reamended. This amendment changed the numbering of the citation and item from Citation No. 2, Item No. 1, to Citation No. 1, Item No. 5. Again, there was no change in the description of the alleged violation or the abatement date. (See reamended citation issued August 25, 1975.)
5. As the result of a re-inspection that took place on August 26, 1975, a notification of failure to correct the alleged violation (29 CFR 1910.176(a)) and additional proposed penalty was issued on September 4, 1975, to the respondent by the complainant. (See notification of failure to correct.)
6. The respondent filed a timely notice of contest, dated September 12, 1975, contesting the original citation, as amended and reamended, as well as the notification of failure to correct and additional proposed penalty. (See notice of contest.)
7. Forklift drivers employed by the respondent, carrying molten magnesium chloride in large pots, transported them over ruts and the moltem [*15] metal would spill out of the pots onto the road and onto adjacent areas (Tr. pages 14, 15, and 16).
8. An employee had a burn hole in his clothes resulting from a splash of molten magnesium chloride (Tr. 20).
9. The forklift trucks at times went over ruts that were 2-2 1/2" in depth (Tr. 22).
10. The forklift trucks traveled at times at approximately 10 to 15 miles per hour (Tr. 24, 47, 61 62).
11. The tops of the pots were not covered all the way. All they had at the top was something that resembled a lip (Tr. 25).
12. The material in the pots, testified to by the compliance officer and referred to above, was actually magnesium chloride rather than molten metal (Tr. 31).
13. The hazard created by the conditions at the respondent's workplace was that with the pots containing molten materials, when the forklift went over the ruts, and when it was driven rapidly, it tended to splash and was dangerous to the driver (Tr. 43).
14. In order to repair the condition permanently, it would take at least two weeks plus an additional week to allow the concrete to set, totaling three weeks in the aggregate (Tr. 52, 84).
15. There was a reported injury to a Mr. Wadley as a result [*16] of a burn from a splash from a pot (Tr. 53, 60, 61, 62, 63, 64, 65).
16. The hot pots would carry anywhere from 300 to 1350 pounds and were about 4 feet high and approximately 3 feet in diameter. The molten magnesium chloride was approximately 1400 degrees F. (Tr. 56).
17. The average weight carried in the pots approximated 1000 pounds (Tr. 57).
18. It was necessary to deliver the hot pots rapidly because the magnesium chloride would harden if the pots sat too long (Tr. 59, 60).
19. The penalty proposed for the reamended citation in the sum of $80 was appropriate in the premises (Tr. 92-98).
Based on the aforementioned findings of fact, and the entire record, the Judge makes the following
CONCLUSIONS OF LAW
1. At all times herein mentioned, this respondent was engaged in a business affecting commerce, within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.
2. The respondent, on the days of the inspections herein concerned, to wit, June 11, 1975, and August 26, 1975, was responsible for a worksite that was subject to, and within the purview of, the Occupational Safety and Health Act of 1970.
3. The timely filing of a notice of contest [*17] to the reamended original citation tolled abatement until a final order of the Commission is issued.
4. The re-inspection, however, was proper in that at the time of the re-inspection, the date demanded for abatement had passed and no notice of contest was filed at such time.
5. The timely filing of a notice of contest, however, to the original citation, invalidates the notification of failure to correct and the proposed additional penalty, and that allegation and proposed additional penalty must be vacated.
6. The respondent was in non-serious violation of the standard found at 29 CFR 1910.176(a).
7. The penalty proposed therefor, in the sum of $80.00 is consonant with those elements mandated by section 17(j) of the Act and is appropriate in the premises herein.
In view of the foregoing, good cause appearing therefor, it is ORDERED that:
1. The citation alleging a violation of the standard found at 29 CFR 1910.176(a) is herewith AFFIRMED.
2. The penalty of $80.00, proposed therefor, is similarly AFFIRMED.
3. The notification of failure to correct and the proposed additional penalty of $480 is herewith VACATED.
DAVID G. ORINGER, JUDGE, OSAHRC
Dated: April [*18] 29, 1976