YOSEMITE PARK AND CURRY CO.

OSHRC Docket No. 15952

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Altero D'Agostini, Reg. Sol., USDOL

D.E. Slusser, Vice Pres. Admin. Yosemite Park & Curry Co.

OPINION:

DECISION

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 issue.

The Judge's decision is accorded the significance of an unreviewed [*2] 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.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

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

Judge Cronin's reasons for vacating three of the charges are correct, However, vacation of these charges as well as those he affirmed is warranted because of complainant's failure to issue the citations with reasonable promptness as required by 29 U.S.C. 658(a). Secretary v. Jack Conie & Sons Corp., OSAHRC Docket No. 6794, June 25, 1976.

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Cronin's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Sandra K. Rogers, Trial Attorney, U.S. Department of Labor, for [*3] complainant

Mr. Daniel E. Slusser, Vice-President of Administration, Yosemite Park and Curry Co. for respondent

Cronin, Judge, OSAHRC: This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act) involving an inspection by the U.S. Department of Labor of respondent's transportation garage at Yosemite Park, California, on or about October 28 and 29, 1975. As a result of this inspection, five citations were issued to respondent on November 11, 1975. Citation No. 1 alleges 2 "NON-SERIOUS" violations, and the other four citations allege 4 separate "REPEAT NON-SERIOUS" violations. The complaint filed December 19, 1975, amended Citation Nos. 2, 3, 4 and 5 by deleting the word "NON-SERIOUS" therefrom. The Notification of Proposed Penalty, also issued on November 11, 1975, proposes a $50.00 penalty each for Items 1 and 2 of Citation No. 1 and a $200.00 penalty each for Citation Nos. 2, 3, 4 and 5. A timely notice of contest to the citation was received from the respondent on December 1, 1975.

Item No. 1 of Citation No. 1 alleges a violation of 29 C.F.R. 1910.22(a)(2) as follows:

"Failure to maintain [*4] the floor of every workroom, so far as possible, in a clean and dry condition in the following location:

1. Shop area work bench in the Transportation Garage (Roof Leak)"

Standard 1910.22(a)(2) as promulgated by the Secretary of Labor provides:

"The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition. Where wet processes are used, drainage shall be maintained, and false floors, platforms, mats, or other dry standing places should be provided where practicable."

Item No. 2 of Citation No. 1 alleges a violation of 29 C.F.R. 1910.309(a) as follows:

"Failure to connect flexible cords to devices to fitting so that the tension will not be transmitted to joints and terminal screws in the following location:

1. Extension cord in wash area of Transportation Garage."

Standard 1910.309(a) as promulgated by the Secretary of Labor provides in pertinent part:

"The requirements contained in the following articles and sections of the National Electrical Code, NFPA No. 70-1971; ANSI C1-1971 (Rev. of C1-1968) shall apply to all electrical installations and utilization equipment:

* * *

Article 410-10 n1 - Pull at Joints and Terminals of [*5] Flexible Cords and Cables"

* * *

Article 400-10 of the National Electrical Code provides:

"Pull at Joints and Terminals. Flexible cords shall be so connected to devices and to fittings that tension will not be transmitted to joints or terminal screws. This shall be accomplished by a knot in the cord, winding with tape, by a special fitting designed for that purpose, or by other approved means which will prevent a pull on the cord from being directly transmitted to joints or terminal screws."

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n1 Standard in error, correct reference should be to Article 400-10.

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Citation No. 2, as amended, alleges a "REPEAT" violation of 29 C.F.R 1910.106(d)(2)(i) as follows:

"Failure to provide approved containers for flammable liquid in the following location:

1. Shop area of the Transportation Garage."

Standard 1910.106(d)(2)(i) as promulgated by the Secretary of Labor provides:

"Only approved containers and portable tanks shall be used. Metal containers and portable tanks meeting the requirements of and containing [*6] products authorized by Chapter I, Title 49 of the Code of Federal Regulations (regulations issued by the Hazardous Materials Regulations Board, Department of Transportation), shall be deemed to be acceptable."

Citation No. 3, as amended, alleges a "REPEAT" violation of 29 C.F.R. 1910.22(a)(1) as follows:

"Failure to maintain all places of employment, passageways, storerooms and service rooms n a clean, orderly and sanitary condition in the following location:

1. Vehicle wash area in the Transportation Garage."

Standard 1910.22(a)(1) as promulgated by the Secretary of Labor provides:

"All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition."

Citation No. 4, as amended, alleges a "REPEAT" violation of 29 C.F.R. 1910.176(b) as follows:

"Failure to store materials so as not to create a hazard in the following location:

1. Top tier of tire storage in Tire Repair Shop (10'-6")."

Standard 1910.176(b) as promulgated by the Secretary of Labor provides:

"Secure storage. Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked [*7] and limited in height so that they are stable and secure against sliding or collapse."

Citation No. 5, as amended, alleges a "REPEAT" violation of 29 C.F.R. 1910.176(c) as follows:

"Failure to keep storage areas free from accumulation of materials that constitute hazards from tripping, fire, explosion or pest harborage in the following location:

1. Bottom stair landing in the Repair and Storage Room in the Transportation Garage."

Standard 1910.176(c) as promulgated by the Secretary of Labor provides:

"Housekeeping. Storage areas shall be kept free from accumulation of materials that constitute hazards from tripping, fire, explosion, or pest harborage. Vegetation control will be exercised when necessary."

Respondent does not contest this Commission's jurisdiction, and the only issues presented by this record are:

Whether the respondent was in violation of the cited standards, as alleged, and if so, what penalties, if any, are appropriate?

FINDINGS OF FACT

Upon the credible evidence of record, the following facts are found:

1. On the afternoon of October 28 or 29, and the morning of October 29 or 30, 1975, n2 respondent's maintenance garage for mobile equipment [*8] was inspected by Mr. Merle Annis, a compliance officer of the United States Department of Labor, while accompanied by Mr. Edeal, respondent's representative (Tr. 4, 21, 24, 30, 31, 36, 37, 41-73).

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n2 Whether the inspection took place on the afternoon of October 28 and morning of october 29 as contended by the compliance officer, or on October 29 and 30th as believed by the respondent, appears unimportant because the respondent's representative, Mr. Edeal, accompanied the compliance officer during the inspection about which the latter testified.

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2. The maintenance garage has a concrete floor throughout. The garage contains shop repair facilities on one side, and mobile equipment cleaning facilities on the other side; a tire shop also is located in the rear, with overhead storage provided above the office and adjacent to the tire storage area (Tr. 5).

3. At the time of inspection a metal work bench was located in the approximate center of the garage adjacent to the truck wash area. Water was coming down through [*9] the roof, running over and through an electrical overhead light fixture, then down into the work bench on which there was a partially disassembled transmission, and finally, onto the floor. In the words of the compliance officer, this work bench was "covered with water and in a totally wet condition, thereby, preventing someone from working at the bench at this given time." He also did not see anyone working "in the vicinity of this wet floor area" (Tr. 5-8, 21). The water resulting from this leak was standing in an area of the garage that employees would have the occasion to pass by "continuously" (Tr. 6). The floor in this area had a "non-slip" surface (Tr. 21).

The compliance officer was of the opinion that this wet floor area posed a potential electrical shock hazard to any employee working at the bench (Tr. 8). He did not determine, however, if an employee had been assigned to work in this wet area (Tr. 20).

4. An electrical extension cord attached to a two-plug outlet box was rolled up and hung on a nail driven in the wall of the storage room adjacent to the wash area. This flexible electrical cord was not connected in such a manner as to prevent tension being transmitted [*10] to the terminal screws within the outlet box. If tension were to be transmitted to these screws, the wires could come loose and come in contact with the metal structure of the outlet box containing the outlet receptacles. If the cord plug then was inserted into an electrical source outlet, the metal would become energized resulting in an electrical shock to any employee coming into contact with it (Tr. 9-11, 39-40; Exhibit Nos. C-1, C-2, C-3).

5. Respondent employees were assigned to work in the wash area and the cord was "stored in an accessible area" (Tr. 10, 22). This cord was not marked in any way for "non-use" (Tr. 9). There was no accumulation of "air-borne residue" on the top of the cord and there were signs indicating that the cord previously had rubbed against the surface of the metal box (Tr. 22, 39). The compliance officer did not know whether the cord had actually been used as an electrical extension when in its observed condition or to what use the particular cord is put by respondent (Tr. 23, 39).

To the rear of the storage room "in the far back," not in the general vicinity of the cord in question, inoperable "other cords or other items" with "residue" or dust [*11] on them were stored (Tr. 22-23).

6. Respondent's Answer admits the correctness of the complaint's allegation that respondent "[f]ailed to provide approved containers meeting the requirements of Chapter I, Title 49 of the Code of Federal Regulations for flammable liquid in the shop area of the Transportation Garage, contrary to 29 C.F.R. 1910.106(d)(2)(i)" (Citation No. 2, Item No. 1) but alleges that on September 19, 1975, respondent purchased two additional approved containers and had ordered all others removed as of August 1, 1975.

7. The compliance officer testified that the gasoline can which he circled with a marking pen and the two smaller gas cans designated by an arrow, all as shown on Exhibit C-7, were "unapproved . . . not approved or accepted by the U.S. Department of Labor as being safe" (Tr. 17). At the time of the inspection, the large can was partially full of gasoline and available for immediate use; the two smaller cans were "brand new", and had never been used (Tr. 40). These cans did not have spring-closing lids and spout covers or flash arresting screens. According to the compliance officer, fumes would emit from the cans and present a fire and explosion [*12] hazard without spark arresting spouts or devices within them (Tr. 17, 31-32). Underneath the table were four "approved class one cans" (Tr. 32).

8. The vehicle cash area storage room had oil and wet, oily rags on the floor, all as shown in Exhibit Nos. C-2 and C-3. In the compliance officer's opinion, the depicted conditions were "generally unsanitary"; the oil created a "slipping" hazard, and the wet, "dirty" rags in an open container presented a "spontaneous combustion" danger (Tr. 11, 13, 24). The compliance officer did not determine with what substance the rags in the container were saturated (Tr. 25).

In the compliance officer's opinion, spontaneous combustion would not take place if the barrel containing the rags were emptied every day. He was informed by respondent's mechanic that the barrel was emptied "usually" every day (Tr. 26). The flooring of the storage room was concrete with a "non-slip" surface and the compliance officer did not see any physical signs of rodents or pests in the storage room (Tr. 27).

9. In the tire repair area, the storage rack had two tires stored in a semi-vertical position on top of a row of tires, all as shown in Exhibit No. C-5 (Tr. [*13] 14).

In the opinion of the compliance officer, removal of the underneath tires "could possibly create a movement of the top two tires . . . thereby allowing them to slip down through and strike anyone that is standing below" (Tr. 14, 29). The tiered, tire storage rack was of sound construction and the complainant did not observe the attempted removal of any of the tires during his inspection (Tr. 29).

10. At the bottom of the stairs leading down from the storage area near the office area, there were tires stored, and an innertube was located in the center of the landing area, all as shown in Exhibit C-6 (Tr. 15).

The compliance officer believed that there was a "very minimal amount of space allowed for a person to descend the stairs and progress on their way at the bottom of the stairs" (Tr. 15). The compliance officer did not measure the space between the tires and the stairway (Tr. 30) and no estimate of the existing space appears of record. According to the compliance officer, a possibility of tripping over the innertube was presented (Tr. 16). Three or five persons would traverse these stairs in the course of their duties (Tr. 31).

11. The respondent took immediate [*14] action to abate the conditions constituting the bases of all the alleged violations, with the exception of the alleged violation relating to the roof leak (Tr. 44-45).

12. As a result of a prior inspection on July 1, 1975, respondent was issued Citation No. 1 on July 29, 1975. Item No. 5 of this citation alleged a violation of 29 C.F.R. 1910.22(a)(1), and Item No. 24 alleged a violation of 29 C.F.R. 1910.176(c). Said citation has become a final order of the Commission.

DISCUSSION

A. As To Violations

All evidence relating to the alleged violations was derived from the compliance officer's testimony and complainant's photographic exhibits. Respondent introduced no evidence relating to the factual charges of violation. Instead, respondent chose to put complainant to his proof, and rely on cross-examination and oral and written argument for its defense.

The burden of producing evidence to establish respondent's violation of the standards in question and the burden of persuasion, of course, rests on the complainant. Contrary to respondent's contention, however, it is not necessary to prove a violation "beyond a reasonable doubt." The Secretary's burden is satisfied [*15] when the constituent elements of an alleged violation are proved by a preponderance of evidence, and evidence preponderates when it leads the trier of fact to find that the existence of contested facts is more probable than their nonexistence.

The alleged violation of 1910.22(a)(2) (Item 1, Citation 1) will be vacated for insufficient evidence. Although the wet condition of the shop floor in the vicinity of the unoccupied work bench was established, there was no evidence introduced from which it reasonably can be concluded that it was possible for respondent to maintain the floor in a dry condition under the circumstances existing at the time of inspection. Water was coming through a leak in the roof. How long the wet condition had existed, however, is unknown, and the compliance officer failed to suggest that steps respondent could, or should, have taken to eliminate it.

Also, the testimony directed to establish that an electrical shock hazard existed is speculative and unsupported. Nobody was working at the bench, and the compliance officer conceded that the wet condition would have prevented anyone from working there. Apparently, employees walked by the area, but [*16] there was no evidence that they were required to walk through the area.

The alleged violation of 1910.309(a) (Item 2, Citation 1) will be affirmed. Unquestionably, the electrical extension cord and outlet box did not comply with Article 400-10 of the National Electrical Code. Respondent, however, contends that the Secretary failed to show that this equipment had been used in its defective condition. But that defense has been made unavailable to a respondent employer by the recent Commission decision of Secretary of Labor v. Harold Christiansen, et al, Docket No. 3108 (March 18, 1976). Citing Secretary of Labor v. Gilles & Cotting, Inc., Docket No. 504 (February 20, 1976), the Commission enunciated the general principle that a violation is committed whenever equipment does not comply with a prescribed requirement of the Act and is available for use by employees.

The Secretary introduced evidence that respondent had not effectively denied its employees accessibility to this defective equipment. The extension cord and outlet box had not been marked or tagged for non-use, and to was stored in a prominent location. Moreover, the compliance officer's testimony [*17] that employees had access to the storeroom area went unrefuted. Therefore, without evidence to the contrary, it is reasonable to conclude that this non-complying equipment was available for use by respondent employees.

The alleged violation of 1910.106(d)(2)(i) will be vacated. After the hearing was closed, the Secretary's representative conceded that it was improper to allege in the citation and the complaint that respondent violated this standard by failing to comply with the requirements of Chapter 1, Title 49 of the Code of Federal Regulations (letter dated April 5, 1976). This Judge agrees. The standard in question obviously does not mandate compliance with 49 C.F.R. Chapter I; the standard simply advises an employer that compliance with 1910.106(d)(2)(i) also can be achieved by providing containers meeting the requirements of 49 C.F.R. Chapter I. Under these circumstances, respondent's answer to the complainant's allegation of violation is not considered binding and does not constitute a judicial admission of violation.

To establish a violation of this standard, the complainant must establish that respondent used a container for its flammable gasoline which has not [*18] been approved or listed by the Underwriters Laboratories, Inc. or Factory Mutual Engineering Corporation. But no evidence was introduced to prove that these organizations have not approved, or have otherwise indicated their disapproval, of the cans in question. The mere opinion of the compliance officer that the one gasoline can in use and the two smaller cans were not "approved or accepted by the U.S. Department of Labor as being safe" is not considered sufficient because that statement is nothing more than a reiteration of the citation's charge that the cans were not "approved." There must be independent evidence that these cans do not meet the definition of "approved" as contained in 1910.106(a)(35), and the record lacks such proof.

Apparently, the Secretary now is contending that respondent violated 1910.106(d)(2)(i) because it failed to use "an approved safety can," as defined in 1910.106(a)(29). Unlike 1926.152(a), however, 1910.106(d)(2)(i) does not require the use of an approved safety can, only an "approved container."

Assuming arguendo that 1910.106(d)(2)(i) does require respondent to use an "approved safety can," a violation was established because [*19] the gasoline can in use obviously was not a "safety can." Section 1910.106(a)(29) reads as follows:

"Safety can shall mean an approved container, of not more than 5 gallons capacity, having a spring-closing lid and spout cover and so designed that it will safely relieve internal pressure when subjected to fire exposure." (emphasis supplied)

The compliance officer testified that the cans in question did not contain "spark arresting spouts" (Tr. 17) or a "spark arresting device within it" (Tr. 31). Although there is no requirement that a "safety can" as defined in 1910.106(a)(29) have a flash arresting screen, it must have a spring-closing lid and cover spout. n3 Exhibit C-7 makes clear that the large gasoline can did not have a "spring closing lid and cover spout"; therefore, the can did not meet the definition of a "safety can."

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n3 1926.155(1) Additionally requires that a "safety can" have a "flash-arresting screen."

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A violation of 1910.22(a)(1) is affirmed because of respondent's failure to maintain its [*20] storage room adjacent to the wash area in a "clean" condition. Although the terms "clean, orderly and in a sanitary condition" are abstract with no positive or precise meanings, they make plain the standard's objective-to secure and preserve the health or well-being of employees by requiring the removal of all infective and deleterious influences which might expose employees to health and safety hazards. The United States Supreme Court also has interpreted the requirement to "clean" to include removing all extraneous substances which might make walking hazardous and eliminating all foreign matter which would render footing insecure. See Lilly v. Grand Trunk Western R. Co., Ill.; 317 U.S. 481. Obviously, respondent's storage room was not "clean" within that meaning due to the substantial amount of oil on the floor. With the introduction of Exhibit No. C-2 and the compliance officer's opinion that the oil presented a slipping hazard despite the non-skid surface, a prima facie violation of this "housekeeping" standard was established; the burden then shifted to respondent to prove that no hazard existed or that the observed condition was due to the nature [*21] of the work performed and that respondent has a clean-up program designed to keep employee exposure within reasonable limits. Respondent's claim that the room was cleaned daily is not supported by the evidence of record.

The alleged violation of 1910.176(b) will be vacated. The compliance officer's testimony that the two tires on the top tier created a storage hazard is unpersuasive. Their position, as depicted in Exhibit No. C-5, appears stable and secure against sliding or collapse. His opinion that a hazard is presented by these tires rests on the unproven assumption that employees would attempt to remove the underneath tires with the tires on top in place. This Judge suggests that it is more reasonable to believe that employees would adopt the more logical and feasible method of setting to one side the two tires before attempting the removal of the tires positioned underneath.

The complainant's evidence proved the existence of a tripping hazard in the form of an innertube located at the bottom of the stair landing in the tire repair and storage room. Therefore, a violation of 1910.176(c) will be affirmed.

B. As to Penalties

Respondent employs more than 100 persons [*22] and does have a prior history of non-serious violations under the Act.

The gravity of the affirmed violations is considered quite low and respondent took immediate steps to eliminate the hazardous conditions. Two of these violations, however, were of a "REPEAT" nature thereby warranting a penalty sufficient to assure respondent's future compliance with the "housekeeping" standards. The proposed penalty of $50.00 for respondent's failure to deny its employees access to the defective electrical cord will be affirmed and a $100.00 penalty each for respondent's "REPEAT" violations of 1910.22(a)(2) and 1910.176(c) assessed.

CONCLUSIONS OF LAW

1. On or about October 29 and 30, 1975, respondent was in violation of 1910.22(a)(1), 1910.309(a) and 1910. 176(c).

2. The respondent has "repeatedly" violated 1910.22(a)(1) and 1910.176(c) within the meaning of section 17(a) of the Act.

3. On the same dates, respondent was not in violation of 1910.176(b). The record evidence does not establish that the large gasoline can available for immediate use did not meet the definition of "approved" within the meaning of 1910.106(a)(35) and (36).

4. The standard at 1910.106(d)(2)(i) [*23] does not require the use of an "approved safety can."

5. A penalty of $50.00 for respondent's violation of 1910.309(a) is appropriate.

6. Penalties of $100.00 each for respondent's "REPEAT" violations of 1910.22(a)(1) and 1910.176(c) are appropriate.

ORDER

Based on the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED:

1. Item 1 of Citation No. 1, and any proposed penalty based thereon, are VACATED.

2. Item 2 of Citation No. 1 is AFFIRMED and a $50.00 penalty ASSESSED.

3. Citation No. 2 and Citation No. 4, as amended, and any proposed penalties based thereon, are VACATED.

4. Citation No. 3 and Citation No. 5, as amended, are AFFIRMED. Penalties of $100.00 each for Citation No. 3 and Citation No. 5 are ASSESSED.

James A. Cronin, Jr., Judge, OSAHRC

May 12, 1976

Lawndale, California