CRUSHED TOAST COMPANY

OSHRC Docket No. 16042

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

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Fred Feld, Crushed Toast Company, for the employer

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 [*2] 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.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

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

I would affirm the 29 C.F.R. 1903.2(a) charge for the reasons set forth in Judge Ditore's opinion which is attached hereto as Appendix A. However, both of the serious citations should be vacated.

Citation number 2 should be vacated because the evidence establishes that respondent provided a means of egress and, consequently, did not prevent "free escape" from the building as contemplated by the cited standard, 29 C.F.R. 1910.36(b)(4). See Secretary v. Techno Products, Inc., OSAHRC Docket No. 3624, February 11, 1976 (concurring and dissenting opinion).

Citation number 3 should be vacated because the cited standard, 29 C.F.R. 1910.219(f)(3) is not applicable to respondent's belt drives designated as items 3 and 4. Moreover, the remainder of the citation should be vacated because the evidence fails to establish that respondent's employees were actually exposed to the nip points of the chain and sprocket drives [*3] designated as items 1 and 2. Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976 (dissenting opinion).

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n1 Judge Ditore properly concluded that the cited standard was inapplicable to belt drive item 3. He erred, however, in amending the charge sua sponte to allege noncompliance with 29 C.F.R. 1910.219(e)(3)(i) and affirming the citation as so amended. See Secretary v. Warnel Corporation, OSARHC Docket No. 4537, March 31, 1976 (dissenting opinion).

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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.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor

Leslie P. Brody, for complainant

Fred Feld, Crushed Toast Company, for the respondent

Ditore, J.: [*4]

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act), contesting citations for serious and nonserious violations of occupational safety and health standards, issued by complainant against respondent under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. 658(a)).

The citations allege that as a result of an inspection on November 20, 1975, of a workplace located at 625 Pennsylvania Avenue, Linden, New Jersey, and described as "mfg. of toasted bread crumbs", the respondent violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with occupational safety and health standards promulgated by the Secretary by publication in the Federal Register on June 27, 1974 (37 F.R. 23502) and codified in 29 CFR 1910.36(b)(4), 1910.219(f)(3) and 29 CFR 1903.2(a). *

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* An additional nonserious violation of 29 CFR 1910.309(a) and the penalty proposed was not contested at the hearing by respondent and is not here in issue (Tr. 14-15).

[*5]

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The description of the violations and the standards as promulgated by the Secretary are as follows:

Citation No. 2 - serious violation of 29 CFR 1910.36(b)(4)

Description

"The two required exits (front and rear side) were not arranged and maintained so as to provide free and unobstructed egress from all parts of the building at all times when it is occupied. Front exit was through a key locked door to office and then through locked outer door. Rear Side Exit was up two steps then through a key locked outer door into a 3 foot 'alley' overgrown with vegetation and then through 50 feet of this alley to the front of the lot where a wire mesh fence, without a gate, obstructed egress to safety: Premises."

Standard as promulgated

" 1910.36(b) . . .

(4) 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 [*6] where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency."

Citation No. 3 - serious violation of 29 CFR 1910.219(f)(3)

Description

"All sprocket wheels and chains were not enclosed: 4 sprocket wheel and chain drives for auxiliary and other function drives on each of the 2 Clclo-matic Dehydration units-within reach and readily accessible, from 3 to 5-1/2 feet from the floor, and adjacent to working areas: Premises - 2 revolving drum (approximately 15 - 18 feet long) units used to toast crumbs - model 5D-45-12 manufactured by Heil Co. for Arnold Drying Co., Milwaukee."

Standard as promulgated

" 1910.219(f)(1) . . .

(3) Sprockets and chains. All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive extends over other machine or working areas, protection against falling shall be provided. This subparagraph does not apply to manually operated sprockets."

Nonserious citation, item 1 - 29 CFR 1903.2(a)

Description

"Occupational Safety and Health Poster was not posted in a conspicuous [*7] location and available for employees information: Premises"

Standard as promulgated

" 1903.2 Posting of notice; availability of the Act, regulations and applicable standards.

(a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material."

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. 659(a)), the respondent was notified by letter dated November 25, 1975, from the area director of the Dover, New Jersey area, that the Occupational Safety and Health Administration proposed to assess a $700.00 [*8] penalty for each of the two serious violations and a $50.00 penalty for the nonserious violation. The action was heard at New York, New York, on March 30, 1976.

ISSUES

1. Whether the compliance officer violated section 8(a) of the Act by failing to present his credentials to respondent's owner or agent in charge.

2. Whether the two serious and one nonserious violations existed at respondent's workplace on November 20, 1975.

3. If they did, whether respondent's employees were exposed to any hazard or hazards created by the violation or violations.

4. If respondent's employees were exposed, whether respondent was responsible for the violation or violations.

5. If respondent was responsible whether the penalties proposed were proper.

STATEMENT OF THE EVIDENCE

Respondent, Crushed Toast Company, manufactures bread crumbs and maintains an office and place of business at 625 Pennsylvania Avenue, Linden, New Jersey (complaint, answer).

Respondent's workplace consists of a one-story concrete brick building, 37 feet by 120 feet. It is open space except for a 13 X 13 foot enclosed office area at the southwest corner of the building and a men's room located adjacent to [*9] the office on the west side. Entry to the premises is through a 14 or 15 foot wide overhead door located on the south 27-foot side and immediately adjacent to the office. The overhead door operates electrically and completely opens in 30 seconds. It can be operated manually in case of electrical failure or malfunction (T. * 20, 26, 37, 141, 166, 174, 179, 192; Exhs. R-1, C-1).

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* Reference key: T. refers to pages of hearing minutes

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On November 20, 1975, respondents workplace was inspected by compliance officer Steven Gawienowski (T. 16, 19-20).

29 CFR 1910.36(b)(4) - serious violation

Officer Gawienowski observed a designated exit door that led into the office and from there to the outside. The door was locked and was located within 5 to 8 feet of the overhead door. Respondent admits this exit door was locked (T. 27, 36, 87, 89, 165; Exhs. C-1, R-1).

About three quarters of the way into the building on the left or west side was located another designated exit door which could not be opened upon [*10] the application of normal or reasonable pressure. There is no evidence this door was locked or otherwise barricaded. Mr. Feld, respondent's owner, stated that the door was stuck due to warping of the door's frame; and that considerable pressure had to be used to push it open (T. 37-39, 40, 42, 141, 167, 168; Exhs. C-1, R-1). At the time of the hearing the condition of both designated exit doors was corrected (T. 168).

Respondent's building is fire proof and other than bread material, there are no inflammable materials on the premises. The bread material can burn but only if subjected to high temperatures when confined within two steel ovens or dehydrators. The ovens themselves are fired by gas, and have safety controls which automatically shut off the flow of gas if there is a rise above the prescribed temperature for dehydrating purposes (T. 168, 190, 191).

In addition to the two designated exit doors there is the 14 to 15 foot wide overhead door for egress to the outside (T. 42, 135). Officer Gawienowski observed two trucks back into respondent's premises through the overhead door, a distance of 25 feet (T. 32, 34). Respondent admits that daily, three trucks in addition [*11] to its own do come into the premises to load or unload bread products (T. 168).

Officer Gawienowski believed that the trucks which remained on the premises no more than 10 to 15 minutes, blocked the overhead door space so that it would be difficult for respondent's six or seven employees to squeeze by the trucks to exit the building in case of fire (T. 33, 34, 154). He did not know how wide the trucks were, or how much of the 14 or 15 foot door width they took up (T. 135). Mr. Feld stated that the average truck was no wider than 8 feet, leaving ample space for his employees to exit through the overhead door (T. 166).

29 CFR 1910.219(f)(3) - serious violation

In the open area of respondent's workplace are located two large steel ovens or dehydrators which dehydrate and toast bread crumbs (T. 54, 112; Exh. R-1). The two ovens and their mechanisms are identical (T. 54). The ovens rest and rotate on an eye beam base which completely encircles each oven (T. 163-164). Attached to the underside of the eye beams at one end of the ovens is a trough conveyor which is 40 feet long and 2-1/2 to 3 feet off the ground. This conveyor runs from one oven to the other and is connected [*12] to an intersecting conveyor. The trough conveyor takes the toasted bread crumbs from the ovens and conveys the crumbs via the intersecting conveyor to a bagging hopper (Exhs. R-1, C-6, C-7, trough conveyor marked T.C. or T; T. 109-111, 113, 160, 161, 162).

In the space between the end of the ovens and the trough conveyor and within the eye beam frame, are located four "chain and sprocket drives" (see Exh. R-1). For purposes of convenience and clarify, the four "chain and sprocket drives" have been numbered 1, 2, 3 and 4 on exhibit R-1 and are the same for both ovens.

Chain and sprocket drive No. 1 is the large one on each oven which appears to rotate the steel ovens. Other than its indication on exhibit R-1, and on exhibit C-7 (oven #2), there is no other evidence or testimony concerning this chain and sprocket drive (T. 157).

Chain and sprocket drive No. 2 is shown in exhibit R-1 and in exhibits C-3, C-4, C-5 (oven #1) and in exhibits C-6 and C-7 (oven #2) (T. 51, 55, 63, 67, 75).

"Chain and sprocket" drive No. 2 is shown in exhibit R-1 and in exhibits C-4, C-5 (oven No. 1) and exhibits C-4, C-5 (oven #2) and exhibits C-6, C-7 (oven #2) (T. 55, 63, 67, 75)

Officer Gawienowski [*13] believed drive No. 3 was a chain and sprocket drive. He believed all the drives were chain and sprocket drives because he was told that the heat of the oven operation required chain and sprocket drives (T. 59, 66).

Chain and sprocket drive No. 4 is shown in exhibit R-1 and in exhibits C-6 and C-7 (oven #2). This drive had a guard but was not totally enclosed. Officer Gawienoski stated that this fourth drive could have been a belt drive, he did not remember (T. 67, 70-72, 73, 77, 79, 130).

Although none of respondent's employees worked in the area of the drives, three or four did walk within 1-1/2 to 2 feet of the drives once or twice (T. 53, 54, 60-61, 63-64, 72, 73, 75, 76, 85, 152-153; Exh. R-1, path of travel marked by arrows).

Mr. Feld stated that an employee had to climb over the oven's frame and the trough conveyor to reach the area where the chain and sprocket drives were located (T. 164, 175); and that his employees do not work or have any reason to be in the area where the chain and sprocket drives are located (T. 175). Of his eight employees, one sews bags, one drives a truck and six others primarily remove foreign matter from bread by hand at work benches 8 to 10 [*14] feet from the ovens (T. 183, 184, 185; Exh. R-1).

Officer Gawienowski believed that the unenclosed four chain and sprocket drives exposed, or gave access to, respondent's employees to the hazard of having their hands or clothing caught in the nip point areas of the drives which could result in amputation or maiming (T. 73, 102). He deemed the lack of enclosures on the four drives to be one serious violation for which he assessed a proposed penalty of $700.00 after allowing credits of 20% for history and 10% for size (T. 96-97, 101).

29 CFR 1903.2(a) - nonserious violation (item 1)

Officer Gawienowski did not see an OSHA poster posted at respondent's premises. He looked in the men's room but did not look at the back of the door (T. 91, 92, 144). He assessed a mandated proposed penalty of $50.00 for this violation (T. 103).

Mr. Feld stated that there was an OSHA poster on the back of the door to the men's room; and that it would be moved to a more conspicuous place (T. 172, 174).

Respondent further raised prior to the hearing, during the hearing and subsequent to the hearing that the inspection made by officer Gawienowski was invalid in that it was not made in compliance [*15] with section 8(a) of the Act (T. 5-8, 170). This issue will be discussed and decided in the Opinion section, infra, of this decision.

OPINION

29 CFR 1910.36(b)(4) - serious violation (citation 2)

This standard requires that exits be arranged and maintained so as to provide free and unobstructed egress from all parts of a building when it is occupied, and prohibits the use of locks on exit doors.

Respondent admits that the designated office exit door was locked; and that another exit door at the west side of the building could not be freely opened because of a warping of the door's frame. Both of these exit door conditions were abated or corrected. The exit doors were in violation of 29 CFR 1910.36(b)(4) at the time of inspection since they did not provide free and unobstructed egress from respondent's building or workplace in case of fire or other emergency.

Respondent's workplace consists of a fireproof one-story concrete brick building which, except for an office and men's room, is open space. There are no combustible or inflammable materials on the premises. The bread crumb material can burn but only when it is confined to the two steel ovens and [*16] if it is subjected to a high temperature which is safeguarded against by automatic safety controls that regulate the ovens' temperatures. Respondent also maintains fire extinguishers of various types on its premises.

There is no evidence that respondent's workplace either because of the operations being performed or because of the type of materials used, is subject to a fire hazard or to smoke or fume hazards. In short, the possibility of a fire is negligible and if one was to occur, there is no substantial probability that it would cause fatal or serious harm to any of respondent's employees.

In addition to the two exit doors, there is on respondent's premises a 14 to 15 foot wide overhead door which is used by respondent's seven employees to enter and leave the workplace. The overhead door is operated electrically and fully opens in thirty seconds. The door can be operated manually if there is an electrical malfunction. Two or three trucks daily enter respondent's premises through the overhead door and remain for ten to fifteen minutes. The evidence is insufficient to establish that these two or three trucks during the time they are on respondent's premises, prevent the [*17] use of the overhead door by respondent's employees in case of an emergency.

Under all the circumstances, complainant failed to establish that the exit door violation was serious. The violation will be reduced to a nonserious violation. The gravity of the violation is low. Considering the gravity of the violation and the other factors of section 17(j) of the Act, the proposed penalty of $700.00 will be reduced to $100.00. Cf.

29 CFR 1910.219(f)(3) - serious violation (citation 3)

Respondent was charged with a serious violation of 29 CFR 1910.219(f)(3) in that it failed to enclose four "chain and sprocket" drives on each of its two ovens or dehydrators. The drives were less than seven feet above the floor. The four "chain and sprocket" drives have been described in the Statement of the Evidence supra, and are identical for each oven.

Chain and sprocket drive number 1 (Exhs. R-1, C-7), appears from the photographic evidence to be the large one which turns the oven. In front of this drive is a rectangular metal rod. Aside from the photographic [*18] and rough sketch exhibits (R-1, C-7), there is no other evidence as to this chain and sprocket drive. From the exhibits, this chain and sprocket drive appears inaccessible to any of respondent's employees by the very nature of its location. Complainant failed to establish that chain and sprocket drive number 1, exposed any of respondent's employees to a nip point hazard or that such a hazard was accessible to the employees. Chain and sprocket drive number 1, was not in violation of 29 CFR 1910.219(f)(3).

Chain and sprocket drive number 4, is located on exhibit R-1 and depicted in exhibits C-6, C-7 (oven #2). Complainant's evidence as to this chain and sprocket drive is equivocal and therefore unreliable. Officer Gawienowski did not, and could not, remember whether this drive was a chain and sprocket drive or a belt drive. Respondent states it is a belt drive. Upon the evidence herein or lack of it, it is found to be a belt drive which is equipped with a guard and in compliance with 29 CFR 1910.219(e)(3)(i) for the guarding of inclined belts. Belt drive number 4, was not in violation of 29 CFR 1910.219(f)(3).

Chain and sprocket drive number 3, is located on exhibit [*19] R-1 and depicted in exhibits C-4, C-5 (oven #1), and C-6, C-7 (oven #2). Officer Gawienowski, from the photographic exhibits believed that this drive was a belt drive, and the exhibits support his belief. This belt drive is inclined and is covered by 29 CFR 1910.219(e)(3)(i) and not by 29 CFR 1910.219(f)(3) which applies to chain and sprocket drives.

From the exhibits and from officer Gawienowski's unrefuted testimony, it is established that several of respondent's employees were seen walking in the area of the two ovens within 1-1/2 to 2 feet from where whis drive is located. They had access to the unguarded nip point hazard areas of this belt drive. The nip point hazard at oven No. 1 (Exh. C-5) is somewhat lessened by the metal frame barricade in front of the drive (Exh. C-5). Respondent was in violation of 29 CFR 1910.219(e)(3)(i) but not in violation of 29 CFR 1910.219(f)(3). Since the guarding issue was tried at the hearing the citation will be amended to reflect a separate nonserious violation of 29 CFR 1910.219(e)(3)(i) for drive number 3.

The violation was not serious as there is no evidence that this belt drive would cause fatal or serious harm to any employee [*20] involved in a nip point accident. The gravity of the violation is deemed low considering the location of the belt drive on each oven and the few employees who have occasion to walk by it. Under all the circumstances, including the factors of section 17(j) of the Act, the proposed penalty for this separate nonserious violation will be $50.00 Respondent has 60 days from the date of this decision to install guards on this belt drive at both ovens.

The remaining chain and sprocket drive number 2 (exhibits R-1, C-4, C-5 (oven #1), C-6, C-7 (oven #2)), is unquestionably an unguarded chain and sprocket drive. This is the only drive which extends outside the area of the ovens' frames, one end of which is attached to a hopper. Although respondent's employees do not work in the area of the two ovens where this drive is located, they do walk close to the drive on oven No. 1 and have access to the unguarded nip point areas of the drive.

Officer Gawienowski believed that an unguarded chain and sprocket drive created a serious hazard because an employee could suffer finger amputation or maiming if caught in the drive's nip point area. Although officer Gawienowski's belief is sufficient standing [*21] alone to establish a possibility of serious harm, it is insufficient without more, to establish a substantial probability that serious harm would occur. Complainant failed to establish that the violation of 29 CFR 1910.219(f)(3) for the failure to guard chain and sprocket drive number 2, was a serious violation. It will be reduced to a nonserious violation. The gravity of the violation is low. Respondent's employees do not work in the areas where this drive is located but some do walk close to it at oven No. 1 on occasion.

Under all the circumstance, including consideration of the statutory factors of section 17(j) of the Act, the penalty proposed will be reduced to $75.00. Respondent has 60 days from the date of this decision to install guards for this chain and sprocket drive at both ovens.

29 CFR 1903.2(a) - nonserious citation (item 1)

Respondent was cited for the failure to have conspicuously posted an OSHA poster. The evidence established that respondent had an OSHA poster posted on the back of the men's room door. The posting was not conspicuous since the poster was partially blocked by clothing hung in front of it. Respondent violated the standard [*22] for failing to conspicuously post the poster. The mandated $50.00 penalty is unreasonable. There is no evidence that the violation affected the safety and health of any employee. The proposed penalty will be reduced to $10.00.

Section 8(a) issue

Respondent claims that the inspection of its workplace was invalid because officer Gawienowski failed to present his credentials to the owner, operator or agent in charge (T. 5-8).

Mr. Feld, respondent's owner, was not present when officer Gawienowski visited the worksite. When officer Gawienowski arrived at the site he was directed by respondent's employees to another employee, one Jesus Camacho, to whom officer Gawienowski presented his credentials. Mr. Camacho told him to wait for Mr. Feld. After waiting for 20 or 30 minutes with no appearance of Mr. Feld, Officer Gawienwski went back to Mr. Camacho and asked Camacho to accompany him on a walk-around inspection. Without disagreement or objection, Mr. Camacho went along.

Officer Gawienowski believed with good reason, that Mr. Camacho was the employee in charge since Camacho directed the other employees in their work, signed receipts for goods delivered to respondent, had [*23] the key to the office and answered the office phone (T. 7, 145, 181).

Mr. Feld, respondent's owner, arrived at the workplace subsequent to the inspection but prior to officer Gawienowski's departure. Feld had a conference with officer Gawienowski and made another walk-around inspection with officer Gawienowski. Feld did not object to the second walk-around inspection (T. 8-9, 86-89, 93, 94)

Feld stated he did not object to the walk-around inspection he made with officer Gawienowski because he was intimidated by health inspectors, although officer Gawienowski said and did nothing to intimidate him (T. 176).

On the record herein, it is found that officer Gawienowski was properly on respondent's premises, and had properly identified himself to an employee who from all outward appearance and activity was in charge of the workplace during Feld's absence.

If any impropriety existed initially, it was corrected and waived by Feld's consent to a second walk-around inspection. Feld's contention that his consent was given because he was intimidated by health inspectors is not credible. His forceful and loud demeanor during the hearing negates any contention that he can be intimidated [*24] by anyone.

Respondent's motion to dismiss the action herein on the grounds that section 8(a) of the Act was violated is denied.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact.

1. Respondent, Crushed Toast Company, is in the toasted bread crumb business, and maintains an office and place of business at 625 Pennsylvania Avenue, Linden, New Jersey.

2. Respondent admits its business affects commerce.

3. Respondent's workplace consists of a one-story fireproof building which, except for an office and a men's room, is open space.

4. On November 20, 1975, respondent's workplace was inspected by compliance officer Steven Gawienowski.

29 CFR 1910.36(b)(4) - serious citation No. 2

5. A designated office exit door at respondent's premises was locked at the time of inspection. Respondent admits this exit door was locked.

6. Another designated exit door at the west side of the building could not be opened freely due to a warping of the door's frame. The condition of both doors was abated by respondent.

7. Respondent has eight employees, seven of whom work on its premises. [*25] These employees enter and leave respondent's workplace by means of a 15 foot wide overhead door. This door operates electrically and fully opens in 30 seconds, and can be operated manually if there is an electrical malfunction.

8. Two to three trucks a day enter respondent's premises through the overhead door and remain for 10 to 15 minutes.

9. The evidence is insufficient to establish that these trucks while on respondent's premises prevent free and unobstructed usage of the overhead door by respondent's seven employees.

10. There are no combustible or inflammable materials on respondent's premises. The bread crumb material can burn but only if subjected to high temperatures when inside two steel ovens. The temperatures of the ovens are regulated by safety equipment which turns the ovens off if the temperature rises higher than necessary for the toasting operation.

11. There is no evidence that any fire hazard exists at respondent's premises either due to the operations performed or the material stored, which would cause fatal or serious harm to any employee.

12. The fire hazard, if any, is negligible.

13. The violation is nonserious and respondent is responsible [*26] for the violation.

29 CFR 1910.219(f)(3) - serious citation No. 3

14. Two large steel ovens are located in the open space area of respondent's premises. These ovens rest and rotate upon an eye beam frame.

15. At one end of each oven but within the eye beam frame area are located four "chain and sprocket" drives (see Exhs. R-1, C-3 through C-7).

16. One chain and sprocket drive on each oven (numbered 1 on Exhs. R-1 and C-7) is large and turns or rotates the ovens. Aside from Exhs. R-1 and C-7, there is no other evidence or testimony concerning this drive. From the exhibits it appears that this drive is inaccessible to any of respondent's employees because of its location, and does not expose them to any nip point hazard.

17. "Chain and sprocket" drive numbered 4 on Exhs. R-1 and C-6, C-7, is not a chain and sprocket drive but an inclined belt drive. This drive is guarded in compliance with 29 CFR 1910.219(e)(3)(i).

18. "Chain and sprocket" drive numbered 3 on Exhs. R-1, C-4, C-5, C-6 and C-7, is not a chain and sprocket drive but an inclined belt drive. This drive is not guarded.

19. Several of respondent's employees who walk about the oven area on occasion, [*27] have access to the unguarded nip point areas of this unguarded belt drive.

20. There is no evidence that the unguarded nip point area of this belt drive would, if an employee accident occurred, cause fatal or serious harm to an employee. This violation is nonserious and standard 29 CFR 1910.219(e)(3)(i) applies. Respondent is responsible for this violation.

21. "Chain and sprocket" drive numbered 2 on Exhs. R-1, C-4, C-5, C-6, C-7, is an unguarded chain and sprocket drive, one end of which extends outside the frame area of the two ovens.

22. Several of respondent's employees who walk about the oven area on occaseion have access to the unguarded nip point areas of this chain and sprocket drive.

23. The evidence is insufficient to establish that the nip point hazard created by this unguarded chain and sprocket drive would more likely than not cause fatal or serious harm to an employee. The violation is nonserious and respondent is responsible for it.

29 CFR 1903.2(a) - nonserious citation (item 1)

24. Respondent failed to conspicuously post the OSHA poster on its premises. The poster was partially hidden by clothing on the back of the door to the men's room. [*28]

25. Respondent admitted the violation of 29 CFR 1910.309(a) (nonserious citation, item 2).

CONCLUSIONS OF LAW

1. Respondent is, and at all times material herein was, engaged in a business affecting commerce within the meaning of section 3(5) of the Act (29 U.S.C. 652(5)).

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. On November 20, 1975, respondent was not in serious violation but was in nonserious violation of 29 CFR 1910.36(b)(4) for its failure to maintain two designated exit doors in a free and unobstructed condition.

4. Under the circumstance of this case with due consideration of the statutory factors of section 17(j) of the Act, the proposed penalty for the violation of 29 CFR 1910.36(b)(4) is reduced to $100.00.

5. On November 20, 1975, the chain and sprocket drive numbered 1 on the exhibits, and the belt drive numbered 4 on the exhibits, on each of respondent's two ovens were not in violation of 29 CFR 1910.219(f)(3).

6. On November 20, 1975, the belt drive on each of the two ovens, numbered 3 of the exhibits, was not in violation of 29 CFR 1910.219(f)(3) but [*29] was in violation of 29 CFR 1910.219(e)(3)(i). The violation was not serious and respondent is responsible for the violation. The pleadings are conformed to the proof and the citation is amended to cite a separate nonserious violation of 29 CFR 1910.219(e)(3)(i).

7. Under the circumstances of this case with due consideration to the statutory factors of section 17(j) of the Act, a penalty of $50.00 is assessed for the nonserious violation of 29 CFR 1910.219(e)(3)(i).

8. On November 20, 1975, respondent violated 29 CFR 1910.219(f)(3) by failing to guard the chain and sprocket drives, numbered 2 on the exhibits, on each of the two ovens.

9. The violation was not serious and is reduced to a nonserious violation.

10. Under the circumstances of this case with the consideration to the statutory factors of section 17(j) of the Act, the proposed penalty of $700.00 is unreasonable and is reduced to $75.00.

11. On November 20, 1975, respondent violated 29 CFR 1903.2(a) by failing to conspicuously post an OSHA poster.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the citation for a serious violation of 29 CFR 1910.36(b)(4) is [*30] reduced to a nonserious violation, and as reduced is affirmed, it is further

ORDERED that the proposed penalty for the violation of 29 CFR 1910.36(b)(4) is vacated and a $100.00 penalty assessed, it is further

ORDERED that the citation for a serious violation of 29 CFR 1910.219(f)(3) is amended by deleting reference to all chain and sprocket drives except the chain and sprocket drive on each of the two ovens, numbered 2 on the exhibits, and by reducing the violation from serious to nonserious, and as amended is affirmed, it is further

ORDERED that the proposed penlty of $700.00 for the violation of 29 CFR 1910.219(f)(3) is reduced to $75.00, it is further

ORDERED that the nonserious citation is amended by adding thereto a violation of 29 CFR 1910.219(e)(3)(i), for the failure to guard a belt drive on each of the two ovens, numbered 3 on the exhibits, and as amended the citation for a nonserious violation of 29 CFR 1910.219(e)(3)(i) is affirmed, and a penalty of $50.00 is assessed for the violation, it is further

ORDERED that the citation for a nonserious violation (item 1) of 29 CFR 1903.2(a) is affirmed, and a penalty of $10.00 is assessed for the violation, it is [*31] further

ORDERED that the citation for a nonserious violation (item 2) of 29 CFR 1910.307(a) and the proposed penalty of $35.00 are affirmed, it is further

ORDERED that respondent's time to abate the violative conditions on the belt drive, numbered 3 on the exhibits, and the chain and sprocket drive, numbered 2 on the exhibits, on each oven is extended for a period of sixty (60) days from the date of this Order.

JEROME C. DITORE, JUDGE, OSHRC

Dated: July 15, 1976

New York, New York