WESTERN METAL DECORATING COMPANY

OSHRC Docket No. 1657

Occupational Safety and Health Review Commission

February 13, 1975

[*1]

Before MORAN, Chairman, VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter involves the questions whether Judge Erwin Stuller, in error, (1) vacated a citation for an alleged violation of a safety standard which requires that stairways be equipped with standard railings, (2) affirmed a citation for an alleged violation of a standard which requires the provision of personal protective equipment, and (3) assessed an inappropriately high penalty for one other violation. n1

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n1 On Review, Respondent argues that the Judge erred in affirming non-serious citations of the standards published at 29 C.F.R. 1910.22(a)(2), 29 C.F.R. 1910.178(p)(1) and 29 C.F.R. 1910.106(e)(9)(iii). We find no error in the Judge's disposition as to these citations and therefore affirm his disposition for the reasons assigned by him.

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THE STAIRWAY ISSUE

Respondent (hereinafter "Western") was cited for failing to provide standard railings on the open sides of a stairway leading to a lift maintenance ramp [*2] contrary to the requirements of 29 C.F.R. 1910.23(d)(1)(iii), n2 and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").

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n2 29 C.F.R. 1910.23(d)(1)(iii) provides:

(1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified in subdivisions (i) through (v) of this subparagraph, the width of the stair to be measured clear of all obstructions except handrails: (iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side.

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The record discloses that Western had a 45 inch high stairway leading to a forklift maintenance platform. It included four 33 inch wide risers, and it was not provided with handrails. A wall opening through which forklifts were driven was a few feet removed and adjacent to the top of the stairs.

Judge Stuller determined that the stairway allegation must be vacated because 29 C.F.R. 1910.23 is titled "Guarding [*3] floor and wall openings and holes," and the record establishes that the stairway did not lead directly to a floor or wall opening. We reverse.

The stairs in issue were fixed industrial stairs as defined at 29 C.F.R. 1910.24(a). n3 29 C.F.R. 1910.24(h) applying to such stairs requires that "[s]tair railings and handrails shall be installed in accordance with the provisions of 1910.23." As noted hereinbefore the cited standard (29 C.F.R. 1910.23(d)(1)(iii) requires installation of stair railing handrails on both sides where the stairways are less than 44 inches wide. The facts of record conclusively establish Western's failure to comply inasmuch as both sides of the stairway were not provided with rails.

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n3 Fixed industrial stairs are defined as "interior and exterior stairs around machinery, tanks, and other equipment, and stairs leading to or from floors, platforms, or pits."

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A penalty was not proposed and in the circumstances we do not think it appropriate to assess one. The gravity of the violation is low. [*4] Western is not a large employer and has no prior history.

PERSONAL PROTECTIVE EQUIPMENT ISSUE

The Judge affirmed the citation for non-serious violation of 29 C.F.R. 1910.132(a) which alleged a failure to provide respiratory protective equipment "to encounter the environmental processes of wax spraying or coating." On review, Complainant (hereinafter "Labor") states that there was insufficient evidence to support a finding that a hazard as contemplated by the cited standard existed. We agree and the Judge's decision to affirm will be reversed.

PENALTY ISSUE

On the evidence of record the Judge correctly concluded that Western was in non-serious violation of the Act for failing to restrict employees from eating food in and around areas where toxic materials were present contrary to the requirements of 29 C.F.R. 1910.141(g)(3). He assessed a penalty of $300. No penalty had been proposed by Labor.

In our view, the proposal not to assess a penalty is appropriate. The Judge based his assessment of $300 on his conclusion that the evidence established a much higher level of gravity than contemplated by the compliance officer. We do not agree. The compliance officer and [*5] one employee testified that employees were exposed, while eating, to toxic substances. Neither witness testified as an expert in toxicology. The record does not establish the chemical composition or trade name of the substances. While the employee's practice of eating lunch near the processing lines had occurred for quite some time, there is no evidence that any employee ever suffered injury or illness by ingesting contaminated food. Indeed, we also note that Labor did not cite Western for any violation of air contaminant standards in this area, and therefore presumably determined that the substances were non-toxic by inhalation. Based on the above, we conclude that the Judge overestimated the gravity of the violation. The low level of gravity and Western's size and past history indicate that no penalty is appropriate.

Therefore, having reviewed the record the citation for violation of 29 C.F.R. 1910.23(d)(1)(iii) is affirmed and no penalty is assessed therefor, the citation for violation of 29 C.F.R. 1910.132(a) is vacated, no penalty is assessed for the violation of 29 C.F.R. 1910.141(g)(3), and the Judge's decision to the extent it is consistent herewith is adopted in all [*6] other respects. It is so ORDERED.

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur in the lead opinion's disposition of all issues except that relating to the assessment of a penalty for the violation of the standard at 29 CFR 1910.141(g)(3). Judge Erwin L. Stuller assessed a penalty of $300 for the violation. The lead opinion would assess no penalty. I agree with the Judge.

The compliance officer testified that he observed employees eating lunch while they continued to operate their machines on the paint coating line in the vicinity of uncovered cans of paint and paint solvent. The officer further noted that the paint and solvents were sufficiently toxic to consider the situation hazardous.

Respondent's employee testified that he and other paint-coating machine operators commonly ate their lunch "right next to" the coating line in the proximity of paints, thinners, and their vapors. The employee went on to state that quite often he tasted paint and thinner in his lunch and felt that it may be dangerous to ingest such toxic materials. This practice of "eating on the lines" was regularly observed [*7] by respondent's foreman. Indeed, respondent encouraged the employees to eat at the lines while their machines were operating automatically.

The lead opinion observes that neither respondent's employee nor the compliance officer testified as an expert in toxicology. I submit, that, under the conditions in this case, this expertise is unnecessary. A layman is competent to testify as to the harmful results of ingesting paint and thinner. Indeed, we may take official notice of the harmful effects of such ingestion. I also do not find convincing the fact that "there is no evidence that any employee ever suffered injury or illness by ingesting contaminated food." This lack of reported cases may have little or nothing to do with the toxicity of the substances.

[The Judge's decision referred to herein follows]

STULLER, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a citation issued by the Complainant against the Respondent. The citation which was issued on October 19, 1972 alleges that an October 3, 1972 inspection of Respondent's workplace at 4131 North Arden Drive, [*8] El Monte, California indicates that the Respondent has violated Section 5(a)(2) of the Act by failing to comply with the following occupational safety and health standards:

Citation Number 1 (Citation for Other than Serious Violations):

Item -- Standard and Description -- Proposed Penalty

1 -- 29 CFR Section 1903.2(a) -- Failure to post notice. -- $50.00.

2 -- 29 CFR Section 1910.22(a)(2) -- Failure to maintain adequate housekeeping in the following areas: (1) Oil and refuse strewn about the surface of the loading dock area. (2) Oil on the floor of entrance to machine shop room. -- 0

3 -- 29 CFR Section 1910.176(a) -- Failure to keep aisle ways and passageways clear and in good repair in the following locations where mechanical handling equipment is used: (1) Portions of outside yard storage surface replete with chuck holes and low spots which present steering hazards to forklift operators. (2) One pallet of 28" X 31" tin plate refuse noted in aisleway exposing jagged edges to employees walking in and around the area. -- 0

4 -- 29 CFR Section 1910.178(m)(9) -- Failure to provide overhead guard on Yale forklift #6000. -- $45.00

5 -- 29 CFR Section 1910.178(p)(1) [*9] -- Failure to maintain warning device on Yale forklift #6000. -- 0

6 -- 29 CFR Section 1910.23(d)(1)(iii) -- Failure to provide standard railings on both sides of stairway having 4 risers and leading up to the lift maintenance ramp. -- 0

7 -- 29 CFR Section 1910.252(f)(2)(i)(b) -- Failure to provide adequate mechanical ventilation for general welding and cutting in the machine shop room. -- 0

8 -- 29 CFR Section 1910.106(d)(7)(i)(b)(2) -- Failure to prohibit open flames and smoking in flammable or combustible liquid storage areas. -- 0

9 -- 29 CFR Section 1910.106(e)(6)(i) -- Failure to take adequate precautions to prevent ignition of flammable vapors. Employee observed smoking inside main processing plant at aisleway between #2 and #3 coaters where flammable solvents are used extensively. -- $45.00

10 -- 29 CFR Section 1910.106(e)(2)(iv)(a) -- Failure to keep flammable liquids in covered containers when not actually in use.

(1) One unused and uncovered five gallon container of lacquer noted in area of paint storage room doorway.

(2) Four unused and uncovered 5-gallon containers of flammable solvents noted on floor next to coat roller of line #2. -- 0

11 -- 29 CFR Section [*10] 1910.219(b)(1)(i) -- Failure to guard 12" diameter coater timing flywheel which was less than 7 feet from the floor. In location of #3 coater. -- 0

12 -- 29 CFR Section 1910.219(f)(1) -- Failure to guard two 14" (approx.) diameter chain sprockets, approximately 6 feet from floor. -- $65.00

13 -- 29 CFR Section 1910.157(a)(5) -- Failure to mount portable fire extinguisher or hangers brackets. -- 0

14 -- 29 CFR Section 1910.178(k)(2) -- Failure to provide wheel stops or other recognized positive protection to prevent railcar #67344D from moving during unloading operations. -- 0

15 -- 29 CFR Section 1910.309(a) -- Failure to ensure that all fixed lamps in paint storage room are properly guarded. -- $70.00

16 -- 29 CFR Section 1910.178(h)(1) -- Failure to maintain adequate lighting for operating area. -- 0

17 -- 29 CFR Section 1910.106(e)(9)(iii) -- Failure to keep combustible rags stored in closed metal waste cans and disposed of daily, 3 combustible rags noted laying about in paint storage room. -- 0

18 -- 29 CFR section 1910.108(f)(4) -- Failure to conspicuously post "NO SMOKING" signs in large letters on contrasting color background in the vicinity of all dip tanks. [*11] Employee observed smoking within vicinity of roll coating dip tank #3. -- $105.00

19 -- 29 CFR Section 1910.108(f)(1) -- Failure to maintain areas in the vicinity of dip tanks clear of flammable and combustible residues. -- 0

20 -- 29 CFR Section 1910.141(g)(3) -- Failure to restrict employees from eating food in and around processing areas where toxic materials are present that may be injurious to health. -- 0

21 -- 29 CFR Section 1910.309(a) -- Failure to guard live electrical parts operating at more than 500 volts with an approved enclosure. -- 0

22 -- 29 CFR Section 1910.309(a) -- Failure to provide complete enclosure for fixed wiring. -- 0

23 -- 29 CFR Section 1910.309(a) -- Failure to maintain integrity of metal conduit supplying power to motors. -- 0

24 -- 29 CFR Section 1910.132(a) -- Failure to provide general respirator protective equipment designed to encounter the environmental processes of wax spraying or coating. -- 0

25 -- 29 CFR Section 1910.145(f)(3)(iii) -- Employer failed to provide tags to positively lock out system on all roll coating machines to ensure safe-guarding of personnel doing maintenance work on the machine. -- 0

The Respondent was notified [*12] by letter dated October 19, 1972 that the Complainant proposed to assess penalties for the violations alleged in the amounts indicated above which total $380.00.

After a timely Notice of Contest, a Complaint and an Answer had been filed the case was heard at Los Angeles, California beginning on February 13, 1973.

At the hearing Complainant conceded Item 12 and Respondent conceded Items 1, 13, 14, 21, 23 and 25.

The standard cited in Items 2, 8 and 20 of the citation were amended to 29 CFR 1910.22(a), 29 CFR 106(a)(7)(iii) and 29 CFR 141(g)(3)(i), respectively. The complaint also amended the date of the alleged violations in Items 14 through 25 to October 5, 1972.

SUMMARY OF THE CREDIBLE EVIDENCE

The Respondent corporation is engaged primarily in decorating flat sheets of tin and steel by cleaning the sheets, then applying protective and decorative coatings, enamels, varnishes, inks and prints or designs, and then reshipping these sheets in the original flat form to customers. For the most part the equipment is fully automatic, in that the sheets are fed into decorating lines (of machinery) by an automatic sheet feeder. They then pass to a lithograph press or a roller [*13] coating machine where prints or coatings are applied, and then go into a sheet baking oven. Next they are automatically stacked and may be turned in an automatic bundle turner. They are transported to and from the lines by forklifts.

On October 3rd and 5th, 1972, Richard W. Sundstedt, a Compliance Officer with the Occupational Safety and Health Administration of the United States Department of Labor, conducted an official inspection of the Respondent's plant at El Monte, California. His testimony indicated that during the inspection he took photographs indicating the various violations. Exhibit J-1 contains 11 photographs numbered 1 through 10b, taken at the above-stated workplace on October 3, 1972. Exhibit J-2 contains 14 photographs numbered 1 through 14, taken at the above workplace on October 5, 1972. The photos and the testimony indicate that at the time of the inspection oil and refuse were strewn around the loading dock area and there was oil on the floor of the machine shop room. This was conceded by the Respondent. There was testimony that there were low spots and several chuck holes at the outside storage yard that created a hazard for forklifts being operated [*14] in the yard.

Respondent admitted that a forklift didn't have an overhead guard. There was testimony that boxes were stacked to a height that if one fell it could strike the operator of the forklift.

The Respondent admitted that there was no warning device on the specified forklift. Exhibit J 1-5 and testimony indicates stairs 33 inches wide with four risers and both sides open and without railings. The stairs lead to a platform that in turn leads to a wall opening about one foot from the stairs.

In regard to Item 7, there is a photograph in evidence of the fan used for ventilation and testimony that welding was done approximately two to three minutes each week (Ex. J-1-2).

In regard to Item 8, testimony indicates that the plant manager lit a cigarette within 15 feet of a 600 gallon butane Vangas tank in the presence of the compliance officer. The plant manager failed to deny this.

There was further testimony that at least one other employee was seen smoking between the lines and that there were many cigarette butts strewn about the floor in an area where there was a flammable solvent. At one place there was an open half-full five gallon container of lacquer and [*15] in another area there was an uncovered but not used container of solvents. In addition, there were four five-gallon cans of solvent, two covered by rags and two completely open. The plant manager informed the compliance officer that these cans contained flammable liquids.

Mr. Sundstedt described what he considered to be an unguarded flywheel (Ex. J 1-1, J 2-6). He testified that he saw a rail car without wheel stop devices to prevent it from moving during unloading operations (Ex. J 2-2). He later observed six fixed lamps in the paint storage room three of which were guarded with explosive covers and three not so covered. He also noticed at one place three fluorescent tube fixtures with two tubes each. Four tubes were "burned out," causing the area to be shadowy and dim compared to the other areas of the plant. There were rags lying about in the paint storage room wet with combustible solvent. At coating tanks numbers 2 and 3 paint was observed dripping down into the coater tanks, the dip tank, and covered most of the lower outer structure (Ex. J 2-6, 2-8, 2-9).

The testimony of an employee and an officer and owner of the Respondent corporation indicated that most of the [*16] employees eat while working at the lines. The employee complained of regularly tasting paint and thinner in his food and drink and that on the days of inspection virtually all the employees ate at the lines. The compliance officer also found the remains of sandwiches between the lines of machines.

Further testimony of the compliance officer described fixed wiring from number 4 stacker that was strung from the ceiling. Halfway down it led into a conduit, then down to the machine. The testimony of Mr. Neville indicated that previously provided respirator protective equipment was no longer provided and that for some months prior to the inspection no protective respirator equipment was available or used in the wax spraying area.

DISCUSSION

In order to determine whether the alleged violations remaining in issue occurred, it is first necessary to evaluate the conflicting testimony. This evaluation is based, in part, on the demeanor of the witnesses as well as contradictory testimony, photographic evidence and documentary evidence.

Mr. Sundstedt's testimony is generally given substantial weight. However, some of the charges do appear to be repetitive. A very few alleged [*17] violations are not well substantiated. In one or more items the compliance officer appears to be in error in his interpretation of a standard. The inspection appears to have been conducted in an impartial and professional manner although a hostility was shown to him by Mr. Lysher, the plant manager. As shown in the Summary of the Credible Evidence, the compliance officer's testimony was to a great extent corroborated by the testimony of the Respondent's employees and by the photographs in evidence.

On the other hand, the testimony of Mr. Lysher lacked credibility. Although he had greater expertise than Mr. Sundstedt, his demeanor while testifying indicated consistent minimally controlled hostility. It is understood that Mr. Lysher is a managing employee whose menagement of the workplace was, in his view, being belittled before his employer. Mr. T. H. Peter, as well as his subordinates. Certainly, being publicly called to explain alleged failures to keep his plant clean and safe, matters that he considered private, would be enough to justify some hostility. However, the consistent hostility and utterly incredible charges, such as his statement that the compliance officer demanded [*18] that he set off the sprinkler system went far beyond any reasonable limit.

Mr. Peter's testimony was primarily self-serving. Being an officer and owner of the Respondent corporation, he was not a disinterested witness. He, of course, was shown to have a much greater expertise than any other witness; however, his opinions were intrinsically non-persuasive. His demeanor while testifying raised some doubts as to his credibility, both in regard to his expert opinions and to his description of matters of personal knowledge.

Based on the admissions in the pleadings, the evaluation of the testimony of the witnesses and the evidence indicated in the Summary of the Credible Evidence, and the record as a whole, it is determined that the violations listed in citation (as amended) at Items 2, 3, 4, 5, 8, 9, 10, 15, 16, 17, 18, 20, 22 and 24 were proven. However, the Complainant failed in his burden of proof as to Items 6, 7, 11, and 19. As to Item 18, the Answer to Complaint admits the violation but appears to contest the proposed penalty.

In regard to Item 6, 29 CFR 1910.23 refers to "Guarding floor and wall openings and holes." The evidence presented indicates that the stairs [*19] (otherwise in violation of the standard cited) do not lead directly to a floor or wall opening and, therefore, do not violate the standard. The standard concerning Item 7, 29 CFR 1910.252(f)(2)(i)(b) concerns a room having a ceiling height of less than 16 feet. The evidence fails to establish the height of the ceiling concerned and therefore fails to sustain the alleged violation. In Item 11, the evidence fails to establish that the wheel concerned was a "flywheel." The Standard in Item 19 requires that "areas in the vicinity of dip tanks shall be kept as clear of combustible stock as practical. . . ." The citation refers to flammable and combustible residues. The evidence does not indicate that the vague requirement was not met.

Some of the general defenses raised by the Respondent include fault and dereliction of the employees with the employer being helpless to enforce discipline; lack of knowledge of the violation; duty violated was that of the employee, not the employer; the safety requirements were not necessary; no harmful conditions were shown; the violations were trivial and of temporary duration; the unsafe and unhealthy conditions were not reported by the employees; [*20] and as to the flammable liquids there were no "untoward" occurrences.

While some of the violations were temporary and minor, they were violations. The compliance officer acknowledged the low level of seriousness of many of the violations by not proposing penalties for 19 of the 25 items cited. As to no untoward occurrences, there is no requirement that there must be an untoward occurrence. In point of fact, there had been a fire at the workplace three months prior to the trial. The evidence indicates that the Respondent's managing agents were either aware of or encouraged or committed some of the violations; therefore, there is no basis for their claim of lack of knowledge. The record establishes that the Respondent either knew of or should have known of each violation. The claims that the violations were entirely the fault of employees, that the requirements of the standards were unnecessary, and that no harmful conditions were shown to exist, are entirely without foundation.

The Respondent's claim of being helpless to discipline employees has no basis in fact. There is no requirement that employees report unsafe or unhealthy conditions to the employer. Further, [*21] considering the demeanor and tone of voice of the place manager there is some doubt that Mr. Lysher would be receptive to such information. The employee witnesses appeared cautious and slightly fearful of testifying against their employer. Mr. Palmer was clearly frightened. On cross-examination he quickly endorsed answers suggested by the Respondent's counsel, contradicting his prior testimony. Based on this there is some indication that the employees would be reluctant to report violations of Standards to the Respondent.

The evidence concerning good faith, history of prior violations, size of Respondent and gravity of violation sustains the appropriateness of the proposed penalties for those violations proven except for Item 20. The evidence indicates that the Respondent utterly lacks good faith in regard to the health and safety of its employees. At best the Respondent was indifferent to these matters.

In regard to the penalty for the violation shown at Item 20, the evidence shows much greater gravity than apparently contemplated by the Compliance Officer in arriving at the penalty ultimately proposed. While Mr. Sundstedt of the lines on October 5, 1972, the evidence establishes [*22] that for several years most employees regularly ate their lunches at the lines. The Respondent not only failed to take any precautions to avoid this hazard but indeed encouraged it. Mr. Peter stated that 100 employees at four locations engaged in this violation. He also claimed that these employees were able to enjoy eating in this manner. He stated that the employees "can" stand and eat their lunches 10 to 15 feet from the lines for 15 minutes while the machine automatically processed the plates. This further testimony indicated the employees during the 15-minute interval must listen for an alarm bell and be able to push the stop button within four or five seconds of the sounding of the bell. This latter statement contradicts the earlier statement that the employees "can" eat while away from the machines. He testified on cross-examination he did not remember over being in the plant at lunch time.

Mr. Hug's credible testimony that most employees eat at the lines; had done so far several years; and that the food and drink tasted as though it was contaminated by paint and thinner, establishes the long-standing nature of the violation and that more than a few employees [*23] were exposed to the hazard. Therefore, the proposed penalty for this violation is modified to conform to the evidence of greater gravity and it is determined that an appropriate penalty would be $300.00.

The assertions made in the testimony, photographs and admissions discussed in the Summary of Credible Evidence are hereby found to be factual. Based on these findings of fact; on the conclusions of law contained in the Discussion, and on the record as a whole, it is ORDERED that:

1. Violations of standards shown in Items 1, 2, 3, 4, 5, 8, 9, 10, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24 and 25 of the Citation, as amended, are affirmed.

2. The proposed penalties for Items 1, 2, 3, 4, 5, 8, 9, 10, 13, 14, 15, 16, 17, 18, 21, 22, 23, 24, and 25, of the Citation are affirmed.

3. The violations and proposed penalties for Items 6, 7, 11, 12 and 19 of the Citation, as amended, are vacated.

4. The proposed penalty for Item 20 of the Citation, as amended, is modified to the amount of $300.00, which amount is hereby assessed.