Docket No. 1872

RAILROAD SALVAGE OF CONNECTICUT, INC.

OSHRC Docket No. 1872

Occupational Safety and Health Review Commission

June 26, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge William E. Brennan, dated January 17, 1974, has been before this Commission for review pursuant to 29 U.S.C. § 661(i) for more than a year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide this case at this time.

The Commission agrees that Judge Brennan properly found that the respondent had failed to abate a violation of the occupational safety standard codified at 29 C.F.R. § 1910.176(b) and that he assessed an appropriate penalty therefor. However, the Commission is in disagreement as to the correctness of the Judge's holding that the respondent failed to abate violations of the occupational safety standards codified at 29 C.F.R. § § 1910.37(k), 1910.157(a)(3), and 1910.157(a)(5). Accordingly, the Judge's decision on these items is affirmed by an equally divided Commission. As to these items, this decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

Chairman Moran would vacate the citation for failure [*2] to abate the violation of 29 C.F.R. § 1910.37(k) because the conditions alleged to be violative of that standard were also violative of 29 CFR § 1910.176(b). He finds that this is an unwarranted multiplication of charges which does not enhance the objectives of the Act.

Commissioner Cleary would affirm the citation for failure to abate the violation of 29 C.F.R. § 1910.37(k). In his view, the standards were designed to protect employees against two separate hazards. He concludes that the respondent could abate one of the violations without abating the other and thereby leave the employees exposed to a hazard.

Chairman Moran would vacate the citations for failure to abate the violations of 29 C.F.R. § 1910.157(a)(3) and (a)(5) on the basis that these standards were adopted for the purpose of protecting property, rather than employees, and that the Secretary of Labor has no authority under the Act to promulgate property protection regulations.

Assuming arguendo that the Commission has authority to consider the validity of a standard, Commissioner Cleary finds that 29 C.F.R. § 1910.157(a)(3) and (a)(5) are reasonably related to the safety and health of affected employees. [*3] Accordingly, he would affirm the Judge's finding that respondent failed to abate violations of these standards.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659, (hereinafter the Act) to review a Notification of Failure to Correct Violation and of Proposed Additional Penalty issued pursuant to Sections 10(b) and 17(d) of the Act on November 24, 1972, by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Hartford, Connecticut (hereinafter Secretary of Complainant) to Railroad Salvage of Connecticut, Inc., 401 Boston Post Road, Orange, Connecticut (hereinafter Respondent).

As a result of an original inspection by Complainant on September 27, 1972 of Respondent's retail store located at 401 Boston Post Road, Orange, Connecticut (hereinafter worksite), there was issued to this Respondent on October 11, 1972 a Citation for Non-Serious Violations consisting of 16 numbered Items together with a Notification proposing a total penalty of $645.00.

No Notice of Contest was filed by Respondent [*4] or its employees within fifteen days of receipt of the above Citation and thus that Citation and proposed assessment of penalties became the Final Order of the Commission by operation of Section 10(a) of the Act, (29 U.S.C. 659(a)). Payment of the $645.00 in penalties was made to the Secretary by Respondent on November 21, 1972.

On November 22, 1972 the Secretary, through the same Compliance Officer who conducted the original inspection, made a reinspection of Respondent's worksite which resulted in the issuance on November 24, 1972 of the Notification of Failure to Correct Violation and of Proposed Additional Penalty (hereinafter Notification) here under review.

This Notification alleged that Respondent had failed to abate, within the time periods prescribed, portions of four violations for which it was originally cited.

After Respondent, through its counsel, noted its intention to contest the Notification, the Secretary filed his Complaint, which alleged that Respondent had failed to correct the following violations:

Item No. of Original Citation-Standard-Description

6-29 CFR 1910.37(k)(2)- . . . respondent had not provided a means of egress free from all obstructions [*5] to full instant use in case of fire or other emergency (side left rear exit), immediately on receipt of Citation. (Para V(a) Complaint)

11-29 CFR 1910.157(a)(3)- . . . respondent had not provided conspicuous indication of fire extinguisher locations (main desk and boys' department) by November 9, 1972. (Para V(b) Complaint)

12-29 CFR 1910.157(a)(5)- . . . respondent had not properly mounted fire extinguishers (paint department and main desk) by November 9, 1972. (Para V(c) Complaint)

14-29 CFR 1910.176(b)- . . . respondent had not stacked material in such a manner so as not to create a hazard (left rear) within five (5) days after receipt of the Citation. (Para V(d) Complaint)

The Notification proposed the following additional penalties based upon the foregoing alleged failures to abate:

Item	Additional Penalty
6	$1,310.00
11	435.00
12	518.00
14	1,561.00
	Total $3,824.00

After Respondent filed its Answer, this case was assigned to Judge Leon J. Moran. Because of the illness of Respondent's counsel, the hearing herein was postponed by Judge Moran until April 27, 1973, on which date trial was had before him at Hartford, Connecticut.

On June 30, [*6] 1973 Judge Moran retired and this case was reassigned to the writer for disposition on July 9, 1973.

Both parties were offered an opportunity to file any comment or motion on any need for a rehearing before me.

On August 10, 1973, the Secretary's counsel submitted a letter in which he advised, that under precedent cases and the Administrative Procedure Act, and because only two witnesses for the Secretary appeared at the trial herein and none for Respondent, there was no choice in witnesses credibility presented by the record, and therefore the Complainant had no objection to my preparation of a decision based upon the complete record. Respondent's counsel made no response.

All briefs, proposed findings and conclusions were finally filed by the parties by August 20, 1973.

Having considered the entire record herein, the testimony of the witnesses, the exhibits, stipulations, representations, admissions and briefs of the parties, it is concluded that the substantial evidence of record considered as a whole supports the following findings of fact and conclusions of law.

At the outset of the hearing the parties submitted as a joint exhibit, (Exh. J-1) their stipulation of the following [*7] facts.

The Respondent at all relevant times was a Connecticut Corporation with its principal office located at Meriden, Connecticut. It is engaged in the operation of a retail department store at 401 Boston Post Road, Orange, Connecticut, where it employs 22 employees, six of whom are full-time. In its business Respondent receives, handles or works with goods which have moved in interstate commerce. Respondent conceded the original inspection of its worksite, receipt of the original Citation consisting of 16 numbered items, dated October 11, 1972, the fact that no contest was filed and the payment of the original proposed penalty of $645.00. The annual dollar volume of Respondent for fiscal year 1971 was $450,000 and its net worth for the same period was $75,000. The average daily number of employees at the worksite was stipulated as nine.

The issues in his matter are:

1. Whether Respondent failed to abate portions of four violations set forth as Items numbered 6, 11, 12 and 14 in the original Citation for Non-Serious Violations dated October 11, 1972.

2. If it is found that Respondent did fail to abate said violations when reinspected on November 22, 1972, after [*8] the expiration of the relevant abatement dates, are the additional proposed penalties reasonable and consistent with the Act.

The Secretary's counsel correctly points out in his brief that the existence of the circumstances and conditions spelled out in Items 6, 11, 12 and 14 of the original Citation, and the legal conclusion that said conditions were non-serious violations of Section 5(a)(2) of the Act are not subject to review in this proceeding, or before any tribunal.

Section 10(a) of the Act in pertinent part provides as follows:

If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

The original Citation herein was issued to Respondent on October 11, 1972. Receipt of this Citation is conceded by Respondent and payment of the total proposed penalty was made by Respondent on November [*9] 21, 1972. No notice of contest was ever filed by Respondent to either the original Citation or proposed penalties. Thus under the unambiguous terms of the quoted Section of the Act supra, the original Citation and proposed penalties became the final order of the Commission not subject to review by ". . . any court or agency."

Item No. 6

Item No. 6 of the original Citation charged Respondent with a violation of the Standard set forth at 29 CFR 1910.37(k)(2) because of its, "Failure to maintain means of egress free of all obstructions to full instant use in case of fire or other emergency," at three specified locations at the worksite in question. This Citation called for abatement immediately upon receipt of the Citation. The Citation was received by Respondent on October 17, 1972.

When Respondent's worksite was reinspected on November 22, 1972, by the same Compliance Officer who made the original inspection, he found the same condition prevailing at one of the three specified locations, to wit, the "side left rear exit," as existed on the original inspection. He took a photograph of this scene which was admitted into evidence as Exh. C-1.

During the trial herein, [*10] the Secretary produced the testimony of the above mentioned Compliance Officer and the Area Director. Respondent produced no witnesses.

Thus, the testimony of the Compliance Officer is unrebutted and conclusively establishes a failure to abate this violation.

Respondent was advised of this violation during both the original and follow-up inspections by the Compliance Officer discussing the matter with the Assistant Manager Mrs. Sheppard, during the original inspection and Mr. Nisson, the Manager during the follow up inspection.

Respondent was advised during the original inspection, that if the door under the "Exit" sign visible in Exh. C-1 was not intended to be used as an exit, the "Exit" sign should be removed or altered to read, "Not an Exit." No such corrective measures were taken by Respondent as to this location, nor was any explanation ever given for such inaction.

The Secretary proposed an additional penalty of $1310 for this failure to abate by the use of a formula which is not clear in the evidence.

During the cross examination of the Compliance Officer, it was brought out that, in his view, there were a sufficient number of exits generally for Respondent's [*11] employees in this store. Additionally, that immediately to the left of the exit in question, there was a large overhead door opening onto a loading platform. To the left of this overhead door, there was another exit door which apparently conformed to the Secretary's regulations.

The Officer estimated that six of Respondent's employees could be affected by the blocked exit door in question, in that these employees in case of fire or other emergency, in a state of panic or confusion, might attempt to reach the exit door under the "Exit" sign.

Section 17(j) of the Act (29 USC 666(j)) vests exclusive authority in the Commission to assess all civil penalties under the Act, giving due consideration to the size of the employers business, the gravity of the violation, the good faith of the employer and its history of previous violations.

The Respondent herein is a relatively small employer with six full-time employees, 16 part-time and an average daily number of 9 employees.

In view of the existence of an adequate number of exits at this worksite, exclusive of the exit in question, it is concluded that the gravity of this violation is rather low. This Respondent had no history of prior [*12] violations of the Act prior to the original Citation. Although it does not have any formal or written safety program, which lead the Complainant to allow no reduction in proposed penalty for "good faith," the record herein does establish that Respondent did correct the great majority of conditions originally cited as violations. It is therefore concluded that the proposed penalty is not appropriate.

This violation is not so minor however, to warrant the assessment of no penalty. It is obvious from a reading of Section 17 of the Act, particularly Section 17(d) thereof, that Congress considered the failure to correct a violation of such a magnitude to warrant a penalty of up to $1000 for each day that the violation continues after the period allowed for its correction.

Weighing the factors set forth in Section 17(j) of the Act, it is concluded that a penalty in the amount of $230 is appropriate for Respondent's failure to abate this violation for a period of 23 days.

Item No. 11

The original Citation charged Respondent in this Item with a violation of the Standard set forth at 29 CFR 1910.157(a)(3) because of its "Failure to provide conspicuous indication of fire extinguisher [*13] locations," at four specified locations and "others" at this worksite. Abatement was to be accomplished by November 9, 1972.

During the reinspection, the same condition was found to exist, uncorrected, at two locations, the "main desk" and the "boy's department." In the "boys department," a fire extinguisher was mounted on the side of a rectangular vertical column. It was not visible from the opposite side of the column and was partially obscured by stacked merchandise from any angle of view. No means were provided to indicate the location of this fire extinguisher. A photograph of this condition, taken by the Compliance Officer during the reinspection was admitted into evidence as Exhibit C-2.

At the "main desk" a fire extinguisher was located on the floor, beside a table, almost totally obscured by merchandise, wires, boxes, etc. A photograph of this condition was admitted as Exhibit C-3. No means were provided to indicate the location of this extinguisher.

This violation was brought to the Respondent's attention during both inspections and no reason for failing to correct these conditions was offered.

The Compliance Officer estimated that six employees could be affected [*14] in the "boy's department," four employees at the "main desk," as there were no other fire extinguishers in the immediate vicinity.

The unrebutted evidence of record conclusively establishes Respondent's failure to correct these two conditions.

A penalty of $435 was proposed because of this failure to abate.

On cross examination it was developed that an overhead sprinkler system existed at this worksite and the Compliance Officer was of the opinion that Respondent did have a sufficient number of fire extinguishers for this retail store. Nevertheless, the violative conditions depicted in Exhibits C-2 and C-3 had not been corrected at the time of the reinspection.

The gravity of this failure to abate however, is very low, and over three other similar conditions had been corrected. Applying the criteria of Section 17(j) of the Act, it is concluded that a penalty of $80 is appropriate for Respondent's failure to abate this violation for a period of 8 days.

Item No. 12

Item No. 12 of the original Citation charged a violation of the Standard set forth at 29 CFR 1910.157(a)(5) due to Respondent's "Failure to properly mount fire extinguishers," at five specified locations. [*15] November 9, 1972 was assigned as the abatement date.

Upon reinspection, the same condition existed at two of the five locations, in the "paint department" and the "main desk."

Exhibit C-3 shows this condition at the "main desk" and Exhibit C-4 in the "paint department." The Compliance Officer estimated that four employees could be affected by this violation. The unrebutted evidence of record conclusively establishes Respondent's failure to abate this violation, and no explanation was made for this failure.

A penalty of $518 was proposed.

Again, because of the presence of an overhead sprinkler system at this work site and a sufficient number of fire extinguishers for this retail store, and the absence of any other evidence bearing upon the gravity of this violation, it is concluded that its gravity is low.

Respondent had corrected this condition at three of the five locations specified, but offered no evidence as to why it was not corrected at two locations. Therefore, applying the statutory criteria set forth at Section 17(j) of the Act, it is concluded that a penalty of $80.00 is appropriate for Respondent's failure to abate this violation for a period of 8 days. [*16]

Item No. 14

Respondent was charged in this Item of the original Citation with a violation of the Standard set forth at 29 CFR 1910.176(b) due to its "Failure to Stack material in such manner so as not to create a hazard" at the right and left rear areas of the worksite. Abatement was to be accomplished 5 days after receipt of the Citation.

When reinspected on November 22, 1972, the cited condition at the left rear of the store was uncorrected. Exhibit C-1 graphically portrays the condition. The area at the right rear of the store had been corrected.

The Compliance Officer described the hazard as that of having some of the stored material fall upon any employee sent into this area to retrieve any article because of the haphazard method of storage, and a tripping hazard around the perimeter of this area as some of material protruded into the adjacent aisles.

Exhibit C-1 pictorially displays the totally confused jumble of stored material in this area with a complete lack of any systemitized stacking of the varied types of material stored therein.

The unrebutted evidence of record conclusively establishes the failure to abate this condition. The evidence of the existence of [*17] a hazard because of the haphazard method of storing the material in this area is likewise unrebutted.

The Compliance Officer estimated that two employees would be affected by this violation and Complainant proposed an additional penalty of $1561.

A study of Exhibit C-1 reveals that a majority of the haphazardly stored material above the level of a persons head appears to be cardboard cartons, although there appears to be heavier material, i.e., doors, stored at this level to the right of this photograph. Thus the hazard of dislodging some material by attempting to remove material stored near the floor level, or the hazard of dislodging higher material by tripping over lower material is a real, not inconsequential danger. Therefore, the gravity of this violation is not minimal but is in a middle low range. Only two employees, according to the Compliance Officer's testimony, were estimated to be affected by this condition. The record does reflect that a similar condition at the right rear of this store was corrected. Respondent offered no explanation as to why the unabated condition was not corrected.

Weighing the factors dictated by Section 17(j) of the Act, it is [*18] concluded that a penalty in the amount of $360 is appropriate for Respondent's failure to correct this violation for a period of 18 days.

There is some suggestion in this record that the conditions depicted in Exhibit C-1 constitute only one violation, hence the issuance originally of Items 6 and 14, both pertaining to the same area, was improper.

As previously alluded to, the time for raising this question expired with the 15 day period allowed under the Act to file a Notice of Contest to the original Citation. Section 10(a) of the Act.

However, clearly two violations of separate standards were created by the haphazard storage of material in this area. One violation was blocking an exit door, clearly marked as an exit, the other was creating the hazard of having stored material fall upon any employee attempting to remove material from this area, or tripping on protruding material while using the aisles adjacent to this area.

At all times involved in this case, Respondent furnished employment to its employees at the worksite hereinbefore identified. The Act is applicable to such employment within the meaning of Section 4(a) thereof and the Commission has jurisdiction of the [*19] parties and the subject matter herein pursuant to the provisions of Section 10 thereof.

Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c), 12(j), 17(d) and (j) of the Act, it is hereby ORDERED: that,

1. The Respondent herein is found to have failed to correct portions of Items numbered 6, 11, 12 and 14 of the Citation for Non-Serious Violation dated October 11, 1972, as alleged in the Complaint herein. The Notification of Failure to Correct said violation is AFFIRMED.

2. The following additional penalties for said failures to correct said violations are assessed:

Item No. 6	$230.00
Item No. 11	$80.00
Item No. 12	$80.00
Item No. 14	$360.00
Total	$750.00