OSHRC Docket No. 191

Occupational Safety and Health Review Commission

February 1, 1974


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



MORAN, CHAIRMAN: On September 14, 1972, Review Commission Judge David H. Harris issued a decision in this case. Thereafter on September 25, 1972, pursuant to 29 U.S.C. 661(i), that decision was ordered to be reviewed by this Commission.

The pleadings and transcript in this case indicate that except for citations number 5 and 7, respondent was contesting the proposed penalties only. Complainant subsequently withdrew citation 5 as reinspection showed this citation to be erroneous. At the hearing respondent indicated it was ". . . willing to withdraw" as to citation number 7.

Under these circumstances the Commission finds no prejudicial error. Accordingly, it is ordered that the Judge's decision is hereby affirmed in all respects.



CLEARY, COMMISSIONER concurring: I concur in the result reached in this case.

The record indicates that respondent was "willing to withdraw" its notice of contest as to item 7. Thus, under the majority opinion the validity of the citation is affirmed. I concur because it is clear from the record that although respondent was "willing" to withdraw his notice of contest [*2] as to item 7, he did not do so. The judge properly affirmed the citation for item 7 on the basis of other record evidence.

I further agree with the judge that no penalty be assessed for this violation.

[The Judge's decision referred to herein follows.]

HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter the Act), to review three citations issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to Section 10(a) of the Act.

The citations, all of which were issued on October 29, 1971, allege that at a workplace under its ownership, operation or control, located at 1311 3rd Avenue North, in Nashville, Tennessee, wherein Respondent was engaged in the manufacture of aluminum storm windows and doors, it was in violation of the Act in the following respects.

Citation Number 1 (P-2), in Item 1, charges a violation of the standard at 29 C.F.R. 1910.315(n)(4) in that "Cover panels for electrical junction boxes were not in place for 45 degrees aluminum metal saw, notch die press, aluminum [*3] double saw;" Item 2 charges a violation of the standard at 29 C.F.R. 1910.242(b) in that "Compressed air used for cleaning purposes was operated at 170 PSI;" Item 3 charges a violation of the standard at 29 C.F.R. 1910.134(a)(2) and (b)(11) in that "Unapproved respirator available for use by paint sprayer;" Item 4 charges a violation of the standard at 29 C.F.R. 1910.252(e)(2)(j)(iii) in that "Flame proof screens or shields were not used to protect adjacent employees from arc welding rays in iron shop;" and Item 5 charges a violation of the standard at 29 C.F.R. 1910.106(e)(2)(iv)(d) in that "Transfer of Ultra Seal Adhesive (flammable) by applying air pressure (20 PSI) to original shipping container."

Citation Number 2 (P-3), in Item 6, charges violation of the standards at 29 C.F.R. 1910.132(a) and 1910.133(a)(1) in that "Eye protection equipment not available and/or worn by employees subjected to hazardous environmental conditions in metal working shop. Hand protection not used by employees handling extruded and sawed aluminum;" Item 7 charges a violation of the standard at 29 C.F.R. 1910.151(b) in that "Qualified individual not available to administer first aid. First [*4] aid supplies not approved by consulting physician;" and Item 8 charges a violation of the standard at 29 C.F.R. 1910.22(a)(1) in that "Housekeeping was poor in aluminum door and window shop, machine shop, wood working shop, Iron shop, spray painting area, rest rooms, and retiring room."

Citation Number 3 (P-4), in Item 9 charges a violation of the standard at 29 C.F.R. 1910.22(b)(2) in that "Permanent aisles and passageways between shipping, storage and machine operations were not marked in aluminum door and window shop."

Each of the said violations is required to be abated by November 28, 1971 (P-2; P-3; P-4).

The Notice of Proposed Penalty (P-5) issued on the same date, proposes separate penalties for each of the alleged violations ranging from $15.00 to $67.00 and aggregating $309.00.

Respondent filed a Notice of Contest dated November 15, 1971 (P-S) by which it contested both the citations and the proposed penalties and the within matter was referred to the Occupational Safety and Health Review Commission (hereinafter Commission) for hearing pursuant to Section 10(c) of the Act on November 18, 1971.

The Secretary filed his complaint herein on November 26, 1971 and in paragraph [*5] V, subparagraphs (a) through (i) charges the violations alleged in Items 1 through 9, respectively, in citations numbered 1, 2 and 3 (P-2; P-3; P-4). The complaint alleges that the abatement dates fixed in the said citations are reasonable (Para. VIII) and that the proposed penalties were computed as required by Section 17(j) of the Act (Para. VII).

On December 21, 1971, the undersigned was appointed and the within matter assigned to him for hearing pursuant to Section 12(e) of the Act and pursuant to notice and by agreement of the parties, a prehearing conference and the hearing were held on March 8, 1972, in Nashville, Tennessee.

The parties stipulated that Respondent's correct legal title is Sunpruf Aluminum Products, Inc.; that it was incorporated under the laws of the State of Tennessee; that its principal office is located at 1311 Third Street North, Nashville, Tennessee; that Respondent's manufactured products are regularly sold and shipped to points outside the State of Tennessee; that it owns and controls all of the equipment and machinery which is referred to in the citations herein; that its gross annual sales approximate $500,000; that it had a net worth in [*6] the year 1970 of about $60,000; that its size is "about average" compared to similar businesses carried on in the area; that officials of the Tennessee Department of Labor conduct periodic inspections of its premises, the last of which was had in September, 1971; that an official of the Occupational Safety and Health Administration, United States Department of Labor (hereinafter OSHA) inspected its said premises on October 6, 1971; that it received the citations and the Notice of Proposed Penalty herein; that it daily employed an average of 30 persons during the years 1971 and 1972; and that the citations and notice of time and place of hearing were posted at the time clock, in the iron department and in the window and door plant at its said premises (P-1).

The citations herein were posted in the three said locations immediately after December 6, 1971 and remained so posted until March 8, 1972 (Tr. 72).

The record disclosed that Respondent had failed to file its answer to the Secretary's complaint as is required by Commission rule (29 C.F.R. 2200.7(e)). However, Respondent's Formulation of Issues, filed pursuant to my direction, was determined to be regarded as in lieu [*7] of answer, no objection thereto being made by the Secretary (Tr. 15).

It having been disclosed on a re-inspection conducted by OSHA on March 7, 1972, that the method of transferring Ultra Seal Adhesive used by Respondent was not in violation of the standard at 29 C.F.R. 1910.106(e)(2)(iv)(d), the Secretary moved that the allegation in citation number 1, Item 5, (P-2) and the penalty proposed therefore (P-5) as well as the allegation thereon in the complaint, be deleted (Compl. para. V(e)). The motion was granted and it was so ordered (Tr. 26-28).

After hearing the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact.


1. Several junction box covers were missing as alleged in Item 1; compressed air in excess of 30 psi was in use as alleged in Item 2; a face make in use by a paint spray operator consisted of surgical type gauze as alleged in Item 3; no screens shielded a welding operation as alleged in Item 4, all in citation number 1 (P-2); [*8] no eye or hand protection was in use as alleged in Item 6; no person qualified to administer first aid was available as alleged in Item 7; housekeeping was poor as alleged in Item 8, all in citation number 2 (P-3); and aisles and passageways were not marked as alleged in Item 9 in citation number 3 (P-4) (Tr. 20-42).

2. Respondent, by its president, agreed with the factual findings of OSHA's compliance officer and admitted the existence thereof (Tr. 38; 47-48).

3. All of the conditions alleged in the citations herein have been abated (Tr. 62; 65; 66; 82).

4. The probability or likelihood of injury in each instance, with the exception of Item 6 (P-7(f)), was rated by the Secretary as low or moderately low. Item 6, touching the failure to provide and require the use of eye and hand protection, was rated as moderately high (Tr. 50-60).

5. Respondent has had difficulty in enforcing its requirement that its employees use and wear safety equipment, particularly goggles, gloves and respirators (Tr. 68-71). However, since its employees have become aware of the passage of the Act and the program to enforce its provisions, they have been more cooperative in requesting and [*9] using safety equipment (Tr. 76).

6. Respondent was not aware of the promulgation of the standards in question (Tr. 47), n1 suggests that it should have been given time to come into compliance before citations were issued against it and prays that under the circumstances herein, no penalties should be assessed against it (Tr. 64; 66).

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n1 Effective as against this employer as of August 27, 1971.

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7. Respondent is now in compliance with the Act and is making efforts to remain in compliance (Tr. 65; 66). It is a small business and engaged in very competitive field (Tr. 65).

8. There is no authorized union representative in Respondent's plant and no employee appeared for the purpose of participating in the proceedings herein (Tr. 73).

9. Respondent has no history of prior violations (Tr. 47).


1. At all times mentioned herein Respondent was and is an employer engaged in a business affecting commerce within the meaning of Section 3 of the Act and the Occupational Safety and Health Review [*10] Commission has jurisdiction of the parties and of the subject matter herein pursuant to Section 10(c) of the Act.

2. Respondent, contrary to Section 5(a)(2) of the Act, violated the standards at 29 C.F.R. Part 1910, subsections .315(n)(4); .242(b); .134(a)(2) and (b)(11); .252(e)(2)(j)(iii); .132(a); .133(a)(1); .151(b) and .22(a)(1).

3. Applying the rationale expressed in Sections 8(d) and 28 of the Act that in proper cases consideration should be extended to small businesses, particularly where, as here, bonefide efforts are made to come into and remain in compliance with the Act as well as the rationale in the Commission's decision in Secretary v. J.E. Chilton Millwork and Lumber Company, Inc., Docket Number 123, wherein it stated:

The Commission is of the opinion that the principal purpose of the Act is obtain compliance with its requirements in order to ensure a safe and healthful workplace. Relatively minor monetary penalties do little to effectuate this objective. We, therefore, will look carefully at cases involving such proposed penalties. This is a case where the proposed penalty adds nothing to the objectives of the Act.

The penalties proposed herein [*11] are not reasonable.


In view of the foregoing and having duly considered the gravity of the violation, the good faith of Respondent, its size, and its history of previous violations and good cause therefore appearing, it is


1. The allegations in Item 5, citation number 1 and in paragraph V(e) of the complaint be and they are hereby vacated.

2. The allegations in Items 1, 2, 3 and 4 in citation number 1; Items 6, 7 and 8 in citation number 2 and Item 9 in citation number 3 be and they are hereby affirmed.

3. No penalties be assessed against Respondent.