Docket No. 2095

JOHNSON BROTHERS SAWMILL

OSHRC Docket No. 2095

Occupational Safety and Health Review Commission

June 25, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge John J. Morris dated July 19, 1973, is before this Commission for review pursuant to 29 U.S.C. § 661(i). The issue before the Judge was petitioner's request to extend certain abatement dates specified on an uncontested citation issued by respondent.

The Judge found that "[t]he evidence indicates a good faith effort . . . to comply . . . [but] the abatement could not be completed because of factors beyond his control." Nevertheless, the Judge concluded that he was powerless to grant the petition because it was not filed within the time limits of 29 C.F.R. § 2200.34 and he was without authority to waive the same. He therefore denied the petition.

The record does not dispute the Judge's determination that the respondent's petition was meritorious. Since good cause has been shown in accordance with the provisions of 29 C.F.R. § 2200.108, we specifically waive the application of 29 C.F.R. § 2200.34.

Accordingly, it is ordered, that, unless any party shall object within ten days from the date of this decision, a petition for modification of abatement is [*2] granted and the petitioner shall have 30 days from the date of this decision to complete all required abatement. A copy of this decision is to be posted in accordance with 29 C.F.R. § 2200.7.

[The Judge's decision referred to herein follows]

MORRIS, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act) whereby Complainant employer seeks a modification of certain abatement dates proposed by Respondent against Complainant under the authority vested in Respondent by Section 9(a) of the Act.

On August 30, 1972, Respondent issued a Citation against Complainant alleging certain violations of Section 5(a)(2) of the Act by reason of the failure of Complainant to comply with certain occupational safety and health standards promulgated by Respondent, pursuant to Section 6 thereof. Abatement dates were proposed as hereinafter noted. Complainant sought a modification of proposed abatement dates as hereafter noted.

The description of the violation alleged in Citation number 1, item number 6, is as follows:

The following facilities were not provided:

(1) Drinking [*3] water;

(2) Washing;

(3) Toilet.

The Citation contained a proposed abatement date of November 30, 1972. The Citation further alleges that the standard violated is codified at Subpart "R," 29 CFR 1910.265(h), which is set forth in the body of this decision.

Complainant employer sought a modification of the abatement requirement in such Citation, stating as grounds therefor:

We have the building but couldn't get a plumber to install the facilities needed. We'll have to wait until the real cold weather is over (this spring) and we can get a plumber. We will try and get a portable toilet until then.

II.

The description of the violation alleged in Citation number 1, item number 15, is as follows:

Live parts of electrical equipment were not guarded to prevent accidental contact at the following locations:

(1) East side of mill above maintenance bench -- duplex outlet;

(2) Near the mill phone -- duplex outlet;

(3) East side of mill maintenance area -- raceway and fuse panel open;

(4) North wall, east end of sawmill -- raceway open.

The Citation contained a proposed abatement date of October 2, 1972. The Citation further alleges that the standard violated is codified [*4] at Subpart "S," 29 CFR 1910.309(a) NEC -- 1971 Article 110-17a, which is set forth in the body of this decision.

III.

The description of the violation alleged in Citation number 1, item number 16, is as follows:

Receptacles and attachment plugs were not of the type for providing connection to a grounding conductor of a flexible cord -- general throughout the sawmill.

The Citation contained a proposed abatement date of October 2, 1972. The Citation further alleges that the standard violated is Subpart "S" CFR 1910.309(a) which is set forth in the body of this decision.

IV.

The description of the violation alleged in Citation number 1, item number 17, is as follows:

Wiring and equipment was not grounded in conformity with Section 502-16 -- general throughout the sawmill.

The Citation contained a proposed abatement date of October 2, 1972. The Citation further alleges that the standard violated is Subpart "S" 29 CFR 1910.309(a) NEC -- 1971 Article 503-17 which is set forth in the body of this decision.

The description of the violation alleged in Citation number 1, item number 18, is as follows:

Enclosures for lamps and lamp holders were not provided for fixed [*5] lighting -- general throughout the sawmill.

The Citation further alleges that the standard violated is Subpart "S" 29 CFR 1910.309(a) NEC -- 1971 Article 503-9 which is set forth in the body of this decision.

VI.

As the basis for a modification of the abatement requirements in the Citation set forth in Paragraphs II, III, IV and V, Complainant employer stated as follows:

We are still waiting for everything to clear the Small Business Administration -- for a loan to fix the above.

After Complainant employer filed his application for modification of the above abatement requirements, and after a response thereto was filed by Respondent-Secretary of Labor, the case came on for a hearing in Deadwood, South Dakota on April 11, 1973. No parties desired to intervene in the proceedings; the Notice of Hearing was duly posted (Tr. 4).

STATEMENT OF JURISDICTION

Complainant employer seeks affirmative relief from certain proposed abatement date. Complainant is engaged in interstate commerce and using the facilities thereof. He further purchases equipment in other States as well as raw materials in States other than where he operates (Tr. 5).

The Occupational Safety and Health [*6] Review Commission accordingly has jurisdiction of the subject matters and parties to this litigation.

EVIDENCE

Complainant employer, Larry Johnson, is a sawmiller doing business as Johnson Brothers Sawmill. He purchased this business in September 1971 (Tr. 6); borrowing the downpayment and while his payments to the owner are current he has had some financial difficulty (Tr. 7) including a shortage of working capital (Tr. 11-12) and foreclosure has been threatened at various times (Tr. 11-12).

The Citation herein was issued August 30, 1972 (Tr. 52; Compl. Ex. 1). Complainant was cited for 18 alleged violations (Compl. Ex. 1). Everything was corrected except the electrical work and the outdoor laboratory facility (Tr. 8). Complainant employer submitted a request for an extension of the abatement date on the items not completed (Tr. 8, 9).

Prior to the OSHA inspection, Complainant had applied to the Small Business Administration for a loan (Tr. 9) and had been working with SBA for seven months (Tr. 10). Complainant's local bank had recommended the SBA and his attorneys prepared the application (Tr. 18, 19). The first application to SBA was prior to the inspection [*7] and it was refused (Tr. 20). The parties stipulated that a second application to SBA was submitted December 5, 1972 (Tr. 27-38) and Complainant received $6,500.00 to comply with the OSHA Standards (Tr. 38). The $6,500.00 SBA money was used solely to abate the conditions that were allegedly in violation (Tr. 43).

Citation No. 1, Item No. 6 (para I) of the original Citation provides that facilities of drinking water; washing; and toilet were not provided at the jobsite (Compl. Ex. 1) and an abatement date of November 30, 1972 was required (Compl. Ex. 1). Standard allegedly violated was 29 CFR 1910.265(h). The cited standard adopts by reference 29 CFR 1910.141.

The pertinent portions of the latter standard provide as follows:

§ 1910.141 Sanitation.

(a) General. -- (1) Scope. -- This section applies to permanent places of employment.

(vii) "Toilet room," means a room maintained within or on the premises of any place of employment, containing toilet facilities for use by employees.

(b) Water supply. -- (1) Potable water. -- (i) Potable water shall be provided in all places of employment, for drinking, washing of the person, cooking, washing of foods, washing of cooking or eating [*8] utensils, washing of food preparation or processing premises, and personal service rooms.

(c) Toilet facilities. -- (1) General. -- (i) Except as otherwise indicated in this subdivision (i), toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with table J-1 of this section. The number of facilities to be provided for each sex shall be based on the number of employees of that sex for whom the facilities are furnished. Where toilet rooms will be occupied by no more than one person at a time, can be locked from the inside, and contain at least one water closet, separate toilet rooms for each sex need not be provided. Where such single-occupancy rooms have more than one toilet facility, only one such facility in each toilet room shall be counted for the purpose of table J-1.

(2) Construction of toilet rooms. -- (i) Each water closet shall occupy a separate compartment with a door and walls or partitions between fixtures sufficiently high to assure privacy.

(ii) Each lavatory shall be provided with hot and cold running water, or tepid running water.

The evidence as to these facilities is as follows: At the [*9] closing conference the Compliance officer indicated there was a violation (Tr. 13) and the abatement date proposed was November 30, 1972 (Tr. 21). On August 30 Complainant knew that he would have to trench to lay in the plumbing for the water to come from his trailer house well (Tr. 25). The well itself was approximately 300 feet from the mill (Tr. 26, 27). To put in the toilet facilities Complainant built a small building approximately 12 feet by 16 feet (Tr. 27). The framework had been started prior to the inspection (Tr. 27) and it was originally intended to be for washing and toilet facilities (Tr. 27-28). The sewer tap into the line had been dug prior to the expiration of the abatement date (Tr. 32) but no sink had been installed and there was a need for a different type of stool (Tr. 32). Complainant had been trying to get plumbers but they could not get the fixtures (Tr. 40) and the only item remaining to complete was the installation of the sink, a different stool and the connection of 5 feet of pipe (Tr. 40).

The compliance officer testified that he did not tell the employer how to abate the condition and he cannot do so (Tr. 52-53) because there may be numerous [*10] ways available (Tr. 53). Compliance officer did not specify to Complainant that Complainant needed to plumb in a separate bathroom with drinking and washing facilities (Tr. 53). As for the toilet facilities the compliance officer and Complainant discussed four alternate ways of complying including an outside privy; circulating type toilet; chemical type toilet; and combustion type toilet (Tr. 55). It was the compliance officer's view that running water was not a requirement (Tr. 56). In a telephone conversation with Complainant on October 10, 1972 the Complainant employer mentioned moving two privies for use (Tr. 66). The sewer at the time of trial was not yet installed but Complainant had arranged for Bartling Plumbing Company to do this work (Tr. 10-11). One of two stools has been installed (Tr. 10-11). The building in question has been erected and has water (Tr. 10-11). As noted above the proposed abatement date for this alleged violation was November 30, 1972 (Compl. Ex. 1), and the petition for extension was filed December 10, 1972 which was after the expiration of the abatement date (Tr. 21).

In each of the hereinafter enumerated citations there was a proposed abatement [*11] date of October 2, 1972 and the request for extension as to those abatement dates was likewise after the expiration of the abatement dates (Compl. Ex. 1). Complainant stated that his petition for modification of the abatement date was not forwarded sooner because he thought he could have it done but the weather turned bad and he couldn's get anyone to do the work and it was not possible to dig (Tr. 22). Further, two days before the expiration date the plumber said he couldn't come in and the Complainant had already waited a month for him (Tr. 23). He further stated he did not have time to notify the Area Director in the two remaining days available (Tr. 23).

The second violation relates to the correction of certain live parts of electrical equipment and the Citation is set forth with particularity in paragraph II hereof. The standard in question, 29 CFR 1910.309(a) contains a reference to the National Electrical Code -- 1971, Article 110-17A. The National Electrical Code provision provides as follows: Article 110-17 guarding of live parts.

(a) Except as elsewhere required or permitted by this Code, live parts of electrical equipment operating at 50 volts or more shall [*12] be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or by any of the following means: (The National Electrical Code thereafter provides several suggested means for guarding against such accidental contact).

Insofar as electrical wiring was concerned Complainant stated that he had no money and he found it difficult to get electricians (Tr. 9) but he did intend to make the connections (Tr. 9). The electrical work was being done by Gaddson Electronics and all of the electrical work was completed with the exception of light fixtures (Tr. 10). After the inspection and three weeks before the Citation was issued Complainant had an electrician give him estimates on the work and in fact the electrician started the work before the abatement date of October 2, 1972 (Tr. 15). The only remaining things to be done were to install the lights when they arrive and put in the wiring (Tr. 41). The electrician would not run the wiring until the lights are available (Tr. 42). The electrical expense involved is approximately $4,500.00 (Tr. 42). The Citation in question is set forth with particularity in paragraph II above and the judgment of [*13] the compliance officer as it relates to a "duplex" outlet (Tr. 56, 57) and it is his judgment this is a guard similar to one used in a home or business (Tr. 57) which is a plastic cover approximately 3 inches by 5 inches. Apparently the federal inspector did not discuss any alternative methods relating to electrical wiring with Johnson (Tr. 69) and while he may have suggested the covers to Johnson but he didn't recall discussing anything else as to this particular item (Tr. 75).

Citation No. 1, Item No. 16 relates to certain receptacles and attachment plugs which was a condition that was general throughout the sawmill. The Citation is set forth with particularity in paragraph III hereof. The cited standard allegedly violated the National Electrical Code, Article 503-11 which provides in part as follows:

Receptacles and attachment plugs shall conform to Section 502-13(b). "Article 503-13(b) provides as follows: (b) Contact conductors shall be so located or guarded as to be inaccessible to other than authorized persons, and shall be protected against accidental contact with foreign objects."

As to the above Complainant indicated that the matter would be cleared up when the lights [*14] arrive; by that time it should take less than a day to install (Tr. 41). The compliance officer was of the view that this condition could be abated by two methods, one of which was to put in a new cord of a three wire type and the other was to use the conductors that are presently located in the plant and put in bare wire for a ground with provisions that at the end of the circuit they be attached to this equipment to make certain that it is grounded out on the dead end (Tr. 60-61). In the opinion of the compliance officer it was not necessary to rewire the plant (Tr. 61, 63-64). As to Item 16 the compliance officer could not recall discussing the alternative methods of compliance with the Complainant (Tr. 75).

The violation in Citation No. 1, Item No. 17 relates to ungrounded wiring and equipment generally throughout the sawmill and is set forth with particularity in paragraph IV hereof. The cited standard refers to the National Electrical Code, Article 503-17. The code section refers to Section 502-16 which basically provides that no exposed live parts are permitted except as might be otherwise provided in Section 503-13 (which is not applicable in this case). As [*15] to this violation Complainant indicated that new plugs had been installed but not yet wired up by the electrician until the rest of the wiring had been installed (Tr. 42). It was the view of the compliance officer that this condition could be abated with a new cord with a third prong attached or with the wire attached to the equipment through a ground (Tr. 61-62, 63). The Compliance officer merely had a belief that he did discuss the alternatives as to Item with Complainant (Tr. 75-76).

Description of the violation alleged in Citation No. 1, Item No. 17 relates to enclosures for lamps and lamp holders for fixed lighting which was the general condition throughout the sawmill. The Citation is set forth with particularity in Paragraph V hereof and it refers to the National Electrical Code Article 503-9. The pertinent part of the cited National Electrical Code relates to fixed lighting and provides as follows:

Lighting fixtures or fixed lighting should provide enclosures for lamps and lamp holders which shall be designed to minimize entrance of fibers and flyings, and to prevent the escape of sparks, burning material or hot metal. (The remaining portions of subparagraph (a) are [*16] not pertinent to this decision.)

As to this item, Complainant indicated that new plugs were installed but not wired up until the rest of the wiring had been installed (Tr. 42). The compliance officer indicated that one would need an electrician to fabricate the necessary items to abate this condition (Tr. 64-65).

The compliance officer testified that his experience was in civil engineering and that by virtue of his experience he could do some of these items himself but he agreed that not every individual could do it (Tr. 67-68). Further he did not recall any discussion with Complainant as to how it could be done (Tr. 75-76). The record is repetitious with indications from the Complainant that he intended to have the work done (Tr. 11-12, 13); he states that he takes part in the work at the sawmill (Tr. 34-35); further, summer and fall are their busy periods (Tr. 36) but everything was almost presently corrected (Tr. 37). As to the enclosures for the lamps and lamp holders he was presently awaiting the arrival of the equipment (Tr. 42).

The issues presented:

1. Whether Complainant employer's petition for modification of abatement dates is untimely under Review Commission [*17] Rule 2200.34.

2. Whether this Judge has the authority under Rule 2200.108 to waive the requirements of Rule 2200.34.

DISCUSSION

The Review Commission Rules govern the procedure for the Review Commission and its Judges. Rule 2200.34 provides as follows:

Rule 34 Petitions for modification of abatement period.

(a) An employer may file with the Secretary a petition for modification of an abatement period no later than the close of the next working day following the date on which abatement is required.

(b) The Secretary shall transmit such petition to the Commission within 3 days after its receipt.

(d) The burden of proving the need for modification of the abatement period shall rest with the petitioner.

The unequivocal evidence is that Complainant employer filed his petition for modification of the proposed abatement dates on December 10, 1972 (Tr. 21), after the expiration of the last proposed abatement date on Citation 1, Item 6 (para. I). As to the remaining citations the proposed abatement date was October 2, 1972 (Citation; Compl. Ex. 1). The filing by Complainant was likewise [*18] after the date on which the abatement was required. Complainant's petition is untimely under Commission Rule 34.

The second issue is whether this Judge has authority to waive the above cited rule under the authority of Commission Rule 2200.108. The latter rule provides as follows:

Rule 108 Special circumstances; waiver of rules. In special circumstances not contemplated by the provisions of these rules, or for good cause shown, the Commission may, upon application by any party or intervenor, or on its own motion, after 3 days notice to all parties and intervenors, waive any rule or make such orders as justice or the administration of the Act requires.

The evidence here indicates a good faith effort by Complainant to comply with the federal standards; further the abatement could not be completed because of factors beyond his control He borrowed $6500 from SBA to abate the alleged conditions (Tr. 43). Of the 18 violations he was able to complete all but 5 and at the time of trial all of the work was virtually completed. A change in the weather prevented completion of the plumbing (Tr. 22, 23) and the electrical problems would be remedied when the equipment arrived [*19] (Tr. 41). Under these circumstances this Judge would waive the strict requirements under the authority of Rule 108. However, it is this Judge's view that he has no authority to waive the requirements and no authority to act under Rule 108. Rule 108 states, in part, that. . . "the Commission may . . . waive any rule . . ." Ordinarily the Commission acts through its Judges but a comparative analysis of other rule indicates that the waiver right is reserved to the Commission alone. See rules 9, 10, 20, 21(c), 38, 53, 54 and 63 whether certain authority is granted specifically to the Commission or its Judges.

There being no grant of authority to the Judge for a waiver of Rule 34 it follows that Complainant's motion to dismiss should be sustained and Complainant's petition for modification of abatement dates should be dismissed.

FINDINGS OF FACT

1. Complainant is an individual doing business as a sawmiller engaged in a business effecting interstate commerce with 15 to 20 employees (Tr. 5, 36).

2. Complainant was cited on August 30, 1972 for 18 alleged violations of certain standards promulgated by Respondent Secretary of Labor (Compl. Ex. 1).

3. Citation number 1, Item 6(3) [*20] had a proposed abatement date of November 30, 1972.

4. Citation number 1, Items 15(4); 16; 17; and 18 had a proposed abatement date of October 2, 1972.

5. Complainant on December 10, 1972 filed a petition for an extension of the proposed abatement dates set forth in paragraphs 3 and 4 hereon.

6. The petition for extension of the proposed abatement dates was filed after the expiration of the abatement date (Tr. 21; Compl. Ex. 1, Petition for Extension).

CONCLUSIONS OF LAW

1. Complainant is and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of Section 3(3) of the Occupational Safety and Health Act of 1970 (Facts 1).

2. Complainant is authorized under Section 10(c) of the Act to seek a modification of proposed abatement date (Act).

3. Complainant's application is untimely under Review Commission Rule 34 (Facts 2, 3, 4, 5).

4. The Review Commission may waive Review Commission Rule 34 under the authority of Rule 108 but this waiver privilege is not extended to the Judges of the Review Commission.

ORDER

Based on the foregoing findings of fact and conclusions of law it is hereby adjudged and ORDERED: [*21]

1. Respondent's motion to dismiss is sustained.

2. Complainant's petition for extension of abatement dates is dismissed.