YORK METAL FINISHING COMPANY
OSHRC Docket No. 245
Occupational Safety and Health Review Commission
April 8, 1974
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
CLEARY, COMMISSIONER: On July 3, 1972, Judge Donald K. Duvall issued his decision and order in this case, assessing penalties against respondent in the amount of $300.
On August 1, 1972, Chairman Moran, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act"), directed that the Commission review the Judge's decision and order.
Having reviewed the whole record, the Commission adopts and affirms the Judge's decision and order in its entirety.
To the Judge's discussion of the applicability of the doctrines of res judicata and collateral estoppel to proceedings on a notice of contest of a notification of additional penalties for failure to abate, and to his discussion on the burden of proof, we add the following comments.
Where, as here, there is no contest of the original citation and there is a re-inspection subsequent to the scheduled abatement date, the Secretary's prima facie case of failure to abate is made upon showing that: (1) The original citation has become a final order of the Commission, and (2) the condition [*2] or hazard found upon re-inspection is the identical one for which respondent was originally cited. The first contingency is met, for the uncontested original citation has become a final order of the Commission by operation of section 10(a) of the Act. The second contingency is met as to items 1, 2, and 4. The Judge found, as to item 3, that complainant had failed to carry the burden of establishing that the same condition existed on the date of re-inspection as existed at the time of the original inspection. n1 We conclude that the Secretary has presented a prima facie case of failure to abate the violations alleged as items 1, 2, and 4.
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n1 The Judge's finding in this regard is based upon his determination of the credibility of witnesses giving conflicting testimony. We do not distrub his credibility finding.
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This prima facie case may be rebutted by a showing of actual abatement of the hazardous condition by prevention of employee exposure or correction of the physical condition. It may also be rebutted [*3] by showing that the condition for which respondent was originally cited was in fact non-violative of the Act where the original citation has become a final order of the Commission by operation of law. Other defenses may be available.
In a hearing on failure to abate a violation, these are the likely defenses to be raised by respondent, who carries the burden of going forward with sufficient evidence to establish such defenses.
The Secretary argues that the doctrines of res judicata and collateral estoppel apply to this case. For the reasons assigned by the Judge and these set forth below, we disagree.
Although the term "res judicata" is often broadly used to include collateral estoppel, they are distinct and separate.
The basic distinction between the doctrine of res judicata and collateral estoppel . . . has frequently been emphasized. Thus, under the doctrine of res judicata, a judgment 'on the merits' in a prior suit involving the same parties . . . bars a second suit based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, such a judgment precludes relitigation of issues actually litigated and determined in the [*4] prior suit, regardless of whether it was based on the same cause of action as the second suit.
Lawlar v. National Screen Service Corp., 349 U.S. 322, 326 (1955).
It must be kept in mind that the proceeding with which we are concerned is a contest of the Secretary's notice of failure to correct or otherwise abate a violation and notification of proposed additional penalties. The previous proceeding that the Secretary argues makes the question of the violation res judicata was an uncontested citation that became a final order by operation of law.
This proceeding is to assess additional penalties for failure to abate a violation under the section 10(b) of the Act. It is a different cause of action involving the same parties and some of the same issues. If either doctrine were applicable, it would be that of collateral estoppel.
The public policy behind the development of the doctrines of res judicata and collateral estoppel -- to lay to rest causes of action and to avoid continuing litigation of the same issues between the same parties -- is compatible with at least some, although not necessarily all, administrative proceedings. Professor Davis suggests that the proper [*5] application of res judicata to administrative proceedings is:
[T]o use the doctrine of res judicata when the reasons for it are present in full force, to modify it when modification is needed, and to reject it when the reasons against it outweigh those in its favor (Footnote omitted).
K. Davis, 2 Administrative Law Treatise, § 18.02 at 548 (1958).
We believe that the same policy should apply to the application of the doctrine of collateral estoppel.
We need not, and do not, decide here the applicability of these doctrines to cases in which there has been a full evidentiary hearing. It is sufficient for the purposes of this case to hold that neither the doctrine of res judicata nor that of collateral estoppel is applicable in a hearing on a failure to abate a violation when the original citation became a final order of the Commission by virtue of the employer's failure to file a notice of contest. Under these circumstances, the absence of the violation alleged in the original citation may be raised as a defense, as indeed it was here regarding item 2. To hold differently would subject an employer to daily penalties for failure to abate a condition that may not [*6] actually violate the Act.
An employer may have any one of several reasons why it failed to contest the original citation and paid the penalty, although believing it had meritorious defenses. We will not foreclose its opportunity to raise such defenses at a hearing on its contest to a notice of failure to abate that violation by applying the doctrine of either res judicata or collateral estoppel.
The prerequisite to the application of either doctrine is that there has been an adjudication. The effect of a judgment upon a later action between the same parties on a different cause of action is conclusive only as to matters actually litigated and determined in the previous action. Here, there has been no adjudication or contest on the merits of the original citation. It is the filing of a contest that commences the adjudication of action by the Secretary. We believe that for these reasons it is necessary to reject the application of the doctrines here.
This result was reached in Supreme Court review of a similar case involving a decision of the Tax Court, United States v. International Building Co., 345 U.S. 502 (1953). In that case, deficiencies were assessed [*7] against the taxpayer for the years 1933, 1938, and 1939, based on the Commissioner's determination that respondent had claimed an excessive value for depreciation of property. Respondent petitioned for review with the Tax Court. In bankruptcy proceedings, the Collector filed proof of claim for the deficiencies which was later withdrawn under a stipulation that the withdrawal did not ". . . constitute a determination of . . . any taxes with respect to any other year . . . ."
Subsequently, the Commissioner and respondent filed stipulations in the Tax Court proceeding that there was no deficiency for 1933, 1938, and 1939, and the Tax Court entered a decision to that effect.
The Commissioner, in 1948, assessed deficiencies for 1943, 1944, and 1945 on the same grounds. Respondent paid the deficiencies and then sued to recover on the grounds that the correctness of the basis of depreciation was res judicata by virture of the decision of the Tax Court.
The Court said at 345 U.S. 502, 504-506:
The Tax Court, however, held no hearings; no stipulations of fact were entered into; no briefs were filed or argument had.
There is no showing . . . that the issues raised by the pleadings were [*8] submitted to the Tax Court for determination or determined by that court.
As the case reaches us, we are unable to tell whether the agreement of the parties was based on the merits or on some collateral consideration.
Certainly, the judgments entered are res judicata of the tax claims for the years 1933, 1938, and 1939, whether or not the basis of the agreements on which they rest reached the merits. But unless we can say that they were an adjudication of the merits, the doctrine of estoppel by judgment [collateral estoppel] would serve an unjust cause: it would become a device by which a decision not shown to be on the merits would forever foreclose inquiry into the merits (brackets added).
This case also supports our conclusion that the final order of the Commission as to the original citation and notification of proposed penalty will not be disturbed. Even if, in a failure to abate proceeding, the respondent were to prevail by proving that there was no violation originally, as it has done as to item 2 herein, we would not go behind that final order. To vacate the original citation would be to entertain a contest of the first citation outside the time allowed [*9] in section 10(a) of the Act.
Accordingly, it is ORDERED that the Judge's decision and order are affirmed in all respects.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
MORAN, CHAIRMAN, concurring in part and dissenting in part: I concur with the Commission's disposition of items 1, 2 and 3 of the citation. I dissent from the disposition of item 4 of the September citation, which alleged a failure to comply with 29 C.F.R. § 1910.22(a). Although this provision contains three subparts n2 the citation did not specify which of them respondent allegedly violated. Respondent contends this to be violative of section 9(a) which requires that a citation must "describe with particularity the nature of the violation including a reference to the provision of the Act, standard, rule, regulation or order alleged to have been violated."
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n2 Sec. 1910.22(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition. (2) The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition. Where wet processes are used, drainage shall be maintained, and false floors, platforms, mats, or other dry standing places should be provided where practicable. (3) To facilitate cleaning, every floor, working place, and passageway shall be kept free from protruding nails, splinters, holes, or loose boards.
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It was admitted by complainant that respondent had only failed to comply with one or possibly two of such subparts. The Judge held, however, that such an omission was not a denial of due process because respondent could have contacted complainant's office for a reasonable extension of time to clarify and correct the alleged deficiency. This shift in responsibilities is improper and not required. It is the duty of the complainant to adequately prepare any citation. It is not the duty of a respondent to pursue the complainant to discover what the citation means.
The Act requires that the citation
include a reference to the . . . standard . . . alleged to have been violated. n3
This means a specific and accurate reference. A reference which includes a standard alleged to have been violated, together with one or more standards not alleged to have been violated, does not comply with this statutory requirement.
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n3 29 U.S.C. § 658(a).
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[The Judge's decision referred to herein follows.]
DUVALL, JUDGE OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as "the Act") to review a citation and proposed penalties issued by the Secretary of Labor (hereinafter referred to as "Complainant") pursuant to Sections 9(a), 10(a), and 17(c) and (d) of the Act. The Citation, issued on September 20, 1971, alleges that York Metal Finishing Company (hereinafter referred to as "Respondent"), an employer engaged in electroplating, violated four occupational safety and health standards promulgated pursuant to Section 6 of the Act; namely, 29 C.F.R. 1910.157(a)(2)(3); 1910.157(d)(4)(iii); 1910.312(f)(1); and 1910.22(a), on the basis of an inspection conducted on September 16, 1971, of a workplace under Respondent's ownership, operation, or control located at 2348 North Second Street, Philadelphia, Pennsylvania. Notification of proposed penalty was issued by the Complainant, also on September 20, 1971, proposing total penalties of $59.00 for the foregoing alleged non-serious violations. On November 17, 1971, [*12] a notification of failure to correct violation and of proposed additional penalty (totaling $1,090.00, which amount was subsequently amended to read $1,058.00) was issued by the Complainant against the Respondent, based on a reinspection of Respondent's workplace conducted by Complainant on November 12, 1971. On November 30, 1971, the Respondent filed notice of contest respecting the proposed additional penalty of $1,090.00 ($1,058.00).
Pursuant to Section 10(c) of the Act, this case was referred to the Commission on January 11, 1972, and assigned to the undersigned Judge for hearing in accordance with Section 12(e) of the Act. After due notice, a hearing in the case was held on February 24, 1972, at Philadelphia, Pennsylvania, with both parties appearing and represented by counsel. No affected employees nor any representative of such employees asserted party status before, at or subsequent to the bearing.
This case arises under Section 5(a)(2) of the Act which provides that each employer (meaning a person engaged in a business affecting commerce who has employees) shall comply with occupational safety and health standards promulgated under the Act. The four occupational safety [*13] and health standards cited in this case were promulgated by the Secretary of Labor pursuant to Section 6 of the Act by publication of such standards in the Federal Register, 36 C.F.R. 10472, et seq. (May 29, 1971).
Section 9(a) of the Act provides in pertinent part that when the Secretary of Labor or his authorized representative believes that an employer has violated any standard or regulation promulgated pursuant to the Act "he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated . . . ."
Section 10(a) of the Act provides in pertinent part that the Secretary shall give the employer appropriate notice within a reasonable time of the penalty, if any, proposed to be assessed under Section 17 of the Act. It further provides that "if, within fifteen working days from 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, . . . the citation and [*14] the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any other court or agency." Section 10(b) makes provision for similar notice and fifteen day rule in cases where the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction, and issues to the employer a notification of failure to correct violation and of proposed additional penalty.
Section 17 of the Act provides in pertinent part as follows:
(c) Any employer who has received a citation for a violation of the requirements of section 5 of this Act of any standard, rule or order promulgated pursuant to section 6 of this Act, or of regulations prescribed pursuant to the Act, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.
(d) Any employer who fails to correct a violation for which a citation has been issued under section 9(a) within the period permitted for its correction . . ., may be assessed a civil penalty of not more than $1,000 for each day during which [*15] such failure or violation continues.
(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.
The occupational safety and health standards cited herein provide as follows:
1. 29 C.F.R. 1910.157(a)
(2) Location. Extinguishers shall be conspicuously located where they will be readily accessible and immediately available in the event of fire. They shall be located along normal paths of travel.
(3) Marking of location, Extinguishers shall not be obstructed or obscured from view. In large rooms, and in certain locations where visual obstruction cannot be completely avoided, means shall be provided to indicate the location and intended use of extinguishers conspicuously.
2. 29 C.F.R. 1910.157(d)(4)
(iii) At intervals not exceeding those specified in Table L-3 and subdivisions (iv) through (vi) of this subparagraph, extinguishers shall be hydrostatically tested. The first hydrostatic retest may be conducted [*16] between the fifth and sixth years for those with a designated test interval of five years.
3. 29 C.F.R. 1910.312(f)
(1) Location. Fuses and circuit breakers shall be so located or shielded that persons will not be burned or otherwise injured by their operation.
4. 29 C.F.R. 1910.22
(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.
(2) The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition. Where wet processes are used, drainage shall be maintained, and false floors, platforms, mats, or other dry standing places should be provided where practicable.
(3) To facilitate cleaning, every floor, working place, and passageway shall be kept free from protruding nails, splinters, holes, or loose boards.
Respondent having not contested Complainant's citation or proposed penalty issued on September 20, 1971, within the statutory 15 day period specified in Section 10(a) of the Act, the issues here are (1) whether the notification of failure to correct violations and of proposed additional penalties, issued to the Respondent on [*17] November 17, 1971, was proper and reasonable under the applicable law and regulations, and (2) whether items 1 through 4 of the violations charged in the citation were stated to the Respondent with sufficient specificity to constitute adequate notice (Tr. 25).
FINDINGS OF FACT
The record as a whole contains reliable, probative and substantial evidence to support the following findings of fact:
1. Respondent is a Pennsylvania corporation, having its principal office and workplace at 2348 North Second Street, Philadelphia, Pennsylvania (Tr. 11-12).
2. Respondent is engaged in the business of alkaline cleaning, acid dip and plating of diverse metal products, including tools, some of which are shipped in interstate commerce (Tr. 12).
3. Respondent employed approximately 22 employees during 1971 and, in 1970, had a net worth of approximately $10,000 (Tr. 13).
4. Respondent has no previous history of violations under the Act (Tr. 13) and the alleged violations herein did not contribute to or result in injury to any of Respondent's employees or to other persons (Tr. 12).
5. On September 16, 1971, Mr. Samuel Craig Leedom, safety and health compliance officer with the [*18] Occupational Safety and Health Administration, U.S. Department of Labor, conducted an inspection of Respondent's workplace (Tr. 27-28). During the course of his inspection the compliance officer was accompanied by Mr. Edwin A. Walter, Respondent's general manager, and Mr. Parker, an employee of Respondent (Tr. 117-118).
6. Subsequently, on September 20, 1971, Complainant issued a citation and notification of proposed penalty charging Respondent with violations of the following standards under the Occupational Safety and Health Act of 1970, as its workplace located at 2348 North Second Street, Philadelphia, Pennsylvania, with prescribed dates for correction of said violations and the proposed penalties:
(1) 29 C.F.R. 1910.157(a)(2)(3) -- Not all fire extinguishers were readily accessible, nor were locations conspicuously marked -- September 27, 1971 -- $17.00;
(2) 29 C.F.R. 1910.157(d)(4)(iii) -- There was no evidence that fire extinguishers had been hydrostatically tested within the last five years -- October 20, 1971 -- $13.00;
(3) 29 C.F.R. 1910,312(f)(1) -- Circuit breaker boxes had no front covers -- October 4, 1971 -- $13.00;
(4) 29 C.F.R. 1910.22(a) -- The place of employment [*19] was not being kept in a clean, orderly, sanitary condition -- October 20, 1971 -- $16.00 (Complainant's Exhibits P-1, 2).
7. The citation and notification of proposed penalty issued by the Complainant on September 20, 1971, were not contested within 15 working days after receipt and the proposed penalty for those violations (totaling $59.00) was paid by Respondent (Stipulation, Tr. 15; Complainant's Exhibit P-6).
8. The stated workplace and the objects and equipment which were the subjects of the aforestated citation were on September 16, 1971, and at all times material hereto owned by and subject to the control of Respondent (Stipulation, Tr. 12; Complainant's Exhibit P-6).
9. The citation and notification of proposed penalty issued September 20, 1971, were received by the Respondent on or about September 21, 1971 (Stipulation, Tr. 13; Complainant's Exhibit P-6).
10. The citation issued on September 20, 1971, and the notice of hearing (dated January 25, 1971) were posted by Respondent on the employees' bulletin board near the time clock (Stipulation, Tr. 13; Complainant's Exhibit P-6).
11. A reinspection of Respondent's workplace was conducted by OSHA safety and [*20] health compliance officer Samuel Craig Leedom on November 12, 1971 (Tr. 29).
12. On November 17, 1971, Complainant issued to Respondent a notification of failure to correct violation and of proposed additional penalty incorporating by reference and respecting the same four violations contained in the citation issued to Respondent on September 20, 1971. At the hearing, this notification was amended with respect to the 50 percent adjustment factors for each item of violation cited therein, making the proposed total additional penalty for failure to abate $1,058.00, instead of the previously shown total of $1,090.00 (Complainant's Exhibit P-3, Tr. 90).
13. The notification of proposed additional penalties issued November 17, 1971, was received by Respondent on or about November 18, 1971 (Stipulation, Tr. 13; Complainant's Exhibit P-6).
14. Item number 1 of the citation referred to a specific occupational and health standard (29 C.F.R. 1910.157(a)(2)(3)) and described the violation as follows: "Not all fire extinguishers were readily accessible, nor were locations conspicuously marked." The description did not specifically locate the extinguishers alleged to be in violation [*21] (Complainant's Exhibit P-1).
15. According to Mr. Leedom, in the course of his inspection on September 16, 1971, he pointed out and discussed with Mr. Walter each of the three extinguishers as shown on the diagram of record (Complainant's Exhibits P-5), which were alleged to be in violation of the standard, item number 1 of the citation (Tr. 30-31, 34). However, Mr. Walter does not remember Mr. Leedom saying anything to him concerning those extinguishers at the time of this inspection (Tr. 120).
16. In the course of his September 16 inspection Mr. Leedom noted a fire extinguisher near the front door of Respondent's workplace which was mounted on the wall of the office and more or less blocked by a large scale, with no sign to indicate its location (Tr. 28-29). This extinguisher is indicated as #1 on the diagram of record (Complainant's Exhibit P-5).
17. In his reinspection of Respondent's workplace conducted on November 12, 1971, not accompanied by any representative of Respondent, Mr. Leedom noted the same extinguisher shown as #1 on the diagram of record still in back of the scale, more or less, with no sign indicating its location, although the height of the extinguisher [*22] may have been lower than the five feet (at the top) noted in the prior inspection (Tr. 29-30).
18. Mr. Leedom determined that extinguisher #1 was not conspicuously located where it would be readily accessible within the meaning of the standard alleged violated in item number 1 of the citation mostly because it was blocked by the scale without any sign indicating its location and was hard to get at (Tr. 34, 44).
19. In the course of his September 16 inspection Mr. Leedom noted a second fire extinguisher near the electrical control panel on the main floor of Respondent's workplace which, while accessible, was not conspicuously marked as to location or intended use (Tr. 30). This extinguisher is indicated as #2 on the diagram of record (Complainant's Exhibit P-5).
20. In his reinspection of Respondent's workplace conducted on November 12, 1971, Mr. Leedom noted that the same extinguisher shown as #2 on the diagram of record was still no more accessible or marked than it was at the time of his first inspection (Tr. 31).
21. Extinguisher #2 was mounted on the end of a partition that projected into a room approximately 40 feet by 50 feet as shown on the diagram of record. [*23] This extinguisher was visible from all areas of the main room outside of the office, but not from the northwest tank room (20 feet by 52 feet, approximately) that was separated from the electrical equipment area by another partition, parallel to the partition on which extinguisher #2 was mounted (Tr. 34-37, 42, 44-50; Complainant's Exhibit P-5).
22. Extinguisher #2 was red in color, but dirty and not highly visible (Tr. 50, 55, 37).
23. In his September 16 inspection Mr. Leedom reported a third fire extinguisher located on the second floor in a caged and locked tool room (Tr. 30). This extinguisher is indicated as #3 on the diagram of record (Complainant's Exhibit P-5).
24. In his November 12 reinspection of Respondent's workplace, Mr. Leedom reported no change in the location or marking of extinguisher #3. However, Mr. Walter, Respondent's general manager, testified that on all pertinent dates extinguisher #3 was outside the locked maintenance (tool) room and two other extinguishers were mounted and accessible on the second floor (Tr. 119-120). Mr. Leedom stated on cross examination that if extinguisher #3 were in fact located outside the tool room at the pertinent [*24] time (a possibility he admitted), it would at least have been accessible near the head of the stairs if someone knew it was there (Tr. 38).
25. Six extinguisher signs were purchased by Respondent on or about November 10, 1971 (Respondent's Exhibits R-5, 8; Tr. 129, 134), and Mr. Leedom saw these signs, unposted, on November 12, 1971 (Tr. 83).
26. In his September 16 inspection of Respondent's workplace Mr. Leedom reported that extinguishers #1, #2, and #3 appeared to be more than five years old and none had a tag or decal indicating that they had been hydrostatically tested (Tr. 56). In his November 12 reinspection, Mr. Leedom reported that he found no evidence of any abatement of this condition (Tr. 57).
27. Item number 2 of the citation referred to occupational safety and health standard 29 C.F.R. 1910.157(d)(4)(iii) and described the violation as follows: "There was no evidence that fire extinguishers had been hydrostatically tested within the last five years." The description did not specifically locate the extinguishers alleged to be in violation (Complainant's Exhibit P-1).
28. Respondent and Complainant stipulated that extinguishers #1, #2, and #3 are of the type requiring [*25] hydrostatic testing at five year intervals (Tr. 62).
29. Mr. Walter testified that on or about October 11, 1971, Respondent had all its extinguishers, including extinguishers #1, #2, and #3 checked and recharged by Fire-Chem Manufacturing Co., Inc., and they were determined to be within the five year period for hydrostatic testing (Tr. 125-126, 129; Respondent's Exhibit R-8). Mr. Walter also testified that the cited extinguishers were not over five years old (Tr. 126). Mr. Leedom testified that this was possible since he had not noted the manufacturing stamp on the extinguishers (Tr. 57-58, 60-61).
30. On September 16, 1971, the cited extinguishers had a green tag affixed and on November 12, 1971, they had a yellow tag affixed, both tags indicating the date and completion of the monthly inspection. No separate metal tags or decals were affixed showing the date of hydrostatic testing but each of the cited extinguishers had the manufactured date stamped into the body of the extinguisher where it curves into the neck (Tr. 125, 140).
31. In his September 16 inspection of Respondent's workplace Mr. Leedom reported that circuit breaker boxes, colored green and marked [*26] #1 and #2 on the diagram of record (Respondent's Exhibit P-5) had no covers (Tr. 63-64). This same condition was reported on his November 12 reinspection (Tr. 63).
32. Item number 3 of the citation referred to occupational safety and health standard 29 C.F.R. 1910.312(f)(1) and described the violation as follows: "Circuit breaker boxes had no front covers." The description did not specifically locate the circuit breaker boxes alleged to be in violation (Complainant's Exhibit P-1).
33. Mr. Walter testified that during the September 16 inspection he pointed out to Mr. Leedom that the covers were off two circuit breaker boxes, namely, #2 circuit breaker box as shown on the diagram of record (Respondent's Exhibit P-5) and another circuit breaker box located on the rear wall of Respondent's building, which is not shown on the diagram (Tr. 118), because Respondent was trying to locate the cause of a burntout fuse problem, which had been traced to circuit breaker box #2 just prior to Mr. Leedom's inspection (Tr. 118-119). Mr. Walter further testified that the cover of the cited circuit breaker box #1 had never been uncovered (Tr. 142) and that the covers of the two uncovered [*27] boxes had been replaced the afternoon of the day of the inspection on September 16 (Tr. 125), and were definitely on at the time of Mr. Leedom's November 12 reinspection (Tr. 142).
34. In his September 16 inspection of Respondent's workplace Mr. Leedom reported a variety of containers of tools and metal parts, including boxes and barrels or drums, located in the general area of the workplace in a manner that was not orderly and neat, which provided no direct passageway through the area and which included between one-eighth to one-quarter inch of water on the floor (which was uneven) in the vicinity of the drain trough as shown on the diagram (Complainant's Exhibit P-5; Tr. 66-67, 71-72, 78) and this general condition was again reported by Mr. Leedom in his November reinspection (Tr. 68, 77-78).
35. Item number 4 of the citation referred to occupational safety and health standard 29 C.F.R. 1910.22(a) and described the violation as follows: "The place of employment was not being kept in a clean, orderly, sanitary condition."
36. In the course of his September 16 inspection Mr. Leedom discussed with or pointed out to Mr. Walter the housekeeping conditions stated in Finding 34 above [*28] (Tr. 67-68, 123-124).
37. A tremendous quantity of water is used in Respondent's electroplating process, probably 95% of which involves rinsing with water (Tr. 116). Respondent has been able to eliminate all spillage of water incident to this process, except in the operation of transferring parts being plated from the water tank to the centrifugal dryer. Respondent's employees are supplied with boots, gloves and aprons which are worn as required (Tr. 116).
38. While there are designated floor areas for placement of unfinished and finished palletized work (as shown as boxes just below the drain trough and tanks to the right thereof on the diagram), this is a mobile storage area which involves a constant removal process comparable to a production line (Complainant's Exhibit P-5, Tr. 152-154).
39. At the time of the September 16 inspection, Respondent had an employee doing clean-up work on a part-time basis, whereas, beginning the first week of October, Respondent assigned an employee full time to clean up the workplace (Tr. 134). Sometime after November 12, 1971, Respondent installed a four inch thick, two and a half foot wide raised walkway running from the entrance [*29] to beyond the electrical equipment (Tr. 135).
40. On or about November 23, 1971, Mr. Walter had a conference with Mr. H. Donald Allendorf and other OSHA representatives, at the former's request because Mr. Walter felt that Respondent had abated all the violations of occupational safety and health standards for which it had been cited and wished to know specifically in what respects, if any, Respondent's compliance was still deficient (Tr. 130, 136).
41. On the basis of a conference with Mr. Leedom, Mr. Allendorf, the Acting Area Director of OSHA, U.S. Department of Labor, at the time, determined that Respondent had failed to abate the violations contained in the Citation and, consistent with the OSHA compliance manual, proposed additional penalties for such failure to abate as follows:
(Complainant's Exh. P-3, as amended; Tr. 89-90).
42. Although the OSHA compliance manual in effect at the time required [*30] that no consideration be given to the factors of gravity of violation, history of violations, size, and good faith of the Respondent in computing proposed additional penalties in cases of failure to abate, the proposed penalty in Citation item 4 was increased by Mr. Allendorf relatively higher than the other items because Mr. Leedom had found the housekeeping condition as bad or worse on his November 12 reinspection as to this September 16 inspection. Similarly, because of the size of Respondent company all the penalties were adjusted downward from a possible total penalty of $6,034 to a proposed total penalty of $1,058. The current OSHA compliance manual (effective December 13, 1971) also precludes consideration of the aforestated factors in cases of failure to abate and, furthermore, imposes a minimum daily proposed penalty of $100 per item for failure to abate (Tr. 91-95).
Both parties in this matter have raised the evidentiary question of the extent to which the final order of the Commission (effective on or about October 13, 1971) affirming the citation and proposed penalties issued by the Complainant on September 20, 1971, permits, precludes, or renders unnecessary [*31] the admission of evidence in this proceeding respecting: (1) the legal sufficiency of the notice contained in the notification of additional penalty for failure to abate violations, including the specificity of the description of the violations in the citation; and (2) the existence on the reinspection date (November 12, 1971) of the alleged continuing violations cited and described in the original citation, which was the subject of the Commission's final order (Tr. 24, 48, 58-60; Complainant's Memorandum 2-4; Respondent's Brief 18).
In effect, Complainant seems to be contending that because the alleged violations contained in the notification of additional penalties for failure to abate, issued November 17, 1971, were contained and described in the citation issued on September 20, 1971, which became a final order of the Commission on or about October 13, 1971, and, thereby, "not subject to review by any Court or Agency," no evidence of procedural or substantive deficiencies of the citation is admissible at a subsequent hearing on the additional penalties and Complainant's burden of proof of continuing violations on the reinspection date is limited to showing that the Respondent [*32] did nothing after the initial inspection date of abate the cited violations, i.e., that the conditions in existence at the time of the first inspection, absolutely established by the final order of the Commission, continued unchanged at the time of the reinspection, absent any evidence to the contrary. Complainant bottoms these contentions on the doctrines of res judicata and collateral estoppel and Congressional intent in enacting Section 10(a) of the Act, with citations of legal authority.
Respondent, on the other hand, seems to be contending that even though the notification of additional penalties for failure to abate incorporates by reference and relies upon the original citation, including the identical description of standard violations contained therein, it (the notification) is in the nature of a new or different cause of action which requires proof that the same violations continued in existence on November 12, 1971, and renders inapplicable the doctrines of collateral estoppel and res judicata. If sustained, this contention would permit a timely attack on the legal sufficiency of the notice contained in the citation to the extent it is incorporated in the notification [*33] of additional penalties and preclude any substantial easing of Complainant's burden of proof respecting the existence of the alleged violations on the reinspection date (and thus beyond the abatement date specified in the citation). Respondent goes even further and alleges that because the citation provides insufficient notice (vague and unspecific description of violations) the citation cannot be deemed a final order of the Commission as a matter of law (Respondent's Brief 18).
The doctrine of collateral estoppel is generally understood to preclude relitigation of an issue resolved by final judgment or order in a prior legal action. Laughlin v. U.S., 344 F.2d 187, 189 (D.C. Cir., 1965). It is believed that this is the meaning intended by the legislative conferees when they expressed their understanding that the principle of collateral estoppel would apply in any enforcement proceedings under the Act. Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess., Senate Committee on Labor and Public Welfare 1186 (June 1971). However, the normal rule is that a prior judgment need be given no conclusive effect at all unless it establishes [*34] one of the ultimate facts in issue in the subsequent proceeding; so far as merely evidentiary or "mediate" facts are concerned, the doctrine of collateral estoppel is inoperative. Laughlin v. U.S., supra at 191, citing Yates v. U.S., 354 U.S. 298, 338 (1957) and The Evergreens v. Nunan 141 F.2d 927, 928 (2d Cir.), cert. den'd, 323 U.S. 720 (1944). "Ultimate facts" are defined in The Evergreens case as "those which the law makes the occasion for imposing its sanctions" 141 F.2d, 927, 928. Because of the intimate and necessary connection between the sufficiency of the notice and description of the alleged violations contained in the citation, on the one hand, and, on the other hand, the actual existence of the alleged violations which are the subject of the Commission's final order, it is difficult, analytically, to consider the description of the violations in the citation as other than an "ultimate fact" or an inherent part of an ultimate fact as defined above.
However, that ultimate fact does not stand alone but in a specific time context for the purpose of determining the content and scope of the final judgment in the prior legal action. [*35] Thus, Respondent's challenge here to the sufficiency of the description of the violations contained in the citation incorporated by reference in the notification of failure to correct violation and of proposed additional penalty as of November 12, 1971, cannot be deemed a relitigation of the same issue resolved by the Commission's prior final order since the pertinent issue which was the subject of that order was different in that it related to description of the violations in the citation as of September 16, 1971. This time differential is significant since, under a reasonable interpretation (hereinafter discussed) of the statutory requirement that violations be stated with "particularity" in the citation (Section 9(a) of the Act), in determining the sufficiency of the notice contained in the citation, including the specificity of the description of the alleged violations cited, consideration must be given not only to the specific language of the citation, but also to other relevant circumstances, such as the actions taken by the employer to abate the alleged violations, which often, and in this case did occur after the initial inspection and the issuance of the citation. [*36]
As for the doctrine of res judicata, it is recognized that this doctrine applies to repetitious suits involving the same cause of action.
It rests upon consideration of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose" . . . . The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. St. Louis Typographical Union No. 8 v. Herald Company, 402 F.2d 553, 555 (1968) (additional citations omitted).
Indeed, res judicata applies not only to points on which the court was actually required to pronounce judgment, but, as well, to every point which properly belonged to the subject of the controversy and which [*37] the parties, in the exercise of reasonable diligence, might have brought forward at the time. Woods v. Cannaday, 158 F.2d 185 (D.C. Cir., 1946). Furthermore, a final judgment entered after default (comparable to a final order of the Commission under the 15 day rule in uncontested cases) is as conclusive an adjudication between the parties of whatever is essential to support the judgment or order, as one entered after answer and contest. Last Chance Mining Co. v. Tyler Mining Co., 157 U.S. 683, 691 (1895); Woods v. Cannaday, 158 F.2d. 185 (D.C. Cir., 1947).
Applying the doctrines of collateral estoppel and res judicata to the facts of the present case, it seems clear that under the circumstances herein, including the absence of any proper motion or petition by Respondent under Rule 60 of the Federal Rules of Civil Procedure (to seek relief from a final judgment or order), the Commission is precluded from reviewing its final order, including the citation to the extent it is essential to support the final order. But these doctrines, as discussed above, do not, under the circumstances herein, preclude the Commission from reviewing the sufficiency [*38] of the citation to give adequate notice to the Respondent insofar as the citation relates to or supports the notification of additional penalties for failure to abate the violations.
Turning to the burden of proof question, it seems clear under the doctrines of res judicata and collateral estoppel that since the citation issued September 20, 1971, described only the alleged violations in existence on September 16, 1971, the final order of which that citation was the subject cannot reasonably be considered to have adjudicated the existence or non-existence of such alleged violations at any time (even one day) after September 16, 1971. For this basic reason, namely, that the notification of additional penalties was in the nature of a different cause of action by reason of an essential time factor which was not an ultimate fact adjudicated in the final order, the doctrines of res judicata and collateral estoppel cannot operate to, in effect, shift or relieve Complainant of its burden of proof of a continuing violation. This conclusion seems most consistent with the Commission's Rule 2200.33 which, with one exception not here pertinent, provides that the burden of proof shall be on [*39] the Secretary in all proceedings to sustain the assertions contained in his citation, notification of proposed penalty, and notification of failure to correct a violation. (emphasis added)
As a practical matter, it is difficult to see how Complainant could prove a continuing violation on the reinspection date without introducing substantial evidence to establish the prior existence of the same violation, usually as of the earlier inspection date. Contrary to Complainant's contention, it is possible that the very same conditions described in a citation not subject to review as violations existing on the inspection date could be non-violations on a subsequent date, by reason of a subsequent change in circumstances, such as corrective action taken by the Respondent or the development of intervening factors beyond Respondent's control which might warrant extension of the period of time for abatement. To adopt the position here urged by Complainant would unnecessarily contract the Commission's capability of achieving a just result and assuring substantial justice in every case. See Secretary of Labor v. Nacirema Operating Company, Inc., [*40] 6 (Decision of Commission, February 7 1972); Rules 60-61, Fed. Rules of Civ. Proc. For example, excluding all evidence of deficiencies in a citation (which is the subject of a Commission final order under Section 10(a) of the Act) at a hearing to adjudicate the merits of the notification of additional penalty for failure to abate might tend to preclude introduction of evidence showing non-existence of the alleged violation on the reinspection date (as urged by Complainant in this case with respect to citation item 2 here, relating to hydrostatic testing of extinguishers).
Respecting item number 1 of the citation, Complainant has adduced substantial probative evidence of record to show that fire extinguishers #1 and #2 were in violation of the pertinent cited standard on November 12, 1971, in that extinguisher #1 was not readily accessible and immediately available due to its being at least partially blocked by the platform scale; and the location of extinguisher #2 was not indicated conspicuously, where visual obstruction could not be completely avoided in a large room situation. Such a conclusion respecting extinguisher #1 is most consistent with Mr. Walter's own statement [*41] that the Toledo portable platform scale (2-2 1/2 feet wide by 3 feet deep) was within 1 to 2 feet of the office wall in such a position that standing directly in front of the extinguisher, mounted on the same office wall, one could see only the bottom and top of the extinguisher, with the center portion obscured by the dial of the scale (Tr. 143-145). Although Mr. Walter testified that in his opinion, this extinguisher was readily accessible (Tr. 121, 147), he admitted it would not be readily visible to one entering the front door (Tr. 121, 143). While there was testimony that this extinguisher had been relocated in a lower position on the 2nd Street wall, the evidence does not clearly establish that this occurred on or prior to November 12, 1971 (Tr. 122, 142-143).
As for extinguisher #2, evidence of record establishes that it was located in a large room (50 feet by 40 feet) and in a place where visual obstruction could not be completely avoided from a position within an adjacent partitioned area (Complainant's Exhibit P-5). In the event of a fire in the electrical equipment area, an employee in the northwest area of the room (52 feet by 20 feet and separated by a partition from [*42] the electrical equipment area) would not be able to determine visually where the most readily accessible extinguisher was located since its location was not indicated conspicuously (Tr. 47, 49-50). Also, Mr. Leedom's unrebutted testimony was that this extinguisher was not bright red, but dirty (Tr. 37). While it was suggested by Respondent's attorney that there was other extinguishers on the first floor besides the ones noted in the diagram, this suggestion was not evidentially established (Tr. 45, 48). Nor does the record show that Respondent's employees were instructed as to the location of the fire extinguishers (Tr. 37). The fact that unposted extinguisher signs were observed by Mr. Leedom at the workplace on November 12, while perhaps showing some degree of good faith intent to comply with the pertinent cited standard, did not constitute an abatement of the cited violation (Tr. 82-83).
As for extinguisher #3, the evidential record fails to establish that this extinguisher, on the second floor, was not readily accessible or required conspicuous marking as to location since it was located outside of the locked maintenance room near the head of the steps to the second [*43] floor (Tr. 119-120).
Respecting item number 2 of the citation, there are no findings of fact to support this alleged violation since the evidential record establishes that the cited fire extinguishers were within a designated test interval of five years (from the date of manufacturer) and therefore, were not required to be hydrostatically tested as on November 12, 1971 (Tr. 62, 126, 129, 139-140). Mr. Leedom apparently relied on the general appearance of the extinguishers, without reading the manufacturer's stamp thereon, in determining this alleged violation (Tr. 56, 58).
Respecting item number 3 of the citation, there is considerable conflict in the evidence. Mr. Leedom testified that no covers were on the circuit breaker boxes located at #1 and #2 as shown on the diagram of record (Complainant's Exhibit P-5) on both the inspection and reinspection dates (Tr. 62-63). Mr. Walter testified that on the inspection date the covers were off circuit breaker box #2 and another circuit breaker box not shown on the diagram (not box #1) because at the very time Respondent was trying to locate a short circuit in the electrical system (Tr. 118-119, 141-142); that these covers were replaced [*44] the very afternoon that Mr. Leedom was there, i.e., September 16, 1971 (Tr. 125); and that on November 12, 1971, the covers were on, not off (Tr. 142). On balance, the testimony of Mr. Walter concerning citation item number 3 appears more credible because of his emphatic recollection of the status of the circuit breaker boxes on the reinspection date and at the time of the initial inspection when he himself was working on the boxes. While Mr. Walter was not on the walkaround reinspection with Mr. Leedom on November 12, the facts that the latter did not correctly recollect the identity of the third person (Mr. Parker) on the initial walkaround inspection (Tr. 28, 117-118, 137), and made an inprecise and inaccurate determination of the age of the fire extinguishers cited in citation item number 2 (relying on his own unverified observations) suggests the probability that Mr. Leedom's observation of the circuit breaker boxes on reinspection may have been inaccurate. This probability is strengthened by Mr. Walter's clear statement that the cover had never been off box #1 and that, in his view, Mr. Leedom had confused this box with another box not shown on the diagram.
Respecting [*45] item number 4 of the citation, the so-called "housekeeping" violation, Mr. Leedom testified that this violation consisted in failure to maintain the place of employment and passageways in a clean, orderly and sanitary condition due to containers of tools and parts sitting around at random throughout a large part of the area, including apparent passageways, and a wet and slippery floor caused by water overflowing from tanks and/or drainage trough to a depth of 1/8 to 1/4 inch in the trough area on both the inspection and reinspection dates (Tr. 66-68, 71-72, 77-78).
Mr. Walter testified that he had agreed with Mr. Leedom at the initial inspection that the housekeeping left something to be desired (Tr. 124); that by way of corrective action an employee was assigned full time to clean up duties beginning the first week in October (he previously had performed such duties a couple of hours each day) (Tr. 134); that much of the area here involved is a mobile storage area with a forklift moving pallets of work in and out of areas designated for finished or unfinished work, as appropriate, on a production line-like basis all day long every day (Tr. 152-154); and that there were [*46] aisleways for walking through the area on the inspection date (Tr. 152), which walkways, subsequent to the reinspection date, were made more pronounced by installation of raised walkways through the area to assure a dry walkway (Tr. 135). The diagram of record appears to show a rough passageway on the first floor level from the entrance to the back (west) end of the building, the same route along which extinguishers #1 and #2 were mounted (Complainant's Exhibit P-5).
As for the wet condition of the workplace, it seems clear that Respondent's business necessarily involved wet processes. But it is equally clear that on November 12 (as on September 16) adequate drainage was not maintained and platforms for dry standing or walking (while subsequently installed) were not in place. Compliance with this standard is required even though Respondent furnished its employees with suitable protective footgear.
The fact that the citation cited the applicable standard (29 C.F.R. 1910.22(a)), without specifying which of its three numbered sub-parts were applicable was not, under the circumstances of this case, such an omission as to substantially confuse or render uninformed the Respondent concerning [*47] the cited conditions requiring correction. Certainly this substantial notice of alleged violations can not, as a matter of law, be deemed a denial of procedural due process guaranteed by the 5th Amendment of the U.S. Constitution. Indeed any time between issuance of the citation (September 20, 1971) and issuance of the notification of additional penalty for failure to abate (November 17, 1971), Respondent could have contacted Complainant's regional office for a reasonable extension of time to clarify and correct alleged violations, which probably would have been granted (Tr. 106-107). Instead, Mr. Walter, as Respondent's general manager, admitted that he did not read the whole citation when he received it, although he should have read it (Tr. 124-125), and did not contact Complainant's regional office until after receipt of the notification of additional penalties for failure to abate (Tr. 130).
Respecting the reasonableness of the proposed additional penalties for failure to abate the alleged violations, Mr. Allendorf, the Acting Area Director of OSHA, testified that two of the adjustment factors provided in Section 17(j) of the Act (namely, gravity of the violation [*48] and size of Respondent's business) had been considered in determining the amount of the proposed additional penalty (Tr. 93). The initial unadjusted daily penalty (gravity factor) for citation item number 4 was adjusted upward because the inspector reported the alleged housekeeping violation to be as bad if not worse on reinspection as it was on his initial inspection (Tr. 93). All the proposed additional penalties were scaled down because of the relatively small size of Respondent's business (22 employees, approximately $10,000 net worth in 1971) (Tr. 91). The adjustment factors of Respondent's history of past violations and good faith were not taken into consideration essentially because, in accordance with the OSHA compliance manual, the failure to abate means that the employer has ignored the citation and, therefore, has, in effect, forfeited his right to such consideration (Tr. 102).
In determining the initial penalties, the good faith factor was taken into consideration on the basis of Mr. Leedom's OSHA form 1-B report, filled out during the opening and closing conferences, which indicated that Respondent had some supervisory and on-the-job safety training, accident [*49] investigation and corrective action program, and cooperative management interest, with a record of five accidents, namely due to carelessness, during 1971 (Tr. 103-104).
At the hearing (Tr. 106) and in its brief (RB 19), Respondent urged that Mr. Allendorf should have taken good faith into consideration because of Respondent's alleged efforts to correct the violations prior to reinspection, to wit, purchasing five extinguisher location signs with respect to citation item number 1, recharging and rechecking all extinguishers with respect to citation item number 2, replacing circuit breaker box covers with respect to citation item number 3, and assigning an employee to full-time cleanup duties with respect to citation item number 4. A preponderance of the evidence of record indicates that Respondent's good faith efforts were effective in correcting prior to reinspection the violations cited in item numbers 2 and 3, and partially corrective of the violation cited in item number 4. On this basis some good faith consideration would appear to be not unreasonable in determining the additional penalties to be assessed.
Respondent suggests that its corrective actions would have been more [*50] complete and effective had the notice of alleged violations (the citation) been more specific, particularly with respect to item numbers 1 and 4 (Tr. 97-99, 135-136). Under the Section 9(a) requirement that each violation be described with "particularity" in the citation, the degree of particularity reasonably necessary to satisfy this requirement may vary depending on the circumstances of each case. The test is whether the violation as cited in the citation is sufficiently particular or specific to reasonably inform a prudent employer of the condition or equipment which is to be corrected, taking into consideration all the relevant circumstances, including the statements made to the employer by the inspector at the opening and closing conferences and during the walk-around inspection, the nature and extent of the cited or similar conditions and equipment existing in the workplace, and the corrective action actually taken by the employer subsequent to the citation.
In the instant case, citation item number 1, besides citing the standard allegedly violated, described the alleged violation as follows: "Not all fire extinguishers were readily accessible nor were locations [*51] conspicuously marked." While greater particularity would have been achieved had the citation specified the exact identity and location of the particular extinguishers cited, the record also indicates that the extinguishers cited were specifically discussed with or pointed out by Mr. Leedom to Mr. Walter and/or Mr. Yerger on the Walk around inspection or during the opening or closing conferences on September 16 and again to Mr. Yerger on November 12, 1971 (Tr. 28-31, 34, 41), although Mr. Walter stated, less credibly I believe, that he recalled no such discussion (Tr. 120, 123, 131-132). In addition, Mr. Leedom testified that on September 16, 1971, he left with Mr. Walter an informal list of violations, but Mr. Walter stated that he never received such a list prior to the citation, which citation Respondent received on or about September 21, 1971 (Tr. 39, 139, 13). It also appears from the record that the two extinguishers cited on the first floor of the workplace were the only extinguishers on the floor, (Respondent's counsel referred to, but did not establish one other extinguisher (Tr. 39)); the other cited extinguisher was one of three on the second floor (Complainant's Exhibit [*52] No. P-5, Tr. 120). The record further shows that Mr. Walter sufficiently understood the violation alleged in item number 1 to move extinguisher #1 apparently just after the reinspection date (Tr. 142-143), and to purchase extinguisher location signs just prior to reinspection (Tr. 83, 120-121).
With respect to citation item number 4, while the applicable standard did not specify which of the three subparagraphs under 29 C.F.R. 1910.22(a) were involved, as previously discussed above, the general citation clearly included all the subparagraphs which, considered together with Mr. Leedom's discussions on September 16, 1971, with Mr. Walter on this item (Tr. 68) cannot, as a matter of law, be deemed such a lack of notice as to constitute a denial of procedural due process. The record also indicates that besides assigning an employee full-time to housekeeping duties beginning the first week in October 1971 (Tr. 134), Respondent installed a dry walkway in the workplace sometime after the reinspection date (Tr. 135). Thus, it appears that Respondent was informed sufficiently to take belated action to correct the alleged violations cited in items numbers 1 and 4 of the citation. [*53]
Taking the record as a whole, it appears that Respondent's failure to take timely corrective action with respect to citation item numbers 1 and 4 was due more to its own dilatoriness, indifference or neglect than to any lack of specificity in the citation (Tr. 124, 130-132, 134-135). The record herein fails to show that Respondent ever filed a motion for more definite statement to clarify the citation (see Federal Rules of Civil Procedure, Rule 12(e)). Certainly the conference Respondent had with OSHA officials on November 23, 1971, at the former's request, cannot be considered a timely request for clarification of the citation issued on September 20, 1971, which became a final order of the Commission on or about October 13, 1971. However genuine and sincere Respondent's motives may have been in requesting that conference, his action was essentially too little, too late.
Respondent's brief argues that the relative newness of the Act and Respondent's actual unawarness of its existence until the inspection date are factors which should be given weight in considering the sufficiency of the notice of alleged violations and additional penalties therefor in this case. We [*54] take judicial notice of the facts that the Act was enacted on December 29, 1970, and took effect 120 days thereafter on April 28, 1971, approximately 4-1/2 months prior to the inspection conducted on September 16, 1971.
In accordance with Section 6(b)(4) of the Act, the effective date of the specific standards which Respondent herein was cited as having violated was delayed 90 days from May 29, 1971, on which latter date the pertinent standards were published in the Federal Register (Volume 36, Number 105, page 10466, et seq. ). The very purpose of this delay was "to insure that affected employers and employees will be informed of the existence of the standard and of its terms and that employers affected are given an opportunity to familiarize themselves and their employees with the existence of the requirements of the standard." Section 6(b)(4) of the Act; Legislative History of the Occupational Safety and Health Act of 1970, Senate Committee on Labor and Public Welfare Print, 92nd Cong., 1st Sess. 1187-1188 (June 1971). It further appears that the standards here involved are national consensus standards adopted and promulgated previous to the effective date of the Act; Legislative [*55] History of the Occupational Safety and Health Act of 1970, Senate Committee on Labor standards with which industries are generally familiar, and on whose adoption interested and affected persons have already had an opportunity to express their views. Occupational Safety and Health Standards, 29 C.F.R. 1910.1; 36 F.R. 10466-10467 (May 29, 1971); Legislative History of the Act, supar at 1217-1218.
In view of the foregoing considerations, it is concluded that the case of Morgan v. United States, 304 U.S. 1 (1938), cited by Respondent in its brief (pages 8 and 18), is not analogous to the present case, particularly because, as previously discussed, Respondent here had specific and adequate notice of the alleged violations as well as "a reasonable opportunity to know the claims of the opposing party and to meet them," prior to both the final order of the Commission and the subsequent reinspection date.
CONCLUSIONS OF LAW
1. The Respondent is, and at all times material hereto, was engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. The Respondent is, and at all times material hereto, [*56] was subject to the requirements of the Occupational Safety and Health Act and the standards duly promulgated thereunder, including the specific standards cited herein, and the Commission has jurisdiction of the parties and of the subject matter herein under the provisions of Section 10(c) of the Act.
3. The citation, proposed penalty, and notification of failure to correct violation and proposed additional penalty and all pleadings in this matter have been properly served or posted in compliance with the notice and service requirements of the Act, including Section 9, and the pertinent regulations promulgated thereunder.
4. Pursuant to the provisions of Section 10(a) of the Act, the citation and proposed penalty for other than serious violations issued to the Respondent on September 20, 1971, not having been contested within the statutory time allowed, is deemed a final order of the Occupational Safety and Health Review Commission and not subject to review by any court or agency.
5. Giving due consideration to the provisions of Section 17(j) and (d) of the Act,
(A) The additional penalty proposed by the Complainant for failure of the Respondent to abate item no. 1 [*57] of the citation issued on September 20, 1971, is, under the circumstances of this case and for the reasons discussed herein, inappropriate and should be modified.
(B) The additional penalty proposed by the Complainant for failure of the Respondent to abate item nos. 2 and 3 of the citation issued on September 20, 1971, is, under the circumstances of this case and as previously discussed herein, inappropriate and unwarranted, and should be vacated.
(C) The additional penalty proposed by the Complainant for failure of the Respondent to abate item no. 4 of the citation issued on September 20, 1971, is, under the circumstances of this case and as previously discussed herein, inappropriate and should be modified.
Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, including the proposed findings of fact, conclusions of law, and briefs submitted by the parties, and good cause appearing, it is hereby ORDERED, that:
1. The Complainant's proposed additional penalty for failure to abate or correct violation of 29 C.F.R. 1910.157(a)(2), (3) be, and hereby is, modified, and an additional penalty of $100.00 assessed.
2. The Complainant's [*58] proposed additional penalties for failure to abate or correct violations of 29 C.F.R. 1910.157(d)(4)(iii) and 29 C.F.R. 1910.312(f)(1) and all references to these violations in the notification of failure to correct violation and of proposed additional penalty be, and hereby are, vacated.
3. The Complainant's proposed additional penalty for failure to abate or correct violation of 29 C.F.R. 1910.22(a) be, and hereby is, modified, and an additional penalty of $200.00 assessed.
4. The notification of failure to correct violation and of proposed additional penalty, as modified, be, and hereby is, affirmed.