CAM INDUSTRIES, INC.

OSHRC Docket No. 258

Occupational Safety and Health Review Commission

March 4, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision rendered by Judge James A. Cronin. By his decision Judge Cronin determined that Respondent was in non-serious violation of certain safety standards and therefore in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). He assessed civil penalties. Judge Cronin also vacated four alleged violations, and Complainant seeks reversal of that portion of the Judge's decision.

We have reviewed the record and approve of the Judge's disposition of all alleged violations with the exception of one. The Judge's disposition is adopted to the extent that it is consistent with the following.

Respondent was charged by item 6 of Complainant's citation with having violated 29 C.F.R. 1910.252(f)(2) n1 in that it failed to provide proper ventilation to an employee who was welding in a confined space.

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n1 In pertinent part the standard is as follows:

"Mechanical ventilation shall be provided when welding or cutting is done . . .

(a) In a space of less than 10,000 cubic feet per welder;

(c) In confined spaces . . ."

[*2]

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The relevant facts are undisputed. While inspecting Respondent's work site Complainant's compliance officer observed welding being performed inside a tank or pressure vessel. The tank had two access holes, was about eight feet long, and had a diameter of about four feet. Accordingly, the tank was a confined space measuring about 100 cubic feet. An exhaust ventilation system was available and turned on but was not being used in the tank at the time of the observation. The compliance officer informed Respondent to this effect, and Respondent's supervisor abated the situation immediately. Respondent has instructed its employees to use mechanical ventilation while welding.

On these facts Judge Cronin concluded that an employee violation of the cited standard had occurred. n2 He opined that an employer cannot be held to have violated the Act when an employee violates a standard and the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. He vacated because the record does not establish this Respondent's knowledge of the presence [*3] of the violation of 29 C.F.R. 1910.252(f)(2).

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n2 The Judge reached a similar conclusion as to another alleged violation and he vacated. Complainant had cited Respondent for a violation of 29 C.F.R. 1910.133(a)(1). We affirm the Judge's disposition for the reason that the plain terms of the standard only require employers to supply personal eye protection equipment to their employees. Complainant did not prove a supply failure. He did prove that employees were not using eye protection equipment, but no use obligation is imposed on employers by the terms of this standard.

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We hold otherwise. An employer's duty to comply with standards is not to be diminished simply because the violation is created by his employees. As the Senate Labor Committee said: "[f]inal responsibility for compliance with the requirements of this Act remains with the employer." n3 This is as it must be since were it otherwise employers would be able to evade their responsibility by shifting them onto their employees, and such result would [*4] be contrary to the purposes for the Act's existence. Nevertheless, the Judge achieved that result.

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n3 1970 U.S. Code Cong. & Ad. News 5187.

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In doing so he specifically relied on the knowledge requirements of section 17(k). The section provides, in pertinent part, as follows:

For the purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

The plain terms of 17(k) prescribe the conditions of a serious violation. Clearly, a serious violation cannot be made out if the charged employer has no knowledge of the presence of a violation and could not, by the exercise of reasonable diligence, have obtained such knowledge.

In this case we do not have to decide whether the violation is serious. It was alleged as being other than [*5] serious, and it is either an other than serious violation or no violation at all. The Act provides no express definition of a non-serious violation.

On the other hand, section 9(a) authorizes Complainant to issue a de minimis notice in lieu of a citation whenever he believes a violation has ". . . no direct or immediate relationship to safety or health." The Act does not authorize civil penalties for de minimis infractions, but it does authorize the assessment of civil penalties whenever a violation is serious (section 17(b)) and whenever a violation is non-serious (section 17(c)). A penalty is mandated when the violation is serious and discretionary when non-serious.

In view of the express provisions made for different kinds of violations (9(a) and 17(k)) and the express provisions made for the assessment of civil penalties (17(b) and 17(c)) there can be no doubt that Congress intended the civil enforcement provisions of the Act to be commensurate with the characteristics of specific kinds of violations. Cf. Secretary of Labor v. Crescent Wharf and Warehouse Company, Accordingly, the characteristic elements of one [*6] kind of violation may not be implied as elements of another kind of violation. n4 Moreover, because of the express terms used in the provisions referred to herein, we have no doubt Congress intended a non-serious violation to have characteristics intermediate those of a de minimis violation and those of a serious violation. We so conclude.

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n4 See F.T.C. v. Fred Meyer, Inc., 390 U.S. 341 (1968); F.T.C. v. Sun Oil Company, Inc., 371 U.S. 505 (1963); F.T.C. v. Simplicity Pattern Co., Inc., 360 U.S. 55, rehearing denied, 361 U.S. 855 (1959).

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In the case before us the Judge used the knowledge element of a serious violation to conclude that Respondent was not in non-serious violation of the Act. In doing so, he committed reversible error.

We have considered the size of Respondent's business, the gravity of the violation, Respondent's good faith, and its history of previous violations. In the circumstances we conclude that Complainant's proposed penalty of $55 is appropriate.

Accordingly, [*7] it is ORDERED that the Judge's order is amended to affirm item 6 of Complainant's citation and to assess a civil penalty of $55 for such violation and as amended is affirmed.

CONCURBY: CLEARY (In Part); MORAN (In Part)

DISSENTBY: CLEARY (In Part); MORAN (In Part)

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: The standard at 29 C.F.R. 1910.252(f)(2), cited as item 6, states that mechanical ventilation shall be "provided" under certain circumstances, including those present in this case. The evidence establishes that ventilation equipment had been provided for use and was in operation, but that the ventilator hose was not in the tank. Judge Cronin vacated the item, as discussed by Commissioner Van Namee, on the ground that respondent could not have known of the violation. I would affirm the citation because the Secretary has sustained his burden of proof.

The requirements of 29 C.F.R. 1910.252(f)(2) are that mechanical ventilation shall be provided, not merely that ventilation equipment shall be provided. Thus, the objective of the standard is that specific conduct beneficially affecting the safety and health of employees be required. A failure to comply [*8] with the terms of a standard establishes a violation of section 5(a)(2) of the Act. There are exceptions to this general rule, but they do not apply here. See National Realty & Constr. Co., Inc. v. O.S.H.R.C., No. 72-1978 (D.C. Cir. December 13, 1973) ("idiosyncratic" and "implausible" employee misconduct). See also Industrial Steel Erectors, Inc., No. 703 (January 10, 1974) (application of the standard would inhibit rather than augment safety).

The standard at 29 C.F.R. 1910.133(a)(1), cited as item 7, concerns eye and face protection. n5 The record reveals that eye protective equipment had been issued to employees who had been instructed to use them and, at the time of the inspection, were failing to use the devices. Judge Cronin vacated the item because he interpreted the standard to impose upon respondent only an obligation to supply protective equipment. This restrictive interpretation is endorsed in Commissioner Van Namee's opinion. n6 I disagree.

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n5 1910.133(a)(1) reads as follows:

1910.133 Eye and face protection.

(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards. [Emphasis added.]

n6 See footnote 2 of his decision.

[*9]

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Safety or remedial legislation, such as this Act, is to be liberally construed in light of the prime purpose of the legislation. n7 St. Marys Sewer Pipe Company v. Director of U.S. Bureau of Mines, 262 F.2d 378, 381 (3rd Cir. 1959) and authority cited therein. It follows that rules thereunder must also be read liberally, but fairly, if the essential purpose is to be achieved.

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n7 The essential purpose of the Act is to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. Section 2(b) of the Act.

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The part of the standard ( 1910.133(a)(1)) reading, "No unprotected person shall knowingly be subjected to a hazardous environmental condition" must be considered to impose upon an employer an obligation to supervise the use of protective equipment if it is to have any meaning because the employer is otherwise required to provide the equipment. n8 This reading squares with the [*10] Congressional aim of making the employer ultimately responsible for compliance with standards pursuant to section 5 of the Act, even though the employees have a statutory duty to comply with the standards. S. Rep. 91-1282, 91st Cong. 2d Sess. 16 (1970).

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n8 Having furnished protective equipment as required by the standard, respondent has perforce acknowledged the presence of the hazard.

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Here, it may be fairly inferred that reasonable supervision, consisting of instruction and supervision, would not have resulted in the failure of three employees, all newly hired, to use protective equipment.

MORAN, CHAIRMAN, concurring in part and dissenting in part: I agree with Judge Cronin's disposition of each alleged violation, but his reasons for vacating item 6 are in error. Since Commissioner Van Namee's opinion sustains the Judge's disposition of all items except number 6, I concur except for that single allegation.

Respondent corporation was charged in item six with a failure to comply with the standard published [*11] as 29 C.F.R. 1910.252(f)(2), which requires that mechanical ventilation be provided when welding or cutting is done in a space of less than 10,000 cubic feet per welder.

The facts show that an employee of respondent in a workplace under respondent's control was welding inside a tank containing less than 10,000 cubic feet of space. An exhaust ventilation system was available and was operating. The system consisted in part of a hose inserted into the tank which, at the time of the inspection, had slipped out of the tank and had not been replaced by the employee engaged in the welding. The required ventilation was thus not being provided.

There was no evidence in the record to establish that respondent was aware that the hose was not operating in the tank. Nor does the record disclose evidence whereby respondent could be charged with constructive knowledge thereof.

The Judge ruled that an employer is responsible and liable for a violation of the Act if (1) he knew or reasonably could be presumed to know of the presence of a violation, and (2) the employer's conduct or failure to fulfill a prescribed obligation contributed to the existence of the violation.

In so ruling, the [*12] Judge found nothing in the legislative history or in the Act itself upon which to base a conclusion that Congress intended to hold employers responsible for all violations of the Act irrespective of fault. In this regard his ruling was correct. Part of his reasoning, however, seems to be a reliance on section 17(k) of the Act 29 U.S.C. 666(j), wherein it is provided that a respondent may not be found to be in "serious violation" of the Act if he did not or could not with the exercise of reasonable diligence know of the presence of a violation. To the extent that the decision relied on the language of 17(k) to conclude that knowledge is a necessary element of a nonserious violation of section 5(a)(2) of the Act 29 U.S.C. 654(a)(2), it was in error. Knowledge of the existence of a violation, either actual or constructive, is an essential element of any violation of the Act, without regard to the language of section 17(k). Mr. Van Namee, in his opinion supra reaches the opposite conclusion at least partially because of a sentence taken from the legislative history to the effect that final responsibility for compliance with the Act's requirements remains with the [*13] employer. I submit that this statement means exactly what it says and no more. It would seem to go without saying that an employer cannot discharge his responsibility for compliance unless he knows what constitutes compliance and knows when he is not in compliance. Knowledge is essential to compliance whether an alleged violation is classified as de minimis or as anything else.

The Commission has held on numerous occasions that the Act is not intended to make insurers of employers. n9 Accordingly, it is essential that a record establish that an employer knew or, with the exercise of reasonable diligence, should have known of the existence of a violation before the same can be established. Absent such a requirement, the Commission would be construing the Act in such a way that an employer would be a virtual insurer. It is for this reason, and not because of the language of 17(k), that I would affirm the Judge's decision with regard to alleged violation number six.

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n9 See, for example, Secretary v. Standard Glass Company, Inc.,

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Commissioner Burch in his concurring opinion in the Mountain States case n10 accurately and succinctly summarized the knowledge requirement established by the Act. He stated that:

Knowledge is specifically required by the Act in order to find a serious violation. The inference that Congress did not intend that the employer with the exercise of reasonable diligence should have known of the non-compliance with the standard in order to find a non-serious violation is not reasonable. It follows that knowledge is relevant to a non-serious violation and there was no intent on the part of Congress to hold employers to a standard of absolute liability (emphasis added).

The foregoing statement is the correct position on the matter of knowledge and is the view which this Commission has adopted.

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n10 Secretary v. Mountain States Telephone & Telegraph Co.,

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The record in this case does [*15] not establish that the respondent knew or with the exercise of reasonable diligence should have known that the hose to the ventilating system was not being used by the employee inside the tank. Consequently, respondent cannot properly be found in violation for failure to provide an adequate ventilating system in accordance with the applicable standard. The Judge was correct in vacating that item of the citation on the basis of lack of knowledge and the Commission has erred in overturning his disposition.

[The Judge's decision referred to herein follows]

CRONIN, 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 called the Act) to review a citation and proposed assessment of penalties thereon issued by the Secretary of Labor (hereinafter called the Secretary) against the Respondent, Cam Industries, Inc.

The citation for non-serious violations issued on November 26, 1971, alleges that the Respondent, on November 17, 1971, was in violation of the Act in twelve respects, as follows:

Item No. -- Standard or regulation allegedly violated -- Description -- Date to be corrected [*16]

29 C.F.R. Part 1910 -- November 17, 1971

1. -- 1910.310(j)(1) -- Failure to cover electrical switch to jointer. -- 12/10/71.

2. -- 1910.310(e) -- Light bulb in carpenter shop not installed in neat and workmanlike manner. -- 12/10/71.

3. -- 1910.252(a)(2)(iv)(c) -- Oxygen and acetylene cylinders stored together without proper divider. -- 12/10/71.

4. -- 1910.315(n)(4) -- Failure to cover open junction boxes and electrical switch panels. -- 12/10/71.

5. -- 1910.22(a) -- Housekeeping-cardboard boxes piled in corner of warehouse. -- 12/3/71.

6. -- 1910.252(f)(2) -- Failure to provide proper ventilation for man welding in a confined space. -- 12/3/71.

7. -- 1910.133(a)(1) -- Failure to require employees operating drill press and milling machine to wear eye and face protection. -- 12/3/71.

8. -- 1910.179(m)(1) -- Failure to maintain written, dated, and signed reports on rope condition of overhead cranes. -- 12/10/71.

9. -- 1910.23(c)(1) -- Failure to provide standard railing on open sides of floors or platforms. -- 12/31/71.

10. -- 1910.314(d)(4) -- Failure to electrically ground Dayton Heat Gun. -- 12/10/71.

11. -- 1904.2 1904.4 & 8(c)(1) of the Act -- Failure to maintain recods [*17] of occupational injuries and illnesses on form OSHA #100 & 101. -- Immediately.

Notification of Proposed Penalty also was issued on November 26, 1971 proposing to assess a total of $113.00 for all cited violations. The Respondent served notice of intention to contest the citation on the Department of Labor by letter dated December 1, 1971. The Secretary's complaint was filed on December 14, 1971 and Respondent's answer on December 16, 1971.

Pursuant to due notice, this case was heard at Seattle, Washington on March 14, 1972. The Secretary was represented by the Solicitor's office, U.S. Department of Labor and the Respondent by N. W. Van, its Operations Manager, who is not an attorney. No affected employee or employee representative sought to participate in the proceedings. Robert Tourtillotte, Secretary of Local 383, Assortment Sheet Metal Workers, an employee representative was present throughout the hearing as an observer but declined an opportunity to participate as a party in the hearing. Following the hearing, the Secretary filed a memorandum in support of the citation and proposed penalties. No proposed findings of fact, brief or memorandum were submitted by [*18] the Respondent although opportunity to do so was provided.

Upon the entire record, I make the following:

FINDINGS AND CONCLUSIONS

I. JURISDICTION

The Respondent, Cam Industries, Inc. with 77 employees, is a corporation engaged in the fabrication of steel products. Some of the materials used in the manufacturing process are obtained from outside Washington State and some of the finished products are shipped to points beyond the borders of that state. Also, the Respondent did not deny the conclusionary allegation in the complaint that it is an employer engaged in a business affecting commerce within the meaning of section 3 of the Act. Therefore, it is found that Respondent is an employer within the meaning of section 3(5) of the Act and that assertion of jurisdiction by the Commission is warranted.

II. THE ALLEGED VIOLATIONS

A. ISSUES PRESENTED

The complaint alleges, along the lines of the citation, ten violations of 29 C.F.R. 1910 and violations of 29 C.F.R. 1904, all of a non-serious nature. Respondent, in its notice of contest and answer, admits violations of 29 C.F.R. 1910.252(a)(2)(iv)(c), 29 C.F.R. 1910.179(m)(1), and 29 C.F.R. 1910.314(d)(4), but contends [*19] that the secretary did not, as alleged in the complaint, duly issue and promulgate 29 C.F.R. 1910 in compliance with Section 6 of the Act. Respondent also denies some of the factual allegations of the citation and complaint, and additionally claims that items 1, 4, 5, 6, 7, 10, & 11 of the citation fall within the intent of section 5(b) of the Act and are the responsibility of the employees involved.

The issues to be resolved and determined are:

1. Whether the cited regulations have been duly promulgated by the Secretary as required by the Act?

2. Does the record establish that Respondent violated the cited regulations?

3. Whether Respondent can be held liable for violations of the Act and regulations if they are found to be the result of the actions and conduct of its employees?

4. Whether the proposed penalties are appropriate?

B. THE EVIDENCE

The Secretary called two employees of the Occupational Safety and Health Administration, U.S. Department of Labor as witnesses, Compliance Officer Ronald T. Tsunehara, and Area Director Richard L. Beeston. The Respondent's only witness was its representative at the hearing and Operations Manager, Mr. N. W. Van.

Officer [*20] Tsunehara testified that on November 17, 1971 he inspected the Respondent's plant while accompanied by Respondent's Operations Manager N. W. Van and an employee representative, the Respondent's electrical maintenance man, James Adams. Inspection commenced in the carpenter's shop where Officer Tsunehara observed a jointer woodworking machine with no cover plate guarding the electrical on-off switch. Although plugged into an electrical wall receptacle, the machine was not operating at the time of inspection. According to Officer Tsunehara, Mr. Van informed him that the carpenter used it both for his personal work and also for whatever "odds and ends" he had to do around the company (Tr. 13, 14).

Mr. Van's testimony incorporates his statements in the Notice of Contest, and he contends that the open switch had been disconnected and was inoperative. He further testified that the jointer was not "live" at the time of inspection and that since joining the company in January of 1971 he has not seen the jointer used (Tr. 59, 63).

In the carpenter shop a light bulb installed in a socket was suspended two to 2 1/2 feet on a drop cord hung over a beam. The electrical cord was connected [*21] to an electrical outlet receptacle. Officer Tsunehara testified this electrical fixture was not installed in a "proper manner" because it was a "temporary" fixture not "permanent" (Tr. 15). Further, in his opinion, it wasn't "neat" because of the manner it was hung -- not "orderly," in an aesthetic sense (Tr. 15, 44, 45, 48). It is the Respondent's contention that the Act and regulations do not define "neat and workmanlike" and therefore to cite the Respondent under this factual situation is "arbitrary."

According to Officer Tsunehara, there were three electrical junction boxes "open," without covers, at Respondent's plant site. At the time of the inspection, Mr. Van told Mr. Tsunehara it was Mr. Adam's job as electrical maintenance man to ensure that the boxes be covered and he directed Mr. Adams to make sure they were covered (Tr. 17). In the Notice of Contest and in his testimony, Mr. Van pointed out that the Plant Maintenance Mechanic, Mr. Adams, had been told on several occasions prior to the date of inspection to replace the covers in the open junction boxes (Tr. 59, 60).

In the warehouse area Officer Tsunehara observed a stack of boxes of "old machinery, molders" [*22] reaching 10 to 15 feet high, "almost to the ceiling." This stack was about 8 to 12 feet in width and "took up pretty much the whole corner of the operations." According to Officer Tsunehara, Mr. Van was "quite upset" that the pile was there and voiced that he was unable to understand why it was there. Mr. Van said he would get it cleaned up immediately (Tr. 17, 18). At the hearing, Mr. Van testified that the cardboard boxes observed by Mr. Tsunehara contained lighting fixtures which were then being installed on light poles in the plant yard. He testified that the boxes were placed into the "trash heap" at the end of the day and sees "no reason" for the citation. Mr. Tsunehara acknowledged that the rest of the storehouse was "fairly clean" and that the citation was specifically referring to the cardboard boxes, not the motors and other apparatus stored at the location in question (Tr. 37, 38).

In the main production and welding area an employee of Respondent was welding in a pressure vessel or tank, seven or eight feet long without a ventilation or vacuum system. Upon having this situation pointed out to him, Mr. Van informed Officer Tsunehara it was the policy of the [*23] company to use such a system. He then located and requested a supervisor to provide a ventilation hose into the tank, which was done (Tr. 18-21). Mr. Van testified that the ventilators were on at the time and the employees had been instructed to use the ventilators in the proper manner. According to Mr. Van's testimony, the supervisor was not in the building when Officer Tsunehara observed the violation (Tr. 60-61).

In the machinery area, two employees were working on a milling machine and one employee on floor stand drill without eye or face protection (Tr. 12). Mr. Van testified that all three men had been hired within a week of the inspection and all three had been issued and instructed to use eye protectors (Tr. 61).

A storage area, inside the main production shop, and located on top of an office area, is 9 to 12 feet off the ground floor and consists of flooring measuring 20 or 30 feet long by 8 to 10 feet wide. At the time of the inspection about half of this storage area was occupied by stacks of flat, unassembled cardboard boxes. There were no railings, midrail or foot board around this storage area. Mr. Van told Officer Tsunehara that it was used "very infrequently" [*24] by employees, but that "once in a while" employees did go up there (Tr. 23-24). At the hearing, Mr. Van testified that the "platforms" in question are not working spaces for persons nor is equipment used thereon. He stated that they are used quite infrequently, probably "once or twice a year." (Tr. 61). Respondent contends that this storage area does not come within the definition of "platform" found at 1910.21(a)(4).

During the opening conference, Officer Tsunehara asked Mr. Van whether the Respondent was maintaining the required recordkeeping forms and if the Occupational Safety and Health Poster had been put up. The poster was observed by Officer Tsunehara but he was apprised that the Respondent had not started using the required forms (Tr. 26-27). Mr. Van testified that the Production Manager had been instructed to keep the records in the manner prescribed in the report booklet which was received by the Respondent about 30 to 60 days prior to the inspection date (Tr. 61, 66).

Both Officer Tsunehara and Area Director Beeston testified how the Secretary's proposed penalties were selected (Tr. 28-32; Tr. 53-54).

III. DISCUSSION

A. AS TO VIOLATION

The central [*25] theme of Respondent's argument is that Cam Industries, Inc. cannot have been expected to comply with the regulations or rules adopted by the Secretary under 29 C.F.R. Part 1910, because they have not been "duly issued and promulgated" by the Secretary.

The Respondent obviously misconstrues the meaning of the terms "issued" and "promulgated," and the requirement of the Act in this regard. The verb "promulgate" is defined variously as "to publish; to announce officially; to make public as important or obligatory." The verb "issue" is defined similarly: "to go forth officially as authoritative or binding; to promulgate." (See Black's Law Dictionary (3rd Edition)).

Section 6(a) of the Act, in pertinent part, requires the Secretary to "promulgate" occupational safety or health standards and section (6)(e) provides that whenever the Secretary promulgates any standard issued under the Act he shall include a statement of the reasons for such action, which shall be published in the Federal Register. The Act does not require the Secretary to provide personal copies of promulgated regulations to those persons affected by their provisions, although it is noted that the Department [*26] of Labor did furnish Respondent the Recordkeeping Booklet which explains the Act.

In this case administrative notice is taken that pursuant to the authority of section 6(a) of the Act, the Secretary promulgated, by publishing in the Federal Register on May 29, 1971 a new Part 1910 to Chapter XVII of Title 29 of the Code of Federal Regulations (Secretary's Exhibit 1). Also, the Secretary promulgated Part 1904 of Chapter XVII of Title 29, by causing it to be published in the Federal Register on July 2, 1971. Upon publication of these regulations all affected persons are presumed to have knowledge of their contents and lack of actual knowledge, for whatever reason, does not exempt such persons from their full force and effect. On November 17, 1971, the time of the inspection, the regulations contained in Parts 1910 and 1904 clearly were applicable to and obligatory on the Respondent.

Essentially, Respondent's second main argument is that whenever an employee fails to comply with a regulation of the Act applicable to his own actions or conduct, his employer cannot be held liable for the same violation. Section 5(b) of the Act does make it mandatory that each employee comply with [*27] those safety and health standards of the Act applicable to himself. However, as the legislative history of the Act, and more particularly the Senate Report, makes clear, Congress did not intend for the employee duty provided in section 5(b) to diminish in any way the employer's compliance responsibilities or his responsibility to assure compliance by his own employees. In the words of the Senate Report . . . "Final responsibility for compliance with the requirements of this Act remains with the employer." (See Senate Report No. 91-1282, 91st Cong. 2nd session, pp. 10-11).

On the other hand, however, there is nothing in the legislative history which suggests, as apparently contended by Secretary's Counsel, that Congress intended to hold employers responsible for all violations of the Act and regulations irrespective of fault. In fact, section 17(k) of the Act appears to indicate a contrary intent for it is provided there that a "serious violation" can not be found if the employer did or could not with the exercise of reasonable diligence "know of the presence of the violation."

In this Judge's view, an employer is responsible and liable for the actions and conduct of [*28] his employees resulting in a violation of the Act or regulations if he knew, or reasonably could be presumed to know of the presence of the violation and if the employer's conduct, or failure to carry out his prescribed obligations, contributed to the commission of the violation charged.

The Respondent was aware for some time that the Plant Maintenance Mechanic made a practice of failing to cover open junction boxes even after receiving instructions to do so. During the past year, this unsafe condition was pointed out on at least three or four occasions by Fire Insurance Company investigators (Tr. 63). Yet the Respondent continued to rely only on oral instructions to this employee to correct the situation. Obviously, stronger measures were necessary and Respondent's failure to take these measures in the interest of protecting its employees places Respondent in violation of Section 1910.315(n)(4) on November 17, 1971.

A different situation, however, is presented with respect to the alleged violation of Section 1910.133(a)(1). The obligations prescribed by this section are expressly divided between the employers and employees. Whenever protective eye and face equipment [*29] is required, the employer is required to "make conveniently available" to his employees a type of protector suitable for the work to be performed. The employee then is expressly required to "use the protectors." This section places no obligation either expressly or by implication on the employer to assure an employee's use of equipment which has been provided for his sole protection. The evidence is uncontroverted that the three employees on the drill press and milling machines were provided suitable eye protectors by the Respondent and instructed to use them. Therefore, the Respondent has fulfilled all of its express obligations under the regulation in question and it is considered unreasonable to hold the Respondent responsible for the failure of the employees to carry out their own express obligations. To hold the Respondent in violation under these circumstances would be to graft an obligation onto Section 1910.133(a)(1) which does not presently exist. The case of Hodgson v. Pacific Food Products Company, Inc. [*30] given the employees the option of using or not using the equipment, thereby encouraging its non-use.

A similar state of affairs is reflected by the record in regard to the alleged violation of 1910.252(f)(2). n1 The evidence establishes that adequate mechanical ventilation for welding in confined spaces was provided by the Respondent to its welders and that they were instructed to use this system. At the time of the inspection this ventilation equipment was operating but the ventilator hose, although around the tank, was not inside ventilating the welding operation then in progress. Respondent further points out that the hose had been used in this particular welding operation prior to the inspection, but had slipped out and had not been replaced by the welder employee. The evidence further reflects that when in position the hose can be seen by the welder.

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n1 The complaint also alleges a violation of 1910.252(f)(4) but not the citation.

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However, there is no indication in the record of how long the employee [*31] had been without ventilation, that Respondent's supervisory personnel were aware of the condition, or any other evidence from which Respondent's knowledge of the violation reasonably could be presumed. n2 Without such evidence or proof that some action or failure to act on the part of the Respondent contributed to the lack of adequate ventilation, this Judge is constrained to find that Secretary has failed to sustain his assertions of Respondent's violations of Section 1910.252(f)(2) or (4).

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n2 At the time of inspection the welder's supervisor was not in the vicinity of the work area (Tr. 60-61).

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In defense of the alleged violations of Sections 1904.2 and 1904.4, failure to maintain records of occupational injuries and illnesses on Form OSHA #100 & 101, the Respondent first argues that its Production Manager was informed to keep them in the manner prescribed in the report booklet provided Respondent by the Department of Labor, but he failed to carry out his assignment. A second argument in defense is that the additional [*32] reports are burdensome and repetitive of reports submitted to the State of Washington by the Respondent.

Respondent's contention that the failure of its Production Manager to follow instructions relieves it of the responsibility to carry out its obligations under Section 1904.2 and 4 clearly is without merit. The obligation of record keeping is placed squarely on each employer subject to the Act and it was not intended that an employer can relieve himself of this responsibility by delegating it to an employee.

If Respondent for good cause wished to maintain records in a manner different than required by Part 1904, it could have petitioned the Regional Director of the Bureau of Labor Statistics for approval in accordance with Section 1904.13. The Respondent chose not to follow this course however, and therefore, is bound by the provisions of Section 1904.2.

Also, Respondent's admitted failure to maintain Form OSHA 101 constitutes a prima facie violation of Section 1904.4. There was insufficient evidence introduced by the Respondent to permit a finding that Respondent's Washington State records are acceptable alternative records or that the necessary information was being [*33] otherwise maintained by the Respondent. Only the unsupported opinion of the Respondent's representative to the effect was offered.

The evidence in support of the Secretary's allegation of a violation of Section 29 C.F.R. 1910.310(j)(1), consists of proof that there was no cover to the on-off switch of a jointer, that it was plugged into a wall receptacle, that Respondent's Operations Manager admitted the jointer was "live" at the time of the inspection, and that the jointer was used for "odds and ends around the company." Respondent's representative testified that he discovered subsequently that the jointer was not "live" at the time when the inspector witnessed the cover missing and that the open switch had been disconnected and was inoperative.

Additionally, the Respondent contends in his answer that the jointer is the property of an employee, used only by him for personal endeavors, and therefore, Respondent is not responsible. This claim presents an obvious inconsistency with what Mr. Van told the Compliance Officer concerning the use of the jointer on "odds and ends" around the company. Resolution of this particular inconsistency, however, is considered unnecessary [*34] because the jointer was at Respondent's work site. Respondent, therefore, was responsible to see that its care and use was in compliance with the occupational safety standards of the Act regardless of whose work was being performed on the machine.

The issue to be resolved is whether there were unguarded "live parts" as prohibited by 1910.310(j)(1). Even assuming that the open switch was disconnected as contended by the Respondent the energized conductors presumably were still in position to produce electrical shock. Until the plug was removed the hazard to be protected against remained.

Respondent has raised the objection that the Secretary was arbitrary in charging a violation of 1910.310(e) with respect to the installation of the light bulb in the carpenter shop because the Act and its regulations fail to define the phrase "neat and workmanlike." But when such words and phrases are used in a regulation they must be interpreted as conveying the sense of their customary assigned meanings and merely because the regulation does not expressly define them does not render them arbitrary or any the less obligatory.

Webster's New World Dictionary (College Edition) defines "neat" as: [*35] "characterized by tidiness, skillful and precise." The phrase "workmanlike manner" has been the subject of interpretation by the Courts and has been the subject of interpretation by the Courts and has been held variously to mean "a proper," "safe" and "non-negligent" manner of doing something and synonymous with "deft," "proficient" or "adept." See Italia Societa Per Azioni de Navigazione v. Oregon Stevedoring Co., Ca.Or. 310 F. 2d. 481 and the cases cited therein.

In a case involving an electrical contractor's duty to install electrical wiring in a "workmanlike manner" one court interpreted this phrase to mean "to do work in an ordinarily skilled manner as a skilled workman should do it." Brown v. Eakins, 348 P. 2d 1116, 1117. Cases discussing the legal meaning of "workmanlike" are replete with words and phrases of similar import. n3

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n3 See cases cited in 18A Words and Phrases 22 ("Good and Workmanlike Job") and 45 Words and Phrases 520 (Workmanlike manner").

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Section 1910.210(e) reads as [*36] follows:

(e) Mechanical execution of work. Electrical equipment shall be installed in a neat and workmanlike manner.

The Secretary's position as outlined in his counsel's memorandum and through his Compliance Officer's testimony appears to be that the light bulb was not installed in a "proper manner" because it was part of a "temporary" fixture not "permanent" and not "neat" or "orderly" in an "aesthetic" sense. It is suggested that this regulation which Respondent is alleged to have violated does not prohibit the use of temporary electrical fixtures, such as the electrical drop cord pendant and light bulb described here. Perhaps some other regulation proscribes such use but not this cited regulation which refers solely to the mechanical execution of electrical installations. This record is devoid of evidence sufficient to establish that the installation of this "jury-rigged" light fixture was not accomplished in a proper and safe manner or that the manner of installation resulted in a dangerous situation. Therefore, this Judge is unable to conclude that the factual situation reflected by this record represents a violation of section 1910.310(e) by the Respondent.

The [*37] next alleged violation to be discussed is that of Section 1910.22(a), the housekeeping regulation which requires that storerooms and service rooms shall be kept clean, orderly, and in a sanitary condition. It is understandable why the Compliance Officer believed that a citation for violation of this section was warranted, particularly when he saw the reaction of the Operations Manager upon viewing the pile of card-boxes. However, testimony at the hearing established that these boxes had contained lighting fixtures which were being installed on light poles at the time the inspection was in progress and subsequently, the empty boxes were removed to the "trash heap" at the end of the same day. On these undisputed facts, and because the "dynamics" of this particular housekeeping situation were not sufficiently taken into consideration, a citation for violation of Section 1910.22(a) can not be sustained.

Section 1910.23(c)(1) requires that every open-sided floor or platform four feet or more above the adjacent floor or ground level shall be guarded by a standard railing (or the equivalent) on all open sides. Respondent points out that Section 1910.21(a)(4) defines a platform [*38] as "a working space for persons elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery and equipment" and then argues that since "the platforms in our plant are neither working places for persons nor are machines and equipment used thereon," the citation under item 9 is arbitrary. The evidence, however, reflects that, although used infrequently, some of Respondent's employees have on occasion been required to go onto this storage area which is eight to twelve feet off the adjacent floor. The terms "platforms" and "open-sided floors," of course, are used synonymously and the regulation is designed to protect from falling, employees like Respondent's who must use such elevated floors, no matter how infrequently. Violation of item 9 is thus clearly established.

Finally, the Respondent did not contest or dispute the factual averments of items 3, 8, and 10 of the citation and therefore, Respondent must be held to have violated on November 17, 1971 Sections 29 C.F.R. 1910.252(a)(2)(iv)(c), 1910.179(m)(1) and 1910.314(d)(4).

B. AS TO PENALTY

All four factors prescribed under section 17(j) of the Act, the size of employer's [*39] business, gravity of the violation, the good faith of employer and history of previous violations have been considered. The Respondent employs seventy-seven employees and has a history of no previous violations under the Act. While all of the violations affirmed had a direct effect on the health of Respondent's employees they did not create a substantial probability of serious physical harm and therefore, are not considered "serious." In view of the foregoing, and on the basis of this record, the Secretary's final adjusted penalties of $4.00 for item 1, $9.00 for item 3, $9.00 for item 4, $4.00 for item 8, $4.00 for item 9, $4.00 for item 10, and no penalty for violation of item 11, are considered appropriate.

CONCLUSIONS OF LAW

1. Jurisdiction of this proceeding is conferred on the Commission by section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ).

2. The Secretary of Labor, pursuant to the authority vested in him by section 6(a) of the Act duly adopted and promulgated on May 29, 1971, Safety and Health Standards at 29 C.F.R. 1910.

3. The Secretary of Labor pursuant to the authority vested in him by section 6(a) of the Act [*40] duly adopted and promulgated on July 2, 1971, Safety and Health regulations at 29 C.F.R. 1900.

4. The standards and regulations of Parts 1910 and 1904 were applicable to the Respondent on November 17, 1971.

5. Respondent, on November 17, 1971, was in violation of the following provisions of 29 C.F.R. Part 1910: 1910.310(j)(1); 1910.252(a)(2)(iv)(c); 1910.315(n)(4); 1910.179(m)(1); 1910.23(c)(1); and 1910.314(d)(4).

6. Respondent on November 17, 1971 was in violation of 29 C.F.R. 1904.2 and 1904.4.

7. Respondent on November 17, 1971 was not in violation of 29 C.F.R. 1910.310(e); 1910.22(a); 1910.252(f)(2) or 1910.133(a)(1).

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED, that

1. Items Nos. 1, 3, 4, 8, 9, 10 and 11 of the citation issued November 29, 1971 are hereby AFFIRMED.

2. Penalties of $4.00 for item 1; $9.00 for item 3; $9.00 for item 4; $4.00 for item 8; $14.00 for item 10 and no penalty for item 11, are hereby ASSESSED.

3. Items 2, 5, 6, and 7 of the citation issued November 26, 1971, and the proposed penalties based thereon, are hereby VACATED.