DUNDAS PALLET COMPANY, DIVISION OF INDUSTRIAL WOOD AND PALLET COMPANY
OSHRC Docket No. 266
Occupational Safety and Health Review Commission
February 14, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
MORAN, CHAIRMAN: On April 17, 1972, Review Commission Judge John S. Patton issued a decision in this case holding that the Respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act) by failing to provide proper protective eye equipment as required by the Occupational Safety and Health Standard at 29 C.F.R. 1910.133(a). A penalty of $750.00 was assessed for this non-serious violation of the Act.
Thereafter, pursuant to section 12(j) of the Act review was directed by the Commission on the issue of whether or not the alleged hazard to Respondent's employees set forth in the citation in this case meets the test of a serious violation as defined by Section 17(k) of the Act. The Commission has considered the record, the decision of the Judge and the Secretary's brief. We find no error and affirm the Judge's decision.
In Secretary v. Wetmore & Parman, "We believe ourselves without authority, absent the consent of the Secretary, to find a violation of a degree higher than that charged by the Secretary." Secretary v. Wetmore & Parman at 7.
Since the parties have stipulated that the Respondent was in violation of the standard, the only remaining issue is the appropriateness of the penalty. We hold that the Judge gave due consideration to the requirements of section 17(k) of the Act, and that his assessment of a $75.00 penalty was proper.
For the foregoing reasons, the Commission find that the Respondent committed a non-serious violation of the Act as charged and the decision of the Judge is hereby affirmed.
BURCH, COMMISSIONER, dissenting: I dissent.
The majority relies on its opinion in Secretary of Labor v. Wetmore & Parman, Inc., My objections to the majority opinion in Wetmore, supra, were set forth in my dissent to that opinion.
I originally proposed a decision in this case that failed for want of another signature. Because it states my position in this case, and thus my reasons for dissenting, it is set out, in pertinent part, below.
The Commission has reviewed the entire record in this case. We do not adopt the Judge's conclusions of law and adopt only those findings of fact that are consistent with the following decision.
Respondent is engaged in the business of cutting logs into lumber and making pallets of the lumber. Its employees operate power saws and automatic nailers. It is admitted that none of respondent's employees are supplied, or wear, eye protection while using this equipment.
On November 30, 1971, respondent was cited for an other-than-serious violation, alleging "Failure to provide and enforce eye protection for employees operating and working near power saws and automatic nailers" in violation of the standard at 29 C.F.R. 1910.133(a). The Secretary proposed a penalty of $75. Respondent filed a timely notice of contest and proceedings were had before this Commission. At the hearing, stipulations were made as to the facts necessary to show that respondent is an employer engaged in a business affecting interstate commerce and as to respondent's correct name at the time the citation was issued. Respondent also admitted that it was in violation of the standard as set forth in the citation.
The Direction for Review is addressed to the question of whether or not the alleged hazard meets the test of a serious violation as defined by Section 17(k) of the Act. The parties were invited to offer submissions on the issue. Only the Secretary has done so. His brief, however, is not directed to the issue, but is limited to challenging the Commission's authority to review the seriousness of the violation. We shall, therefore, deal with this challenge before considering the question presented by the Direction for Review.
Section 10(c) of the Act states, in relevant part:
The Commission shall [after hearing] issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief. . . .
This section gives the Commission the authority to review both the citation and the proposed penalty. While we agree that the authority to change an alleged violation from other-than-serious to serious must derive from the power to modify the citation or to direct "other appropriate relief," we do not agree with the Secretary's interpretation of these concepts. The Secretary argues that "modify," as commonly used, ". . . connotes something less than a radical upward alteration in the nature of the violation charged," citing Webster's Seventh Collegiate Dictionary, 1970. We do not concern ourselves with connotations but with denotations. We adhere to the commonly accepted legal definition of the word modify contained in Black's Law Dictionary, rev'd 4th, "to alter to change," to "enlarge, extend, limit, reduce." n1
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n1 See, Jarman v. Collins-Hill Lumber & Coal Co., 266 Ia. 1247, 286 N.W. 526, 528 (1939); McGoldrick Lumber Co. v. Benewah County, 54 Idaho 704, 35 P. 2d 659, 662 (1934); Johnson v. Three Rays Properties #2, Inc., 158 S.2d 924, 926 (D. Ct. App. Fla. 1964).
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Neither do we agree with the Secretary's position that "relief" is available only to the complainant and because he, as complainant, has not asked for the citation to be changed from other-than-serious to serious, the Commission does not have the authority to do so as "other appropriate relief." Equally inapposite are the cases cited by the Secretary to attempt to analogize his function under the Act and the functions of a prosecutor under criminal statutes. OSHA is not a criminal statute. Although certain sections refer to criminal acts, they are not at issue here.
The Secretary argues that to "raise" the nature of the violation would raise substantial issues of due process because respondent was not cited for a serious violation, nor was the issue litigated at the hearing.
While true that respondent was not cited for a serious violation, the Solicitor, in his opening statement, referred to "very serious hazards" and ". . . the gravity of this violation and the seriousness of this violation . . ." (Tr. 13). Respondent's vice president, during his cross examination of the compliance officer, asked:
Q. Mr. Hornberger said in his opening statement that the violation was of serious nature. Do you feel it was of a serious nature?
A. I feel as a safety professional it is serious. It is something that could cause an accident but under the law they describe "serious" as something different. Serious is an accident that, or a situation, that is going to happen and it is going to be of very serious consequences and under the definition under the law, I do not consider it to be serious.
Q. You do not consider it to be serious?
A. If I did, it would have had to have been a mandatory, $1,000 penalty (Tr. 30).
Thus, respondent had an opportunity to defend against what, at the very least, it must have recognized as an issue going to the amount of the contested penalty. But the more persuasive argument in favor of due process is the notice contained in the Direction for Review wherein the parties were invited to offer submissions on the issue of whether the alleged hazard meets the definition of a serious violation. Respondent did not see fit to make any argument on either the facts or the law. Had the submissions of the parties raised any questions of fact or questions concerning credibility which would render inappropriate a final disposition on the record, the Commission would have ordered remand for the adducement of additional evidence in adversary or fact finding proceedings. No such questions were raised by the parties. The invitation of submissions afforded the parties both the right of argument and an opportunity to adduce additional evidence. Since no genuine or material issue of fact was raised in response to the invitation, no additional hearing was ordered. It is clear that due process requires no more. Persian Gulf Outward Freight Conference v. Federal Maritime Commission, 375 F.2d 335, 340-341 (D.C. Cir. 1967); Producers Livestock Marketing Ass'n. v. U.S., 241 F.2d 192, 196 (10th Cir. 1957), aff'd, 356 U.S. 282 (1958); Outward Continental N.P.F. Conf. v. Federal Maritime Commission, 385 F.2d 981, 983, 984 (D.C. Cir. 1967).
As was stated in Rodale Press, Inc. v. F.T.C., 407 F.2d 1252, 1256, (D.C. Cir. 1968):
Hence it is well settled that an agency may not change theories in midstream without giving respondents reasonable notice of the change . . . The evil at which the statute strikes is not remedied by observing that the outcome would perhaps or even likely have been the same. It is the opportunity to present argument under the new theory of violation which must be supplied. 407 F.2d at 1256, emphasis in original.
Plainly, had the Trade Commission afforded respondents "the opportunity to present argument," all rights would have been preserved and, presumably, the Commission's order would have been enforced. The case was remanded for just that purpose. It is precisely that opportunity to present argument that has been afforded the parties by this Commission in this case.
The Secretary's final argument is his contention that respondent has not contested the citation and by its failure to do so within 15 working days, the citation should be deemed a final order of the Commission. This argument is bottomed on the language of section 10(a) of the Act which permits the employer to contest the citation or proposed penalty. The Secretary argues that section 10(a) is written in the alternative, one purpose of which is to accord employers the right to file a limited notice of contest, and becomes "largely meaningless" if by contesting only the proposed penalty, the door is opened to review of the citation also. A statute must be read so as to give effect to all of its language, if possible. But to interpret section 10(a) as the Secretary would have us do would lead us to absurdity: first, the absence of a cojunctive would prohibit an employer contest of both the citation and proposed penalty, and second, if an employer contested only the citation, it stands in jeopardy of finding itself absolved of any violation but with a proposed penalty having become a final order of the Commission. We do not perceive that Congress intended any such possibility.
We are unpersuaded by any of the arguments put forth by the Secretary which would limit the review power of this Commission vis-a-vis the seriousness of the alleged violation. Section 17(j) of the Act confers upon this Commission the authority to assess all civil penalties and it necessarily follows that consideration of an appropriate penalty cannot be made in a vacuum. In order to determine an appropriate penalty, it is necessary to look to the alleged violation and this Commission has not only the right but the obligation to review the record as a whole and to make findings based upon the evidence of record.
This is not the first time the Commission has exercised its authority to alter the nature of the Secretary's citation. In Secretary of Labor v. Norfolk Shipbuilding & Drydock Corp., There the Judge found that despite the Secretary's citation and complaint charging non-serious violation of the Act,
The determination by the Area Director of the Occupational Safety and Health Administration that the said violation should not be considered a serious violation pursuant to section 17(k) of the OSHA is not supported by the evidence and penalty . . . which is proposed to be assessed . . . [is] inappropriate.
the Judge, in his decision and order, affirmed by the Commission without objection or petition from any party, altered a proposed penalty of $175 for a non-serious violation to an assessed penalty of $1000 for a serious violation.
The testimony is undisputed that approximately 20 employees worked with power saws and automatic nailers. Respondent admits that it is in violation of the standard which requires eye protection ". . . where there is a reasonable probability of injury that can be prevented by such equipment." It is undisputed on the record that power saws and automatic nailers create a "flying object" hazard to the eyes of the operator. Further, in at least an ordinary sense, this hazard is considered serious. See references to the transcript of the hearing, supra.
The compliance officer applied certain criteria set forth in the Secretary's Compliance Operations Manual in making his determination that this violation is other than serious. We disagree with his conclusion. The criteria are: "(1) Is there substantial probability that death or serious physical harm will n2 result? And, if so, (2) Did the employer know, or with the exercise of reasonable diligence should he have known, of the hazard?" The second criterion is met, for respondent admits knowledge. The Compliance Manual defines serious physical harm as ". . . that type of harm that would cause permanent or prolonged impairment of the body . . ." We believe that a splinter from a power saw or a nail fragment from an automatic nailer could cause serious physical harm to an employee's eye, up to and including the loss of the eye. On this basis alone, we find that the compliance officer erred in classifying the violation as other-than-serious.
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n2 This criterion is thereafter restated in the statutory language, using "could" instead of "will."
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The Secretary's criteria properly parallels section 17(k) of the Act which states:
(k) For 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, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
This section describes what conditions are necessary to find that a violation is of a serious nature. Its premise is that a violation exists, the violation being ". .. a condition which exists, or . . . one or more practices, means, methods, operations, or processes which have been adopted or are in use, . . ." The language is clear; all that is required to find a violation to be of a serious nature is that a substantial probability exist that death or serious physical harm could result from the violation and that the violation was known or reasonably could have been known to the employer. From this, it follows that the violation herein is properly classified as serious.
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Additionally, by applying the methodology described in my concurring opinion in Secretary of Labor v. Baltz Brothers Packing Company,
[The Judge's decision referred to herein follows]
PATTON, JUDGE, OSAHRC: This case is before the Occupational Safety and Health Review Commission on the complaint of James D. Hodgson, Secretary of Labor, United States Department of Labor, petitioner, against Dundas Pallet Company, Division of Industrial Wood and Pallet Company, respondent, alleging that the respondent at its McArthur, Ohio, plant has violated Section 5(a)(2) of the Occupational Safety and Health Act and Standard 29 C.F.R. Section 1910.133(a).
The respondent was described in the Complaint as Industrial Wood and Pallet Company and Dundas Pallet Company, a Corporation. The pleadings were orally amended at the hearing to correct the name of the respondent to Dundas Pallet Company, Division of Industrial Wood and Pallet Company.
Citation was issued by the Department of Labor alleging said violation and a penalty in the amount of $75.00 was proposed. The respondent filed a Notice of Contest to said Citation whereupon complaint and subsequently, amendment to complaint, were filed by the petitioner. Answer to said complaint and amendment to complaint was filed by respondent. Hearing was held before John S. Patton, the undersigned Judge in Cleveland, Ohio, on March 8, 1972. Mr. Lee Hornberger represented the petitioner at said hearing and Mr. Norton Norr, Vice President of respondent represented respondent. There was no motion to intervene by the employees or any representative of the employees. All parties were accorded the right to present evidence and orally argue the case. The parties were notified that they had the right to file briefs, but the representatives of both parties stated upon the record that they did not desire to file briefs. Counsel for petitioner requested and was granted permission to file proposed findings of fact.
JURISDICTION OF THE CASE
It was stipulated that respondent maintains its principal office in Cleveland, Ohio, and has places of business at Middlefield, Ohio, and McArthur, Ohio, where it is engaged in the cutting of lumber and the production of pallets and related activities for interstate commerce, being thereby engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
The Dundas Pallet Company, division of said company, maintains a place of business at McArthur, Ohio, where it is engaged in the above described activities. The activities of said division also constitute business engaged in commerce and affecting commerce within the meaning of said Act.
The alleged violations are alleged to have occurred at said McArthur plant.
LAW AND ISSUES OF THE CASE
Occupational Safety and Health Standard 29 C.F.R., Section 1910.133(a) provides in part, as follows:
Protective eye and face equipment shall be required where there is 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.
The parties entered into a stipulation to the effect that said Standard was violated. The issue for determination therefore, is whether a penalty should be assessed, and if so, in what amount.
EVIDENCE IN THE CASE
Substantially all of the facts are undisputed. It was testified by Mr. James A. Napoleone, Compliance Officer with the Department of Labor, that upon inspecting respondent's McArthur, Ohio, operation on November 4, 1971, he found that employees working around saws and working with automatic nailers were not wearing protective glasses. The respondent has about eight or nine saws at that location. He stated that nails break and nail heads break off and fly through the air causing a hazard to employees' eyes.
He stated that the respondent had no safety program, but just had on-the-job training for operators of its saws.
Mr. Norton Norr, Vice President of respondent, responsible for operations of the company, testified that the respondent does have a safety program and that a Mr. Art Carruth is in charge of same, but not on a full-time basis.
Mr. Norr testified that he first noticed that the employees were wearing no eye protection six years ago. He stated that he had called the hazard to the attention of the employees. He testified that it was the respondent's desire that the employees provide their own equipment.
When, after inspection by petitioner, he did order protective glasses, they were provided within a week of the date ordered.
He stated there is some problem in getting employees to wear protective equipment. He stated the respondent is not contesting the hazard, but only the penalty. Mr. Norr testified that respondent had requested the State of Ohio to make a safety inspection of their plants and said inspection was made in the summer of 1971.
Mr. Norr testified that total sales for various operations of the respondent are several millions of dollars annually. Approximately eighteen to twenty-three employees work at the McArthur plant. All but two of said employees are production employees.
Mr. Napoleone testified that the amount of the proposed penalty was determined by the following method. The top penalty was determined to be two hundred dollars. Five percent reduction was made because of the size of the respondent. Twenty percent reduction was allowed because there was no prior history of violations. The balance was then halved because the violation was abated, making the proposed penalty seventy-five dollars.
EVALUATION OF THE EVIDENCE
The facts are in the main undisputed. The parties stipulated that "on November 4, 1971, respondent corporation violated the Occupational Safety and Health Standards set forth in 29 C.F.R. 1910.133(a) in that they failed to provide and require the wearing of eye protection for employees operating and working near power saws and automatic nailers." The Vice-President of the respondent reiterated in his testimony that respondent recognized the hazard and did not dispute the violation.
The only issue for determination is whether a penalty should be imposed, and if so, in what amount. This Judge can find no mitigating circumstances which would justify no penalty being assessed.
The employees worked with automatic nailers or nail guns and it is undisputed that the heads of nails could fly off and injure an employee's eye. Mr. Norton Norr testified that he first became aware of the fact protective eye equipment was not being worn six years ago and he mentioned it to the employees. He testified that the respondent wanted the employees to secure such equipment themselves. The fact remains that respondent did not require the employees to secure said equipment, but the employees continued to work under what respondent recognized as a hazardous condition.
Of course, failure to rectify the problem before the effective date of the Occupational Safety and Health Act cannot be considered in determining the amount of the penalty. To do so would be to give said Act an ex post facto effect. It remains true, however, that on the day said standard became effective, the respondent was fully aware that a hazardous condition existed and it was not until subsequent to the inspection by the Department of Labor that any effort was made to alleviate the condition. Testimony that it is difficult to induce employees to wear such equipment is not a mitigation. The equipment was not available and it was failure to provide the equipment, and not a refusal to wear it that caused the unsafe condition.
In view of the fact that respondent recognized that it was operating under hazardous circumstances and took no action to cure the problem, it would appear that a penalty in the suggested amount of seventy-five dollars is proper. Respondent's total sales run into millions of dollars annually and the respondent is not so small that a penalty would severely burden its operations. Under all the facts of this case, the undersigned is of the opinion that a penalty in the amount of seventy-five dollars would be justified. A larger penalty would be justified, but for the fact that respondent requested the State of Ohio to make an inspection of its plants, and thereby evidenced a concern that safety standards be met.
FINDINGS OF FACT
1. Industrial Wood and Pallet Company, an Ohio Corporation, maintains its principal office at 1763 London Road, Cleveland, Ohio 44112, and had places of business at Middlefield, Ohio and McArthur, Ohio, where it is engaged in the cutting of lumber and production of pallets and related activities for interstate commerce.
2. Dundas Pallet Company, also an Ohio Corporation, maintained a place of business at Route 93, South, McArthur, Ohio 45651, where it was engaged in the cutting of logs and production of pallets for interstate commerce.
3. Commencing on or about October 1, 1971, Dundas Pallet Company became known as Dundas Pallet Company, Division of Industrial Wood and Pallet Company.
4. As a result of an inspection by an authorized representative of the Secretary of Labor, United States Department of Labor, respondent corporation, Dundas Pallet Company, was issued a citation on November 30, 1971, pursuant to Section 9(a) of the Act.
5. Petitioner, by his notification of proposed penalties dated November 30, 1971, notified the respondent that pursuant to the provisions of Section 10(a) of the Act, a penalty of $75.00 was being proposed for the alleged violation set forth in the citation.
6. By letter dated December 2, 1971, the respondent gave notice of its intention to contest the proposed penalty.
7. The annual gross income of respondent is several million dollars a year.
8. Respondent employs approximately 23 employees at its aforesaid work site.
9. On November 4, 1971, respondent violated the Occupational Safety and Health standard set forth in 29 C.F.R. Section 1910.1338(a) in that respondent failed to provide and require the wearing of eye protection for employees operating and working near power saws and automatic nailers.
CONCLUSIONS OF LAW
1. At all times involved in this case, the respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(f) of the Act.
2. At all times involved in this matter, the respondent furnished employment to its employees and said employees engaged in said employment at work place in McArthur, Ohio. The Occupational Safety and Health Act of 1970 is applicable to such employment within the meaning of Section 4(a) of said Act.
3. The respondent's failure to provide eye protection equipment for its employees working near power saws and automatic nailers as found in petitioner's inspection of November 4, 1971, constitutes a violation of Section 5(a)(2) of the Act and a violation of Occupational Safety and Health Standard 29 C.F.R. Setcion 1910.133(a).
4. A penalty in the amount of $75.00 should be assessed.
IT IS ORDERED THAT:
Respondent's failure to provide eye protection equipment for said employees constitutes a violation of Section 5(a)(2) of the Occupational Safety and Health Act of 1970 and a violation of Occupational Safety and Health Standard 29 C.F.R. Section 1910.133(a), and the abatement date of November 30, 1971, is affirmed.
Respondent be and hereby is required to pay a penalty in the amount of $75.00.