UNIVERSAL MAINTENANCE & REPAIR CORPORATION
OSHRC Docket No. 39
Occupational Safety and Health Review Commission
January 31, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners.
OPINIONBY: VAN NAMEE
VAN NAMEE, COMMISSIONER: On June 1, 1972, Judge David H. Harris issued his decision affirming the Secretary's citation and proposed penalty of $700 for a serious violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et. seq., 84 Stat. 1590).
Thereafter, this case was directed for review by the Commission.
After considering the submissions of the parties together with the record on which the Judge based his decision, it is herewith ORDERED that the Judge's decision be and the same is hereby AFFIRMED.
MORAN, CHAIRMAN, dissenting: This is another case like Secretary of Labor v. National Realty and Construction Co., Inc.,
The decision which the Commission herewith affirms -- with neither comment nor explanation -- holds that the respondent violated Section 5(a)(1) of the Act by permitting its employees to perform maintenance repairs on a mail sorting conveyor belt system without providing adequate means for "locking out" the system. n1
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n1 Judge's Decision, Conclusion of Law No. 5 at 11. "Locking out" was defined by witnesses as employing a positive means of assuring that machinery, once shut down, cannot be restarted by any person other than the one who shut it down.
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The case was initiated by complainant pursuant to authority granted him by Section 9(a) of the Act when he caused a citation dated August 19, 1971, to be served upon respondent.
There is no material dispute concerning the facts of the case. Respondent is, and was at the time of the alleged violation, in the business of repairing, maintaining and servicing a mail-sorting system consisting of over 200 conveyor belts. The evidence established that at all times pertinent hereto there were locks on some, but not all, of the panel boxes containing the switches for the various conveyor belts, and that persons in addition to the employees who performed maintenance on the belt system had access to keys which would unlock those locks. The net effect of more than one person having access to the keys was that a person working on a conveyor belt could turn off the particular belt, lock the panel box containing the switch, and still be subjected to the risk of another person's unlocking the box and restarting the machinery while it was being worked on.
In his decision, the Judge found that the above described conditions constituted a recognized hazard likely to cause death or serious physical harm. The Judge might just as well have found that the employer violated the Act by permitting rain to fall on the pavement as to find a violation on these facts. Respondent was not charged with failure to install a lockout system any more than it was charged with failure to prevent the rain from falling.
By conveniently overlooking this matter, the Commission is ignoring long established principles that are part of the very foundation of our adversary system of justice n2 as well as specific requirements relating to citations contained in this Act.
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n2 Douds v. ILA, 2 Cir., 1957, 241 F. 2d 278, 283, Engineers & Fabricators, Inc. v. NLRB, 5 Cir., 376 F.2d 482.
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Section 9(a) requires that:
Each citation shall be in writing and shall describe with particularity the nature of the violation. . . .
The citation in this case did not even hint at the nature of the violation, let alone describe it "with particularity." The full text of the description of alleged violation contained on the citation was as follows:
As a result of an accident which occurred August 10, 1971, Mr. James D. Colwell suffered an amputation of his right arm when he attempted to dislodge an object from a conveyor without first locking out the conveyor. A similar condition was observed during the accident investigation when two mechanics were performing hot work on a conveyor roller without first locking out the equipment.
Clearly, those two sentences not only fail to apprize the respondent of the nature of the violation with which it was charged; they don't charge anyone with any offense.
The evidence established that Mr. James D. Colwell was an employee of respondent. This citation, therefore, relates only to the conduct of employees. It does not charge that the respondent failed to do something that the Act required him to do, nor does it charge him with doing something prohibited by law.
Because this case arose prior to the adoption of rules of procedure by the Commission, there was no requirement that a complaint be filed in this proceeding. None was filed and the respondent therefore had nothing except the citation to ascertain the precise nature of the violation with which he was charged. As indicated above, that was no help at all.
Section 9(a) requires that a citation must allege a specific act of omission or commission, atributable to the employer which constitutes a violation of the provision of law under which he is cited. The citation in this case referred only to the action (or non-action) of employees. It did not describe in any way the nature of the violation with which the respondent was charged.
This decision does not contain any court citations which state that an employer -- or any citizen -- can be found in violation of a law on the basis of an act or omission not charged in the citation or other legal document containing the Government's charges. It doesn't list them because there are none.
The reason why the system of justice which prevails in this country requires that a person accused by the Government be advised of the charges against him is to permit the accused to prepare his defense and to set a standard of relevance for evidence offered at the hearing. These reasons are fully as valid for the purposes of this Act as they are for enforcement actions conducted under common law pleadings.
It offends elementary concepts of procedural due process to find a violation against a respondent on the basis of acts of commission or omission not mentioned in the citation. It cannot join in any such decision.
[The Judge's decision referred to herein follows]
HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act), to review a citation issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) of the Act and a proposed penalty for assessment thereon issued pursuant to Section 10(a) of the Act.
The citation (P-1), issued on August 19, 1971, alleges that Universal Maintenance and Repair Corporation, the employer, (hereinafter Universal), in a workplace under its ownership, operation or control, located at 10101 George Palmer Highway, Lanham, Maryland, was in violation of Section 5(a)(1) of the Act in the following respects:
As a result of an accident which occurred 8-10-71, Mr. James D. Colwell suffered an amputation of his right arm when he attempted to dislodge in object from a conveyor without first locking out the conveyor. A similar condition was observed during the accident investigation when two mechanics were performing hot work on a conveyor roller without first locking out the equipment.
Under the column headed "Date on which alleged violation must be corrected" appears the statement:
All employees were immediately instructed not to work on machinery without first locking out the equipment.
The citation alleges that the violation charged is a "serious violation" within the meaning of Section 17(k) of the Act.
A "Notification of Proposed Penalty" (P-2), issued on the same date, August 19, 1971, proposes assessment of a penalty in the sum of $700.00 against Universal.
Universal filed a Notice of Contest dated September 8, 1971, in which it contested both the citation (P-1) and the proposed penalty (P-2). It is not disputed that Universal received the citation and the Notification of Proposed Penalty (Tr. 8) and that the Secretary received the said Notice of Contest.
The within matter was referred to the Occupational Safety and Health Review Commission for hearing pursuant to Section 10(c) of the Act on September 15, 1971, and on September 27, 1971, the undersigned was appointed and the within matter assigned to him for hearing pursuant to Section 12(e) of the Act.
Pursuant to notice and by agreement of the parties, a pre-hearing conference and the hearing were held on November 15, 1971, in Washington, D.C.
It was stipulated that Respondent Universal Maintenance and Repair Corporation is a corporation organized under the laws of the State of Maryland (Tr. 5) and maintains its main office at 18 Myrtle Avenue, Demarest, New Jersey (Tr. 6); that it employs a daily average of 18 employees (Tr. 7; 16); that the employee who was injured on or about August 10, 1971, was its employee (Tr. 6; 75-76) and that Universal has no history of previous violations (Tr. 7).
Having heard the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact.
FINDINGS OF FACT
1. Universal, a corporation organized under the laws of the State of Maryland, with its main office in Demarest, New Jersey (Tr. 5-6) was, at all times mentioned herein, engaged exclusively in the business of repairing, maintaining and servicing a conveyor belting system and sorting equipment owned and operated by Mail Express, Inc., at 10101 George Palmer Highway, Lanham, Maryland (Tr. 16-17; 23-24; 27; 29; 164).
2. Mail Express, Inc., is engaged in the sole business of receiving, distributing and sorting United States mail under a contract with the United States Postal Service (Tr. 19; 22; 30).
3. The sorting and conveyor belt system operated by Mail Express, Inc., at Lanham, Maryland, includes more than 200 conveyor belts, sorts 2nd and 3rd class mail and parcel post packages and the conveyor belting carries mail and parcels, boxes and mail bags weighing up to 70 lbs (Tr. 17; 22; 25; 28-29; 56).
4. Since April 19, 1971, when Mail Express, Inc., commenced operating its facility at Lanham, Maryland, (Tr. 17; 21) Universal has provided the major part of the necessary servicing and repairs of the sorting and conveyor belting system (Tr. 23) and its services are essential to the functioning of Mail Express, Inc.'s business (Tr. 23-24).
5. Mail Express, Inc., employs from 35 to 65 employees during each work-shift (Tr. 29-30) while Universal employs an average of 18 employees per day, 17 of whom work on the premises of Mail Express, Inc., at Lanham, Maryland (Tr. 7; 16). In addition, Universal employs a maintenance manager and a night-shift foreman who report to the Lanham, Maryland, facility; a Universal vice-president spends two days each week at these premises (Tr. 18) and it maintains a maintenance shop on Mail Express, Inc.'s premises at this place (Tr. 17).
6. Locking-out is defined as a positive means of assuring that a powered system will not be energized inadvertently or by someone not authorized to do so by the person who had locked-out the system (Tr. 58; 70; 132; 135-138).
7. The provisions of the American National Standards Institute (ANSI) affecting conveyor belts are consensus standards having national recognition and represent generally accepted safety practices in the industry (Tr. 98; 100).
8. The disregard of the ANSI standards concerning locking-out of conveyor belt equipment before performing any work thereon gives rise to a substantial probability that serious physical harm could result (Tr. 101).
9. The ANSI codes provides that maintenance work should not be done while a conveyor belt is in operation unless necessary and that special safety provisions shall be used in such cases; and when a maintenance man stops a conveyor for servicing purposes, "he shall lock out the starting device so that no one but the man working on the conveyor can restart it." (P-5, section 10e and f)
10. Written instructions setting out Universal's policy to the effect that the equipment should be shut down; the circuit breakers opened and the machine locked out, were posted on the bulletin board in the company's maintenance office on Mail Express, Inc.'s premises, at the time when the facility was opened in April 1971 (Tr. 54; 56; 57; 61).
11. No evidence was introduced to establish that wooden signs with the legend "Emergency" and "Mechanic Working" supplied by Universal (Tr. 166-167) were placed over panel doors when a conveyor belt was undergoing repair.
12. Prior to September 1971 several conveyor belts were switched into one panel box, each having its own current breaker. No separate locking device existed for each current breaker (Tr. 59; 72). Keys to the panel boxes were in the possession of employees of Mail Express, Inc., as well as those of Universal and also kept on a ring hanging in the shop which was accessible to anyone (Tr. 60; 64; 66; 73). Some panel boxes were not supplied with locks and it was necessary to use the locks furnished for other boxes leaving those without locks (Tr. 65). Instances have occurred when equipment locked out in this fashion by a Universal employee, has been re-activated by an employee of Mail Express, Inc. (Tr. 63; 70; 73).
13. Prior to September 1971 instances when equipment has been serviced without first being locked out have occurred every 2 or 3 weeks (Tr. 54; 55; 58; 64-65; 66; 73-74; 75). These instances were called to the attention to Universal's supervisory personnel including Epright, its manager (Tr. 54; 58).
14. Some of Universal's employees were warned that they would be discharged if they continued to work on equipment which was not locked out (Tr. 74) while others received little or no instructions on safe procedures (Tr. 68-69).
15. No organized safety training program was made available to its employees by Universal (Tr. 110; 127; 129; 130). Two group meetings were held with employees of both Universal and Mail Express, Inc., at which the emphasis was placed upon pilfering from the mails (Tr. 173).
16. The conveyor belt system owned and operated by Mail Express, Inc., at Lanham, Maryland, was designed by the president of Universal (Tr. 162; 170). No evidence was offered touching any joint activity by Universal and Mail Express, Inc., designed to prevent the activation of a machine which had been either locked out or de-energized by a person other than the one who had locked out or de-energized the machine.
17. On August 10, 1971, an employee of Universal suffered the loss of his right arm while working at the Lanham, Maryland facility owned and operated by Mail Express, Inc. (Tr. 75-76).
18. The citation herein (P-1) was issued against Universal on August 19, 1971, and thereafter, some time in September, 1971 a device for multiple locking was installed at Mail Express, Inc.'s Lanham, Maryland facility which requires that a belt cannot be activated until the man who has locked out the belt has completed his work thereon (Tr. 59).
19. Universal did not participate in the design or installation of the new and more "up-to-date" locking out facilities installed at the Lanham facility after the accident to Universal's employee (Tr. 175-176).
20. A system of approximately 200 conveyor belts used to carry and sort mail, parcel post packages and mail bags of up to 70 lbs. in weight which was not provided with a locking out facility which would prevent a conveyor belt from being activated or energized by a person other than the one who had locked out the conveyor belt, constituted a hazard which is generally and commonly recognized in the industry in which Universal was engaged (Tr. 99-100; 101; 132; P-5).
21. No employees of Universal, other than witnesses, were present and no employees indicated a desire to participate in the proceedings as parties (Tr. 77; 78).
22. A substantial probability existed that death or serious physical harm could result from permitting employees to perform maintenance and repair work on conveyor belt machinery at the Lanham, Maryland facility of Mail Express, Inc., under the conditions described herein-above during the period from April, 1971 to September, 1971 (Tr. 96-97; 122).
23. The daily exposure of approximately 18 of Universal's employees, during the period from April to September 1971, who were engaged in repairing and maintaining the conveyor belt system at the said Lanham, Maryland, facility under the conditions described hereinabove, enhanced the gravity of the violation described herein to a substantial degree. See Hodges v. Nacirema
24. Neither Mail Express, Inc.'s plant engineer in charge of maintenance nor Universal's general manager were called as witnesses nor was their absence explained.
CONCLUSIONS OF LAW
1. At all times mentioned herein Universal was and is an employer engaged in a business affecting commerce within the meaning of Section 3 of the Act, and the Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter herein pursuant to Section 10(c) of the Act.
2. Section 5(a)(1) of the Act (29 U.S.C. 654(a)(1), imposed a general duty requirement on Universal. That requirement is that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
3. For the purpose of Section 5(a)(1), a hazard is "recognized" if it is a condition that is, (a) of common knowledge or general recognition in the particular industry in which it occurs, and (b) detectable (1) by means of the senses (sight, smell, touch, and hearing) or (2) is of such wide, general recognition as a hazard in the industry that even if it is not detectable by means of the senses, there are generally known and accepted tests for its existence which should make its presence known to the employer (1970 U.S. Code Cong. and Adm. News at 5222-5223).
4. The fact that Universal did not own the equipment or machinery on the premises wherein the same were situated did not lessen or in anywise alter the duty imposed upon Universal by Section 5(a)(1) of the Act to furnish to each of its employees employment and a place of employment free from recognized hazards likely to cause death or serious physical harm to such employee.
5. Universal violated Section 5(a)(1) of the Act in that from April to September, 1971 at Lanham, Maryland it provided its employees employment and a place of employment which presented a recognized hazard that was likely to cause death or serious physical harm, to wit, a system of more than 200 conveyor belts designed to carry and sort 2d and 3rd class mail, parcel post packages and mail bags weighing up to 70 lbs. upon which such employees were required to make maintenance repairs without providing an adequate means whereby a conveyor belt could be locked out and thereafter not activated or energized by a person other than the one who had locked the conveyor belt out for the purpose of making repairs to it.
6. The said violation of Section 5(a)(1) of the Act constituted a serious violation of the Act within the meaning of Section 17(k) thereof.
7. Universal knew or, with the exercise of reasonable diligence, could have known of the existence of the said conditions constituting the said violation.
8. The penalty proposed by the Secretary herein, to wit, $700.00 is under the circumstances herein, appropriate.
In view of the foregoing and having duly considered the gravity of the violation, the good faith of Universal Maintenance and Repair Corporation, its size, and its history of previous violations and good cause therefore appearing, it is
1. The citation and the notice of proposed penalty herein (P-1 and P-2) be and they are in all respects confirmed and Universal be and it is hereby assessed and required to pay a civil penalty in the sum of $700.00.