V. O. HEGSTED, d/b/a CHALLENGER SUPPLY

OSHRC Docket No. 392

Occupational Safety and Health Review Commission

December 12, 1973

 

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: On June 2, 1972, Review Commission Judge James A. Cronin, Jr. issued a decision in this case.   Thereafter, on June 16, 1972, pursuant to section 12(j) of the Act, that decision was ordered to be reviewed by the Commission.

Having examined the record in its entirety, the Commission finds no prejudicial error therein.   Accordingly, it is ordered that the Judge's decision is hereby affirmed in all respects.

[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 V. O. Hegsted, d/b/a Challenger Supply.

The citation for non-serious violations issued on November 24, 1971 but not served on the Respondent until December 30, 1971, alleged that the Respondent on October 21, 1971 was in violation of the Act and regulations in twelve respects as follows:  

Standard or regu-

Item

lation allegedly

Date to be

No.

violated

Description

corrected

29 CFR Part 1910

10/21/71

1

1910.141(d)(1)

There were no washing facilities

12/28/71

for maintaining personal cleanli-

ness provided for the workman

2

1910.141(d)(2)

There were no lavatories with ade-

12/28/71

quate hot and cold water provided

for the workman

3

1910.22(a)(1)

The housekeeping in the overall

12/21/71

operation was very poor, it consti-

tuted a fire and tripping hazard

4

1910.23(c)(1)(iii)

In the areas of the elevated con-

12/28/71

crete deck and trim saws, which

was between 53" and 56" above floor

level, there were no standard guard

railings, with a mid rail

5

1910.178(m)(5)

The Clark and Hyster fork lift trucks

12/21/71

had their ignition keys left in while

unattended

6

1910.178(p)(1)

The Clark and Hyster fork lift trucks

12/21/71

did not have a operating hand brake

or horn

7

1910.133(a)(1)

The sawyers were exposed to flying

immedi-

particles from the saws blades and

ately

were not furnished with suitable eye

and face protection for their work

8

1910.314(d)(1)(iii)

The trim saws and the motor on the

12/28/71

sorter were not grounded and they

are within reach of a person who can

make contact with a grounded sur-

face

9

1910.314(d)(4)

The band saw was not grounded and

12/21/71

(iii)(d)

it was in a damp location outside of

the building exposed to the elements

10

1910.315(n)(4)

In the nailing area there were 5 junc-

12/21/71

tion boxes without their covers, three

of these were 220 volts and two were

110 volts

11

1910.252(a)(2)

In the office storage area there were

Immedi-

(ii)(b)

two cylinders one oxygen and one

ately

fuel gas that were unsupported and

could be knocked over

12

29 CFR 1904.2,

Failure to maintain records of occu-

Immedi-

1904.4 and

pational injuries on Form OSHA 100,

ately

Section 8(c)(1)

101 or other approved from and fail-

of the Act

ure to post official Occupational

PL 91-596

Safety and Health Act poster to in-

form employees of protection and

obligations as required by 29 CFR

1904.2, 1904.4 and Section 8(c)(1)

of the Act

 

  Notification of Proposed Penalty, although initially issued on November 24, 1971, was not received by Respondent until December 30, 1971.   It proposed to assess a total of $120.00 for all cited violations. n1 The Respondent served notice of intention to contest the citation on the Department of Labor by letter dated January 4, 1972.   The Secretary's complaint was filed on January 19, 1972 and Respondent's answer on January 31, 1972.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 At hearing proposed penalty of $5.00 for item 12 of the citation was changed to no penalty by amendment of complaint.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Pursuant to due notice this case was heard at Idaho Falls, Idaho on March 31, 1972.   The Secretary and Respondent were represented by counsel.   Mr. Earl Roadhouse, an employee of Respondent, at the outset of the hearing, indicated an interest to participate in the proceeding as a "party" but actually limited his role to being a witness for the Respondent.   Following the hearing the Secretary filed a memorandum in support of the citation with the Respondent filing a rebuttal memorandum.

Upon the entire record, I make the following:

FINDINGS AND CONCLUSIONS

I.   JURISDICTION

The Respondent V. O. Hegsted, d/b/a Challenger Supply is engaged in the business of production, distribution,   and sale of wooden pallets which are shipped directly and indirectly to points outside the State of Idaho.   Also, the Respondent admitted in his answer that he is an employer engaged in a business affecting commerce within the meaning of section 3 of the Act.   Therefore, it is found 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, eleven violations of 29 C.F.R. 1910, violations of 29 C.F.R. 1904, and a violation of 29 C.F.R. 1903.2 n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Citation does not allege violation of 1903.2, only complaint.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent, in his answer admits violation of 29 C.F.R. 1910.133(a)(1), failure to provide protective eye and face equipment for sawyers, and denies all other violations.  

The issues to be resolved and determined are:

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

2.   Whether, if the violations were committed, 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 Richard Jackson and Area Director Eugene Harrower, and the Respondent, himself.

The Respondent called three witnesses, the Respondent, his wife and bookkeeper, Gloria Hegsted, and Earl Roadhouse, one of Respondent's employees.

  Officer Jackson testified that he inspected Respondent's plant site on October 21, 1971 accompanied by Glenn Gardner, who was then Respondent's shift foreman and Mr. Garney Coffey who is employed by the Idaho State Department of Labor.

At the time of inspection, Respondent's place of employment had no lavatories with adequate hot and cold water or, for that matter, any washing facilities at all. n3 Previous arrangements had been made by Respondent for employees to use, on a regular basis, the toilet and washing facilities at a gas station approximately 1000 feet distance.   For emergency use of washing and toilet facilities, Respondent also had obtained the permission of his landlord to make use of the facilities owned by the latter located in a warehouse directly adjacent to Respondent's plant operations about 300 feet distance.   No inspection of either of these facilities was made by Officer Jackson (Tr. 11, 40, 41, 43, 44, 71-75, 93-95).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 There also were no toilet facilities at the plant site but neither the citation nor complaint alleges a violation of 29 C.F.R. 1910.141(c)(1) et seq.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In Officer Jackson's words the general housekeeping at the work site was "really a mess," "very poor" according to "sawmill standards" (Tr. 12, 44).   Sawmill planer type ends measuring from 2 inches to 4 feet long, consisting of two by fours, one by fours, and one by sixes were "piled high in the yard" adjacent to an elevated deck (Tr. 12, 51).   There also was a "large amount" of electric cords laying on the ground or deck area and air hoses were laid across the deck area with a "general amount of debris" (Tr. 13).   On the elevated deck storage area adjacent to the entry gate, a "large amount of material" was stored "in a haphazard manner" and it appeared that more than "one load" of wood endings had been "dumped" there (Tr. 13, 14, 51, 52).

  According to Officer Jackson, wood pieces, electric cords and air hoses were laying in the passageway into and about the nailing area itself, thereby constituting a tripping hazard (Tr. 44).   In the trim saw area there also was an "excess amount" of debris (Tr. 13).

Another location contributing to Respondent's "housekeeping problem," according to Officer Jackson, was the office storeroom, measuring approximately 4 feet by 8 feet. There, standing in the northwest corner about 12 inches from the corner walls on each side were two unsupported cylinders, oxygen and acetylene, and this condition constituted a part of the "general housekeeping violation." Also, there were machinery parts on the floor and in his opinion, the "total amount of material" on the floor was a "tripping hazard" (Tr. 52-58).

Respondent testified that frequently, as a result of the trimming operations, odd lengths of trim pieces which the board sorter can not handle are thrown aside in a pile.   Then, periodically these pieces are placed, for the most part, in a banded condition on a pallet and then stored on the elevated area (Tr. 126).   He stated that sometimes these stacks are bumped and knocked down by a forklift truck but these instances are "accidental" and not of a "permanent nature" (Tr. 127).   There is also a box located off the dock into which debris such as sawdust and small trim boards are kicked by the sawyers, and this box is periodically cleaned out.   Other so-called "trash" pieces are piled up for sale to customers.   When this becomes too big a pile, it is cleaned up and hauled to the dump (Tr. 126).

As the cut boards come off the lumber sorter they are placed on a pallet and stockpiled preparatory to use in the nailing room.   During the nailing room operation all unusable boards are thrown to the side at "random" by the employees.   At the end of the shift or   day, this material is picked up, put back on the pallet and stored in the yard prior to its return to the saws for cutting into proper lengths or removal of imperfections (Tr. 133-134).

In Respondent's opinion the overall housekeeping condition at the plant is excellent and the conditions observed by Officer Jackson were only the natural result of the entire production process.

Mr. Roadhouse testified that after cutting a "bunk" of lumber, the sawyers clean and "police" up the chips, chunks of wood and the sawdust.   At night, they are "supposed to clean up and police" the trim saw area before leaving (Tr. 117).   In his opinion the housekeeping is not unsafe in the trim area (Tr. 118).

On the open-sided elevated deck area used for storage, Officer Jackson testified that there were no railings and this area measured from 53 to 56 inches above the lower level (Tr. 14).   According to the Respondent, lumber was stored over the past three years across the whole length of the easterly edge and tractors also were stored up there.   Other stacks of lumber on pallets cover the remaining storage area.   In his words, there "has been no way . . . that anyone could go off of the end of that dock . . ." (Tr. 124).

At the time of inspection two industrial forklift trucks were situated in the plant's general yard area; both trucks' horns and hand brakes were not operating and the keys were left in the ignition locks.   Only one truck was in use during the inspection, although the other was used "periodically" (Tr. 14-18, 61-63, 140-141).

In the opinion of Officer Jackson the motor and electrical system to the two trim saws and lumber sorter were not grounded (Tr. 19, 20, 22).   Respondent testified the trim saws were wired with a three wire 600-volt conductor which adequately grounded the saws (Tr.   143-144).   The sorter motor admittedly was not electrically grounded (Tr. 144).

Situated in the nailing area were electrical junction boxes without covers (Tr. 23, 68). n4 The Foreman told Officer Jackson that "sometimes they are on and sometimes they are off" (Tr. 68).   The Respondent testified that at the time of the inspection, or "immediately thereafter," there were only four junction boxes in the area, two were 220 volts, and two 110 volts and "all had covers on them" (Tr. 145-146).   Respondent, subsequently, testified that the cover and receptacle were off "several" of the junction boxes and the air compressor for purposes of repair and they were still energized (Tr. 146, 147, 154).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Citation alleges there were "5" junctions without their covers, three were 220 volts, the other two, 110 volts.

 

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

On entering the nailing area there was an industrial band saw ungrounded, setting on wet asphalt and open to the elements.   According to Officer Jackson an electrical two-wire conductor connected to this saw was plugged into an electrical receptacle inside the building near where the junction boxes were located (Tr. 24, 67-68).   Respondent testified that band saw was "broken"; the motor not connected in any way, and that it had not been used "for over a year and a half" (Tr. 145).

In the northwest corner of the small storeroom an oxygen tank 30 inches high, weighing 50 to 60 pounds, and an acetylene tank, 24 inches high, weighing 30 to 40 pounds, were standing unsupported, about 12 inches from the corner walls on each side (Tr. 27, 84).   According to Respondent these tanks recently had arrived at the plant site (Tr. 140).

At the time of inspection no official poster was displayed on the premises (Tr. 28).   The Respondent, and his wife and bookkeeper, testified that the Respondent   had never received the poster or the recordkeeping booklet from the Department of Labor (Tr. 78, 114-115).

III.   THE PROPOSED PENALTIES

Both Officer Jackson and Area Director Harrower testified how the Secretary's proposed penalties were determined (Tr. 31-36, 98-99).   The unadjusted penalties recommended by Officer Jackson were $35.00 for item 1; No. 2, $35.00; No. 3, $51.00; No. 4, $51.00; No. 5, $25.00; No. 6, $35.00; No. 7, $35.00; No. 8, $35.00; No. 9, $35.00; No. 10, $101.00; No. 11, $20.00; and No. 12 was "zero." These penalty amounts were adjusted downward, 20% for "good faith," 20% for "no previous history," a 10% maximum reduction for size of company and then a 50% reduction for "abatement credit" on the assumption the company would abate the hazards within the time periods prescribed in the citation.   These abatement periods appearing in the citation were arrived at as a result of a discussion between the Compliance Officer and the Respondent.   The final proposed penalties totaled $120.00, and consisted of $9.00, $9.00, $13.00, $13.00, $7.00, $9.00, $9.00, $9.00, $9.00, $28.00, $5.00, and $0.00 for items nos. 1 through 12.

IV.   DISCUSSION

A.   AS TO VIOLATIONS

It is undisputed that no washing facilities in the form of lavatories with adequate hot and cold water were provided in Respondent's place of employment.   The language of 1910.141(d)(1) makes clear that the washing facilities to be provided must be located at the employment   site itself.   Also, while the term "lavatory" is often used as a euphenism for "toilet" its sense in 1910.141(d)(2) is obviously intended, because of a separate section relating to "toilet facilities," n5 to be limited to the customary meanings of "a bowl or basin for washing the face and hands or room equipped with such a basin or basins." n6 Under the circumstances, the Respondent should be held liable for only one violation, 1910.141(d)(1), relating to the general failure to provide adequate washing facilities, not two separate ones.   If the Secretary's Compliance Officer intended to charge an additional violation for failure to provide "toilet facilities," as apparently he did, the appropriate regulation should have been cited.   Item No. 2 of the citation will be combined with Item No. 1.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 section 1910.141(c) et seq.

n6 See Webster's New World Dictionary of the American Language, College Edition.

- - - - - - - - - - - -   - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Respondent, by means of a detailed explanation of the overall production operation at his plant, attempted to refute Officer Jackson's testimony concerning the latter's observations of October 21, 1971 that the "housekeeping" was "very poor," constituting a fire and tripping hazard. Although photographs depicting the conditions existing on the date of inspection would have been very helpful in determining the presence of a "housekeeping" violation, the Compliance Officer's verbal description is considered sufficient to sustain a finding of violation by the Respondent of 1910.22(a)(1) at least with respect to the nailing room and elevated storage area.   The record establishes that pieces of wood and electric cords were laying in the passageway into the nailing room; wood pieces were thrown at "random" by the employees, and air hoses and electric cords were laying across the width of the room itself.   Certainly, such conditions presented tripping hazards   against which the regulation is designed to protect.   Also, the dumping of wood pieces onto the storage area in a "haphazard manner" does not comply with the regulation's requirement that such areas be kept orderly.   Regarding the charge of the lack of a railing on the "Lshaped elevated deck" the Secretary's counsel in its memorandum apparently has abandoned the citation's allegation that this condition prevailed in the trim saw area and has restricted the assertion of violation to the eastern end of the storage area, "near to the gate." n7 The record reflects that this end was four feet above adacent ground level and that lumber has been stored "across this whole length" for some three years.   The regulation in question 1910.23(c)(1), requires that every open-sided floor or platform 4 feet or more above ground level be guarded by a standard railing; or the equivalent, on all open sides and is designed to protect employees from the hazard of falling or being struck by falling materials. n8 Here, however, the positioning of the lumber stacks was due to storage and production requirements and only by chance happened to perform a guarding function.   This was a temporary barrier, and subject to change, not permanent as contemplated by the regulation. Even the Respondent pointed out that this lumber barrier had been removed a few days before the hearing (Tr. 124).   Under these circumstances, stacks of lumber cannot be considered the "equivalent" of a standard railing and a violation is established.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 See pg. 5 of Secretary's Memorandum.

n8 No evidence was introduced to establish that a toeboard also was needed.   See section 1910.23(c)(1)(iii).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Violations of 1910.178(m)(5) and 178(k)(1) unquestionably are established by this record.   The Compliance Officer tested the horns on both trucks and tried   the brake handles on the trucks and found them inoperable and ineffective (Tr. 15-16).   He also observed both trucks with the ignition keys in the locks.   In addition, he was told by Respondent's foreman that leaving the ignition keys in the lock was "standard practice" and that the hand brakes hadn't been working for "a long time." Moreover, the Respondent himself testified at hearing that the machine which had been traded and the title transferred was still used "periodically, once in a while."

The Respondent admitted violating 1910.133(a)(1), failure to furnish suitable eye and face protection, and also 1910.314(d)(1)(iii), failure to ground motor of sorter. In view of Respondent's testimony with respect to the grounding of the trim saws, however, this Judge finds that no violation of 1910.314(d)(1)(iii) occurred in that regard.

Respondent claims that the band saw was broken, was not connected and had not been used for a year and a half.   The Compliance Officer, however, testified that the saw at the time he observed it, was connected to an electrical outlet receptacle.   There being no reason to doubt the accuracy of Officer Jackson's observations, the Secretary's charge of Respondent's violation of 1910.314(d)(4)(iii)(d) must be affirmed.   If abandoned as claimed by Respondent why was the saw plugged in and why the presence of a "considerable amount" of sawdust on the floor directly below it and on the work table?   It is considered highly unlikely that Respondent's housekeeping procedures were so lax and dilatory as to permit these conditions to exist for a year and a half.

Respondent in his testimony admitted that "several" covers of the junction boxes were off and explained this condition existed because necessary repairs were being made.   But no repairs were observed being made at the   time of the inspection and electric current was still flowing into the boxes, thereby, exposing Respondent's employees to the very hazard to be protected against.   Therefore, the allegation of a violation of 1910.315(n)(4) must be sustained.

Section 1910.252(a)(2)(ii)(b) does not require that the cylinders in question be "supported," only that they should be located where they will not be knocked over by passing or falling objects.   On the basis of the descriptions by Officer Jackson and the Respondent, this Judge is unable to conclude that under normal conditions prevailing in a storeroom of this nature the cylinders' corner location was such as would lead to their being knocked over and no violation of the cited regulation is found.

Respondent admittedly failed to display the official poster as required by section 1903.2, but such poster is "to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor" and until it is, the mandatory requirement for the employer to "post and keep posted" this poster, is not operative.   In this case, there was uncontroverted statements from two witnesses that the Respondent company never received the official poster. In view of the difficulty encountered by the Respondent in timely receiving through the mail the citation and notification of proposed penalty from the Department of Labor, there is no reason to doubt the testimony in this regard.

The same situation, however, does not extend to Respondent's admitted failure to maintain records of occupational injuries and illnesses on Forms OSHA #100 & 101 or the equivalent.   The obligation of recordkeeping is placed squarely on each employer subject to the Act and is not dependent upon the employer being furnished with copies of forms #100 & 101 by the Department of Labor.   Respondent's failure to maintain   these forms constitutes a prima facie violation of Sections 1904.1 and 1904.4 and the burden of proving that his company was maintaining acceptable alternative records or otherwise maintaining the necessary information shifted to the Respondent.   Because no evidence was introduced on this subject, the Respondent must be found to have been in violation of sections 1904.2 and 1904.4.

B.   AS TO PENALTY

All four factors prescribed, under section 17(j) of the Act, the size of Respondent's business, the gravity of the violations, the good faith of employer and the history of previous violations have been considered.   The Respondent has a small company with a history of no previous violations under the Act.   While all of the violations affirmed have a direct effect on the health of Respondent's employees they do 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 $9.00 for Item 1; $13.00 for Item 3; $13.00 for Item 4; $7.00 for Item 5; $9.00 for Item 6; $9.00 for Item 7; $9.00 for Item 8; $9.00 for Item 9; $28.00 for Item 10 and no penalty for Item 12, a total of $106.00, are considered appropriate.

CONCLUSIONS OF LAW

1.   On October 21, 1971, the Respondent was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970 and jurisdiction of the proceeding is conferred by section 10(c) of the Act.

2.   Respondent, on October 21, 1971 was in violation   of the following provisions of 29 C.F.R. Part 1910: 1910.141(d)(1);   1910.22(a)(1); 1910.23(c)(1); 1910.178(m)(5); 1910.178(p)(1); 1910.133(a)(1); 1910.314(d)(1)(iii); 1910.314(d)(4)(iii)(d); and 1910.315(n)(4).

3.   Respondent on October 21, 1971 was in violation of 29 C.F.R. 1904.2 and 1904.4.

4.   Respondent on October 21, 1971 was not in violation of 29 C.F.R. 1910.23(c)(1)(iii) and 29 C.F.R. 1910.252(a)(2)(iii)(b).

5.   Respondent on October 21, 1971 was not in violation of 29 C.F.R. 1903.2.

ORDER

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

1.   Items Nos. 5, 6, 7, 9 of the citation issued November 24, 1971 are hereby AFFIRMED.

2.   Penalties of $7.00 for Item 5, $9.00 for Item 6, $9.00 for Item 7, and $9.00 for Item 9 are hereby ASSESSED.

3.   Item No. 11 of the citation issued November 24, 1971 and the proposed penalty based thereon is hereby VACATED.

4.   Items Nos. 1 and 2 of the citation issued November 24, 1971 are amended to constitute a single violation and as amended is hereby AFFIRMED with a penalty of $9.00 ASSESSED.

5.   Item No. 3 of the citation issued November 24, 1971 is amended to allege that the housekeeping procedures in the nailing and elevated storage area were inadequate and constituted tripping hazards and as amended is hereby AFFIRMED with a penalty of $13.00 ASSESSED.

6.   Item No. 4 of the citation is amended to charge a   violation of 1910.23(c)(1) and allege no standard guard railing or the equivalent on the elevated storage area near the gate and as amended is hereby AFFIRMED with a penalty of $13.00 ASSESSED.

7.   That portion of Item No. 8 of the citation issued November 24, 1971 charging that the trim saws were not grounded is hereby VACATED.

8.   Item No. 8 as amended is hereby AFFIRMED with a penalty of $9.00 ASSESSED.

9.   Item No. 10 of the citation issued November 24, 1971 is hereby amended by striking the number "5" and substituting therefor the word "several" and as amended is hereby AFFIRMED with a penalty of $28.00 ASSESSED.

10.   That portion of Item No. 12 charging a failure to post the official poster is hereby VACATED.

11.   Item No. 12 as amended is hereby AFFIRMED and no penalty ASSESSED.