VENTRE PACKING COMPANY, INC.  

OSHRC Docket No. 396

Occupational Safety and Health Review Commission

August 23, 1973

 

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 Joseph Chodes.   By his decision the Judge found Respondent in violation of the standard prescribed by 29 CFR 1910.23(c)(1) and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").   A civil penalty in the amount of $25 was assessed.

We have reviewed the record including the Judge's decision and the brief filed on review by Complainant. n1 For the reasons given hereinafter we reverse.

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n1 Respondent, while being afforded an opportunity to brief the issue on review, did not file a brief.

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According to the undisputed evidence, an 8 to 9 foot high structure comprising the extension of a walk-in cooler was maintained in Respondent's place of business.   The top of the structure was used as a storage space and was not guarded around its outside perimeter.   The distance between the top of the structure and the ceiling of Respondent's building was, according to Complainant's compliance officer, "five foot six."

On the day of the inspection a disassembled metal frame consisting of several 5 foot pieces was stored on the top of the structure.   They had been placed there on some previous day by employees working on a temporary platform. The compliance officer did not observe any employees in the area.   He believed that the pieces could fall off of the structure and opined that guard rails would   provide protection against this hazard. Apparently, it was on this basis that Complainant issued his citation.

The cited standard provides in pertinent part as follows:

Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides. . . .

We are told by Complainant that the top of the structure is a "platform" as that term is used in the standard.   But, according to Complainant's own definitions, a "platform" is

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 29 CFR 1910.21(a)(4), emphasis added.

Clearly, the standard requires guard rail protection for platforms upon which people are employed. n2 Thus, if Respondent's employees had gone on to the top of the structure to store or retrieve the metal frame, then it would have been a "platform" because it would have been a "working space" for them.

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n2 Guard rails are used to protect workers from the hazard of falling. The hazard of which the compliance officer complained is within the scope of Subpart N of Part 1910; see 29 CFR 1910.176(b) in particular.

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However, the evidence is that Respondent's employees did not get up on the top of the structure.   Consequently, it was not a "working space" for them, and therefore it was not a "platform" within the meaning of 29 CFR 1910.23(c)(1).

Accordingly, it is ORDERED that the Judge's decision be set aside and the Complainant's citation be and the same is hereby vacated.

CONCURBY: MORAN; CLEARY (In Part)

CONCUR:

 

  MORAN, CHAIRMAN, concurring: I concur with the disposition but I disagree with the dicta that if employees   work on top of a structure, it thereby becomes a platform because it is their working space.

DISSENTBY: CLEARY (In Part)

DISSENT:

  CLEARY, COMMISSIONER, concurring in part and dissenting in part: I do not agree with the vacating of the citation, although I do agree that the penalty in this instance should be vacated because of the low level of the gravity of the violation.   Secretary of Labor v. General Meat, Inc., Secretary of Labor v. J.E. Chilton Millwork and Lumber Co., Inc.,

The structure specified in the citation was an 8 to 9 foot high extension of a walk-in cooler on top of which respondent's employees stored pieces of a disassembled metal frame. The evidence shows that these pieces of metal framing weighed from 18 to 20 pounds each, and, similarly, the evidence is undisputed that there was no guarding around the outside perimeter of this structure.   This situation leads me to conclude that there was a prima facie violation of the standard at 29 CFR 1910.23(c)(1)   which seeks to protect employees working both on top of a structure, and passing beneath such a structure.   I do not believe that, in this context, Subpart N of Part 1910 -- specifically 29 CFR 1910.176(b) is the only standard applicable to the situation herein.

While the evidence shows that respondent's employees did not stand on the cooler when they stored the material in question, it nonetheless became a "working space" within the definition given to "Platform" in 29 CFR 1910.21(a)(4).   Thus, while respondent's employees were standing upon one type of platform to store 20 pound pieces of metal framing on another platform, neither they nor others who might subsequently pass beneath the storage space were protected by perimeter guarding in the event that the material might fall.   The language in 29 CFR 1910.23(c)(1)(i) indicates that, "The railing shall be provided with a toeboard wherever, beneath the open sides, persons can pass." [Emphasis supplied.] Moreover, 29 CFR 1910.21(a)(9) defines "Toeboard" as, "A vertical barrier   at floor level erected along exposed edges of a floor opening, wall opening, platform, runway, or ramp to prevent falls of materials." [Emphasis supplied.]

I do not believe that the citation can be vacated on the basis that the top of the walk-in cooler was not a "working space" for respondent's employees when there is evidence of exposure to the potential hazard of falling materials.   For the reasons stated I would affirm the citation and vacate the proposed penalty.

[The Judge's decision referred to herein follows]

CHODES, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act) to review a citation issued on December 14, 1971, by the Secretary of Labor (hereinafter referred to as "Complainant") against the Ventre Packing Co., Inc. (hereinafter referred to as the "Respondent"), pursuant to Section 9(a) of the Act and to review a proposed penalty of $25 assessed on December 28, 1971, pursuant to Section 10(a) of the Act.

The Complainant in the citation, and in the complaint filed later, alleged that at a workplace under its ownership, the Respondent violated the Occupational Safety and Health Standard set forth in 29 Code of Federal Regulations, Section 1910.23(c)(1) relating to the protection of   opensided floors, platforms and runways. n1 This section provides:

(c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of   this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.   The railing shall be provided with a toe-board wherever, beneath the open sides,

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

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n1 The citation and proposed penalty also refer to other violations but the respondent filed Notice of Contest with respect to the cited Section only.

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Jurisdiction of this cause was conferred on the Occupational Safety and Health Review Commission upon the filing of the Notice of Contest referred to in the footnote No. 1 pursuant to Section 10(c) of the Act.   The matter was assigned to the undersigned judge by the Occupational Safety and Health Review Commission on June 23, 1972.   A hearing was held on August 7, 1972, in Syracuse, New York.   No affected employees intervened although duly notified of the proceeding.

On the basis of the citation, notice of proposed penalty, notice of contest, pleadings, admissions, stipulations, the testimony adduced at the hearing and the representations made by the parties, it is concluded that on the record as a whole, substantial evidence supports the following.

FINDINGS OF FACT

1.   The Respondent is a corporation of the State of New York, maintaining an office and place of business at 373 Spencer Street, Syracuse, New York (Complaint paragraph I, admitted by Respondent).

2.   The Respondent was and is engaged in a business affecting commerce within the meaning of Section 3(5) of the Act (Complaint paragraph II, admitted by Respondent).

3.   The Respondent is engaged in the business of packaging spaghetti sauces at 373 Spencer Street, Syracuse, New York, and is the smallest business of this type in the Syracuse Area (Transcript, page 5).

4.   The Respondent has a daily average of 15 employees (T-5).

  5.   In 1970,   the Respondent's net worth was $170,000 (T-5).

6.   On December 16, 1971, the Respondent was issued a citation for violation of, inter alia, the Occupational Safety and Health Standard set forth in 29 CFR 1910.23(c)(1) (Paragraph III of Complaint, admitted by Respondent).

7.   On December 28, 1971, the Respondent was notified of a proposed penalty for the violation referred to in paragraph 6 above in the amount of $25 (Paragraph IV of the Complaint, admitted by the Respondent).

8.   On January 5, 1972, the Respondent filed with the Complainant a notice of intention to contest the violation referred to in paragraph 6 above, and this notice was transmitted to the Occupational Safety and Health Review Commission (Paragraph V of the Complaint, admitted by the Respondent).

9.   The Respondent was not previously cited for violation of the Occupational Safety and Health Act of 1970 (Stipulation at T-5).

10.   On December 14, 1971, an authorized representative of the Complainant made an inspection of the Respondent's workplace at 373 Spencer Street, Syracuse, New York (T-8).

11.   On December 14, 1971, there was in the Respondent's workplace a concrete block structure which was an extension of a walk-in cooler. The top of this structure had open sides, was eight to nine feet high, at least six feet deep and at least ten feet wide (T-10, 15, and 26).

12.   The structure did not have a standard railing or equivalent on the open sides (T-10 and 11).

13.   On top of the structure referred to in paragraph 11 above were four metal frames, five feet by three feet, weighing 18 pounds each (T-10, 16, and 33).

14.   Access to the top of the structure to place and remove material was by means of a ladder (T-31).

15.   The metal frames were stored near the edge of the structure at an angle to the horizontal so that there was a possibility that the frames could slide off the structure and   cause injury to employees who might be walking alongside (T-10, 12, 16, and 34).

16.   There was a possibility that employees who stored material on the structure and performed the necessary functions to put material on or take material off the structure could fall off and suffer injury (T-13).

17.   The Respondent has discontinued the use of the structure for storage or any other purpose, has notified all of its employees to that effect and has posted a "Keep Off" sign on the structure (T-32).

DISCUSSION

There is no conflict in the evidence with respect to whether there was a standard railing or equivalent on the open sides of the structure on which the metal frames were stored, nor is there any dispute that the structure was more than four feet above the adjacent floor level.   Consequently, a violation of the standard in Section 29 CFR 1910.23(c)(1) would appear to be established.   The Respondent argues that the place where the metal frames were stored was not a "platform" but was a roof over the walk-in cooler and consequently there was no violation of the standard which refers specifically to "platforms."

The term "platform" as defined in 29 CFR, Section 1910.21(a)(4) is "a working space for persons, elevated sign is posted on the structure." Since the area is no longer being used as a "working space," abatement of the violation has been accomplished and there is no need for the Respondent to guard the area with a railing.

The question of the appropriateness of the penalty proposed by the complainant must also be determined in accordance with the provisions of Section 17(j) of the Act which provides that

The Commission shall have authority to assess all   civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the   violation, the good faith of the employer, and the history of previous violations.

The factors referred to in the Act were considered by the Complainant's representative in arriving at the penalty of $25 and in the light of these factors, the proposed penalty is considered appropriate.

CONCLUSIONS OF LAW

1.   The Respondent is, and at all times material hereto was, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2.   The Respondent is, and at all times material hereto was, subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3.   Respondent violated the 29 CFR 1910.23(c)(1) Occupational Safety and Health Standard on December 14, 1971.

4.   A penalty of $25 is assessed against the Respondent for violation of the standard referred to in paragraph 3 above.

5.    The violation referred to in paragraph 3 above has been abated.

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED:

1.   That the citation issued for violation of 29 CFR 1910.23(c)(1) be, and the same is hereby, affirmed.

2.   That a penalty of $25 be assessed for violation of the standard referred to in 1 above.