OAK LANE DINER
OSHRC Docket No. 398
Occupational Safety and Health Review Commission
July 20, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: On July 3, 1972, Occupational Safety and Health Review Commission Judge William E. Brennan issued a decision in this case holding that 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 comply with five occupational safety and health standards promulgated by the Secretary of Labor. He assessed no penalty. That decision was subsequently directed for review, pursuant to Section 12(j) of the Act.
After a full review of the record in this case, the Commission affirms the decision of the Judge in all respects except one -- the finding that respondent was in violation of the following:
29 C.F.R. 1903.2 -- Each employer shall post and keep posted a notice or notices to be furnished by the Occupational Safety and Health Administration, . . . informing employees of the protections and obligations provided for in the Act. . . .
There was uncontraverted evidence that the unposted notice had not been furnished as required. Consequently, the decision of the Judge holding that the respondent was in violation of this occupational safety and health standard is reversed. Secretary of Labor v. H. Wilson Corp.,
[Judge's decision referred to herein follows.]
BRENNAN, JUDGE, OSAHRC: this is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, Pub. Law 91-596; 29 U.S.C. 651 et seq.; (hereinafter the Act), to review a Citation for non-serious violations issued by the Secretary of Labor, (hereinafter Secretary) pursuant to Section 9(a) of the Act and penalties based upon the alleged violations proposed by the Secretary pursuant to Section 10(a) of the Act.
The record of this case reflects the following matters:
1. On December 30, 1971, the Secretary, pursuant to Section 9(a) of the Act, through the Philadelphia, Pennsylvania Area Director of the Occupational Safety and Health Administration, issued a Citation for non-serious violations to Oak Lane Diner, (hereinafter Respondent), alleging six violations of occupational Safety and health standards promulgated pursuant to Sections 6(a) and 8(g) of the Act, (36 FR. 10466 et seq. ). This Citation identified each alleged violation by Item number and set forth the following identification of the standards involved, description of and date for the abatement of each of the alleged violations:
Item 1. 29 CFR 1910.25(d)(1)(i) and (d)(1)(x) -- Step ladder, located in the basement, had a broken step and was not withdrawn from use.
Date of Abatement -- Immediately.
Item 2. 29 CFR 1910.157(d)(3)(i) -- Two soda acid fire extinguishers in the basement, have not received annual inspection as required.
Date of Abatement -- January 12, 1972.
Item 3. 29 CFR 1910.314(d)(4)(iii)(d) -- Exposed noncurrent-carrying metal parts of the food mixer, in the kitchen, was not properly grounded.
Date of Abatement -- January 7, 1972.
Item 4. 29 CFR 1910.316(d) -- Flexible cord on meat saw, in the basement, contained a splice.
Date of Abatement -- January 12, 1972.
Item 5. 29 CFR 1903.2 -- The OSHA notice, informing employees of their rights and obligations under the Act, was not posted as required.
Date of Abatement -- Immediately
Item 6. 29 CFR 1910.314(d)(1) -- The exposed noncurrent-carrying metal parts of the bench grinder, in the maintenance shop, was not properly grounded.
Date of Abatement -- January 7, 1972 (R. p.-1, Exh. p-2) n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 References are to pages in Commission Docket File No. 44, to the transcript of the hearing held herein (Tr. ) and to exhibits in evidence (Exh. ).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2. By his notification of Proposed Penalty also dated December 30, 1971, the Secretary pursuant to Section 10(a) of the Act, notified the Respondent of his intention to propose penalties in the amount of $35.00 based on Item No. 3, and $35.00 based on Item No. 6, totaling $70.00 for the violations alleged in the citation identified supra (R.P.2, Exh. P-3).
3. The Respondent pursuant to Section 10(c) of the Act, through a letter from its Executive Manager, Richard J. Neulight, dated January 4, 1972, gave notice of its intention to contest both the citation and penalties proposed thereon (R.p.3).
4. Pursuant to Section 10(c) of the Act, this case was thereafter referred to the Occupational Safety and Health Review Commission, (hereinafter Commission) for hearing, notice of receipt thereof being given to the parties of record by the Commission's notice dated January 12, 1972 (R.p.4).
On January 18, 1972, the Secretary through the Philadelphia Regional Solicitor's office, filed his Complaint in this matter (R.p.6).
On February 8, 1972, this case was assigned to the undersigned for hearing, notice of which being given to the parties of record under that date (R.p.8).
The Respondent herein was not represented by counsel. Its Executive Manager, Mr. Neulight, did, however, in substance answer the Secretary's Complaint by reiterating his intention to contest the alleged violations and proposed penalties by his letters dated February 15, and 19, 1972 (R.p. H-4, H-7).
The hearing in this matter was held as scheduled in Philadelphia, Pennsylvania on March 2, 1972. The Secretary was represented by the Philadelphia Regional Solicitor's office and the Respondent was represented by its Executive Manager. Both the Secretary and the Respondent filed proposed Findings of Fact and Conclusions (R.p.H-15, H-16).
Having considered the entire record herein, the stipulations, representations and admissions of the parties, the transcript of testimony and exhibits, it is concluded that the substantial evidence on the record considered as a whole, supports the following:
FINDINGS OF FACT
1. No affected employees or authorized representative of affected employees sought to participate in these proceedings as a party of record (Tr. 3).
2. The following stipulation, entered into by the parties of record on February 23, 1972, was entered into evidence as Exhibit P-1:
a) The Respondent, Taxco Corporation trading as Oak Lane Diner, is a corporation organized under the laws of the Commonwealth of Pennsylvania, maintaining its general office and place of business at Broad Street and 66th Avenue, Philadelphia, Pennsylvania.
b) The Respondent is engaged in the business of operating a restaurant receiving products shipped in interstate commerce. It is an employer engaged in a business affecting commerce, who has employees as defined by section 3(5) of the Act, and is subject to the regulations and standards promulgated thereunder.
c) The alleged violations did not result in injury to any employee of Respondent or to any other person.
d) Respondent owns and controls all equipment associated with those violations alleged within the Citation(s).
e) Respondent is approximately equal in size to several other restaurants within the same general area.
f) Respondent's dollar volume of business for the year 1971 was approximately $350,000.
g) Respondent has no prior history of violations under the Occupational Safety and Health (Standards) Act.
h) The Respondent employed approximately 36 employees on or about December 14, 1971, the date of the inspection.
i) The Respondent has properly posted the citation and notice of hearing within its workplace.
j) Proper service of the citation and notice of proposed penalties was made upon the Respondent and is not at issue.
k) The authenticity of the following documents is agreed to:
(i) OSHA Form No. 2, Citation issued December 30, 1971.
(ii) OSHA Form No. 3, Notification of Proposed Penalties, issued December 30, 1971.
(iii) OSHA Form No. 10, Penalty Assessment Worksheet (Tr. 5, Exh. P-1).
3. The following matters were affirmed by Respondent's Executive Manager at the hearing:
a) The Citation, Notice of Proposed Penalty, Notice of Respondent's intention to contest, and a copy of the "answer" were all posted at the Respondent's workplace, as was the notice of the time and place of the hearing. There was also posted a notice to employees of their right to participate in the hearing. Respondent's employees are not represented by an authorized bargaining agent (Tr. 5, 6).
b) The violations as alleged have been abated (Tr. 7, 9, 10, 11).
c) The Executive Manager of Respondent is not an attorney (Tr. 12).
4. The Respondent, through its Executive Manager, admitted that the conditions set forth in Items numbered 3, 4 and 6 of the Citation did exist on December 14, 1971, at Respondent's restaurant and that said conditions constituted violations of the standards as alleged (Tr. 16, 17).
5. On December 14, 1971 Compliance Safety and Health Officer Charles Green, an authorized representative of the Secretary, made an inspection of Respondent's restaurant located at 6528 North Broad Street, Philadelphia, Pennsylvania. Mr. Green conducted both an opening and closing conference with Respondent's Executive Manager, Mr. Neulight, and was accompanied by him throughout the inspection. During this inspection, the violative conditions were pointed out to Mr. Neulight and the standards in question were also pointed out to him (Tr. 21-23, 26).
6. The Secretary introduced no testimony concerning those conditions alleged to have existed at Respondent's restaurant on December 14, 1971, as set forth in Items numbered 3, 4, and 6 in the Citation in view of the Respondent's admissions (See Finding No. 4, supra ).
The unrebutted evidence of record conclusively establishes that those conditions alleged to have existed at Respondent's restaurant on December 14, 1971, as set forth in Items numbered 1, 2 and 5 in the Citation, did in fact exist as alleged.
Based upon Respondent's admissions and the substantial evidence of record, it is concluded that this Respondent, on December 14, 1971, at its restaurant located at 6528 Broad Street, Philadelphia, Pennsylvania, did violate those standards listed in the Citation herein in the manner described therein (Tr. 21, 24-26, 32, 34-38, 40-42, 57; Exh. P-2).
7. All of the violations set forth in this Citation were specifically determined not to be of a serious nature by the Philadelphia Acting Area Director, Mr. Allendorf, based upon his conclusions that in connection with each violation, there was either a low likelihood of an injury occurring, or if an injury did occur, it would not result in death or serious physical harm. There is no evidence of record to the contrary (Tr. 48, 49).
8. Compliance Officer Green testified that Respondent had a "satisfactory safety program" (Tr. 26), in that its restaurant was located within a relatively short distance from a hospital, its safety record was ". . . excellent, no reported injuries during the period July 1 to December 14, the date of the inspection" (Tr. 26, 27). Respondent was not large enough to have safety committees as such, and that the general housekeeping was "excellent" (Tr. 27). He further testified that Respondent was ". . . very cooperative," and that it was . . . well up on their inspections of the fire extinguishers."
(The testimony reflects that Respondent had 10 fire extinguishers throughout its restaurant, four of which were located in the basement. Of these 10, only two in the basement had no evidence of the required annual inspection (Tr. 37, 38, 45).
Officer Green, therefore, rated Respondent as satisfactory (Tr. 26, 27).
9. Mr. Allendorf appeared as a witness, (Tr. 39), and testified to having reviewed Officer Green's investigation report with him and to having determined that the alleged violations did exist at Respondent's restaurant on December 14, 1971. After reviewing his determinations as to Items numbered 1, 2 and 5 (Tr. 41, 42) he testified to the method he used pursuant to the Secretary's directives in computing the proposed penalties as reflected in Exhs. P-3, and P-4 as follows:
An unadjusted penalty is first determined by applying the following considerations:
(a) The probability or likelihood of an injury or disease occurring because of the violation. This probability is rated from "a" to "x," "a" being the lowest possibility or probability.
(b) The severity of injury or disease which may result is then rated using a similar scale.
(c) The extent that the standards were violated, which essentially means the number of standards found to have been violated during an inspection.
After arriving at the initial unadjusted penalty the following additional adjustments are thereafter made:
(i) Good faith -- consideration of the safety program and the way the employer receives the inspector. A 10% reduction was allowed this Respondent as to good faith.
(ii) The size of Respondent. This Respondent was allowed a 5% reduction due to the fact that it has between 20 and 100 employees.
(iii) History of the Respondent. This Respondent received the full 20% reduction based on history of previous violations.
After these reductions there is a further adjustment factor which is termed a "50% abatement credit," which is applied assuming that the Respondent will abate the violations noted in the Citation on or before the date set forth in the Citation (Tr. 42-45).
Applying this formula, no penalties were proposed concerning Items numbered 1, 2, 4 and 5 in the Citation, and penalties in the amount of $35.00 were proposed as to Items numbered 3 and 6 therein, totaling $70.00 (Tr. 39-48; Exhs. P-3, P-4).
10. Respondent produced the testimony of one witness, its Executive Manager, Mr. Neulight, who has been in the food service business with various concerns for thirteen years. In expressing the Respondent's position in this case infra, the undersigned was impressed with Mr. Neulight's sincerity, intelligence and good faith.
As to the violations herein found to exist, Mr. Neulight readily admitted the factual situation set forth in Items numbered 3, 4, and 6 of the Citation (Tr. 16, 17).
As to Items numbered 1, 2 and 5 of the Citation, Mr. Neulight stated that the facts as reported by Officer Green were accurately reported and that he had no objection thereto except for Green's conclusion as to Item number 1, that the step ladder in question was in use. It was Mr. Neulight's position that this ladder had been used on the first floor of the restaurant by the maintenance men to change electric light bulbs in that high ceilinged area, but on the day of the inspection, and for some weeks prior, this ladder was in the basement, (where Respondent also had short ladders for use in that area) and that in fact, the ladder in question was not in use as he readily acknowledged that he knew it to be unsafe (Tr. 34-37).
As to Item number 2 in the Citation, there was an indication that perhaps the two fire extinguishers in question were not in use and were awaiting inspection and service on December 14, 1971, and that there were two extinguishers in the basement area and eight additional extinguishers in the restaurant in full compliance with the standards (Tr. 37-39, 45).
Respondent's major position is essentially that prior to the date of the inspection, December 14, 1971, it had neither knowledge nor notice of either the Act or the standards and regulations promulgated thereunder applicable to its business, and because of said lack of knowledge the penalties proposed are "premature" (Tr. 17) and should not be accessed.
The substantial evidence of record clearly establishes this lack of prior notice and knowledge. In fact, Item number 5 of the Citation specifies that the Respondent, in violation of 29 CFR 1903.2, did not have posted in its restaurant on December 14, 1971, "The OSHA notice, informing employees of their rights and obligations under the Act, . . ." This regulation states that such notices are to be "furnished" to employers by the Occupational Safety and Health Administration (See 29 CFR 1903.2(a)). The record of this hearing establishes that such notices were not furnished to this Respondent prior to December 14, 1971 (Tr. 25, 26).
Mr. Neulight further testified that during his 13 years in the restaurant business, he had never been cited by any regulatory agency (Tr. 62), and that prior to December 14, 1971, he, as the individual with the day to day operational responsibility of the restaurant here involved, nor anyone else connected with Respondent had ever received any notice of any description from the Department of Labor or any of its agents concerning the Act or regulations promulgated thereunder. Additionally, although the Respondent was a member of the Philadelphia-Delaware Valley Chapter of the Pennsylvania Restaurant Association, which organization publishes a newsletter for its membership, to the best of Mr. Neulight's recollection, no notice of the Act of Regulations applicable to restaurants had appeared in this trade publication. He further testified that he contacted five other restaurant operators in the Philadelphia area, only one of whom acknowledged knowing of the Act of Regulations applicable to restaurants (Tr. 61-73).
11. Although lack of knowledge of the law is not an excuse for violation thereof in contemplation of law, this Respondent's lack of prior knowledge of either the Act or Regulations applicable to it, coupled with the mitigating facts and circumstances detailed in the foregoing Findings, and in view of this Respondent's excellent safety record, expeditious abatement, satisfactory safety program, very cooperative attitude, sincere efforts to comply with those requirements of which it had knowledge, and the fact that no injuries of any description were connected with the non-serious violations herein found to exist, it is concluded that pursuant to the provisions of Section 17(j) of Act and consistent with the policy of the Review Commission announced in Secretary of Labor v. J.E. Chilton Millwork & Lumber Company, Inc.,
12. All of the violations herein found to have existed on December 14, 1971 have been abated (Tr. 7-11).
CONCLUSIONS OF LAW
1. Jurisdiction of this action is conferred upon the Commission by Section 10(c) of the Act.
2. At all times involved in this case, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.
3. At all times involved in this case, Respondent furnished employment to its employees at a workplace located at Broad Street and 66th Avenue, Philadelphia, Pennsylvania, and the Act is applicable to such employment within the meaning of Section 4(a) of the Act.
4. On December 30, 1971, the Secretary, pursuant to the provisions of Sections 9(a) and 10(a) of the Act, issued to this Respondent a Citation for six non-serious violations of Occupational Safety and Health Standards promulgated pursuant to Sections 6(a) and 8(g) of the Act and a Notification of Proposed Penalties thereon in the total amount of $70.00.
On January 4, 1972, pursuant to the provisions of Section 10(c) of the Act, this Respondent timely filed with the Secretary its notification of intent to contest this Citation and proposed penalties.
The Secretary thereupon transmitted this case to the Commission which, pursuant to provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.
5. On December 14, 1971, this Respondent at its restaurant located at Broad Street and 66th Avenue, Philadelphia, Pennsylvania violated Section 5(a)(2) of the Act in that it failed to comply with the following Occupational Safety and Health Standards promulgated under this Act:
a) 29 CFR 1910.25(d)(1)(i) and (d)(1)(x) in that there was located in the basement of this workplace a step ladder which had a broken step and it was not tagged or marked as "Dangerous, Do Not Use."
b) 29 CFR 1910.157(d)(3)(i) in that two fire extinguishers were located in the basement of this workplace which had not received the required annual inspection.
c) 29 CFR 1910.314(d)(4)(iii)(d) in that the exposed noncurrentcarrying metal parts of a food mixer located in the kitchen of this workplace were not properly grounded.
d) 29 CFR 1910.316(d) in that a flexible cord affixed to a meat saw in the basement of this workplace contained a splice.
e) 29 CFR 1903.2 in that the Occupational Safety and Health Administration notice, informing employees of their rights and obligations under the Act, was not posted at this workplace as required.
f) 29 CFR 1910.314(d)(1) in that the exposed noncurrentcarrying metal parts of a bench grinder located in the maintenance shop of this workplace were not properly grounded.
6. These violations were specifically determined not to be of a serious nature, consistent with the provisions of the Act.
7. The civil penalties proposed by the Secretary, to wit, $35.00 based upon the violation identified as Item No. 3 in the Citation, and $35.00 based upon the violation identified as Item No. 6 in the Citation, totaling $70.00 are, as to amounts, consistent with the provisions of the Act.
Based upon the foregoing Findings of Fact, Conclusions and Determinations, and pursuant to the provisions of Section 10(c) of the Act, it is hereby,
ORDERED
1. That the Citation for non-serious violations dated December 30, 1971 directed to the Respondent herein as issued by the Secretary is AFFIRMED.
2. That the Notification of Proposed Penalties dated December 30, 1971 directed to the Respondent herein as issued by the Secretary is vacated. No civil penalties are assessed.