OSHRC Docket No. 4054

Occupational Safety and Health Review Commission

October 17, 1974


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



MORAN, CHAIRMAN: A decision of Review Commission Judge John J. Morris dated June 5, 1974 is before this Commission for review pursuant to 29 U.S.C. 661(i).

The case involves a citation under the Occupational Safety and Health Act of 1970 n1 alleging a violation of 29 U.S.C. 654(a)(2). The Judge affirmed the citation and assessed an $800.00 penalty. Following the direction for review of the decision below, the parties were offered the opportunity to submit briefs on the issues under review. None were submitted. We conclude that there is no dispute concerning these matters. The decision is therefore affirmed.

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

n1 29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.

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

We note, however, that the Act very clearly provides that when an employer timely contests a penalty proposal, the assessment of an appropriate penalty shall be made by this Commission. 29 U.S.C. 666(i). The Commission must act de novo [*2] even though the complainant has given consideration to the statutory criteria set forth in 666(i). Secretary v. OSAHRC and Interstate Glass Company, 487 F.2d 438 (8th Cir., 1973).

In this case the Judge, while acknowledging the foregoing, proceeded to assess the proposed penalty of $800.00 simply because he found "no error" therein. This process unwittingly shifts the burden of proof to the respondent to demonstrate the inappropriateness of the amount proposed by complainant. We reject this method of assessing penalties.

It would be contrary to the impartiality which the Commission is required to afford the parties . . . to permit the evidence and argument on monetary penalties of one adverse party to have any special status or be allowed any greater weight than that of other parties to the action. Secretary v. Dreher Pickle Company,

The direction for review asked "Was the assessed penalty [of $800.00] appropriate?" In view of the lack of response thereto, we conclude that it was.



CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case by the Chairman. I [*3] add only that the Judge's decision may also be read as merely accepting the advice of the Secretary on the penalty assessment, even though the proceeding is de novo. This would, of course, be consistent with the Eighth Circuit's Interstate Glass Co. decision.

VAN NAMEE, COMMISSIONER, concurring: I concur for the reasons stated by Chairman Moran. In addition, I would note that the penalty assessed hereby is supported by the evidence of record.

[The Judge's decision referred to herein follows]

MORRIS, JUDGE: This is a proceeding pursuant to 29 USC 659(c) for an adjudication under the Occupational Safety and Health Act of 1970, (29 USC 651, et seq ). Respondent is contesting certain citations issued by Complainant under the authority vested in Complainant by 29 USC 658.

The citation as amended alleges that on June 29, 1973 Complainant inspected a workplace described as a steel mill's 25 inch mill and located at Pueblo, Colorado.

It is further alleged that on the basis of the inspection at the above workplace Respondent violated 29 USC 654(a)(2) of the Act by failing to comply with occupational safety and health standards promulgated by Complainant, pursuant to 29 USC [*4] 655. Abatement immediately upon receipt of the citation was proposed.

The contested amended citation was issued on July 30, 1973 and it is alleged that the standards violated were published in the Code of Federal Regulations as hereinafter noted.

The description of the violation alleged in amended citation number 9 item 1, states as follows:

Employer did not provide a barrier guard or guard rail to protect employees from the point of operation of a bar roller line in the 25" mill, as follows:

A. Employees recording bar lengths on the roller table were exposed to the hazard of hot lengths of bars leaving the roll table and entering the area in which they were required to stand without being provided a barrier to protect them from the hazard on or about June 29, 1973 and times prior thereto.

C. Employees working as crop pullers at the hotsaw cutoff station were not provided with a standard railing and toeboard to protect them from accidentally falling and toeboard to protect them from accidentally falling onto the hot rolls of the roll table and into the hotsaw on or about June 29, 1973 and times prior thereto.

The citation alleges that the standards violated were [*5] codified at 29 CFR 1910.212(a)(3)(ii) and 29 CFR 1910.23(c)(3).

The foregoing standards as promulgated by the Secretary provide as follows:

1910.212 General requirements for all machines. (a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

1910.23 Guarding floor and wall openings and holes. (c) Protection of open-sided floors, platforms and runways. -- (3) Regardless of height, open-sided floors, walkways, platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard railing and toe board.

Citation number 10 and the proposed penalty therefor were not contested; accordingly, they are now final orders of the Review Commission by virtue of 29 USC 659(a).

Pursuant to the enforcement procedure as set forth in 29 USC 659(a) of the [*6] Act, the Respondent was notified by letter dated July 30, 1973 from J. J. Williams, Area Director for the Occupational Safety and Health Administration, U.S. Department of Labor; said Area Director proposed to assess a penalty for the violation alleged herein in the amount of $800.

After Respondent contested this enforcement action, and a Complaint and an Answer having been filed by the parties, the case came on for hearing in Pueblo, Colorado on November 5, 1973. No parties desired to intervene in the proceedings. Notice of the hearing was duly posted (Tr. 5).


The Respondent conceded that it is an employer under the terms and subject to the coverage of the Act and the only issues in controversy are the issues of seriousness of the violation, if any, and the reasonableness of the proposed penalty (Tr. 6, 8, 53-54).


A Federal compliance officer inspected Respondent's 25 inch mill on June 29, 1973 (Tr. 9, 10). This particular mill rolls various types of steel bars and plates on a roller line through roll stands (Tr. 11). The bars are red with heat in excess of 2500 degrees Farenheit and they come from the mill on a roll table [*7] which is 200 feet long (Tr. 12, 13). There are two employees near the roll table which is waist high (Tr. 11, 13). One of the employees is called a recorder, (he records the various lengths of the type of steel bars, Tr. 11; Compl's. Ex. 1 illustrates a piece of steel coming down the roll table Tr. 12). The other employee is called "crop puller" and he is located on a stand two to three inches above the roll table (Tr. 15-16, 35, Compl's. Ex. 2). At times the wide steel bars moving at 15 to 20 miles per hour will deflect and leave the roll table (Tr. 13-14, 15). The roll table is 24 inches wide and the diameter of a roll is 6 to 8 inches (Tr. 35). When a hot bar flies off the roller line it is known as a "cobble" (Tr. 39). When a bar jumps off the track the employees run for cover as such a bar can fold, bend, go straight up or down or "most anything" (Tr. 39-40). On some hours 20 bars will be recorded and in other hours 75 to 80 (Tr. 44). One of the recorders testified there would be some days where there were no cobbles and other days when it was as many as 20 (Tr. 41). On one occasion a bar left the table and tore away the turnstile walkway across the top of the roller [*8] table (Tr. 14, 15). For the crop puller there is the potential hazard of falling onto the table and either onto the steel or onto the hot rollers (Tr. 16). The compliance officer felt that there was substantial probability of death or serious physical harm by the crop puller falling into the steel and further he felt there was substantial probability of death or injury to the recorder (Tr. 18). The compliance officer recommended an unadjusted penalty of $1,000 and considered the violation serious in view of the gravity (Tr. 19, 20). There were two employees exposed (Tr. 20). He allowed Respondent a 10% credit for good faith; 10% for history and no credit for size (Tr. 20).

Cross-examination of the compliance officer developed that the compliance manual required a $1,000 unadjusted penalty (Tr. 26). Respondent had 820 buildings and about 6700 employees (Tr. 32). The compliance officer testified that he had inspected 80% of this plant and found five alleged serious violations and an indeterminate number of non-serious in the hundreds (Tr. 33-34).

Respondent's evidence consisted of the testimony of its safety officer (Tr. 47) who indicated that Respondent had been [*9] cited for 60 to 65 non-serious violations (Tr. 47). He further indicated that the crop puller is 8 to 10 feet west of the cutting saw (Tr. 48-49) and has a cubicle for his protection (Tr. 48-49).

There was an extreme paucity of evidence as to the alleged violation of one of the cited standards, namely 29 CFR 1910.212(a)(1). However the parties did not present any issue as to the applicability of this standard and such issue is not considered by this opinion.

Neither party filed a brief.

Respondent argued that no serious violation had been established.

Under 29 USC 666(k) a serious violation is deemed to exist. . .

. . . 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. . . .

It is apparent that this is a serious violation. The compliance officer testified that in his opinion there was substantial probability of death or serious physical harm to both the employee crop puller and the recorder (Tr. 16, 18). The testimony of an expert witness is not needed nor required under [*10] these circumstances as it must be declared as a matter of law that death or serious physical harm can exist where an employee is 2 to 3 inches above a roll table into which he can fall; and said table being either hot from steel or having steel thereon heated in excess of 2500 degrees (Tr. 12, 16).

All of the foregoing establish a serious violation under 29 USC 666(k). Further, the situation here presented involves a position above "dangerous equipment" as contemplated by 29 CFR 1910.23(c)(3). Accordingly, a standard railing and toe board are required.

Respondent's counsel further argues that the manner in which the penalty is calculated and assessed is unreasonable (Tr. 53-54). The administrative determination of an initial unadjusted penalty of $1,000 for a violation that has been determined to be serious is an administrative determination. Complainant's approach has the salutory effect of presenting a reasonably uniformed method of assessment throughout the wide scope of Complainant's enforcement powers. Respondent's attack on the method of calculation of the penalty and the assessment thereof overlooks the fact that Complainant's penalties are only proposals. [*11] Under 29 USC 666(j) the Congress provided:

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.

Respondent's argument is rejected. Complainant cannot assess penalties as this statutory authority is vested exclusively in the Review Commission. As to the authority of the Review Commission in this regard see Peter J. Brennan, Secretary of Labor v. Occupational Safety and Health Review Commission and Interstate Glass Company (8th Cir. 1973) 487 F2d 438.

The record as set forth above indicates that the Complainant gave due consideration to the proper statutory criteria in arriving at his proposed penalties and finding no error therein it follows that the proposed penalty of $800 should be affirmed.


1. Two of Respondent's employees are located in close proximity to a waist high roll table in a steel mill (Tr. 11, 12, 13).

2. The employee known as the "crop puller" is located [*12] on a stand 2 or 3 inches above the roll table (Tr. 15, 16, 35, Compl. Ex. 2).

3. Steel bars in excess of 2500 degrees Farenheit move down the roll table on rollers at a speed of 15 to 20 miles per hour (Tr. 12-15).

4. The "crop puller" employee can fall onto the red steel or onto the hot rollers (Tr. 16).

5. The railing and toe board will tend to protect the "crop puller" employee from falling onto the hot rolls or hot steel traveling on the 24 inch roll table.

6. In arriving at the proposed penalty the compliance officer considered exposure to employees and he further considered the gravity of the alleged violation (Tr. 19, 20).

7. Complainant allowed Respondent a 10% credit for good faith; 10% for history and no credit for size (Tr. 20).


1. The facts establish a serious violation of amended citation number 9, item 1 (Facts 1, 2, 3, 4, 5).

2. In arriving at his proposed penalties Complainant properly followed Review Commission policy including statutory credits (Facts 5, 6).

3. Amended citation number 9, item 1 and the proposed penalty of $800 should be affirmed.


Based on the foregoing findings of fact and conclusions of law it is hereby [*13] ordered and adjudged:

1. Amended citation number 9, item 1 for the alleged serious violation of 29 CFR 1910.23(3) is affirmed.

2. The proposed civil penalty of $800 for the violation established in the preceding paragraph is affirmed.