NATIONAL CLEANING CONTRACTORS, INC.

OSHRC Docket No. 4740

Occupational Safety and Health Review Commission

November 21, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Vernon Riehl dated April 16, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision holding that respondent violated the Occupational Safety and Health Act of 1970 n1 by its failure to comply with 29 U.S.C. 654(a)(1) is affirmed.

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n1 84 Stat. 1590, 29 U.S.C. 651 et seq.

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CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case. I agree with the findings and conclusions of the Administrative Law Judge for the reasons that he has assigned.

[The Judge's decision referred to herein follows]

RIEHL, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970, (29 USC 651 et seq., hereinafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleges that [*2] a workplace under the ownership, operation and control of the Respondent reveals the existence of workplace conditions that violate Section 5(a) of the Act.

The Citation alleges that the violation results from a failure to comply with Section 5(a) pursuant to enforcement procedures set forth in Section 10(a) of the Act, the Respondent was duly notified, by letter, by the Occupational Safety and Health Administration that the U.S. Department of Labor proposed to assess a penalty for the violations alleged in the total amount of $600. The Respondent, by letter dated September 24, 1973, addressed to A. F. Castranova, Area Director, OSHA, gave notice of its intention to contest the Citation.

The case was duly transmitted to the Occupational Safety and Health Review Commission and docketed as number 4740. A hearing was held on February 22, 1974, at which time both Complainant and Respondent appeared and presented evidence. At the start of the hearing, the parties stipulated that Mr. Wendell Robinson, while an employee of National Cleaning Contractors, Inc., on August 23, 1973, and while in the employment of National Cleaning Contractors, Inc., fell into an elevator shaft. [*3]

DISCUSSION

It was undisputed that Wendell Robinson, an employee of the Respondent on August 23, 1973, while in employment of Respondent, fell into an elevator shaft. The only question was whether or not the evidence would support a Serious Violation of Section 5(a) of the Act.

The issue therefore will be whether or not the Respondent failed to furnish his employees, working at the Syndicate Trust Building, a place of employment which was free from recognized hazards; and, did Respondent know, or could have known, with the exercise of reasonable diligence of the presence of the violation, i.e., the hazard. We have carefully considered the total evidence of record and the credible, substantial, probative evidence establishes that the Respondent did fail to furnish employment and a place of employment which were free from recognized hazards and that the Respondent knew or should have known of the presence of the hazard.

Section 5(a)(1) of the Act, provides that:

Sec. 5.(a) Each employer --

(1) 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 [*4] to his employees;

The purpose of the General Duty Clause is explained in Senate Report 91-1282:

The committee recognizes that precise standards to cover every conceivable situation will not always exist. This legislation would be seriously deficient if any employee were killed or seriously injured on the job simply because there was no specific standard applicable to a recognized hazard which could result in such a misfortune. Therefore, to cover such circumstances the committee has included a requirement to the effect that employers are to furnish employment and places of employment which are free from recognized hazards to the health and safety of their employees.

The Respondent herein was cited for failing to provide its employees employment and a place of employment which were free from recognized hazards in that its employee, Wendell Robinson, was not instructed or warned of the hazards that might exist when access to the elevator is gained through release of the emergency release device.

Evidence of record establishes that Respondent, through its supervisor, Wes Hardy, knew that employee Robinson was opening the hoistway doors by tripping the emergence release [*5] device. The Respondent had instructed him to open the hoistway doors in that manner and Mr. Hardy knew that Robinson intended to open them in that manner at the time of his fall (T. 42, 45).

Respondent's argument is that although it knew its employees at the Syndicate Trust Building were using the emergency release device, as a means of gaining access to the elevator, it had no reason to believe that such was a hazard or that the practice was a violation.

Under Section 5(a)(1) of the Act, it is not a requirement or a responsibility that a particular individual employer have personal knowledge of certain conditions that constitute hazards. It is only necessary that a condition is known to be hazardous taking into account the standard of knowledge in the industry. Secretary of Labor v. Southern Soya Corporation,

In other words, whether or not a hzard is "recognized" is a matter for objective determination; it does not depend on whether the particular employer is aware of it. . . . A danger, in other words, may be recognized as such in the industry, but may not be apparent to an employer who is ill-informed [*6] and does not choose to investigate the danger of the situation.

Congressional Record, November 23, 1970, as cited in American Smelting, Supra, Southern Soya, Supra.

Therefore, the test for recognized hazard is an objective test. The same is true when determining whether or not a particular employer could have, with the exercise of reasonable diligence, known of the presence of a hazard. The fact that the employer thought the condition was safe, and did not recognize the fact that the condition was a hazard does not exonerate the employer. Secretary of Labor v. Tolar Construction Company,

Lewis Stoppelman, Chief Mechanical Engineer with the St. Louis Department of Public Safety, testified that its certainly a recognized hazard in the industry to instruct a person to open the hoistway doors by use of the emergency release device without also warning that person of the dangers associated with the opening of the hoistway doors in that manner (T. 23).

The record indicates that the extent of the "warnings" given to employee Robinson was that his supervisor, at the [*7] time he was instructing employee Robinson in the manner of opening the hoistway doors, "just happened to mention" the floor indicator. The supervisor, Hardy, testified that "I thought he would take this (floor indicator) into consideration when opening the elevator" (T. 45). The record shows that Mr. Robinson was never warned that the elevator car may not be at the floor landing when he opened the hoistway doors. Robinson testified that he was never warned of any hazard or dangers that might be encountered in opening hoistway doors by releasing the emergency release device (T. 9).

In Secretary of Labor v. Richmond Block Inc.,

The total record is replete with illustrations of where the Respondent has completely failed its duty to meet the standard of care of the industry. The hazard involved was well recognized by others in the [*8] industry. The employee, Mr. Robinson was completely uninformed on essential safety practices. thus, he was unaware of the danger involved and was injured. Respondent has completely failed in its duty to properly educate his employees concerning the dangers of opening hoistway doors for use of the emergency release device. Respondent has stated however that this condition is now corrected.

FINDINGS OF FACT

1. Respondent's workplace was inspected on August 24, 1973, and a Citation was duly issued for a Serious Violation on September 13, 1973, pursuant to Section 9(a) of the Act.

2. The Secretary in the Notification of Proposed Penalty dated September 13, 1973, notified the Respondent, pursuant to provisions of Section 10(a) of the Act, that a penalty of $600 was being proposed for the violation alleged in Citation for Serious Violation No. 1.

3. On September 24, 1973, Respondent gave notice of its intention to contest the Citation.

4.

5. Respondent was cited under Section 5(a)(1) of the Act (commonly referred [*9] to as the General Duty Clause) for failing to furnish his employees, who use the service elevators at the 9th Street lobby of the Syndicate Trust Building, a place of employment which was free from recognized hazards that were causing or likely to cause death or serious physical harm to its employees.

6. On August 23, 1973, Respondent's employee Wendell Robinson, while in the course of his employment by Respondent, fell 23 feet into an elevator shaft at the Syndicate Trust Building (T. 5, 7 and 9).

7. Employee Robinson started work at approximately 6:30 p.m., on August 23, 1973. Before beginning his work he went to the front desk and obtained the tools which were kept specifically for the purpose of opening the hoistway doors on the elevator used by Robinson in the performance of his duties for Respondent (T. 7, 42).

8. Robinson used these tools to open the hoistway doors by means of the emergency release device (T. 15). He stuck one of these tools in the hole in the hoistway doors and pressed "up" on the emergency release device. He then used the other tool to pull the door open (T. 7). This is shown in Government Exhibits 1 through 6. (T. 26) The employee, Robinson, [*10] thereafter opened the door and stepped into the shaft, the elevator car was not there and he fell sustaining injuries to his head, lower back and leg. These injuries required hospitalization (T. 10). The employee, Robinson, had been instructed to use this particular elevator in the performance of his duties (T. 9). Other elevators which might have been available for use by the employee had been locked out of service at 5:30 p.m. (T. 42). Also the light in this particular elevator car was normally turned off (T. 43).

9. The Supervisor, Wes Hardy, showed Robinson the method of opening the hoistway doors (T. 8, 45). However, employee Robinson had not been properly warned of any hazards or dangers which might be encountered in opening the hoistway door (T. 9).

10. As employee Robinson went to the main desk to obtain the tools for opening the hoistway doors, Mr. Hardy was sitting at the desk and observed Robinson getting the tools (T. 8, 41). Hardy knew at this time that Robinson was going to use the tools to open the hoistway doors (T. 42).

11. Louis E. Stoppelman, Chief Mechanical Engineer for the St. Louis Department of Public Safety, and a registered professional engineer [*11] (T. 13, 14), testified that any individual using the emergency release device to gain access to an elevator "should be thoroughly trained as to how to open the door and what to look for before he steps into the space " (emphasis added) (T. 16). Expert Stoppelman testified that when an employee is not shown how to open the door or warned as to the hazards associated with so opening the door, this constitutes a recognized hazard in the industry, training a person to open the door without giving him proper warnings (T. 23).

12. A penalty assessment worksheet, Government Exhibit No. 7 was used by the Compliance Officer, Mrs. Horsley, OSHA Office, to determine the penalty to be proposed for the violation alleged in the Citation for Serious Violation (T. 28).

13. The unadjusted penalty for the Serious Violation is $1,000 (T. 28).

14. The Compliance Officer testified that she referred to the National Safety Council Manual on Accident Prevention to determine the gravity of the hazard created by the conditions of employment maintained by Respondent at the Syndicate Trust Building (T. 32, Exhibit G-8). The Compliance Officer testified that the likelihood of serious injury [*12] resulting from this hazard was high because the manual indicated that the type of fall suffered by Mr. Robinson had happened many times before (T. 32, Exhibit G-8). The manual used by Mrs. Horsley was and is used as the reference textbook at the Chicago Institute for Occupational Training (which conducts Occupational Safety and Health Compliance Training Programs) and as a reference book by the Occupational Safety and Health Administration, St. Louis Area Office (T. 33, 34).

15. The unadjusted penalty of $1,000 was then reduced by a percentage factor representing Respondent's good faith, size and history (T. 28). No percentage reduction was given for size because Respondent had over 100 employees. This was the first visit to Respondent's plant by OSHA. Since there was no prior history of violations, Respondent was given a 20 percent reduction for history (T. 29).

16. The total percentage reduction factor was 40 percent. The proposed penalty, therefore, was $600.

CONCLUSIONS OF LAW

1. Respondent was at all times concerned herein an employer within the meaning of Section 5(a) as defined in Section 3(3) and 3(5) of the Act.

2. Jurisdiction of this proceeding is conferred [*13] upon the Commission by Section 10(c) of the Act and the Citation issued was in accordance with Section 9(a) of the Act.

3. The abatement period was not contested by the Respondent or by any employee or employee representative as provided in Section 10 of the Act.

4. Respondent did not provide its employees working at the Syndicate Trust Building, St. Louis, Missouri, employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to its employees.

5. Respondent, by permitting and directing its employee Wendell Robinson and other employees to gain access to the maintenance elevator at the Syndicate Trust Building by means of the emergency release device, knew or could have known with the exercise of reasonable diligence of the presence of the hazard, thereby, preventing injury to employee Robinson.

6. Respondent by directing its employee to gain access to the aforementioned elevator in the above referred to manner, without giving said employee sufficient warning as to the hazards involved in gaining access in that manner, created a condition of employment from which there was a substantial [*14] probability that death and serious physical harm could result.

7. A penalty of $600 is appropriate within the meaning of Section 17(j) of the Act.

DECISION

Based on the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that:

The Citation for Serious Violation is affirmed and a penalty of $600 is assessed.