DREHER PICKLE COMPANY

OSHRC Docket No. 48

Occupational Safety and Health Review Commission

February 13, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: On July 7, 1972, Review Commission Judge John R. Rampton, Jr., issued a decision in this case holding that the 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) in that he failed to comply with two occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 of the said Act, to wit: the standard set forth in 29 CFR 1910.314, requiring the grounding of electrical equipment, and the standard set forth at 29 CFR 1910.23(c)(1), requiring the use of guard rails around open-sided platforms. He assessed a penalty of $812 of which $162 was for absence of guard rails and $650 for improper electrical grounding. Thereafter, pursuant to Section 12(j) of the Act, I directed that the decision be reviewed by the Commission.

The Commission has reviewed the record in this case and the briefs of the parties. On the basis of such review, the Commission finds that the Judge correctly found that respondent had violated the Act as charged, but that he failed to assess penalties therefore in accordance with Section 17 of the Act.

Section 17 sets forth certain penalties authorized to be assessed against those found to be in violation of the Act. Subsection 17(j) vests the sole authority to assess civil penalties in the Commission and provides the criteria to be considered in so doing:

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.

In this case, the record shows that the Judge did not give the consideration required. He simply accepted a figure proposed by one of the parties (the Secretary of Labor), based on a formula devised by the Secretary, which he alleges gives due consideration to the statutory criteria stated above. Even if it is assumed that the Secretary has given such consideration, the mandates of the statute have still not been fulfilled. Congress has required that this consideration be given by the Commission, not by the Secretary. There is no escaping the clear Congressional mandate that the Commission's consideration of penalties when they are contested are to be made independently of the Secretary's computations. This is especially important where, as in the instant case, respondent has not only disputed the fact of violation, but has specifically contested the Secretary's proposed penalties. Under such circumstances, he is entitled to a determination thereof by the body created by Congress "for carrying out adjudicatory functions under the Act." n1

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n1 Section 2(b)(3) --. . . by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to business affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act.

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The Judge's decision does no more than reiterate and adopt the Secretary's computations, a disposition which, if allowed to stand, would effectively vest in the Secretary the power to assess (as well as propose) penalties, a prerogative in no way authorized by the Act. n2

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n2 The Secretary himself does not assert any authority over penalties except to propose the amount thereof at the time an employer is cited for a violation. Sec Chapter XI, Compliance Operations Manual, January 1972, U.S. Government Printing Office, Washington, D.C. After he has proposed such an amount, the employer has the option of accepting that determination or contesting it. Once he has chosen to pursue the latter option, there is no further purpose in according any standing to the proposed penalty, for the issue of what penalty is appropriate, if any, is then within that sole jurisdiction of the Commission. When this issue is before the Commission, the Secretary and the employer are adverse parties. It would be contrary to the impartiality which the Commission is required to afford the parties, pursuant to Section 10(c) of the Act, 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.

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Furthermore, at no place in the decision is it demonstrated that one of the required criterion, the gravity of the violation, was an element considered in the assessment of penalties.

In Secretary of Labor v. Nacirema Operating Company, Inc., A review of the record in the instant case reveals that the guidelines which this Commission set forth in Nacirema were not applied here by the Judge. If they had been, a different result would have been reached.

Demonstration of good faith is described in Nacirema as:

. . . the employer's own occupational safety and health program, its commitment to the objective of assuring safe and healthful working conditions, and its cooperation with other persons and organizations (including the Department of Labor) seeking to achieve that objective (p. 4).

In arriving at a penalty for violation of the electrical grounding safety standard, Judge Ramption adopted the Secretary's penalty formula which we faulted in Nacirema. He accepted a 20% credit, the maximum allowable under that formula, for respondent's good faith even though it is abundantly clear from the evidence of record that the employer not only had no safety programs for its employees, but also had knowledge that its employees over a period of time had been receiving electrical shocks while loading pickies from a conveyor belt. That respondent rapidly abated the conditions causing this violation cannot compensate for the fact that the employer knowingly exposed its employees to the dangers of hazardous electrical circuitry. Under the circumstances, it can only be concluded that the element of good faith was not present here and cannot be accorded any weight in arriving at an appropriate penalty.

The degree of gravity of a violation is determined by the potential for injury. The death of an employee, while not probative of the existence of a violation, nevertheless is probative evidence on the issue of gravity if the condition which constituted the violation contributed to the fatality. There can be no question that the violation for which respondent was cited was of the highest degree of severity: An employee of the respondent died from electric shock while standing unprotected in briney water loading pickles from an improperly grounded conveyor belt.

It is this fact, coupled with the employer's lack of good faith, which compels us to assess the maximum penalty prescribed under Section 17(b) of the Act. While respondent has no history of previous violations, nor is there any evidence of respondent's size, the gravity of the violation and the demonstrated lack of good faith are of overriding importance in this case. As the Commission held in Nacirema,

. . . the four criteria to be considered in assessing penalties cannot always be given equal weight. Obviously, for example, a particular violation may be so grave as to warrant the assessment of the maximum penalty, even though the employer may rate perfect marks on the other three criteria. (p. 6).

The other violation which was present in this case was the failure to have a guard rail around an opensided loading platform 35 feet high. It is the Commission's view that this is an offense which includes a relatively high degree of danger to employees working at that height. Taking this into consideration, along with the factors of good faith, history of violations and size of employer's operation, as discussed above, the Commission assesses a penalty of $500.00.

Based upon the foregoing, we affirm the Judge's finding that respondent violated Section 5(a)(2) of the Act as charged. His findings on the penalties are vacated and a total penalty of $1,500.00 is hereby assessed.

CONCURBY: BURCH

CONCUR:

BURCH, COMMISSIONER, concurring: It is necessary to comment briefly regarding one aspect of the majority's discussion of the first violation. This Commission has previously held that it has the sole authority to assess civil penalties, pursuant to section 17(j) of the Act. Secretary of Labor v. Thorleif Larsen and Son, Inc., My colleague reiterates this proposition, but seems to raise some doubt regarding the circumstances under which this authority vests with the Commission. In Thorleif Larsen, supra, it is clearly stated that the Commission's authority is predicated only upon a citation being contested, regardless of whether the amount of the penalty has been placed in issue. I disassociate myself from the dicta in the instant opinion which could be construed as requiring that the amount of the penalty must be specifically contested before the Commission may exercise its statutory authority.

In my concurring opinion in Secretary of Labor v. Baltz Brothers Packing Company, The occurrence of an accident in violation of the Act need not be substantially probable in order for a violation to be serious, within the meaning of the Act. See discussion in Baltz, supra. Here, it is manifest that the failure to comply with 29 CFR 1910.23(c)(1), the second violation, requiring guard rails around platforms over four feet in height, constitutes a serious violation because of the substantial probability that death or serious physical harm could result if a fall occurred from the platform in question, which exceeds 35 feet in height. The majority's discussion of the gravity of the violation is as follows:

. . . This is an offense which includes a relatively high degree of danger to employees working at that height.

I agree with that conclusion, which is one of the reasons the violation should be considered serious. However, inasmuch as the penalties assessed herein approximate those which would result from the application of the guideline I used in Baltz, supra, I concur in the result.

[The Judge's decision referred to herein follows]

RAMPTON, JUDGE, OSAHRC: This is an action 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 two citations issued by the Secretary of Labor against the Dreher Pickle Company. One of the citations, issued on September 3, 1971, was for a serious violation and the other, issued September 7, 1971, was for a non-serious violation. A notice of proposed penalty was served upon the Respondent assessing a penalty of $750 for the serious violation and a penalty of $187 for the nonserious violation. The Respondent filed a Notice of Contest on September 15, 1971.

A prehearing conference and hearing were held on December 14, 1971, in Fort Collins, Colorado. The Secretary of Labor was represented by Mr. Roger Rutter and Mr. Ronald Whiting, Attorneys, U.S. Department of Labor, Denver, Colorado. The Respondent was represented by Mr. Alden T. Hill, Attorney, Fort Collins, Colorado, and Mr. Glen A. Bergmann, Attorney, Denver, Colorado.

At the prehearing, the parties stipulated:

1. That Respondent reserved the right to argue in its briefs the constitutional question of whether the penalties proposed by the Occupational Safety and Health Administration are criminal in nature and, if so, is Respondent entitled to a trial by jury (T-3).

2. Counsel for the Secretary of Labor reserved the right to meet any constitutional questions raised by Respondent in the event the final order of the Occupational Safety and Health Review Commission is appealed.

3. In the event the Act is constitutional, the Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter and that the Dreher Pickle Company operation in Fort Collins is subject to the Act.

4. That the evidence offered by the Secretary, with respect to the alleged serious violation, would relate only to electrical grounding under 29 CFR 1910.314.

Following are my findings of fact and conclusions of law.

CONSTITUTIONALITY OF THE ACT

At the hearing it is recognized that Respondent may have raised the question of the constitutionality of the Act solely for the purpose of preserving its right of appeal to the courts from a final decision of the Occupational Safety and Health Review Commission. However, since the issue was raised, comment should be made as to the power of administrative agencies to pass on constitutional questions. In 73 C.J.S., Public Administrative Bodies and Procedure, Sec. 67, it is stated:

In general, administrative officers and agencies may not determine constitutional questions. Accordingly, they have no power or authority to consider or question the constitutionality of an act of the legislature, or decide with finality whether their own acts are in conformity with constitutional requirements as a matter of fact and law.

In Administrative Law Treatise, Davis, Vol. 3 20.04, the following appears:

We commit to administrative agencies the power to determine constitutional applicability, but we do not commit to administrative agencies the power to determine constitutionality of legislation. Only the courts have power to take action which runs counter to the expressed will of the legislative body.

Citing Engineers Public Service Co. v. SEC, 78 U.S. App. D.C. 199, 138 F.2d 936 (1943); Public Utilities Commission v. U.S., 355 U.S. 534, 78 S. Ct. 445, 2 L.Ed.2d 470 (1958).

I therefore conclude that I have no jurisdiction to rule upon the issue of the constitutionality of the Act.

NONSERIOUS VIOLATION

The nonserious citation alleged a violation of Article 1910.23(c)(1) in that the Dreher Pickle Company did not have guard railings on the pickle vat docks. The parties stipulated at the pretrial conference that a guard rail did not exist at the time of the investigation on September 2, 1971 (T-4), and that this violation ceased prior to the abatement date of October 27, 1971.

Title 29, Part 1910.23(c)(1) states:

Every open-sided floor or platform four feet or more above the 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 an entrance to a ramp, stairway, or fixed ladder . . .

Respondent's defense to this citation is based on the wording of the title of 1910.23 which reads, "Guarding Floor and Wall Openings and Holes." Respondent states that one relying on this heading could not know that the regulation was applicable to structures outside the building (Respondent's Brief, A-5). I cannot agree. A loading dock is an integral part of a building and is essential to Respondent's operation. It cannot, therefore, be exempted from the provisions of the regulation.

The regulation requires a guard rail on every open sided floor or platform which is four feet or more above the adjacent floor or ground level. As testified to by Mr. Hutton, the inspection officer, the drop-off from the loading dock to the ground is greater than 35 feet. I conclude that there was a violation of the regulation and that a penalty should be imposed in accordance with the penalty provisions of the Act.

In assessing the penalty, Mr. Hutton started with a figure of $500, which he obtained from the Compliance Manual of the Occupational Safety and Health Administration (T-39) and then reduced it as required by Section 17(j) of the Act (T-39). He deducted 10 percent for good faith, 5 percent for the size of the operation and 10 percent for the history, or a total of 25 percent. The brief for the Secretary points out that a 20 percent credit should have been allowed for the history of the company rather than 10 percent. The total credit should, therefore, have been 35 percent. Thus, the total penalty due, after allowing the 35 percent credit, amounts to $325. This amount is further reduced by 50 percent for abatement credit.

The Respondent is assessed $162 for the nonserious violation.

SERIOUS VIOLATION

The serious citation alleged a violation of Section 1910.314 of the Occupational Safety and Health Standards and described the violation as "Hazardous electrical circuitry, installation and equipment, including, but not limited to, underground equipment, open junction boxes, frayed cables, and non-moisture proof electrical equipment."

The applicable portions of 1910.314 state:

(d)(4) Equipment connected by cord and plug.

Under any of the conditions of this subparagraph, exposed noncurrent carrying metal parts of cord and plug connected equipment, which are liable to become energized, shall be grounded:

(i) In hazardous locations;

(ii) When operated at more than 150 volts to ground except:

(a) Motors, where guarded;

(iii) In other than residential occupancies,

(d) Cord and plug connected appliances used in damp or wet locations, or by persons standing on the ground or on metal floors or working inside of metal tanks or

(e) Methods of grounding

(1) . . . The path to ground from circuits, equipment, and conductor enclosures shall be permanent and continuous and shall have ample carrying capacity to conduct safely any currents liable to be imposed on it, and shall have impedance sufficiently low to limit the potential above ground and to facilitate the operation of the overcurrent devices in the circuit.

Respondent objects to the imposition of this penalty, partly because of the effective date of this regulation. The regulations on electrical standards were originally scheduled to be effective February 15, 1972. This date was revised by publication in the Federal Register to August 27, 1971. The citation was issued on September 2, 1971. The Respondent contends that, from the effective date of the regulation and the time of the inspection, Respondent could not have remedied any claim to defective electrical grounding and further that on August 30, 1971, Respondent was, in fact, in the process of correcting its electrical grounding deficiencies.

Section 17(k) of the Act requires that a violation be cited as serious if there is a substantial probability that death or serious physical harm could result from the condition which exists unless the employer did not, or could not, with the exercise of reasonable diligence, know the presence of the violation. In order to sustain a serious citation, the Complainant must show, by a preponderance of the evidence, that the alleged violation did exist; that the existence of such violation was serious in that there was a substantial probability of death or serious physical harm; and that the Respondent knew, or with the exercise of reasonable diligence, could have known of the violation.

An employee of Respondent, Mr. McFarland, testified to having reported to the Plant Superintendent, Tony Meza, on August 28, 1971, that he had received an electrical shock from the conveyor belts and that prior to this date he had reported to the man in charge of the crew, Mr. Sutton, that he had been receiving shocks (T-69). He further stated that when the conveyor belts were working he received continuous mild electrical shocks which caused a tingling sensation in his hands and arms.

An ex-employee of the Respondent, Bruce Burnett, also testified to having received similiar tingling sensations while working in the pickle vats when the conveyor belts were running (T-75). He said he received a more serious shock when he raised up underneath the conveyor and touched his back to the frame. He reported this more serious shock to Larry Meyer, a member of management of the Respondent, approximately a week before the investigation.

Mr. Meza, the plant superintendent, testified that although he could not recall being told of shocks prior to September 2 (T-110), he knew that employees had been shocked many times (T-112), and that he, himself, had received shocks.

On August 23, 1971, Mr. Gary Brittingham was rendered unconscious, presumably through shock, while standing in a water-filled vat that was being loaded with pickles from a conveyor belt. He died that same day and the death certificate indicates cause of death to be "respiratory and circulatory failure, and probable electrical shock for the failure." (Exhibit A). Although the death certificate was not signed by the attending doctor and not available to the Respondent until August 30, the way in which the accident occurred, coupled with previous reports to plant management of frequent electrical shocks to employees, constitutes ample notice of existing electrical hazards in the plant. Subsequent to the accident but prior to availability of the death certificate, Respondent began work or temporarily grounding the conveyor system. Mr. Hutton, the inspection officer, testified that the temporary grounding of the conveyor belts was done by attaching the ground wire to the belts with alligator clamps but, because of a build-up of rust and corrosion on the conveyor belts, the clamps did not make a proper connection and could not transmit electrical current. In rebuttal, Respondent's witnesses testified that the conveyor belt system was constructed of stainless steel, which does not rust or corrode. However, the factual issue of whether there was rust build-up on the conveyor belts becomes moot when one examines the requirement of 1910.314(e) which states:

The path to the ground from circuits, equipment, and conductor enclosures shall be permanent and continuous . . .

Thus, temporary alligator clamps cannot meet the requirements of a permanent path to the ground.

In addition, the inspection officer noted other violations, serious in nature, which did not involve the conveyor belt system and for which no attempt at temporary improvement had been made to correct the deficiencies. In the main processing room of the plant there was a pickle slicer, shaker and sorter, powered by a 220-volt motor, which had no electrical grounding system. We pickles on the shaker and sorter were dripping water into the electrical components (T-24). There was also an ungrounded pickle slicing machine to the northeast of the shaker and sorter (T-26).

The facts are clear that there were, at the time of the inspection and after the effective date of the Act, hazardous conditions existing with respect to the electrical circuitry. The existing wet conditions increased the likelihood of severe electrical shock. With ungrounded 220-volt systems such shock could result in serious injury or death of an employee.

I find that the employer did know, or with reasonable diligence could have known, of the presence of such conditions.

The proposed penalty was $750. Section 17(b) of the Act requires that any employer that has received a citation for a serious violation shall be assessed a civil penalty of up to $1,000 for each such violation. The Compliance Officer, Mr. Hutton, adjusted the $1,000 violation by giving consideration of 10 percent for good faith, 5 percent for the size of the operation, and 20 percent based on the history of the operation. As pointed out in the Respondent's brief, the adjustment for good faith should have been 20 percent rather than 10 percent, making a total deducted credit of 35 perment.

The Respondent is hereby assessed $650 for the serious violation.