SILVER SKILLET FOOD PRODUCTS COMPANY

OSHRC Docket No. 497

Occupational Safety and Health Review Commission

February 23, 1973

 

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: On August 30, 1972, Judge John S. Patton issued his decision affirming the Secretary's citation and proposed penalties of $50 for four non-serious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590).

Thereafter, this case was directed for review by the Commission.

After considering the submissions of the parties together with the record on which the Judge based his decision, it is herewith ORDERED that the Judge's decision attached hereto be and the same is hereby affirmed.  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: In this case, the Commission is affirming without comment an unmitigated failure by the Secretary of Labor to comply with a requirement for the issuance of citations specified in Section 9(a) of the Act.

The facts are these: An authorized representative of the Secretary, operating under the authority of Section 8 of the Act, conducted an inspection of the respondent's workplace on September 17, 1971.   Upon   the basis of information obtained during that inspection, he caused a citation to issue against respondent on January 12, 1972, alleging the violations which the judge found in his decision and which the Commission has now affirmed.

Section 9(a) provides that if, upon inspection, the Secretary believes that an employer has violated a requirement of the Act, "he shall, with reasonable promptness issue a citation to the employer." The issue in this case, therefore, is whether a 117-day delay between inspection and issuance of the citation is "reasonable promptness."

Section 9 of the Act resulted from a compromise between differing views which prevailed in Congress on the citation and abatement of hazardous working conditions.   In the final stages of the legislative processes leading to enactment of this statute, the bill adopted by the Senate contemplated that the Secretary's representative would himself determine whether there was a violation and would issue the citation at the conclusion of his inspection while still on the employer's premises.   The bill which had passed the House of Representatives contemplated an inspector with lesser authority.   He would simply conduct an inspection while some other official would decide whether the conditions observed by the inspector   warranted the issuance of a citation.   Under the Senate bill, therefore, there was to be no elapsed time between inspection and citation and under the House bill there obviously had to be some but how much was left unanswered.

These differing versions were resolved by a conference committee which drafted the language which is now Section 9 of the Act.   In so doing, that committee reported the following to the Congress:

  The Senate bill provided that if . . . the Secretary . . . determines that an employer has violated mandatory requirements under the Act, he shall 'forthwith' issue a citation.   The House amendment provided that if . . . the Secretary 'believes' that an employer has violated such requirements, he shall issue a citation to the employer.   The conference report provides that if the Secretary 'believes' that an employer has violated such requirements, he shall issue the citation with reasonable promptness. In the absence of exceptional citcumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector. Report No. 91-1765, 91st Cong. 2d Sess., December 16, 1970, at 38 (emphasis added).

It is clear then that Congress used the term "reasonable promptness" to mean a period no longer than "72 hours from the time the violation is detected by the inspector" unless there are "exceptional circumstances."'

The record of this case, however, does not disclose any exceptional circumstances which would require any delay at all, let alone a delay 40 times greater than the period contemplated by the lawmakers.   Indeed, during the hearing on this case a witness, testifying in behalf of the Secretary, stated that the conditions which gave rise to the citation were of such a nature as to be easily and inexpensively corrected.

Early abatement conditions which are not in compliance with occupational safety and health standards is one of the principal purposes of this Act.   This purpose can never be achieved so long as this Commission overlooks unexplained delays between inspection and issuance of a citation.   It is my opinion that in the absence of any justification in the record, a delay which in this case amounted to a period of almost four months, cannot be condoned.

It is rather difficult to understand the Commission's   total disregard of this Act's legislative history in order to ascertain what congress meant by the term "reasonable promptness." Only last month, the Commission (with the same members constituting the majority) stated that when

. . . some ambiguity exists regarding the meaning of statutory words, a thorough consideration of the legislative history is required (emphasis supplied).   Secretary v. Chicago Bridge & Iron Company,

This was, that decision announced, a "basic rule."

Obviously last month's "basic rule" is this month's dead letter.

[The Judge's decision referred to herein follows]

PATTON, JUDGE, OSAHRC: This case is before the undersigned Judge on the complaint of James D. Hodgson, Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, against Silver Skillet Food Products Company, hereinafter referred to as respondent, alleging that respondent has violated Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. Section 651, et seq. ), hereinafter called the Act and Occupational Safety and Health Standards 29 CFR 1910.37(b)(3) referred to as Item 1, 29 CFR 1910.22(b)(1) referred to as Item 2, 29 CFR 1910.25(d)(2)(xix)   referred to as Item 3, 29 CFR 1910.36(b)(4) referred to as Item 4 and 29 CFR 1910.30(a)(2) referred to as Item 5.   Citation was issued by the Department of Labor alleging said violations and a penalty in the amount of $25 was proposed for alleged violations of Item 2 and a penalty in the amount of $25 for   alleged violation of Item 5 above.   No penalties were proposed as to Items 1, 3 and 4.   The respondent filed a Notice of Contest to said citations and penalties whereupon the aforesaid complaint was filed by the complainant.   Answer was duly filed by the respondent.   At the hearing of this cause, Mr. Charles L. Irvin and Mr. Richard Fiore, Attorneys, appeared as representatives of the complainant and Mr. John S. Salmon of the firm of Ettelson, O'Hagan, Ehrlich and Frankel appeared for the respondent.   There was no motion to intervene.   All parties were accorded the right to present evidence and orally argue the case.   The parties were accorded the right to file written briefs.   No request was made for the filing of briefs and briefs have not been received.

LAW AND ISSUES OF THE CASE

Item 1, Occupational Safety and Health Standard 29 CFR 1910.37(b)(3) reads as follows:  

(Means of egress)

Any opening therein shall be protected by an approved self-closing fire door.

It was alleged that the respondent failed to provide the boiler room with a self-closing fire door.

Item 2, 29 CFR 1910.22(b)(1)

Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for isles, loading docks, through doorways and wherever turns or passage must be made.   Isles and passage ways shall be kept clear and in good repairs, with no obstruction across or in the isles that would create a hazard.

It was alleged that the respondent failed to keep metal floor plates in the retort department in good repair.

Item 3, 29 CFR 1910.25(d)(2)(xix) provides as follows:

  The user shall equip all portable rung ladders with non-slip bases where there is a hazard of slipping. Non-slip bases are not intended as a substitute for care in safety placing, latching, or holding a ladder that is being used upon oily metal, concrete, or slippery surfaces.

It was alleged that the respondent failed to place safety feet on two ladders in the west warehouse.

Item 4, 29 CFR 1910.36(d)(4) provides as follows:

Openings in exit enclosures shall be confined to those necessary for access to the enclosure from normally occupied spaces and for egress from the enclosure.

It was alleged that the shipping room fire exit door adjacent to the loading dock overhead door was padlocked.

Item 5, 29 CFR 1910.30(a)(2) provides as follows:

Portable dock boards shall be secured in position, either by being anchored or equipped with devices which will prevent their slipping.

It was alleged that respondent failed to secure bridge plates which were used as dock boards on the shipping dock in order to prevent slipping. It was stated that four were in use.

EVIDENCE OF THE CASE

It was conceded in respondent's answer that respondent is a corporation doing business at 7500 North St. Louis Avenue, in Skokie, Illinois, and is engaged at its place of business in canning food items.   It was further conceded in respondent's answer that it is engaged in a business affecting commerce and is an employer within the meaning of the Act, employing approximately 82 employees.

  EVIDENCE AS TO ITEM 1

It was alleged that respondent failed to provide the boiler room with a self-closing fire door. Mr. Nathan Willens, supervisor of the industrial hygiene unit for the State of Illinois, who under contract with the Occupational Safety and Health Administration, made inspection of the respondent's business, testified that at the time of his inspection the door from the boiler room was tied down and although it was a self-closing door, it could not be closed because it was tied down with a rope.   Mr. Willens testified that if a boiler exploded or caught on fire and the self-closing door were left open, the blast would go into the working area where most of the employees were located.   He stated that Mr. Marcotte, respondent's executive, agreed that this was not the best thing.   The fact that the door was tied down was corroborated by Mr. Thaddeus Gadomski, Safety Education Coordinator.   He stated that at the time of the inspection when the violation was pointed out to the company, the company made arrangements to free the door. He stated that if a fire occurred on either side of the door, a tied down door would not protect people in the area.

EVIDENCE AS TO ITEM 2

Mr. Willens testified that floor plates in the retort department were bent and sticking and warped, in a condition where they caused a tripping hazard, that trying to get any type of equipment on the floor would be hazardous to the employees.   He stated there also was a cutting hazard in that the metal could cut into the ankles if a person tripped or bumped into it.   He stated that a fork lift truck could topple over as a result of the condition to the floor plates. He stated   that Mr. Marcotte admitted they needed some maintenance work and stated it would be done.   Mr. Gadomski also testified that the metal floor plates created an uneven floor and tripping or slipping hazard. He stated that in the areas in which this existed, the retort area, the overhead crane moved hot buckets of material; people using overhead cranes were walking constantly with overhead loads.   He stated that heavy loads of lift trucks operating through that area had buckled the plates. Mr. Barkes, the plant manager, stated that the only employees involved in the metal plate area were two retort operators and one unscrambler.   He stated that also some maintenance men might have occasion to go there if something needed repair.   The other employees did not go in the area because it dead ended at the unscrambler.

EVIDENCE AS TO ITEM 3

Mr. Willens testified that there were two ladders in the west warehouse which did not have safety feet on them.   The ladders were hanging on the wall and he did not know whether the employees used them or not.   Mr. Gadomski stated that the ladders were unsafe because they would have been used on a concrete floor and might slip.   He stated that ladders were set in various positions throughout the entire building as opposed to one area, that in this are there were two ladders without safety shoes.   They were lying against the wall in an upright position and not hanging on the wall.   He stated that the hazard would be worse if the floor was wet.   Mr. Barkes stated that ladders that are actually used in the plant have safety shoes.   He stated that the two ladders in the west warehouse had not been used since he had been with the company.   He stated that the safety feet have been put on them now.   He stated they were accessible for use, but it would have been necessary to bring them somewhere else to use them.   He stated that everything in that area was stacked by the fork lift. He stated that the ladders were repaired subsequent to the inspection rather than thrown away because the company might need them in case it wanted to paint something outside the building.

EVIDENCE AS TO ITEM 4

Mr. Willens testified that the shipping room fire exit door adjacent to the loading dock overhead door was padlocked.   He stated that Mr. Marcotte realized a violation had occurred and called someone up and the door was immediately unpadlocked.   The danger, according to the witness was that in an emergency employees could not get out and might panic.   He stated the overhead door was open.   This was corroborated by the testimony of Mr. Gadomski.   He stated that the overhead door is not considered an exit door for employees.   The dock door next to the fire door is approximately 12' by 8' in size.   Mr. Barkes stated that the dock door works on an electric motor with a rope switch which hangs down approximately 10' from the door so if an employee should walk by or ride by in a jeep, he could pull the rope switch without having to physically life the door. It has a motor which lifts the door. He stated the fire door was locked because the shipping clerk was late and in a hurry to get trucks unloaded and did not unlock the door. He stated that the overhead door, as well as the exit door, was used for loading and unloading.

  EVIDENCE AS TO ITEM 5

Mr. Willens testified that the bridge plates being used as dock boards on the shipping dock were metal flat plates not secured in any way.   He stated that fork lift trucks could, as a result of slippage of the plates, fall off the dock. Also a truck or fork lift truck could trip over or fall over nose first or sideways, and the person in the truck or on the dock might be in the path of the falling vehicle.   He stated the respondent was not aware of the standards.   Mr. Gadomski's testimony corroborated Mr. Willens in stating that the bridge plates being used on the dock were not secured to prevent slipping. He stated that three were four in use.   He discussed this with Mr. Marcotte.   He stated that as a result of lift trucks going back and forth with heavy loads of materials the dock plates, if they were not secured, had a tendency to move.   He stated that the bridge plates can move and get away from either the platform or the truck itself, that a truck going over can go down between the two or tip over.   Mr. Barkes testified that the plates in question were metal deck plates quite similar to the retort floor, approximately 1/2 to   5/8 inches thick and about 4' by 4' square.   He stated that he had moved several himself, but not without straining quite a bit; that they were usually put down by two people; that they were flat, not bent.   He stated that at the time of inspection respondent had considered going to magnesium plates; he stated they were expensive and the respondent had not ordered them at the time of inspection but they have subsequently been installed.   He stated instructions to order them had been issued prior to receiving the citation and subsequent to the inspection. He stated that he issued   a maintenance list to employees at regular intervals and also listed maintenance items on a blackboard.

EVALUATION OF THE EVIDENCE

It would appear that the allegation that the requirement for a self-closing door had been violated (Item 1) has been sustained.   It is true that a self-closing fire door was at the location in question.   The evidence is undisputed, however, that the door was tied down and would not close.   Even though a door is capable of self-closing, if something is affixed to the door which prevents it from closing, it cannot be said to be a self-closing door within the meaning of the standard.   A self-closing door is one which will close.   When the door is tied down, no matter how great its capacity for closing, it cannot close and ceases to be a self-closing door. As suggested by Mr. Willens, if a boiler explosion or fire occurred and the self-closing door were left open the blast could go into the working area where most of the people worked.   This was a violation, but it was very promply abated and the Department of Labor was correct in not proposing any penalty for this violation.

As above noted, it is also alleged that there was a failure to keep metal floor plates in the retort department in good repair.   It is not denied by the respondent that these plates were bent or warped, creating a tripping hazard. It was suggested that they also would represent a cutting hazard, that if someone tripped his ankles could be cut.   A more dangerous possibility was the possibility that a fork lift truck could trip over upon hitting the plates causing a substantial injury.   This created a hazard and was in violation of section 1910.22(b)(1).   It would appear that a $25 penalty is appropriate.

  It was also alleged that two ladders did not have safety features as required by standard 1910.25(d)(2).   It will be noted however, that Mr. Barkes testified these ladders were in an area where they were not to be used and they had not been used during the entire time he had worked for the respondent.   He stated that for them to have been used it would have been necessary for them to be taken out of the area in which they were located.   The evidence shows that the respondent had ladders scattered throughout the plant which were available and easily accessible to employees for use in the area in which they were needed.   This evidence is not in any way disputed by the complainant and witnesses for the complainant stated they did not know whether the ladders had been used or not.   The respondent testified that the ladders were kept and the necessary changes were made after the inspection because of the possibility that they might someday be used for outside painting.   I am of the opinion that equipment which is stored but never used does not fall within the purview of the standards.   The purpose of the standards is to protect employees and to prevent employees from working with unsafe equipment or working in unsafe areas.   If the employees are not   working with the equipment in question, there is no chance they would be injured by it.   The complainant has, therefore, failed to sustain the charges with reference to item 3, the alleged defective ladders and the citation insofar as it relates to said item must be dismissed.

It is alleged that the fire exit door adjacent to the loading dock overhead door was padlocked.   This allegation is admitted by all parties.   The question arises as to whether the alternate exit of the overhead door which it is testified is 12' by 8' in size alleviated the nexessity of the fire door exit being open.   I am of the   opinion that it very markedly reduced the hazard to the employees and made the violation much less serious.   I am further of the opinion, however, that a fire exit door exists for an important purpose, which is to permit people to more easily exit the property in the event of an emergency.   To the extent that a fire exit door is blocked, this purpose is defeated.   There was some reduction in safety by the locking of the fire exit door. It was testified that this was not a normal practice and that an employee had failed to open the door on the morning of inspection. There   was a violation, although a minor one and it would be inappropriate to assess any penalty under these circumstances.   It will be noted that the plaintiff does not propose a penalty for this violation.

It is further testified that bridge plates being used as dock boards in the shipping dock were not secured to prevent slipping. This was also undenied.   It was stated that fork lift trucks could slip off the edge of the dock, that the plates were subject to movement and that this violation created a hazard. The evidence appears plain that the violation did occur, that some hazard was created and therefore, the penalty of $25, suggested is appropriate.

FINDINGS OF FACT

1.   Respondent, Silver Skillet Food Products Company, at all times relevant to this case was a corporation having an office and place of business in Skokie, Illinois, where it was engaged in food processing.

2.   Respondent sold processed food in interstate commerce and purchases supplies in interstate commerce.

3.   Respondent had a self-closing fire door in its boiler room, but on September 17, 1971, said door was tied so as to prevent its closing.

  4.   On September 17, 1971, the metal floor plates in the retorts department were warped making them a tripping hazard.

5.   Two ladders in the west warehouse of the respondent did not have safety feet upon them.

6.   The said two ladders in the said warehouse were not used by the respondent but were stored only.

7.   The shipping room fire exit door, adjacent to the loading dock overhead door, was padlocked.

8.   The dock overhead door adjacent to the fire exit door was a door approximately 12' by 8' in size and was accessible for exit and entrance.

9.   The bridge plates used as dock boards on the shipping dock (four in number) were not secured, creating the hazard of slipping.

CONCLUSIONS OF LAW

1.   The respondent was at all times relevant hereto engaged in an industry affecting commerce as said term is used in the Act, and was subject to the jurisdiction of the Occupational Safety and Health Review Commission.

2.   The respondent's action in tying the self-closing fire door in the boiler room constituted a violation of Standard 29 CFR 1910.37(b)(3).

3.   The respondent's failure to keep metal floor plates in the retort department in good repair constituted a violation of Standard 29 CFR 1910.22(b)(1).

4.   Respondent's action in having two ladders in the west warehouse without safety feet on them, which ladders were stored and not used did not constitute a violation of Standard 29 CFR 1910.25(d)(2)(xix).

5.   Respondent's action in padlocking the shipping room fire exit door adjacent to the loading dock constituted a violation of Standard 29 CFR 1910.36(b)(4).

  6.   Respondent's failure to secure bridge plates used as dock boards on the shipping dock constituted a violation of Standard 29 CFR 1910.30(a)(2).

ORDER

It is therefore ordered that the allegation of the complaint alleging violations of Occupational Safety and Health Standards 29 CFR 1910.37(b)(3), 29 CFR 1910.22(b)(1), 29 CFR 1910.36(b)(4) and 29 CFR 1910.30(a)(2), be and the same hereby are sustained.

The allegations of violation of Standard 29 CFR 1910.23(d)(2)(xix) are dismissed.

The penalty in the amount of $25 for violation of Standard 29 CFR 1910.22(b)(1) is affirmed.

The penalty in the amount of $25 for violation of Standard 29 CFR 1910.30(a)(2) is affirmed.

No penalty is assessed for any other violation.

The dates for abatement of violations of Standards 29 CFR 1910.37(b)(3), 29 CFR 1910.22(b)(1), 29 CFR 1910.36(b)(4) and 29 CFR 1910.30(a)(2) are affirmed.