FORT HILL LUMBER COMPANY

OSHRC Docket No. 509

Occupational Safety and Health Review Commission

June 10, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, Chairman: A decision of Review Commission Judge Harold A. Kennedy is before this Commission for review pursuant to the provisions of 29 U.S.C. 661(i). That decision (1) vacated complainant's "notification of failure to correct violation and of proposed additional penalty," dated January 25, 1972, insofar as it related to items 1, 6, 7, 9, 12 and 15, (2) modified the same as to items 17, 19 and 20 by the reduction of the proposed penalty on each item, and (3) vacated a charge that respondent violated 29 U.S.C. 654(a)(2) by its failure to comply with the requirements of 29 C.F.R. 1910.265(a)(30)(ix).

The issues raised by the direction for review were:

(a) Whether the Judge properly interpreted and applied sections 657(a) and 657(e) of Title 29, U.S. Code.

(b) What facts determine whether a violation is repeated or continuous in nature where there has been an apparent failure to abate a previously cited violation.

(c) Assuming that the Judge correctly excluded evidence upon his interpretations of sections 657(a) and (e), did he commit reversible error by not considering other evidence of record [*2] concerning the alleged failure to abate the violation of 29 C.F.R. 1910.265(c)(21)(i).

In his brief on review the complainant indicated that he wished to withdraw items 1, 6, 9, 12 and 15 of the notification on the grounds that he had failed to meet his burden of proof as to those items. In addition complainant suggests that since he has withdrawn as to item 9, the Commission need not reach the issue raised by the third item of the direction for review. We will treat his wishes as a motion to withdraw and vacate the notification as to those items, with prejudice. n1

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n1 Genco, Inc.,

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As a result we need not reach any of the issues raised by the direction for review and, having examined the record in its entirety and finding no prejudicial error therein, the Judge's decision as modified herein is hereby affirmed.

Accordingly, it is ORDERED that the Secretary's motion to withdraw items 1, 6, 9, 12, and 15 is hereby granted. Item 7 of the notification of failure [*3] to correct and the citation for nonserious violation issued January 25, 1972, are hereby vacated. Items 17, 19 and 20 are affirmed and a penalty in the aggregate of $500.00 is assessed for these items.

[The Judge's decision referred to herein follows]

KENNEDY, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. hereafter referred to as the Act) contesting a Citation and a Notification of Proposed Penalty ($40) therefor dated January 25, 1972 and a Notification of Failure to Correct Violation and of Proposed Additional Penalty ($16,106), also dated January 25, 1972. The citation and notification of failure to correct allege that an inspection of Respondent's workplace on Highway 18 near Grande Ronde, Oregon on January 20, 1972, revealed that Respondent violated the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor. The notification of failure to correct refers back to an inspection of Respondent's workplace made by the Secretary on October 27, 1971 for which a citation and notice of proposed penalty were issued on December [*4] 2, 1971. It is undisputed that the citation and notice of proposed penalty dated December 2, 1971 were not contested and therefore became final pursuant to the provisions of Section 10(a) of the Act.

The alleged continuing violations, the original as well as the additional penalties proposed therefor, are indicated below, along with the prescribed abatement dates:

Item -- Description of alleged continuing violations -- Abatement Date -- Original Proposed Penalty -- Proposed Additional Penalty -- Proposed Continuing Violation Penalty

1. -- Defective grounding attachments -- 1/14/72 -- $7.00 -- $600 -- $607

6. -- No lumber carrier horn -- 1/14/72 -- $4.00 -- $600 -- $604

7. -- Bent, ineffective anti-kickback device -- 1/14/72 -- $7.00 $600 -- $607

9. -- Chipper lifeline not attached -- Immediately -- $49.00 -- $7,525 -- $7,574

12. -- Large hole in yard -- 1/14/72 -- $14.00 -- $600 -- $614

15. -- Glass missing in welder's helmet -- 1/14/72 -- $0 -- $600 -- $600

17. -- Compressed air over 30 p.s.i. -- 1/14/72 -- $0 -- $600 -- $600

19. -- No hot water -- 1/14/72 -- $0 -- $600 -- $600

20. -- Inadequate record-keeping -- Immediately -- $0 -- $4,300 -- 4,300

TOTAL: $16,106

The [*5] new citation, Citation No. 1 dated January 25, 1972, alleges violation of 29 CFR 1910.265(c)(30)(ix) on January 20, 1972 by reason of the fact that there were "no brakes on the lumber carrier used at the sawmill." On the same day, the Secretary issued a notification proposing a penalty of $40 for such alleged violation.

Respondent contested the new citation and the notification of failure to correct as well as the penalties proposed by sending letters to that effect on February 4, 1972 to the Area Director of Occupational Safety and Health Administration (OSHA), Portland, Oregon. After complaint and answer were filed, the case was heard, after timely notice, at Portland, Oregon on June 29 and 30, 1972. No employee (or representative) sought to participate in the proceeding. The Secretary called the following as his witnesses: (1) Joseph Moroney, Respondent's chipper operator until he was terminated by Respondent shortly after the Secretary's January 20, 1972 reinspection; (2) William Best, a State of Oregon safety inspector; (3) John Goodman, a federally deputized State of Oregon inspector; (4) Richard M. Day, a State of Oregon Inspector; (5) OSHA Area Director Eugene [*6] Harrower; and (6) Melvin (Bud) Gordon, Respondent's Sawmill Superintendent. Respondent called the following as defense witnesses: (1) Roberta Stutzman, Inventory and Office Manager for Respondent; (2) Melvin Menge, a "grinder" employee of Respondent; (3) Oris Nelson, "trimmerman" employee of Respondent; (4) Raymond A. Chernosky, Respondent's Planer and Yard Superintendent; and (5) Melvin Gordon (recalled). Proposed findings and opening and reply briefs have been filed by the parties. Upon the entire record, I make the following:

FINDINGS OF FACT

I. Jurisdiction and Issues

Respondent is a corporation engaged in the operation of a sawmill and planer at Grande Ronde, Oregon. It employs approximately 87 employees, none of whom are represented by an authorized employee representative. Respondent's products are shipped to points outside of the State of Oregon. Respondent is engaged in a business affecting commerce and an "employer" within the meaning of Section 3 of the Act (Answer, Tr. 70, 364, 416).

The principal issues presented for determination are: Whether the record establishes that Respondent failed to correct any of the violations set forth in Items 1, 6, 7, [*7] 9, 12, 15, 17, 19 and 20 of the citation issued against Respondent on December 2, 1971 within the time prescribed, and, if so, what penalty, if any, should be assessed therefor; and whether the record establishes the violation alleged in Citation No. 1, dated January 25, 1972, and, if so, the appropriate penalty therefor.

Respondent has raised certain subsidiary questions. One concerns the inspection procedure followed at the Secretary's follow-up inspection on January 20, 1972. Another deals with the Secretary's effort to collect penalties for alleged continuing violations after the Notification of Failure to Correct Violation and of Proposed Additional Penalty was filed. And, finally, assuming the Secretary in fact established violation (or violations) of a standard cited in any of the relevant items of the citation dated December 2, 1971 after the abatement date(s) prescribed, the question is raised as to whether it was the same violation previously cited that had continued after the prescribed abatement date or constituted a new and different violation.

Section 5(a)(2) of the Act provides that each employer:

Shall comply with occupational safety and health standards [*8] promulgated under this Act.

Section 10(b) reads:

If the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction (which period shall not begin to run until the entry of a final order by the Commission in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties), the Secretary shall notify the employer by certified mail of such failure and of the penalty proposed to be assessed under section 17 by reason of such failure, and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the Secretary's notification or the proposed assessment of penalty. If, within fifteen working days from the receipt of notification issued by the Secretary, the employer fails to notify the Secretary that he intends to contest the notification or proposed assessment of penalty, the notification and assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

Sections 17(c), (d) and (j) [*9] read:

(c) Any employer who has received a citation for a serious violation of the requirements of section 5 of this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of regulations prescribed pursuant to this Act, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.

(d) Any employer who fails to correct a violation for which a citation has been issued under section 9(a) within the period permitted for its correction (which period shall not begin to run until the date of the final order of the Commission in the case of any review proceeding under section 10 initiated by the employer in good faith and not solely for delay or avoidance of penalties), may be assessed a civil penalty of not more than $1,000 for each day during which such failure or violation continues. * * *

(j) 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 [*10] employer, and the history of previous violations.

Section 8 of the Act provides in part:

(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, work-place or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee. * * *

(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there [*11] is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

II. The Evidence and Findings on the Charges

(A) As to the Alleged Continuing Violations

The Reinspection Procedure -- The "Chipper Lifeline Incident"

Respondent contends that the Secretary's inspection on January 20, 1972, violated jurisdictional prerequisites prescribed by the Act and that the Notification of Failure to Correct Violation and of Proposed Additional Penalty and the Complaint that were issued as a result must be dismissed in their entirety. This contention will be dealt with first.

John Goodman, a federalized State of Oregon employee, first inspected Respondent's workplace for the Secretary on October 27, 1971. On that date, he went to Respondent's main office and presented his credentials. At that time he met Respondent's owner, Art Moshofsky, and mill superintendent, Melvin Gordon, who was called in to accompany him during the walk around inspection. Mr. Ray Chernosky, in charge of Respondent's planer and yard area and of equal rank to Mr. Goodman, [*12] also participated in the walk-around inspection on October 27, 1971. Mr. Goodman held a closing conference on that date in part with Mr. Moshofsky and in part with Mr. Gordon (Tr. 152-3; 163-166; 180-1; 369-73).

Following the October 27, 1971 inspection, a citation dated December 2, 1971 issued containing 20 Items or alleged violations, along with a notice proposing $137 in penalties. As indicated supra (pp. 2-3), the citation called for Items No. 9 and 20 to be corrected "immediately;" all of the other Items were to be abated by January 14, 1972. Respondent did not contest the citation dated December 2, 1971 or the penalties proposed therefor but paid the amount assessed.

Mr. William Best, an inspector for the State of Oregon for 15 years, testified that he made an accident investigation of Respondent's premises for the State on January 13, 1972. At the time of his inspection he said he saw Respondent's chipper n1 operator, Joseph Moroney, working without his lifeline attached. He promptly relayed such information to Mr. Goodman, who then made a return visit in the company of Oregon Inspector Richard Day to Respondent's workplace on January 20, 1972 for a follow-up [*13] inspection (Tr. 122-24) n2

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n1 A "chipper" is a cutting machine, consisting of a series of rotating knives, operating on the centrifugal principle, which is used to reduce waste wood products into chips (See Tr. 29, 114-15; also RX Ex. 2). "Chipper" is also defined in 29 CFR 1910.265(b)(10).

n2 Respondent challenges the objectivity of Mr. Best, pointing out that he instigated the follow-up inspection. The record shows that Mr. Best has worked as an official inspector for the State of Oregon and at the same time as a part-time employee of lumber companies. At one time he had worked for Respondent on a part-time basis until he voluntarily left Respondent's employment. Thereafter, he sought reemployment with Respondent but was refused. Shortly thereafter he reportedly conducted a State inspection that resulted in an inspection report of "three pages of items" (Tr. 522). See also Tr. 135-50 and Tr. 520-23.

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According to Mr. Goodman, he and Mr. Day drove to Respondent's main office (marked "A" on RX 3, Tr. 177) in [*14] a state-owned pick-up. He stated that he went into the main office alone "to present myself" at approximately 9 A.M. (Tr. 156, 166). He was in the office he said for about a minute and left as "I don't think there was anybody in the office" (Tr. 169). He testified that he then "went back to the car," and "Mr. Day and I locked the car up and got our equipment" (Tr. 157). The equipment referred to included a camera. Although Mr. Goodman indicated that he and Mr. Day headed "directly" for Mr. Gordon's Office on the southeast side of the saw mill (Tr. 156-58, marked "B" on RX 3, Tr. 177), they went on foot by the chipper area where they saw the chipper operator standing on the platform with his lifeline unsecured (Tr. 158, 171). Mr. Goodman thought he and Mr. Day remained in the chipper area about four or five minutes during which time he took three photographs showing the chipper operator with his lifeline unhooked (SXs 1, 2, and 3, Tr. 159).

Mr. Goodman did acknowledge on cross-examination that in order to take the pictures it was necessary to make a detour and walk under a conveyor and climb up a ladder onto a platform (Tr. 172-3). After taking the photographs, he [*15] and Mr. Day proceeded to Mr. Gordon's office and explained that they were there to make a follow-up inspection. According to Mr. Goodman, Mr. Gordon made little response about the chipper lifeline incident except that he had "told the man every day to put his safety equipment on" (Tr. 197). After discussing the chipper incident, Mr. Goodman and Mr. Day then went on a tour of other areas of Respondent's premises with Mr. Gordon (Tr. 201-232). A closing conference was held with Mr. Gordon in Mr. Moshofsky's office (but without Mr. Moshofsky being present, Tr. 181, 235). As a result of the January 20, 1972 inspection, the Secretary on January 20, 1972 issued the "new" Citation No. 1 and Notice of Proposed Penalty therefor and the Notification of Failure to Correct Violation and of Proposed Additional Penalty.

The testimony given by other witnesses with regard to the chipper incident and the procedure followed at the outset of the reinspection visit conflicts with the account given by Mr. Goodman. n3 Mr. Chernosky, superintendent of Respondent's yard and planer area, testified that he was in an office within the main office alone from 9 to 9:30 A.M. on the day of the reinspection [*16] and that he did not see or hear Mr. Goodman enter the main office. He said he did see Mr. Day and Mr. Goodman go past the door to the chipper area, however (524-30).

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n3 Mr. Day testified briefly about the January 20, 1972 reinspection visit, but he was not asked about the chipper incident or about the inspection procedure that was followed on that day (Tr. 290-297).

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Oris Nelson, who was working as a "trimmerman" in the chipper area (at position "T", RX 1, Tr. 472) on the day of the reinspection, testified that he saw Mr. Goodman and Mr. Day drive up. Neither made a stop at the office on that day, he said, but went directly to the chipper area to check on the chipper operator. He described their arrival as follows (Tr. 474-5):

Well, at that particular time, I -- Joe was down in the conveyor, underneath, on the shaker. It was plugged up and I wasn't running, looking out towards the office and I saw this pickup come wheeling in there and two guys jumped out, white hats on, and headed right straight for [*17] the chipper, never even stopped -- never even slowed down. Before he got there, he had his camera out. I watched him and I knew that Joe was down underneath the conveyor and Joe come out and went up onto the stairs and went back checking the overrun and they looked in the doorway at the bottom. From the doorway, they couldn't see him, so they come around up the ladder. By that time, Joe was back on the shaker, looking the shakers over and was coming off the shaker when they stepped up there.

According to Mr. Nelson, Mr. Moroney would be hooked up except when he had to leave his work platform to eliminate "plug-ups" in the "shakers" or "the surge bin or down in the pit or on the conveyor" (Tr. 478).

Mr. Moroney testified about working as a chipper operator, a job he had with Respondent for four years, and what he recalled of the reinspection visit (Tr. 27-117). In that position, hw worked on an eight or 10 foot platform next to two chippers. A small chipper was on one side of the platform and a larger chipper was on the other (Tr. 85). Witness Moroney explained that a lifeline, involving a belt attached to a five or six foot rope, was installed in late 1971 following [*18] the first inspection. It was later modified by addition of a ring which permitted more movement without being unhooked. It continued to be necessary to unhook the line many times a day and leave the platform to perform other duties assigned to him. Having worked without a lifeline for nearly four years, he recalled that it was difficult to remember to keep to lifeline hooked. He said he was told to hook up frequently by his superior, Mr. Gordon, especially when it was first installed. Mr. Moroney identified the pictures that were taken of him at the chipper area by Mr. Goodman on the reinspection visit. He said he had been off the platform and had just returned to his regular work station from the shaker and surge bin area when the pictures were taken in rapid succession (Tr. 79, 90). He stated that neither inspector identified himself, but he was asked to give his name. Mr. Moroney said he was terminated shortly after the inspection by the owner (at the suggestion of Inspector Goodman), and he has since been unable to find another job. Mr. Moroney testified that he was at first confused and then later a little angry at the actions of the inspectors.

Respondent contends [*19] that the Secretary's January 20, 1972 reinspection did not conform to the requirements of Sections 8(a) and 8(e) of the Act and that the resulting enforcement proceeding must therefore be dismissed. Respondent states in his opening brief (p. 12):

It is Respondent's position that the events surrounding the chipper citation present an especially blatant disregard for the requirements of the Act on the part of the Secretary's representative and his state companion. Indeed, the evidence establishes a very clear inference, which was not seriously contradicted, that the situation borders on entrapment, that the primary motivation was to "catch" the operator at a time when his lifeline was not hooked and in turn to impose a punitive penalty on the employer. There is also very strong evidence, likewise not contradicted, that this was initiated by a state inspector, whose motives in this instance are subject to question as a result of a dispute with the Respondent which grew out of that gentleman's practice of soliciting employment on the weekends from employers whom he inspected during the week.

It is clear that the follow-up inspection was invalid insofar as it related to the [*20] allegation n4 involving the chipper operator's lifeline and the related additional proposed penalty. Even if Mr. Goodman's version of the reinspection visit were fully credited, it is apparent that the inspection of Respondent's premises on January 20, 1972, could not have been authorized before Mr. Gordon saw Mr. Goodman and his companion and knew they were on the premises. The Notification of Failure to Correct Violation and of Proposed Penalty and the complaint to the extent that they relate to the chipper operator's lifeline issue must, therefore, be vacated.

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n4 The allegation and the standard involved in the chipper operator lifeline incident are set forth under Item No. 9, infra.

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Under Section 8(a) of the Act, an inspector of the Secretary is authorized to enter an employer's workplace only upon presenting appropriate credentials to the owner, operator, or agent in charge. Further, Section 8(e) contains a mandatory requirement that an employer be given the opportunity to accompany an inspector on [*21] walk-around inspections. The Secretary's regulations also provide that the compliance officer is to present his credentials to an appropriate official at the beginning of his inspection and to afford the employer (and employees as well) an opportunity to participate in the walk-around inspection. See 29 CFR Part 1903, especially 1903.7 and 1903.8. It is enough to say here with respect to the chipper operator's lifeline issue that the Secretary's investigative efforts did not comply with the statutory requirements for carrying out an authorized inspection. The fact that the allegation relating to the chipper operation involved an alleged failure to correct a continuing violation charge under Section 9(b) of the Act rather than an original citation and a related proposed penalty is of no consequence. The authority of the Secretary to inspect and proceed in either case is the same, and the Secretary must comply with Section 8 of the Act. Since the Secretary did not follow the inspection procedure required by the Act with respect to this charge there was no basis for the Secretary to issue the notification of failure to correct on the issue or to propose a penalty therefor. [*22]

The January 20, 1972 inspection did become a valid and authorized one after Mr. Goodman's identity and purpose were made known to Mr. Gordon in the latter's office on that date. The time of his arrival was reasonable, it was during regular working hours and he was authorized thereupon to make an inspection "without delay." Mr. Moshofsky, the owner, was not on the premises and it was appropriate for Mr. Goodman to present himself to Mr. Gordon (who had participated in the October 1971 inspection previously). Mr. Gordon was in charge of the sawmill area and had apparent authority, and, in fact, exercised inspection authority during the walk-around, over the planer and yard area.

Respondent contends (citing Tr. 171 and 551) that Mr. Goodman did not present his credentials on the day of the re-inspection. The record is not clear on the point. n5 It is clear, however, that Mr. Gordon knew who Mr. Goodman was and that he accepted his authority to conduct an official inspection on behalf of the Secretary. Once he knew of Mr. Goodman's presence on the premises, Mr. Gordon consented to the inspection and accompanied him and Mr. Day during the walk-around. The procedure followed [*23] during this portion of the re-inspection visit did not conflict with the Act, the Secretary's regulations or the Constitution.

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n5 Mr. Goodman did testify that he presented himself and explained that he was on Respondent's premises to conduct a follow-up inspection (Tr. 158). See also Tr. 169; 381-86; 599-600. If credentials were not in fact presented, Mr. Gordon undoubtedly waived the requirement.

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Respondent cites a number of cases n6 in support of its contention that the notification seeking assessment of additional penalties in its entirety and the related portion of the complaint must be dismissed on the theory that to do otherwise would permit the Secretary to make use of the fruits of an unauthorized search. But none of the cases warrant exclusion of the evidence as developed during the re-inspection visit beyond that which has been ordered here (i.e. except that which relates to the chipper area), as Respondent's agent on the premises in effect consented ot it. n7

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n6 Some of Respondent's case are criminal, some involve Fourth and Fourteenth Amendment rights and some involve pending decisions of Review Commission judges issued under the Occupational Safety and Health Act of 1970.

n7 In Weeks v. United States, 232 U.S. 383 (1914) the Court itself explained that it was there "dealing with. . . the right of the court in a criminal prosecution to retain for the purposes of evidence the letters and correspondence of the accused, seized in his house in absence and without his authority by a United States marshal holding no warrant for this arrest and none for the search of his premises." In Mapp v. Ohio, 267 U.S. 683 (1961) police officers had forcibly opened the door to the defendant's home and without warrant took allegedly obscene materials by use of "brutal or offensive physical force." In Colonnade Corp. v. United States, 397 U.S. 72 (1970) IRS agents inspected the cellar of a liquor licensee's establishment without permission and without warrant and later broke the lock and re-entered the room when the owner refused entry.

Camara v. Municipal Court, 387 U.S. 522 (1967) is closer to the case at bar. In that case a San Francisco apartment dweller refused entry to a health inspector without a warrant. The San Francisco housing code also authorized inspection on presentation of credentials. Camara argued (successfully) that an inspection could be had only with a warrant notwithstanding the inspection provision in the housing code. But in contrast to Camara's position, Respondent here consented to the Secretary's inspection. Respondent does not really question the validity of the inspection procedure provided for in the statute, only that the statutory procedure was not followed.

[*25]

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Item No. 1

Paragraph VI of the complaint alleges in part that "respondent violated Exhibit A, which is deemed a final order of the Commission pursuant to Section 10(a) of the Act, and further continued in violation of certain of the safety regulations charged in Exhibit A through failure to correct and abate" certain specific items by the prescribed abatement dates, as follows:

January 14, 1972, through January 20, 1972, and thereafter:

3. Item No. 1 of Exhibit A: an impact wrench and extension cord in the sawmill shop, two extension cords in the sawmill prefab shop, and a 1/4 inch Thor drill in the planer mill filing room had defective grounding attachments, contrary to 29 CFR 1910.314(d)(4).

The wording of Item No. 1 in the uncontested citation of December 2, 1971, referred to as Exhibit A, is similar but not precisely the same as used in the complaint.

29 CFR 1910.314(d)(4) reads in part:

(4) Equipment connected by cord and plug. Under any of the conditions of this sub-paragraph, exposed noncurrent carrying metal parts of cord and plug connected equipment, which are liable [*26] to become energized, shall be grounded . . .

Three subsections or subparagraphs immediately follow and indicate when the standard is applicable: (i) in hazardous locations; (ii) in certain situations when operated at more than 150 volts to ground and (iii) in non-residential occupancies (certain portable tools used in conductive situations and appliances). n8

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n8 in view of the disposition made of this issue, it is unnecessary to set forth the full text of this regulation, and it may be assumed to apply to the articles mentioned. 29 CFR 1910.314 is concerned with "grounding" of electrical systems and is included under subpart S of occupational safety and health standards. Subparagraph 1910.314(d) itself is concerned with grounding of exposed noncurrent-carrying metal parts of fixed equipment liable to become energized.

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Inspector Goodman first testified that he observed Inspector Day pull out of the wall of the repair shop on the south side an extension cord which he thought ("I believe") was attached to an impact [*27] wrench. He recalled that the ground lug on the male plug of the cord was either broken or cut off, and it was the only ungrounded electrical item observed on the reinspection visit. Mr. Goodman said he observed similar items in the same area on his previous investigation in October 1971. Later in his testimony he indicated he was not sure whether Mr. Day pulled it from the wall, and he conceded that it may have been taken from a cabinet (Tr. 206-7; 234; 243; 253-4; 265).

Inspector Day testified on direct that he pulled a cord out of the wall on the reinspection visit and held it up to Mr. Goodman. His recollection on cross-examination was that he pulled one plug on a cord attached to "some kind" of a tool, and that it was plugged in (Tr. 293-6.)

Sawmill Superintendent Gordon testified that shortly after the first citation was issued he personally cut the cord off of the impact wrench in the sawmill shop referred to in the citation (an employee's personal tool) and had an electrician ground it and all other cords and plugs (including lamps and drills).

Mr. Gordon recalled that instead of pulling out one cord, as the inspectors had testified, they pulled every cord [*28] ("40 or 50") that was "handy." He testified that the particular extension cord referred to by Inspector Goodman was observed by him (but not pointed out to him by the inspectors), and it was taken out of a cupboard. He recalled that a table lamp cord in the planing area was pulled out by Mr. Goodman and shown to him. Mr. Gordon said that he cut off the plug, although it was in the same condition as it was when it came from the factory (Tr. 414, 565-69; 588-92).

In order for the Secretary to prevail on this Item, or any other failure to abate issue, the Secretary must first establish that the particular violation subject to the December 2, 1972 citation continued unabated beyond the prescribed abatement date. The Secretary contends that any violation of a standard cited in a final order gives rise to assessment of additional penalties for an alleged continuing violation. Argues the Secretary in his initial brief (pp. 5 and 6):

. . . We believe what constitutes a violation for abatement purposes is that which is res judicata and is governed by the pleadings i.e. the Citation. Moreover it includes not only the description of the items but the violation itself. Section [*29] 17(d) itself permits such a construction when the $1,000 per day penalty is prescribed "during which such failure or violation continues." (emphasis supplied) We thus believe the regulation and the description is the violation for abatement purposes. And in the absence of inconsistency that which is res judicata governs. Thus a hole is a hole, a cord is a cord, and a lumber carrier is a lumber carrier, so long as the regulation has not been changed. Here the terms of the Citation being enforced are clear and refined distinctions need not be made. . .

This view of the statute does not conform to the language used in Sections 10(b) and 17(d). Both sections contemplate action by the Secretary only where the employer has failed to correct a particular violation previously cited within the abatement period prescribed -- i.e. where "an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction" (Sec. 10(b)) or where he "fails to correct a violation for which a citation has been issued under section 9(a) within the period permitted for its correction" (Sec. 17(d)).

The use of the disjunctive word "or" in Section [*30] 17(d) is not significant. The failure to abate "within the period permitted" is a continuing violation. A continuing violation and a failure to abate are not separate and distinct offenses, even though for each day the offense continues an additional penalty may be assessed under section 17(d).

The doctrine of res judicata does not confer authority upon the Secretary to proceed against previously uncited violations as a continuing violation and collect "additional" penalties. Respondent's failure to contest timely the citation of December 2, 1972 and the notification of proposed penalty of the same date determined with finality that Respondent violated the standards and the Act as alleged and the propriety of the penalties proposed. But Respondent did not become liable for an additional penalty with respect to such final order without proof that Respondent did not in fact correct the particular violations subject of the final citation and penalty. The Secretary is not without a remedy. If there is a new violation, even if it involves a previously cited standard, the Secretary may issue a new citation and propose a new penalty.

The Secretary's reliance on [*31] one ungrounded extension cord to an unidentified tool not shown to be in service does not provide a basis for finding any violation, much less a basis for finding the existence of a continuing violation and assessment of an additional penalty.

Item No. 6

Paragraph VI of the complaint alleges that Respondent "further continued in violation of" Item No. 6 of Exhibit A, the final and uncontested December 2, 1971 citation, on "January 14, 1972, through January 20, 1972, and thereafter" in essentially the same language used in such citation as follows.

. . . no horn on the lumber carrier used at the sawmill, contrary to 29 CFR 1910.265(c)(30)(ii).

29 CFR 1910.265(c)(30)(ii) reads:

(ii) Warning signals and spark arrestors. All vehicles shall be equipped with audible warning signals and where practicable shall have spark arrestors. n9

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n9 29 CFR 1910.265 applies to sawmill operations, one of the "Special Industries" included under subpart R of occupational safety and health standards. Applicability of the sawmill standards and certain relevant definitions appear under 1910.265. "Vehicles" are defined to include "all mobile equipment normally used in sawmill, planing, mill, storage, shipping, and yard operations" (1910.265(c)(30)(i)).

[*32]

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Mr. Goodman stated that on the day of the re-inspection he asked a lumber carrier operator if the horn on the vehicle worked. He was told that it did not (Tr. 208). Mill Superintendent Gordon stated that the horn was functioning earlier on that day. However, there had been a "lot of rain," and it was necessary to install a new relay (after it was inspected). Mr. Goodman thought it was the same carrier that had been cited previously, but Gordon testified that it was not. The carrier inspected in October 1971 had been taken out of service (Tr. 254-5; 398-9; 569-71).

This charge must be dismissed because the Secretary did not establish by credible evidence that Respondent had not abated the violation referred to in Item No. 6.

Item No. 7

Paragraph VI of the complaint alleges that Respondent "further continued in violation of" Item No. 7 of Exhibit A, the uncontested December 2, 1971 citation, on "January 14, 1972, through January 20, 1972, and thereafter" in essentially the same language used in such citation as follows:

. . . antikickback device on the edger bent out of shape and ineffective, [*33] contrary to 29 CFR 1910.265(e)(5)(iii).

29 CFR 1910.265(e)(5)(iii) reads:

(iii) Antikickback devices. Edger shall be provided with safety fingers or other approved methods of preventing kickbacks or guarding against them. A barricade in line with the edger, if properly fenced off, may be used if safety fingers are not feasible to install.

Mr. Goodman testified that when he inspected Respondent's premises in October 1971 he observed that the teeth or fingers on the antikickback device of the edger "were bent in such a manner that a narrow slab going through the machine could be kicked back between them." He said he saw the same device at the time of the re-inspection and noted four teeth were then broken off. He took a photograph of the device on the day of the re-inspection (SX4). When he first saw the edger on that day, Mr. Goodman said that the device was in a raised position "about 8 inches" so that the fingers were ineffective. The picture was taken after the teeth were lowered (Tr. 202-5; 260-62).

Sawmill Superintendent Gordon recalled seeing a bent finger in October 1971 and a broken finger at the time of the re-inspection. He indicated that the edger could [*34] operate with the antikickback device in the "up" position, but it was not so operated. According to Mr. Gordon, the teeth on the device do not remain broken for very long. The fingers commonly break and are regularly repaired after each shift. See Tr. 392-4; 552-64; 594-604.

The Secretary's counsel took the position at the hearing that Item No. 9 has two aspects: (1) the antikickback device was ineffective because it was operated in the raised position and (2) the device was ineffective because of "bad teeth" (Tr. 596). Respondent contends that the first aspect is not involved in Item No. 9. I agree with Respondent's contention, first, because the pleading does not raise the point and, secondly, it was not shown that Respondent so operated the device (in October 1971 and in January 1972).

As has been indicated, for the Secretary to establish a continuing violation it is essential that he show a prior violation had not been abated. If the bent teeth which Mr. Goodman saw in October 1971 continued to be bent in January 1972, or broken off so they were missing completely at the time of re-inspection, then it is apparent that the violation has not been abated. But it [*35] was not so established. n10 To establish a violation of the standard in the first instance (i.e. a new violation), it must be shown that the antikickback device was not "preventing. . . or guarding against" kickbacks. Mr. Gordon pointed out that broken fingers do not necessarily make the device ineffective.

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n10 Counsel for the Secretary did seek to show that the same teeth were involved in the two inspections (Tr. 204). He called Mr. Best to show that a violation "continued" to March 6 and 7, 1972. Mr. Best said a State of Oregon inspection of Respondent on those dates revealed the device was ineffective because the teeth were so "worn" that they would not catch and hold lumber (Tr. 319-24). Mr. Best's charge was still different from Item No. 7 and the evidence he gave was not obtained during the course of an authorized inspection of the Secretary.

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Item No. 9

Paragraph VI of the complaint alleges that Respondent "further continued in violation" of Item No. 9 of the December 2, 1972 uncontested citation "through [*36] failure to correct and abate. . . by the prescribed abatement date. . ." (immediately) on "December 8, 1971, through January 20, 1972" as follows:

. . . workman engaged in feeding the chippers not using a safety belt with life line attached and tied off while working along the two conveyors ahead of the metal detector -- such workman subject to flying material, or tripping and falling into moving machinery, contrary to 29 CFR 1910.265(c)(21)(i).

The wording of Item No. 9 of the uncontested citation is essentially the same and in addition states that:

. . . Such conveyor system [is] located from near floor level to approximately waist high. . . .

29 CFR 1910.265(c)(21)(i) reads:

(i) Whole-log chippers. The feed system to the chipper shall be arranged so the operator does not stand in direct line with the chipper spout (hopper). The chipper spout shall be enclosed to a height of not less than 36 inches from the floor or the operator's platform. A safety belt and lifeline shall be worn by workmen when working at or near the spout unless the spout is guarded. The lifeline shall be short enough to prevent workers from falling into the chipper.

As pointed out under [*37] the "Chipper Lifeline Incident," supra, the Secretary's evidence was not obtained by means of an authorized inspection, and it is, accordingly, unnecessary to discuss it or make a determination of this issue on the merits.

Item No. 12

Paragraph VI of the complaint alleges that Respondent "further continued in violation of" Item No. 12 of Exhibit A, the uncontested December 2, 1971 citation, on "January 14, 1972, through January 20, 1972, and thereafter" in, the same language used in the uncontested citation as follows:

. . . large hole in planer mill yard exposed to vehicle or foot traffic, contrary to 29 CFR 1910.23(a)(7).

29 CFR 1910.265(c)(21)(i) reads:

(7) Every temporary floor opening shall have standard railings, or shall be constantly attended by someone. n11

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n11 29 CFR 1910.23 is concerned with "Guarding floor and wall openings and holes" and is included under Subpart D which contains standards for "Walking-Working Surfaces." 29 CFR 1910.21(a) contains definitions for "floor hole" (1" to 12" opening in "floor. . . or yard, through which materials. . . may fall) and a "floor opening" (opening of 12" or more through which a person may fall).

[*38]

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According to Inspector Goodman, the hole referred to in Item No. 12 was in the form of an uncovered, unguarded vertical culvert located "at the northwest corner of the planer shed." He was told at that time that a cover was on order. He acknowledged during his testimony that this hole had been repaired when he made the return visit in January 1972. The hole was then covered, but there were two other similar holes (30" X 30") in the area without any guard or cover. He took pictures of the holes on the re-inspection visit, but at the hearing he was not sure just where the holes were located on Respondent's premises (Tr. 211-16; 265-272; SX 6 and 7).

Mr. Chernosky testified that after the first inspection he repaired two holes, which were in fact two collapsed culverts in a swampy area. A new culvert (in part) was obtained for one hole, and for the other, the one subject to the December 1971 citation, was "fixed" with a special steel cover. On the day of the re-inspection, certain hole covers were off between 8 A.M. and 2 P.M. while two workmen flushed out the line with a fire hose. Apparently [*39] the two men assigned to the cleaning job were temporarily away from the area when the inspectors came through (Tr. 504-14; 535-42; RX 9A-B-C).

It is apparent from the record that the Secretary did not establish that Item No. 9 violation continued after the abatement date as charged. It is also apparent that different holes were left unguarded, at least temporarily, on January 20, 1972, resulting in a new violation of 29 CFR 1910.23(a)(7).

Item No. 15

Paragraph VI of the complaint alleges that Respondent "further continued in violation of" Item No. 6 of Exhibit A, the uncontested December 2, 1971 citation, on "January 14, 1972, through January 20, 1972, and thereafter" in similar language used in such citation as follows:

. . . safety glass missing from the welder's helmet located in the planer mill filing room contrary to 29 CFR 1910.252(e)(2).

29 CFR 1910.252(e)(2) reads in part:

(2) Eye protection -- (i) Selection. (a) Helmets or hand shields shall be used during all are welding or arch cutting operations, excluding submerged are welding. Goggles should also be worn during are welding or cutting operations to provide protection from injurious rays from adjacent [*40] work, and from flying objects. The goggles may have either clear or colored glass, depending upon the amount of exposure to adjacent welding operations. Helpers or attendants shall be provided with proper eye protection . . . n12

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n12 29 CFR 1910.252 appears under Subpart Q -- Welding, Cutting, and Brazing.

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Inspector Goodman testified that when he inspected Respondent in October 1971 he saw a welder's hood with the inside protective lens missing. He saw the hood again in the same place, hanging on the wall in the planer filing room, in the same condition when he returned on January 20, 1972. He was not aware of whether it had been used after the October inspection (Tr. 216-17; 262-4).

Mr. Menge, who works for Respondent as a planerman, testified that he owns the helmet hood (RX 4), and had kept it in the grinding room where only he and another employee work. Both Mr. Menge and Mr. Chernosky testified that the safety glass was back-ordered after the first inspection (on November 13, 1971), but to their [*41] knowledge the helmet was not used again (Tr. 462-70; 517-20; 543-8; RX 8).

The relevant standard by its terms cannot be violated unless the helmet is put to use (Tr. 264). The Secretary does not carry his burden by showing only that the helmet was not repaired or "effectively removed from service" (Secretary's opening brief, p. 3). The record does not establish that there was a continuing or any other violation of 29 CFR 1910.252(e)(2).

Item No. 17

Paragraph VI of the complaint alleges that Respondent "further continued in violation of" Item No. 17 of Exhibit A, the uncontested December 2, 1971 citation, on "January 14, 1972, through January 20, 1972, and thereafter" in the same language used in such citation as follows:

. . . compressed air of more than 30 PSI being used to clean off machinery, contrary to 29 CFR 1910.242(b).

29 CFR 1910.242(b) reads as follows:

(b) Compressed air used for cleaning. Compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal protective equipment. n13

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n13 This section appears under Subpart P -- Hand and Portable Powered Tools and other Hand-Held Equipment.

[*42]

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According to Inspector Goodman, there was no reducer on the air line used by Respondent's cleaning men ("at least 5") on January 20, 1972, just as he had observed during the previous October inspection. He thought the pressure was over 30 p.s.i. at the time of the re-inspection, but he took no reading at the end of the line. He believed that his companion, Mr. Day, had looked at the gauge at the compressor, but he was not sure what it showed (Tr. 219-22; 273-74).

State Inspector Day said he believed that the reading at the compressor was over 100 p.s.i., yet he did not recall what the reading was or even whether the line was being used or not (Tr. 291-3).

Mr. Gordon said he told Mr. Goodman that he had not been able to abate the compressed air problem, although reducing equipment had been ordered from two different suppliers. The ordered equipment never arrived due to the heavy demand for such equipment. From information Mr. Gordon obtained at a safety conference, however, Respondent was able to build and install its own reducer shortly after the reinspection. He assumed that the air [*43] line hose was used in the interim in cleaning machines and equipment. See Tr. 405-13; 575-79; 583; 593-4.

Mr. Gordon's testimony does indicate that there may have been use of the air hose without a reducer between January 14 and January 20, 1972. The evidence is not clear-cut but enough to indicate that the violation continued after the prescribed abatement date.

Item No. 19

Paragraph VI of the complaint alleges that Respondent "further continued in violation of" Item No. 19 of Exhibit A, the uncontested December 2, 1971 citation, on "January 14, 1972, through January 20, 1972, and thereafter" in the same language used in such citation as follows:

. . . no hot water provided for employees in the lavatories for the sawmill or planer mill contrary to 29 CFR 1910.141(d)(2).

29 CFR 1910.141(d)(2) provides:

(2) Lavatories. At least one lavatory with adequate hot and cold water, preferably from a combination supply fixture, shall be provided for every 10 employees (men or women) or portion thereof, up to 100 persons; and over 100 persons one lavatory for each additional 15 persons or portion thereof. . . .

Inspector Goodman stated that he learned there was no hot water [*44] in the sawmill and planer lavatories at the time of his October 1971 inspection and again on January 20, 1972 when he made his follow-up inspection. He did recall that construction of such facilities was already underway when he first inspected Respondent. Mr. Gordon told him at the time of the re-inspection, however, that the hot water was still not in (Tr. 222-4; 230-1; 274-7).

Mr. Gordon testified that at the time of the original inspection Mr. Goodman was shown the plans for putting in facilities at three locations, and he agreed that they would be adequate. When Mr. Goodman returned in January, however, the hot water had not been put in simply because Respondent's workmen had been tied up handling emergency matters caused by a flooding condition. The hot water was put in shortly thereafter (Tr. 402; 580-3).

The record does establish that the violation set forth in Item No. 19 was not abated by January 14, 1972, so the violation continued until at least January 20, 1972, the day of the re-inspection.

Item No. 20

Paragraph VI of the complaint alleges that Respondent "further continued in violation" of Item No. 20 of the December 2, 1972 uncontested citation "through [*45] failure to correct and abate . . . by the prescribed abatement date" (immediately) on "December 8, 1971, through January 20, 1972" as follows:

. . . failure to maintain records of occupational injuries on Form OSHA 100, 101 or other approved form and failure to post official Occupational Safety and Health Act poster to inform employees of protection and obligations, contrary to 29 CFR 1904.2, 29 CFR 1904.4, 29 CFR 1903.2 and section 8(c)(1) of the Act. . . . n14

The wording of Item No. 20 of the uncontested citation is essentially the same, although 29 CFR 1903.2 was not cited in the citation.

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n14 This section appears under Subpart J -- General Environmental Controls.

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Section 8(c)(1) provides:

Each employer shall make, keep and preserve, and make available to the Secretary or the Secretary of Health, Education, and Welfare, such records regarding his activities relating to this Act as the Secretary, in cooperation with the Secretary of Health, Education, and Welfare, may prescribe by regulation as necessary or [*46] appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses. In order to carry out the provisions of this paragraph such regulations may include provisions requiring employers to conduct periodic inspections. The Secretary shall also issue regulations requiring that employers through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this Act, including the provisions of applicable standards.

29 CFR 1903.2 reads in part:

(a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contract the employer or the nearest office of the Department of Labor. . . .

29 CFR 1904.2 and 1904.4 read in part:

1904.2 Log of occupational injuries and illnesses.

(a) Each employer shall maintain in each establishment a [*47] log of all recordable occupational injuries and illnesses for that establishment. . . . Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100. . . .

1904.4 Supplementary record.

In addition to the log of occupational injuries and illnesses provided for under 1904.2, each employer shall have available for inspection at each establishment within 6 working days after receiving information that a recordable case has occurred, a supplementary record for each occupational injury or illness for that establishment. The record shall be completed in the detail prescribed in the instructions accompanying Occupational Safety and Health Administration Form OSHA No. 101. Workmen's compensation insurance, or other reports are acceptable alternative records if they contain the information [*48] required by Form OSHA No. 101. If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

Inspector Goodman said he left a copy of OSHA regulations and a recordkeeping booklet (SX 8), which contains report forms in it, on his first inspection visit in October 1971. On his return in January 1972 he asked to see Respondent's injury records. He was shown Respondent's completed State Form 801's on file which call for the same information as OSHA Form 101 (Tr. 232-4; 278-88; 456).

Mrs. Roberta Stutzman, Respondent's office and inventory manager, testified that she was told by Respondent's owner in December 1971 to bring its records up to date. She obtained the assistance of a State Accident Insurance Fund representative and immediately ordered additional OSHA forms (which did not arrive until around March 1, 1972). She said she did not have her log (Form 100) up-to-date on the day of the re-inspection due to the lack of appropriate forms. She was able to furnish Mr. Goodman with completed State Form 801's in lieu of OSHA Form 101, however (Tr. 452, RX 7). When Area [*49] Director Harrower testified, he acknowledged that it had not always been possible to keep employers supplied with OSHA forms (Tr. 349-50).

The complaint and Item No. 20 allege failure to maintain Forms "100, 101 or other approved form and failure to post" the official OSHA poster. The Secretary does not contend that the OSHA poster was not posted. Respondent's State Form 801's on file contained the information which OSHA Form 101 calls for, and this is acceptable to the Secretary. There was, however, a failure to maintain OSHA Form 100 in an up-to-date manner and, thus, there was a continuing recordkeeping violation to this extent. It was not a substantial violation; no doubt the Secretary's failure to provide sufficient copies of the form contributed to the failure to abate it.

(B) As to the New Citation Dated January 25, 1972

Paragraph VIII of the complaint alleges that on January 20, 1972 Respondent violated 29 CFR 265(c)(30)(ix) "through failure to equip the lumber carrier used at the sawmill with brakes capable of holding and controlling the vehicle. . . ." The wording of the related citation is somewhat similar: "No brakes on the lumber carrier used at the sawmill." [*50] The Secretary assessed a proposed penalty of $40 for the alleged violation.

29 CFR 265(c)(30)(ix) provides:

(ix) Brakes. All vehicles shall be equipped with brakes capable of holding and controlling the vehicle and capacity load upon any incline or grade over which they may be operated.

The operator of a lumber carrier told Inspector Goodman on the day of the re-inspection visit that the vehicle had a broken brake hanger. Mr. Goodman thereupon took a picture of the right brake drum area (SX 5). He did not check the brakes on the vehicle himself (Tr. 208-9; 256-8).

Mr. Gordon explained that the mechanical brake system (part of which Mr. Goodman photographed) did not work as they had been replaced with functioning hydraulic brakes. The brakes were checked shortly after the re-inspection visit (Tr. 396-401; 571-4; RX 5 and 6).

It is apparent that the Secretary did not establish that the brakes on the carrier would not hold and control the vehicle as the standard requires.

III. The Penalties

The Secretary established only violations charged as to Items 17, 19, and 20, which were of a continuing nature. Penalties of course may be assessed only as to them. A new [*51] violation of 29 CFR 1910.23(a)(7), was shown but Respondent was charged with a continuing violation of such standard by failing to abate the large hole in the planer mill yard (Item No. 12).

Area Director Harrower testified that in proposing the initial penalties for all of the items set forth in the December 2, 1971 uncontested citation Respondent was given a total of 45% credit -- 20% for "history," 20% for "good faith," and 5% for "size" (on the basis that Respondent had 20-100 employees, Tr. 331). n15 He pointed out that in computing penalties for alleged continuing violations it was simply an exercise in arithmetic: initial penalties are multiplied by the number of days that violations went unabated. According to the Secretary's compliance manual, however, a minimum of $100 a day must be assessed for a violation, even if there was no initial penalty (Tr. 328). There was no initial penalty assessed for Items 17, 19 or 20, so Respondent was assessed $100 a day as to each from the time of the prescribed abatement date to the date of the re-inspection visit. In the case of Item 20, $4,300 was assessed on the ground that the violation had continued unabated for 43 days. The Secretary [*52] assessed $600 for each of the other Items (17 and 19) on the basis each had continued for six days. Secretary's Exhibit 10A-C shows how the penalties were computed (see also Tr. 327-358). According to Mr. Harrower, no consideration is given for factors of size, good faith or history in computing the proposed penalty for a continuing violation except as reflected in the initial penalty (if there is one, Tr. 359-60)

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n15 An additional 50% abatement credit was also originally given (Tr. 332). Area Director Harrower computed the proposed penalty differently for the new alleged violation relating to the lumber carrier brakes (Tr. 335), but the evidence did not sustain the charge.

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The Act provides that a penalty of not more than $1,000 a day may be assessed for a continuing violation (Sec. 17 (d)). The Act also provides that consideration is to be given to an employer's size, his good faith, his history of previous violations and the gravity of the violation in assessing "all civil penalties" (Sec. 17(j)). [*53] The Secretary's arbitrary computation of additional penalties based on the time period involved and the initial penalty assessed does not comport with the statute in my view. I am of the opinion that under all of the circumstances, including the evidence of record and the statutory requirements, that a total penalty of $500 is appropriate. A penalty of $200 is appropriate for the failure to abate Item No. 17, a $200 penalty is appropriate for the failure to abate Item No. 19 and $100 is appropriate for the failure to abate Item No. 20. The record shows that Respondent tried conscientiously to abate both Items 17 and 19 but were unable to do so because of technological and/or time problems. Of course Respondent could have sought a variance or an extension of time of abate the violations but did not do so.

The $4,300 assessment for the recordkeeping violation seems particularly excessive. The amount of the penalty for Item No. 20 is assessed primarily because of the time period that the violation continued. Even so, it is noted that the Secretary allowed 43 days to go by after the prescribed abatement time before undertaking to check on Respondent's compliance. Also, the Secretary [*54] could have been more helpful, primarily by supplying appropriate number of OSHA forms. Finally, it is to be noted that while record-keeping performs an important part in the administration of the Act, it admittedly does not bear a "direct" relation to health and safety (Tr. 348).

The record suggests that the violations involving Items No. 17 and 19 may have continued for a short time even after the re-inspection visit. The evidence on the point as to both issues, however, is vague and not sufficiently probative to hold that either violation did in fact continue for a specific time period after January 20, 1972. n16

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n16 Thus, I do not reach the issue of whether the Secretary may collect penalties for a continuing violation after the notification thereof has been issued.

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Based on the foregoing, and the whole record, I make the following

CONCLUSIONS OF LAW

1. Respondent is, and at all times material herein, an "employer" within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, [*55] and the Commission has jurisdiction of the parties and the subject matter.

2. The citation and notice of proposed penalty issued by the Secretary against Respondent on December 2, 1972, was not contested and, thus, became final pursuant to the provisions of Section 10(a) of the Act.

3. The Notification of Failure to Correct Violation and Of Proposed Additional Penalty dated January 25, 1972 is vacated insofar as it related to Items 1, 6, 7, 9, 12 and 15.

4. The Notification of Failure to Correct Violation and of Proposed Additional Penalty is modified to the extent it relates to Items 17, 19 and 20.

5. It was not established that Respondent violated 29 CFR 1910.265(a)(30)(ix) on January 20, 1972 or on any other date.

ORDER

Based on the foregoing findings of fact, conclusions of law and the entire record, it is ORDERED:

1. The proposed additional penalty of $600 for failure to abate the violation of 29 CFR 1910.242(b) is vacated, and an additional penalty of $200 in lieu thereof is hereby assessed.

2. The proposed additional penalty of $600 for failure to abate the violation of 29 CFR 1910.141(d)(2) is vacated, and an additional penalty of $200 in lieu thereof [*56] is hereby assessed.

3. The proposed additional penalty of $4,300 for failure to abate, the recordkeeping violation is vacated, and an additional penalty of $100 is assessed in lieu thereof.

4. The Notification of Failure to Correct Violation and Proposed Additional Penalty as it relates to Items 17, 19 and 20, as modified, is affirmed.

5. The citation dated January 25, 1972 alleging violation of 29 CFR 1910.265(c)(30)(ix) and the notification of proposed penalty relating thereto ($40) are hereby vacated.