PRATT & WHITNEY AIRCRAFT, A DIVISION OF UNITED AIRCRAFT CORP.

OSHRC Docket No. 510

Occupational Safety and Health Review Commission

March 25, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: A decision of Judge Herbert E. Bates is before us on Chairman Robert D. Moran's direction for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.; hereinafter "the Act"). n1 In his decision, Judge Bates affirmed one serious violation of the Act and vacated three of the four alleged non-serious violations. In addition, the Judge assessed a total penalty of $1,080.

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n1 This case, consolidated with Docket No. 130 for hearing, was severed for the purpose of review by our decision in Pratt & Whitney Aircraft, a Division of United Aircraft, No. 130 (January 27, 1975).

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After reviewing the entire record, we affirm the Judge's decision to the extent that it is consistent with the following.

The issues before us on review are as follows:

I. Is the standard at 29 CFR 1910.36(b)(8) void and unenforceable as being too vague?

II. Was respondent cited under the [*2] proper standard?

III. Is the Judge's penalty assessment in accordance with section 17(j) of the Act and prior Commission precedent?

I.

The issue of whether the standard at issue is unenforceably vague was raised by both Chairman Moran in his direction for review and respondent in its brief. The Members of this Commission have had differing opinions regarding our authority to review the validity of standards promulgated by the Secretary of Labor. See United States Steel Corp., Nos. 2975 & 4349 (November 14, 1974) (Cleary, Commissioner, concurring). The "vagueness" issue will be considered, however, since there is yet to be a judicial decision delineating the Commission's power in this regard.

The standard, 29 CFR 1910.36(b)(8), provides as follows:

1910.36 General requirements (b) Fundamental requirements (8) Every building or structure or area thereof of such size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, shall have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be [*3] blocked by any one fire or other emergency conditons.

This "fundamental requirement" was taken verbatim from the National Fire Protection Code (NFPA). n2

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n2 Code for Safety to Life from Fire in Buildings and Structures (Life Safety Code), NFPA No. 101-1970, Chapter 2 -- General, Section 2-1, Fundamental Requirements, subsection 2-1118.

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Respondent alleges that without further explanation of such terms as "size, occupancy, and arrangement," it is unable to comply with the requirements of the standard. We reject this contention. Although some specifications regarding "size, occupancy, and arrangement" were not expressly adopted from the NFPA as standards, this is not sufficient to render the standard fatally vague.

In Modern Automotive Service, Inc., No. 1541 (February 27, 1974), this Commission noted:

. . . standards employing broad terms are reasonable and enforceable if the terms have a technical meaning among those to whom they apply . . .

The United States Court of Appeals for the Fifth Circuit [*4] in Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974) said that "[s]o long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster. United States v. Petrillo, 332 U.S. 1, 4 (1974)." n3 The Court went on to state:

The regulation appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury . . . we think inherent in that standard is an external and objective text . . . n4

This observation, although concerning a different standard, is equally applicable in this case to 29 CFR 1910.36(b)(8). The "external and objective test" here is whether or not a reasonable person in the place of one responsible for the safety of respondent's employees would recognize the hazard of providing insufficient means of egress.

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n3 To the same effect, see Brennan v. O.S.H.R.C. & Santa Fe Trail Transport Co., No. 74-1049 (10th Cir. October 22, 1974).

n4 This language was quoted with approval by the United States Court of Appeals for the Fourth Circuit in McLean Trucking Co. v. O.S.H.R.C. & Secretary of Labor, 503 F.2d 8, 10 (4th Cir. 1974). The standard at issue in both Ryder Truck and McLean Trucking was 29 CFR 1910.132(a).

[*5]

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The standard, 29 CFR 1910.36(b)(8), provides a fundamental requirement designed to encompass the "myriad conceivable situations which would be capable of causing injury" to respondent's employees. That the requirement is fundamental in nature does not mean that the standard is vague.

In this case the area in question, the assembly area, is located in a room approximately one hundred feet wide and three hundred feet long with a twenty-five to thirty foot ceiling. There are seven exit doors located throughout the room. The area contains varying quantities of flammable liquids such as acetone, alcohol, oil and jet fuel. In certain areas of the assembly room, small amounts of jet fuel and oil sometimes combine, as the result of accidental spillage and overflow, to cause the wooden floor to become "quite greasy." The testimony demonstrates that there are a number of sources of possible ignition such as electric motors, welding operations, the operation of motor vehicles, the use of extension cords, and employees' smoking habits. Respondent's employees in this area are engaged in the assembly and disassembly [*6] of experimental rocket jet engines. During the peak hours of operation, when as many as one hundred and fifty employees are in the assembly room, a single door manned by a security guard provides the only effective means of egress. The other six exit doors are locked. On weekends, all of the doors are locked, unless there is a heavy work crew. This situation has resulted in respondent's employees being locked in the assembly room from ten to thirty minutes. n5

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n5 Respondent is under contract to the Department of Defense to perform classified research and development in the area of rocket and jet engines. The Department of Defense requires that the exits be secured at all times by either some type of locking devide or the posting of a guard. The record reveals, however, that adherence to the requirements of the Department of Defense by respondent in no way prevents it from fulfilling its duties under the Act.

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Applying the "external and objective test" set out above to the facts before us, we [*7] conclude that a reasonable person responsible for the safety of employees, after considering the standard, 29 CFR 1910.36(b)(8), and the factual situation, would be able to apply the language of the standard to the situation in order to identify the hazard and eliminate it.

Therefore, we find the standard at 29 CFR 1910.36(b)(8) to be valid and enforceable as promulgated.

II.

Respondent contends that the citation for the alleged serious violation of the Act should be vacated since the citation was not based on the proper standard. The argument centers on the proposition that a "means of egress" retains its status as such even when certain impediments exist, such as locked, poorly lit, or obstructed exits, which reduce or eliminate its effectiveness as a way of exit travel. If this argument is correct, respondent continues, then it was improperly cited under the standard requiring sufficient means of egress since the standard prohibiting the use of locks on exits n6 is more specifically applicable. We do not agree.

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n6 29 CFR 1910.36(b)(4).

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The term "means of egress" is defined at 29 CFR 1910.35(a) and reads, in pertinent part, as follows:

1910.35 Definitions as used in this subpart. (a) Means of egress. A means of egress is a continuous and unobstructed way of exit travel from any point in a building or structure to a public way and consists of three separate and distinct parts: the way of exit access, the exit, and the way of exit discharge (emphasis added).

The locking of exits, as in this case, destroys the "continuous and unobstructed way of exit travel" and, in effect, eliminates one of the "separate and distinct parts" necessary for a means of egress. When one of its essential parts is omitted, a means of egress loses its status as such.

In support of its "locked exit is still a means of egress" theory, respondent directs our attention to the standard at 29 CFR 1910.37(k)(2). The standard provides as follows:

1910.37 Means of egress, general (k) Maintenance and workmanship (2) Means of egress shall be continuously maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency (emphasis [*9] supplied by respondent).

Respondent contends that this standard clearly demonstrates that a means of egress retains its status even while it is obstructed. This contention, if valid, creates an apparent conflict between the standards at 29 CFR 1910.35(a) and 29 CFR 1910.37(k)(2). n7 The standard at 35(a) defines a means of egress as being "continuous and unobstructed" while respondent would have us find that the standard at (k)(2) permits a means of egress to be obstructed. Respondent's contention is rejected. The standards are not in conflict.

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n7 Hereinafter, sometimes referred to as 35(a) and 37(k)(2).

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The other subparagraphs contained under paragraph "(k) Maintenance and workmanship" deal with the components of a means of egress such as exits, doors, ramps, and passages. We interpret the use of "means of egress" in the standard at (k)(2) as a collective term denoting its distinct parts. Thus, (k)(2) requires that exits, doors, ramps, and passages "be continuously maintained free of all obstructions [*10] or impediments . . . ." An obstruction or impediment to the free use of any component part eliminates the means of egress. Therefore, we find that respondent was properly cited under the standard at 29 CFR 1910.36(b)(8).

Even if we were to agree with respondent's means of egress theory, the record clearly establishes a non-compliance with the standard at 29 CFR 1910.36(b)(4), hereinafter 36(b)(4). n8 Indeed, respondent, in its brief on review, argues that it should have been cited under the standard at 36(b)(4).

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n8 The standard provides as follows:

1910.36 General requirements (b) Fundamental requirements (4) In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency.

[*11]

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Although the record establishes this non-compliance with the standard at 36(b)(4), neither the citation nor the complaint were amended at, or before, the hearing to allege respondent's failure to comply with this standard. Thus, before respondent can be found in violation of the Act for non-compliance with 36(b)(4), the record must be examined to determine whether the pleadings may be amended to conform to the evidence pursuant to Rule 15(b) of the Federal Rules of Civil Procedure. n9 Rule 15(b) gives a court the authority to make such an amendment on its own motion. Not only does an adjudicative body have the right to amend pleadings on its own motion, it has an affirmative duty to consider issues that are raised by the evidence, even if not specifically pleaded. American Boiler Mfrs. Ass'n. v. N.L.R.B., 366 F.2d 815, 821 (8th Cir. 1966); Michigan Consol. Gas Co. v. F.P.C., 283 F.2d 204, 224 (D.C. Cir. 1960); Underwriters Salvage Co. v. Davis & Shaw Furn. Co., 198 F.2d 450, 453 (10th Cir. 1952).

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n9 The Federal Rules of Civil Procedure goven Commission proceedings. See section 12(g) of the Act and Rule 2(b) of the Commission's Rules of Procedure. Rule 15(b), in pertinent part, provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such an amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues.

Fed. R. Civ. P. 15(b)

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In Godwin-Bevers Co., Inc., No. 1373 (January 7, 1975) (Cleary, Commissioner, dissenting), the five factors to be considered before amending the pleading pursuant to Rule 15(b) were set out. They are as follows:

1. . . . whether the underlying facts upon which a violation is alleged are the same.

2. Whether the parties expressly or impliedly consented to the trial of the amended issue.

3. . . . whether [*13] respondent has had a chance to raise all relevant defenses to the amended pleading.

4. . . . the nature of the amended violation. In other words, is a 5(a)(1) violation being amended to allege a 5(a)(2), or from 5(a)(2), to 5(a)(2), or from 5(a)(2) to 5(a)(1)?

5. . . . whether a violation based on the original complaint was found (footnotes omitted).

Applying these factors, we conclude that the issue of whether respondent violated the Act for its failure to comply with the standard at 29 CFR 1910.36(b)(4) was tried by the implied consent of the parties. Accordingly, if necessary, we would have amended the pleadings sua sponte to conform to the evidence. n10

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n10 Rule 72 of the Commission's Rules of Procedure provides in part that "(h) earings before the Commission and its Judges shall be in accordance with 554 of Title 5 U.S.C. . . ." (the Administrative Procedure Act). Under the APA, an agency may find that the respondent's conduct violates a different provision of law than that specified in the complaint as long as the underlying facts have been alleged in the complaint and the shift in legal theory does not prejudice respondent. N.L.R.B. v. Majestic Weaving Co., 355 F.2d 854, 861-2 (2d Cir. 1966); N.L.R.B. v. Pecheur Lozenge Co., 209 F.2d 393, 402 (2d Cir. 1953), cert. denied, 347 U.S. 953 (1954).

[*14]

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III.

In assessing a penalty for respondent's non-compliance with the standard at 29 CFR 1910.36(b)(8), Judge Bates found that the facts "portray a violation of such gravity, which standing alone, warrants the maximum statutory penalty of $1,000 under [the Commission's holding in Nacirema Operating Co., No. 4 (February 7, 1972)]". n11 We do not agree.

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n11 In Nacirema Operating Co., we held that the four penalty assessment criteria set out in section 17(j) need not be accorded equal weight in a given case. In different factual settings, the Commission will determine the weight to be accorded evidence as to the gravity of the violation, the employer's good faith, the employer's history of previous violations, and the size of the employer's business.

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This Commission in National Realty & Constr. Co., Inc., No. 85 (September 6, 1972), rev'd on other grounds, 489 F.2d 1257 (D.C. Cir. 1973) held:

In determining [*15] the gravity of a violation, several elements must be considered: (1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury.

In this case, the assembly area contains a large overhead sprinkler system as well as other forms of fire control to insure that any fire could be quickly and adequately controlled. Respondent has a full-time professional safety staff and an organized safety program. In addition, respondent has instituted an employee "fire brigade" and has positioned a professional fire department in the same building as the area in question.

Applying the elements of gravity found in National Realty to the facts before us, we find that such conditions exhibit a low to medium degree of gravity. Therefore, after combining this degree of gravity finding with our consideration of the other section 17(j) criteria, we deem a penalty of $250 to be appropriate for the serious violation.

Accordingly, it is ORDERED that the assessed penalty for the serious violation of 5(a)(2) of the Act be reduced to $250. In all other respects, the decision [*16] of Judge Herbert E. Bates is affirmed.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition. I would affirm the citation for the reasons assigned by Judge Bates. As to the vagueness and applicability issues, I note that they were not raised before the judge. As we said in Martin Iron Works, Inc., Dkt. 1690, BNA 2 OSHC 1531, CCH E.S.H.G. para. 19,219 (January 17, 1975) it is inappropriate to consider issues of this kind when first raised on review (slip op. at n. 2). In any event, the circumstances of this case are such that it would be appropriate to amend the citation to find a violation of 29 C.F.R. 1910.36(b)(4), and I agree that the standard cited is not vague. Finally, I concur in the penalty assessment for the reasons assigned by my colleague.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Respondent has been held to have violated the Act because of its failure to comply with the occupational safety and health standard found at 29 C.F.R. 1910.36(b)(8). Complainant's citation charged that this requirement was violated because:

Required exits locked in Main Building Assembly Department 81955.

The complaint amplified upon this charge [*17] as follows:

On or about January 4 and 5, 1972, respondent violated 29 C.F.R. 1910.36(b)(8) at Main Building, Assembly Department 81955 in that respondent locked required exits in Main Building Assembly Department 81955 to wit: only one exit remained unlocked in a building in which over 100 employees were employed. n12

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n12 Paragraph IV(A) of the complaint.

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The record reveals that respondent's main plant assembly room contained a number of doors ("means of egress"), but that with the exception of one door, which was manned by a security guard, these doors were effectively locked. Even this guarded door was often unavailable without the necessary key on the third shift and during some week-end operations, although a limited number of personnel were issued keys to various doors. It appears that respondent's concern with security measures (it was subject to Department of Defense security regulations) superseded its regard for emergency evacuation practices.

Although I am persuaded that the conditions existing at [*18] the time of the inspection herein were unsafe and hazardous to employees, it does not follow that the Act has been violated as alleged. n13 Respondent was charged with a violation of 29 U.S.C. 654(a)(2) because of an alleged failure to comply with the provisions of the occupational safety and health standard codified at 29 C.F.R. 1910.36(b)(8). That standard however does not meet the statutory or constitutional tests because it is phrased in such a way as to be unenforceable.

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n13 This is not to say that under the circumstances of this case, were complainant to charge a violation of 29 U.S.C. 654(a)(1), the general duty clause of the Act, it could not be found that that provision had been violated.

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An occupational safety and health standard is developed and promulgated because of the existence or potential existence of a conditon which is hazardous to the safety or health of employees. The purpose of such standard is to tell employers what they must do to eliminate, reduce, or prevent the hazardous [*19] condition. 29 U.S.C. 652(8) provides that:

The term "occupational safety and health standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

To meet this definition it is essential that a standard, using clear and comprehensible language, identify the hazard and specify what must be done to prevent its occurrence. Secretary v. California Stevedoring Co., 1 OSAHRC 366 (1972).

The standard found at 29 C.F.R. 1910.36(b)(8) does not do this. It does not specify any "conditions" necessary or appropriate for achieving "safe or healthful employment" nor does it list any "practices, means, methods, operations, or processes" for accomplishing the same. It thus fails to meet the requirements of 29 U.S.C. 652(8).

No employer, inspecting officer or trier of fact could possibly determine -- on the face of this standard -- when a building, structure, or area thereof is of such a "size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the [*20] blocking of any single means of egress due to fire or smoke." We see no criteria upon which to make such a determination. How can one determine when it is necessary to have "at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions?" Individually and collectively, as used in the standard, what do the words "size," "occupancy," "arrangement," "reasonable safety," "numbers of occupants," and "remote from each other" mean? Such language is not instructive, in any sense, to the ordinary employer.

This standard is subject to the same objections as those at issue in Secretary v. Modern Automotive Service, Inc., 6 OSAHRC 738 (1974). The identity of the hazardous condition and its effective remedy are left to the subjective determination of the employer. Nothing in this regulation provides any ascertainable guidance to the employer in that determination.

It is instructive to note the genesis of this standard and its juxtapositon among regulations addressed to similar conditions. It appears in "Subpart E -- Means of Egress" under 1910.36, "General Requirements," [*21] and (b), "Fundamental Requirements." Subsection 1910.38, "Specific Means of Egress Requirements by Occupancy," is reserved. Subsection 1910.39 states:

The entire subpart is promulgated from NFPA n14 101-1970, Life Safety Code.

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n14 NFPA is the acronym for the National Fire Protection Association, a nonprofit voluntary membership association which was organized in 1896 to promote the science and improve the methods of fire protection and prevention, to obtain and circulate information on these subjects and to secure the cooperation of its members and the public in establishing proper safeguards against loss of life and property by fire.

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The standard at 29 C.F.R. 1910.36(b)(8) is taken verbatim from NFPA's National Fire Protection Code. It appears under "Section 2-1, Fundamental Requirements" as subsection 2-1118. Other subsections of Sections 2-1 and 2-2 of the NFPA are also adopted verbatim as part of Subpart E which comprise the standards found at 29 C.F.R. 1910.35 through and including 29 C.F.R. 1910.37. [*22] n15 However, as noted previously, specific requirements as to means of egress in terms of occupancy are "reserved" and are not included in Subpart E. These specific requirements appear in the NFPA at chapters 8 through and including 14, and the specific requirements in terms of maximum distances to exits, etc., related to respondent's operations appear in chapter 14, Industrial Occupancies, of the NFPA under subsections 14-2161, 14-2162, and 14-2131. Subsection 14-2162 deals directly with aircraft assembly operations. For reasons not known to us, the Secretary had either rejected or elected not to adopt such specific requirements. n16

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n15 See, e.g., 2-1111 of NFPA adopted as 1910.36(b)(1); 2-1112 of NFPA adopted as 1910.36(b)(2); 2-1113 of NFPA adopted as 1910.36(b)(3); 2-1114 of NFPA adopted as 1910.36(b)(4); 2-1115 of NFPA adopted as 1910.36(b)(5); 2-1116 of NFPA adopted as 1910.36(b)(6); 2-1117 of NFPA adopted as 1910.36(b)(7).

n16 It is noted that the NFPA publication of its standards includes the following notation "We assume where portions of NFPA standards are taken out of context that the Labor Department expects the user of the OSHA standards to refer to the complete NFPA text for total information." See Guide to OSHA Fire Protection Regulations, Vol. 1, page ix, 2d edition, 1972. National Fire Protection Association. Boston.

[*23]

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Secretary v. U.S. Homes, Inc., Sandler-Bilt Homes Div., 1 OSAHRC 911 (1972), recognized that the standards under Subpart E in subsections of 1910.36(b) stated only fundamental requirements and that no specific requirements were in effect. Accordingly, on the basis of the record in U.S. Homes, the Administrative Law Judge was unable to find a violation of subsection 1910.36(b)(3), which holds the same posture as 1910.36(b)(8) herein. n17 To date, no specific requirements have been promulgated.

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n17 See footnote 9, supra.

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Enforcement of a regulation that fails to inform an employer what he must do to comply therewith does not comport with due process requirements. Cape and Vineyard Division v. OSAHRC,    F.2d    (1st Cir., No. 74-1223, decided March 3, 1975). Where regulations are subject to civil or criminal sanctions, parties against whom such regulations are sought to be enforced are entitled to receive fair warning [*24] of the conduct required or prohibited thereby. Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962); Jordan v. DeGeorge, 341 U.S. 223 (1951). They are further entitled to be free from the arbitrary application of regulations which are capable of multiple interpretations. Bowie v. City of Columbia, 378 U.S. 347 (1964).

29 C.F.R. 1910.36(b)(8) falls short of the foregoing requirements. Its terms are too vague to be enforceable and I would so hold.

[The Judge's decision referred to herein follows]

BATES, JUDGE: I. This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act), contesting certain citations issued by the Complainant against the Respondent-Employer under the authority invested in the Complainant by Section 9(a) of that Act.

As noted in the caption this decision embraces two separate cases (130 and 510) both involving the captioned Respondent, which cases were consolidated by order dated March 30, 1972.

In case Number 130, the Secretary on October 1st, 1971, issued a citation for a serious violation and four citations for certain violations other than serious, [*25] alleging that as a result of an Occupational Safety and Health Administration (OSHA) inspection of a workplace under the ownership, operation or control of the Respondent located at "Bee Line Highway, West Palm Beach, Florida," various violations [which will be described in more detail below] were noted. The Secretary proposed a penalty of $600.00 for the serious violation and a total of $810.00 for the 18 items comprising violations specified in the four non-serious citations. As will be noted below, certain of these nonserious items were disposed of by pre-trial conference, ultimately leaving at issue in Case No. 130 an alleged serious violation of Section 5(a)(1) of the Act, [referred to as the general duty clause], in that the Respondent failed to use a safe loading area for fork truck loading of large trucks, which resulted in the death of an employee on September 16, 1971 as well as the non-serious items detailed below.

It is expedient at this point to note that the above described Serious Citation No. 1, originally alleged that the Employer violated 29 CFR 1910.176(a), [rather than the above mentioned general duty clause], by this failure to use a safe loading area.

Sub-paragraph [*26] IV(A) of the Complaint which is based on this factual allegation therefore varies from the Citation in that it charges a violation of Section 5(a)(1) of the Act, rather than the specific standard referred to above.

At the pre-hearing conference, the Complainant (Tr. 92 et seq. ) urged that the Complaint amended the citation inasmuch as the standard alleged to have been violated was not an effective one at the time of the Citation was issued. The Respondent in its Answer, and in its argument (Tr. 94) urged that sub paragraph IV(A) is without legal effect, as it is based on an invalid Citation. The Respondent moved to dismiss this paragraph, [Docket Item H-25] which motion was denied in the absence of a showing by the Respondent that he was prejudiced or otherwise disadvantaged by the aforementioned pleading variance [P-2, Tr. 6-8]. To make the record complete the Citation in question is hereby ordered amended to conform with the Complaint in consonance with the aforementioned ruling.

In addition to this serious violation, involved in Case No. 130 are eight alleged non-serious violations ranging from failure to repair floor ruts to failure to maintain access to fire [*27] extinguishers, for which penalties ranging from $15.00 to $30.00 were assessed, in total amount of $195.00.

The Respondent was notified of the proposed penalties pursuant to the enforcement procedure set forth in Section 10(a) of the Act, by letter dated October 1, 1971 from James E. Blount, Area Director of the Fort Lauderdale, Florida Area, Occupational Safety and Health Administration, U.S. Department of Labor. This enforcement action was contested through the medium of Respondent's letter dated October 22, 1971. A Complaint and Answer having been filed by the parties, the case was assigned to the undersigned Administrative Law Judge on December 9, 1971, who scheduled the case for hearing in West Palm Beach, Florida on February 28th, 1972. The parties thereupon moved jointly for a continuance of the scheduled hearing date and for a separate pre-hearing conference, which motion was granted.

On January 17th, 1972 a citation for another serious violation and a five item citation for non-serious violations were issued to the Respondent following an inspection at the Respondent's workplace, therein described as the "Pratt and Whitney Research and Development Center Route 710 between [*28] Palm Beach and Indian Town." A proposed penalty of $1,000 was specified for the serious violation and a total penalty of $200.00 was specified for four of the five non-serious items, [which will be described in more detail below], but which in summary charged the Respondent with violating Section 5(a)(1) of the Act by maintaining required exits in a locked condition in its Assembly Department building. In addition to this "serious" charge the Respondent was cited for four "non-serious" violations of specific standards relating to housekeeping; obstructed passageways or aisles; failure to provide safe access to gas valves and "employee riding on Industrial truck with no approved rider's seat." It should be noted that Item I of the Non-Serious Citation No. 1, concerning unsafe storage on top of metal racks for which a penalty of $40 was proposed, was, according to Complainant, intentionally left out of the Complaint in Case 510 as being duplicative of a charge in Case 130, (P-Tr. 136) and is therefore not at issue here.

In view of the deletion of that non-serious item from the case, (which was docketed as No. 510), the total proposed penalty for the non-serious items remaining [*29] in issue amounted to $160.00, and the overall total proposed penalties assessed against Pratt and Whitney in the two cases later consolidated for hearing, amounted to $1955.00.

This second of the two cases involving the Respondent was assigned to the undersigned Judge on March 3rd, 1972. Complaint and Answer having been filed by the respective parties therein, the Secretary of Labor moved the Commission to consolidate the cases (130 and 510) for all further proceedings on the grounds that the violations alleged in each case arose out of the same plant location, involved the same employer, would conserve time and expense for the Commission and no parties would be prejudiced by such consolidation. The Respondent opposed the aforesaid motion which was granted by the undersigned Judge on March 30, 1972.

A pre-trial conference was scheduled for April 24, 1972 at Miami, Florida to be followed by trial of the cause on April 27, 1972. Because of the hospitalization of a key witness, the Respondent moved for a continuance of the scheduled hearing to a date after May 7, 1972. This request was granted and the prehearing conference was thereafter held in Palm Beach Gardens, Florida on April [*30] 25, 1972, which proceedings are covered and reported in the 167 page transcript attached, which, in the interests of page reference facility, has been designated as, "P-Tr. No.    ," to distinguish it from a second pretrial conference held later and referred to below.

The progress in disposing of this case was further interrupted when a problem arose in obtaining prompt receipt of the aforesaid transcript which was not received by the undersigned until the end of August or early September, 1972 thus preventing preparation of the summary and pre-hearing order until September 20th, 1972.

In a renewed effort to reach settlement the parties requested a second pre-trial hearing which was held on July 25, 1972, which could not be scheduled earlier due to the absence of the above mentioned transcript and intervening vacations. This second pre-trial hearing was held in Washington, D.C., on October 12, 1972, which proceedings were recorded in the sixth three page attached transcript referred to by the undersigned in this decision where necessary as "P-2, Tr.    ."

Various issues in controversy were narrowed and clarified, and items of evidence identified and described in these [*31] two prehearing conferences [as summarized in the respective prehearing orders designated as Docket Items H-23 and H-26, respectively], however it was not possible for the parties to reach an accord consistent with the Act which would result in an overall statement of the case and preclude the necessity of going forward with a trial on the remaining issues. In this regard, as I noted in Item No. 2, page 2, of the Summary and Order [Docket Item No. H-26, relevant to the second pre-hearing conference], "The parties were unable to reach accord on a settlement agreement. The principal stumbling blocks being the Secretary's unwillingness to accede to the Respondent's demand that the total proposed penalty be lowered from $1,955.00 to $895.00 and the Respondent's insistence on language in the settlement agreement which would totally "wash out," (P-2 Tr. page 13), from the standpoint of section 17(j) of the Act, any past history of previous violations which cases 130 and 510 might represent in the event future citations may be issued against the Respondent." I was unable to approve a settlement agreement containing such language, consistent with the provisions of the Act, a ruling which [*32] found later justification in the case of Secretary of Labor v. Matt J. Zaich Construction Company whatsoever about the future usability of a citation shall not be approved in that it is incompatible with the avowed legislative purpose of the Act and therefor "is not in the public interest, [5 USC 554(c)]."

Among other issues, attempts were made at the initial prehearing conference to reach agreement as to the jurisdictional allegations in the Complaints. The Respondent asserts that the Occupational Safety and Health Administration inspections were legally invalid and denied the legal conclusion set forth in the Complaints that the Respondent is engaged in a "business affecting commerce," within the meaning of the Act. Respondent's counsel agreed inter alia that the Respondent uses aluminum in its operation and orders it "from suppliers who are directly located outside the state of Florida" (P. Tr. 83); that the Respondent manufactures goods "that are destined to leave the state of Florida" (P. Tr. 85); that the Respondent [*33] communicates outside the state of Florida every day (P. Tr. 86); and ships aircraft engines outside of Florida every day (P. Tr. 87).

Based on the above facts, and other facts stipulated to by Respondent's counsel, as contained in the record, it must be, and is herein formally concluded, [Docket Item H-23, p. 7], that the Respondent is covered by the provisions of the Occupational Safety and Health Act, as an employer engaged in a business affecting commerece within the meaning of Section 3 of the Act, and the Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter pursuant to Section 10(c) thereof.

All avenues of settlement having been fully explored without success, the consolidated case was scheduled for hearing, and trial of the cause commenced at West Palm Beach, Florda on January 16, 1973.

The trial, a lengthy one, in which the issue detailed below were vigorously contested, consumed a total of approximately 11 hearing days, the testimony of twenty five witnesses, (three of whom testified as expert witnesses), and a transcript of 2276 pages.

Before proceeding to further specify and illuminate the issues involved in this [*34] consolidated case, I consider it helpful and appropriate at this point to set forth verbatim below, an excerpt from the "Summary and Pre-Hearing Order," [Docket Item H-23], covering the first pre-trial conference in this case, wherein certain items and issues were excluded and disposed of as noted.

III CITATION ITEMS OMITTED FROM COMPLAINTS AND NOT AT ISSUE

A. Case No. 130

1) Citation #1 (Non-Serious)

ITEM -- STANDARD VIOLATED -- VIOLATION DESCRIPTION -- ABATEMENT DATE

1 -- 1904.9 -- Obtaining identity of Complainant by misrepresentation -- Immediately

2 -- 1903.7(b) -- Refusal to allow Compliance Officer to photograph hazards -- Immediately

6 -- 1910.212(a)(3)(iv) -- Failure to maintain guard on Oliver jointer so it covers unused section of cutter automatically in Wood Pattern Shop -- February 15, 1972

Note: Items 1 and 6 were inadvertently omitted from the Complaint by the person drafting the same. Item 2 was intentionally abandoned by the Complainant (P. Tr. 97-100).

The Complainant agrees they are not at issue. No penalties were proposed for these alleged violations.

2) Citation #2 (Non-Serious)

ITEM -- STANDARD VIOLATED -- VIOLATION DESCRIPTION [*35] -- ABATEMENT DATE

2 -- 1910.107(b)(10)(c) -- Failure to prohibit use of camera electronic flash in spray area -- Immediately

Note: In regard to this item, for which a $15.00 penalty was proposed, Complainant's counsel asserted that it was deliberately omitted from the Complaint (P. Tr. 99).

3) Citation #3 (Non-Serious)

ITEM -- STANDARD VIOLATED -- VIOLATION DESCRIPTION -- ABATEMENT DATE

1 -- 1910.212(3)(iv) -- Failure to guard squaring shears etc. -- February 15, 1972

2 -- 1910.106(e)(3)(iv) -- Failure to maintain safety cans so no flammable leakage occurs -- February 15, 1972

3 -- 1910.107(b)(10) and (6) and (g) -- Failure to prohibit unapproved lighting in spray booths etc. -- February 15, 1972

5 -- 1910.178(m)(a) -- Failure to provide overhead guards on several forks trucks -- February 15, 1972

Note: No penalty was proposed for any of the alleged violations noted above. Complainant's counsel agrees that the above items were omitted from the Complaint and are not at issue herein (P. Tr. 103).

4) Citation #4 (Non-Serious)

ITEM -- STANDARD VIOLATED -- VIOLATION DESCRIPTION -- ABATEMENT DATE

1 -- 1910.178(e)(3) -- Failure to provide safe rider's seat on [*36] Yale fork truck etc. -- February 15, 1972

Note: No penalty was proposed for this item. Complainant's counsel asserts it was omitted from the Complaint and is not at issue herein (P. Tr. 103).

B. Case No. 510

Citation #1 (Non-Serious)

ITEM -- STANDARD VIOLATED -- VIOLATION DESCRIPTION -- ABATEMENT DATE

1 -- 1910.176(b) -- Storage on top of metal racks unsafe etc. -- February 15, 1972

Note: In its Notice of Contest the Respondent asserted that it did not contest the merits of item 1 and 5 of Citation #1, but alleged they were invalid since they appear on a form which includes other Citations. At the prehearing conference counsel for the Complainant advised that this item is not in issue, was intentionally left out of the Complaint because it was possibly repetitious of a similar charge in Case #130. A $40.00 penalty was proposed for this alleged violation (P. Tr. 163).

It is hereby ordered that the above described items (as well as any penalties proposed therefore) as outlined in Section III supra, charging the Respondent with violation of the standards specified therein, be and the same are hereby vacated.

IV. It is additionally noted that the first paragraph of [*37] the Complaint in Docket #510, on motion granted was amended to read, 'section 5(a)(2)' instead of, "section 15(a)(2)," (P. Tr. 149) and it is so ordered."

II

Case No. 130

Failure to provide inspection request pursuant to Section 8(f)(1) of the Act.

Before reaching the issues relative to the actual safety violations alleged in Case No. 130, the Respondent has raised a significant threshold question of a jurisdictional nature, which must be decided at the outset of this decision.

Section 8(f)(1) of the Occupational Safety and Health Act provides as follows regarding inspections made pursuant to employee requests.

Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the [*38] time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section. If upon receipt of notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists. If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination. (emphasis added)

The Respondent, in his brief supporting the proposed findings of fact and related legal conclusions, urges that the Secretary did not conform to the emphasized portion of the above statute, in that the written inspection request [referred to in the parties' briefs as the "complaint," and hereinafter sometimes referred to as the "request"], upon which the OSHA inspection in Case No. 130 was based, [*39] n1 was not "provided to the employer or his agent," and that this court thereby lacks jurisdiction to consider the allegations of the Complaint in that case, because of this nonconformance on the part of the Secretary, through his agent, Compliance Officer Ray Harvey. The Respondent urges that Case No. 130 must therefor be dismissed in its entirety.

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n1 By notice served by the Complainant on December 6, 1972 at the request of the undersigned, the Complainant advised the Commission that the inspections which resulted in both cases Number 130 and 510 were "Special Inspections" within the provisions of Section 8(f)(1) of the Act and further that the provisions of this section were complied with at the time of each inspection.

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The inspection in question occurred in September, 1971 and a fair evaluation of the testimony adduced relative to the issue of whether or not Mr. Harvey provided the inspection request in accordance with the statute set forth above, reveals a most cloudy picture. This murkiness results, [*40] in some part at least, from the fact that the Respondent's Safety Officer, Mr. McNew, and the Occupational Safety and Health Administration Compliance Officer, Mr. Harvey, were comparatively new in their respective functions at the time of the "Special Inspection" of September 23, 1971, which resulted in case No. 130. Mr. McNew having come to the Pratt and Whitney Plant in April, 1971 (Tr. 2017) and Mr. Harvey being then engaged in his second OSHA inspection (Tr. 363).

I hasten to add, however, that both Mr. McNew and Mr. Harvey, were in my opinion, most candid and credible witnesses, who testified truthfully, within the limits of their respective recollections to the events which transpired on the day of the inspection in Case No. 130, and in particular, in regard to the question of whether the inspection request was "provided" to the employer as the statue required.

The following is a brief summary of the circumstances attending Mr. Harvey's pre-inspection actions, considered in the light of Section 8(f)(1) supra:

Mr. Dwyer, personnel manager of the Respondent, testified that when Harvey visited Respondent's plant in September of 1971 in order to investigate certain employee [*41] complaints, he asked Harvey for acopy of the complaint (inspection request), Harvey answered that he had no authority to release the complaint at that time because it had the employee's name on it and Harvey would have to get the consent of the employee to divulge his identity to Dwyer. Dwyer then pointed out that neither he nor the company was interested in the identity of the employee, but simply wished a copy of the complaint as Dwyer felt he was entitled to it under the law. Harvey responded that he needed to talk to the employee first to see if the employee would consent to give the Respondent a copy. Dwyer terminated the conversation by suggesting that the matter be held in abeyance until such time as Harvey was able to consult with the employee, but insisted that sometime prior to the conclusion of the investigation, he wanted a copy of the complaint (Tr. 2202-2203). Some three or four days later, at a conference in which Harvey reviewed the results of his inspection, Dwyer again asked if he could be furnished a copy of the complaint, and Harvey replied in the negative because he had not received permission of the employee to release the copy (R. 2264). Thus, [*42] Dwyer testified that he never received a copy of the complaint in question (R. 2203), nor did any employee of Respondent ever report that he had received a copy of the complaint (Tr. 2206).

In addition to Mr. Dwyer, Compliance Officer Harvey met and spoke with Mr. McNew, Respondent's Safety Supervisor, who later accompanied him on the walk-around as the employer's representative. Mr. Harvey presented his credentials and advised that he was going to conduct a safety inspection based upon a complaint (Tr. 402). Prior to conducting his walk-around inspection and closing conference, he requested that a union representative be provided for walk-around purposes. Mr. McNew stated that he would provide Sam Carsillo for that purpose. At this point Mr. Harvey had not provided to Respondent a copy of the employee complaint which, significantly, had been filed by Mr. Sam Carsillo (Tr. 402-403).

A man was introduced to Mr. Harvey as Sam Carsillo. Mr. Harvey showed him the complaint and asked whether he thought that the man "who wrote this complaint is willing to have it given to management"? The man read the complaint very carefully, "grinned rather broadly," and said, 'You better give [*43] this to the right man," and then walked out (Tr. 404). The real Mr. Carsillo then arrived. Upon being shown the complaint and asked whether he was willing to be identified, Mr. Carsillo responded in the negative. Mr. Harvey then advised him that the company had already been given his identity.

Mr. Harvey testified that the first man shown the complaint was later identified by him as Mr. Carsillo's foreman based upon his attire (tie and dress slacks) and employment in the paint shop (Tr. 415).

The evidence appears to clearly indicate that the employees' inspection request was not provided to Mr. Dwyer, the Respondent's Personnel Director, as requested.

The evidence is not clear as to whether the request was provided to Mr. McNew, the Respondent's Safety Supervisor. There is no substantial evidence demonstrating that Mr. McNew was "provided" a copy of the request as statutorily required, but I think it fair to say that Mr. Harvey's omission in this regard did not result from any willful or deliberate disregard of the statute, but in great part was a result of Mr. Harvey's trepidation and confusion flowing in large part from the action of Mr. McNew, in inadvertently revealing [*44] the identity of Mr. Sam Carsillo, as the person requesting the inspection, which unfortunate disclosure, had the potential at least, of possibly affecting Mr. Carsillo's employment status in a detrimental fashion. n2

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n2 I note that Mr. Harvey was not alone in his apparent deep concern over the unfortunate chain of circumstances initiated innocently by the Respondent's agent which led to the identification of Mr. Carsillo as the writer of the inspection request letter of OSHA. This concern was shared by Mr. Carsillo, who at the termination of the trial, in open court [Tr. 2267], inquired of the undersigned Judge, as to what protection may be accorded to himself and other employee complainants and witnesses because of their cooperation with the Government.

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In respect to this unfortunate disclosure, Mr. Harvey displaying deep concern, testified as follows: [Tr. 424]

Then I took it up with Sam Carsillo. He said he did not want his identity disclosed, upon which I told Mr. McNew that this was a rather serious [*45] thing, that I had no right to disclose this man's identity, and that I had been tricked into disclosing it. And that if any action was taken against this man that I thought he had recourse under the law.

It appears clear from all the foregoing that Mr. Harvey's intention was to provide the Respondent with the required inspection request, after he had deleted the name of the complaining witness therefrom, but the comedy of errors innocently initiated by Respondent's agent McNew, precluded Mr. Harvey from carrying out this intention in satisfaction of the procedural dictates of the statute that the employer be provided with a copy of the inspection report.

The record does not reflect a showing that the Respondent was disadvantaged or prejudiced by Mr. Harvey's failure to provide the request on Mr. Dwyer's demand and a fair evaluation of the relevant testimony [considering the attendant circumstances as previously alluded to], indicates that the request was in fact, constructively provided to the Respondent, through Mr. McNew, its Safety Officer. n3

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n3 Mr. Harvey testified that he and Mr. McNew went over the inspection request in detail, Mr. Harvey testified, "I either read it to him or showed it to him, the secrecy of it was gone then" [Tr. 416]; Mr. Harvey further testified, "Once we got through with that interchange (re: the disclosure of Mr. Sam Carsillo's role as the complaining employee) Glen McNew and myself went out and made a safety inspection. And we covered everything in the complaint and we went over it together.

I am certain that I -- I certainly made no secret of it to Mr. McNew. I didn't read it to him and hold it away from him. I think I let him see it and we discussed all of these things. We discussed where they were, some of them were confusing, Glen figured out where they were, we went out there and did a good joint safety inspection." [Tr. 424]

In contrast, Mr. McNew testified [Tr. 2095 et seq. ] that Mr. Harvey didn't show him the inspection request during the inspection, and that he (McNew) never saw it after "we left the office."

[*46]

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I was unable to find any direct pronouncement by the Commission to the effect that failure to provide the employer with the employee inspection request no later than the time of inspection operates to invalidate the ensuing inspection, nor did my pursual of the legislative history on that subject prove informative or helpful.

Although I have concluded supra, that the Compliance Officer, in the unique circumstances described above, was in constructive conformance with Section 8(f)(1) of the Act, by way of dictum I might note at this juncture, that even if my conclusion were different, (i.e., that the inspection request was not provided either directly or constructively) this alone would not, in my opinion, necessitate, as the Respondent urges, the dismissal of the entire case (No. 130) on the merits. I can not agree with Respondent's argument that non-conformance with the relevant statutory requirement is per se, jurisdictionally fatal to the entire case.

The record fails to demonstrate that the irregular procedure utilized by the Compliance Officer in this case under Section [*47] 8(f)(1) of the Act, under the mitigating circumstances described above, prejudiced the Respondent, or constituted in and of itself such a material deprivation of due process that the entire inspection was void ab initio to the extent that all subsequent steps under the Act were so fatally tainted as to be considered null and void.

Absent such prejudice and in view of Commission pronouncements n4 on collateral Section 8 procedural requirements (i.e., the Section 8(e) "walk-around" pre-inspection provision) the rationale of which are generally applicable to the section under discussion here, it can not be concluded that Congress in enacting Section 8(f)(1) intended that section to be a sine qua non to a valid inspection, operating in a mandatory rather than a merely directory manner.

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n4 Secretary of Labor v. Chicago-Bridge and Iron Company, [OSHRC No. 224: January 19, 1973] Secretary of Labor v. Wright-Schuchart Harbor Contractors, [OSHRC No. 559; February 15, 1973].

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Concededly, the legislative [*48] history is sparse on the procedural requirement in question, but it appears plain that Congress intended the letter of Section 8(f)(1) to be flexibly interpreted. For example, under certain circumstances such as where immediate harm is threatened the statutory language requiring a writing to initiate a special inspection may be disregarded, and a notification by telephone under such circumstances would not be violative of the Section 8(f)(1) requirement. n5

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n5 Senate Report 91-1282, 91st Congress, 2nd Session, P. 12

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In view of my conclusion above, based on constructive provision of the inspection request to the Respondent, I merely point out here that non-compliance with the "walk-around" requirement, which seems to be invested with more due process substance than the request provision requirement at issue here was found by the Commission not to have nullified the ensuing inspections in the Chicago Bridge and Wright-Schuchart cases, a non-willful failure by the Secretary's agent, under the aforementioned [*49] mitigating circumstances, to provide the required request, to conform with the merely directory statutory provision, does not per se nullify and invalidate the ensuing inspection so that it becomes "the sort of poison tree that can bear only poisoned fruit in the form of inadmissable evidence and invalid citations . . ." to borrow a phrase from the Chicago Bridge dissenting opinion.

Note: In the interests of clarity and continuity (because of the large number of items at issue in this consolidated case, and the sheer volume of testimonial and documentary evidence adduced as to each item), those issues which remained outstanding after the pre-trial conferences, which were contested at the hearing will be resolved in Section III, below in an item by item basis, with reference made to the statute and/or standard allegedly violated, the penalty proposed therefor, the abatement period and the findings of fact and conclusions of law relevant to each such item.

III.

A.) Finding of Fact and Conclusions of Law

re: Items at Issue

Case No. 130

Serious Citation (as amended)

Standard or regulation -- Description of alleged violation -- Penalty

Section 5(a)(1) of the Act [*50] -- Failure to use safe loading area in front of old Hydrogen Compressor Building for fork truck loading of large trucks. As a result of this violation, an employee was killed on September 16, 1971. -- $600.00

FINDINGS OF FACT

Exhibit R-2 depicts the area in question proximate to the hydrogen compressor building, as such area is relevant to the above alleged violation.

Substantial credible evidence on the record considered as a whole reflects the following facts:

1.) The area marked "A" on Exhibit R-2 is an apron leading from the compressor building to the road, measuring 21 feet six inches in width by 48 feet in length (Tr. 2210). The area marked "C" on Exhibit R-2 is a soft area which is unsuitable for use by a forklift (Tr. 40, 56). The road leading past the compressor building deadends at point "D" on Exhibit R-2 (Tr. 13, 14, 1330), but a shell rock road, labeled "D" on Exhibit R-2, which is to the right of the service road, behind the hydrogen compressor building is used by traffic, including tractor-trailer trucks to reach other buildings in the area without the need to turn around and reverse direction on the service road (Tr. 1355, 1453).

2.) The compressor building [*51] is situated about six miles due west from the Respondent's main plant (Tr. 1301-1302). It is not part of Respondent's production or research facility but is an area that is now used only for storage (Tr. 53, 79-80).

3.) Tractor trailer trucks are loaded-unloaded on the service road in front of the building between the areas marked B1 and B2 and X to X during each of the company's three shifts (Tr. 38, 54, 106).

4.) This loading-unloading procedure takes 30 minutes or longer and requires employees and forklift trucks to operate both day and night on the road itself, resulting in their exposure to traffic consisting of pick-up trucks, straight jobs, fireman's vehicles, guard vehicles and private automobiles (Tr. 38-42, 55-56, 111-112, 963, 1409).

5.) There is a low incidence of traffic in the area, and that which exists moves slowly (Tr. 57, 121, 123, 132, 1313, 1365, 1399, 1416, 1427-1428).

6.) One of Respondent's employees who was engaged in "tying down" a truck load while on the road adjacent to the west end of the hydrogen compressor building was struck by a passing vehicle, which accident resulted in his death (Tr. 962).

7.) Expert testimony reflects that the use [*52] of the service road for loading and unloading presented a recognized hazard to truck drivers and employees engaged in driving, loading and unloading vehicles and that they would be exposed to serious injury or death from passing vehicles (Tr. 954-956). Mr. Harvey defined the hazard as a two-fold problem: Employees working on the service road would be exposed to passing traffic; this hazard is compounded by the fact that an employee's attention will be directed to the work he is doing rather than his own safety from vehicles on the road (Tr. 954).

8.) In assessing the $600.00 proposed penalty for the alleged loading violation under discussion here, the Compliance Officer testified that he used "penalty worksheets" to arrive at his figures (Tr. 1058-1060), the worksheet pertaining to the instant violation being represented by Exhibit C-4. [Note that Exhibit C-4 recites a violation of 1903.176(a)] which was amended in the complaint to a general duty violation of section 5(a)(1) of the Act. Respondent's Motion to Dismiss and Strike with regard to this amendment was denied in the second pre-hearing conference [P-2, (Tr. 5-10).]

9.) The Compliance Officer testified that the penalty [*53] was based on the unadjusted penalty of $1,000 fixed by the Act, as adjusted by three factors, good faith, size of employer and prior safety history [Tr. 1064-1066]. The Respondent received a credit of 20% each for the factors of past safety history and good faith and no deduction for size, because the plant employed more than 100 employees (Tr. 1065-1066). This resulted in a 40% adjustment being allowed on the starting figure of $1000, or a proposed penalty of $600.

DISCUSSION

During the hearing, over the Respondent's objection, the Government introduced into evidence two accident reports regarding the accident which had occurred at the west end of the hydrogen compressor building [Exhibits C-25 (A) and C-25(B)]. The undersigned, after hearing argument concerning the admissability of same, admitted them in to evidence for "whatever weight I might eventually give them" [Tr. 938]. While I believe the documents were properly admitted, after a review of the entire record relevant to their admission I am constrained to note at this juncture that I am according no probative weight whatsoever to the documents in question, and they have not been considered by me in my ruling [*54] (below) on the violation under discussion here, nor have I in fact read the documents. Sufficient evidence was adduced at the hearing concerning the Respondent's loading practices and attendant conditions in front of the hydrogen compressor building to make an evaluation of the aforesaid exhibits unnecessary, and which fact, in light of the opposition to the documents' admissability, will insure to the Respondent that the Court's role in evaluating the evidence relative to this issue, has not in the slightest way been usurped by according any weight to the contents of the exhibits in question.

In reference to the hazardous practice alleged, a fair summary of the above noted findings of fact demonstrates that up until the time of the fatality, the Respondent permitted a conditon to exist, wherein tractor-trailer trucks were occasionally loaded and unloaded during each of three shifts, on the service road in front of the hydrogen compressor building [between the areas marked B1 and B2 and X to X on Exhibit R-2] which procedure necessitated both employees and forklift trucks to operate day and night on that road, exposing them to passing vehicular traffic of a limited quantity, which [*55] traffic normally moved slowly.

The Respondent submits that the Complainant has presented no evidence that the above described practice constituted a recognized hazard in the industry in which the Respondent operates or by the general public, and further that no affected employees considered this practice unsafe, or one likely to cause death or serious physical injury must be considered "virtually non-existent."

I find myself in agreement with the Secretary's expert witness, Mr. Harvey, in his rebuttal of the Respondent's inference that the infrequency of traffic should operate to render the loading practice even less hazardous. Mr. Harvey, in this vein testified,

An employee could reach the conclusion that because he had seen no traffic for an hour or two days, that it would be perfectly safe for him to get out and turn his back to the roadway and work on the side of his truck (Tr. 966-967).

It appears to me entirely logical that employees engaged in loading operations on the traffic side of the tractor-trailer might be lulled in to a false sense of security because of the infrequency of passing vehicles, and thus in a sub-conscious manner pay less attention to the [*56] threat to life and limb which the passing traffic obviously represents.

While it is well settled that the mere fact that an accident occurred is not per se indicative of a breach of a safety standard or statute, nevertheless it is a factor not to be overlooked in appraising or evaluating a condition alleged to be a hazardous one. To blind oneself to the proof of occurrence of accidents, fatal or non-fatal, related to allegedly hazardous situations or conditions, is to diminish realistic objective scrutiny of the actual overall picture of such situation or condition.

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

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

The Secretary in line with the above statute, presented evidence through his expert witness, Mr. Harvey [Tr. 954-956], supporting the position that the loading practice in issue was obviously and recognizedly hazardous from the standpoint of a forklift employee or pedestrian employee being struck by road traffic during "on-road" loading or unloading activity. [*57] The Respondent, citing cases, asserts that to sustain his burden of proof the Secretary must establish that the practice is and was recognized as a hazard likely to cause death or serious physical harm to employees by the industry in which the employer is engaged.

I might merely suggest at this juncture, from the standpoint of common sense alone, that a loading practice such as the one under discussion here, wherein a fatality already has been involved, appears so clearly fraught with hazard and peril that it is indeed susceptible to judicial notice to the degree that the issue need not be subjected to proof by outside evidence as a perilous condition so clear that it constitutes a distinct hazard, and one which if left uncorrected, would cause or be likely to cause death or serious physical harm to employees. n6

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

n6 That the Respondent as a part of the airplane engine research development industry, also impliedly recognized such a practice as a hazard is demonstrated by Exhibit R-32, issued after the inspection and prohibiting the loading and unloading of trucks paved two-way traffic lanes or roads, and requires that such work be done on access lanes, specified loading zones or areas not used by through traffic.

[*58]

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

Section 17(k) of the Act provides:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

In conformity with the above section, as that section was interpreted by the Commission in the Standard Glass case, n7 it was the Secretary's burden to prove the possibility of an accident's occurrence, and that there was a "substantial probability that the consequences of an accident resulting from a violative condition could be death or serious physical harm."

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n7 Hodgson v. Standard Glass and Supply Company,

"It is our view that substantial probability that death or serious physical injury could result, in conjunction with the knowledge requirement of section 17(k) and the possibility of an accident's occurrence, is all that is required of a violation to be considered serious. The occurrence of an accident because of an existing hazard 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 also Secretary of Labor v. Natkin and Company, Mechanical Contractors,

[*59]

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

The Secretary met his burden on both counts. As previously stated, Mr. Harvey testified that in his opinion, the practice of loading and unloading on the service road was unsafe and that there was a possibility of the occurrence of an accident which could result in serious injury or death (Tr. 952-957). Moreover, it is a matter of common knowledge that the consequences of an accident resulting from a pedestrian or forklift truck being struck by a vehicle such as a truck could be death or serious physical harm, a consequence that was tragically illustrated by the fatality involved herein.

In summary, I conclude that the Secretary, by substantial evidence has sustained his burden under the Act of demonstrating the three conjunctive elements required by the general duty clause that the hazard in question arose out of a condition of employment, that it was a hazard "recognized" as such, and one "causing or . . . likely to cause death or serious physical harm," and accordingly, Respondent's cited procedure of loading and unloading on the service road violated the provisions of Section 5(a)(1) [*60] of the Act as charged by the Secretary.

Finally, the Respondent disputes the method used by the Secretary, as well as the amount proposed, in regard to the $600.00 fine proposed by the Secretary for the item under discussion here, primarily on the basis of the Nacirema Operating Company, Inc.

The Respondent urges that the Court, inter alia, should take into account the infrequency of traffic in the area under discussion, as this is a factor greatly reducing the degree of probability of injury occurrence. For the reasons expressed through the medium my agreement with the Compliance Officer's statement (supra) on the effect of the infrequent traffic on the likelihood of serious injury or death, I cannot find myself in agreement with the Respondent's views in this regard, and I must and do hereby conclude that based on the criteria of size, gravity of violation, good faith and past safety [*61] history, the Secretary's proposed penalty of $600.00 for the violation which was affirmed above was a just and proper one, within the facts constituting the overall condition and the concepts of Nacirema as expressed by the Commission.

Lastly, the Respondent asserts that the abatement period ("immediately") set by the Compliance Officer contravened Section 9(a) of the Act in that the Citation did not specify a "reasonable time" for the abatement of the alleged violation, and under Kawecki-Berylco Industries, Inc., 1 OSAHRC 1210, the burden is on the Secretary to establish the reasonableness of the time provided for the employer to abate the condition cited. Respondent further asserts that this failure to comply with the Act, in and of itself, should invalidate the citation or in the alternative it should be amended by the Court to reflect a reasonable period of time for abatement.

On direct examination the Compliance Officer testified that while he didn't prepare the pertinent Citation he thought the adverbial abatement period "immediately," meant that the condition should be corrected immediately on the receipt of the Citation by the company [Tr. 1066], because [*62] agreement was reached at the conference that abatement be "immediate" in view of the seriousness of the alleged violation and the fact that means of immediate abatement were there and then available to the company.

On cross-examination the Compliance Officer testified that he didn't recall being instructed to specify an abatement date by a number of days certain [Tr. 1073].

In view of Mr. Harvey's unrebutted testimony on direct examination that "immediate" abatement had been agreed upon, plus the operation of Section 10 of the Act, which had the effect of tolling the abatement period from the date the employer filed the Notice of Contest until it agreed to abate, the undersigned is constrained to conclude (without commenting on the relevancy of the Kawecki-Berylco case to an employer-based objection to an abatement period) that the Respondent's argument lacks merit and substance, that under the circumstances as testified to by Mr. Harvey, the "immediate" abatement specification was reasonable and proper. The Respondent's motion that the Citation be invalidated or amended because Respondent's failure to specify an abatement date must be, and is hereby denied.

In view of the [*63] above discussion, including the findings of fact and conclusions of law referred to, which are based on substantial evidence, it is hereby ordered that the Serious Citation in Case No. 130 (as amended by the Complaint) and the penalty proposed therefor, are affirmed in all respects.

Non-Serious Citations

B. Citation 1, Item 3

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.22 -- Failure to repair floor rut in front of safety office (3/4" X 1" X several feet) -- $30.00

Standard Involved: Subpart D - Walking - Working Surfaces 1910.22 General requirements. This section applies to all permanent places of employment, except where domestic mining, or agricultural work only is performed. Measures for the control of toxic materials are considered to be outside the scope of this section.

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

(2) To facilitate cleaning, every floor, working place, and passageway shall be kept free from protruding nails, splinters, holes, or loose boards.

FINDINGS OF FACT

1. The Compliance Officer [*64] observed a rut in the floor in front of the Respondent's Safety Office, approximately an inch wide, and three quarters of an inch deep, "which extended over the entire distance in front of the door" [Tr. 481-482].

2. At the time of this observation the rut contained debris which had not accumulated above the level of the floor [Tr. 504-505].

3. The Compliance Officer made no inquiry concerning the type of cleaning equipment utilized by the Respondent, and the ability of such equipment to clean the condition described in Finding of Fact No. 1, above [Tr. 494].

DISCUSSION

Under the clear meaning of the standard and the violation charged the Secretary had the burden of adducing probative evidence demonstrating that the rut in question impeded the floor cleaning process to the extent that the area proximate thereto was not capable of being "kept clean and orderly and in a sanitary condition." Whether or not the ultimate air of such a housekeeping standard is to eliminate hazards and thus avoid accidents is not the issue here, and testimony concerning the tripping or slipping hazard which the rut represented was stricken from the record as irrelevant [Tr. 487-488].

The question [*65] remaining is whether the balance of the testimony supports a conclusion that the Respondent violated this housekeeping standard as discussed supra. The Respondent's counsel moved to strike all of the Compliance Officer's testimony in the question of whether the rut would impede cleaning the area, on the grounds that the officer based his opinion on evidence not in the record (i.e., the type of cleaning equipment actually utilized by the Respondent) [Tr. 515-516]. I reserved my ruling on this point until the transcript could be reviewed. Having read the transcript, and reviewed the arguments therein, and pertinent relevant points and authorities, I must at this juncture grant the motion as raised, as no evidence was presented concerning the type of cleaning equipment used by the Respondent [Tr. 494, 499] and thus no valid expert opinion could be credited to Mr. Harvey, the expert witness as to the ability of such equipment to clean up the condition charged.

I am therefore constrained to conclude that the Secretary has not sustained his burden of proving the allegation charged in Item 3 of Citation 1, Case No. 130, as discussed above.

In conformance with the above comments, [*66] the aforementioned item and the $30 proposed penalty relating thereto, is hereby dismissed and it is so ordered.

C. Citation 1, Item 4

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.157(a)(2) -- Failure to maintain access to fire extinguishers in old hydrogen Compressor Building and Pattern Shops and elsewhere -- $30.00

Standard Involved: Subpart L - Fire Protection

1910.157 Portable fire extinguishers. (a) General requirements -- (1) Operable condition. Portable extinguishers shall be maintained in a fully charged and operable condition, and kept in their designated places at all times when they are not being used.

(2) Location. Extinguishers shall be conspicuously located where they will be readily accessible and immediately available in the event of fire. They shall be located along normal paths of travel.

FINDINGS OF FACT

1. Fire extinguishers on the left hand wall of the Hydrogen Compressor Building were not readily accessible and immediately available. A few fire extinguishers on the right hand wall were similarly obstructed [Tr. 523].

2. Forklift drivers and pedestrian employees were observed working in above [*67] area [Tr. 528].

3. In the Pattern Shop, where several employees were working, only one fire extinguisher was observed. This was not readily accessible to employees because in order to take it down they would have to move the table (3) and things thereunder [Tr. 524-525, 528, 567].

4. Exhibit C-13-6 depicts the Pattern Shop situation at the time of the inspection.

5. Exhibit C-5, the Penalty Assessment Worksheet indicates that in proposing a penalty of $30 for the alleged violation of 29 CFR 1910.157(a)(2) the $100 base penalty was reduced by a maximum 20% credit for good faith and a like percentage for past history. Because Respondent employed more than 100 employees no credit for "size" of employer could be extended. Another $30 was allowed for the assumption that the Respondent would abate the alleged hazard [Tr. 1094-1097].

6. Compliance Officer Harvey testified that in assessing the gravity of this violation, he relied most heavily on its "frequency" [Tr. 1094].

DISCUSSION

While the Compliance Officer was unable to specify with particularity, each and every inaccessible fire extinguisher which he observed on his inspection tour, (with the exception of the [*68] violation he caused to be photographed in the Pattern Shop as noted in Finding of Fact No. 3) nevertheless a thorough scrutiny of his testimony supports a conclusion that the Respondent violated the instant standard in the old Hydrogen Compressor Building and the Pattern Shop as charged by the Secretary, and I so conclude despite the Respondent's reliance on the Mountain States Telephone and Telegraph Co. case (OSHRC No. 355, January 3, 1973), to the effect that it is incumbent on the Secretary in proving the commission of a non-serious violation by an employer, that it must be shown that the employer knew, or with the exercise of reasonable diligence should have known, that the hazard existed. Unlike the obscure and latent nature of the hazard involved in Mountain States (i.e., a power tool which was subsequently shown to contain a short circuit), the open and obvious nature of the hazard under discussion here, and the constant duty which laws and common sense impose upon employers to insure inter alia, accessability of fire extinguishing equipment, compels a conclusion, that if the employer here did not know of the violation, with the exercise of reasonable [*69] diligence he should have known that the hazard existed.

Turning now to the penalty imposed in the amount of $30. I am constrained under the Hydroswift decision (OSHRC No. 591) where an identical amount was at issue, to affirm that penalty in relation to this violation. As in Hydroswift, the level of gravity is increased by a fire hazard involvement, and my failure to impose a penalty relative to such a hazard would serve to hinder or restrain the Act's effective operation in reducing the hazards of the workplace for all employees. The proposed penalty for the above described violation is therefore affirmed and it is so ordered.

D. Citation 1, Item 5

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.176(b) -- Materials stored unsafely, overlapping storage shelves and balconies throughout plant. -- $30.00

Standard Involved: Subpart N -- Materials Handling and Storage 1910.176 Handling materials -- general

(a) Use of mechanical equipment. Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks through, doorways and wherever turns or passage must be made. Aisles and [*70] passageways shall be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard. Permanent aisles and passageways shall be appropriately marked.

(b) Secure storage. Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.

FINDINGS OF FACT

1. The evidence ostensibly substantiating the above Citation item was limited to the Compliance Officer's testimony that he observed "materials stored on balconies and shelves which overlapped the shelves and were in danger of falling" [Tr. 574]. He could specifically recall the small foundry mold-making room in which he observed one or two employees and ordered that a photograph be taken of the condition which is Exhibit C-13-2 [Tr. 579, 580, 604]. The picture was taken to specifically show materials protruding beyond the edge of the storage shelf and that these materials were not stacked in a level fashion to prevent collapse [Tr. 579, 604].

2. The Compliance Officer was unable to substantiate the charge that the material [*71] storage as depicted in Exhibit C-13-2, above, was unstable or insecure within the meaning of the standard relied on.

DISCUSSION

It is clear that the Secretary has failed to meet the burden of proving the above charge and consequently I am constrained to, and hereby do, order that the above Citation item (No. 5 of Citation 1, Case No. 130) be dismissed as well as the $30 proposed penalty for that alleged violation.

E. Citation 2, Item 1

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.22(a)(3) -- Failure to repair tread of three-step platform in power press area. -- $15.00

Standard Involved: Subpart D - Walking - Working Surfaces

1910.22 -- General requirements

This section applies to all permanent places of employment, except where domestic, mining, or agricultural work only is performed. Measures for the control of toxic materials are considered to be outside the scope of this section.

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary conditon.

(2) The floor or every workroom shall be maintained in a clean and, so far as possible a dry condition. [*72] Where wet processes are used, drainage shall be maintained, and false floors, platforms, mats, or other dry standing places should be provided where practicable.

(3) To facilitate cleaning, every floor, working place, and passageway shall be kept free from protruding nails, splinters, holes or loose boards.

FINDINGS OF FACT

1. The record indicates and the Secretary concedes (p. 35 of his Brief) that he has failed to establish the violation alleged above.

DISCUSSION

From the standpoint of either a housekeeping problem or indeed, a hazard, the Secretary has failed to sustain the above charge in the basis of substantial evidence.

It is ordered therefor that the instant item, (Item No. 1, Citation 2 Case 130) and the $15 penalty proposed therefor be and hereby is dismissed.

F. Citation 2, Item 4

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.22(b)(1) -- Failure to keep aisles clear or appropriately mark aisles. -- $30.00

Standard Involved: Subpart D - Walking - Working Surfaces

1910.22 -- General requirements

(b) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficient safe clearances shall [*73] be used for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs with no obstruction across or in aisles that could create a hazard.

(2) Permanent aisles and passageways shall be appropriately marked.

FINDINGS OF FACT

1. Compliance Officer Harvey observed aisles which were not marked in which pedestrians, hand trucks and powered industrial trucks were utilized and which were partially and wholly blocked by objects such as wood boxes and paletized materials [Tr. 665-668]. Marking aisles was described as generally accomplished through the use of a painted yellow line [Tr. 678].

2. To demonstrate the general conditions, Mr. Harvey ordered that two pictures be taken which are Exhibits C-13-8 and C-13-9. With regard to C-13-8, Mr. Harvey stated:

This is one of the photographs where we have different material in the aisle and also an industrial truck at the end of the aisle. I observed this industrial truck weaving back and forth to get through the aisle [Tr. 667].

He directed that this picture be taken to specifically show that the aisle was blocked, people were working at the [*74] machines with their backs to this aisle, that an industrial truck functioned in this area and that there was no marking of aisles [Tr. 668].

3. Mr. Harvey defined that hazard presented to employees working in this area as one of being struck by the forklift or its load [Tr. 673]. In Mr. Harvey's opinion the hazard presented by industrial trucks in C-13-8, was particularly severe due to employees working on machines with their backs to the forklift operation [Tr. 717].

DISCUSSION

Respondent's Safety Officer, Glen McNew described the area depicted in Exhibit C-13-8 as part of the work area in the machine shop [Tr. 2060, 2062]. The area around item A was the work area between two lines of machines [Tr. 2061]. The fork truck designated as item E on Exhibit C-13-8 was located at the drop zone portion of an aisle [Tr. 2063]. McNew described the area shown in the Exhibit as located between two aisles, both of which were running left to right as one looks at the Exhibit [Tr. 2063]. He admitted that while fork trucks normally do not go in to work areas, they do so occasionlly, but so rarely that it was unnecessary to mark a permanent passageway in such an area [Tr. 2065]. [*75]

Crediting Mr. Harvey's testimony that he saw an industrial truck weaving through the aisle-like area depicted in Exhibit C-13-8, in light of Mr. McNew's admission that this in an occasional occurrence, I am constrained to conclude that the Respondent violated 29 CFR 1910.22(b)(1) as charged.

In view of the apparent rarity of industrial truck intrusions in the instant area, and in the attainment of a "just result" under Nacirema (while I do not agree with the Respondent's position that this was at best a de minimis violation of 1 gravity) I do not feel that the $30 proposed penalty will provide any extra impetus or stimulus from the standpoint of abating the above described hazardous condition, and it is hereby ordered that the said penalty be vacated.

G. Citation 2, Item 5

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.151(c) -- Failure to supply eye wash fountain at deplating area where two one-pint acid beakers are in use. -- $15.00

Standard Involved:

1910.151 Medical services and first aid.

(c) Where the eyes or body of any person may be exposed to injurious corrosive materials suitable facilities for quick drenching [*76] or flushing of the eyes and body shall be provided within the work area for immediate emergency use.

FINDINGS OF FACT

1. In the deplating area there are two acid beakers located above a sink. Above the sink a large sign was posted which warned that acid was dangerous and must be handled with care. The sign further instructed that in the event of contact with the skin, the acid-exposed area should be flushed generously with water and neutralized with soap. The employees were told that after following this procedure they were to notify their supervisor immediately (Ex. R-5) [Tr. 1504, 1512, 1516].

2. When the spigot in the sink is turned on, a heavy stream of water flows therefrom [Tr. 1535].

3. The employees working in Respondent's deplating area have considerable experience in working with acids and use the sink in question, which is located in the work area next to the employees' machines, daily to wash off acid [Tr. 1535, 1539].

4. Employees are instructed by Respondent to use and how to use the sink should they get acid in their eyes. However, there is no evidence that any employee has ever gotten acid in his eyes in Respondent's deplating area [Tr. 1507, 1512, 1523, [*77] 1536].

5. Shortly after Harvey's inspection, Respondent installed an eye wash fountain near the sink in question. Affected employees prefer to use the sink in the event they get acid on them and bypass the eye wash fountain [Tr. 1509]; (Ex. R-43).

6. There is a hose in the middle of the deplating area which employees are instructed to use to flush themselves with water in the event the sink is inadequate.

DISCUSSION

The pertinent standard requires only that "suitable" facilities be provided for immediate emergency eye and body flushing in the event of exposure to injurious corrosive materials. It is clear on the record that the Secretary has failed to sustain his burden of proving that the above-described facilities were unsuitable, even though it is noted that the Respondent, after the inspection, installed an eye wash fountain near the facilities which had been cited unsuitable.

The testimony of Mr. Donald Smith, employed in the deplating area, taken as a whole [Tr. 1507 et seq. ] appeared very convincing to the effect that the eye wash facility cited as a violation, was in fact more suitable for use in an emergency, than the facility installed after the inspection, [*78] depicted in Exhibits R-5 and R-43, respectively.

After careful evaluation of the relevant probative evidence as above referred to, I conclude that the Secretary has failed to prove the violation under discussion supra (Item 5, Citation 2, Case No. 130) and consequently it is ordered that the said item, and the penalty proposed therefor must be, and is hereby dismissed.

H. Citation 2, Item 6

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.179(j)(2) and (2)(v) -- Failure to discard defective nylon sling in Master Mechanic Station. -- $15.00

Standard Involved: Subpart N - Materials Handling and Storage 1910.179 -- Overhead and gantry cranes

(a) Definitions applicable to this section

(51) Rope refers to wire rope, unless otherwise specified.

(j) Inspection -- (1) Inspection classification.

(2) Frequent inspection. The following items shall be inspected for defects at intervals as defined in subparagraph (1)(ii) of this paragraph or as specifically indicated including observation during operations for any defects which appear between regular inspections. All deficiencies such as listed shall be carefully examined and determination [*79] shall be made as to whether they constitute a safety hazard:

(v) Rope slings, including end connections, for excessive wear, broken wires, stretch, kinking or twisting. Visual inspection daily: monthly inspection with signed report.

DISCUSSION

In his brief, at page 15, the Secretary concedes that he failed to establish the violation described above. This concession is borne out by the record.

Accordingly, it is hereby ordered that Item 6, Citation 2, Case No. 130, should be and hereby is dismissed as well as the penalty proposed for that violation.

I. Citation 3, Item 4

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.212(b) -- Failure to anchor Hammond Pedestal Grinder in Maintenance Shops and many other pedestal machines throughout plant. -- $30.00

Standard Involved: Subpart O - Machinery and Machine Guarding 1910.212

(b) Anchoring fixed machinery. Machines designed for a fixed location shall be securely anchored to prevent walking or moving.

FINDINGS OF FACT

1. The Compliance Officer, Mr. Harvey, testified that he observed numerous pedestal machines, many of which were in operation, which were not securely anchored [*80] to the floor. He observed one Hammond Grinder which was not anchored to the floor, which had no operator in front of it, and which he thought would make a good photograph. But in compliance with his request to photograph it, the adjacent machine was photographed, which was also a pedestal machine not anchored to the floor [Tr-792].

2. After identifying Exhibit C-13-1 as the aforementioned photograph, he described a pedestal machine as one which is mounted on a pedestal which is usually cast metal and it has a high center of gravity. He added that if the machine is unanchored and tilts it can readily fall over and it would not be difficult for someone to actually push one over [Tr. 792-794, 807].

3. With regard to Exhibit C-13-1, Mr. Harvey described the base of the machine as cast metal with three identifiable holes for bolts with no bolts in them and with two slots in the base [Tr. 795].

4. The Hammond pedestal grinder was described as three and a half or four feet tall with a cast metal base with bolt holes [Tr. 797]. Other pedestal base machines he observed unanchored included pedestal drill presses and grinders which were in operation. He specifically recalled seeing [*81] employees operate unanchored drill presses, but did not order a photograph due to not wanting to interrupt production [Tr. 799].

5. There was no evidence presented by the Secretary to establish that any allegedly unanchored pedestal machine observed during the investigation walked or moved during operation.

6. Mr. Harvey estimated that the company used between one hundred and two hundred pedestal machines, but he stopped counting the number of unanchored pedestal machines after he reached a dozen count [Tr. 813].

DISCUSSION

Substantial evidence supports a conclusion on the above findings of fact that the Respondent violated the standard as charged, and I so conclude.

Obviously a failure to anchor machines such as the ones at issue here generally similar to the one depicted in Exhibit C-13-1, as the expert witness testified, [Tr. 793] "may result directly in its tipping over due to the forces used in the operations or due to someone leaning on it; or indirectly because when it's moved (it moves or walks) a portion of the cast metal base can break off, causing it to fall."

However, in accord with the expert's evaluation that the possibility of injury from the unanchored [*82] machines may be "very remote" [Tr. 1165] and the absence of evidence demonstrating that any of the pedestal machines were observed "walking" or moving, it would appear that the violation in question was not of the gravity recognized by the Hydroswift case (supra) as calling for a monetary penalty.

I conclude that in reaching a just result under Nacirema (supra) the Commission's conclusion in the General Meat Co., Inc. case, 1 OSHC 1032, (Docket No. 250) is persuasive that the $30 penalty assessed for Item 4, Citation 3 of Case No. 130, should be and hereby is vacated as such a small monetary penalty for this type of non-serious violation does little "to effecuate the principal purposes of the Act in obtaining compliance in order to insure safe and healthful workplaces."

J. Case No. 510 -- Serious Citation

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.36(b)(8) -- Required exists locked in Main Building Assembly Department 81955. -- $1,000.00

Paragraph IV A of the Complaint in Case No. 510 alleged:

(A) On or about January 4 and 5, 1972, Respondent violated 29 CFR 1910.36(b)(8) at Main Building, Assembly Department [*83] 81955 in that Respondent locked required exits in Main Building Assembly Department 81955 to wit: only one exit remained unlocked in a building in which over 100 employees were employed.

Standard Involved: Subpart E -- Means of Egress

1910.36(b)(8)

Every building or structure, section, or area thereof of such size, occupancy and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, should have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions.

BACKGROUND

Mr. Harvey returned to the Pratt & Whitney Plant around the twenty-second of December of 1971 for the purpose of conducting another Occupational Safety and Health Inspection which was prompted by a comprehensive employee safety complaint [Tr. 411].

Credentials were again presented and copies of all complaints with the complainants' name deleted, were given to Mr. Dwyer [Tr. 411-412]. A health inspection by industrial hygienists was conducted and Mr. Harvey then conducted a safety inspection consisting of a walk-around [*84] and a closing or final conference. Again, Mr. McNew was the company representative on the walk-around and Mr. Carsillo was the union representative [Tr. 411].

1. The assembly area is an area located approximately in the center of Respondent's main plant where it engages in classified research and development for the Department of Defense. According to various security regulations issued by the Department of Defense, and to which Respondent is subject, all of the exits and entrances out of and into the assembly area must be secured either by a lock or by posting a guard there at all times when the exit is open.

2. The assembly department in the Main Building is housed in a room approximately one hundred feet wide, three hundred feet long with a ceiling or roof approximately twenty-five or thirty feet high. The walls of the room are constructed of steel, approximately twenty feet high and do not touch the ceiling (Tr. 136, 254). There are three shifts of employees that work in this room. The hours of the first shift are from 7:00 a.m. to 3:00 p.m., the second is from 3:30 p.m. to 12:00 a.m. and the third shift from 12:00 a.m. to 7:00 a.m. (Tr. 227-228). In addition, [*85] employees have worked in this room on weekends (Tr. 136-137, 228). Approximately one hundred and twenty-five to one hundred and fifty employees work in the room on the first shift (Tr. 245) and approximately thirty-five on the third shift (Tr. 139, 245, 301).

3. The employees in the assembly room are engaged in the assembly and disassembly of engines both rocket and jet as well as their components and rigs. Also, some pressure testing and testing of components is conducted which necessitates the storage of engine parts, stands and other materials in the area (Tr. 135, 248).

4. The area depicted within the wavy line of Exhibit R-16 is a skeletal sketch of the assembly room. The floor is composed of wood (Tr. 154). The doors in that room are labeled "A" through "H." The door labeled "A" is the main entrance area and is a roll-up overhead eight foot door (Tr. 138). The door at A is the main entrance, and is kept open on Respondent's first and second shifts and manned by a guard (Tr. 138). On the third shift and on weekends, on the first shift, all doors with the exception of door "A" are closed and locked (Tr. 139, 236). On weekends all doors are locked unless there is a "heavy [*86] work crew," then door "A" may be open (Tr. 139). There are between six and nine foremen on the first shift and one foreman on the third shift (Tr. 143, 229, 246). Some foremen and some salaried personnel have been issued a key which unlocks some of the doors (Tr. 243). There is also a floating key on a ring to serve the employees, however, no list of key holders has been circulated to line employees and key holders have left their keys home in the past (Tr. 141, 170, 188, 237).

5. On weekends and on the third shift all doors are locked and employees have on occasion found themselves locked in the room with no key available for a period of ten to thirty minutes (Tr. 212, 246-247).

6. The double door labeled "F" which is situated adjacent to the photo studio is locked by a chain and a padlock. The other doors have key locks (Tr. 145). The padlock on door "F" has been referred to by Respondent as a "break-away lock," however, line employees had not been apprised of this designation or to its meaning by Respondent (Tr. 146). Exhibit R-33 depicts the door at "F" open with a sign "Emergency Use Only."

7. Next to door "G" is a red box with a glass front with a hammer [*87] hanging from a chain containing a key which box is labeled "use in case of emergency" (Ex. R-20). However, employees have not been apprised of the key's existence or use by Respondent (Tr. 151, 222).

8. Employees who work in the assembly room have never participated in a fire drill nor have they attended safety meetings of any sort (Tr. 153, 213, 240, 1806, 1811-1812, 1942-1943, 1976-1977). Moreover, employees in the room do smoke (Tr. 161, 255).

9. The area in front of door "F" in Exhibit R-16 is flanked by the photo studio wall on the left and varsol booths to the right which creates an aisle or passage in front of the door (Tr. 261). The door "F" and its passage is sometimes blocked by engine parts, plumbing stands, parts to be cleaned and tubing racks stored up against the door (Tr. 261, 267). Other materials blocking access to the door include pallets stored with pumice and materials used in the vapor blast gear boxes, tooling and 21 foot long rolls of paper from the photo lab (Tr. 273, 282, 337). The rolls of paper have been stored leaning against the door for a period of months (Tr. 273, 329, 330, 335). The photo studio is a separate room within the room and door [*88] "I" is generally locked (Tr. 200).

10. The contents of the room some of which are flammable include oil, jet fuel, trichloroethylene, zyglo fluid, alcohol and acetone. The quantities of the above include approximately one hundred gallons of heated trichloroethylene degreaser, one gallon of acetone, two gallons of alcohol, four hot oil tanks containing two gallons of heated oil, fifty-five gallons of engine oil and two to three gallons of jet fuel from engines being disassembled (Tr. 155, 156, 192, 193). This fuel is accumulated in large open drip pans (Tr. 256, 1255).

11. Mr. Harvey observed the conditions in the assembly room for over an hour. He observed the locked doors and was directed to a "break-away lock." Mr. Harvey had never heard of such a device (Tr. 985). He noted a sprinkler system on the roof and concluded that it would adequately serve its designated purpose of just impeding the spread of a fire (Tr. 986). He noted that some of the contents of the room were flammable. These include a large amount of oil, alcohol and acetone. He added that there were other materials with a flash point of less than zero degrees fahrenheit but could not recall them [*89] specifically (Tr. 987, 990). Mr. Harvey questioned employees about exits and was told that they only knew of one exit by the main door (Exit A) (Tr. 991). He paced-off the area within the room to determine its size and estimated that more than 100 employees worked in the room.

12. The area by door "A" depicted in Exhibit R-16 is flanked by a wall to the left and the blueprint crib to the right. In front and to the left of this wall, marked by a circle surrounded by a rectangle, are levitators used for disassembling engines. The wooden floor in the vicinity of the levitators is saturated from fuel and oil and at times, "it becomes quite greasy" (Tr. 159, 248). Mr. William T. Carey, an assembler for Respondent for twelve and one-half years, upon being questioned about the levitator near door "A" testified that if a levitator "were on fire right up in front of that room, there would be no way to get to this door" (Tr. 254).

13. Mr. Harvey stated that a means of egress should be free and unobstructed (Tr. 1003). He defined this phrase to mean that a door should swing outward, it should not be impeded by a key lock even if the key were in the lock and there should be absolutely [*90] nothing to hinder immediate and panic egress from the area in the event of fire (Tr. 1004).

14. Mr. Harvey determined the hazard presented, regardless of whether the sprinkler system functioned, to be that in the event of fire employees may not be able to escape and could be killed by being burned, asphyxiated due to oxygen deficiency and trampled to death due to panic (Tr. 1004-1007). With regard to weekends where no immediate "means of egress" is provided, Mr. Harvey considered the hazard in the event of fire to be considerably worse than that of the first shift (Tr. 1008).

15. Mr. Leslie M. Hamill, Respondent's senior design engineer, was tendered by Respondent as an expert. Mr. Hamill stated that he was acquainted with the assembly room and had conducted numerous safety inspections in the area (Tr. 1939).

16. Mr. Hamill specifically considered himself an expert in fire safety prevention and identified the "Life Safety Code" of the National Fire Code as the source of the standard and the authority in this field (Tr. 1865, 1977).

17. Mr. Hamill admitted that any exit which opens inward or requires the use of a key is not an approved means of egress, nor is [*91] an emergency door aisleway that is sometimes blocked or even partially blocked an approved "means of egress" (Tr. 1985-1986, 1990).

18. Mr. Hamill testified that there is no such thing as a fire-proof building (Tr. 1954-1955). He also identified sources of ignition within the assembly room to include electric motors, lighting, smoking, welding, operation of vehicles, used extension cords and other electrical equipment (Tr. 1966-1968).

19. With regard to the hazards presented to employees by a fire Mr. Hamill admitted that in addition to being burned, employees could be asphyxiated by smoke or the lack of oxygen in the air (Tr. 1956). Significantly, he identified panic problems where there are large numbers of people in confined areas as one of the very greatest of all fire hazards (Tr. 1956-1957).

20. Exhibit C-10 was prepared for this serious violation. Again, an unadjusted penalty of $1,000 was employed. No credit was given for good faith. This was due to Respondent's refusal to give assurances that the serious condition would be abated and the act of locking required exits was an affirmative act in creating a hazard and showing a malfunction in the safety program (Tr. [*92] 1173, 1178). No credit was given for size since Respondent employed more than 100 employees. No credit was given for past history.

DISCUSSION

For the purpose of this brief discussion, it is helpful to remember that Section 1910.35(a) defines the term "means of egress" and provides:

A means of egress is a continuous and unobstructed way of exit travel from any point in a building or structure to a public way and consists of three separate and distinct parts: the way of exit access, the exit, and the way of exit discharge. A means of egress comprises the vertical and horizontal ways of travel and shall include intervening room spaces, doorways, hallways, corridors, passageways, balconies, ramps, stairs, enclosures, lobbies, escalators, horizontal exits, courts, and yards.

In view of that definition as it relates to the standard involved here, which is set forth above, I have no difficulty in concluding, as I note below, that the Complainant has demonstrated on the basis of substantial credible evidence on the record considered as a whole that the Respondent violated 29 CFR 1910.36(b)(8) as alleged in the Citation and Complaint, and that the $1,000 penalty for this violation, [*93] characterized as "serious," was a reasonable and proper one under the circumstances.

In coming to this conclusion, after a careful analysis of the record and the briefs and arguments submitted by the parties, I find myself in agreement with those findings of fact submitted by the Complainant some of which I have adopted and set forth in the appropriate space above.

At the hearing, in the interest of due process the undersigned "bent over backwards" to insure to the parties a full opportunity to present evidence pertaining to this serious safety condition alleged to exist in the assembly area. This latitude necessarily resulted in a prolix record, and I do not intend to compound that prolixity here.

Let it suffice to say, in accord with the above-listed findings of fact that the Secretary sustained his burden of proving through substantial evidence that the reasonable safety of numbers of employee-occupants in the Respondent's assembly room (as depicted by R-16) was endangered in that only one "means of egress" (Door A), was available to such occupants, and that door was available only on the first and second shifts and particular week-end shifts when the work shift was [*94] large. No "means of egress," within the definition of same, above, would therefor be available to assembly room occupants on those occasions when Door A was locked an unmanned or indeed under conditions when Door A was in manned, open operation, but blocked by fire, smoke or other emergency conditions.

I feel it only fair to note however, that the above described patently hazardous situation apparently resulted from the Respondent's efforts to comply with Department of Defense (D.O.D.) security regulations pertaining to the safeguarding of classified defense information, in this case by the securement of the assembly room area (See Findings of Fact No. 1, above). While such security compliance is necessary and under normal circumstances laudable, in this case it appears that it conflicts with the parallel, if not superior interest of employee health and safety as represented by 29 CFR 1910.36(b)(8) of the OSHA safety regulations. In this age of technical efficiency and sophistication there appears to be no reason why the Respondent could not install appropriate exit facilities for the Safety of its assembly room employees which would be in joint compliance with both security (D.O.D.) [*95] and safety (O.S.H.A.) regulations.

I am constrained to reject in passing, the Respondent's argument as outlined at the hearing (Tr. 1247-1263, 1279-1284) and in its brief (pps. 53 et seq. ) that the Secretary's admissions made during the course of the unsuccessful settlement negotiations allegedly to the effect that Doors F and G were not in violation of the standard, [Ex. 41 A through E] constituted admissible evidence that the Secretary had adopted a viewpoint at all times prior to the hearing that doors secured by a "breakaway" lock, or which could be opened by means of a key located adjacent thereto were proper under the provision of the standard. The Complainant opposed the admission of those exhibits on the grounds that they were offers in compromise, irrelevant to the proceedings and such admission would be contrary to public policy favoring settlements. At the hearing I reserved ruling on the Respondent's motion to introduce the above exhibits for the purpose described. On the basis of the briefs submitted by the parties I take this occasion to deny the Respondent's motion, on the grounds that granting said motion in the circumstances here present would be [*96] repugnant to public policy and would have a stifling effect on public policy encouraging such settlement attempts.

The Respondent submits from an arguendo standpoint, that even if it is found that the standard was violated, there is no substantial evidence that the violation was serious in nature, as required under the terms and definition of Section 17(k) of the Act. The Respondent alleges no substantial probability of serious injury or death was shown to stem from the condition of the assembly area assuming non-compliance with the standard by the Respondent.

As previously mentioned, in Standard Glass, above the Commission stated its view "that substantial probability that death or serious physical injury could result, in conjunction with the knowledge requirement of Section 17(k) and the possibility of an accidents' occurrence, is all that is required of a violation to be considered serious."

Evaluating the substantial evidence of record under the above criteria makes it clear, as the Complainant urges that the violation discussed above was indeed serious. Complainant's expert witness Mr. Harvey, testified that a fire occurring in the assembly area could block employee [*97] egress to door "A" (the only exit which satisfied the approved "means of egress" definition, if in fact door "A" was open at such time) which occurrence would give rise to a substantial probability that serious injury or death would ensue to employees trapped therein by being burned, asphyxiated or crushed by panic.

It seems evident also that Mr. Hamill, the Respondent's expert witness, who was acquainted with the assembly room and had conducted numerous safety inspections of that area, knew or should have known that only door "A", [on those occasions when that door was manned and open], qualified as a "means of egress" under the definition of same, and as recognized in the field of fire safety.

It should be pointed out at this juncture that the burden of proof for a serious violation of a standard, unlike a violation of Section 5(a)(1), does not require the showing of a recognized hazard. Instead, the burden of proof under Section 17(k) of the Act, in addition to that of establishing a substantial probability that death or serious physical harm could result from the violation, requires the showing that Respondent knew or with the exercise of reasonable diligence and [*98] care should have known of the presence of the violation. Clearly that knowledge may be and is imputed to the Respondent through its agent, Mr. Hamill, n8 whose testimony reflected his recognition of the possibility of a fire in the assembly area and the attendant general and specific hazards presented to employees confined therein.

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n8 Hodgson v. Lebanon Lumber Company,

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Turning finally to the $1,000 penalty proposed by the Secretary for the serious violation discussed above, under the facts found in Point 20, supra, the Respondent (Brief p. 128 et seq. ) disputes, as he did in regard to the Serious Citation in Case 130, the formulistic method used by the Secretary in arriving at the proposed $1,000 unadjusted penalty, and urges the Court to assess the proposed penalty for the serious violations de novo on the grounds that the gravity of the alleged violation is extremely low, and any penalty assessed by the Court should match this low level of gravity. The Respondent [*99] asserts further that Respondent should be given full credit for good faith or history, pointing out in his Brief (pgs, 154-163) his comprehensive safety program and "perfect" past history.

Assuming arguendo that the factors of good faith and past history exist in the Respondent's favor, for the purpose of determining the instant penalty assessment under the concepts of the Commission's decision in Nacirema, with which I am in full agreement, I am in complete disagreement with the Respondent's evaluation of the gravity of the assembly area condition as being "extremely low," and in attempting to reach the "just result" contemplated by the Nacirema case, supra, I would be derelict in my duty if I permitted the Respondent's self-serving description of his commitment to safety objectives and "perfect" past history to supersede or dilute the force and thrust of the evidence so clearly probative of gravely deficient safety conditions in the Respondent's plant assembly area. I will not repeat here, the findings of fact (Nos. 5 through 10) which unfortunately demonstrate the hazardous and unsafe condition (and one curiously enough, so easily remediable by installation [*100] of panicbar doors and alarm systems so that the interests of safety and security may both be served) but I submit they portray a violation of such gravity, which standing alone, warrants the maximum statutory penalty of $1,000 under that criterion of the Nacirema case where the Commission recognized obvious situations where "a particular violation may be so grave as to warrant the assessment of a maximum penalty, even though the employer may rate perfect marks on the other three criteria," a rating which the Respondent here fell short of achieving.

K. Citation 1, Item 2

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.22(a)(i) -- Dirt and debris under grating on lower level in Department 964 -- None

Standard Involved -- Subpart D -- Walking -- Working Surfaces

1910.22 General requirements.

This section applies to all permanent places of employment except where domestic, mining, or agricultural work only is performed. Measures for the control of toxic materials are considered to be outside the scope of this section.

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and [*101] orderly and in a sanitary condition.

FINDINGS OF FACT

1. Compliance Officer Harvey testified that the location involved was a plating area [Tr. 816]. About a third of the total plating work space was covered by grating, and it was the area below this grating where the Compliance Officer stated he saw the debris [Tr. 820]. He described the material he saw as paper scraps, containers, candy bar wrappers and other things of that nature [Tr. 822].

2. The floor in question is depicted in Exhibit R-24, as it appeared after the inspection in question.

3. Compliance Officer Harvey did not actually go down in to the area beneath the grating [Tr. 828-830] and did not know what the area beneath the grating was used for [Tr. 827].

4. Harvey made the following comparisons with the floor depicted in Exhibit R-24 and the floor that he saw through the grating: (1) that the floor depicted in Exhibit R-24 was wet throughout, whereas he noticed no accumulation of liquid on the floor when he checked it; (2) that there was practically no debris on the floor in Exhibit R-24, whereas it was quite prominent when Harvey looked at it [Tr. 835]. Harvey further stated that he would not [*102] have cited a floor in the condition of exhibit R-24 [Tr. 834].

5. Mr. Leslie, Hamill, who accompanied Harvey at the time Harvey observed the condition in question, testified that the area had only slightly more cigarette butts and scattered paper than were present in Exhibit R-24 [Tr. 2166]. Moreover, Hamill stated that there was water on the floor at the time, similar to the way it looked in Exhibit R-24 (R. 2167).

DISCUSSION

From the above findings of fact based on evidence adduced from two equally credible witnesses who observed the same situation jointly, it is evident that the Secretary failed to prove substantially that this housekeeping standard was violated by the Respondent.

I might add, assurning arguendo that the probative evidence substantially demonstrated an extremely gross accumulation of dirt and debris under the grating in question, I agree with the Respondent that the condition would not fall within the purview of the standard cited above which falls under the Subpart (D) heading of "Walking -- Working Surfaces" and has application to "places of employment, passageways, storerooms and service rooms." The Secretary adduced no evidence designed to bring the [*103] instant condition within the embrace of the standard cited.

For these reasons, I conclude that the Secretary has failed to meet the required burden of proof in regard to the violation alleged in Item 2, Citation 1, Case No. 510, and I am therefor constrained to, and do hereby, dismiss that item for which no penalty was proposed.

L. Citation 1, Item 3

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.178(m) -- Employee riding on industrial truck with no approved rider's seat in Assembly Department 81955 -- $80.00

Standard Involved -- Subpart N -- Materials Handling and Storage

1910.178 -- Powered Industrial Trucks

(m) Truck operations (1) Trucks shall not be driven up to anyone standing in front of a bench or any other fixed object.

(2) No person shall be allowed to stand or pass under the elevated portion of any truck, whether loaded or empty.

(3) Unauthorized personnel shall not be permitted to ride on powered industrial trucks. A safe place to ride shall be provided where riding of trucks is authorized.

(4) The employer shall prohibit arms or legs from being placed between the uprights of the mast or outside the running [*104] lines of the truck.

FINDINGS OF FACT

1. The Compliance Officer observed an industrial fork truck proceeding with the forks in a downed position, with the driver sitting sideways thereon with no seat or handholds provided for him [Tr. 853].

2. A second employee, other than the driver, was seated on a portion of the industrial truck not designed for carrying passengers [Tr. 851-852].

DISCUSSION

The record reflects a conflict in testimony regarding whether the truck in question was one constructed as to be driven by a seated driver, or a power operated hand truck as depicted in Exhibit R-38.

Assuming the truck in question was a motorized hand truck rather than one designed to be driven by a seated driver the requirements of the standard cited remains applicable, and the evidence reflects the Respondent violated this standard. The evidence further reflects that the Compliance Officer had painted out a similar condition on a previous inspection and the Respondent's Safety Office had voiced the opinion that the condition had been corrected [Tr. 854].

The Respondent urges that if the standard is found applicable to the factual situation described in the Findings of Fact [*105] above, that the Respondent should not be held responsible for this "isolated incident of negligence," not condoned by the Respondent, and further that there is insufficient evidence to establish the actual level of the violation's gravity so that the proposed penalty should be vacated.

It appears from the testimony that fork truck violations had been the subject of comments by the Compliance Officer during an earlier inspection [Tr. 854, 2079, 2080] and therefor the instant violation was one not isolated in nature, and represented a possibly repetitious condition which deserved attention and correction by the Respondent.

In view of the above comments and findings I conclude that the Respondent proposed therefor was reasonable and appropriate. It is ordered that Item 3, Citation 1, Case No. 510 and the penalty proposed for that Item should be and is affirmed in all respects.

M. Citation 1, Item 4

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.22(b) -- Retort pipes extend one, three and ten feet over aisle where fork trucks travel allowing insufficient clearance by Department 81964. -- $40.00

Standard Involved -- Subpart D -- Walking -- [*106] Working Surfaces

1910.22 General requirements.

This section applies to all permanent places of employment except where domestic mining, or agricultural work only is performed. Measures for the control of toxic materials are considered to be outside the scope of this section.

(b) Aisles and passageways. (1) Where mechanical building equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

(2) Permanent aisles and passageways shall be appropriately marked.

FINDINGS OF FACT

1. One retort pipe extended two feet in to the passageway, the end of said pipe being about eight or nine feet from the floor [Tr. 872, 877].

DISCUSSION

The Respondent failed to sustain its burden of proving the violation as charged in the Citation and Complaint. Within the practical considerations of storing such retorts, George Brewer, an employee of Respondent who worked in the area in question stated that two fork trucks were used in this area, one of them about [*107] seven and one-half feet high and the other a little over eight feet high [Tr. 1566]. Brewer identified Exhibit R-47 as a typical retort, and Item A on that Exhibit as a "spider" on which the retort rests [Tr. 1569-1570].

Brewer described the aisle adjacent to the place where the retorts are stored as a passageway marked by lines on each side, each one about two feet from the shelves on which the retorts are stored [Tr. 1571-1572]. He stated that the aisle formed by the lines is eight feet wide, [Tr. 1583] and the purpose of the lines is to mark a roadway in which fork trucks should drive [Tr. 1573]. Brewer testified that the fork lifts which operated in that area were less than four feet wide, so that there was plenty of room to drive up and down the aisle without crossing the lines [Tr. 1583]. Indeed, Brewer stated that he had never crossed either of those lines except to store retorts, since he knows there is material overhead inside the lines [Tr. 1583-1584]. Moreover, there is a sign located in the corner of the aisle saying "watch overhead stored material" [Tr. 1574].

Brewer stated that the instructions the employees receive regarding placement of retorts on the shelf is [*108] to make sure that the tubes are as close to the shelf as possible, and that they are not sticking out over the lines marking the aisleways [Tr. 1575]. In fact, Brewer testified that the retort is automatically stored in that position, because of the way they fit on the fork truck [Tr. 1575-1576]. Moreover, Brewer stated that it was virtually impossible to store the retorts so that the pipes would stick out over the lines demarking the aisleway [Tr. 1596].

Finally, Brewer testified that he has never seen anyone strike a retort pipe with a fork lift in four and one-half years [Tr. 1571].

In accordance with the facts as found regarding this alleged violation, and the Secretary's failure to prove same, it is hereby ordered that Item 4, Citation 1, Case No. 510, and the penalty proposed therefor should be and is hereby dismissed.

N. Citation 1, Item 5

Standard or regulation -- Description of alleged violation -- Penalty

29 CFR 1910.24(b) -- Failure to provide safe access to valves to turn on gas. Wired stool and fibre glass duct used to reach valves in Department 964. -- $40.00

Standard Involved -- Subpart D-Walking -- Working Surfaces

1910.24 Fixed industrial [*109] stairs

(b) Where fixed stairs are required. Fixed stairs shall be provided for access from one structure level to another where operations necessitate regular travel between levels, and for access to operating platforms at any equipment which requires attention routinely during operations. Fixed stairs shall also be provided where access to elevations is daily or at each shift for such purposes at gauging, regular maintenance, etc., where such work may expose employees to acids, caustics, gases, or other harmful substances, or for which purposes the carrying of tools or equipment by hand is normally required. (It is not the intent of this section to preclude the use of fixed ladders for access to elevated tanks, towers, and similar structures, overhead traveling cranes, etc., where the use of fixed ladder is common practice.) Spiral stairways shall not be permitted except for special limited usage and secondary access situations where it is not pratical to provide a conventional stairway. Winding stairways may be installed on tanks and similar round structures where the diameter of the structure is not less than five (5) feet.

FINDINGS OF FACT

1. Exhibit R-40 depicts the duct [*110] adjacent to which Compliance Officer Harvey observed a small round-topped stool about a foot high which had been repaired or reinforced with baling wire. This duct was made of fiberglass [Tr. 904].

2. Above the duct work, approximately eight feet from the stool and behind a vat or container of liquid were located some valves [Tr. 904] which were reached by stepping off the stool and walking along the duct work [Tr. 905-906, 907] which was done on a daily basis.

3. The upper part of the duct was four or five feet from the ground and the stool was one and a half feet off the ground [Tr. 907].

4. The Respondent's expert witness established that the duct was safe to walk on [Tr. 2084-2086], and the Compliance Officer considered the risk of walking thereon to be "very remote" [Tr. 2087].

DISCUSSION

The instant standard requires "fixed" stairs for access from one structure level to another where "regular travel" between such levels is required.

The Secretary failed to show substantially that the stool in question was unstable and not permanently affixed to the floor. Although the evidence demonstrates that the duct itself was safe to walk on, this element is not in [*111] issue here, as the standard allegedly violated relates to safe access from one level to another.

In view of the foregoing, I am constrained to conclude that the Complainant having failed to sustain the charge (Item 5, Citation 1, Case No. 510) the said charge and the penalty proposed therefor must be and is hereby dismissed and it is so ordered.

IV.

The Findings of Fact, Conclusions of Law and Orders pertaining to issues contested at the hearing and pre-hearing stages of this consolidated case have been specified in appropriate sections above.

In the interests of clarity and facility of reference certain of the Orders so specified previously will be recapitulated below:

Case No. 130

It is ORDERED that:

1. The Serious Citation (as amended by the Complaint) and the $600.00 penalty proposed therefor are AFFIRMED in all respects (Section III(A), above).

2. Non-Serious Citation 1: Item 3, and the $30.00 proposed penalty are DISMISSED (Section III(B), above).

3. Non-Serious Citation 1: Item 4, and the proposed penalty of $30.00 are AFFIRMED (Section III(C), above).

4. Non-Serious Citation 1: Item 5, and the $30.00 proposed penalty are DISMISSED (Section III, (D), [*112] above).

5. Non-Serious Citation 2: Item 1, and the $15.00 proposed penalty are DISMISSED (Section III(E), above).

6. Non-Serious Citation 2: Item 4, is AFFIRMED but the $30.00 proposed penalty is VACATED (Section III(F), above).

7. Non-Serious Citation 2: Item 5, and the $15.00 penalty proposed therefor are DISMISSED (Section III(H), above).

8. Non-Serious Citation 2: Item 6, and the $15.00 penalty proposed therefor are DISMISSED (Section III(H), above).

9. Non-Serious Citation 3: Item 4, is AFFIRMED, but the $30.00 penalty proposed therefor is VACATED (Section III(I), above).

Case No. 510

1. The Serious Citation and the $1,000.00 penalty proposed therefor are affirmed in all respects (Section III(J), above).

2. Non-Serious Citation 1: Item 2 and the proposed penalty ("None") are DISMISSED (Section III(K), above).

3. Non-Serious Citation 1: Item 3 and the $80.00 proposed penalty are AFFIRMED (Section III(L), above).

4. Non-Serious Citation 1: Item 4 and the $40.00 proposed penalty are DISMISSED (Section III(M), above).

5. Non-Serious Citation 1: Item 5 and the $40.00 proposed penalty are DISMISSED (Section III(N) above).