Docket No. 515

SOUTHERN SOYA CORPORATION

OSHRC Docket No. 515

Occupational Safety and Health Review Commission

November 23, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On August 29, 1972, Judge James D. Burroughs issued his decision in this case holding that respondent violated section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 654) by failing to furnish its employees working in a 5,000 ton capacity cotton seed storage tank a place of employment free from a recognized hazard that was likely to cause death or serious physical harm by exposing them to cave-in from undercut walls of cotton seed.

Thereafter, pursuant to section 12(j) of the Act (29 U.S.C. 661(i)) that decision was directed to be reviewed by the Commission.

Having examined the record in its entirety, the Commission finds no prejudicial error therein.

Accordingly, it is ORDERED that the Judge's decision and order are hereby affirmed in all respects.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: For the reasons stated in my concurring opinion in National Realty and Construction Company, Inc., BNA 1 OSHR 1048, 1052, CCH Employ. S. & H. Guide, para. 15, 188 (1972), I agree that the record establishes a violation of section 5(a)(1) of the Act. I also agree that a civil penalty of $750 is warranted.

I specifically reject that portion of the Judge's decision whereby he concludes employers owe differing duties under section 5(a)(1) to supervisors than they do to other employees.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The record in this case does not establish by substantial evidence that there existed in the respondent's workplace either: (1) a situation or condition which constituted a recognized hazard, or (2) a practice, means, method, operation or process the adoption or use of which constituted a recognized hazard.

Since the facts of the case are not discussed in the Commission's decision. I will set them out here. They are not in dispute. Respondent is a corporation engaged in cottonseed milling. At the time of inspection the mill facilities consisted, in part, of a day bin and a storage tank for the storage of cottonseed. Seeds are fed into the mill automatically from the day bin, which is in turn filled from the storage tank.

The storage tank is 54 feet high, 80 feet in diameter, and has a capacity of 5,000 tons of cottonseed. A ground-level protective tunnel extends across the bottom of the tank from one side to the other. The tunnel is 5 feet 6 inches wide, 6 feet 8 inches high, and constructed of steel. The tunnel walls are constructed of two rows of removable steel panels approximately 2 feet high by 4 feet 6 inches long. The bottom row panels are attached with bolts which can be removed with a wrench from inside the tunnels. The second row panels are attached with bolts which can be removed with a wrench only from outside the tunnel.

A suction pipe runs along the bottom of the protective tunnel. The pipe is used to transport seeds from the storage tank to the day bin for further transfer to the mill. When a wall panel is removed, seeds flow into the tunnel, or are pulled into the tunnel by the use of seed forks. The seeds are then shoveled into the suction pipe. The respondent employs several men to work inside the tunnel to perform these functions.

Cottonseeds have a tendency to adhere to one another and to pack tightly together forming balls of seed. When this occurs, seeds cease flowing into the tunnel. It is then necessary for employees to reach through the opening created by removal of tunnel-wall panels and either knock seeds down so that they will begin flow into the tunnel or pull seeds into the tunnel with seed forks.

The facts upon which complainant based his citation against respondent occurred on January 26, 1972. The tank was then about one-third full, containing roughly 1,800 tons of seed. The seeds were tightly packed into vertical and undercut walls. None were flowing into the tunnel and none could be reached through the opening created by removing bottom panels of the tunnel walls. One Risinger, a foreman employed by respondent, left the protective tunnel and entered the storage tank. His purpose for leaving the tunnel cannot be determined with certainty on the basis of the record. Apparently, it was to remove a second-row panel from the tunnel wall. He ordered another employee, Johnson, to accompany him in achieving whatever purpose he had in mind. When they entered the storage tank, the cottonseed fell on them. Risinger was killed. Johnson sustained minor injuries.

Uncontroverted testimony established that respondent had a strict company rule prohibiting any person from leaving the tunnel and entering the storage tank until the plant manager and the foreman had made a joint determination that the seeds were at a low enough level to permit safe entry into the tank. Risinger, who the Judge specifically found "had been in the cottonseed business approximately 20 years and was quite familiar with everything associated with the business," disobeyed respondent's rule by going into the storage tank before any such determination had been made. He compounded his disobedience by ordering one of the respondent's employees to accompany him.

The Judge also found that (a) respondent's plant manager had never seen an employee in the tank without a proper determination having been made that it was safe, (b) no infraction of the above rule had ever been called to the attention of the respondent's plant manager, (c) the manager had no reason to foresee that Risinger and Johnson would enter the tank, and (d) the violation [of the Act] occurred as a result of Risinger's carelessness or heedlessness.

To establish that a violation occurred as alleged, complainant must establish three things by substantial evidence: First, the existence of a hazard; Second, the fact that it is "recognized" as such within the meaning of section 5(a)(1), and Third, the existence of the three elements of a "serious violation" as set forth in section 17(k) of the Act. n1 The record in this case does not establish any of these.

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n1 Complainant alleged that respondent had committed a serious violation of the Act, thus requiring proof in accordance with section 17(k). In the absence of such an allegation, proof of these elements would not have been necessary.

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The record establishes nothing more than an isolated occurrence which the Judge specifically found could not be foreseen. Evidence of an unforeseeable, isolated incident is insufficient to establish the kind of existing condition or the kind of ongoing practice, means, method, operation, or process which is contemplated by sections 5(a)(1) and 17(k). n2

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n2 See Secretary of Labor v. Republic Creosoting,

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EXTENSION OF A "RECOGNIZED HAZARD"

Establishing the existence of a recognized hazard requires a showing of some detectable, existing situation which constitutes a hazard and would be generally recognized as such by the industry of which respondent is a part or by the general public. n3 The situation may be a condition, or some practice, means, method, operation, or process used by an employer. Whichever it is, it must be an existing situation capable of detection and correction. Unless it is an existing condition, or a practice, means, method, operation, or process which is in use, it cannot be abated. To hold an employer responsible for an accident which is not the result of such an existing situation, is to render him an insurer under the Act. The Commission has ruled on several occasions that the Act was not intended to make insurers of employers. n4 Its purpose is to reduce injury, disease and death by eliminating from workplaces the causes which produce them.

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n3 Secretary of Labor v. Vy Lactos Labs, Inc.,

n4 Secretary of Labor v. Lebanon Lumber Co., Secretary of Labor v. Mountain States Telephone & Telegraph, Secretary of Labor v. Hanovia Lamp Div., Secretary of Labor v. Standard Glass Co., Inc.

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ESTABLISHING A 17(k) "SERIOUS VIOLATION"

Section 17(k) states that:

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.

To prove that a citation for violating section 5(a)(1) of the Act constitutes a serious violation within the meaning of section 17(k), each of the three elements established by that section must be established by substantial evidence.

The three elements contained in the above language are as follows:

(1) A condition which exists, or a practice, means, method, operation, or process which either (A) has been adopted, or (B) is in use in the place of employment;

(2) The existence of a substantial probability that death or serious physical harm could result from such condition, practice, means, method, operation or process; and

(3) Knowledge of the employer, actual or constructive, either (A) that a condition exists and that its existence constitutes a recognized hazard, or (B) that some practice, means, method, operation, or process has been adopted or is in use in respondent's workplace and that its adoption or use constitutes a recognized hazard.

It will be noted that the second element cannot exist without the first and the third element cannot be shown to exist without both elements 1 and 2 being established. The evidence in this record is insufficient to establish even the first element. The complainant has therefore failed to carry its burden of establishing a serious violation.

There is no "condition" established by the evidence. Cottonseeds tend to adhere to each other and to form vertical and undercut walls of seed which may fall at any time. This is a result of the natural characteristics of cottonseed. It is not a "condition" which can be attributed to any conduct of respondent. Nor could the respondent do anything to abate it.

The alleged hazard arises, if at all, only by virtue of using a practice, means, method, operation, or process which results in one or more employees being in the tank at a time when seeds are packed together at an unsafe level. The record must contain substantial evidence that such a practice, means, method, operation, or process was in use in the respondent's workplace in order to establish the first element of a serious violation. The evidence does not establish any such practice, means, method, operation, or process. It establishes just the contrary by showing only the occurrence of an isolated incident which was not foreseeable and by establishing a firm company rule which instituted a practice specifically designed to avoid the kind of incident which occurred in this case.

An examination of the clear wording of section 17(k) shows that an isolated occurrence is insufficient to establish a serious violation of section 5(a)(1). The Act's purpose of preventing personal injuries or illnesses arising out of work situations can be accomplished only by preventing or abating conditions or practices which result in the existence of hazards. If there is neither a condition which an employer can be required to abate, nor a practice which he can cease using in order to provide a safer workplace, the purpose of the Act cannot be furthered by citing an employer and finding him in violation of the Act. It is absurd to construe the Act in such a way that an employer is ordered to stop permitting an unforeseeable, isolated incident from occurring or to penalize the employer for an accident which occurred solely because of an employee's "carelessness or heedlessness."

I must regretfully conclude that this decision has so construed the Act.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act) to review a citation for serious violation issued by the Secretary of Labor (hereinafter referred to as the complainant) pursuant to Section 9(a) of the Act, and a proposed assessment of penalty in the amount of $750.00 upon such alleged violation pursuant to Section 10(a) of the Act.

A citation for serious violation was issued to respondent on January 31, 1972, alleging that it was in violation of 5(a)(1) of the Act. A notification of proposed penalty was issued on the same date proposing a penalty of $750.00 for the alleged violation. On February 10, 1972, the complainant received notification from respondent that it wished to contest the alleged violation of Section 5(a)(1) of the Act. The citation described the alleged violation as follows:

The employer failed to furnish his employees, working in the 5,000 ton capacity cotton seed storage tank, a place of employment which was free from a recognized hazard that was causing or was likely to cause death or serious physical harm to his employees in that they were exposed to cave-in from vertical and undercut walls of cotton seed.

The complainant advised the Occupational Safety and Health Review Commission of the notification of contest by respondent. The Commission assigned the case to this judge for a hearing pursuant to the provisions of Section 10(c) of the Act. A hearing was held in Aiken, South Carolina, on March 31, 1972. No additional parties desired to intervene in the proceeding.

ISSUES

The primary question to be resolved is whether there has been a serious violation of Section 5(a)(1) of the Act. If such a violation occurred, then a determination must be made as to the amount of penalty to be asserted.

FINDINGS OF FACT

Respondent, Southern Soya Corporation of Leesville, is a corporation having a place of business and doing business at Leesville, South Carolina, on U.S. Highway #1 where it is engaged in cottonseed milling (Complaint and Answer). An average of approximately 5,000 tons of cottonseed are crushed annually (Tr. 89). Respondent also buys and sells soybeans but it does not crush them (Tr. 6). It employs approximately 50 persons in its Leesville operations (Tr. 118).

The respondent has a day bin and a large storage tank for storage of cottonseed (Tr. 8). The storage tank is 80 feet in diameter and 64 feet in height. It has a 286,538 bushel or approximately 5,000 ton capacity (Ex. 1; Tr. 11). The day bin holds approximately 135 to 150 tons (Tr. 22).

When trucks are unloaded the day bin is always filled first and the excess goes into the storage tank (Tr. 22). The seed are fed from the day bin into the mill (Tr. 8). The cottonseed are placed in the storage tank by the use of a blower. The seed are sucked off the truck and blown to the top of the tank and distributed inside the tank by a blade at the top (Tr. 13-14). The blade moves the seed around so that more are settled into the center of the tank (Tr. 14).

A tunnel extends completely across the bottom of the storage tank from one side to the other (Exs. 4, 5, 6, 7; Tr. 15, 23). The tunnel is 5'6" wide and 6'8" tall (Tr. 16-17). It is constructed of steel and is primarily for safety purposes (Tr. 23). It serves as protection for the employees while the seed are being taken from the tank (Tr. 27, 30). A suction pipe that takes the seed out of the tank runs along the bottom of the tunnel (Ex. 4; Tr. 17). The seed are sucked out by the suction pipe and blown into the day bin (Tr. 18). As the seed are sucked out from under the tunnel, seed continue to fall against the tunnel (Tr. 31-32). Seed forks are used to pull the cottonseed into the suction pipe in the tunnel (Tr. 32).

The tunnel has heavy metal or steel sides or panels 2 feet high by 4 1/2 feet in length which are removable so that the seed can be pulled into the tunnel (Ex. 7; Tr. 19-20, 23). The panels are removable from the inside of the tunnel by removing the bolts by which they are attached (Tr. 24). The panels are on the floor and serve only to let the cottonseed flow through to be fed into the suction pipe (Tr. 50). They can be removed as needed to reach the seed (Tr. 88).

The tunnel is of sufficient strength to protect respondent's employees even when the tank is completely filled with cottonseed (Tr. 27). Any hazard associated with unloading the seed comes only when the employees go outside the tunnel into the tank (Tr. 27-28). As long as the employees stay inside the tunnel they are safe (Tr. 122).

When the storage tank was purchased, respondent had a 6' X 6' door constructed directly into the tank. The door is approximately 6 or 8 feet from the tunnel door and was constructed as a safety measure (Tr. 39). Whenever the seed get to a safe level, the door is also used to unload the seed from the tank (Tr. 40). A mechanical loader is used inside the tank when the cottonseed get down to a safe level (Tr. 26). No employees are allowed to go through the door until the seed are at a safe level. The decision as to when the level is safe was made by the manager and the superintendent until his death on January 26, 1972 (Tr. 40).

Cottonseed have a tendency to adhere to each other and over a period of time will pack rather tightly (Tr. 28-29). At times they may hang up in the tank and become hard to get down. In such instances rods are usually resorted to in order to get the seed to fall (Tr. 32). The seed present a hazard when they pack or hang up in the tank. They can under such circumstances be dangerous to anyone going out from the tunnel into the tank. They are liable to fall at anytime (Tr. 31).

As long as the seed fall down beside the tunnel, the seed can be reached with the seed forks and the employees can stand in the tunnel and pitch them into the suction pipe (Tr. 32). More seed generally fall as they are fed into the suction pipe (Tr. 49). When the seed hang up in the tank, the employees can not reach them with a seed fork (Tr. 32-33). Under such circumstances a fork approximately six feet long or different lengths of iron rods are available for use. The rods vary from 10 to 20 feet in length (Tr. 33). It is not necessary to go outside the tunnel to use the rods (Tr. 47).

On January 26, 1972, Nathaniel Johnson was inside the tunnel feeding seed into the suction pipe. The superintendent, Mr. Risinger, later came into the tunnel (Tr. 54). The cottonseed were stuck at the particular location where Johnson was working and would not fall down. The seed were too far back to reach with the pitchfork (Tr. 56). Risinger and Johnson went inside the tank (Tr. 57, 68). Risinger requested that Johnson go inside the tank with him (Tr. 69, 75). The seed was over both of their heads (Tr. 59). The seed, at the highest point, was approximately 30 feet high in the tank (Tr. 35). The seed suddenly fell while they were in the tank and knocked Risinger one way and knocked Johnson the other way (Tr. 58). Johnson fell so that his head was in the opening of the tunnel and he was dug out immediately (Tr. 60, 62, 69). Risinger was buried under the cottonseed and suffocated (Tr. 19).

Risinger had been in the cottonseed business approximately 20 years and was quite familiar with everything associated with the business (Tr. 35, 43). He was superintendent of respondent's Leesville mill (Tr. 41). He reported to the manager and the general superintendent and had responsibility subordinate to the manager for the entire operations of the mill (Tr. 42-43). He commenced work with respondent on September 1, 1966 (Tr. 43).

The manager had frequent discussions with Risinger when seed were being emptied from the tank (Tr. 40-41). He stressed safety and reminded Risinger to keep the men in the tunnel (Tr. 41). The manager's instructions were always oral and no written instructions were ever issued requiring all employees to stay in the tunnel until the seed were at a safe level (Tr. 30-31). Risinger was instructed to never go outside the tunnel or let anyone else go out until he and the manager could get together and decide it was safe to go into the tank. The manager thought Risinger was following his instructions and no violations of this rule were ever called to his attention (Tr. 45). The manager had never in his inspections of day-to-day operations seen an employee in the tank out from under the tunnel when it had not been decided that it was not safe (Tr. 46-47).

Respondent's general superintendent also had numerous discussions with Risinger concerning safety in the removal of seed from the storage tank (Tr. 136). The general superintendent also cautioned employees not to go inside the tank (Tr. 137).

Approximately an hour prior to the accident, the manager discussed the condition of the seed in the tank with Risinger (Tr. 45-46). Risinger indicated that some of the seed were so tight that he could not get a pitchfork out after he had stuck it in the seed. The manager told him that the seed would fall and at a time when he least expected it. The manager did not specifically caution Risinger on that morning not to go into the tank since he had just discussed the matter with him the prior morning (Tr. 46).

On at least one occasion the general superintendent visited the storage tank while Nathaniel Johnson was working inside the tunnel. He cautioned Johnson not to go under the seed in the tank (Tr. 67). Johnson went inside the tank on January 26, 1972, because he was instructed to go inside the tank by Risinger and he felt he had to obey his superintendent (Tr. 75).

Approximately three or four years prior to the accident on January 26, 1972, an employee went into the tank and had seed to fall on him (Tr. 37, 88-89). The employee went inside the tank to jerk the seed so that they would fall down (Tr. 89). He was working inside the tunnel by himself when he decided to go inside the tank (Tr. 89, 91). He made the decision to go inside the tank because he could not reach the seed (Tr. 91).

A compliance officer conducted an inspection of respondent's mill on January 28, 1972 (Tr. 109). The inspection was made as a result of the respondent reporting the fatality that occurred on January 26, 1972 (Tr. 109-110). As a result of the inspection, a citation for serious violation was issued alleging a violation of Section 5(a)(1) of the Act (Tr. 113-114). The alleged violation was considered of a serious nature because there was no protection against cave-in when an employee was inside the tank when the seed were stuck (Tr. 114).

A penalty of $750.00 was proposed for the alleged violation. In arriving at the penalty of $750.00, the petitioner commenced with an unadjusted penalty of $1,000.00 and allowed a 25 percent reduction. Respondent was allowed a 20 percent reduction for previous history and a five percent reduction for size (Ex. 8; Tr. 116-118). No reduction was allowed for good faith since it was concluded that respondent had no effective safety program (Tr. 116).

LAW AND OPINION

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

(a) Each employer -- (1) Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

Complainant specifically contends that respondent violated Section 5(a)(1) by exposing its employees to cave-in from vertical and undercut walls of cottonseed.

Section 5(a)(1) has applicability only to situations where there are "recognized hazards" which are likely to cause or are causing serious injury or death. Thus the evidence must establish that the exposure of employees to cave-in from vertical and undercut walls of cottonseed constituted a recognized hazard which was causing or was likely to cause death or serious physical harm to the employees.

The term "recognized hazards" is not defined by the Act. The legislative history of the Act does, however, provide illuminating comment as to what was intended by use of the term. Congressman Daniels in agreeing to modify his bill (H.R. 16785) so as to limit the general duty requirement to "recognized hazards," explained the intent of the term as follows: (Cong. Rec. - House, November 23, 1970)

A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry. In other words, whether or not a hazard is "recognized" is a matter for objective determination; it does not depend on whether the particular employer is aware of it.

A danger, in other words, may be recognized as such in the industry, but may not be apparent to an employer who is ill-informed and does not choose to investigate the danger of the situation. That is not sufficient protection for employees.

Thus the term "recognized hazards" connotes an objective test and has applicability to a hazard which is of common knowledge or general recognition in the particular industry in which it occurs.

Was there a recognized hazard in this case? The record demonstrates that this question must be answered in the affirmative. The respondent's manager testified that the tunnel was provided for the safety of the employees and that there was a hazard if the employees went into the storage tank prior to the seed being at a safe level (Tr. 26-28). The manager further testified as follows (Tr. 31):

Q. Now, Mr. Creech, you recognized, I guess, from the beginning the hazard of cottonseed?

A. Yes, sir.

Q. They can be very dangerous, can they not?

A. They could be dangerous if a man went out from under that tunnel, yes, sir, and were piled high, yes, sir.

Q. They could, if they were hanging up there, they could cave in on you, is that so?

A. Yes, sir, they are liable to fall anytime when they are high enough, yes, sir.

Thus he recognized that there was a hazard present anytime the seed are stuck up high and employees enter the tank.

The manager also had knowledge that the tank was not at a safe level when Risinger and Johnson entered it. The tank was filled to a height of approximately 30 feet and the seed were stuck (Tr. 27, 35). On the morning of the accident, the manager advised Risinger that the seed would fall when least expected (Tr. 46). The fact that he had given instructions to Risinger to never go into the tank or let anyone else go into it until they jointly decided that it was safe (Tr. 45) also recognized that there was an obvious hazard of entering the tank when the seed were not at a safe level. He also stated that "[I]t was bad enough to him [Risinger] to go out there, but if he took somebody with him, that was still worse . . ." (Tr. 36). Thus it appears clear that the respondent's manager was aware that the condition of the storage tank when Risinger and Johnson entered it constituted a recognized hazard which imperiled their safety.

There would appear to be little dispute as to the possible consequences of someone entering the storage tank in the condition the seed were in when Risinger and Johnson entered it. The seed were not at a safe level and were likely to fall at any moment. The "recognized hazard" was likely to cause death or serious physical harm to anyone entering the tank. The manager was fully aware of these consequences and had constantly stressed the point with Risinger that no one was to enter the tank until they had jointly decided the seed were at a safe level. If the seed fell, as happened, anyone under them would be buried and the likely consequence was suffocation.

The crux of this issue revolves around the determination as to the standard of care an employer must undertake in furnishing a place of employment free from "recognized hazards" which are likely to cause death or serious physical harm. There is no disagreement over the fact that Risinger and Johnson had been working in a safe place, i.e. the tunnel. Inside the tank and on the outside of the tunnel there was a recognized hazard which was likely to cause death or serious physical harm.

The manager had given Risinger specific orders on numerous occasions not to go inside the tank or to let anyone else go inside under such conditions. The respondent's general superintendent had also discussed safety in regard to removing seed from the tank with Risinger. In addition employees had been cautioned not to go inside the tank under such conditions. Yet, in spite of these admonitions, Risinger went inside the tank, where a recognized hazard existed, and instructed Johnson to go inside with him. The manager had no reason to suspect that his instructions were not being followed by Risinger.

The evidence appears clear that the manager had no reason to foresee that Risinger and Johnson would enter the tank. There is also no reason to dispute the manager's testimony that he had frequent discussions with Risinger concerning safety in regard to removing seed from the tank. If this case were only concerned with a violation of orders by an employee, which were not foreseeable by management, a determination for respondent would be an easy matter. The situation presented here is, however, somewhat more complicated by the fact that Risinger was part of respondent's management. He had responsibility subordinate only to the manager for the operation of the mill.

The respondent, through the supervisory powers bestowed upon Risinger, had primary control of the work environment. It placed Risinger in his position of responsibility and it was through his authority that Johnson entered the tank while a recognized hazard existed inside the tank. Since he was Johnson's immediate supervisor, Johnson was closely and directly affected by his actions.

Risinger was acting in a supervisory capacity in ordering Johnson inside the tank and was in effect acting as part of respondent's management. Thus Johnson's exposure to the recognized hazard was as a result of respondent's management and, under the circumstances, the respondent cannot be absolved from responsibility of Risinger's actions.

The employer stands in such a relation with its supervisors as to give the employer a definite control over his actions. This control carries with it a duty or obligation to insure that the supervisor exercises that control to protect the employees. An employer's policy of safe and healthful working conditions has little value if it is not implemented. In most instances the implementation of policy is effected by the line supervisors who have direct and immediate supervision over the employees. Thus it is only reasonable to assume that the Act requires a different standard where the violation of orders occurs at the management level as opposed to the employee level. If such were not the case, the objective of the Act, namely to provide safe and healthful working conditions, would be frustrated. The employer must be held strictly accountable for the acts of its supervisors when employees endeavor to undertake to do a job in the manner required by their supervisor.

Risinger was in essence the employer insofar as Johnson was concerned and in such capacity controlled the work environment. The respondent through Risinger was obligated by the Act to furnish employment to Johnson which was free from recognized hazards so as to provide safe and healthful working conditions. The record is clear that respondent failed in meeting its duty as imposed upon it by Section 5(a)(1) of the Act.

APPROPRIATENESS OF PENALTIES

Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the complainant under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc.,

The compliance officer commenced consideration of the alleged serious violation with the statutory maximum penalty of $1,000.00 which is authorized in the Act for a serious violation and then applied a 25 percent reduction. This reduction was arrived at by allowing the respondent a 20 percent reduction on the respondent's history of previous violations and a 5 percent reduction for size. No reduction was allowed for good faith.

In Nacirema Operating Company, Inc., supra, the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. The Commission indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense. The record does not indicate that consideration, if any, was given to the gravity of the violation by the petitioner.

After due consideration of the four criteria as required by Section 17(j) of the Act, it is concluded that a penalty of $750.00 is appropriate and reasonable under the facts as established by the record. While it is recognized that the violation occurred contrary to respondent's top management, this does not justify a reduction in the penalty. The potential for injury in this case was severe. The fact that the violation occurred as a result of Risinger's carelessness or heedlessness does not lessen the gravity of the violation. Good intentions of high management is of little comfort to an employee if those intentions are not implemented.

CONCLUSIONS OF LAW

1. The respondent is, and at all times material hereto was, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The respondent is, and at all times material hereto, was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. Risinger in his capacity of superintendent was part of respondent's management, and, as such, respondent was strictly accountable for his act of ordering Johnson to leave the safety of the tunnel and go inside the tank to check on the condition of the cottonseed which were stuck.

4. The place of employment inside the tank to which Johnson was ordered was not free from a recognized hazard that was likely to cause death or serious physical harm to him. The seed were likely to fall at anytime.

5. Respondent violated Section 5(a)(1) of the Act. The violation constituted a serious violation.

6. A penalty of $750.00 should be assessed against respondent.

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED:

That the respondent was in violation of Section 5(a)(1) of the Act: the violation was a serious violation as alleged, and respondent is liable for a penalty of $750.00 for the violation.