CALDWELL LACE LEATHER COMPANY
OSHRC Docket No. 520
Occupational Safety and Health Review Commission
August 6, 1973
Before MORAN Chairman; VAN NAMEE and CLEARY, Commissioners
CLEARY, COMMISSIONER: On September 21, 1972, Judge John S. Patton issued a decision in this case holding that respondent has violated section 10(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), because of its failure to abate certain previously established violations of section 5(a)(2) of the Act. He assessed a penalty of $1,000. Thereafter, pursuant to section 12(j) of the Act review of the decision by the Commission was directed.
The Commission has reviewed the record in this case in its entirety. On the basis of this review the Commission finds no prejudicial error therein.
Accordingly, it is ORDERED that the Judge's decision and order are hereby affirmed in all respects.
MORAN, CHAIRMAN, dissenting: This case involves a dispute over what respondent was required to do to abate a violation which was established when respondent did not exercise its right to contest a citation. Respondent claims that it has done everything which the citation required. Complainant, on the other hand, claims that respondent has not fully abated any of the hazards referred to in the uncontested citation.
This story begins on November 5, 1971, when respondent's tannery was inspected by a representative of complainant. He noticed six tanning pits, five of which were surrounded by curbs approximately 5-6 inches thick and between 12 and 20 inches high, depending upon whose estimate one believes. A sixth pit, which was known as the "soak hold" had no guard whatsoever, but was flush with the ground. All pit holes were 8' X 8' and approximately 6' deep. Complainant's representative testified that on the day of the inspection he told one Howlett, respondent's president, that "these pits would need a standard railing." Howlett, however, assumed that this referred only to the soak hole.
A reading of the cited occupational safety and health standard (published as 29 CFR 1910.23(a)(8)) would not show this interpretation to be incorrect, since it requires only that:
Every floor hole into which persons can accidentally walk shall be guarded by . . . a standard railing.
Howlett believed that the curbs (described above) which were around the other holes made it impossible for a worker to walk into them accidentally. It cannot be presumed that an 8' X 8' pit hole surrounded by a curb somewhere between 12 and 20 inches in height is a "floor hole into which persons can accidentally walk." It is a matter which must be established as a fact by appropriate evidence.
The written citation which resulted from this inspection was subsequently issued by complainant. It was received by the respondent on November 17 and stated there was a violation of the Act in that:
Floor openings (lime pits approximately six feet in depth) were not provided with approved guarding.
It directed that the violation be abated "without delay, but not later than November 29, 1971." As indicated above, respondent did not exercise his right to contest this citation and it became a final order of the Commission pursuant to section 10(a) of the Act. Meanwhile respondent proceeded to abate the hazard which he thought the citation referred to.
When a follow-up inspection of respondent's plant was conducted on January 28, 1972, the "soak hold" which had no guard whatsoever when observed by complainant's representative during his November inspection was now surrounded with a railing 24" high. The other five pits, however, still had the same concrete curbings. Complainant therefore initiated this action under section 10(b) of the Act by issuing to respondent a notification of additional penalties of $100 per day for each working day between the abatement deadline specified on the November citation and the date of reinspection.
In his decision the Judge found as a fact that ". . . Respondent did not . . . properly abate . . . because the respondent misunderstood. . . ." Nevertheless, he ruled that respondent should be assessed a $1,000 penalty "because of its failure to abate." It is this decision which the Commission has today affirmed without comment.
It serves neither justice nor the purposes of this Act for this Commission to penalize an employer who attempts to abate a hazard, but fails to do so because he did not understand exactly what he was supposed to do. This is especially true where the principal reason for the misunderstanding was complainant's failure to issue a citation describing "with particularity the nature of the violation" as required by section 9(a) of the Act.
As a minimum, it was necessary that the citation served upon respondent specify what was meant by the term "approved guarding." Complainant now takes the position that the term "approved guarding" meant a standard railing as defined in 29 CFR 1910.23(e). The nature of the alleged violation, it now appears, is that all six of the pit holes were not surrounded by such standard railings. That fact could easily have been specified on the citation. The fact that it wasn't caused this case to occur.
There is no requirement that a cited employer must either search through hundreds of pages of fine print or contact the complainant in order to learn what he is required to do when a citation is unspecific. On the contrary, the Act requires that the citation be a complete document which tells its recipient exactly what complainant alleges.
The citation issued in November did not do this. In my opinion, it was a nullity because it did not comply with the requirements of section 9(a) when it failed to specify the nature of the alleged violation, i.e., absence of standard railing as defined in 29 CFR 1910.23(e) around 6 pit holes.
By this decision, the Commission is stating that a sincere employer who has done everything he thought the law required shall nevertheless be fined $1,000 because an agent of the Secretary of Labor failed to comply with the mandates of the law. I DISAGREE.
[The Judge's decision referred to herein follows]
PATTON, JUDGE, OSAHRC: This case before me is on the complaint of James D. Hodgson, Secretary of Labor, United States Department of Labor, hereinafter referred to as plaintiff against the Caldwell Lace Leather Company, Inc., hereinafter referred to as respondent alleging that respondent has violated Section 5(a)(2) of the Occupational Safety and Health Act of 1970, (80 Stat. 1604, 29 U.S.C., Section 651, et seq. ), hereinafter called the Act and Occupational Safety and Health Standard 29 CFR 1910.23(a)(8) and alleging that the respondent had failed to abate the violation of said standard although no contest of the citation was ever filed. It was alleged that respendent violated Standard 29 CFR 1910.178(m)(9) by failing to equip one of its power industrial trucks with an overhead guard against falling objects.
On or about November 5, 1971, an inspection of respondent's place of employment was conducted and on or about November 16, 1971, a citation was issued alleging violations of various standards under the Occupational Safety and Health Act including the said Standard 29 CFR 1910.23(a)(8). It was alleged in said citation that said section was violated in that "floor openings (lime pits approximately 6 feet in depth) were not provided with approved guarding." Said citation required that said violation be corrected on or about November 29, 1971. No notification of intent to contest the citation was filed by the respondent. Subsequent inspection occurred January 28, 1972, and a complaint was filed by the plaintiff on February 28, 1972, alleging that said inspection of January 28, 1972, had revealed that respondent had failed to abate said violation of 29 CFR 1910.23(a)(8) of the standards of the Act. It was also alleged that the inspection of January 28, 1972, revealed that respondent did not equip one of its powered industrial trucks with an overhead guard for protection against falling objects in violation of Standard 29 CFR 1910.178(m)(9). Answer of the respondent was duly filed. Respondent denied that any further penalty was justified as a result of alleged failure to abate but did not in said answer deny violation of Standard 29 CFR 1910.178(m)(9). Hearing was held before John S. Patton, Judge in Bowling Green, Kentucky, on July 10, 1972. Mr. John P. Garner and Mr. Perry Green appeared as attorneys for the Complainant and Mr. G. S. Milam appeared as attorney for the respondent. There was no motion to intervene. All parties were accorded the right to present evidence and orally argue the case. Parties were accorded the right to file written briefs and briefs from both parties have been filed.
LAW AND ISSUES OF THE CASE
Occupational Safety and Health Standard 29 CFR 1910.23(a)(8) provides as follows:
Every floor hole into which persons can accidentally walk should be guarded by either:
(i) A standard railing with standard toeboard on all exposed sides or,
(ii) A floor hole cover of standard strength and construction that should be hinged in place. While the cover is not in place the floor hole should be consistently attended by someone or shall be protected by removable standard railing.
Standard 29 CFR 1910.23(a) provides:
Every stairway floor opening shall be guarded by a standard railing constructed in accordance with paragraph (e) of this section. The railing shall be provided on all exposed sides (except at entrance to stairways).
Standard 29 CFR 1910.23(e) defines standard railing as follows:
A standard railing shall consist of top rail, intermediate rail and post and shall have a vertical height of 42 inches nominal from upper surface of top rail to floor, platform, runway or level ramp. The top rail shall be smooth surfaced throughout the length of the railing. The intermediate rail shall be approximately half way between the top rail and the floor, platform runway or ramp. The end of the rail shall not overhang the terminal post except where such overhang does not constitute a projection hazard.
Standard 29 CFR 1910.178(m)(9) provides as follows:
An overhead guard shall be used as protection against falling objects. It should be noted that an overhead guard is intended to offer protection from the impact of small packages, boxes, bagged materials, etc., representative of the job application but not to withstand the impact of a falling capacity load.
The respondent does not contest the allegation of the complaint with reference to alleged violation of Standard 29 CFR 1910.178(m)(9) and therefore said standard was not an issue in the hearing of this case. The respondent takes the position that respondent corrected the requirements for protective railing as respondent understood the requirements to be at the time the original citation issued, and respondent thought that it had complied with the requirements of said citation. Respondent takes the position that respondent acted in good faith and any failure to properly abate was due to a misunderstanding rather than any intentional action on the part of respondent and that therefore respondent should not be further penalized in this matter. The issue for determination therefore is whether the respondent did act in good faith in attempting to abate the requirements of the initial citation and if so, whether and to what extent the respondent's good faith should excuse respondent's failure to properly abate the unsafe condition as set forth in the initial citation.
EVIDENCE IN THE CASE
The respondent admits in its answer that it is a Kentucky Corporation, having a plant and place of employment at Auburn, Kentucky, where it is engaged in the business of leather tanning and fabrication. It further admits that in said business respondent employs 125 employees in tanning and fabricating leather, substantial quantities of which are regularly shipped, delivered, transmitted and transported in commerce from respondent's said place of employment to points outside of Commonwealth of Kentucky, and that by reason of its activities as aforesaid respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act. Respondent admits it is subject to the jurisdiction of the Review Commission. The respondent's answer also admits that as a result of an inspection by the plaintiff respondent was charged with violation of said Standard 29 CFR 1910.23(a)(8) and that citation was received by respondent November 17, 1971, charging said violation.
Respondent did not at the hearing dispute the fact that the condition at the time of the original inspection was as set forth in said citation. It is not disputed that there was no contest of citation. It is not disputed that there was no contest of citation filed and that said citation became final.
Mr. Stephen Ray Fewell testified that he is Compliance Officer for the Department of Labor. He stated that he has a Bachelor of Science Degree in Civil Engineering from the University of Alabama and a Masters Degree in Safety from Texas A&M University. He was formerly with the Department of Transportation as a Safety Engineer. He stated that on November 5, 1971, he made an inspection of the respondent's business at Auburn, Kentucky. He stated that the President of the Company, Mr. Howlett accompanied him on this inspection. The witness observed that there were six pits in the floor, five of them had a small curb around them 12 inches hich and five inches thick. A picture was introduced in evidence, the respondent's Exhibit 1, showing the pits with the protective railing around them. He stated that there was another pit with no protection around it. He stated that following the inspection of the plant he had a conversation with Mr. Howlett and described to Mr. Howlett the necessity of having a railing around the pits. He testified that he did not at that time describe to Mr. Howlett what a standard railing was but just referred him to the standards, a copy of which he left with Mr. Howlett.
Mr. Fewell testified that he had reinspected the premises on January 28, 1972. He stated that no change had been made in the five pits that had the one foot high protective wall around them. The pit that had had no railing now had a two feet high railing. The witness pointed out the fact that the law required a 42 inch railing and that this standard had not been complied with as to any of the pits. He stated that Mr. Howlett advised him that the pits were six feet deep. The witness stated that the pits were four or five feet apart in one single line. They were used to soak the hides. He stated that at the time of the original inspection he advised Mr. Howlett that the law required railings for all pits. The witness testified on the stand that the condition at respondent's plant was unsafe because if someone fell in the pit he could burn his eyes. If he swallowed the substance it would cause burns and irritation internally. The evidence showed that there was a high degree of lime in five of the pits and they were referred to as lime pits. The sixth pit which was the one that originally had no protection around it was called a soak pit. The witness stated that at the time he showed Mr. Howlett a copy of the standards and left them with him he marked the index to the standards, went through the list of items and told him that the pits would need the standard railing. He also suggested Mr. Howlett consult the standards.
Mr. J. Richard Howlett, President of the Company, testified that 35 employees were employed in the tannery and 100 employees in the factory which was approximately a block from the tannery. Mr. Howlett stated there were six pits in all, the first was considered a soak hole and was absolutely flush with the floor at the time of the first inspection. He stated the hides were linked together with a hook and put into this hole. It was filled with water put in with detergents and water softener and the hides would set for 24 hours. From there they would be taken out and processed through a machine to remove the flesh and were rehooked together and put into one of the other pits full of lime and there they stayed until they were taken out to remove the hair. The solution in the lime pits was described as a high percentage of lime and a small percentage of sodium sulphate. There were no acids at all. Of course, there was water as well in said pits. The leather would remain in the pits for seven days. He conceded that he accompanied Mr. Fewell on the inspection of the premises. He stated that Mr. Fewell told him that the sink hole would have to be guarded but although he did not state that Mr. Fewell could not have told him that the other holes would need adequate protection he did not understand Mr. Fewell to say that the other five had to be guarded any further than they were already guarded. He stated that the first time he became aware of the fact that the five lime pits had inadequate guarding was on January 28, when Mr. Fewell made his second inspection and told him he had not complied with the standards. Mr. Howlett stated that upon learning he had not complied he immediately had rails erected to meet the standards. He introduced a picture, Exhibit 2, reflecting the rails which were ultimately built. He stated he was under the definite impression at the time of the first inspection and until the time of the second inspection that the only pit concerning which there was a violation was the soak hole pit which was flush with the floor. He was of the opinion that the protection built around the other pits was adequate to meet the requirements of the Act. He further testified that he was not aware that to comply, a rail 42 inches high must be constructed. He stated that all rails are now 42 inches high. He stated that he built the rail around the soak hole only 24 inches high because he did not feel it possible to work over it if it was higher. He stated that he did not realize at the time he built it that it would be possible to have a protection rail which could be removed while work was actually being done in the sink hole. He was subsequently advised by Mr. Fewell that he could build a protective rail which could be removed at the time that hides were being placed in it. He stated that it is now kept in place except when men are working there putting hides in it. He stated that he would certainly have done what the complainant wanted if he had just understood what the complainant wanted. He stated that the first time he understood Mr. Fewell to say that the guard rails must be 42 inches high was at the time of the second inspection. He further testified however, that he would not dispute Mr. Fewell's testimony and was not saying Mr. Fewell could not have made such statement at the time of the first inspection. He did not, however, understand such a statement if it was made. He described the area around the lime pits prior to the second inspection as being 18 to 20 inches high rather than 12 inches as described by Mr. Fewell. Mr. Howlett had several telephone conversations with the Area Director of the complainant, Mr. Frank Flanagan and had some correspondence with the officials of the complainant. Mr. Flanagan testified that he had a telephone conversation with Mr. Howlett in which he, Mr. Flanagan, pointed out that guard rails had to be 42 inches in height. He stated Mr. Howlett said that the drum would not permit rails 42 inches high. He said they discussed the variance procedure. By letter of November 17, 1971, to Mr. Flanagan, Mr. Howlett stated in said letter as follows:
Item 2 -- Floor openings (lime pits approximately 6 feet in depth) were not provided with approved guarding. This pit is part of a chemical processing that calls for constant adding and taking away of hides and chemical solutions so that it will be impracticable to utilize this pit with any type of guard rails. This particular building has been in operation over 100 years, operated by four generations and to my knowledge there has never been an accident around this pit.
By letter of November 18, 1971, following a telephone conversation with Mr. Flanagan, Mr. Howlett again wrote Mr. Flanagan stating:
This is to advise that our letter of November 17th was not to be considered a contest of the above citation but it was to outline the problems involved at this plant.
We would appreciate receiving an extension of the abatement of the problem of Item No. 2 so that we might study the situation and prepare best method of handling.
By letter of November 24, 1971, Mr. Howlett again wrote Mr. Flanagan stating in part:
With regard to our telephone conversation yesterday concerning the above inspection, on Item No. 2, we are building guardrails to be applied around the pit. We would appreciate if we could be granted approximately 10 working days in order to finish this guardrail.
Under letter of December 17, 1971, Mr. Howlett wrote Mr. Flanagan again stating "with regard to the subject citation I am pleased to advise that Item 3 has now been completed so that all of the violations have been corrected. I am also pleased to advise that on the de minimus notice the first two items have been corrected and the third one was in effect all the time." The letter also stated that there was an enclosure of a $110 check to cover proposed penalties. On February 4, 1972, Mr. Howlett wrote Mr. Flanagan as follows:
With regard to your communication dated February 2, 1972, concerning the original inspection of our plant on November 16 and the reinspection on January 28, we're surprised to note that you did not consider that we have corrected alleged violation No. 2.
On Item No 2 of floor openings not provided with approved guarding we have built two guard rails for this opening and had them installed at the time of inspection. While these were designed for proper usage to prevent interference with the manufacturing process it was pointed out that this was not to the approved sizes by the inspector. The new guard has been replaced by another guard to the 42 inch height and design of construction as outlined by your inspector and is in place.
EVALUATION OF THE EVIDENCE
Since there was no contest of the original citation insofar as the requirement of guard rails was concerned, it is res adjudicata that there was a violation of the standards in the failure of respondent to have guard rails around its lime pits and soap pit, which met the standards. It is undisputed that the respondent did not comply with the requirements of the standard after the inspection and issuance of the citation. The issue arises as to whether the respondent acted in good faith in the matter and if so to what extend it mitigates the failure to abate the violation. From a careful examination of the record, it would appear that the respondent did misunderstand the nature of the violation following the inspection and did not properly interpret the requirements of the citation. This Judge is of the opinion, however, that the respondent is not completely free of blame in its failure to abate the violation.
The respondent did immediately abate all other citations and, immediately upon comprehending the desires of the Department of Labor, abated the citation with reference to guard rails. The strongest evidence of the fact that there was a genuine misunderstanding on the part of the respondent is the correspondence between the respondent and the complainant, following the initial inspection. It will be noted that in this correspondence, the respondent referred to "the pit" and "this pit" which clearly indicates that the respondent was thinking in terms of only one pit in his place of business. It would seem that this language should have put the complainant on notice of the fact that there was a misunderstanding and that the respondent was under the impression that compliance required him to put adequate guard rails around a single pit. Notwithstanding this fact it was not called to the attention of the respondent that he had misunderstood and that more than one pit was involved in the citation and in the necessity for abatement. It would appear that the respondent was not deliberately disregarding its obligations but was attempting to comply with what the respondent understood to be the requirements of the standards. I, therefore, am of the opinion that a penalty of $4,230 is excessive under the facts of this case.
On the other hand it does not appear that the respondent can be completely absolved in its failure to properly abate the dangerous condition. The original citation was dated in the plural in reference to pits and should have alerted the respondent to the fact that more than one pit was involved. It is also true that the president of the respondent does not deny that he was advised that more than one pit was involved and does not deny that he was advised by the area director that the pit around the soak hole must be at least 42 inches in height. The respondent stated that if such information was supplied to him he did not so understand it and that the results of a second inspection came to him as a complete surprise. The respondent was under an obligation to read the regulations which were left him by the compliance officer and was under an obligation to determine what was meant by the use of the plural term in the initial citation. Notwithstanding the fact that the respondent was not defying the Government or deliberately failing to comply the respondent did not use the care that should have been expected of a respondent under these circumstances to ascertain the requirements to bring itself into compliance with all of the standards of the Secretary of Labor. Under these circumstances, it would not be proper to completely absolve the respondent of responsibility for failure to abate in this matter. This Judge is of the opinion that under the circumstances of this case the purposes of the Act would be effectuated by the assessment of a penalty in the amount of $1,000. It is not in the opinion of this Judge necessary to assess a greater penalty in order to assure future compliance with the standards by the respondent as the respondent's total conduct indicates that the respondent does desire to comply with the requirements of the Secretary of Labor in the promulgation of standards and a penalty in the amount of $1,000 is adequate to require a more careful attempt to comprehend the requirements of the standard and to bring about the resulting compliance with the standard in the future. This Judge, therefore, makes the following findings of fact.
FINDINGS OF FACT
1. Respondent is a Kentucky Corporation having a plant and place of business in Auburn, Kentucky, where it is engaged in the business of leather tanning and fabrication.
2. Substantial quantities of products which respondent has tanned and fabricated are regularly shipped, delivered, transmitted and transported in interstate commerce from respondent's place of business in the State of Kentucky.
3. On or about November 5, 1971, an inspection of respondent's place of business was conducted by the Occupational Safety and Health Administration, which inspection disclosed five violations of section 5(a)(2) and the Standards 29 CFR 1910.
4. On or about November 16, 1971, respondent was issued pursuant to section 9(a) of the Act a citation alleging that on or about November 5, 1971, respondent was in violation of section 5(a)(2) of the Act and Standard 29 CFR 1910.23(a)(8) in that floor openings (lime pits approximately 6 feet in depth) were not provided with approved guarding. Said citation provided pursuant to section 9(a) of the Act that said violations be corrected on or before November 29, 1971.
5. At no time did respondent file pursuant to section 10(a) of the Act a notification of intent to contest said citations.
6. On January 28, 1972, a second inspection of respondent's place of business was conducted by a representative of complainant disclosing that respondent had not corrected said violations in that respondent had not erected a guard rail around the soak pit of sufficient height and had not in any way changed its guard rails around the lime pit.
7. At the time of the original inspection, the respondent had rails around the lime pits of approximately 12 inches in height but no guard rails around the soak pit.
8. The respondent did not comply with the requirements to properly abate said violation, because the respondent misunderstood the requirements to abate.
9. Immediately following the original inspection and issuance of original citations all other alleged violations of the standards were abated and respondent did erect guard rails around the soak hole although the guard rails were less than 42 inches in height.
10. The respondent thought that the action it took following the issuance of the initial citations complied with the requirements of said citations.
11. The respondent was adequately advised in the original citation that additional guard rails must be provided for all of the said pits and the respondent did not use proper and adequate care in seeking to interpret its requirements under the Standards and under said citation.
12. Respondent did not equip one of its power industrial trucks with an overhead guard against falling objects.
CONCLUSIONS OF LAW
1. Respondent is and at all times relevant to this cause has been engaged in a business affecting interstate commerce as said term is set forth in the Act and this case falls within the jurisdiction of the Occupational Safety and Health Review Commission.
2. Respondent did not equip one of its power industrial trucks with an overhead guard against falling objects in violation of Standard 29 CFR 1910.178(m)(9).
3. Respondent's failure to have adequate guard rails around each of its pit and soak hole at the time of the original citation was a violation of section 5(a)(2) of the Act and Standard 29 CFR 1910.23(a)(8).
4. Respondent's failure to properly abate its violation of Standard 29 CFR 1910.23 violation of the Occupational Safety and Health Act.
5. The respondent should be assessed an additional penalty in the amount of $1,000 because of its failure to abate its violation of Standard 29 CFR 1910.23(a)(8).
It is, therefore, ordered that:
Respondent violated Section 5(a)(2) of the Occupational Safety and Health Act and Standards 29 CFR 1910.23(a)(8) and 29 CFR 1910.178(m)(9).
Repondent violated sections 10(b) and 17(d) of the Act by failing to abate the violation of Standard 29 CFR 1910.23(a)(8).
The respondent is assessed a penalty in the amount of $1,000 for failure to abate the violations of Standard 29 CFR 1910.23(a)(8).