SOUTHERN RAILWAY COMPANY
OSHRC Docket No. 5566
Occupational Safety and Health Review Commission
November 26, 1974
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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter raises the identical issue we resolved in Southern Pacific Transportation Co., Respondent, a railway, received two citations resulting from the inspection of its maintenance and repair facility located in Spartanburg, South Carolina. The citations alleged failure to comply with ten occupational safety standards in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.; hereinafter "the Act").
Respondent defends herein on the ground that section 4(b)(1) creates an industry-wide exemption for the railway since the Secretary of Transportation has promulgated some safety regulations. Judge Burroughs rejected the defense and thereby correctly anticipated our decision in Southern Pacific. The Judge then turned to the merits. Based on admissions and a stipulated record he affirmed nine items and vacated one. Neither party assigns error to his disposition on the merits.
Accordingly, for the reasons given in Southern Pacific, a copy of which is attached, [*2] and for the reason that there does not appear to be any prejudicial error in the Judge's factual determinations, the Judge's decision is affirmed, and it is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: I dissent for the reasons given in my dissenting opinions in Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (Docket No. 1348, November 15, 1974) and Secretary v. Seaboard Coastline Railroad Company, (Docket No. 2802, Order of Remand, November 18, 1974).
[Note: Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258]
[The Judge's decision referred to herein follows]
BURROUGHS, JUDGE: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1390 (hereinafter referred to as the Act). Respondent seeks review of two citations issued to it on November 2, 1973. Review is also sought by respondent of the penalties proposed, pursuant to section 10(a) of the Act, for certain of the violations.
As the result of an inspection conducted on October 9 and 10, 1973, of a repair facility maintained under the operation or control of the respondent in Spartanburg, [*3] S.C., respondent was issued two citations for non-serious violations and two notifications of proposed penalty on November 2, 1973. One of the citations, for convenience purposes hereinafter referred to as "A", alleges that respondent violated section 5(a)(2) of the Act by its failure to comply with two (2) standards promulgated pursuant to section 6 of the Act. The other citation, for convenience hereinafter referred to as citation "B," alleges a violation of eight (8) standards.
The respondent, by letter dated November 23, 1973, timely n1 notified complainant that it wished to contest the citations and proposed penalties. Respondent further advised that it maintains that section 4(b)(1) of the Act exempts it from standards promulgated by the Secretary of Labor pursuant to the Act.
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n1 Complainant filed a Motion to Dismiss Notice of Contest on December 20, 1973 (date received) on the grounds that the notice of contest was untimely. The motion was denied by the Commission's Motion Judge on January 10, 1974. Respondent received the citations and notifications of proposed penalty on November 5, 1973. The envelope bearing the notice of contest was postmarked November 28, 1973. Respondent submitted a copy of a certificate of mailing showing that the letter was mailed on November 26, 1973.
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The citations allege a total of ten (10) violations. The alleged violations, abatement dates, penalties proposed and the descriptions of the alleged violations as set forth in the citations are as follows:
Citation A -- (Abatement date for these items specified as no later than April 30, 1974)
1. 29 CFR 1910.309(a) Penalty Proposed: $45.00
Failure to provide approved (explosion-proof) lighting fixtures in the spray paint area of the coash paint shop.
2. 29 CFR 1910.93(a)(2) Penalty Proposed: $60.00
Subjecting employee performing electric welding in the blacksmith shop to airborne concentrations of iron oxide fumes exceeding the 8-hour time weighted average given for the substance in table G-1 at the following location: second welding station left of aisle facing west.
Citation B -- (Abatement dates for first 7 items specified as no later than April 15, 1974. Item 8 was to be corrected no later than November 5, 1973.)
1. 29 CFR 1910.141(c)(1)(vii) Penalty Proposed: None
Failure to provide at least one lavatory located either in the toilet room or adjacent thereto for the four [*5] toilet facilities provided in the coach paint shop at ground floor.
2. 29 CFR 1910.141(d)(2)(ii) Penalty Proposed: None
Failure to provide the multiple use lavatory at the second floor level of the coach paint shop with hot and cold running water, or tepid running water.
3. 29 CFR 1910.141(d)(1) Penalty Proposed: None
Failure to maintain washing facilities in a sanitary condition at the floor in the shower room at second floor level in the coach paint shop.
4. 29 CFR 1910.141(c)(1)(i) Penalty Proposed: None
Failure to provide a room or rooms for the four toilet facilities that were provided in compartments in the coast paint shop and for the toilet facilities in the blacksmith shop.
5. 29 CFR 1910.27(b)(1) Penalty Proposed: $40.00
Failure to comply with the specific features of design requirements in minimum diameter of runs, in tag distance between rungs and in the minimum clear length of rungs on thirty fixed metal ladders in the coach paint shop and on twenty fixed metal ladders in the coach shop.
6. 29 CFR 1910.28(a)(9) Penalty Proposed: $40.00
Exceeded the maximum permissable spans for 2 X 9 inch or wider planks on eleven scaffolds in the coach [*6] paint shop and on ten scaffolds in the coach shop.
7. 29 CFR 1910.28(a)(13) Penalty Proposed: $30.00
Exceeded the permissible length scaffold planks shall extend over their end supports on ten scaffolds in the coach paint shop.
8. 29 CFR 1910.252(e)(2)(iii) Penalty Proposed: $55.00
Failure to protect workers or other persons adjacent to the welding areas from the rays by noncombustible or flameproof shields or screens or by requiring them to wear appropriate goggles.
Respondent's answer admits the two alleged violations set forth in citation "A" and items 1, 3, 5, 6, 7 and 8 of citation B. Respondent denies that there was any violation of items 2 (29 CFR 1910.141(d)(2)(ii)) and 4 (29 CFR 1910.141(c)(1)(i)) of citation B. (Par. IV, Answer).
On February 25, 1974, the parties filed a stipulation of the facts in this case with the following understanding: (Par. I of Stip.)
This stipulation is submitted for the purpose of constituting the record, in lieu of hearing, upon which the Commission may reach final decision on all questions, including jurisdictional, constitutional, and the merits in this cause.
As a result of the stipulation, respondent's concession of item [*7] 1 of citation "B" is somewhat clouded n2 and for purposes of this decision the concession in the answer has been disregarded. Complainant concedes that there was no violation of item 2 (29 CFR 1910.141(d)(2)(ii)) of citation "B" (Par. XIII, Stip.) Thus, in addition to the question of jurisdiction arising under section 4(b)(1), respondent contests the merits of items 1 and 4 of citation B, the reasonableness of all abatement dates and penalties proposed.
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n2 See Par. XII of Stipulation.
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JURISDICTION AND ISSUES
Respondent concedes that it is an interstate rail carrier engaged in a business affecting commerce within the meaning of the Act (Par. II, Complaint and Answer; Par. IV, Stipulation). It denies that it is subject to the provisions of the Act and submits that neither the Department of Labor nor this Commission has jurisdiction of this proceeding. This denial is premised on the belief that section 4(b)(1) of the Act exempts it from the provisions of the Act (Par. V, Stip.).
The following issues have [*8] been raised by the parties in this proceeding:
1. Does section 4(b)(1) of the Act exempt respondent from the standards promulgated by complainant pursuant to section 6 of the Act?
2. Did respondent violate section 5(a)(2) of the Act by its failure to comply with the standards published at 29 CFR 1910.141(c)(1)(vii) and 29 CFR 1910.141(c)(1)(i)?
3. What are reasonable abatement dates for all conceded violations and any other violations that might be determined?
4. What penalties, if any, should be assessed for any violation of the Act?
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues in this case.
1. Respondent, Southern Railway Company, is a railway corporation organized and existing under the laws of the State of Virginia. It is engaged in the operation of a common carrier interstate railroad system and maintains a maintenance and repair facility, known as the "Hayne Shop," in Spartanburg, South Carolina (Par. IV, Stip.).
2. On October 9 and 10, 1973, the complainant, through a duly authorized representative, conducted an inspection [*9] of the "Hayne Shop" in Spartanburg, S.C. (Par. VII, Stip.).
3. Respondent has no toilet rooms housing its five toilet facilities provided on the first floor of the coach paint shop and one such facility in the blacksmith shop. The lavatories provided in the coach paint shop were not immediately adjacent to the toilet facilities. No females are employed in the coach paint shop or blacksmith shop and toilet facilities are used only by male employees. No females ever enter the coach paint shop or blacksmith shop (Pars. XII, XV, Stip.).
4. The type of lighting fixtures in violation of item 1 (29 CFR 1910.309(a)) of citation "A" have been used at the Hayne Shop for at least thirty-five (35) years. During that time the spraying operations have been substantially the same as existed at the time of inspection. No lighting fixture has ever exploded and there has been no personal injury arising from the use of the lighting fixtures (Par. X, Stip.).
5. The violation of item 2 (29 CFR 1910.93(a)(2)) of citation "A" has never resulted in any employee claim of sickness of injury even through the method used by respondent has been the same for many years (Par. XI, Stip.).
6. [*10] The use of the ladders and scaffolds set forth in items 5, 6 and 7 of citation "B" have never resulted in any personal injury to employees (Par. XVI, Stipulation).
7. Respondent does not presently require employees to wear goggles when in a place where arc welding is being accomplished. Welding shields are also not utilized at "Hayne Shop." Suitable goggles are made available to employees who ask for them and respondent encourages employees in the vicinity of arc welding operations to wear appropriate goggles. Respondent also makes arrangements to secure appropriate goggles with prescription lens for individual employees desiring them (Par. XVII, Stip.).
8. Complainant took into account the following factors in determining his proposed penalties: (Par. XX, Stip.)
GRAVITY:
Probability of injury from condition found;
Severity of injury -- type of care (First aid; doctor; hospitalization);
Extent -- Percentage of occurrences.
ADJUSTMENT FACTOR:
Good Faith -- Cooperation and overall safety consciousness;
Size -- Total number of employees at workplace;
History of previous injuries, illnesses or violations.
ABATEMENT CREDIT:
A 50% credit was [*11] allowed in all instances.
9. Complainant's assessment of the gravity of the violations resulted in unadjusted penalties as specified by rating the gravity factors as indicated: (Par. XX and Ex. B, Stip.)
Citation -- Item No. -- Probability of Injury -- Severity (care) -- Extent of Violation -- Unadjusted Penalty
A -- 1 -- Moderate -- Doctor -- 15-50% -- $150.
A -- 2 -- High -- Hospital -- 0-15% -- 200.
B -- 1 -- Moderate -- First Aid -- 0-15% -- 0.
B -- 2 -- Low -- Doctor -- 0-15% -- 0.
B -- 3 -- Moderate -- First Aid -- 0-15% -- 0.
B -- 4 -- Low -- Doctor -- 50-90% -- 140.
B -- 6 -- Low -- Doctor -- 50-90% -- 140.
B -- 7 -- Low -- Doctor -- 15-50% -- 115.
B -- 8 -- High -- Doctor -- 15-50% -- 185.
TOTALS -- $930.
The unadjusted penalty was reduced a total of 40 percent to allow a 20-percent reduction for good faith and a 20-percent reduction for previous history. No reduction was allowed for size. A further reduction of 50-percent was allowed for abatement.
LAW AND OPINION
Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act. The standards, when properly promulgated [*12] pursuant to section 6 of the Act, have the force of law. Florida Peach Growers Assn. v. United States, 489 F.2d 120 (5th Cir. 1974).
Respondent's primary argument is premised on its contention that section 4(b)(1) of the Act exempts it from any regulation by the complainant. n3 Section 4(b)(1) provides, in pertinent part, as follows:
Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.
The exemption is limited to specific working conditions of employees over which another Federal agency has exercised its statutory authority to regulate safety and health conditions of employees. The key words are "working conditions," "exercised" and "statutory authority."
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n3 This issue is presently on review by the Commission in several cases. See, e.g., Secretary of Labor v. Southern Pacific Transportation Co., Docket No. 1348, Secretary of Labor v. Union Pacific Railroad Co., Docket No. 1697; Secretary of Labor v. Seaboard Coast Line Railroad Co., Docket No. 2802; Secretary of Labor v. Union Railroad Company, Docket No. 4318.
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Respondent's argument is in essence to the affect that the railroad industry is entitled to a blanket exemption because it is statutorily regulated by another Federal agency. A history of railroad safety legislation and a complete listing of all legislation enacted and regulations presently in effect have been referred to by the respondent. A review of the regulations presently in effect by the Department of Transportation reflects that the Secretary of Transportation has not exercised any authority to cover the conditions for which respondent has been cited. Respondent does not contend to the contrary but argues that the Federal Railroad Safety Act of 1970 (45 USC 421 et seq. ) gives the Secretary of Transportation the authority to cover every aspect of safety in the railroad industry.
Respondent's basic argument was presented and rejected in Secretary of Labor v. Penn Central Transportation Co., Docket No. 738 (Review Ordered). While the case has no precedent value because it is on review, the rationale of Judge Osterman in rejecting the argument is considered to be valid and persuasive. [*14] Judge Osterman stated:
To hold that Section 4(b)(1) excludes an industry from the coverage of the Act simply because some aspects of the industry operations are regulated by a Federal agency, would be tantamount to excluding many major industries from the coverage of the Act, a result not intended by the Congress. It seems relatively clear from a reading of the Railroad Safety Act that this statute is concerned principally with the operation of railroads from the point of view of passenger safety and the avoidance of accidents resulting from faulty equipment. Although it is reasonably clear from a reading of Sections 421 and 431 of 45 U.S.C. that the Department of Transportation does have the authority to issue regulations dealing specifically with working conditions which affect, in a broad sense, the health and safety of railroad employees, the Respondent railroad can only be exempted from the operation of the Occupational Safety and Health Act of 1970 if it is shown that the Department of Transportation or some other Federal agency by regulation has in fact exercised its authority in this area.
Section 202(a) of the Federal Railroad Safety Act of 1970 (45 U.S.C. [*15] 431(a)) directs that:
The Secretary of Transportation shall (1) prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety supplementing provisions of law and regulations in effect on the date of enactment of this Title.
Respondent argues that this grant of regulatory power to the Secretary of Transportation clearly covers every aspect of safety in the railroad industry. Assuming arguendo that the Secretary of Transportation has the authority to regulate the working conditions of all employees in the railroad industry, n4 that authority has not been exercised to cover the conditions for which respondent has been cited in this case.
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n4 In Secretary of Labor v. Union Railroad Company, Docket No. 4318 (Review Ordered), Judge Chalk rejected the contention that the Secretary of Transportation had carte blanche authority to regulate the working conditions of all employees in the railroad industry. It is not necessary to reach that determination in this case since there has been no exercise of any authority to regulate the conditions for which the citations were issued in this case.
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The mere fact that the Secretary of Transportation may have statutory authority to cover every aspect of safety in the railroad industry does not per se exempt the industry. The Secretary of Transportation must have the statutory authority and exercise that authority to specific working conditions prior to the railroad industry being exempt as to those working conditions. Section 4(b)(1) refers to other Federal agencies which "exercise" statutory authority and not simply to Federal agencies which have statutory authority. The Secretary of Transportation may have the authority, n5 but there has been no exercise of that authority to exempt the working conditions in issue in this case.
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n5 A point which it is deemed unnecessary to determine in this case.
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Respondent also argues that Congress intended that industries be exempt rather than working conditions. This position is premised on the fact that two members of congress in the [*17] debate in the House of Representatives on the Act used the word "industry" in referring to what would be exempt. n6 Respondent also submits that an industry exemption is consistent with the use of the term "employments" in section 24(a) of the Act. This position is ably rejected in the Judge's decision in Secretary of Labor v. Southern Pacific Transportation Co. Docket No. 1348 (Review Ordered). The rationale of the Judge in South Pacific Transportation is persuasive and adopted herein even though the case is on review and can not be considered to have any precedent value.
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n6 Respondent refers to the discussion between Congressmen Daniels and Erlenborn. Daily Congressional Record H. 10630 (November 23, 1970).
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The meaning of section 4(b)(1) must be determined from the language used therein. Section 4(b)(1) specifically refers to "working conditions" and not industries. There is no ambiguity in the use of the term "working conditions" which necessitates any resort to the legislative history. [*18] The discussion between Congressmen Daniels and Erlenborn can not be considered an accurate gauge of the view of the majority of the congressmen and senators that voted for final passage of the Act. As the Supreme Court stated in United States v. Trans-Missouri Freight Ass'n., 166 U.S. 290, 318 (1897):
There is, too, a general acquiescence in the doctrine that debates in congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body. [citations deleted]
The reason is that it is impossible to determine with certainty what construction was put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did, and those who spoke might differ from each other; the result being that the only proper way to construe a legislative act is from the language used in the act, and, upon occasion, by a resort to the history of the times when it was passed.
In Secretary of Labor v. Mushroom Transportation Co., Inc., No. 1588 (November 7, 1973), (Appeal filed, 3rd. Cir., January 31, 1974) [*19] the Commission recognized that section 4(b)(1) of the Act was intended to avoid a duplication in the enforcement efforts of Federal agencies but concluded that there was an intent to have no hiatus in the protection of employees. The declared purpose of Congress in enacting the Act, as expressed in section 2(b), was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." This declared purpose is inconsistent with respondent's argument that Congress intended to exempt industries which are regulated by other Federal agencies even if they did not afford protection to employees within the industry.
In Mushroom Transportation Co., the Commission stated:
Once another Federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations covering the same conditions (emphasis added).
The conclusion that section 4(b)(1) is a limited rather than a blanket exemption is implicit in the statement of the Commission. Employees are entitled to protection. If specific working conditions are covered in regulations issued by other Federal agencies, then the standards and regulations [*20] promulgated under the Act and applicable to the same working conditions will not apply. Where another Federal agency does not regulate specific working conditions of employees the Act is applicable to those employees. The exemption under 4(b)(1) applies to working conditions of specific employees rather than to specific industries. This interpretation is not inconsistent with the reference to employments in section 24(a) of the Act.
The respondent is subject to the standards cited since there has been no exercise of authority by the Secretary of Transportation to cover the specific working conditions involved. The violations conceded by respondent, subject to the 4(b)(1) argument, are deemed violations of the Act. The applicability of two standards to the facts of record have been disputed by respondent and must be determined on the merits.
1. Alleged violation of 29 CFR 1910.141(c)(1)(vii)
Section 1910.141(c)(1)(vii) of 29 CFR provides as follows:
For each three required toilet facilities at least one lavatory shall be located either in the toilet room or adjacent thereto. Where only one or two toilet facilities are provided at least one lavatory so located shall be provided. [*21]
Complainant alleges that respondent failed to provide at least one lavatory located in the toilet room or adjacent thereto for the four n7 toilet facilities provided on the ground floor of the coach paint shop.
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n7 Paragraphs XII and XV of the stipulation refers to five toilet facilities provided on the ground floor of the paint shop, whereas the citation refers to only four toilet facilities. This discrepancy is immaterial to a determination of this issue.
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The respondent stipulated that it had no toilet rooms housing its toilet facilities and that the lavatories were not immediately adjacent to the toilet facilities. The standard requires the lavatory or lavatories, depending on the number of toilet facilities, to be located in the toilet room or adjacent thereto. A toilet room, as defined by 29 CFR 1910.141(2)(vii), means a room containing toilet facilities for use by employees. Respondent submits that toilet rooms are not required since no females are employed or enter the building.
The facts support [*22] a violation of 29 CFR 1910.141(c)(1)(vii). The lavatories were not adjacent to the toilet facilities. While the standard specifies that at least one lavatory, for each three required toilet facilities, be located in the toilet room or adjacent thereto, the absence of a toilet room does not abrograte the necessity for the lavatories. The essence of the standard is that the lavatories are to be near the toilet facilities. Respondent concedes that the lavatories were not located immediately adjacent to the toilet facilities. The violation is established.
2. Alleged Violation of 29 CFR 1910.141(c)(1)(i)
Section 1910.141(c)(1)(i) of 29 CFR provides, in part, as follows:
Except as otherwise indicated in this subdivision (i), toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with table J-1 of this section. The number of facilities to be provided for each sex shall be based on the number of employees of that sex for whom the facilities are furnished. Where toilet rooms will be occupied by no more than one person at a time, can be locked from the inside, and contain at least one water closet, separate toilet rooms [*23] for each sex need not be provided. Where such single occupancy rooms have more than one toilet facility, only one such facility in each toilet room shall be counted for the purpose of table J-1.
Complainant alleges that respondent failed to provide a room or rooms for the four toilet facilities that were provided in compartments in the coach paint shop and for the toilet facilities in the blacksmith shop.
The present and contemplated use of the toilet facilities is by male employees. Female employees do not work in or enter the buildings where the toilet facilities are located. In view of this fact, respondent submits that there has been no violation of the standard. It is contended that the standard does not require separate toilet rooms where toilet facilities are used only by male employees.
The stipulation states that the toilet facilities were separately compartmented water closets (Par. XV, Stip.). It is assumed that the compartments conformed to 29 CFR 1910.141(c)(2)(i) and that the partitions were sufficiently high to assure privacy. n8 The references in the standard to sex indicates that it is primarily designed to assure absolute privacy for male and [*24] female employees either by toilet rooms separate for each sex or by one such room where it will not be occupied by no more than one person at a time and can be locked from the inside.
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n8 Paragraph XV states that the compartments had doors with separate latches. No mention is made as to the height of the partitions. However, respondent was not cited for a violation of 29 CFR 1910.141(c)(2)(i) and it must be assumed that the partitions afforded privacy.
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Since no females work in or enter the buildings, the enclosing of the compartments within a separate room would add nothing to the privacy of employees. A separate room would certainly add nothing to the health or safety of employees involved. The stipulated evidence does not support the alleged violation.
ABATEMENT DATES
Respondent contests the reasonableness of the abatement dates for all items. The contest of the abatement dates is premised on respondent's view that it should not be required to comply with the regulations of an agency in which the power to regulate [*25] has not been determined. Since respondent is deemed subject to the jurisdiction of the Act for the violations determined in this case, the argument raised by it is not a valid criteria for determining some other date as being appropriate for abatement. There is no evidence to reflect that the abatement dates are unreasonable and the abatement periods specified in the citations appear reasonable when construed in light of the violations to be corrected.
PENALTY DETERMINATION
Once a notice of contest is served challenging penalties proposed by the Secretary, 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 Secretary under section 9(a) and notifications issued and penalties proposed by the Secretary under sections 10(a) and 10(b) of the Act. The Commission is the final arbiter of penalties if the complainant's proposals are contested. In such an event the complainant's proposals merely become advisory. Secretary of Labor v. Occupational Safety and Health Review Commission and Interstate Glass Co., [*26] 487 F.2d 438 (8th Cir. 1973).
The Commission is required by section 17(j) of the Act 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. Secretary of Labor v. Nacirema Operating Company, Inc., In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. The principal factor to be considered is the gravity of the offense. In determining the gravity of a violation, several elements must be considered, including but not necessarily limited to the following: (1) the number of employees exposed to the risk of injury, (2) the duration of the exposure, (3) the precautions taken against injury, if any, and (4) the degree of probability of occurrence of an injury. Secretary of Labor v. National Realty and Construction Company, Inc.,
The Commission in Secretary of Labor v. J. E. Chilton Millwork and Lumber Company, [*27] Inc., The same rationale was applied by the Commission in Secretary of Labor v. General Meat Company, Inc., Small monetary penalties were eliminated in both cases since the violations had been abated. However, this rationale was directed toward relatively minor violations of the Act which would be better described as de minimis. The Commission recognized that there would be instances where a small penalty would be justified. Whether small monetary penalties are justified must be determined by the relationship between the non-serious violation involved and the corresponding degree of gravity. Secretary of Labor v. Hydroswift Corporation,
The complainant proposed the following penalties for the violations as indicated:
Citation No. -- Item No. -- Violation -- Proposed Penalty
A -- 1 -- 29 CFR 1910.309(a) -- $45.00.
A -- 2 -- 29 CFR 1910.93(a)(2) -- $60.00.
B -- 5 -- 29 CFR 1910.27(b)(1) -- $40.00.
B -- 6 -- 29 CFR 1910.28(a)(9) [*28] -- $40.00.
B -- 7 -- 29 CFR 1910.28(a)(13) -- $30.00.
B -- 8 -- 29 CFR 1910.252(e)(2)(iii) -- $55.00.
After due consideration of all factors specified by section 17(j) of the Act, with particular emphasis on the gravity of the violations, it is concluded that the penalties proposed by the complainant are fair and reasonable. The rationale expressed in J. E. Chilton Millwork and Lumber Company, Inc. is deemed inapplicable due to the nature and gravity of the violations.
CONCLUSIONS OF LAW
1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.
2. Respondent is not exempt from the jurisdiction of the Act by virtue of the provisions of section 4(b)(1) of the Act since there has been no exercise of authority by the Secretary of Transportation to regulate the working conditions covered in this proceeding.
3. The respondent was at all times material hereto subject to the requirements of the Act. The Commission has jurisdiction of the parties and of the subject matter herein.
4. Respondent did not provide at least one lavatory adjacent to toilet facilities located on the ground floor of the [*29] coach paint shop and thereby violated section 5(a)(2) of the Act by failing to comply with the standard published at 29 CFR 1910.141(c)(1)(vii).
5. Since no female employees were employed or entered the coach paint shop and blacksmith shop, a room or rooms were not necessary to house toilet facilities. The standard published at 29 CFR 1910.141(c)(1)(i) is inapplicable.
6. The penalties proposed by complainant are fair and reasonable.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
ORDERED:
(1) The citation and notification of proposed penalty issued to respondent on November 2, 1973, and pertaining to the alleged violations of 29 CFR 1910.309(a) and 29 CFR 1910.93(a)(2) are affirmed; and
(2) Items 2 and 4 of the citation and notification of proposed penalty issued to respondent on November 2, 1973, and which contains eight (8) alleged violations, are vacated. Items 1, 3, 5, 6, 7 and 8 are affirmed.