Docket No. 58

PHOENIX, INC., LEGORE QUARRIES DIVISION

OSHRC Docket No. 58

Occupational Safety and Health Review Commission

June 14, 1972

[*1]

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On April 18, 1972, Judge William E. Brennan issued his recommended decision and order in this case granting respondent's motion to withdraw its notice of contest but modifying the Secretary's proposed penalty by increasing it from $750 to $900. Thereafter, on April 21, I directed that the report of the Judge be reviewed by the Commission in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereafter referred to as "the Act").

The Commission has reviewed the entire record in this case and has considered the briefs, arguments and exceptions of the parties. We do not adopt the Judge's recommended decision and order.

On September 2, 1971, the respondent who was engaged in the process of pulverizing limestone at its Frederick, Maryland worksite was issued citations for serious and other than serious violations of the Act together with a notification of proposed penalty of $750 for the serious violation. Respondent filed a timely notice of contest to the citation for serious violation and the proposed penalty. Before [*2] commencement of hearing, respondent moved to withdraw its notice of contest. The citation for other than serious violations for which no penalty was proposed was not contested and became the final order of the Commission with the passing of 15 working days.

The sole issue presented for determination on review is:

Whether the provisions of section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 653(b)(1)), in view of the Metal and Nonmetallic Mine Safety Act (30 U.S.C.A. 721, et seq. ), do not deprive the Secretary of Labor and this Commission of jurisdiction of the subject matter in this case.

The Commission invited the Secretary to submit a brief on the question. The Secretary, conceding that respondent was not subject to the Occupational Safety and Health Act of 1970, moved to vacate the contested citation together with the notification of proposed penalty and to set aside the Judge's order. The Secretary also moved to set aside the final order of the Commission involving the citation for other than serious violations and to vacate said citation.

The Commission concurs. We grant the Secretary's motions.

Accordingly, it is ORDERED that [*3] the Judge's order be set aside and the Secretary's citation for serious violation, the citation for other than serious violations and the notification of proposed penalty are vacated.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE, OSAHRC: This matter comes on for determination pursuant to Sections 10(c) and 12(j) of the Occupational Safety and Health Act of 1970, Pub. Law 91-596, 29 U.S.C. 651 et seq. (hereinafter the Act) upon Respondent's application to withdraw its Notice of Contest pursuant to 29 CFR 2200.11, hereinbefore filed with the Secretary of Labor (hereinafter Secretary).

The record in this case reveals the following:

1. On September 2, 1971, the Secretary pursuant to Section 9(a) of the Act issued to this Respondent a Citation for Serious Violation, alleging a violation of Section 5(a)(1) of the Act. The alleged violation is described as follows in this Citation:

On 8/9/71, an injury occurred at above workplace (the pulverizing limestone shed of the Legore Quarries Division of Respondent, at Legore, Maryland) resulting in amputation of leg above knee. Employee was exposed to the hazard of feeding limestone to the auger screw conveyer [*4] with: (1) the cover guards not securely bolted down; (2) no device to stop the machine when cover guards are raised while machine is operating; (3) overload protection too high to stop machine even though foot and leg were caught in the machine; (4) no means of stopping the machine near the feed point of operation.

The following abatement provisions are also set out in this Citation:

Immediately. -- The cover guards shall be securely bolted or fastened down at all times that the machine is in operation. Secure lockout shall be provided in case guards are removed for maintenance or cleanout. Overload protection shall be provided to shut off machine if jammed by solid object or material overload.

30 days from receipt of Citation Notice: Install interlock device to stop machine if guard cover is removed while machine is in operation. Install stop switches at all points of operation of machine. (R. p. 1)

2. Additionally, on September 2, 1971, the Secretary issued a Citation for Non-serious Violation to this Respondent alleging two violations (Items numbered 1 and 2) of Safety standards, (29 CFR 1910.24 and 1910.212(a)) which Citation described the alleged violations [*5] and detailed the required abatement provisions (R. p. 1.).

3. Further, the Secretary on September 2, 1971, issued a Notification of Proposed Penalty, pursuant to Section 10(a) of the Act, proposing a penalty of $750.00 based upon the Citation for Serious Violation, and no penalty upon the Citation for Non-serious Violation (R. p. 2).

4. By letter from its counsel dated September 24, 1971, the Respondent noted its intention to contest the Citation for Serious Violation, Proposed Penalty thereon and the time periods for abatement therein set forth (R. p. 3).

5. The Secretary thereafter forwarded this case to the Occupational Safety and Health Review Commission (hereinafter Commission) pursuant to Section 10(c) of the Act. Notice of receipt was given the parties by the Commission by its notice dated September 29, 1971 (R. p. 4).

6. This case was set down for hearing for December 14, 1971, but prior thereto, the Respondent, pursuant to 29 CFR 2200.11, made application to withdraw its Notice of Contest by its telegram dated December 9, 1971 (R. pp. H-3, H-5, H-11). The hearing was consequently postponed on December 10, 1971 (R. p. H-12).

7. In his affidavit dated December 17, [*6] 1971, Respondent's Vice President and General Manager affirmed the following:

(a) The Respondent's application to withdraw its Notice of Contest (R. p. H-13, para. 2).

(b) That the cover guards of the subject screw conveyor were securely fastened down on August 10, 1971, and that all other hazard abatement required by the Citation was accomplished on September 10, 1971, by the permanent termination of operations requiring the use of the subject machinery (R. p. H-13, para. 3).

(d) Payment by the Respondent of the proposed penalty in the amount of $750.00 (R. p. H-13, para. 5).

(e) Service of copies of Respondent's Notice of Withdrawal and the instant affidavit upon all parties in accordance with 29 CFR 2200.7(i). (R. p. H-13, para. 6).

8. Respondent's counsel in his letter dated January 7, 1972, certified, "-- that the employer has complied with the posting requirements of Section 9(b) of the Act and 29 CFR 1903.16" (R. p. H-15).

9. Pursuant to requests, (See R. p. H-16, H-18), the Secretary's Baltimore Area Director of the Occupational Safety and Health Administration filed his affidavit [*7] dated February 11, 1972, setting forth among other things, the manner in which he computed the proposed penalty of $750 based upon the Citation for Serious Violation (R. p. H-19).

10. By his letter dated March 6, 1972, Respondent's counsel, among other things, noted his position that the Secretary's proposed penalty of $750.00 should be reduced because no reduction in the maximum penalty under Section 17(b) of the Act was allowed Respondent based upon its "good faith," although the Area Director mentioned Respondent's good faith in his affidavit of February 11, 1972, and further, that the Area Director erred in relying upon the Secretary's formula in computing the proposed penalty rather than upon the principles set forth by the Commission in Secretary of Labor v. Nacirema Operating Company,

11. In answer to the undersigned's request for a clarification of Respondent's position, (see R. p. H-26), counsel for Respondent through his letter dated March 28, 1972, and motion attached thereto, advised that he did not wish to "-- reopen the hearing for the purpose of contesting the reasonableness of the penalty --" but did desire that the [*8] undersigned ". . . make an independent evaluation of the appropriateness of the penalty on the basis of the documents heretofor provided . . ." consistent with the principles announced in the Nacirema case (R. p. H-28).

OPINION

Respondent's position that the filing of a Notice of Withdrawal of Contest divests the Commission, after five days (29 CFR 2200.11), of jurisdiction over the matter in contest (See R. pp. H-13, H-17, para. (3), H-22), is not supported in this record, in the law nor is it the position of the Commission. To the contrary, jurisdiction once vested in the Commission by the operation of Section 10(c) of the Act upon the filing of a Notice of Contest by a cited party, remains with the Commission until it discharges its responsibilities of judicial review pursuant to the Act. See Secretary -- U.S. Department of Labor v. J.A. McCarthy, Inc.,

Respondent's request for the Commission, through the undersigned, to ". . . review the reasonableness of the proposed penalty on the basis of the record so far made in this matter" (R. p. H-28, p. 1, Motion) is consistent with the review and adjudicatory functions vested [*9] in the Commission by Congress through Sections 2(b)(3); 10(c); 11; 12; 17(a), (b), (c), (d), (i), (j) and (k) of the Act.

Section 17(j) of the Act provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

The Commission in its Decision in Nacirema Operating Company, Inc.,

1. Good faith of the employer. -- Good faith should be determined by a review of the employer's own occupational safety and health program, its commitment to the objective of assuring safe and healthful working conditions, and its cooperation with other persons and organizations (including the Department of Labor) seeking to achieve that objective (Decision p. 4).

2. Gravity of the violation. -- The Gravity [*10] of a particular violation can range from de minimis, where there is very low potential for injury or occupational illness, to severe, where death or serious physical injury would be likely. (Decision p. 4).

Evaluation of the two criteria discussed above must necessarily be based largely on subjective judgments. (Decision p. 5).

3. History of previous violations. -- The employer's history of previous violations can be related exactly. (Decision p. 5). This criterion is objective and capable of precise measurement.

4. Size of the business of the employer.

The Commission indicates that this criterion also is objective and capable of precise measurement, suggesting the following three measures:

(a) Number of employees.

(b) Relative size of employer compared with other employers engaged in similar business in the same general geographic area.

The Commission further points out:

We believe that the four criteria to be considered in assessing penalties cannot always be given equal weight. Obviously, for example, a particular violation may be so grave as to warrant the assessment of the [*11] maximum penalty, even though the employer may rate perfect marks on the other three criteria. Nor can a precise formula rationally be applied for considering each criterion. . . .

. . . in the opinion of the Commission, no matter how desirable uniform treatment of violations may be, the achievement of a just result in each case is the standard by which our deliberations must be guided (Decision p. 6).

Applying the statutory criteria of Section 17(j) of the Act and the Commission's interpretations thereof, to what facts are revealed in this record, results in the determination that the Secretary's proposed penalty of $750.00 based upon the Citation for Serious Violation is not appropriate.

1. Good faith of the employer. -- The record herein is devoid of any facts indicating that this Respondent did or did not have any occupational safety or health program in effect on or before August 9, 1971, the date of the injury alleged in the Citation.

The Secretary's Area Director in his affidavit dated February 11, 1972, stated, "The good faith of the Respondent was demonstrated by their willingness to abate the hazards immediately and their actions subsequent to the accident to accomplish [*12] corrections." Respondent's Vice President and General Manager in his affidavit dated December 17, 1971, made the statement concerning abatement set forth in paragraph number 7(b) supra. Assuming that compliance with abatement requirements may be properly used as one indicia of the employers "commitment to the objective of assuring safe and healthful working conditions," this record establishes that only part of the immediate abatement called for in the Citation for Serious Violation was accomplished one day after the date of injury, i.e., cover guards securely fastened on August 10, 1971. The remaining immediate and delayed abatement provisions (see paragraph number 1 supra) on this record were never effected. The Respondent's statement that, ". . . all other hazard abatement required by the Citation was accomplished on September 10, 1971 by the permanent termination of operations requiring the use of the subject machinery" (see paragraph number 7(b) supra) cannot logically be construed as a correction of those conditions which in part at least, contributed to the existence of the hazard set forth in the Citation.

The Area Director's question in his affidavit of [*13] February 11, 1971, "What was the attitude of the employer after the inspection of the job site?" is never answered in this record. Thus the record presents no facts to support any conclusions concerning the third factor of good faith, the Respondent's cooperation with persons and organizations seeking to achieve the objectives of the Act.

On the facts of this record, there has been a minimal showing of Respondent's good faith herein which is insufficient to support any mitigation of the maximum statutory penalty.

2. Gravity of the violation. -- The Secretary's Area Director, in his affidavit dated February 11, 1972, concluded as to gravity, "There is a substantial probability of death or serious physical injury resulting from an accident that causes a human body to get caught in a screw auger." The Citation for Serious Violation sets forth, in part, this description of the alleged violation, "On 8/9/71, an injury occurred at above workplace resulting in amputation of leg above knee."

The record herein clearly establishes that there was a very high potential and likelihood that the violation charged by the Secretary, to wit, exposing employees who fed limestone into [*14] an auger screw conveyor on a machine pulverizing limestone at a quarry to the hazards which existed, namely non-secured cover guards, no device to stop the machine when cover guards were raised for maintenance, overload protection too high to stop the machine when a foot or leg was caught therein, and no means to stop the machine near the feed point of operation, would result in death or serious physical injury.

3. History of previous violations. -- The Area Director, in his February 11th affidavit, states: "There were no records available to OSHA that would indicate a past history of violations. Also, there was no evidence that the company had a poor accident record."

Although this affidavit does not enlighten this record as to where and to what extent records were either maintained or searched concerning the past history of this Respondent, these statements have been weighed by the undersigned in assessing the penalty herein.

4. Size of business of the employer. -- The Area Director also states in his February 11th affidavit that Respondent's Legore Quarries Division had a total of 35 employees on its payroll with 30 of said employees located at Legore, Maryland, the [*15] workplace involved herein.

This record contains no facts concerning either the relative size of Respondent compared with other employers engaged in a similar business or the gross annual dollar volume of Respondent's business.

On the state of this record, the undersigned believes, ". . . that the principal factor to be considered in assessing an appropriate penalty for this violation is the gravity of the offense." ( Nacirema Operating Company, Inc., Commission Decision p. 6).

The achievement of a just result in this case, weighing all facts presented by this record and considering the statutory criteria for the assessment of penalties as set forth in Section 17(j) of the Act as interpreted by the Commission, dictates that a penalty in the amount of $900 be assessed this Respondent.

Now, therefore, it is hereby ORDERED that:

1. Respondent's application to withdraw its Notice of Contest to The Citation For Serious Violation dated September 2, 1971 be, and the same hereby is, granted and said Citation is affirmed.

2. Respondent's Motion filed on March 30, 1972, to withdraw its Notice of Withdrawal of Contest insofar as it relates to the Secretary's proposed penalty [*16] be, and the same hereby is, granted.

3. Pursuant to the provisions of Sections 17(b) and (j) of the Act, as interpreted by the Commission in Secretary of Labor v. Nacirema Operating Company,

4. Payment of $750 having already been effected by Respondent, the balance of said penalty, $150 shall be paid by the Respondent within 10 days after service of the Commission's Final Order herein.