STEPHENSON ENTERPRISES, INC.
OSHRC Docket No. 5873
Occupational Safety and Health Review Commission
September 22, 1976
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
Norman H. Winston, Associate Reg. Sol.
Allan P. Clark, for the employer
Daniel R. Coffman, Jr., for the employer
A decision of Administrative Law Judge John J. Larkin is before us for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). Judge Larkin vacated thirteen items of a nonserious citation, determining that, by his evidence, n1 the Secretary had failed to establish a prima facie case. n2 The Secretary's petition for review as to nine of these items was granted. For the reasons below, we affirm the Judge's disposition as to item 4, which alleged a violation of 1910.157(a)(2), but reverse as to the other items before us. n3
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n1 The Secretary's case consisted of the testimony of one witness, the compliance officer. The compliance officer was examined on direct before Judge J. Marker Dern. A delay occasioned by Respondent's petition for interlocutory appeal and Judge Dern's retirement caused the cross-examination of the compliance officer to be conducted before Judge Larkin. Respondent rested at the conclusion of the Secretary's case and therefore did not present any witnesses.
n2 At the conclusion of the Secretary's case, Respondent made a motion to dismiss under Rule 41(b) of the Federal Rules of Civil Procedure on the basis that the Secretary had failed to establish a prima facie case. The Judge took the motion under advisement and asked Respondent to put on its case. Respondent declined to call any witnesses and rested. We note that since Respondent rested, the question before us is whether the Secretary established the alleged violations by a preponderance of the evidence. We also note that the Judge acted properly in taking the Rule 41(b) motion under advisement when it was made at the close of the Secretary's case. Compare Harrington Const. Corp., No. 9809 (July 21, 1976).
n3 As further bases for its motion to dismiss, Respondent argues on review that the compliance officer's testimony should be stricken for the Secretary's failure to turn over the name of an employee interviewed by the compliance officer and that the citation should be vacated since it was not issued with reasonable promptness as required under section 9(a) of the Act. We reject both contentions. As to Respondent's disclosure argument, the Commission decided the issue contrary to the Respondent's position when this case was before us on interlocutory appeal. Stephenson Enterprises, Inc., No. 5873, BNA 2 OSHC 1080, CCH OSHD para. 18,277 (1974). In that decision, we stated that the Secretary is not required to disclose the name of an employee who was contacted by a compliance officer during an inspection unless the employer shows that the employee's identity is essential to its defense. Respondent failed to make such a showing before the Commission on interlocutory appeal and its arguments on review are the same as those it pressed on interlocutory appeal. We also reject Respondent's reasonable promptness argument since Respondent failed to show that it was prejudiced by the delay of approximately two weeks between the inspection and the issuance of the citation, or that the delay was unconscionable. Coughlan Construction Co., Inc., 20 OSAHRC 641, BNA 3 OSHC 1636, CCH OSHD para. 20,106 (1975).
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ALLEGED VIOLATION OF 29 C.F.R. 1910.22(b)(2)
Item 1 alleged a violation of 1910.22(b)(2) in that permanent aisles and passageways were not marked. The compliance officer stated that the accompanying plant manager identified certain aisles as being permanent aisles. These aisles were not marked and were temporarily obstructed by such items as a cart and fabric cuttings.
Judge Larkin vacated on the basis that the testimony contained no factual details upon which to base a conclusion that the aisles were permanent. We reverse. The plant manager participated as Respondent's agent in the walkaround, and he admitted that the aisles were permanent. His admission is that of an agent acting on behalf of Respondent, and it constitutes probative evidence. Huber, Hunt & Nichols, Inc. and Blount Bros. Corp., No. 6007, BNA 4 OSHC 1406, CCH OSHD para. 20,837 (June 28, 1976); Fed. R. Evid. 801(d)(2)(C) and (D). In the absence of any evidence to the contrary, the evidence of record preponderates in favor of finding that the aisles were permanent within the meaning of the standard. Therefore, a violation [*3] was established.
ALLEGED VIOLATION OF 29 C.F.R. 1910.159(e)
Item 2 alleged a violation of 1910.159(e) in that the required minimum sprinkler head clearance was not maintained between sprinkler deflectors and the top of stored combustible material, so as to reduce the possibility of obstruction to the distribution of water in the event of a fire. The compliance officer testified that he observed a stack of combustible material comprised of cartons which was approximately twelve feet high. The stack was leaning. He estimated that the top of the stack was within a foot of the sprinkler. He did not physically measure the distance between the top of the stack and the deflectors because he was unable to climb the stack.
Judge Larkin vacated the item, finding a failure of proof in that the stacked material had not been identified and the compliance officer had not actually measured the distance between the stack and the sprinkler. We reverse. The only proof adduced was the compliance officer's observations. Estimations of distance based on observations are admissible and may be dispositive in the absence of proof to the contrary. Fed. R. Evid. 701. Further, Respondent did not [*4] rebut the compliance officer's testimony that the stacked material was combustible. Accordingly, the evidence preponderates in favor of a finding of a violation.
ALLEGED VIOLATION OF 29 C.F.R. 1910.157(a)(6)
Item 3 alleged a violation of 1910.157(a)(6) in that fire extinguishers weighing less than 40 pounds were installed with their tops more than five feet above floor level. The compliance officer testified that he observed five fire extinguishers, which he estimated weighed less than 40 pounds, mounted on the wall. He measured the distance between the tops of the extinguishers and the floor and determined the distance as being 69 1/2 inches. He did not measure the height of employees working on the floor.
Judge Larkin vacated the citation, ruling that the Secretary's evidence was insufficient since it did not include any photographs and did not specify the model or weight of the extinguishers. We reverse. The compliance officer's testimony was the only evidence as to the weight of the fire extinguishers. Since Respondent did not rebut it with evidence to the contrary, the Secretary established the weight of the extinguishers to be less than 40 pounds by the preponderant [*5] evidence. n4 We note that the failure to specify the model of the extinguishers or to enter photographs of the scene into evidence is certainly not fatal to the Secretary's case. We also reject Respondent's additional argument on review that the Secretary's case was deficient since it did not establish the height of the exposed employees. The plain language of the standard requires that certain extinguishers be installed not more than 5 feet from the floor level without regard to the height of employees. Accordingly, a violation was established.
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n4 We also note that extinguishers heavier than 40 pounds must be mounted with their tops no more than 3 1/2 feet above the floor. Hence, even if the extinguishers weighed more than 40 pounds, the standard was violated.
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ALLEGED VIOLATION OF 29 C.F.R. 1910.157(a)(2)
Item 4 alleged a violation of 1910.157(a)(2) in that a portable fire extinguisher was obstructed and therefore not readily accessible and immediately available in the event of a fire. The compliance officer [*6] testified that a fire extinguisher was obstructed by a cart and/or brooms. He acknowledged however that the brooms could be moved in a "split second" and the cart could also be moved in a very short period of time.
Judge Larkin vacated, determining that the extinguisher was readily accessible and immediately available since the obstructions could be moved in an infinitesimal period of time. We agree with the Judge's disposition for the reasons he assigns. Accordingly, the Secretary failed to establish a violation of the standard.
ALLEGED VIOLATION OF 29 C.F.R. 1910.176(b)
Item 5 alleged a violation of 1910.176(b) in that a tier of stored material was not stable and secure against sliding or collapsing. The compliance officer testified that he observed a stack which he estimated to be twice his height or 12 feet high. The stack was leaning. He did not observe any device which restrained the stack from sliding or collapsing. The stack was comprised of 90 to 100 parcels of disassembled flat cardboard cartons. the compliance officer did not weigh the parcels, but testified that they weighed 70 pounds based either on information from the plant manager or from printing on the [*7] outside of the parcels. An employee who was cutting twine and assembling cartons was observed within a body length of the tier.
Judge Larkin vacated, ruling that the record consists of conclusions without supporting facts or details. We reverse. The compliance officer's testimony established the essential elements of the violation. In the absence of any contradictory evidence, the evidence preponderates in favor of finding a violation.
ALLEGED VIOLATION OF 29 C.F.R. 1910.309(a)
Item 8 alleged a violation of 1910.309(a) in that four electric switches were not labelled as to their function. The compliance officer testified that four switches on the north end of the building were not marked as to function or purpose and that the purpose of the switches was not evident by their location.
Judge Larkin vacated, based on the Secretary's failure to explain the location and purpose of the switches and to adduce facts on whether the switches were self-explanatory. The Judge opined that the switches could have been disconnected. We reverse. Again the compliance officer's testimony established the essential elements of the violation. The actual purpose of the switches is irrelevant [*8] since the charge was that they were not marked to apprise employees of their purpose. The compliance officer's testimony that the purpose of the switches was not apparent by their location is unrebutted. There is no evidence that the switches were disconnected. Accordingly, the preponderant evidence establishes a violation.
ALLEGED VIOLATIONS OF 29 C.F.R. 1910.215(a)(2) and (a)(4)
Item 12 alleged a violation of 1910.215(a)(2) in that a bench grinder lacked guards on the spindle end, nut, and flange. Item 13 alleged a violation of 1910.215(a)(4) in that the bench grinder was not equipped with work rests. The compliance officer testified that a bench grinder was located in a maintenance shop and was used to grind small metal bits. The grinder was unguarded around the revolving nut and spindle, and around the flange. It was not equipped with work rests. Although the compliance officer did not observe the machine being used, the head mechanic told him it was used by employees.
Judge Larkin vacated both items on the basis that the Secretary did not adduce evidence as to the description and model of the bench grinder or as to employee exposure to the grinder. We reverse. As [*9] to whether employees were exposed, the head mechanic, who was identified as a management representative, admitted to the compliance officer that employees used the grinder. This admission is probative evidence. Huber, Hunt & Nichols Inc. and Blount Bros. Corp., supra. Further, exposure was established by the fact that the grinder was available for use by employees. Palmer-Christiansen Co., No. 3108, BNA 4 OSHC 1020, CCH OSHD para. 20,517 (March 18, 1976). Gilles & Cotting, Inc., No. 504, BNA 3 OSHC 2002, CCH OSHD para. 20,448 (Feb. 20, 1976). The compliance officer did describe the grinder. The failure to specify the model is not fatal to the Secretary's case. We also reject Respondent's suggestion on review that the Secretary's case as to item 12 was deficient in that it failed to establish that the cited condition did not fall within certain exemptions from the general guarding requirements contained in the standard. Respondent's argument would place on the Secretary the burden of proving that an exemption is inapplicable. We have consistently held to the contrary that it is the burden of the party who is claiming an exemption to prove its applicability. [*10] Southern Pacific Transportation Co., 13 OSAHRC 258, BNA 2 OSHC 1313, CCH OSHD para. 19,054 (1974), appeals docketed Nos. 74-3981 and 75-1091 (5th Cir., Nov. 29, 1974 and Jan. 10, 1975); Idaho Travertine Corp., No. 1134, BNA 3 OSHC 1535, CCH OSHD para. 20,013 (1975). The exemption was not established by Respondent. Accordingly, the violations were established.
ALLEGED VIOLATION OF 29 C.F.R. 1910.212(a)(3)
Item 14 alleged a violation of 1910.212(a)(3) in that the needles of sewing machines were not guarded. The compliance officer testified that the needles of specific sewing machines were not guarded and that employees could get their fingers under the point of the needle. He observed employees operating the machines.
Judge Larkin vacated, citing as a reason that the compliance officer's testimony was conclusionary. We reverse. The compliance officer's testimony that the needles were not guarded was specific and based on his observations. We have said that the standard applies to such conditions. Slyter Chair Inc., No. 1263, BNA 4 OSHC 1110, CCH OSHD para. 20,589 (April 8, 1976). In the absence of conflicting evidence, the preponderant evidence established the [*11] violation.
ASSESSMENT OF PENALTIES
Turning to the assessment of appropriate penalties, the evidence establishes that the Respondent employed 150 employees at the worksite. The compliance officer characterized Respondent's safety program as average but did not question its good faith. Respondent had no prior history under the Act. The gravity of items 1, 2, 3, 8, 12, 13, and 14 is low whereas the gravity of item 5 is moderate due to the weight and height of the stacked parcels and the proximity of an employee to the hazard. On balance, we conclude that no penalties are warranted for items 1, 2, 3, 8, 12, 13, and 14, and assess a penalty of $35 for item 5.
Accordingly, we vacate item 4. We affirm items 1, 2, 3, 5, 8, 12, 13, and 14 and assess a penalty of $35 for item 5. It is so ORDERED.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
Judge Larkin's decision, which is attached hereto as Appendix A, properly disposed of all of the citation's contested items. That disposition should be affirmed in its entirety. Therefore, I can agree only with that portion of the majority opinion which affirms the Judge's disposition of the [*12] § 1910.157(a)(2) charge. As discussed below, Judge Larkin's disposition was correct for several reasons that are either not adopted or not addressed by my colleagues.
Furthermore, as I noted in my dissenting opinion when this case was before as on interlocutory appeal, failure of the complainant to allow the employer a fair trial, by refusing to disclose pertinent information, requires dismissal of all charges. Additionally, vacation of items 3, 4, and 8 is justified because of defects peculiar to those individual items.
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n5 In fact, the complainant declined to introduce any evidence on this issue, arguing that it was not timely raised. The congressional mandate says nothing about requiring an employer to raise the issue at any stage of the proceedings or to prove that he was prejudiced by the delay as required by my colleagues.
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Items 3 and 4 allege violations of different subparagraphs of 29 C.F.R. § 1910.157. Any citation based thereon must therefore be vacated.
Item 8 avers that respondent failed to comply with Article 110-22 of the National Electric Code as adopted by reference in 29 C.F.R. § 1910.309(a). As I have previously indicated in several opinions, any standard that requires employers to ascertain its substantive requirements from sources other than the Federal Register is not reasonably available within the context of the Act and is, therefore, unenforceable.
ORDER AND DECISION
Ellis V. Cruse, Office of the Solicitor, U.S. Department of Labor, on behalf of the complainant
Allan P. Clark and Daniel R. Coffman, Jr., on behalf of [*14] respondent
STATEMENT OF CASE
LARKIN, 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., (referred to as the Act) to review a citation issued by the Secretary of Labor (referred to as the Secretary) pursuant to section 9(a) of the Act.
Respondent, located in Folkston, Georgia, manufactures men's and boys' pants, which are shipped and sold outside the state.
On November 20, 1973, respondent's plant was inspected by one of the Secretary's compliance officers and a citation was issued on December 4, 1973. The citation was received by respondent on December 6, 1973 and respondent filed its notice of contest on December 26, 1973. The Secretary filed his complaint on January 11, 1974 and respondent answered on January 21, 1974. The case was partially heard on April 17, 1974, but stayed for the purpose of certifying an issue to the Review Commission of whether the Secretary erred in refusing to turn over for purposes of cross examination notes containing the name of an employee interviewed by the compliance officer during the inspection. The issue was decided for the Secretary. The Commission denied [*15] respondent's motion for rehearing and stay for an appeal. The case was reassigned due to the original Judge's retirement, and the trial of the case was concluded on November 6, 1974.
MOTION FOR PRODUCTION OF THE COMPLIANCE OFFICER'S NOTES CONTAINING THE NAME OF AN EMPLOYEE CONTACTED DURING AN INSPECTION OF RESPONDENT'S PLANT
At the continuation of the trial on November 6, 1974, respondent renewed its request for full production of the compliance officer's notes. Respondent contends that at the second trial the record became clear that there was no confidential informant involved in the Secretary's refusal to disclose the inspector's notes in their entirety. Respondent asserts that the Commission's decision on this issue is now inapplicable as the decision was based upon a finding that the employee was a confidential informant. The respondent's motion was denied as it was concluded that the decision was not as restrictive as contended by respondent. The Review Commission's decision states the issue as: "The issue presented is whether the Secretary must give respondent the name of an employee whom the Compliance Safety and Health Officer contacted during an inspection of respondent's [*16] plant." It is the name of this employee that the Secretary refused to reveal during the second trial and it is concluded that the decision of the Review Commission is binding.
MOTION TO DISMISS FOR FAILURE TO ISSUE THE CITATION WITH "REASONABLE PROMPTNESS" AS SPECIFIED IN SECTION 9(a) OF THE ACT
At the second trial respondent moved to amend its answer to raise the issue and further moved to dismiss the citation and proposed penalties on the ground that the citation was not issued with reasonable promptness as required by section 9(a) of the Act. Respondent's motion to amend its pleading to raise the issue was granted due to the liberal right to amend under the federal rules. The motion to dismiss the citation and proposed penalties on the ground that the citation was not issued with reasonable promptness as required by section 9 of the Act was denied.
The question of what is meant by "reasonable promptness" as used in section 9(a) of the Act has been considered in various Commission decisions. See, for example, Chicago Bridge and Iron Co., 6 OSAHRC 244 (Jan. 23, 1974); Advance Air Conditioning, Inc., 7 OSAHRC 736 (April 4, 1974); Silver Skillet Food Products, Co., [*17] 2 OSAHRC 662 (Feb. 23, 1973) and Pleasant Valley Packing Co., Inc., 2 OSAHRC 185 (Jan. 4, 1973). The Chicago Bridge & Iron Co. supra, decision is the lead case. The Commission interprets the "reasonable promptness" provision as restricted to ministerial tasks involved in issuing the citation. It concludes that: "This is the kind of issue that can and should be raised early in the proceedings, i.e., in the notice of contest or in the employer's answer. Because it is such an issue we will deem it waived if it is not raised during the issue formulation stage." The issue was not raised by respondent until during the second trial and it is concluded that the issue was not raised during the issue formulation stage and the Chicago Bridge & Iron Co., supra, decision is binding. However, it would seem to be a basic legal premise that any citation that fails to conform with the requirements of the Act would be an invalid citation and would not confer jurisdiction upon the Commission. Being jurisdictional, the issue could be raised at any stage of the proceedings.
MOTION FOR DIRECTED JUDGMENT DUE TO FAILURE OF THE SECRETARY TO ESTABLISH A PRIMA FACIE CASE
Item [*18] 1. East, West, North and South Factory Permanent Aisles and Passageways Were Not Appropriately Marked
29 CFR 1910.22(b)(2) provides:
"Permanent aisles and passageways shall be appropriately marked."
The Secretary's evidence as to this item consisted of the testimony of the compliance officer as follows (TR I, pgs. 13, 14):
"Q Did you observe the conditions on which this is based?
"A Yes, sir.
"Q Would you describe them, please?
"A As I recall, I asked Mr. Attaway which were the permanent aisles. And after a small discussion, it was noted that "the east and north and the west -- I could explain it better by saying east, west, north, south aisles were the permanent aisles. I explained that they were required to be marked. They were not marked. And in some cases, though it could be judged to be temporary, there were resource materials that in part obstructed the passageway."
The testimony of the compliance officer amounts to no more than a restatement of the allegation in the citation. There are no factual details upon which to base a conclusion that the aisles were permanent aisles. There were no floor plans, photographs, dimensions, measurements, employee or material [*19] movements, or any facts offered to support the alleged violation. It is concluded that the Secretary has not established a prima facie case by having the investigator merely restate the charge set forth in the citation. The respondent's motion is granted as to this item.
Item 2. The Sprinkler Head Clearance Was Not Maintained Between Sprinkler Deflectors and Top of Storage at the North Wall Factory Storage Area to Reduce the Possibility Of Obstruction to the Distribution of Water
29 CFR 1910.159(e) provides as follows:
"Sprinkler head clearance -- (1) Type I storage. Clearance of at least 36 inches shall be maintained between sprinkler deflectors and top of storage to reduce the possibility of obstruction to the distribution of water.
"(2) Type II storage. Clearance of at least 18 inches shall be maintained between sprinkler deflectors and top of storage to reduce the possibility of obstruction to the distribution of water.
"(3) Type III storage. In sprinklered buildings, at least 18 inches clearance between sprinkler deflectors and top of storage shall be maintained."
The Secretary's evidence consisted of the testimony of the compliance officer [*20] as follows (TR I, pgs. 16, 17):
"Q Would you describe the conditions you observed in respect to that item?
"A It was at the north wall. And they had tiers or piles of materials. And as I followed the height of the pile with my eye to the ceiling, I noted they had sprinklers. I had learned that previously in the opening conference with Mr. Attaway, that he stated he did have sprinklers. And I pointed out that it appeared from where I stood that the pile was too close to the sprinkler, meaning, as I recall, about a foot.
"And the Standard for two different types of materials calls for a thirty-six inch clearance or eighteen-inch clearance, and I judged at the time that the material in the pile was combustible, in which case I also calculated it to be Type I storage. It was in the neighborhood of at least twelve feet high, perhaps even higher, but did not exceed twenty-one feet. And accordingly, I prepared the citation.
"Q I think you covered this, but just to clarify it, approximately what was the distance of this material from the sprinkler head?
"A I would say about a foot."
On cross examination the witness admitted that he did not measure the height of the distance from [*21] the sprinkler to the top of the materials. There is no identification of the type of material involved or its characteristic to be combustible. This is a mere conclusion of the witness with no foundation in the record to establish that the witness was qualified to determine combustibility of materials. There are no facts or details as to heights, location of the sprinkler heads, or any other factual detail from which a conclusion may properly be drawn, that the respondent was in violation of the cited regulation. Again it is concluded that the Secretary has not established a prima facie case by having the investigator merely restate the charges set forth in the citation. Respondent's motion is granted as to this item.
Item 3. Factory Fire Extinguishers Having a Gross Weight Not Exceeding Forty Pounds Were Installed So That The Top of The Extinguishers Were More Than Five Feet Above The Floor
29 CFR 1910.157(a)(6) provides:
"Height of mounting. Extinguishers having a gross weight not exceeding 40 pounds shall be installed so that the top of the extinguisher is not more than 5 feet above the floor. Extinguishers having a gross weight greater than 40 pounds [*22] (except wheeled types) shall be so installed that the top of the extinguisher is not more than 3 1/2 feet above the floor."
The Secretary's evidence consisted of the testimony of the compliance officer as follows (TR I, pgs. 17, 18):
"Q Would you describe what you observed with reference to that item?
"A As I recall, all the fire extinguishers were in excess of the sixty inches from the floor to the top of the extinguishers. The fire extinguishers did not exceed forty pounds. And there were -- I believe there is one exception to that, that that particular extinguisher was not in excess of the sixty inches. The reason, though the Standard's doesn't state, as to why they had this specified height is that in cases of emergency --
"Q Did you measure the height?
"A Yes, sir.
"Q What was the measurement?
"A As I recall, it was sixty-nine and a half inches.
"Q And about how many extinguishers were so mounted?
"A Approximately five.
"Q Were any of the extinguishers mounted on wheels?
"A Not that I recall."
On cross examination the witness admitted that he took no photographs of the fire extinguishers. The record is silent as to the type, model or make of the fire extinguishers [*23] and there are no facts of record as to their weight or that they did not exceed 40 pounds. Again the investigator has merely restated the change set forth in the citation. Respondent's motion is granted as to this item.
Item 4. A Portable Fire Extinguisher in the Factory Storage Area Was Not Readily Accessible and Immediately Available in The Event of Fire as the Access to It Was Obstructed
29 CFR 1910.157(a)(2) provides:
"Location. Extinguishers shall be conspicuously located where they will be readily accessible and immediately available in the event of fire. They shall be located along normal paths of travel."
The Secretary's evidence consisted of the testimony of the compliance officer as follows (TR I, pg. 21):
"Q What obstructed the fire extinguishess, if anything?
"A As I recall, the obstruction was a cart and/or brooms. There was a cart that had been left there temporarily. It wasn't a permanent type of situation. I mean it was something that was not bolted to the floor. It was a temporary obstruction. Whether it was a cart or a broom or a cart, I don't recall specifically. But it was obstructed."
On cross examination, the witness testified that [*24] what ever the obstruction, the object could be moved within an "infinitesimal time." Certainly, it can not be concluded from the record that the fire extinguisher was not "readily accessible and immediately available in the event of fire." Respondent's motion is granted as to this item.
Item 5. Material (90-100 Cartons) Weighing 70 Pounds Each Were Creating a Hazard as They Were Not Stable and Secure Against Sliding Onto Adjacent Male Employee as Easemaker
29 CFR 1910.176(b) provides:
"Secure storage. Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked blocked, interlocked and limited in heights so that they are stable and secure against sliding or collapse."
The Secretary's evidence consisted of the testimony of the compliance officer. He made no measurements and based his conclusions on estimates.
On cross examination he testified as follows (TR II, pgs. 50, 51):
"Q Did you weigh any of the bundles to determine what the weight was?
"A No, sir. I estimated that. The conversation with -- let me restate that.
"I asked Mr. Attaway, or I looked at the bundle.
"Q You don't recall weighing them?
"A I don't [*25] recall weighing them, no.
"Q I believe you also previously testified on direct, Mr. . . ., that you didn't recall seeing anything to prevent this tier from sliding. Is that correct?
"A There was no device, obstacle, means by which they were tiered or stacked or trussed, truss-locked.
"As I recall, they were leaning and there was a man right beside them. This is truly the hazard, his proximity.
"Q Did you lift up any of these bundles to determine whether there was any locking device or slipping device in between the bundles?
Again, the record consists of conclusions without supporting facts or details and the respondent's motion must be granted.
Item 6. The Portable Dockboard (Bridge Plate) at the Loading Dock Was Not Being Secured in Position, Either by Being Anchored or by Being Equipped With Devices to Prevent It From Slipping
29 CFR 1910.30(a)(2) provides:
"Portable dockboards shall be secured in position, either by being anchored or equipped with devices which will prevent their slipping."
The Secretary's evidence as to this item consisted of the testimony of the compliance officer as follows (TR I, pg. 26, 29):
"Q Can you describe those circumstances [*26] as you observed them?
"A As I recall, this loading dock was on the north side, and it was a flat steel plate, and which it didn't have handholds nor restraining device. . . ."
* * *
"A Usually the newer ones are made of light metal, for example, magnesium, or aluminum, aluminum more likely, and they are built with handholds and devices under the underside to restrain it from sliding. It's not uncommon to find just a flat steel plate.
"Q Was that what you found in this case?
"A I believe that was a fair description of it.
"Q Did you observe anything to anchor it or secure it?
"A No, I didn't. I don't recall seeing anything used to anchor it."
On cross examination the witness testified (TR II, 51-53):
"Q Would you tell me exactly what kind of metal that dock plate was made out of?
"A I would say steel.
"Q Did you weight it?
"A No, sir.
"Q Approximately how much did that steel plate weigh?
"A I have no idea.
"Q No idea? Aren't there different kinds of dock plates, some that are made out of light alloy, light aluminum alloy, and others that are heavy?
"A Yes, sir.
"Q Heavy roll steel? Isn't it also true that the weight of the dock plate would affect whether or not [*27] it would slip or slide?
"A In part.
"Q This being a steel plate, it was rather heavy; was it not?
"A I can't testify by what you mean 'rather heavy.' I don't know what you mean.
"Q Well, hundred to a hundred and fifty pounds heavy?
"A I can't say specifically. One, I didn't weight it. Two, it would be a guess.
"Q Be a guess? Didn't you also guess that it might slip or slide?
"A No. There was no guess to it. It did not have a device to prevent it from sliding back and forth and it did not have handholds or other effective means with which to move it.
"Q This goes to another citation, the handholds, I believe, but did you test it out yourself? Did you run a towmotor up on it to see if it would slip or slide? Did you observe any employee using it to see if it would slip or slide?
"A No, sir. I did not test it by using a towmotor to run over the bridge plate because I'm not permitted to do that during the inspection.
"Q Did you observe any of the employees using the dock plate while you were there?
"A No, sir."
A review of the foregoing record indicates that the Secretary has failed to prove the alleged violation. He not only has failed to prove that the dockboard [*28] was portable, he has failed to prove employee exposure. These weaknesses together with the lack of supporting facts leaves no alternative but to grant respondent's motion.
Item 7. Portable Dockboard (Bridge Plate) at the Loading Dock Was Not Provided Handholds, or Other Effective Means to Provide Safe Handling
29 CFR 1910.30(a)(4) provides:
"Handholds or other effective means shall be provided on portable dockboards to prevent safe handling."
The Secretary's evidence consisted of the testimony of the compliance officer as follows (TR I, pg. 30):
"Q All right, well, describe the conditions referred to, then, in Item 7 having to do with this kind of handholds or the absence of handholds?
"A Well, as I recall, this particular bridge plate or dock plate did not have any handholds, a means whereby a man could pick it up safely.
"Q And what is the hazard involved?
"A And the hazard there is that unless it's elevated until he gets his hand under it, he could hurt his hands. That is the problem.
"Q Now, you say, 'Unless it's elevated,' was this one elevated or not?
"A This I don't recall, it may have been flat on the groun. It may have been standing up against the wall. [*29] This I don't recall. I am saying it didn't have a handhold or restraining device."
On cross examination the witness testified as set forth above under Item 7. For the reasons stated there, respondent's motion is granted as to Item 7.
Item 8. Four Switch Panels (Disconnecting Means Required by This Code Promoters and Appliances, and for Each Service, Feed or a Branch Circuit at the Point Where It Originates), Are the Interior of the Factory West Wall, Were Not Legibly Marked to Indicate Their Purposes
The Secretary's evidence as to this item consisted of the testimony of the compliance officer as follows (TR I, pg. 31):
"Q Now, would you describe, then, these four switch panels that you observed?
"A As I remember, this was on the north end of the building, and four electrical switches, and is I recall, their purpose wasn't self-explanatory by their location, and as to the purpose. Nor were they marked or identified to say what they were.
"Q What is required by the Standard for such switches?
"A Well, such switches are to be -- if by location and purpose they are self-explanatory, they need not be marked. In this particular case, as I recall, they weren't marked, [*30] nor was their location purpose self-explanatory.
"Q Do I understand you correctly that there was no identification then provided to show the switch purposes?
"A That is correct."
On cross examination the witness admitted (TR II, pg. 60):
"Q I see. But someone familiar with the operation of the plant may know what those switches are for, even though you, as a Standard, would not; is that correct?
"A This revolves around the word 'may.' The Standard says they shall be marked legibly if their purpose and function is not self-explanatory by what it is or where it is, so forth.
"Q But you have to judge that on the basis of what you see?
"A Right. . . ."
There are no facts to support the conclusions of the witness. The location of the switches is not stated nor even the purpose for the switches. They could have been disconnected switches serving no useful purpose. Moreover, without supporting facts there is no way to determine if the switches were self-explanatory as to purpose or location. Respondent's motion is granted.
Item 9. No Guards Were Provided to the Rotating Parts and Three Air Compressors in the Boiler Room
29 CFR 1910.212(a)(1) provides:
"Types of guarding. [*31] One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc."
The Secretary's evidence consisted of the testimony of the complance officer as follows (TR I, pg. 32, 33):
"Q Would you describe those conditions for us?
"A Well, I stated the compressors, air compressors were in the boiler room, and the belts and pulleys were not guarded by location, distance, a vertical barrier, enclosure, or whatever.
"Q What type of guards could be used on this air compressor or the type you observed?
"A It could be a vertical barrier or an enclosure.
"Q Were there any guards provided of any kind on the three air compressors?
"A Not that I recall."
On cross examination the witness testified (TR II, pg. 62-63):
"Q Wasn't it over towards a wall, near a wall?
"A I think so.
"Q Do you recall where the pulleys and belts were located on that air compressor?
"A Well, they were on the sides, on a side as opposed [*32] to the end.
"Q Weren't they on the side against the wall, facing the wall?
"A Could have been.
"Q So that when an employee or other pedestrian would walk in the boiler room, they would not be directly exposed to either the belts or the --
"A When they walked into the room, you would not be directly --
"Q Or even walk by?
"A -- exposed, that's true.
"Q And how many compressors were in the boiler room?
"Q Weren't they all up near the walls with the belts and pulleys facing towards the wall on the wall side?
"A Yes, I think so."
The foregoing conclusions of the witness indicate that the air compressors were protected by location and that there was no employee exposure. Respondent's motion is granted as to this issue.
Item 11. The Craftsman Drill Press Which Was Designed for a Fixed Location Was Not Securely Anchored to Prevent Walking or Moving. Location at Its Maintenance Station
29 CFR 1910.212(b) provides:
"Anchoring fixed machinery. Machines designed for a fixed location shall be securely anchored to prevent walking or moving."
The Secretary's evidence of this item consisted of the testimony of the compliance officer as follows (TR I, pg. 37): [*33]
"Q Did you observe the Drill Press?
"A Yes, sir.
"Q Would you describe the circumstances in which you observed it?
"A It's a Drill Press which has at least four holes in the base to be secured to a floor or to a platform in the event of shipping. There is a table on which items are fastened when using the drill machine to drill whatever work you have to do. The motor pulleys are at the top. It's the type of Drill Press, if you were to place your hand on the guard at the front and push, it moves. And the problem here is that this Drill Press is subject to movement, and particularly when objects are bigger than the table designed for, and the hazard is that it could topple over."
On cross examination the witness testified (TR II, pg. 65, 67):
"Q You did not observe or use this particular Drill Press --
"A No, sir.
"Q -- to determine whether it would walk or move?
"A No, sir. I'm not permitted to."
* * *
"Q But you didn't observe anyone using this particular Craftsman?
"A No, sir."
There are no facts to support the conclusions of the witness. There is no showing that the press was used, the type of materials, if any, that were involved, or the function of the machine. [*34] Above all, there was no showing of employee exposure. Respondent's motion is granted as to this item.
Item 12. No Safety Guard Covered the Spindle End Nut and Flange Projections of the Abrasive Wheel of a Bench Grinder In the Maintenance Section
29 CFR 1910.215(a)(2) provides:
"Guard design. The safety guard shall cover the spindle end, nut, and flange projections. The safety guard shall be mounted so as to maintain proper alignment with the wheel, and the strength of the fastenings shall exceed the strength of the guard, except: . . . ."
The Secretary's evidence consisted of the testimony of the compliance officer as follows (TR I, pg. 38-40):
"Q Did you observe the bench grinder during the inspection?
"A Yes, sir.
"Q Where was it located?
"A It was located in what they call the maintenance shop, which is towards the north end, possibly near the center, but they called this little enclosure or shop the maintenance shop.
"Q Describe the conditions under which you observed the grinder.
"A As I recall, the revolving nut and the flange and the arbor were not covered by a guard. And this grinder did have abrasive wheels.
"Q Now, describe the grinder in a little [*35] more detail, what is the spindle end, for example?
"A Well, we will start with the abrasive wheel. As you are facing the grinder as if you were going to use it, there is an abrasive wheel to the left and right. And to the outside of the abrasive wheel, there would be a flange and a washer and a nut, and then the spindle projecting. And that is the hazard, when it revolves.
"And if the abrasive wheel were to fragment or break, there is no protection for the operator as there was no guard on the spindle nut washer and flange end.
"Q Would the spindle be the same as the shaft or would it be different?
"Q Was any type of guard present on the grinder?
"A There was no guard over the exposed spindle nut washer flange.
"Q What kind of work ws performed on this machine?
"A Well, I would call it grinding of small metal parts or bits. It wasn't a large grinder, and it's a common grinder, many of them in the country, and they are suitable for that particular maintenance shop activity.
"Q Now, would the type of work you have described then provide a protection, in and of itself any protection for the operator?
"A I don't think so.
"Q And what is the hazard involved there? [*36]
"A The hazard is that the, one, the spindle, the nut and washer and the flange were not enclosed or covered with a case, and it's possible one could get caught in the revolving parts. I think the hazard is greater in the event that the abrasive wheel were to break. . . ."
There are no facts as to the description, type, model, make or function of the equipment. There are no details as to employee operation or possibility of employee exposure or that an employee could be caught in the spindle end. The conclusions of the witness without supporting facts are insufficient to establish a prima facie case.
Item 13. The Bench Grinder in the Maintenance Section Did Not Have Work Rests to Support the Work
29 CFR 1910.215(a)(4) provides:
"Work rests. On offhand grinding machines, work rests shall be used to support the work. They shall be of rigid construction and designed to be adjustable to compensate for wheel wear. Work rests shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage. The work rest shall be securely clamped after each [*37] adjustment. The adjustment shall not be made with the wheel in motion."
The evidence of the Secretary consisted of the testimony of the compliance officer as follows (TR I, pg. 41):
"Q Did the grinder have work rests on it when you observed it?
"A Not as I recall.
"Q How does the absence of work rests affect the safety of the operation of the machine?
"A Well, the work rests provide a rest for the work which you are grinding; for example, a drill bit. In the absence of a work rest, you can come, your hand can come in contact with the abrasive wheel, because in most cases that drill bit must be held steadily. And if the drill bit, for example, were to dig in or the operator distracted, look to the side, and his hand would move, his hand or finger would touch the revolving abrasive wheel and he would be injured."
This was the same grinder involved as Item 12. For the reasons stated as to Item 12, respondent's motion is granted as to Item 13.
Item 14. The Point of Operation of the Machines Listed Exposed Employees to Injury as the Guarding Device was Missing Or It was Inadequate to Prevent the Operator From Having any Part of Her Body in the Danger Zone During the Operating [*38] Cycle
29 CFR 1910.212(a)(3) provides:
"Point of operation guarding. (i) Point of operation is the area on a machine where work is actually performed upon the material being processed.
"(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle."
The evidence of the Secretary consisted of the testimony of the compliance officer as follows (TR I, pgs. 42, 43):
"Q Did you observe the machines that are identified in Item 14 of the complaint as originally listed on the citation, including Page 3?
"A Yes, sir.
"Q Where were they located?
"A They were located in what I call the factory portion in which the women, the central portion of the factory at their work place.
"Q What type of machines are these? I don't mean the make of them, what is their function?
"A Well, generally they are sewing machines or machines related to that task in the preparation [*39] or fabrication of slacks.
"Q Now, the citation, among other things, listed the number of such machines that you observed. Are the numbers accurate, an accurate recording of what you observed?
"A I believe so."
* * *
"Q Let me ask you again, Mr. . . ., were they or were they not guarded?
"A They weren't guarded because in my observation of them with the head mechanic, you could get your finger under the -- in the case of the sewing machine, under the point of the needle.
"Q All right. Now, did you observe employees operating these machines?
As the respondent argues, the revelation may be so ambiguous, confusing and incomplete that it is impossible and unfair to enforce. However, it is not necessary to decide as it is concluded that the foregoing evidence fails to establish a prima facie case as the investigator is merely restating the charges set forth in the citation which are conclusionary and not based upon specific facts necessary from which such conclusions may be drawn. This issue is decided for respondent.
Wherefore, it is ORDERED:
1. Respondent's motion to dismiss due to the refusal of the Secretary to turn over the compliance officer's notes [*40] revealing the name of an employee contacted during the investigation is denied.
2. Respondent's motion to dismiss for failure to issue the citation with "reasonable promptness" as specified in section 9(a) of the Act is denied.
3. Respondent's motion for directed judgment for failure of the Secretary to carry his burden of proof is granted.
4. The citation issued on December 4, 1973, is vacated and no penalties are assessed.
Dated this 21st day of April 1975.
JOHN J. LARKIN, Judge, OSAHRC