HYDROSWIFT CORPORATION

OSHRC Docket No. 591

Occupational Safety and Health Review Commission

October 27, 1972

  [*1]  

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

  BURCH, COMMISSIONER: On September 26, 1972, Judge Alan M. Wienman issued his recommended decision and order in this case affirming the Secretary's citation for 12 other than serious violations and the penalties proposed for these violations set forth at items 2, 4, 5 and 8 thereof totalling $120.

Pursuant to the authority vested in Members of the Commission by virtue of section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), I am herewith directing that the Judge's order be reviewed by the Commission.

The Commission has reviewed the rulings of the Judge and finds no prejudicial error therein.   The Commission has also reviewed the entire record in this case and has considered the briefs, arguments and exceptions of the parties.   We adopt the Judge's recommended decision and order to the extent that it is consistent with the following.

On February 3, 1972, the respondent was issued a citation for 12 non-serious violations of Occupational Safety and Health standards promulgated by the Secretary of Labor pursuant to section [*2]   6 of the Act.   Four of these items had proposed penalties in the total amount of $120.   It is only the appropriateness of these penalties that respondent contests and which is the sole issue by virtue of a stipulation agreement between the   parties.   The Judge considered the pleadings and the stipulation without further hearing and concluded that the total proposed penalty for the aforesaid violations was appropriate under the circumstances.

We note with approval Judge Wienman's application of the principles enunciated by this Commission in Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc.,   set out in Secretary of Labor v. National Realty and Construction Company,

In Secretary of Labor v. General Meat Company,   We did assess monetary penalties in General Meat Company, supra, for certain nonserious violations having a higher level of gravity than those for which we did not assess such penalties.   The instant case concerns four non-serious violations that possess the level of gravity we believe mandates the assessment of monetary penalties; failure to guard stairway railings and opensided floors, two fire hazard violations,   and nine separate violations in one item relating to failure to ground power tools.   None of these violations have a low level of gravity, a situation different from J.E. Chilton Millwork and Lumber Company, supra, where an ungrounded coffee pot was representative of low hazard violations.

We hold [*4]   that the assessment of small monetary penalties for non-serious violations having the level of gravity of the violations found in this case effectuates the purpose of this Act.   Penalties of this caliber serve to remind all employers that their primary responsibility under the Act is adherence to its protective mechanisms.   Failure to impose penalties relating to violations with higher levels of gravity serves only to restrain the Act's effective operation and hinder its function to reduce the hazards of the workplace for all employees.

We concluded in J.E. Chilton Millwork and Lumber Company, Supra, with reference to minor monetary penalties that, "We, therefore, will look carefully at cases involving such proposed penalties." We stress that this caution in the face of seemingly minor violations reflects a strong intent on our part to see that violations of this type are not encouraged by the failure to assess penalties when penalties are proper under the circumstances.

Accordingly, it is ORDERED that the Judge's recommended decision and order be adopted in full with all penalties affirmed for the reasons so stated.

[The Judge's decision referred to herein follows]

WEINMAN,   [*5]   JUDGE, OSAHRC: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq. ) to review certain proposed   assessments of penalties with respect to Items 2, 4, 5 and 8 of a Citation issued February 3, 1972, by the Secretary of Labor against the Respondent, Hydroswift Corporation.

The Citation alleged that the Respondent violated at least 12 separate occupational safety standards at its workplace at 3045 West 2100 South, Salt Lake City, Utah, but penalties in the sum of $30.00 each were proposed only for citation items referenced to the following safety standards:

(2) 29 CFR 1910.23(c) and (d) which require that opensided floors or platforms four or more feet above adjacent or ground level shall be guarded by standard railings on all open sides and that every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails;

(4) 29 CFR 1910.106(e) which requires that flammable or combustible liquids shall be stored in tanks or closed containers and limits the quantity of Class IB and Class II liquid that may be located outside of an inside storage room or storage cabinet in   [*6]   a building or in any one fire area of a building to not more than 120 gallons in containers;

(5) 29 CFR 1910.107(g) which requires that all spraying areas shall be kept as free from the accumulation of deposits of combustible residues as practical, with cleaning conducted daily if necessary; and 29 CFR 1910.107(f) which requires that sprinklers protecting spraying areas shall be kept as free from deposits as practical by daily cleaning if necessary; and

(8) 29 CFR 1910.314(d) which requires that exposed, noncurrent carrying metal parts of fixed equipment, which are liable to become energized, shall be grounded.

On February 28, 1972, the Respondent, through its   Attorney, Paul N. Cotro-Manes, gave notice that it was contesting the proposed penalties, stating:

Please be advised that Hydroswift deems the proposed penalty unjust and not within the intent of the statutory law.   The alleged violations are being corrected and it is not these matters with which we are concerned.

The Secretary's Complaint was filed with the Commission March 9, 1972, and the Respondent's Answer on March 17, 1972.

On July 24, 1972, the parties executed an agreement wherein they stipulated "that [*7]   the sole matter and dispute in this action concerns the amount of penalties proposed and that this dispute may be resolved by the Review Commission Judge on the basis of the pleadings and this stipulation without further hearing."

Subsequent to receipt of the aforesaid stipulation agreement, the undersigned Judge, to whom the cause had been assigned by an Order of the Commission dated April 17, 1972, reviewed the pleadings and the other documents filed in the case, including the Citation and Notification of Proposed Penalty, the Notice of Contest, Complaint, Answer, Stipulation of the Parties, and Complainant's Brief in Support of Claimed Penalties.   (Respondent filed no brief.) The aforesaid documents were considered as the record in the case, and this Decision is based upon their contents.

THE ISSUES

No jurisdictional questions are in issue, the stipulations reciting facts sufficient to establish the Respondent is subject to the Act, and that the Commission has jurisdiction of the parties and the subject matter.

The stipulation agreement reduces the issues for decision to a determination of whether the penalties proposed for the safety standard violations set forth in    [*8]   Items 2, 4, 5 and 8 of the Citation issued February 3, 1972, are appropriate and should be affirmed or whether the proposed penalties are excessive and should be modified or vacated.

DISCUSSION

Although the Respondent submitted no brief in support of its contention that the proposed penalties in the instant case are "excessive and beyond the intent of Congress", authority exists for vacating minor monetary penalties when it is found that such penalties do little to effectuate the purposes of the Act, Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc.,   In that case, the Commission determined that penalties should not be assessed for non-serious violations in view of the employer's excellent safety record in a high hazard industry, its immediate attention to abatement, and the low level of gravity of the particular violations charged.

In the instant case, no facts in the record reflect adversely upon the Respondent's safety record or its abatement efforts, and our attention is directed to a determination of the level of gravity of the four violation items in question.   In determining the gravity of a violation, several elements must [*9]   be considered: (1) The number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against the injury, if any; and (4) the degree of probability of occurrence of an injury.   Secretary of Labor v. National Realty and Construction Company,

The stipulation agreement supplies data with respect to certain of these elements.   It is indicated that Respondent employs approximately 39 persons at its   Salt Lake City establishment and that approximately 28 of these employees are affected by one or more of the four citation items for which penalties are proposed.   No facts are set forth with respect to the duration of the exposure to the various hazards, but we are informed that the Company made foot, eye and face protection equipment available to its employees and had an arrangement with a private physician who serves as the Company doctor.

A review of the hazards created by the safety violations in the instant case reveals a marked contrast with the violations for which penalties were reduced to zero in the J. E. Chilton Millwork and Lumber Company case.   Representative of the low hazard violations [*10]   in the latter case were such items as failure to have a person trained to render first aid; disorderly storerooms and restrooms; no adequate space for employees to eat lunch; failure to inspect fire extinguishers; failure to ground refrigerators, hotplates, coffeepots, softdrink dispensers, etc.; and use of compressed air for cleaning purposes at pressures in excess of 30 PSI.

The Citation issued to Respondent February 3, 1972, contained a number of items comparable to the Chilton Millwork listing.   Item 1, for example, described 27 alleged violations of safety standards with respect to toilet facilities, and the OSHA Area Director proposed no penalty with respect to this item.

Item 3 alleged a failure to inspect or service a fire extinguisher within one year, and no penalty was proposed for this item.

Item 6 alleged an absence of filter in an air supply line for a respirator worn by a painter.   Again, no penalty was proposed.

Item 7 was charged that the water supply to a sprinkler system had a spray booth area subject to freezing;   that the manhole cover for water supply service pit was not in place; and that the water in the pit was deep enough to cover the control [*11]   valves and surface of the water was frozen.   No penalty was proposed with respect to this item.

Item 9 charged three separate violations of 29 CFR 1910.310: (1) An electrical junction at the motor for a Powermatic circular saw was hanging loose with the electrical connection exposed; (2) an access to an electrical control panel was severely obstructed by lumber and material stored on a floor; and (3) a connection to the cord of a bench mounted drill press was made by running two separate exposed conductors for short distance from the motor to the cord.   No penalties were proposed.

Item 10 of the Citation alleged two instances of exposed single wire conductors in the production building in violation of 29 CFR 1910.316(a), but no penalty was proposed.

Item 11 charged the violation of 29 CFR 1910.315(n) because of the absence of a cover from the electrical switchbox.   Again no penalty was proposed.

The final item in the Citation was alleged violation of 29 CFR 1904.3 because no OSHA Form 100 was being maintained in the entire plant for which no penalty was proposed.

It does appear that the OSHA Area Director has made a distinct effort to apply the principles enunciated by the Commission [*12]   in J.E. Chilton Millwork and Lumber Company case, and in those instances where a low level of gravity attends the violation, no penalties are proposed.   However, he has categorized the gravity of the violation in Items 2, 4, 5 and 8 in another manner.   The hazards attached to these violations equate with a higher degree of probability of occurrence   of an injury.   The failure to guard stairway railings and opensided floors thereby exposing 28 employees to falling risks is a matter of considerable concern and cannot be dismissed as a de minimus violation.   The undersigned Judge is similarly pursuaded that fire hazards attendant upon the violations set forth in Citation Items 4 and 5, cannot properly be classified as a "low level of gravity" nor can the nine separate violations relating to failure to ground power tools in Citation Item 8.

The methodology employed by the Department of Labor in proposing the penalties paid heed to the gravity of the violation in terms of its potential harm to Respondent's employees, the Respondent's good faith, the size of the business, and the Respondent's lack of history of prior violations.   In addition, the Respondent was given a 50% [*13]   credit for compliance with the abatement order.   A final adjusted penalty of $30.00 for each citation item strikes the undersigned Judge as modest, in view of the fact that the compliance officer listed multiple instances of violations in each item.   Had this case proceeded to an actual hearing with a full evidentiary record, it is not unlikely that the Judge might have given serious consideration to increasing the penalties.   Absent detailed testimony, it is sufficient to conclude that the record does sustain a finding that the proposed penalties are appropriate for the violation of safety standards as set forth in the Citation and should be affirmed.

FINDINS OF FACT

1.   Hydroswift Corporation, a corporation with a place of business at 3045 West 2100 South, Salt Lake City, Utah, on January 17, 1972, was engaged in manufacturing fiberglass boats.

  2.   Hydroswift Corporation, a corporation, on January 17, 1972, employed approximately 39 employees in its establishment in Salt Lake City, and approximately 28 of these employees were affected by one or more of the four items of the Citation for which penalties were proposed.

3.   On January 17, 1972, at Respondent's business [*14]   establishment, railings were not provided on stairs to the mezzanine at the laminating area; on portable wooden steps used to gain access to boat shells; and on stairs to the mezzanine at the assembly area, all in the production building, in violation of 29 CFR 1910.23(d) as set forth in Citation Item Number 2.

4.   On January 17, 1972, at Respondent's business establishment, railings were not provided on the open southwest sides of the mazzanine at the laminating area in the production building, in violation of 29 CFR 1910.23(c) as set forth in Citation Item Number 2.

5.   On January 17, 1972, in the Respondent's production building at the laminating area, four 55-gallon drums of Class IB liquids were stored in the open, on their sides on wooden racks with gravity flow outlets, and in addition a number of drums of Class II liquids were stored throughout this area, in violation of 29 CFR 1910.106(e) as set forth in Citation Item Number 4.

6.   On January 17, 1972 in the Respondent's production building at the laminating line and other places of resin application, there were open-top containers containing approximately one gallon of acetone, in violation of 29 CFR 1910.107(g) as set [*15]   forth in Citation Item Number 5.   In addition, at the gelcoat spray booth there were heavy accumulations of plastic residue on the plastic interior of the booth and on the interior surfaces of the exhaust duct baffle and enclosure in violation   of 29 CFR 1910.107(g) and at the gelcoat spray booth there was a heavy residue deposit on paper protectors protecting automatic sprinkler heads in violation of 29 CFR 1910.107(f), all of the foregoing set forth in Citation Item Number 5.

7.   On January 17, 1972, in the Respondent's production building, a number of electrical tools and appliances were found to be ungrounded, in violation of 29 CFR 1910.314(d) as set forth in Citation Item Number 8.

CONCLUSIONS OF LAW

1.   On January 17, 1972, Hydroswift Corporation, Respondent, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.   The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.

2.   Section 5(a)(2) of the Act (29 USC 654(a)(2)) imposed a duty on Respondent to comply with safety and health regulations [*16]   promulgated by the Secretary pursuant to Section 6(a)(2) of the Act.

3.   Respondent violated Section 5(a)(2) of the Act on January 17, 1972, by its non-compliance with certain Occupational Safety and Health regulations as charged by a Citation issued February 3, 1972, and further alleged in the Complaint filed herein March 9, 1972.

4.   The total proposed penalty for the aforesaid violations in the amount of $120.00 is appropriate giving due consideration to the size of the business of the employer, the gravity of the violation, the good faith of the employer, the employer's previous history, and its action to abate the conditions.

  ORDER

Based on the above findings of fact and conclusions of law, it is ORDERED that the Citation issued Respondent on February 3, 1972, is hereby affirmed and a penalty of $120.00 is hereby assessed for violations of the Occupational Safety and Health Act standards alleged in Items 2, 4, 5 and 8 of the aforesaid Citation.