OSHRC Docket No. 627
Occupational Safety and Health Review Commission
May 25, 1973
Before MORAN, Chairman; VAN NAMEE, Commissioner
MORAN, CHAIRMAN: This case is here upon the direction for review of a decision rendered July 6, 1972, by Review Commission Judge Leon J. Moran which held that respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590) by its failure to comply with ten various occupational safety and health standards. One penalty of $45.00 was assessed.
The Commission's review of the entire record in this case reveals that there was no prejudicial error in that decision. Accordingly, it is hereby affirmed in all respects.
[The Judge's decision referred to herein follows]
MORAN, JUDGE, OSAHRC: 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 hereinafter as the "Act," which was initiated by a notice of contest filed by Respondent, the Clavier Corporation, seeking review of the action of the Secretary of Labor, the Petitioner, in issuing a Citation and notification of proposed penalty to Respondent on February 28, 1972, pursuant to Section 9(a) of the Act.
The Citation was for twelve alleged other tha serious violations and penalties were proposed for only items 1, 9, 11 and 12. Respondent does not contest the alleged violations set forth as items 2, 3, 7, 8 and 10 of the Citation (Respondent's letter of May 3, 1972).
Pursuant to notice a hearing was held in New York City on June 8, 1972. No affected emloyees or authorized employee representative participated although given the opportunity to do so. The parties did not file proposed Findings of Fact, Conclusions of Law or Memoranda.
The issues to be determined are whether the Clavier Corporation violated the standards specified in the Citation and complaint and if so violated whether the proposed penalties are reasonable and proper.
Section 5(a)(2) of the Act provides that each employer shall comply with Occupational Safety and Health Standards promulgated under the Act. Pursuant to Section 6(a) of the Act the Secretary of Labor has promulgated such standards. Under Section 17(c) provision is made that penalties may be assessed up to $1,000.00 for any other than serious violation. The Commission pursuant to Section 17(j) has the authority to assess all civil penalties 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.
FINDINGS OF FACT
There is substantial evidence in the record to support the following findings:
1. The Clavier Corporation is incorporated in the State of New York and engaged in business in that State maintaining an office and place of business at 743 Park Avenue, Huntington, New York, being engaged in research, development and manufacture of electrical equipment with shipments for its first year of operation being approximately two million dollars.
2. The Respondent corporation was and is engaged in business affecting commerce within the meaning of Sections (3)(3) and (5) of the Act.
3. As a result of an inspection by an authorized representative of the Petitioner, Respondent corporation was issued a Citation on February 28, 1972, pursuant to Section 9(a) of the Act.
4. The evidence does not establish such mitigating circumstances as to warrant vacating items 1, 2, and 9, of the Citation as contended by the Respondent which admits these violations.
5. The record establishes that there was not an adequate first aid kit on the Respondent's premises as charged in item 6 of the Citation but the evidence does not establish that the workplace was not in near proximity to a hospital.
6. The record establishes that the cord and plug-connected electrical equipment charged as an alleged violation in item 12 were not grounded and were used by persons standing on cement floors which were covered with vinyl tile but does not establish they were used in damp or wet locations or by persons standing on the ground or on metal floors or inside tanks.
7. The Respondent does not contest items 2, 3, 7, 8 and 10 and it is therefore found as a fact that these violations as alleged are correct. n1
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n1 Respondent's letter of May 3, 1972.
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The Respondent, Clavier Corporation, is an electronic assembly and design operation that uses light machinery. The Citation issued to the Respondent by the Secretary of Labor on February 28, 1972, consists of twelve items alleging other than serious violations of standards promulgated under the Occupational Safety and Health Act of 1970. The Respondent does not contest items 2, 3, 7, 8, and 10 of the Citation.
As to the alleged violation charged in item 1 of the Citation, the Respondent contests the penalty of $45.00 and states (letter of March 31, 1972) that the absence of safety caps was due to the negligence of the supplier and that only a warning should have been issued. The Respondent admits that there was an absence of safety caps on the compressed gas cylinders and the Respondent does not question the method of computation of the proposed penalty. The mitigating circumstance advanced by the Respondent does not warrant vacating this Citation and proposed penalty. Although the Respondent did not contest item 2 charging a violation for a blocked exit door it was contended that there was a secondary exit ten feet away but this is no alleviating circumstance.
The Respondent contests item 4 of the Citation which alleges that a sprocket and chain drive was not guarded. It contests "the judgment of the facts" and asserts that the sprocket and chain drive cited does not present a safety hazard because it is relatively unaccessible; operates at a very low speed; is driven by a very low powered motor -- the equivalent of a large phonograph turntable; and is operated intermittently by specially trained and authorized technicians. It was a sprocket and chain drive of a AN/URM-81 calibrator in the calibration laboratory. In pertinent part 29 C.F.R. 1910.219(f)(3) provides that all sprocket wheels and chains shall be enclosed unless they are more than seven feet above the floor or platform. It is not contended by the Respondent that the sprocket and chain drive was enclosed or more than seven feet above the floor. It was therefore a violation albeit a technical one considering the description by the Respondent. The low level of the gravity of the violation was taken into account, however, since the Secretary proposed no penalty and none should be assessed.
Item 5 of the Citation alleged a violation for failure of an amp terminal shaker to have a point of operation guard and an ARTDS wire stripper had no guard for the operating mechanism including the stripping unit lever arm. The Respondent contests this item contending the terminal shaker is of a type which has been an industry standard for years and does not present a significant risk; and further that the machine involved was the property of its manufacturer which was leased by one of Respondent's customers for use in a contract for them. Respondent also urges that the wire stripper was complete as received from the manufacturer; that Respondent was arranging for the supply of guarding devices by the manufacturer; and the machine was also a long accepted type that operated at moderate speeds and has not been involved in any accidents. 29 C.F.R. 1910.212(a)(1) requires that --
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.
The contentions of the Respondent do not present ameliorating factors which would relieve it of the responsibility of complying with the standard requiring guarding on the machines. There was no penalty proposed for this violation and the low level of gravity of the violation dictates that none should be assessed.
A violation of 29 C.F.R. 1910.151(b) is alleged in item 6 which charges there was not an "approved first aid kit, and trained first aid personnel on premises." This standard provides:
In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available.
The Respondent admits in part the alleged Citation in that there was not "an adequate first aid kit on hand." Respondent, however, urges that the workplace is located within five minutes' drive on a major road to the largest hospital in the area and a large number of doctors' offices. Petitioner contends that the hospital was not within "near proximity" to the hospital. The Secretary's compliance officer did not personally check the distance to the hospital, but relied on what persons at the worksite estimated the distance to be. The Respondent's vice president testified he estimated the distance to the hospital as being about 1.7 miles. Whether the hospital was "in near proximity" to the worksite is a relative thing depending on the mileage, the road to the hospital and traffic conditions. The Petitioner has failed to establish facts sufficient to show that the hospital was not in near proximity to the workplace and may not rely on what someone told the compliance officer to establish the distance. The allegations that the Respondent did not have an approved first aid kit nor allegedly adequately trained personnel in first aid are applicable only if there was an absence of an infirmary, clinic or hospital in near proximity. This has not been proven by Petitioner. Therefore, item 6 of the Citation for which no penalty was proposed is vacated.
The Respondent as to item 9 states the Citation is correct "but since Clavier has procured and installed acceptable pressure-reducing nozzles with chip guards, it is felt the fine should be rescinded." Petitioner proposes a penalty of $35.00 for this alleged violation of 29 C.F.R. 1910.242(b). The low level of gravity of the violation is reflected in the penalty proposed. This Commission in J.E. Chilton Millwork & Lumber Company, Inc., OSHRC Docket 123, held that the principal purpose of the Act is to obtain compliance with its requirements in order to insure a safe and healthful workplace and that relatively minor monetary penalties do little to effectuate this objective. So, too, in this case the proposed penalty as to item 9 adds nothing to the objectives of the Act and no penalty should be assessed. The same conclusion is reached with respect to item 11 which alleges a violation of 29 C.F.R. 1910.106(e)(2)(ii) for not having flammable material, solder flux (Kestor) in approved metal containers rather than one gallon glass jugs and a proposed penalty of $35.00 was recommended. The Respondent admitted the violation and immediately complied with the standard but urges the penalty be rescinded. No penalty should be assessed.
Item 12 of the Citation alleges a violation of 29 C.F.R. 1910.314(d)(4)(iii)(d) which provides for grounding of:
Cord and plug connected applicances used in damp or wet locations, or by persons standing on the ground or on metal floors or working inside of metal tanks.
The Citation alleges that certain equipment such as bench grinder, disc sander, belt sander, etc., were not so grounded. The Respondent contests this alleged violation contending that nowhere in the plant are cord and plug-connected appliances used in damp or wet locations, or by persons standing on the ground or on metal floors or working inside metal tanks. The plant, the record shows has a cement floor, covered with vinyl tile. There is little merit to Petitioner's contention that these appliances were used in a plant that because of its location on Long Island, New York, can be considered used in a "damp or wet location" because of the atmospheric conditions and soil composition of the area. The compliance officer agrees that the floor of the plant was cement but did not remember whether it was covered with tile. This witness was also of the opinion that "standing on the ground" included standing on cement. The standard is explicit with respect to what a person should not be standing on that is the ground or metal floors. It does not say cement, wooden, or covered floors. Ground is used in its ordinary sense meaning ground as a surface. The Petitioner has failed to prove a violation of this standard and the alleged violation of item 12 for which a penalty of $45.00 was proposed is vacated.
CONCLUSIONS OF LAW
1. The Respondent, at all times pertinent to the issues herein involved, was and still is an employer engaged in business affecting commerce within the meaning of the Occupational Safety and Health Act of 1970 and the regulations promulgated pursuant thereto.
2. The Commission has jurisdiction of the parties and of the subject matter herein.
3. The Respondent was in violation of the standards listed in items 2, 3, 7, 8 and 10 of the Citation which are not contested by the Respondent.
4. The Respondent was in violation of the standard at 29 C.F.R. 1910.101(b) for the reason that compressed gas cylinders were not secured, protective caps not being installed (item 1 of Citation).
5. The Respondent was in violation of the standard at 29 C.F.R. 1910.219(f)(3), there being a sprocket and chain drive not guarded (item 4 of the Citation).
6. The Respondent was in violation of the standard at 29 C.F.R. 1910.212(a) since an amp terminal shaker and an ARTDS wire stripper did not have guarding (item 5 of the Citation) and the abatement date was reasonable.
7. The alleged violation of the standard at 29 C.F.R. 1910.151(b), item 6 of the Citation, is vacated.
8. The Respondent was in violation of the standard at 29 C.F.R. 1910.242(b) in that no chip guarding was provided for air nozzles used for cleaning with pressure in excess of 30 p.s.i. (item 9 of Citation).
9. The Respondent was in violation of the standard at 29 C.F.R. 1910.106(e)(2)(iii) for not having flamable material in approved metal containers (item 11 of the Citation).
10. The alleged violation of the standard at 29 C.F.R. 1910.314(d)(4)(iii)(d) item 12 of the Citation, is vacated.
11. The standards violated by the Respondent are other than serious violations.
12. The Respondent is assessed no penalties for the violations other than for violation of the standard at 29 C.F.R. 1910.101(b), item 1 of the Citation.
13. The proposed penalty asserted against the Respondent for violation of the standard at 29 C.F.R. 1910.101(b) is proper and reasonable.
It is ORDERED that:
1. The Citation issued for violation of 29 C.F.R. 1910.151(b) be, and the same is, hereby vacated.
2. The Citation and notice of proposed penalty issued for violation of 29 C.F.R. 314(d)(4)(iii)(d) be, and the same is, hereby vacated.
3. The Citation and notice of proposed penalty of $45.00 issued for violation of 29 C.F.R. 1910.101(b) (item 1) be and the same is hereby affirmed.
4. The Citation as to items 2, 3, 4, 5, 7, 8, 9, 10 and 11 be and the same is hereby affirmed but no penalties are assessed for said violations.