UNITED PARCEL SERVICE, INC.

OSHRC Docket No. 6344

Occupational Safety and Health Review Commission

June 30, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

William Kloepfer, Assoc. Regional Solicitor

J. Mack Swigert, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A report of Administrative Law Judge Donald K. Duvall is before us for review pursuant to 29 U.S.C. 661(i). Judge Duvall recommended affirmance of a non-serious citation which among other things alleged that Respondent violated the Occupational Safety and Health Act of 1970 n1 by failing to comply with the occupational safety standard at 29 C.F.R. 1910.132(a) n2 in that it did not provide and require the use of safety foot protection. We adopt the Judge's report.

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n1 29 U.S.C. 651 et seq.

n2 29 C.F.R. 1910.132(a) provides,

(a) Application.

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[*2]

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Respondent argues that it is not required by 29 C.F.R. 1910.132(a) to provide and require the use of safety foot protection at its workplace. The facts of this case do not differ in any material respect from those of the freight loading dock cases wherein the Commission held and the courts agreed that 29 C.F.R. 1910.132(a) requires the use of safety toe protection. Arkansas-Best Freight System, Inc., 15 OSAHRC 663, BNA 2 OSHC 1620, CCH OSHD para. 19,326 (1975), aff'd. 529 F.2d 649 (8th Cir. 1976); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. July 18, 1974); McLean Trucking Co. v. O.S.H.R.C., 503 F.2d 8 (4th Cir. September 4, 1974). n3 We also conclude that the Judge properly disposed of the other issues before him. n4

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n3 These cases also dispose of Respondent's claim that 29 C.F.R. 1910.132(a) is unenforceably vague.

n4 Respondent also claimed that the citation did not meet the particularity requirements of section 9(a) and that it was not issued with reasonable promptness as required by the section. The Judge rejected both defenses. We agree, and would characterize them as frivolous in this case. The citation was very specific. The record demonstrates that both the compliance officer and area director were diligent in issuing the citation.

[*3]

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Accordingly, we adopt Judge Duvall's report as our decision. So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Contrary to my colleagues' assertion, the facts of this case do differ materially from the Courts of Appeal decisions cited in the majority decision. In each of those cases there was evidence of "recognition" of the need for a safety shoe program by the cited employer. That evidence was the principal factor in the ultimate disposition of those cases. In the case now before us, however, there is no such evidence. Consequently, the citation should be vacated for failure of the evidence to establish that respondent violated the Act as alleged.

Respondent employs approximately 67,000 "hourly employees" throughout the country. The case before us developed from an inspection of a distribution center operated by respondent at Rathmell Road in Columbus, Ohio. This facility has been in operation since October 1972 and contains a modern automated system of conveyors and mechanical rollers to move packages to and from delivery trucks. Approximately 150,000 packages are processed at this [*4] plant each day. The average package handled by respondent is approximately 9 to 11 pounds. The maximum weight for any package handled by respondent is 50 pounds.

There are approximately 660 employees at the Rathmell plant. Package handling is done principally by 325 employees who are classified as sorters, belters, loaders and unloaders. Respondent requires that they wear solid leather shoes, but does not require that safety shoes or protective toe guards be worn.

The inspection of the Rathmell plant which led to the citation at issue in this case was conducted by one of complainant's inspectors on January 2, 1974. He spent about one-half hour in the conveyor belt area observing the operation of the system. He then reviewed that plant's accident logs and those of a closed facility which had been used previously for similar purposes. Based on the report of foot and toe injuries in the logs and his observations of the Rathmell plant, he concluded that the conveyor system posed a hazard of foot and toe injuries. As a result, complainant caused a citation to issue to respondent which alleged a violation of 29 U.S.C. 654(a)(2) for failure to comply with the requirements of 29 [*5] C.F.R. 1910.132(a). The gravamen of this offense was respondent's alleged failure to provide or require the use of safety foot protection for the employees classified as sorters, belters, loaders and unloaders.

Section 1910.132(a) requires in pertinent part that protective equipment is to be required "whenever it is necessary by reason of hazards . . . encountered in a manner capable of causing injury . . . through . . . physical contact." n5 The thrust of complainant's argument is that the number and weight of packages which fall from the conveyor system creates an injury hazard within the meaning of the cited standard of sufficient severity to require the use of safety shoes as personal protective equipment to protect the feet of the employees specified in the citation. n6

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n5 See note 2 supra for full text of this standard.

n6 Complainant does not contend that section 1910.132(a) requires respondent to pay for protective shoes. Rather, complainant argues that this hazard obligates respondent to see to it that safety shoes are worn by its employees. This position is consistent with our holding in Secretary v. The Budd Co., 7 OSAHRC 160 (1974), aff'd, 513 F.2d 201 (3rd Cir. 1975).

[*6]

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Respondent does not contest the fact that packages fall from the conveyor and have caused injuries to heads, ribs, legs and other parts of the body as well as the feet and toes. Rather, respondent contends that because few toe injuries have occurred, the incidence of injuries has been insufficient to establish a violation as alleged or to alert it to the fact that the standard - which says nothing about protective footwear - required the use of the same.

The safety standard at issue in this case has been the subject of considerable litigation. The test for its enforcement is now clear. There must be proof that an employer had actual knowledge that a hazardous condition at a worksite requires the particular item of protective equipment mentioned in the citation (see the decisions cited in the foregoing majority opinion). In the absence of such proof, however, the appropriate test to determine whether there is noncompliance with section 1910.132(a) is whether a reasonably prudent man familiar with the circumstances of the industry would have protected against the hazard in the manner complainant suggests. [*7] Cape and Vineyard Division of New Bedford Gas v. OSAHRC, 512 F.2d 1148, 1152 (1st Cir. 1975). As the court stated in that case: "We would expect, most often, that reference to industry custom and practice will establish the standard of conduct." 512 F.2d at 1152. Reference to industry custom is necessary, the court reasoned, because the broad sweeping language of section 1910.132(a) provides little guidance as to what it requires. Thus, since there is no evidence in this case that respondent had actual knowledge that the package-falling hazard required the use of safety shoes, it was necessary for complainant to demonstrate that a reasonably prudent man familiar with the operation of a package handling plant such as respondent's would have understood that the use of protective footwear was necessary. This was not done.

The record indicates that the only lost-time toe injury n7 that occurred from the opening of the Rathmell facility in October 1972 to June 1974 n8 was an injury to one Smith, a sorter, which occurred when he dropped a 50 pound package resulting in a bruised left big toe. This injury caused him to lose two work days. There is also evidence that Scroggins, [*8] another employee, dropped a roller on his toe and was sent to the hospital but that he lost no work time as a result. n9 During this 20-month period, about 760,000 manhours were worked by 325 employees processing 150,000 packages daily. The lost-time injury rate for toes is thus 2/100,000ths of the total time worked.

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n7 The Judge based his decision in part on a finding that from October 1972 to June 1974 falling packages caused at least seven foot injuries resulting in hospitalization and 48 days lost time which included two or three toe injuries resulting in seven days of lost time.

Respondent urges that it was erroneous for the Judge to base his order on foot as well as toe injuries because the cited standard is designed to provide protection only for toes. There is merit in this contention. Specifications for safety foot protection appear at 1910.136 of the Secretary's regulations and provides as follows:

"Safety-toe footwear for employees shall meet the requirements and specifications in the American National Standard for Men's Safety-Toe Footwear, Z41.1-1967."

ANSI Z41.1-1967 describes "safety footwear" as "shoes" into which a toe box has been incorporated during their construction and which are "intended primarily to provide protection for the toes from impact and compression forces" ( 4.1). Also, the government safety inspector testified that when he used the phrase safety foot protection he meant only toe protection. Thus, it is clear that foot injuries not involving the toes, are not relevant to our determination since the safety footwear required by the regulation does not provide any greater protection against these injuries than the leather "shoes" regularly worn by respondent's employees.

n8 It is also not relevant to consider the injuries which had been sustained at a facility used by respondent prior to the opening of the Rathmell plant, which are referred to in the Judge's decision although not his findings. That facility was closed in October of 1972 when respondent relocated to the plant where the inspection was made. At the hearing, the Judge correctly granted respondent's motion to quash that part of the subpoena relating to injury records at the old facility. He reaffirmed this ruling in his decision.

n9 The Judge stated:

"While only the injury reports of employees Smith and Scroggins specifically describe toe injuries, the OSHA Form 101 adopted by respondent for employees Carpenter, Curtis and Cydrus show an X mark beside 'Toes' to indicate the nature of the injury."

An examination of these forms discloses that in each case, the word "foot" is not printed on the form and there is no place other than under "toes" for indicating a pedal injury. Immediately under the word "toes" on the Carpenter form appears the description "bruised foot." A similar entry appears on the Curtis form where the description "bruised left foot" has been added under "toes." On the Cydrus form, the word "foot" has been typed immediately after the "toes" item to indicate the location of the injury. In addition, a medical report on employee Curtis shows the point of injury to be well above the toes, and an X-ray report on employee Cydrus discloses no toe injury. In the light of these factors, the Judge erred in concluding that the forms establish that there had been toe injuries to employees other than those sustained by employees Smith and Scroggins.

In addition, the Judge's statements with respect to injury histories of employees Smith and Scroggins do not appear to be accurate. Smith did not suffer a second toe injury as the Judge's decision indicates. The lost time toe injury suffered by Scroggins occurred at the old facility, and as noted supra, the subpoena relating to injury records at the old facility was quashed.

[*9]

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Complainant argues that even if the actual incidence of injury has been low, it is due to luck and the potential threat of injury is significant since packages regularly fall. This argument is unpersuasive. The injury history in evidence covers a period of 20 months - about 760,000 manhours of work. The actual incidence of injury, therefore, is a reasonably accurate barometer of potential threat of injury.

On this record, a reading of the standard in the light of this plant's accident history would not alert respondent to the need for additional protection for toes. A decision cannot be based on speculation or a prophecy of what might happen particularly when the evidence of record so clearly indicates a contrary conclusion. Although complainant may predict results (Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 401-402 (D.C. Cir. 1973)), "[o]ne must distinguish between prediction and prophecy." International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 642 (D.C. Cir. 1973).

Moreover, in deciding whether a person of reasonable prudence would conclude that an unsafe condition [*10] existed as a result of the absence of the particular protective gear suggested by conplainant, the cost of the same in relation to the incidence and severity of injuries it is designed to prevent is an appropriate consideration. Cf. Industrial Union Department, AFL-CIO, et al v. Hodgson, 499 F.2d 467, 477-478 (D.C. Cir. 1973); National Realty & Construction Co., Inc. v. OSAHRC, 489 F.2d 1257, 1266-1267 (D.C. Cir. 1973). The cost of safety shoes with protective toe boxes (the only type of foot protection mentioned in the standard), was found by the Judge to range in price from $13.00 to $20.00 a pair. Ninety percent of the 325 employees at Rathmell whose toes were allegedly exposed to hazard are part-time workers, many of them students. The turnover rate in these categories is quite high. In 1973, 1,053 employees were hired to fill the 325 jobs. The annual cost for providing safety shoes at $13.00 a pair for these, 1,053 employees would be $13,700.

Nationally, respondent employs roughly 30,000 persons in the four job classifications with which we are here concerned. Extrapolating the above annual cost of safety shoes for the 325 employees at Rathmell to respondent's [*11] entire operation, the added cost could approximate $2,000,000 a year. The imposition of such costs in order to correct a lost-time injury rate amounting to 2/100,000th's of the total time worked is unreasonable whether the cost is borne by employers or employees. In Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir., 1976) it was pointed out that

". . . courts . . . have consistently refused to require measures beyond those which are reasonable and feasible."

There was also no evidence to show that respondent's failure to require the wearing of safety shoes was inconsistent with customs and practice in the parcel-handling industry. The only evidence of record relating to any kind of industry practice came from the safety inspector's testimony. He mentioned a safety shoe program which he instituted for material handlers at a single electric manufacturing plant when he was employed there as assistant loss prevention manager. There was no testimony as to whether or not the U.S. Postal Service or other employers engaged in business as parcel deliverers require employees to wear the type of protective shoes suggested by complainant in this case. Such evidence [*12] is necessary to prove noncompliance with the broadly-worded standard at issue in this case. Cape and Vineyard Livision v. OSAHRC, supra.

Quite apart from the erroneous ruling of law entered by the Commission in this case, it is noted that if the rule of this case is enforced it will in effect establish an across-the-board requirement for all similar activities at other plants of respondent as well as for other employers engaged in package delivery. This amounts to back-door rulemaking without the procedural safeguards enacted by the Congress in the Administrative Procedure Act.

Since this decision does not fully cover all the matters discussed in Judge Duvall's decision, the same is attached hereto as Appendix A to provide a full exposition of the disposition of this case.

APPENDIX A

DECISION AND ORDER

Theodore J. Pethia, Office of the Solicitor U.S. Department of Labor for Complainant

J. Mack Swigert and J. Alan Lips, for Respondent

Duvall, D. K., Judge, OSAHRC

Statement of Case

This is a proceeding under sections 9 and 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act) contesting item number 7 of a citation [*13] (for which no penalty was proposed) alleging nonserious violation of the occupational safety and health standard set forth at 29 CFR 1910.132(a) under sections 5(a)(2) and 6 of the Act. The citation, issued by complainant to respondent on January 11, 1974, on the basis of an inspection conducted on January 2, 1974, of respondent's package delivery center located at 2705 Rathmell Road, Columbus, Ohio, described the violation as "Failure to provide and enforce the use of safety foot protection for: (a) sorters, (b) belters, (c) loaders, (d) unloaders." and set an abatement date of May 21, 1974.

Item number 7 of the Citation was duly contested by Respondent by letter dated January 23, 1974 (Notice of Contest, Case File, item 3). In its Answer to complainant's complaint, Respondent admitted that at all times material hereto it was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act (Answer, Case File, J-2).

A hearing in this matter was duly held before me at Columbus, Ohio on June 11, 1974, with both parties represented by Counsel. While Respondent's employees are represented by a union, neither said union nor any other authorized representative [*14] of affected employees, nor any affected employee in person asserted a party interest in this matter. Both parties submitted briefs and reply briefs following the hearing.

A number of rulings on motions of the parties were made at the hearing. Respondent's motion to quash complainant's subpena duces tecum insofar as it related to OSHA logs and records relating to employee injuries at Respondent's former place of business (Joyce Street facility) upto October, 1972, was granted (Tr. 225-230). Respondent's motion to dismiss on the grounds that the Citation was not issued with reasonable promptness and did not describe the violation with sufficient particularity as required under section 9(a) of the Act was denied (Tr. 15-24, 310). Respondent's motion to dismiss or the ground that the cited standard is invalid by reason of vagueness was held in abeyance pending briefing (Tr. 25-32, 310).

Complainant's motion to strike certain language in Respondent's pre-hearing exchange of information (Case File, J-5, p.2) relating to the complaint was granted (Tr. 32-41, 310). Complainant's motion to dismiss the sixth affirmative defense contained in Respondent's Answer (Case File, J-1, p.3), [*15] relating to alleged violations of Article I and the Fourth, Fifth, Sixth, and Seventh amendments of the U.S. Constitution, on the ground of lack of jurisdiction in the Commission was granted (Tr. 43-52).

The factual setting of the alleged violation is the Rathmell Road, Columbus, Ohio package delivery center owned and operated by Respondent, the largest private package handler in the United States. Of Respondent's 60,000 - plus employees, 660 worked at this workplace, which included a modern automated system of conveyors, supplemented by mechanical rollers, which was the principal means of moving incoming packages from delivery trucks through the prime sorting and routing area to other delivery trucks depending on the destination of the packages. The system handled about 150,000 packages a day. About 325 employees classified as sorters, belters, loaders and unloaders were the principal persons involved in the movement and handling of those packages. The sorters worked in fairly narrow aisles proximate to five or more conveyor belts moving in different directions at various levels from the waist up. Operating as fast as the package traffic required, the sorters received packages [*16] from some belts and transferred them (maximum package weight was 50 pounds) by lifting, carrying or pushing items from the incoming belt to the belt conveying packages to the delivery trucks going to the package destination area. Belters (pullers or pick-offs) moved designated packages off or on the main conveyor to or from feeder conveyors near the loading or unloading points. Loaders or unloaders worked inside truck trailers, taking packages off or putting packages on mechanical rollers at hip or chest level in the course of loading or unloading the trailers from floor to ceiling, or vice versa, as the case might be. Respondent required its affected employees to wear solid leather shoes, but not safety shoes or toe-guards. Complainant contends that the number and weight of packages which regularly fall or could fall on the feet of the sorters, belters, loaders and unloaders creates a hazard within the meaning of the cited standard which requires provision and use of personal protective equipment to protect the feet of said employees.

Based on the pleadings, the hearing, and the briefs received, the issues for decision herein are as follows:

(1) Was the Citation herein appropriately [*17] issued with reasonable promptness under section 9(a) of the Act?

(2) Does the Citation and Complaint herein set forth a claim remediable under the Act?

(3) Is the occupational safety and health standard cited herein unreasonably vague, unnecessary, and inappropriate under the Act and the due process requirements of the Constitution?

(4) If issues (1) and (2) above are resolved affirmatively and issue (3) negatively, on January 2, 1974, did Respondent violate the cited standard under section 5 (a)(2) of the Act as alleged, and, if so, is at appropriate to assess no penalty for such violations, as proposed, under section 17 of the Act?

Discussion

Upon reconsideration of the first issue relating to Respondent's motion to dismiss on grounds of lack of reasonably prompt issuance of the citation and lack of particularity in describing the violation, I reaffirm my ruling at the hearing denying this motion (Tr. 310). The issue of reasonable promptness is deemed waived if it is not raised during the issue formulation stage of the case. Here, Respondent in its answer (Case File, J-1, [*18] par. 5 and Third Defense) denied that an appropriate citation was issued pursuant to section 9(a) of the Act and asserted that the citation did not meet the requirements of that section in that "it does not describe with particularity the nature of the violation, including the conditions and circumstances of the violation, or state a specific standard violated, and does not prescribe a means of correcting the violation." This pleading did not clearly raise the issue of reasonable promptness. Nor did Respondent raise this issue in its response (Letter dated May 28, 1974, Case File, J-5) to my pre-hearing supplemental notice of hearing dated April 18, 1974 (Case File, J-3), which specifically called for formulation of the issues by the parties. In fact, the issue was first raised by Respondent in its motion to dismiss at the hearing (Tr. 13-14).

Even if this issue were not deemed waived for not being timely raised, the record does not support Respondent's position on the merits. Absent exceptional circumstances Complainant or his authorized representative must perform the ministerial tasks involved in issuing a citation within 72 hours from the time he has formed his belief that [*19] a violation has occurred (Chicago Bridge and Iron Company, supra). The OSHA compliance officer in this case (Mr. Napoleone) testified that he submitted his inspection report and recommended issuance of a citation to the OSHA Area Director (Mr. Schmidt) for the first time on January 11, 1974, the same date that the citation was issued (Tr. 79, 89). Contrary to Respondent's contention (Respondent's Reply Brief, p. 2), the decisional process (to which the 72 hour time period does not apply) ends when the Area Director, as the "authorized representative" of the Secretary, forms his belief that a violation has occurred. Chicago Bridge and Iron Company, supra at 246-247. Since in this case the Area Director saw the recommended citation for the first time when it was submitted to him by the compliance officer on January 11, 1974, I conclude that he formed on that day his belief that a violation had occurred since the citation was signed by him and mailed that same day, and thus issued with reasonable promptness as required by section 9(a) of the Act. The fact that prior to the submission to the Area Director it took the compliance officer's office six or seven working days to [*20] type up the report and recommended citation he had drafted on January 3, 1974, does not constitute unreasonable delay as a matter of law (Tr. 130-131).

Similarly with regard to the form of the citation, the record establishes, contrary to Respondent's contention, that the citation described the alleged violation with sufficient particularity, including reference to the pertinent standard (29 CFR 1910.132(a)) and fixing a reasonable time for abatement (May 21, 1974). The citation described the alleged violation of said standard as failure to provide and enforce the use of safety foot protection for sorters, belters, loaders and unloaders at Respondent's workplace on Rathmell Road in Columbus on January 2, 1974. Occupational foot protection in defined at 29 CFR 1910.136 as safety-toe footwear for employees which meets the requirements and specifications in American National Standard for Men's Safety-Toe Footwear, Z41.1 - 1967. While the citation did not specify where in the Rathmell workplace the alleged violation occurred, it was well known to Respondent where its employees designated by the job classifications sorters, belters, loaders and unloaders were working in the workplace [*21] on the specified date.

The cited standard provides in pertinent part that "Protective equipment, including personal protective equipment for . . . extremities . . . shall be provided, used, and maintained in a sanitary and reliable condition whenever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation, or physical contact." Reading the citation in conjunction with the cited standard and the OSHA inspection, including the closing conference (Tr. 86-87), Respondent was adequately put on notice of what, where, and when protective equipment was required by the standard and in what respects the standard had allegedly been violated, i.e., failure to provide and enforce the use of safety foot protection for certain categories of employees exposed to the hazard of physical contact with falling packages in the course of their duties in the workplace.

In addition to the reasonable promptness provision, section 9(a) of the Act is designed to satisfy the due process requirement of [*22] notice by appraising employers of the allegations of the Secretary in order that they may preserve evidence and prepare tentative defenses if a notice of contest is filed. Chicago Bridge and Iron Company, supra at 261 (Dissenting opinion of Commissioner Cleary). The citation incorporating by reference the cited standard and inspection, reasonably apprises Respondent of the means for correcting the alleged violation, to wit, the provision and enforcement of use of safety foot protection, i.e., safety-toe footwear, including toe guards or safety shoes.

Remediable Claim

But, as pointed out by Complainant [*23] in its Reply Brief (pp. 10-12), Budd held that the cited standard requires the employer to insure that personal protective equipment is used where necessary under the Standard. The Commission stated in Budd as follows:

"Construing the standard as a whole, we think subpart (a) means that where personal equipment is necessary, the employer shall insure that it is used. If he provides such equipment, he is responsible for insuring that it is provided, used, and maintained in a sanitary and reliable condition.

Because subpart (a) does not demand that the employer provide the equipment, subpart (b) makes the employer responsible for insuring the adequacy, proper maintenance, and sanitation of employee provided equipment. Subpart (c) requires the employer to insure that all personal protective equipment, whether employer or employee provided, is of safe design construction.

Our interpretation comports not only with settled rules of statutory construction, but also, with the basic objective of the Act. The purpose of the Act is 'to assure so far as possible every working man and woman in the Nation safe and healthful working conditions' (Act, sec. 2(b)). Unlike other labor [*24] statutes with essentially economic purposes (e.g. Fair Labor Standards Act), the Act is concerned solely with safety and health in the work situation. n4 Prescription of cost allocations is not essential to the effectuation of the Act's objectives. n5 It is irrelevant for the purposes of the Act who provides and pays for the equipment.

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n4 We are not unaware of the economic impact of job related injuries and illnesses. Our point is that the Act does not impose any obligations on the employer which directly affect employees' economic status.

n5 We do not imply that an employer is not obliged to bear the cost of things such as capital equipment which it is ordinarily his responsibility to assume. We are here considering the cost allocation of personal equipment. While there are other types of protective equipment used for foot (toe) protection which are fully permissible and which fully satisfy the standard, we note that the most universally used foot protective equipment is the steel-toed shoe. Thus, the most universally used type of protection is uniquely personal and may be used by the employee when he is away from the job."

[*25]

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I conclude from the foregoing decisional language that the cited standard, which must be construed as a whole, imposes upon the employer the responsibility of requiring his employees to wear the protective equipment as therein prescribed. The implicit meaning of the standard as interpreted by the Commission is that if the employees do not provide their own protective equipment (for which employer is responsible to assure its adequacy, maintenance, and sanitation, safe design, and construction), the employer in fulfillment of his responsibility under subpart (a), shall provide same when such equipment is required. The question of who pays for the protective equipment provided is a separate question to be resolved between the employer and employee, perhaps as an appropriate subject for collective bargaining (The Budd Co., supra). As a practical matter, where the employee does not provide his own protective equipment and there is no agreement between the employer and employee allocating the cost of the protective equipment when required, the party with the ultimate responsibility to provide such [*26] equipment may well have to assume some obligation to pay for the equipment, at least initially, in order to comply with the standard.

Vagueness of Standard

Respecting the third issue, Respondent contends that the cited standard is void for vagueness insofar as it purports to require personal protective equipment for . . . extremities" (Respondent's Brief, pp. 29-43). Respondent asserts that the different facts in Ryder "decisively distinguish" it from the case at bar (Respondent's Reply Brief, p.3; Brief, p.34, footnote 5).

In Ryder, violation of 29 CFR 1910.132(a) was alleged (no penalty proposed) by reason of employee exposure to hazards of falling freight in the course of terminal loading and unloading operations with carts and tow motors and without foot protection. The freight handled was not limited in weight and unloaded such items as tires, cardboard cartons, metal cylinders, [*27] pieces of pipe, small motors, wooden boxes and auto transmissions. Most of the freight was moved between vehicles and platforms within the terminal, with four-wheeled, rubberized carts used to move smaller packages and fork-lift tow motors used to move heavier freight. The operations included loading and unloading trailers with freight, including stacking to heights of seven feet. There was sufficient flow of freight to require several working shifts, with as many as 40 freight-handling employees working during a peak period. Ryder's employees customarily wore footwear other than protective workshoes, although Ryder had a protective footwear program for 16 years under which it defrayed part of the purchase price of protective shoes and allowed employees to purchase same under a payroll deduction plan. Ryder did not require the wearing of safety shoes and the program had met with little success. Ryder's medical records indicated 10 reported foot and toe injuries to freight-moving employees over the five year period immediately preceding the inspection. Ryder, like Respondent here, claimed that the cited standard was constitutionally void for vagueness because it established [*28] no ascertainable standard of conduct consonant with due process of law. The Court rejected that claim. While admitting that the standard may not be a model of perfect precision, the Court stated in pertinent part as follows:

"In considering the claimed vagueness of the regulation, we are mindful of two critical factors: first, this regulation involves remedial civil legislation in contradistinction to criminal legislation; secondly, the rights guaranteed by the First Amendment are not remotely related to this case. Hence, we must consider the statute "not only in terms of the statute 'on its face' but also in light of the conduct to which it is applied." United States v. National Dairy Corp., 372 U.S. 29, 36, 83, S.Ct. 594, 600, 9 L.Ed.2d 561 (1963). The regulation appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury. Moreover, we think inherent in that standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries to dockmen, in a somewhat confined space, from falling freight and the rapid [*29] movement of heavy mechanical and motorized equipment, which would warrant protective footwear. So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster. United States v. Petrillo, 332 U.S. 1, 4, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947)."

Like the Court in Ryder, I find unconvincing Respondent's argument that it did not and could not reasonably know what was required by the cited standard under the Act, given the history of employee foot and toe injuries compiled in the logs and records of its package handling operations and Respondent's rule that the employees in question wear only solid leather shoes (no tennis or canvas-type shoes), allegedly to avoid possible injury from packages containing acid.

There is substantial evidence of record that belters, sorters, loaders and unloaders at Respondent's Rathmell facility are exposed to falling packages practically on a daily basis. Employee Logsdon, a full-time sorter, testified that, due to bunching up, packages fall off the conveyor belts at the primary sorter position usually every night (Tr. 73). The falling packages vary in [*30] size from small to large upto 50 pounds in weight and, at that position, fall from about hip level to the floor (Tr. 75-76). Mr. Logsden, who began working for Respondent in October 1968, indicated that such a falling package (packaged piece of metal) bruised his toe when he was sorting in Respondent's old facility on Joyce Street, prior to October 1972 (Tr. 76-77). Employee Lane, a full-time sorter and loader testified that almost every night at the Rathmell facility, heavy and light packages fell off the rollers or belts, some of which fell on his feet (Tr. 139-140, 149, 159-160). While shut-off switches to stop the conveyor belts when necessary are available, they are a last resort after packages begin jamming and falling and sometimes the employee is not in a position to promptly cut-off the switch or is instructed by a supervisor not to shut-it off (Tr. 147-148, 149-150, 161-165, 212-213).

Employee Scroggins, a full time belter, unloader and loader, had packages and a roller drop on his feet resulting in at least two foot injuries (toe fracture and bruised foot) which required hospital attention and/or time off (Tr. 186, 189-199). Employee Saffen, a full time sorter, belter, [*31] loader and unloader, had packages fall on his feet frequently, althohgh his only injuries on the job have been a shoulder separation and finger injury (Tr. 210-212). Mr. Mann, a union official and until April 1974 a belter, so testified that he had seen packages fall beside or on employees and seen the latter move to safe areas in those situations (Tr. 221).

In addition, Respondent's register of employee accidents discloses, inter alia, that the following employees suffered foot, including toe injuries at the Rathmell facility: Sorter Gordon Cydrus (mashed and bruised left foot); loader Patricia Curtis (bruised left foot); unloader Tim Patton (cut left side of right foot); unloader Gene Smith (contusion of left big toe); unloader Paul Schneider (fractured left ankle); preloader David Carpenter (mashed foot under rollers) (Exhibits C-1, 4, 5, 7, 8). While only the injury reports of employees Smith and Scroggins specifically describe toe injuries, the OSHA Form 101 adopted by Respondent for employees Carpenter, Curtis, and Cydrus show an X mark beside "Toes" to indicate the nature of the injury (Exhibits R2-B, D & E).

A reasonable employer of ordinary prudence could and [*32] should have recognized the pattern of foot and toe injuries resulting from falling packages in the course of the operations at respondent's workplace, evidenced by the foregoing reported injuries during the period October 1972 to May 1974, as "hazards of processes or environment . . . capable of causing injury or impairment in the function of any part of the body . . . through . . . physical contact" which necessitated "personal prtective equipment for . . . extremities" to "be provided, used, and maintained in a sanitary and reliable condition. . ." within the meaning of the cited standard. In reference to the human body, "extremities" is generally understood to mean hands or feet. Respondent's operating procedures and automated system of conveyors and rollers for sorting, routing loading and unloading the packages for delivery clearly constitutes an environment or surrounding conditions, including the frequent jamming, bunching-up and falling of packages, which proximately cause a substantial number of physical contact injuries and, therefore, constitute hazards of the environment. [*33] Lines, Inc. v. Secretary of Labor, No. 7341, CCA 5 (July 18, 1974).

But it found that this language does not stand alone, that "Other regulations and workplace customs may be used to define the parameters of the protective equipment standard" (Modern Automotive Services, Inc., supra at 740). Respondent here argues that Automotive is distinguishable from the instant case in that the cited standard as here applied is "unlimited in spectrum, unlimited in scope and application" and one "which can be applied according to the whim of an area director." (Respondent's Brief, pp. 30-38).

Specifically, Respondent distinguishes [*34] Automotive on the grounds that the employees there regularly handled weights upto and including 60 pounds, that there was a five year history of toe injuries, and that the company's Director of Safety admitted that toe protection would have prevented injuries. I cannot agree. Here the record indicates that Respondent's sorters, belters, loaders and unloaders regularly handled packages weighing upto 50 pounds (Tr. 64, 75-76, 85-86, 139, 190, 211-212). As previously discussed the record also indicates a substantial history of foot, including toe injuries. While such evidence relates primarily to Respondent's Rathmell facility, which has been operating since October 1972, there is some evidence of similar injuries at Respondent's previous facility on Joyce Street (Testimony of employee Logsden, Tr. 73, 76; compliance officer, Tr. 128-130). In any event, the Act does not establish as a sine qua non any specific number of accidents or any injury rate. Ryder Truck Lines, Inc. v. Brennan, No. 73-3341, CCA 5th (July 18, 1974). While Respondent's safety manager made no statement respecting the efficacy of toe protection (Mr. Dimmlick's testimony was limited by [*35] the narrow scope of direct examination, Tr. 249-257), Respondent's personnel manager, Mr. DeVoe, testified that employees were required to wear solid leather shoes, supplied by the employees, as a precaution against the hazard of possible acid spills (Tr. 298-299).

Based on his training and experience as a compliance officer with OSHA and immediately prior experience for two years as Assistant Loss Prevention Manager for a 13,000 employee electric manufacturing company, Mr. Napoleone testified that a safety foot protection (safety shoes or toe guards) program is a necessary corrective response to substantial toe injuries on the job (Tr. 80-81, 85-88). In so finding and advising Respondent, the compliance officer's observation was circumscribed by subparagraph 136 of Subpart I (Personal Protective Equipment) which prescribed ANSI specified safety-toe footwear under the heading "Occupational foot protection." While the standards set forth under Subpart I do not refer to toe-guards, as distinguished from safety-toe footwear (safety-shoes), the latter clearly and reasonably include or suggest the former and Respondent was informed by Mr. Napoleone that both alternative means of foot [*36] protection were available and sufficient to meet the cited standard (Tr. 86-87).

Even if a reasonable employer in Respondent's circumstances could not, from a fair reading of the cited standard, other related standards, and knowledge of customary practice in similar work situations in the same or related industries (e.g., Ryder and Automotive cases), reasonably perceive that toe guards were an acceptable means of foot protection under the cited standard, in the context of the existing hazardous circumstances such employer had sufficient reasonable notice that would or should have caused a reasonable, prudent employer to make inquiry of the appropriate OSHA authority concerning appropriate means of complying with the standard.

On balance, I cannot find as a matter of law that the cited standard, either in what it forbids or requires doing, is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Accordingly, I find the standard as applied in the circumstances of this case consistent with the constitutional guarantee of due process under the Fifth Amendment. See Grayned v. City of Rockford, 408 U.S. 104, [*37] 108 (1972); Cramp v. Board of Public Instruction, 368 U.S. 278, 287 (1961); American Communications Association v. Douds, 339 U.S. 382, 412 (1950).

Reasonableness of Standard

Respondent also asserts that the cited standard is not reasonably necessary or appropriate to provide safe or healthful employment and places of employment as required of any occupational safety and health standard, as defined in section 3(8) and promulgated under section 6 of the Act. Specifically, Respondent contends that Complainant has not satisfied its burden of proving that the use of safety toe protection by sorters, belters, loaders and unloaders is reasonably necessary or appropriate to provide safe employment at Respondent's Rathmell Road facility (Respondent's Brief, pp. 21-29). Reference is made to the allegedly trivial or insubstantial amount of time lost due to toe injuries at the workplace (16 hours by employee Smith or .00002% of 759,776 total man hours worked during the period October 1972 to June 1974). As previously noted, during the 1-1/2 year period October 1972 to July 1974 Smith clearly incurred toe injuries resulting in a loss of five and two working days, respectively [*38] (Tr. 194-197, 259-260; Exhibits C-7, R2-C). Foot injuries possibly affecting the toes during the same period were incurred by employees Curtis (19 lost days), Cydrus (10 days lost), Schneider (8 days lost), and Carpenter (1 day lost), and Patton (3 days lost), (Exhibits C-1, 4, 5, 7, 8). While the foregoing catalogue of reported foot injuries is small relative to the pertinent total number of man hours worked and the tremendous volume of packages handled (150,000 per day), it is not insignificant when measured in terms of the purpose of the Act (Section 2) "to assure so far as possible every working man and women . . . safe and healthful working conditions". Furthermore, the high rate of incidence of falling packages on a daily basis in all four of the worker catagories specified in the Citation, based on the record testimony of such workers and the register of employee accidents (Exhibits C 1-9), indicates substantial potential hazards capable of causing foot injuries.

Besides asserting, in effect, that there is no hazard, Respondent contends that even if there is requiring the use of toe guards or safety shoes is not the appropriate means to correct the hazard. The cases cited [*39] by Respondent in support of this proposition are inapposite. Here there is no substantial evidence that use of toe guards or safety toe-wear was not a known usage or would be counter-productive hazardwise in the package handling industry; on the contrary, compliance officer Napoleone's testimony tended to show such usage in comparable hazardous situations with corrective results (Tr. 81, 87).

Similarly, the incidence of weighty packages falling on employees' feet from Respondent's conveyor [*40]

Respondent's reliance on National Realty and Construction Co., Inc., v. OSAHRC, 489 F.2nd 1257 CA D.C., 1973), is also singularly inapt. The Court's holding that the Secretary's burden of proof includes a showing "that demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred" related to a citation for violation of the general duty clause (section 5(a)(1)) of the Act, rather than for violation of a specific standard duly promulgated under the Act. The Court was seeking to circumscribe the "awesomely [*41] broad diseretion" of the Secretary in enforcement of the general duty section, clearly distinguishable from enforcement of a specific standard which constitutes a duly defined and recognized hazard by virtue of the promulgation process of an established federal standard under section 6(a) of the Act.

While the safety foot protection prescribed in the cited standard as herein construed may not prevent all foot injuries to which Respondent's specified employees are regularly exposed, commonsense and the evidence of record herein, including the testimony of the compliance officer and the affected employees, are persuasive that such protection would be reasonably appropriate and effective in reducing if not eliminating the hazards of foot injuries shown in this record.

Respondent's further arguments that compliance with the cited standard here is inappropriate because of the unreasonable economic burden it would impose on the affected employees, 90% of whom are student, part-time workers, 70% of whom terminate their employment within seven months (Respondent's Brief, pp. 27-28), does not bear close analysis. The compliance officer estimated the present cost of toe guards to be at least [*42] $5.00 and of safety shoes $12.95 to $20.00 (Tr. 115). Even if the cost of either one of these means of foot protection were fully assumed by the employee, it would not be a prohibitive or unreasonable cost to the employee, even the 30-90 day part-timers, taking into consideration the increment of protection from possible foot and toe injuries gained (avoiding or minimizing resulting pain and suffering, lost time or wages) and the fact that, in the case of safety shoes the peculiarly personal and stylish nature of this protective equipment (Exhibits 9A, 9B, 9C and 10) gives it utility value both on and off the job. If the cost of such protective equipment became a critical factor in the desired retention of these types of short-term employes, Respondent could facilitate employee purchase of such equipment through a payroll deduction plan or part-payment by the employer (Tr. 81, 117; Ryder Truck Lines, Inc., supra).

In any event neither economic cost nor administrative difficulties of the nature and order here alleged and probably involved can excuse compliance with a duly promulgated occupational safety and health standard, absent the granting of a variance by Complainant under [*43] section 6(b) of the Act. The protection of the Act and the standards promulgated thereunder, including the cited standard, apply to all employees without distinction between regular and part-time employees, whether students or other-wise (Sections 2, 5(a), 3(6) of the Act).

Accordingly, I cannot agree with Respondent's argument that the alleged practical difficulty of enforcing employee use of safety toe foot-wear would be disproportionate to the dimension of the claimed hazard (Respondent's Brief, p. 29). As previously discussed, the hazard of foot injury to employees herein cited is substantial, not miniscule. Furthermore, while the burden of checking whether the shoes of contemporary design are, in fact, safety shoes may be expensive to whomever is charged with that responsibility (an allegation unsubstantiated by record evidence), it would seem that relatively simple and fair rules, including employee commitment and participation and appropriate penalties for non-use of protective equipment, could be devised. Certainly appropriate monitoring or scanning devices, perhaps similar to those used as a passenger security precaution at busy airports, are available.

Violation [*44]

Respecting the fourth issue, there is ample evidence that Respondent herein, on the material date, was in violation of the cited standard under section 5(a)(2) of the Act by failing to provide or require to be used and maintained in a reliable and sanitary condition personnel protective equipment for the extremities (feet) of its employees working as belters, sorters, loaders and unloaders, which equipment was necessary to protect said employees from the environmental hazards of foot injuries resulting from physical contact with falling packages upto 50 pounds in weight in the course of their employment. (Tr. 64, 190, 212).

Substantial, unrebutted evidence of record establishes that the foregoing categories of Respondent's employees were regularly exposed to the hazard of actual and potential foot injuries on a daily working day basis as they handled packages which jammed or fell off automated conveyors or rollers utilized as part of a delivery system or fell in the process of loading or unloading trailers (Tr. 64-77, 85-88, 135-140, 144-150, 185-194, 208-212, 308-309; Exhibits D, R1-C, E, R-6). The rate of incidence and severity of actual foot injuries at Respondent's Rathmell [*45] facility was sufficient to require some form of foot protection which would protect at least the toes of the feet (Exhibits C-10 through 24; R-2A - E; Tr. 118-127). Personal foot protection equipment required in the cited standard as reasonably construed herein was neither provided by Respondent nor required by Respondent to be used by its affected employees (Tr. 87-88, 296). Respondent did enforce a rule requiring said employees to wear solid leather shoes (no tennis or canvas-type shoes) on the job (Tr.275, Exhibit R-7). It is also noteworthy that Respondent produced no substantial evidence, including the testimony of its own safety manager (Tr. 249-257) to rebut the compliance officer's testimony that toe guards or safety shoes would have prevented or reduced the foot injuries incurred by Respondent's employees (Tr. 86-88; 119-127).

Assessment of appropriate penalties for violation of the Act must give due consideration to the size of the employee's business, the gravity of the violation, the employer's good faith and history of previous violations (section 17(j) of the Act). No penalty was proposed by Complainant in connection with the alleged violation of the cited standard, [*46] presumably on the basis of the foregoing factors (Complaint, p. 4). Based on Respondent's unrebutted assertion (Respondent's Proposed Findings of Fact, p. 5), I assume that Respondent has no history or previous violations under the Act. Respondent's good faith is attested to, in effect, by testimony of Respondent's personnel manager (Tr. 272-277) indicating a well-established safety program at Respondent's workplace in Columbus and nationally (Tr. 272-285), including safety education of employees (Exhibit R-7) and enforcement of leather shoes requirement (Exhibit R-8). It was stipulated that Respondent, with 60,000-67,000 employees (of whom 325 were affected employees here) is the largest private handler of packages in the United States if not the world (Tr. 55-56). Because of the high volume (150,000) daily flow of packages handled by Respondent's Rathmell delivery center and the number of employees (325) exposed, the hazard of packages falling on the feet of said employees capable of causing essentially non-serious injuries requiring hospitalization, medical attention, and lost time from work must be carefully weighed in determining the gravity of the violation.

It seems clear [*47] from the evidence that the hazard of potential foot injuries at Respondent's workplace for exceed the number of actual foot injuries of record, thus tending to underscore the quality of Respondent's safety program, including effective efforts to require some foot protection in the form of solid leather shoes furnished by the affected employees. On balance, while a close question, I would not modify Complainant's determination that no penalty is here warranted under the Act.

Findings of Fact

The record herein, as a whole, contains reliable, probative, and substantial evidence to support the following findings of fact:

1. Respondent is an Ohio corporation, the largest private holder of packages in the United States, which at all times material herein maintained a place of business, namely, a package delivery contet, at 2700 Rathmell Road, Columbus, Ohio, where it employed approximately 660 employees in the conduct and operation of said business, including the regular receipt and shipment of goods, materials, and products from and to points within and outside the State of Ohio (Complaint; Answer, Case File, items 5 and J-2; Tr. 55-56).

2. At said workplace, which was inspected [*48] on January 2, 1974, by Complainant's compliance officer, 325 of Respondent's employees are engaged in work as sorters, belters, loaders and unloaders, facilitating the daily flow and movement of 150,000 cardboard covered packages weighing up to 50 pounds (9 - 11 pounds average weight) over an automated system of conveyors and mechanical rollers which expedite the delivery of incoming and outgoing packages (Tr. 56, 85-86, 237).

3. In the course of their work, on a daily basis, said sorters, belters, loaders and unloaders are exposed to many packages falling off the conveyor belts or rollers or from stacks of packages upto 9 feet high in vehicle trailers being loaded or unloaded as the case might be, caused by heavy volume or jam-ups of package traffic or unstable loads (Tr. 86, 88, 63-77, 135-150, 185-194, 209-213). Over the period October 1972 to July 1974 such falling packages physically contacted a substantial number of Respondent's sorters, belters, loaders and unloaders, causing at least seven foot injuries resulting in hospitalization and 48 days of lost time, including two or three toe injuries resulting in seven days of lost time (Tr. 194-197, 259-260; Exhibits C, 1, 4, [*49] 5, 7, 8 and R 2-C).

4. The only personal protective equipment for the feet required by Respondent for use by its sorters, belters, loaders and unloaders is solid leather shoes provided by the employees (Tr. 275, 296-297). Ninety percent of these categories of employees are part-time with a turn-over rate of 12-24 percent per month (Tr. 233-235).

5. Conveyor shut-off switches are located close to each employee station or group of stations along the conveyors but affected employees often are not in position to shut off the switch in time to prevent packages from falling off the conveyor (Tr. 146-148, 152, 154, 157-158, 161-165, 192, 212-214; Exhibit R-1A).

6. Respondent has an extensive safety program, including employee initial orientation, weekly safety meetings, safety publications and films, and enforcement of safety rules, including prohibition of tennis or canvas-type shoes (Tr. 264-265, 273-277, 281-285, Exhibits R-8 & 10).

7. Based on the aforestated inspection of its workplace, Respondent was issued a citation on January 11, 1974, for alleged non-serious violation of seven occupational safety and health standards under sections 5(a)(2) and 6 of the Act, item 7 of which [*50] citation was duly contested by Respondent by letter dated June 23, 1974. (Citation and Notice of Contest).

8. The notification of proposed penalty accompanying said citation proposed no penalty for violation item 7, taking into consideration the size of Respondent's business, the non-serious gravity of the alleged violation, Respondent's good faith cooperation and safety program and history of no previous violations under the Act (Complaint, Notification of Proposed Penalty).

Conclusions of Law

1. At all material times herein Respondent was and is engaged in a business affecting commerce within the meaning of sections 3(5) and 5(a)(2) of the Act.

2. The Commission has jurisdiction of the parties and subject matter herein.

3. The citation herein was appropriately issued by Complainant to Respondent herein with reasonable promptness consistent with section 9(a) of the Act. Said Citation and complaint herein state a claim upon which relief can be granted under sections 5(a)(2) and 6 of the Act.

4. As applied to the facts herein the occupational safety and health standard set forth at 29 CFR 1910.132(a) is not unreasonably vague under the due process clause of the Fifth [*51] Amendment of the U.S. Constitution nor unnecessary or inappropriate under sections 3(8) and 6 of the Act.

5. On or about January 2, 1974, Respondent was in violation of the occupational safety and health standard set forth at 29 CFR 1910.132(a) under sections 5(a)(2) and 6 of the Act.

6. The assessment of no penalty in connection with the aforesaid violation is appropriate within the meaning of section 17 of the Act.

7. Respondent's motion to dismiss the citation as to item 7 therein and the notification of proposed penalty herein has insufficient legal basis and should be denied and said item 7 of the citation and the notification of proposed penalty should be affirmed.

ORDER

1. Respondent's motion to dismiss item 7 of the Citation herein is denied.

2. Item 7 of the Citation issued on January 11, 1974, by Complainant to Respondent herein is hereby affirmed.

3. In accordance with the provisions of said Citation, the violation set forth in item 7 thereof is to be corrected within 120 calendar days from the date of Respondent's receipt of this Order.

4. The Notification of Proposed Penalty issued on January 11, 1974, proposing no penalty for item 7 of said Citation, [*52] is affirmed.

DONALD K. DUVALL, Judge, OSAHRC

Dated: January 6, 1975

Hyattsville, Maryland