F.H. VON DAMM, INC.

OSHRC Docket No. 665

Occupational Safety and Health Review Commission

May 23, 1974

[*1]

Before VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On November 15, 1972, Judge Joseph Chodes issued his decision and order in this case affirming three alleged non-serious violations and assessing a penalty of $35.

On December 15, 1972, review by the Commission of the Judge's decision was directed by Chairman Moran pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter "the Act").

The direction for review was limited to two issues:

(1) Did the Judge consider the proper factors in assessing the penalties;

(2) and whether or not the citation was issued with reasonable promptness as provided in section 9(a) of the Act.

These were the only issues briefed by the Secretary in response to the direction for review, except for the related, threshold issue of whether the Commission can raise an issue not in contention between the parties, i.e., whether the citation was issued with "reasonable promptness." Respondent did not file a brief in response to the direction for review.

The Commission has reviewed the entire record, and finds no prejudicial error in the Administrative Law Judge's [*2] decision.

The issue of "reasonable promptness" was raised for the first time in the direction for review. It was not raised before or during the hearing, and the issue is not something jurisdictional to be raised at any stage of the proceedings or considered by the Commission even though it is not raised by the parties. See the majority opinion subscribed by Commissioner Van Namee and Chairman Moran in Chicago Bridge & Iron Co., No. 744 (January 24, 1974). n1 It is now well settled that under these circumstances the issue should not be examined. E.g., Morrison-Knudsen Co. & Assoc., No. 692 (March 28, 1974); Advance Air Conditioning, No. 1036 (April 4, 1974).

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n1 My views concerning the application of the term "reasonable promptness" are consonant insofar as the disposition of this case is concerned. For my full views on this subject, see Chicago Bridge & Iron Co., supra (dissenting opinion).

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The decision of the Administrative Law Judge is affirmed in all respects.

[The Judge's decision [*3] referred to herein follows]

CHODES, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970, (29 U.S.C. 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleges that as a result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 898 Grand Street, Brooklyn, New York, and described as whole-saling animal feed, seeds, and agricultural supplies, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on March 8, 1972, alleges that violations resulted from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register on September 4, 1971, and codified in 29 C.F.R. Chapter XVII, Part 1903; promulgated on July 2, 1971, and codified in 29 C.F.R., Chapter XVII, Part 1904; and promulgated on September 4, 1971, and codified [*4] in 29 C.F.R., Chapter XVII, Part 1910.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated March 8, 1972, from Nicholas DiArchangel, Area Director of the New York area, Occupational Safety and Health Administration, U.S. Department of Labor of proposed penalties for the violations alleged in the amount of $140.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by parties, the case came on for hearing at New York, New York, on October 3, 1972.

FACTS NOT IN DISPUTE

1. The Respondent is a corporation of the State of New York, with its principal place of business at 898 Grand Street, Brooklyn, New York (Respondent's reply, dated August 25, 1972, to Judge's request for admission of facts).

2. The Respondent receives goods, materials and supplies which were manufactured outside the State of New York (Stipulation of parties at page 3 of transcript).

3. The Respondent is a wholesaler of animal feed, seeds and agricultural supplies and the business is small as compared to others in the same business in the area where the Respondent is located (Complaint paragraph I and [*5] stipulation of the parties at page 3 of the transcript).

4. The Respondent has a daily average of 7 employees (Respondent's reply dated August 25, 1972, to Judge's request for admission of facts).

5. There were no injuries on the Respondent's premises (Stipulation of the parties at page 3 of the transcript).

6. The Respondent had no history of any previous violation of safety standards, (T-22).

EVALUATION OF EVIDENCE

The Citation alleges eight (8) violations of the Occupational Safety and Health standards which will be dealt with seriatim.

1.

Violation Described in Citation -- Standard Allegedly Violated

Failure to post OSHA notice; failure to keep OSHA 100 and 101 records; failure to maintain and post OSHA 102 --

29 C.F.R. 1903.2 -- Posting of notice; availability of Act, regulations and applicable standards.

Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protection and obligations provided for in the Act, and that for assistance and information, including copies of the Act and specific safety and health standards, employees [*6] should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices ae not altered, defaced, or covered by other material.

29 C.F.R. 1904.2 -- Log of occupational injuries and illnesses.

29 C.F.R. 1904.4 -- Supplementary record.

29 C.F.R. 1904.5 -- Annual summary.

The testimony of Mr. Wise, the Compliance Officer, with respect to the above alleged violations (T-17, 18) established that the notice informing employees of the protection and obligations provided by the Act was not posted. The evidence also shows Respondent did not keep a log of injuries, supplementary record or annual summary, but in view of the stipulation of the parties that there were no injuries, a violation of the regulations concerning record keeping relating to occupational injuries, cannot be sustained. In the case of the Secretary v. Intermountain Block [Pipe Corporation, "the obligation to maintain the necessary records does not arise until a reportable injury or illness occurs."

2.

Violation Described in Citation -- Standard Allegedly Violated

Aisles cluttered and contain hazardous obstructions -- in stockroom and in rear warehouse section --

29 C.F.R. 1910.22(b) -- Aisles and passageways.

Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

The evidence relating to the above item of the Citation was conflicting. Mr. Wise testified (T-12, 13) that the Respondent's entire premises were "cluttered," that is, there was "material stock extending into piles and various items." He also observed that passage through the piles was restricted and he considered this hazardous. However, Mr. Wise could not identify the articles which extended into the aisles, he could not say whether the articles were bags or boxes or whatever (T-26). On the other hand, Mr. Von Damm testified (T-65). that although [*8] no lines were painted to indicate the aisles, they were two feet wide and always clear. It is the opinion of the Judge that the Secretary has not sustained its burden of proof with respect to this alleged violation.

3.

Violation Described in Citation -- Standard Allegedly Violated

No guard rails and toe boards on elevated levels in stockroom and on bird cage mezzanine

29 C.F.R. 1910.23(c)(1) -- Protection of open-sided floors, platforms, and runways.

Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toe-board wherever, beneath the open sides,

(i) Persons can pass.

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

Mr. Wise testified (T-15) that there were mezzanines or platforms on the premises of the Respondent which were approximately six feet high without guard rails. The platforms were used for storage of material and it required [*9] workers to handle the material. However, Mr. Wise did not see anyone on the platforms (T-44). Mr. Von Damm testified (T-64) that there were about 12 platforms on the premises which were constructed so that merchandise could be stored with the use of a fork truck and it was not necessary for anyone to go up on the platforms to put the merchandise there. On occasion when the merchandise, which was in boxes, was not placed on the platform in line, it was necessary to push the box back into position, but this was done from a ladder and it was not necessary for the worker to go onto the platform. The term "platform" as used in the standard under consideration is defined in 29 C.F.R., Section 1910.21(a)(4), as "a working space for persons, elevated above the surrounding floor or ground; such as, a balcony or platform for operation of machinery and equipment." The evidence does not establish that the platform or mezzanines were used as "working space" but rather as a storage area which did not require the presence on the platform of any of Respondent's employees.

4.

Violation Described in Citation -- Standard Allegedly Violated

Side rails or ladders do not extend sufficiently [*10] above landing levels-in stockroom mezz. and bird cage mezz. --

29 C.F.R. 1910.27(d)(3) -- Ladder extensions.

The side rails of through or side-step ladder extensions shall extend 3-1/2 feet above parapets and landings. For through ladder extensions, the rungs shall be omitted from the extension and shall have not less than 18 nor more than 24 inches clearance between rails. For side-step or offset fixed ladder sections, at landings, the side rails and rungs shall be carried to the next regular rung beyond or above the 3-1/2 feet minimum (FIG. D-10).

The charge here is that the side rails of ladders in the mezzanine or platforms did not extend sufficiently beyond the landings. However, Section 1910.27 of the Regulations deals with fixed ladders. A fixed ladder is defined in 29 C.F.R. 1910.21(e)(2), as a ladder permanently attached to a structure. Mr. Wise testified (T-15) that access to two platforms was by ladders which extended only to the level of the platforms. He also testified (T-44) that a ladder was nailed to the platforms. Mr. Von Damm testified (T-64) that the ladders were portable and on occasion were leaned against the platforms (T-66). He further testified that [*11] the ladders were not nailed down because the platform was made of iron channels and it would be very hard to put nails into iron channels (T-67). The Judge is of the view that Mr. Von Damm's testimony is more credible, particularly since Mr. Wise had some difficulty in recalling details of his visit. The evidence does not sufficiently establish that the standard cited was violated.

Violation Described in Citation -- Standard Allegedly Violated

Firebucket in rear warehouse empty; 2 buckets on rear stairway empty.

29 C.F.R. 1910.157(a)(1) -- Portable fire extinguishers.

General requirements -- Operable condition. Portable extinguishers shall be maintained in a fully charged and operable condition, and kept in their designated places at all times when they are not being used.

The Citation alleges and the testimony of Mr. Wise (T-16) supports a finding that there were empty fire buckets on the rear stairway and rear warehouse of the Respondent's premises. However, the standard refers to fire extinguishers which are devices for putting out fires by ejecting fire-extinguishing chemicals. Obviously, a violation of this standard cannot be sustained by proof that fire [*12] buckets were empty.

6.

Violation Described in Citation -- Standard Allegedly Violated

CO[2] fire ext. and water fire extinguisher on rear stairway, and CO[2] ext. on loading platform not inspected since 1967.

29 C.F.R. 1910.157(d)(3)(i).

At regular intervals, not more than 1 year apart, or when specifically indicated by an inspection, extinguishers shall be thoroughly examined and/or recharged or repaired to insure operability and safety; or replaced as needed.

Mr. Wise testified (T-16, 17) that he observed two CO[2] fire extinguishers with inspection tags indicating that they were last inspected in 1967. This testimony was not contradicted by the Respondent. It is therefore reasonable to infer that the fire extinguishers were not examined to insure operability and safety at regular intervals of not more than a year apart.

7.

Violation Described in Citation -- Standard Allegedly Violated

CO[2] ext. in store has no insp. tag.

29 C.F.R. 1910.157(d)(3)(iv).

Each extinguisher shall have a durable tag securely attached to show the maintenance or recharge date and the initials or signature of the person who performs this service.

Mr. Wise testified (T-17) that [*13] there was a fire extinguisher located in the store portion of the Respondent's premises which did not have a tag showing the extinguisher had been inspected. This was not contradicted.

8.

Violation Described in Citation -- Standard Allegedly Violated

Bag sealer (cord/plug indust. elec. eqpt.) not electrically grounded

29 C.F.R. 1910.314(d)(4)(iii).

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 (should be grounded).

On direct examination Mr. Wise testified (T-17) that there was a bag sealer in the rear warehouse of the Respondent's premises that was cord and plug connected but not grounded. It was an old type machine (T-32). Mr. Von Damm testified (T-64) that the bag sealer was not used for the past six years and that it was loaded with cobwebs. He also testified that the machine was not connected to current and this was later confirmed by the Secretary's representative (T-74). It appears to the Judge that under the circumstances existing in this case, the bag sealer was effectively removed from use by the Respondent's employees and consequently did not expose [*14] the employees to any dangers or hazards.

FINDINGS OF FACT

On the basis of the Citation, Notice of Proposed Penalty, Notice of Contest, pleadings, admissions, stipulations, the testimony adduced at the hearing and the representations and briefs of the parties, it is concluded that on the record as a whole, substantial evidence supports the following findings of facts:

1. The Respondent did not post a notice furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided by the Act.

2. The Respondent did not maintain a log of all recordable occupational injuries and illnesses, a supplementary record for each occupational injury or illness nor an annual summary of occupational injuries and illnesses.

3. The evidence does not establish that the Respondent failed to keep aisles and passageways on its premises clear and without obstructions.

4. The platforms or mezzanines on the Respondent's premises were not "platforms" as that term is defined in the Regulations and consequently did not have to be guarded by a standard railing.

5. On February 9, 1972, the Respondent did not have [*15] fixed through or side step ladder extensions on its premises.

6. The evidence does not establish that on February 9, 1972, the Respondent did not maintain portable fire extinguishers in a fully charged and operable condition.

7. On February 9, 1972, there were two CO[2] fire extinguishers on the Respondent's premises which had not been examined to ensure operability and safety at regular intervals of not more than a year apart.

8. On February 9, 1972, a fire extinguisher on Respondent's premises did not have a tag attached showing the maintenance or recharge date and the initials or signature of the person who performed this service.

9. The bag sealer on the Respondent's premises on February 9, 1972, was not available for use by Respondent's employees and therefore did not constitute an occupational hazard.

CONCLUSIONS OF LAW

1. The Respondent is, and at all times material hereto was, engaged in business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Respondent is, and at all times material hereto was, subject to the requirements of the Occupational Safety and Health Act and the standards promulgated [*16] thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent violated the Occupational Safety and Health standards cited in 29 C.F.R. 1903.2, 29 C.F.R. 1910.157(d)(3)(i) and 29 C.F.R. 1910.157(d)(3)(iv).

4. Respondent did not violate the Occupational Safety and Health standards cited in 29 C.F.R. 1904.2, 29 C.F.R. 1904.4, 29 C.F.R. 1904.5, 29 C.F.R. 1910.22(b), 1910.23(c)(1), 1910.27(d)(3), 1910.157(a)(1) or 1910.314(d)(4)(iii).

5. The assessment by the Secretary of no penalty for the violations of 29 C.F.R. 1904.2 and 29 C.F.R. 1910.157(d)(3)(iv), is considered reasonable for nonserious violations under the criteria set for in Section 17(j) of the Act.

6. The assessment by the Secretary of a penalty of $35, for violation of 29 C.F.R. 1910.15(d)(3)(i), is considered reasonable for a non-serious violation under the criteria set forth in Section 17(j) of the Act.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is ORDERED

1. That the Citation issued, insofar as it alleges violation of 29 C.F.R. 1903.2, 29 C.F.R. 1910.157(d)(3)(i) and 29 C.F.R. 1910.157(d)(3)(iv), [*17] is hereby affirmed. The penalty of $35, assessed for violation of 29 C.F.R. 1910.157(d)(3)(i) and the no penalties assessed for violation of 29 C.F.R. 1903.2 and 29 C.F.R. 1910.157(d)(3)(iv), are also affirmed.

2. That the Citation insofar as it alleges violation of 29 C.F.R. 1904.2, 29 C.F.R. 1904.4, 29 C.F.R. 1904.5, 29 C.F.R. 1910.22(b), 29 C.F.R. 1910.23(c)(1), 29 C.F.R. 1910.27(d)(3), 29 C.F.R. 1910.157(a)(1) and 29 C.F.R. 1910.314(d)(4)(iii), and any penalties proposed, are hereby vacated.