TRANSCON LINES, INC.

OSHRC Docket No. 687

Occupational Safety and Health Review Commission

May 6, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon an order of Chairman Moran, directing review of a decision of Judge J. Marker Dern. Judge Dern affirmed Complainant's citation charging two non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). He assessed an aggregate penalty of $45.

The order directing review asked for submissions on the following issue:

Whether or not the citation was issued with reasonable promptness as per section 9(a) of the Act.

We have reviewed the record and have considered the issue raised in the direction for review. The issue of reasonable promptness was not raised during the issue formulation stages of these proceedings. Accordingly, we cannot consider it. Chicago Bridge and Iron Company, In addition, we note that in its brief on review Respondent specifically states that it desires a decision on the merits in this matter.

We have examined the [*2] record in its entirety. Judge Dern correctly decided that Respondent's vehicle maintenance pits were unguarded in violation of 29 C.F.R. 1910.22(c). See majority opinions in Lee Way Motor Freight Co., Inc., On the evidence of record the Judge also correctly concluded that Respondent violated the occupational health standard pertaining to noise (29 C.F.R. 1910.95(b)(1)).

Accordingly, it is ORDERED that the decision of the Judge be and the same is hereby affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur with Commissioner Van Namee in the disposition of this case. The "reasonable promptness" issue is not properly before the Commission. Chicago Bridge & Iron Co., supra, Morrison-Knudsen Co. & Assoc., No. 692 (March 28, 1974); and Advance Air Conditioning, No. 1036 (April 4, 1974). Lee Way Motor Freight Co., Inc., supra, is controlling on the merits.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: In this case there was a 48-day delay between the inspection of respondent's workplace and the issuance of a citation. One purpose of the citation is to effect the correction of conditions observed during that [*3] inspection.

29 U.S.C. 658 authorizes the complainant to issue citations alleging violations of the Act and sets forth the requirements and conditions under which this authority is to be exercised. Subsection (a) provides that

If upon inspection or investigation, the Secretary or his authorized representative believes that an employer had violated a requirement of section 5 of this Act . . . he shall with reasonable promptness issue a citation to the employer. [emphasis supplied]

Congress clearly stated what it meant by the phrase "reasonable promptness" in the conference committee report which reconciled different versions of the Act which had passed in each of the Houses. The inclusion of this requirement resulted from a compromise between differing provisions covering the citation and abatement of hazardous working conditions contained in those bills. In the final stages of the legislative processes leading to its enactment, the bill adopted by the Senate contemplated that the complainant's representative would himself decide whether there was a violation and would issue the citation at the conclusion of his inspection while still on the employer's premises. [*4] The bill which had passed the House of Representatives contemplated an inspector with lesser authority. He would simply conduct an inspection while some other official would later decide whether the conditions observed by the inspector warranted the issuance of a citation.

Under the Senate bill, therefore, there was to be no lapse of time between inspection and citation, and under the House bill, there obviously had to be some, but exactly how much was left unanswered.

These differing versions were resolved by the conference committee which drafted the language which is now 29 U.S.C. 658. In so doing that committee reported the following to Congress:

The Senate bill provided that if . . . the Secretary . . . 'determines' that an employer has violated mandatory requirements under the Act, he shall 'forthwith' issue a citation. The House amendment provided that if . . . the Secretary 'believes' that an employer has violated such requirements, he shall issue a citation to the employer. The conference report provides that if the Secretary 'believes' that an employer has violated such requirements he shall issue the citation with reasonable promptness. In the absence [*5] of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector. Report No. 91-1765, 91st Cong., 2d Session, December 16, 1970, at 38. [emphasis supplied]

This 72-hour rule is the only sensible and reasonable interpretation which can be given to the language of 658(a) in light of the very reason for the enactment of this statute: the early abatement and elimination of unsafe and unhealthful working conditions. To permit a delay of 48 days between the time an unsafe condition is observed by the complainant and his initiation of action to abate it, is to condone the continued existence of the very conditions the Act was intended to eliminate. If the cited conditions are in fact detrimental to workers' safety and health (as complainant asserts by his issuance of a citation), then working people are exposed to the same and their safety and health are unnecessarily endangered during the period of delay between inspection and citation. Delay of this kind necessarily raises a question whether complainant doubts that such conditions are actually hazardous. If he thought they were, he would certainly move [*6] promptly to effect their abatement.

In the instant case, it is clear that those requirements which respondent failed to meet (guarding of an open vehicle maintenance pit) could have easily and quickly been brought into conformance with the occupational safety and health standards. For reasons which do not appear in the record, complainant chose to let the condition persist for 48 days. Delay of this kind erodes the very legislative purpose of protecting the safety and health of working people. For the Commission to permit such a contradiction, simply because respondent has not raised it as a defense, is to elevate gamesmanship to a priority exceeding worker safety and health.

[The Judge's decision referred to herein follows]

DERN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1971, 29 U.S.C. 651, et seq. (hereinafter referred to as the Act), to review a non-serious citation issued by the Secretary of Labor (hereinafter referred to as complainant) pursuant to Section 9(a) of the Act, and proposed assessment of penalty in the amount of $45.00 upon such alleged violation pursuant to Section 10(a) of the Act.

[*7] The citation was issued March 13, 1972, alleging violations of certain safety standards which were promulgated pursuant to section 6(a) of the Act. However, respondent admitted eleven of these violations designated as Items 3 through 13 of the citation, stating that all violations had been corrected and submitted $130.00 for payment of the assessed penalties. The respondent filed notice of contest March 24, 1972, to Items 1 and 2 of the citation.

The complainant advised the Occupational Safety and Health Review Commission of the notice of contest by respondent. The Commission assigned the case to the undersigned Judge and an opportunity for hearing pursuant to Section 10(c) of the Act was afforded the respondent. The hearing was held in Oklahoma City, Oklahoma, on July 11, 1972. No additional parties desired to intervene in the proceedings. Counsel for the respective parties filed briefs, findings of fact and conclusions of law.

ISSUES

The principal issue for consideration is whether there has been a violation of Standards found at 29 CFR 1910.22(c) and 29 CFR 1910.95(b)(1). If a violation of one or more of the Standards occurred, a question arises whether the violation or [*8] violations were of a non-serious nature. If the respondent is found to have been in violation of any of the standards as alleged, then a determination must be made as to whether the penalty proposed by the complainant is appropriate.

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues presented in this case.

1. On January 25, 1972, Transcon Lines, hereinafter referred to as respondent, was a corporation engaged in a business affecting commerce (Tr. 6).

2. On January 25, 1972, respondent employed persons in a workplace, hereinafter referred to as respondent's workplace, at 1501 Southeast 15th Street, Oklahoma City, Oklahoma County, Oklahoma (Tr. 6).

3. On January 25, 1972, respondent has approximately 1,358 employees working in and about its workplace, which employees were engaged in trucking activities, loading activities and vehicle maintenance (Tr. 6).

4. During the course of an inspection of respondent's workplace by a compliance officer of the Occupational Safety and Health Administration on January 25, 1972, an open vehicle [*9] maintenance pit was observed which was not covered and which had no guardrails. With respect to this maintenance pit and other vehicle maintenance pits maintained by respondent at its workplace, the following facts have been established:

a. Respondent, at its workplace, maintains six vehicle maintenance pits in one wing of a building which are used in the maintenance of truck tractors and trailers (Tr. 78).

b. Respondent's six vehicle maintenance pits are parallel to each other and are separated from each other by concrete bays approximately seventeen feet in width (Tr. 11, 78).

c. Each vehicle maintenance pit is 120 feet in length, 31 inches in width and from 51 1/2 inches to 53 inches in depth (Tr. 78-79, 80).

d. During the periods these vehicle maintenance pits are in use they are completely covered by the truck tractor and trailer combinations being serviced. However, all vehicle maintenance pits are not continually used and there are recurring periods of time in which one or more of these pits are not covered by any type of vehicle or any other type of covering (Tr. 12, 38, 47-48, 82).

e. Respondent has not provided any type of guardrails for these vehicle [*10] maintenance pits (Tr. 48, 94).

f. Respondent's employees employed in vehicle maintenance perform their work duties in and around these maintenance pits (Tr. 82-83).

g. The hazard presented by these vehicle maintenance pits when they are not covered by a vehicle is that an employee working in the maintenance pit area or any other employee of respondent who might be temporarily in such area, such as a truck driver, could accidentally fall into the open and unguarded maintenance pit (Tr. 40, 93).

h. There was no substantial probability under the aforesaid circumstances that death or serious physical harm could result from respondent's failure to provide covers and/or guardrails for these open maintenance pits.

i. The Secretary's citation gives respondent 85 days in which to provide covers and/or guardrails for these open maintenance pits. This is a reasonable abatement period.

j. The Secretary having duly considered the gravity of the alleged violation of the safety and health standards resulting from respondent's failure to provide covers and/or guardrails for these open maintenance pits, including a consideration of the number of employees exposed to the alleged violation [*11] and the likelihood and type of injury which might result from such alleged violation, a penalty was not proposed for such alleged violation.

5. On January 22, 1972, respondent in the fuel tank repair section of its workplace was engaged in the removal of fuel tank baffles both inside and outside a small plywood enclosure. The sound level of this operation when conducted inside the plywood enclosure is 128 decibels. One of the respondent's employees was exposed to this noise level for one hour per day. The sound level of this operation when conducted outside the plywood enclosure is 124 decibels. Six of respondent's employees were exposed to this noise level for one hour per day. These were the only noise levels which were in excess of the permissible noise exposure levels set forth in Table G-16 of 29 CFR 1910.95 (Tr. 14-20, 22, 33, 35-36).

6. Respondent as of January 22, 1972, had not utilized feasible administrative and engineering controls to reduce the sound levels within the permissible levels of Table G-16.

7. Respondent as of January 22, 1972, had not made any attempt to determine the noise levels inside and outside its aforesaid fuel tank repair section. [*12]

8. With respect to ear protective equipment the following facts have been established:

a. There were ear plugs available to respondent's employees exposed to the excessive sound levels set forth in finding of fact 5 above.

b. The employee actually engaged in the aforesaid baffle removal operation had ear muffs available for use.

c. The use of such ear protective equipment was left solely in the discretion of the exposed employees (Tr. 16, 21-22, 29-33, 69-71, 72-76).

d. Respondent did not enforce its instructions to employees to wear protective ear equipment.

e. Respondent's employees normally did not wear ear protective devices during the periods they were exposed to the aforesaid excessive noise levels.

9. With respect to the reasonableness of the Secretary's citation and proposed penalty concerning the exposure of respondent's employees to excessive noise levels, the following facts have been established:

a. There was no substantial probability under the circumstances set forth in finding of fact 5 that death or serious physical harm could result.

b. The Secretary's citation gives respondent 40 days in which to reduce the noise levels at its fuel tank [*13] repair section to permissible levels. This is a reasonable abatement period.

c. The Secretary having duly considered the gravity of the alleged violation of the safety and health standards resulting from the exposure of respondent's employees to excessive noise levels as well as the good faith of respondent, its size and its history of compliance with safety and health standards, a penalty was proposed in the amount of $45.00. This penalty was reasonable under the circumstances.

10. In addition to the aforesaid violations of the safety and health standards, eleven additional violations of various safety and health standards were cited by the Secretary at respondent's workplace on January 25, 1972, and penalties were proposed in the total amount of $135.00. Such citations, the abatement dates assigned and the proposed penalties were not contested by respondent.

LAW AND OPINION

The Occupational Safety and Health Act was enacted by Congress on December 29, 1970, with the provision that it was to take effect 120 days after enactment, or as of April 28, 1971. Section 5(a)(2) of the Act, provides:

Section 5(a) Each employer

(2) Shall comply with Occupational Safety [*14] and Health Standards Promulgated under this Act.

ALLEGED VIOLATION OF 29 CFR 1910.22(c) AND 1910.95(b)(1)

Section 1910.22(c) provides, in pertinent part, as follows:

(c) Covers and guardrails. Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.

The citation for non-serious violation described the alleged violation of 29 CFR 1910.22(c) as follows:

Covers and/or guard rails were not provided to protect personnel from the hazards of an open maintenance pit in the transportation division, Truck Maintenance Shop, East Wing.

The facts disclosed that an inspection of respondent's workplace occurred following complaint of an employee regarding excessive noise. The compliance officer found that the respondent was using vehicle maintenance pits for use in maintenance of truck tractors and trailers; that during the period these pits are in use they were completely covered by the vehicle being serviced but that there were recurring periods of time when one or more of the pits are not covered by any vehicle or other type of covering.

Respondent contends that he has not violated the cited standards because its maintenance [*15] pits are not "open pits" within the meaning of this Standard; also, because covers and/or guardrails in connection with this maintenance pit would be hazardous to its employees and because its ordinary operation and access requirements would not permit the installation of covers and/or guardrails.

Mr. Arentz, a safety engineer with Transport Indemnity Company testified relative to respondent's facility as being adequate, comprehensively managed and that the pits are well marked by border lines but that the maintenance pits of respondent could be considered as an "open pit" in the ordinary accepted definition.

The facts also disclose a hazard presented by such open maintenance pits in view of the possibility that an employee might accidentally fall into a pit. In fact, this hazard was verified by respondent's manager of maintenance, Guy Highfill, who testified that an employee had accidentally fallen into one of the open maintenance pits in the past (Tr. 93). Neither the Act nor regulations define the term "open pit." However, in the ordinary accepted language, a pit is a hole, shaft or cavity in the ground or an area sunken or depressed below the adjacent floor area [*16] (See Webster's New College Dictionary). Also see Webster's Third New International Dictionary, G & C Merriam Company, Publisher, which defines pit as "an often sunken or depressed area designed for a particular use or purpose with reference to the surrounding or adjacent floor area" or "a usu. rectangular sunken area in a garage or service station designed to permit more convenient greasing of and repair work on the underside of a car." A Standard involving safety and health of employees should be liberally construed in light of the purpose of the Occupational Safety and Health Act since the prime purpose is the protection of the employee in being afforded a safe place to work. However, it is well recognized that courts should be slow to import any other than their commonly understood meaning to terms employed in the enactment of a statute. It is therefore concluded that the vehicle maintenance pit in operation by the respondent is an open pit within the cited Standard.

It is believed that the Review Commission Judge may interpret a Standard but may not rule upon the wisdom of a Standard. It is submitted that if a respondent did not believe the cited Standard was applicable [*17] to his operation, the Act, Section 6(d) provides for procedures to apply to the Secretary for a variance from a Standard. Turning to Section 29 CFR 1910.95(b)(1) which provides, in pertinent part:

When employees are subjected to sounds exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

The maximum noise exposure permitted by Table G-16 is 115 decibels for one quarter hour or less duration per day.

The facts establish that respondent's employees were exposed to noise levels of 124 and 128 decibels one hour per day and this was based upon noise meter readings. Respondent furnished ear protective equipment and instructed employees to wear such equipment while performing their job, there is no indication that the respondent made a follow-up to see if employees were using the protective equipment or if not using the equipment, to take some disciplinary action for failure to comply with his instructions. The Act places the duty upon the employer [*18] to insure a safe place of employment and this does not mean that the employer must be an absolute guarantor that his employees will observe at all times the Secretary's Standards. However, merely furnishing employees with protective equipment and not following up on whether the employees are using such equipment is a dereliction of the duty imposed by Congress on the employer.

The complainant concedes that the two violations are not of a serious nature within the Act but does contend that the violations have a direct and immediate relationship to Occupational Safety and Health. In regards to the maintenance (open) pit, a hazard is readily determinable for an employee falling in such pit, in all probability, will incur an injury, however, possible not resulting in serious injury or death. Therefore, the gravity of the violation is considered to be minimal and consequently no penalty should be imposed.

With respect to the noise violation, there is a health hazard involved where there is continued exposure to excessive noise, however, the respondent did provide protective equipment and since it has been unable to reduce the noise factor it has elected to have the work [*19] done off its premises. Complainant has proposed a penalty of $45.00. The Review Commission has indicated, Nacirema Operating Co., Inc., It was further stated by the Review Commission, Nacirema Operating Co., Inc., supra, "The gravity of a particular violation can range from de minimus, where there is very low potential for injury or occupational illness, to severe, or death or serious physical injury would be likely." The facts indicate that there is a potential for injury but the gravity of the violation is low. Accordingly, it is concluded that the proposed penalty of $45.00 is reasonable and appropriate.

CONCLUSIONS OF LAW

1. Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.

2. On January 25, 1972, respondent was an employer within the meaning of Section 3(5) of the Act.

3. On January 25, 1972, respondent's workplace was a workplace within the meaning of Section 4(a) of the Act.

4. (a) On January 25, 1972, respondent at its [*20] workplace failed to provide covers and/or guardrails to protect its employees from the hazards of an open pit in violation of Section 5(a)(2) of the Act and 29 CFR 1910.22(c) promulgated pursuant to Section 6 of the Act.

(b) Such violation was not of a serious nature within the meaning of the Act although it has a direct and immediate relationship to occupational safety and health.

(c) The Secretary's abatement period is reasonable and appropriate.

(d) It was reasonable and appropriate for the Secretary to propose no penalty.

5. (a) On January 25, 1972, certain of respondent's employees were exposed to noise levels in excess of the permissible noise exposures specified in 29 CFR 1910.95 in violation of Section 5(a)(2) of the Act and 29 CFR 1910.95(b)(1) promulgated pursuant to Section 6 of the Act.

(b) Such violation was not of a serious nature within the meaning of the Act although it has a direct and immediate relationship to occupational safety and health.

(c) The Secretary's abatement period is reasonable and appropriate.

(d) The Secretary's proposed penalty in the sum of $45.00 is reasonable and appropriate.

6. Items 5 through 13 of the citation not being contested by [*21] respondent, are the final orders of this Commission.

ORDER

WHEREFORE, it is hereby ordered that the Secretary's citation herein and his total proposed penalty of $180.00 be, and they hereby are affirmed in all respects.