PLAWNER TOY MANUFACTURING CORPORATION
OSHRC Docket No. 731
Occupational Safety and Health Review Commission
June 12, 1973
Before MORAN, Chairman; VAN NAMEE, Commissioner.
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: On August 30, 1972, Review Commission Judge Ben D. Worcester issues a decision in this case, vacating one item and affirming two others in a citation served upon respondent alleging certain violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act). He assessed a penalty of $105.
Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission.
After reviewing the record in this case, the Commission affirms the Judge's decision on items one and three of the Secretary's citation. Item two of the citation alleged a violation of section 5(a)(2) because of a failure to comply with an occupational safety and health standard published as 29 C.F.R. 1910.157(a)(5). The Judge's decision found respondent to be in violation as charged and assessed a $35 penalty as a result. We reverse the Judge as to this item and enter a finding of no violation.
29 C.F.R. 1910.157(a)(5) applies to fire extinguishers and provides as follows:
Mounting of Extinguishers. Extinguishers shall be installed on the hangers or in the brackets supplied, mounted in cabinets, or set in shevles unless the extinguishers are of the wheeled type.
The part of the citation alleging respondent to be in violation of the above is set forth below:
Item No. -- Standard or regulation allegedly violated -- Description of alleged violation.
2 -- 29 C.F.R. 1910.157(a)(5) -- Extinguishers shall be installed on the hangers or in brackets supplied.
Respondent, at the time of the inspection, had two portable fire extinguishers mounted on brackets and two standing on the floor. One unmounted extinguisher was standing next to the entrance, and the other was standing next to an extruding machine. The extinguisher in the proximity of the entrance was empty and had been placed there for a serviceman to pick up. There was no allegation in this case that three fire extinguishers were insufficient.
The extinguisher next to the extruding machine was being used by the machine operator to cool down the extruder when its heating elements got too hot. When the machine was not in use, this extinguisher was customarily placed in the wall mount. Of course, there is no requirement that a fire extinguisher be installed, mounted or set while in active use.
29 C.F.R. 1910.157(a)(1) states that
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 [emphasis added].
Since the extinguisher next to the extruding machine was in use, noncompliance with the cited occupational safety and health standard cannot be established as to that fire extinguisher at the time alleged.
Respondent was not cited for violating any requirement (if there is such) regarding the proximity of fire extinguishers to extruding machines, so that Commission pays no heed to the Judge's finding that a fire extinguisher ". . . was not in a permanent location on a hanger or shelf where it could be quickly located in case of fire near the machine."
The empty fire extinguisher on the floor next to the entrance also cannot be regarded as in noncompliance since this standard cannot be construed to require the mounting of empty extinguishers. Clearly the mounting of an empty extinguisher would not reduce hazards. It would create them.
For the foregoing reasons, the Commission reverses the Judge's decision as to item two of the citation and vacates the penalty assessed therefor. In all other respects, the Judge's decision is affirmed.
[The Judge's decision referred to herein follows]
WORCESTER, JUDGE, OSAHRC: This proceeding came on for hearing in New York, New York pursuant to the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act) on June 21, 1972.
On March 22, 1972, the Secretary issued a citation under the provisions of Section 9(a) of the Act alleging that the Respondent had violated the standards promulgated by the Secretary of Labor composed of three items as follows:
1. Section 29 CFR 1910.242(b) -- Use of an air nozzle where pressure had not been reduced below 30 p.s.i.
2. Section 29 CFR 1910.157(a) -- Failure to mount fire extinguishers on hangers or in brackets.
3. Section 29 CFR 1910.36(d)(1) -- Failure to maintain exits in the rear wall of the production area free of all obstructions or impediments, so as to be available immediately in case of fire or other emergency.
The Secretary proposed a penalty of $35.00 each on Items 1 and 2 and $70.00 on Items 3 of the alleged violation. Respondent filed a notice of contest on April 7, 1972. The Secretary thereafter filed a complaint incorporating the three alleged violations in paragraphs IV, V and VI, respectively, of the complaint on April 13, 1972, and asked for affirmance of the violations and the proposed penalty of $140.00.
STIPULATIONS
Prior to the hearing it was stipulated and agreed between counsel for the Secretary and Karl Plawner for the Respondent, that the Plawner Toy Manufacturing Corporation is incorporated under the laws of the State of New Jersey with its principle place of business in Lodi, New Jersey; that it was engaged in interstate commerce at the time of the alleged violation and that it had control of the premises at which it is alleged violations occurred on March 17, 1972. At the time of the alleged violation and the issuance of said citation it was further stipulated that Plawner Toy Manufacturing Corporation is a small business having a net worth of approximately $50,000. The Respondent had two full time employees. The Respondent acknowledged service of the citation and notice of proposed penalty. At the hearing, Harry Thompson, Compliance Officer, testified for the Secretary, Karl Plawner, a corporate officer, and Hana Plawner, an employee, testified for the Respondent.
THE EVIDENCE
The Secretary's Compliance Officer, Thompson, testified that he had made an inspection of the Respondent's manufacturing plant at Lodi, New Jersey in October 1971, and that it had resulted in a citation in January 1972, alleging use of air pressure for cleaning in excess of 30 p.s.i., unmounted fire extinguishers and blocked exits which would endanger employees if there were a fire. On reinspection on March 15, 1972, the same deficiencies were found (Tr. 49, 69).
On March 17, 1972, the Secretary's Compliance Officer made a third inspection of the Respondent's plant and found the same deficiencies as before. The Respondent's plant was described as a one-story brick building. The front third consisted of offices. The remainder was used for production and storage. This area contained a machine used to process plastic material. There was an air hose in the vicinity of this machine hanging from an overhead fastener. The Compliance Officer, Thompson, testified that on his first inspection in October, Plawner had told him that this air hose was used by an employee who came in at night (Tr. 29). At the hearing Plawner testified that the air hose had not been used for 5 years (Tr. 81). During the March 17, 1972, inspection when Plawner was questioned about the air pressure in the hose he severed it with a knife. It then became apparent that pressure to the nozzle had been shut off since there was no emission of air (Tr. 62). The Compliance Officer nevertheless recommended a citation on the basis of his observation that the nozzle was not of the approved type which would reduce pressure less than 30 p.s.i. when used (Tr. 62). The Compliance Officer later conceded that the proper way to determine pressure would be to attach a pressure gauge at the nozzle (Tr. 65).
It is not disputed that there was a fire extinguisher on the floor near the machine in the production section and that it was kept there whenever the operator was working due to the fact that there was overheating when the machine was being used. The operator kept the fire extinguisher close by so that he could spray the machine and cool it when it got too hot. There were brackets in the wall from which the extinguisher was hung when the machine operator was not working (Tr. 30, 31, 32).
Thompson said that, if the fire extinguisher were needed near the machine, it should have been mounted on brackets there so that in an emergency the operator would know instantly where to get it. If it were placed on the floor it could be obscured if cartons or other supplies were placed in front of it or it could be moved by someone else with the result that the machine operator might not be able to locate it is an emergency (Tr. 68).
The most serious charge against the Respondent was an allegation that exit doors were blocked so that employees working in the production area might be unable to get out of the building quickly in the event of fire. The evidence shows that the rear exit door was blocked in October 1971. It was blocked on March 15, 1972, and it was still blocked on March 17, 1972 (Tr. 48, 49). Plawner claimed that the real door was only blocked temporarily on March 17 due to the delivery of a new piece of machinery that day (Tr. 88). However, the Compliance Officer testified that the machinery was not the only obstruction there. He also saw cartons and production material there, not only on March 17 but also on his previous inspections (Tr. 33). This merchandise totally blocked the door so that no one could have used it in an emergency. The same was true of the overhead garage type door on the side of the building. It also was blocked by the storage of stock (Tr. 34). Thompson said that if a fire should break out in the vicinity of the machine, employees between the machine and the rear exit would be unable to get out (Tr. 41). This equipment was used to mold plastic, a type of material which is flammable. There is always a possibility of a fire when a combustible material is being processed. The fire hazard was increased by the presence of the cardboard cartons (Tr. 42).
Considering the fact that the machine became so hot that it was necessary to have a fire extinguisher adjacent to it to cool it, it is obvious that a very serious fire hazard was created by the Respondent's continuing failure to keep the exit doors in the production area free and clear of obstruction.
As is to be expected in such circumstances there are elements involved which affect the weight of the testimony of the witnesses. These elements must be considered in evaluating the testimony. It was apparent at the hearing that there was bad feeling between the witness, Plawner, and the Compliance Officer, Thompson. Thompson testified that at the time he was reinspecting the Respondent's premises on March 15 that Plawner became so irritated and angry that he felt compelled to withdraw as soon as possible in order to avoid more serious disagreement (Tr. 52). Miss Plawner during her testimony persisted in denouncing Thompson, and questioned his competence (Tr. 102-105).
During the first inspection on October 1971 it was determined that a poster had not been put up as required by regulation. When he returned in March, Thompson inquired as to whether it had been thumbtacked on the bulletin board. She then produced it from a file. When he looked at it he was unable to find any holes. He was then told it must have been put up with scotch tape but he said there was no evidence of that (Tr. 53). Miss Plawner when testifying disputed Thompson's statement that the poster had not been hung. She said that after they had received a citation on January 26, the poster was put up with scotch tape and left up until after the violations had been corrected. She said that she found Mr. Thompson to "be very unreasonable" (Tr. 103).
The record also shows that the Compliance Officer, Thompson, after having the opportunity to confer with counsel during a recess changed his testimony. When asked on direct examination if, in determining the penalty, he considered the number of employees exposed to the hazard he said that he did not (Tr. 46). Immediately after recess he was asked the same question and said that he did (Tr. 78). However, in all other respects Thompson was very straight-forward. For example, he readily admitted when testifying that he could not be sure that there was more than 30 pounds p.s.i. pressure at the nozzle at the Respondent's plant without putting a gauge on the nozzle itself.
There is a marked conflict in the testimony of the witnesses about the exit doors. Plawner testified that there was only a temporary obstruction on March 17, 1972, during the time a piece of machinery which had been delivered that day for installation in the plant was on the loading dock, but Thompson said that, not only on this occasion but at the time of the previous two inspections, this door was obstructed by cartons and other stock stored inside the building. Plawner contended that even if the rear door were obstructed that the overhead side door could be used as an exit in an emergency but Thompson testified that this door was also obstructed by cartons and stock (Tr. 33, 34).
DISCUSSION OF THE LAW AND EVIDENCE
In its notice of contest submitted April 3, 1972, the Respondent, referring to Item 2, stated hat all of its fire extinguishers were mounted on hangers and that the one observed by Thompson on the floor had been left standing there for pick up and recharging by their supplier. A statement substantiating this contention was offered in evidence at the hearing. However, as has been previously noted, Karl Plawner in his testimony changed his justification for the fire extinguisher being off of the bracket or hanger, by stating that it was on the floor for the convenience of the machine operator. A due bill for filling a fire extinguisher has no relevance to a charge of failing to hang fire extinguishers as required by the standards.
The citation served by the Secretary was deficient in that it failed to allege when the violation occurred. The record establishes March 17, 1972, as the date of alleged violation referred to in the March 22, 1972, citation (Tr. 7, 13).
The Complainant has failed to sustain the burden of proof that the Respondent's employees were exposed to air line pressure of more than 30 p.s.i. The Respondent has not disputed the allegation that fire extinguishers used by Respondent's employees were not hung on brackets or placed on shelves except during the periods when the operator was not using the plastic molding machine. This is an admission of violation of 29 CFR 1910.157(a)(5)
The Respondent has vigorously denied, through its witnesses, the allegation that exit doors were obstructed. The Judge is of the opinion that this testimony by these two witnesses is not credible enough to rebut the testimony of the Compliance Officer. His testimony was that the doors were blocked on each of the three occasions he entered the plant.
FINDINGS OF FACT
1. The Respondent is now and was at all times relevant to the issues a New Jersey corporation engaged in processing and distributing small plastic objects.
2. The Respondent had control and supervision over the plant and equipment at all work places in its Lodi, New Jersey, facility at all times material to the issues herein.
3. The Respondent has two full-time employees and some part-time employees.
4. The Respondent is engaged in commerce which involves the shipment of products to states outside of the State of New Jersey.
5. The citation and proposed penalty in issue resulted from an inspection of the Respondent's premises in Lodi, New Jersey, on March 17, 1972.
6. The net worth of the Respondent is $50,000.
7. There is no evidence that the Respondent permitted its employees to be exposed to compressed air for cleaning purposes greater than 30 p.s.i.
8. The Respondent permitted its employees to keep a fire extinguisher on the floor near a plastic processing machine. It was not in a permanent location on a hanger or shelf where it could be quickly located in case of fire near the machine.
9. That the Respondent on March 17, 1972, and on two prior occasions when inspected by the Complainant's compliance officers was found to have obstructed exit doors resulting in a hazard to the life and safety of its employees in the case of fire.
CONCLUSIONS OF LAW
1. The Respondent is, and was at all times relevant to the issue herein, engaged in a business affecting commerce within the meaning of Section 3(3) of the Occupational Safety and Health Act of 1970.
2. The Respondent is, and was at all times material herein, an employer within the meaning of Section 3(6) of the Act and subject to its provisions under Sections 4(a) and 5(a) of the Act and the standards authorized by Section 6.
3. The Respondent has not been shown by competent proof to have been in violation of 29 CFR 1910.242(b) on March 17, 1972, as alleged in Item 1 of the citation and paragraph IV of the Secretary's complaint.
4. The Respondent on March 17, 1972, committed a violation of 29 CFR 1910.157(a)(5) in that its employees were provided with fire extinguishers which were not installed on hangers or brackets.
5. The Respondent on March 17, 1972, was in violation of 29 CFR 1910.36(d)(1) because of an obstruction of exit doors in violation of the standards set forth in this regulation.
6. Considering the size of the Respondent's business, its record of previous violations resulting in a citation on January 1972 and the gravity of the violations, the proposed penalty of $35.00 for violation set forth in citation 2 and of $70.00 for the violation set forth in citation Item 3 is reasonable.
ORDER
Upon consideration of the record it is hereby ordered that:
1. Item 1 of the citation of violation of 29 CFR 1910.36(d)(1) and the proposed penalty thereon of $35.00 should be and the same is vacated.
2. The Secretary's citation of violation (Item 2 and 3) of Sections 1910.157(a)(5) and 1910.36(d)(1) of Title 29, Code of Federal Regulations, and the respective proposed penalties thereon is affirmed.