VITAMIN PREMIXERS OF OMAHA, INC.
OSHRC Docket No. 741
Occupational Safety and Health Review Commission
April 16, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
MORAN, CHAIRMAN: On November 1, 1972, Review Commission Judge Alan Wienman issued a decision in this case holding that respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act) by its failure to comply with various occupational safety and health standards, and assessing a total penalty of $400.00. Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission to determine whether, in the assessment of penalties, respondent was accorded his right to receive the due consideration of the Commission as provided in section 17(j) of the Act.
The Commission has reviewed the entire record in this case, including the briefs of the parties, and finds no prejudicial error therein. Accordingly, it is ordered that the Judge's decision is hereby affirmed in all respects.
[The Judge's decision referred to herein follows]
WEINMAN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act) contesting certain penalties proposed for safety violations set forth in 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 on the basis of an inspection of the workplace under the ownership, operation or control of the Respondent, located at 1102 Capitol Avenue, Omaha, Nebraska, that 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 23, 1972, alleged that the Respondent violated the following standards (cited as codified in Code of Federal Regulations):
(1) 29 CFR 1910.157(c)(1)(ii, iii, and iv), which requires provision of fire extinguishers for the protection of both the building structure and the occupancy hazards contained therein. Building protection must be provided by fire extinguishers suitable for Class A fires, and occupancy hazard protection must be provided by fire extinguishers suitable for such Class A, B, C or D fire potentials as may be present;
(2) 29 CFR 1910.212(a)(5), which requires guarding of fan blades when the periphery of the blades is less than seven feet above the floor or working level;
(3) 29 CFR 1910.151(c), which requires provision of suitable facilities for quick drenching or flushing of the eyes and body where the eyes and body of any person may be exposed to injurious corrosive materials;
(4) 29 CFR 1910.23(e)(5)(iv), which provides that handrails shall be mounted so that the completed structure is capable of withstanding a load of at least 200 pounds applied in any direction at any point on the rail;
(5) 29 CFR 1910.242(b), which provides that compressed air shall not be used for cleaning purposes except where reduced to less than 30 P.S.I. and then only with effective chip guarding and personal protective equipment; and
(6) 29 CFR 1910.326(h)(i), which requires motors, generators and other rotating electrical machinery in Class II, Division I locations to be dust-ignition-proof or totally enclosed pipe-ventilated and approved for Class II locations.
Pursuant to the enforcement procedures set forth in Section 10(a) of the Act, the Respondent was notified by letter dated March 23, 1972, from Oscar F. DiSilvestro, Acting Area Director of the Omaha area, Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess penalties for the alleged violations in the following sums: Item No. 1, $125; Item No. 2, $25; Item No. 3, $125; Item No. 4, $25; Item No. 5, $50; Item No. 6, $125.
After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the cause was set for hearing at Omaha, Nebraska, on September 7, 1972. However, prior to the hearing the undersigned Judge received a letter from Andrew E. Grimm, Esq., of Gaines, Spittler & Otis, Omaha, Nebraska, counsel for the Respondent, which stated:
"Enclosed herewith please find signed originals and copies of the Stipulation of Fact and Stipulation of Expected Testimony with regard to the above captioned matter. The only matter at issue is the amount of the penalties, so a hearing is not needed. I have conferred with Donald McCoy, Attorney with the Regional Solicitor's Office, Department of Labor, and we agree that briefs and proposed findings of fact and orders should be submitted to you by September 11, 1972."
Subsequent to receipt of the aforementioned stipulations, the undersigned Judge, to whom the cause had been assigned by an Order of the Commission dated August 1, 1972, reviewed the pleadings and other documents filed in the case, including the Citation and Notification of Proposed Penalty; the Notice of Contest; Complaint; Answer; the Stipulation of Fact and Stipulation of Expected Testimony; the Secretary's Proposed Findings of Fact, Conclusions of Law and Order; Respondent's Proposed Memorandum and Order, and the Respondent's Brief. The aforesaid documents were considered as the record in this case, and this Decision is based upon their contents.
No jurisdictional questions are at issue, the stipulations reciting facts sufficient to establish that the Respondent is subject to the Act, and that the Commission has jurisdiction of the parties and the subject matter.
The Notice of Contest and the stipulations reduce the issues for decision to a determination of whether the penalties proposed for the safety standard violations set forth in the Citation issued March 23, 1972, are appropriate and should be affirmed, or whether the proposed penalties are excessive and should be modified or vacated.
When Congress entrusted the Occupational Safety and Health Review Commission with authority to assess all civil penalties provided for in the Act, it set forth a number of general guidelines. First, it expressly acknowledged the existence of a class of minor or "de minimis violations" which have no direct or immediate relationship to safety or health. Such infractions do not result in a monetary penalty, and at the discretion of the Secretary of Labor, need not even be attended by the issuance of a citation (Section 9(a)).
Those violations which are determined to imperil the health and safety of employees in a more direct or immediate fashion are the subject of further classification under the statutory arrangement. In ascending order of gravity, violations progress from "de minimis" to "non-serious" to "serious" to "willful or repeated."
All violations in the instant case are alleged to be "non-serious." For such infractions an employer "may be assessed a civil penalty of up to $1,000 for each such violation" (Section 17(c)). In assessing any civil penalty, the Commission must give due consideration to "the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations" (Section 17(k)).
The statutory categories for classifying violations should not be confused with the Section 17(k) criteria considered in assessing penalties, but there is a common or recurring element, namely, the degree of hazard. This factor is the sine qua non of violation classification; it also is an element which must again be considered in weighing the gravity of the violation for penalty assessment purposes. In Secretary of Labor v. National Realty and Construction Company, Inc., against injury, if any; and (4) the degree of probability of occurrence of an injury. (Emphasis supplied)
This somewhat prolix discussion of violation classification and penalty assessment procedures is prompted by the fact that the Respondent herein has candidly urged the Commission to vacate penalties proposed for admitted non-serious violations of the Act under the doctrine enunciated by the Commission in Secretary of Labor v. General Meat Company,
". . . There are many instances where the violation of the Act or its standards is not de minimis, but because of other factors, the violation warrants a small penalty or no penalty."
In General Meat Company the Commission vacated the penalties for a half dozen non-serious violations because of 'Respondent's good faith, his immediate attention to abatement, and the low level of gravity of violations found." In an earlier decision, Secretary of Labor v. J. E. Chilton Millwork,
Thus the Commission recognizes that there is a class of violations which bears too direct or immediate a relationship to employee health or safety to warrant de minimis treatment, but which does not result in the imposition of monetary penalties if the employer has a good safety record and manifests his interest in safety by prompt abatement of all hazardous conditions.
This segment of the violations spectrum is not yet clearly dilineated, but representative examples are found in the Chilton Millwork and General Meat Company cases. In the former case no penalties were assessed for such items as failure to have a person trained to render first aid; disorderly storerooms and restrooms; no adequate space for employees to eat lunch; failure to inspect fire extinguishers; failure to ground refrigerators, hotplates, coffeepots, soft drink dispensers, etc.; and use of compressed air for cleaning purposes in pressures in excess of 30 P.S.I.
The violations for which penalties were vacated in General Meat Company related to such minor health and safety matters as the lack of a ladies' retiring room for rest or emergency; failure to provide an adequate number of ladies' water closets; failure to equip water closets with doors, latches and coat hangers; failure to provide a lunch area within the plant; fire extinguishers not located in designated places; and fire extinguishers not properly mounted.
The common element appearing in all the aforementioned violations for which penalties were vacated was the low level of hazard to employer health or safety. Stipulations in the instant case reflect no adverse facts about the employer's safety record and assert prompt and careful abatement of all hazardous conditions. The Respondent is entitled to application of the Chilton Millwork and General Meat Company doctrine with respect to those citation items attended by a low level of gravity. From a careful review of the facts set forth in the stipulation, the undersigned Judge is persuaded that the penalties should be vacated for Citation Items 4 and 5. The latter item is a violation of 29 CFR 1910.242(b) relating to the use of compressed air for cleaning purposes at a pressure in excess of 30 P.S.I. A penalty for similar violation was vacated in Chilton Millwork. Citation Item 4 alleges a violation of 29 CFR 1910.23(e) because a stairway handrail could be moved laterally by exerting slight hand pressure. This condition borders on a de minimis violation, and it is noted that in the case of Secretary of Labor v. Caledonian Dye Works, Judge Charles K. Chaplin refused to assess a penalty although there was a complete absence of the stair handrail.
The remaining violations in the instant case equate with a higher degree of probability of injury. For example, the failure to provide fire extinguishers suitable for use in a Class A fire, as set forth in Citation Item No. 1, exposed 13 persons to a measurably increased fire hazard. The failure to guard fan blades, in violation of 29 CFR 1910.212(a)(5), as alleged in Citation Item No. 2, directly affected the physical safety of five employees. The failure to provide a safety shower or eye wash in a laboratory where three employees were exposed to corrosive liquids, as set forth in Citation Item No. 3, was not a low hazard violation. Nor was the violation of 29 CFR 1910.326(h)(i), as set forth in Citation Item No. 6, a minor matter for it related to increased fire hazard through the operation of unimproved motors in a plant area where chemicals, vitamins and ricemeal were mixed and there was a foreseeable risk of dust ignition.
After a careful review of the matters set forth in the Citation, the Complaint, and the Stipulations, the undersigned Judge is persuaded that the methodology employed by the Department of Labor in proposing the penalties for Citation Items 1, 2, 3 and 6 paid heed to the gravity of the violations in terms of potential harm to Respondent's employees, the Respondent's good faity, the size of the business and the Respondent's lack of history of prior violations. The Respondent's prompt abatement was admirable, but it was given a 50% credit for compliance with the abatement order. The record thus adequately sustains findings that the proposed penalties for Citation Items 1, 2, 3 and 6 are appropriate for the violation of safety standards as set forth in the Citation and should be affirmed.
FINDINGS OF FACT
(1) Vitamin Premixers of Omaha, Inc., a corporation with its place of business at 1102 Capitol Avenue, Omaha, Nebraska, on March 17, 1972, was engaged in the production, sale and distribution of premixed animal feed.
(2) On March 17, 1972, on the first and second floors of Respondent's place of business, it failed to provide fire extinguishers for the protection of both the building structure and the occupancy hazards contained therein, in violation of 29 CFR 1910.157(c)(1)(ii-iv). Approximately 13 of Respondent's employees were affected by this violation.
(3) On March 17, 1972, on the second floor of Respondent's place of business, two window fans with the periphery of their blades less than seven feet above the floor did not have their blades guarded, in violation of 29 CFR 1910.212(a)(5). Approximately five of Respondent's employees were affected by this violation.
(4) On March 17, 1972, in the laboratory on the second floor of Respondent's aforesaid place of business, at an area where the eyes or bodies of persons may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body were not provided within the work area for immediate emergency use, in violation of 29 CFR 1910.151(c). Approximately three of Respondent's employees were affected by this violation.
(5) On March 17, 1972, the handrail on the stairway leading to the basement in Respondent's place of business was not capable of withstanding a load of at least 200 lbs. applied in any direction at any point in the rail, a violation of 29 CFR 1910.23(e)(5)(iv). Approximately eight of Respondent's employees were affected by this violation.
(6) On March 17, 1972, at Respondent's place of business, compressed air used for cleaning purposes was not reduced in pressure to at least 30 P.S.I. and effective chip guarding and personal protective equipment was not provided, in violation of 29 CFR 1910.242(b). Approximately three of Respondent's employees were affected by this violation.
(7) On March 17, 1972, on the second floor of Respondent's place of bsuiness, two fans located in a Class II, Division I location, as defined in 29 CFR 1910.322(d)(1), had motors which were not approved for Class II locations, in violation of 29 CFR 1910.326(h)(i). Approximately 13 of Respondent's employees were affected by this violation.
CONSLUSIONS OF LAW
(1) On March 17, 1972, Vitamin Premixers of Omaha, Inc., Respondent, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.
(2) Section 5(a)(2) of the Act imposed a duty on Respondent to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a)(2) of the Act.
(3) Respondent violated Section 5(a)(2) of the Act on March 17, 1972, by its non-compliance with the occupational safety and health regulations as follows:
(a) 29 CFR 1910.157(c)(1)(ii-iv) as described in Citation Item 1 and Finding No. 2. A penalty of $125 is appropriate.
(b) 29 CFR 1910.212(a)(5) as described in Citation Item No. 2 and Finding No. 3. A penalty of $25 is appropriate.
(c) 29 CFR 1910.151(c) as described in Citation Item No. 3 and Finanding No. 4. A penalty of $125 is appropriate.
(d) 29 CFR 1910.23(e)(5)(iv) as described in Citation Item No. 4 and Finding No. 5. It is appropriate that no monetary penalty be imposed for said violation.
(e) 29 CFR 1910.242(b) as described in Citation Item No. 5 and Finding No. 6. It is appropriate that no monetary penalty be imposed for said violation.
(f) 29 CFR 1910.326(h)(i) as described in Citation Item No. 6 and Finding No. 7. A penalty of $125 is appropriate.
(4) Penalties for non-serious violations set forth in the foregoing paragraphs in the amount of $400 are appropriate giving due consideration to the size of the business of the employer, the gravity of the violation, the good faith of the employer, the employer's previous history, and his prompt action to abate the conditions.
Based on the above Findings of Fact and Conclusions of Law, it is ordered that the Citation issued Respondent on March 23, 1972, is hereby affirmed and a total penalty of $400 is hereby assessed for violations of the Occupational Safety and Health Act standards alleged in Items 1, 2, 3 and 6 of the aforesaid Citation; it is further ordered that all penalties proposed with respect to Citation Items 4 and 5 are hereby reduced to zero.