WESTINGHOUSE BROADCASTING CO., INC., d/b/a WBZ TV GROUP W WESTINGHOUSE BROADCASTING

OSHRC Docket No. 76-1036

Occupational Safety and Health Review Commission

January 29, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

Martin J. Saunders, WBZ TV Westinghouse Broadcasting Corp., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Administrative Law Judge David J. Knight dated February 14, 1977, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Knight concluded that Westinghouse Broadcasting Co., Inc., d/b/a WBZ TV Group W Westinghouse Broadcasting (Westinghouse) committed a serious violation of section 5(a)(2) of the Act by failing to comply with 29 CFR §   1910.37(q)(1) and assessed a $100 penalty therefor.   The judge vacated all the other alleged violations contested by Westinghouse.

I directed review on the following issues set forth in the Secretary's petition for discretionary review: whether the judge erred in vacating the items in the citations alleging noncompliance with 29 CFR § §   1910.22(a)(1), 1910.106(d)(5)(i), 1910.36(b)(4), and 1910.36(d)(1).   Former Commissioner Moran subsequently directed review "for error by   [*2]   the Commission to determine whether each element of the Order is fully justified by the record." Pursuant to that general direction for review, the following issue raised by the respondent on review is also for our present consideration: whether the judge erred in affirming the item alleging a serious violation of the Act for failure to comply with §   1910.37(q)(1) and in assessing a $100 penalty therefor.

We affirm the judge's vacation of the three items alleging noncompliance with § §   1910.22(a)(1), 1910.106(d)(5)(i), and 1910.36(d)(1), as well as the judge's affirmance of the item charging a serious violation of the Act for failure to comply with §   1910.37(q)(1).   With regard to the alleged failure to comply with §   1910.36(b)(4), however, we reverse the judge's conclusion and find that a serious violation of the Act was committed.

Facts in General

On January 27, 1976, the respondent's broadcasting station in Boston, Massachusetts, was inspected by a compliance officer from the Occupational Safety and Health Administration (OSHA).   As a result of that inspection, the Secretary issued to the respondent three citations containing a total of 38 items alleging nonserious (Citation [*3]   No. 1) and serious (Citations No. 2 and No. 3) violations of section 5(a)(2) of the Act and a notification of proposed penalties.   The two-story building that was the subject of the inspection housed the respondent's main facilities for its local television and radio stations. Westinghouse employed approximately 250 persons at the worksite.

Westinghouse timely filed a notice of contest to the following items in the citations alleging Westinghouse's noncompliance with the indicated standards:

(1) Citation No. 1 (nonserious), Item No. 1(b), 29 CFR §   1910.22(a)(1);

(2) Citation No. 1 (nonserious), Item No. 10, 29 CFR §   1910.106(d)(5)(i);

(3) Citation No. 1 (nonserious), Item No. 11, 29 CFR §   1910.106(e)(2)(ii)(b)(1);

(4) Citation No. 2 (serious), Item Nos. 1A(a),(b),(c), 29 CFR §   1910.36(b)(4);

(5) Citation No. 2 (serious), Item No. 1B, 29 CFR §   1910.36(d)(1);

(6) Citation No. 2 (serious), Item No. 1C(e), 29 CFR §   1910.37(q)(1);

(7) Citation No. 3 (serious), Item No. 1A(a), 29 CFR §   1910.309(a), Art.400-4(1) of the 1971 National Electrical Code (NEC);

(8) Citation No. 3 (serious), Item No. 1F, 29 CFR §   1910.309(a), Art.240-16(a) of the NEC.

In its answer to the Secretary's [*4]   complaint, Westinghouse admitted jurisdiction, denied the contested violations as well as the appropriateness of the proposed penalties, and averred that compliance with any of the cited standards would have been impossible or unreasonably difficult and would have resulted in a greater hazard. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The two affirmative defenses were later limited to particular alleged violations.   The respondent asserted the defense of impossibility of compliance only with regard to its alleged noncompliance with §   1910.22(a)(1) in its post-hearing brief and brief on review.   Westinghouse argued that compliance with the standard would result in a greater hazard only with regard to its alleged noncompliance with §   1910.36(b)(4) in its brief on review.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Judge Knight heard the case on June 3, 1976.   At the hearing, the Secretary withdrew Citation No. 1, Item No. 11, alleging noncompliance with §   1910.106(e)(2)(ii)(b)(1) and the judge granted the respondent's motion to dismiss Citation No. 2, Item No. 1A(b) which alleged that Westinghouse [*5]   failed to comply with §   1910.36(b)(4) by locking the near exit from the main TV studio. As noted above, Judge Knight affirmed a serious violation of §   1910.37(q)(1) and assessed a penalty of $100 for that violation.   He vacated all the other contested items.   We now consider the alleged violations in items "(1)," "(2)," "(4)" Item Nos. 1A(a) and (c), "(5)," and "(6)" listed above. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The judge's disposition of the violations alleged in "(7)" and "(8)" above will not be considered on review since neither party has taken issue with those portions of the judge's decision, and there is no compelling public interest warranting further Commission action.   Water Works Installation Cop., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).   The disposition of these two items is accorded the significance of an unreviewed judge's decision.   Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

- - - - - - - - - - - - - -   [*6]   - - -End Footnotes- - - - - - - - - - - - - - - - -

§   1910.22(a)(1)

The Secretary alleged in Citation No. 1, Item No. 1(b) that Westinghouse committed a nonserious violation by failing to comply with §   1910.22(a)(1) n3 in that the respondent did not maintain the television news room in a clean, orderly, and sanitary condition.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 The standard states:

Subpart D - Walking-Working surfaces

* * *

§   1910.22 General requirements.

* * *

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In the television news room, which is two stories high, reporters, technicians, and administrative employees prepare for the news programs.   Reporters occupy cubicles one story high which are located on the Perimeter of the room, and there are desks in the middle of the room.   In one corner of the room, the ceiling began to leak one or two months before the inspection, and the leak became progressively worse with   [*7]   water eventually dripping down into the room.   In order to protect the two reporters' offices directly below the leak, a plywood ceiling was constructed over the affected cubicles, and that lower ceiling was covered with plastic.   Buckets and other containers were placed on the floor so as to catch the water as it dripped off the sheets of plastic.   At the time of the alleged violation, the plastic had been on the lower ceiling for months, while the buckets had been in use for weeks.   Employees had complained about the situation for months.   A very heavy rainfall occurred two to three days before the inspection.

Andrew Previte, the compliance officer who conducted the inspection, testified at the hearing that he considered the conditions in the room to constitute a "housekeeping problem" and a "health menace." He further stated that "the water from what I understood was dirty water" leaked onto the plastic covering the plywood ceiling, then dripped into the buckets, and finally splashed onto the floor, thus creating a slipping hazard as well as a health hazard. He admitted on cross-examination, however, that he did not test any of this water to determine the bacteria content.

Paul [*8]   Puccio, a television technician employed by Westinghouse who worked in the building at the time of the inspection, testified that what leaked from the ceiling "was not clean water by any means" due to the debris it collected in traveling through sub-ceilings and crawl spaces.

Although Judge Knight noted that "the condition was sloppy and disorganized," he vacated this item on the following grounds: (1) the conditions created by the leak in the building's roof were unavoidable, and the respondent had done all that it could to control the leak's effects; (2) a more effective manner of complying with the standard than that used by the respondent had not been shown; and (3) "while a slipping hazard may have existed, there being evidence that the newsroom is an active area but there being no evidence that employees were in the area where the water was being drained off the plastic covering before its collapse, and the condition . . . was not caused by any routine practice or policy of respondent."

The Secretary contends on review that the judge erred in finding that the respondent did whatever it could to control the effects of the leak in the roof.   He argues that the judge incorrectly [*9]   focused on the respondent's efforts to repair the roof rather than on Westinghouse's poor housekeeping in that it failed to control the conditions created by the leak, i.e., puddles of dirty water on the floor that created a slipping and health hazard. The Secretary states that the judge erred in emphasizing the very heavy rainfall that occurred just prior to the inspection because the disorderly conditions created by the leak had existed for weeks.   He also asserts that, contrary to what the judge said, the Secretary does not have the burden of showing how the violation resulting from noncompliance with the standard at issue should be abated.   The Secretary maintains that he need only establish the existence of a hazard and employee exposure to that hazard in order to prove that the respondent failed to comply with the standard and states that he has offered such requisite proof.   He further asserts that it is not necessary for him to show that a condition is permanent or caused by some regular policy of the respondent in order to prove that a violation occurred.   Finally, the Secretary takes exception to the judge's finding that there was no employee exposure to the conditions [*10]   because water was dripping into the office cubicles of two employees, while a number of employees regularly used or traveled through the area affected by the leak.

The respondent argues on review that the judge correctly vacated Item No. 1(b) in Citation No. 1 because the Secretary stated at the outset of the hearing that it was the unsanitary condition of the room that he sought to prove, yet Previte testified on direct examination that he was not sure that the water was dirty, and on cross-examination that he did not test the leaking water for bacteria.   Westinghouse further asserts that Item 1(b) should be vacated because in Citation No. 1, Item No. 2(a), Westinghouse was cited for and did not contest an alleged violation of §   1910.22(a)(2) n4 for failure to maintain the floor of the television news room in a clean and as dry as possible condition, and Item No. 2(a) particularly noted the water leaking from the ceiling.   Westinghouse contends that it cannot be cited and penalized for noncompliance with two different standards based on the same condition, i.e., the wet floor in the news room caused by the leak in the roof.   Westinghouse also raises the affirmative defense of [*11]   impossibility of compliance.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The standard states in pertinent part: Subpart D - Walking-Working Surfaces

* * * §   1910.22 General requirements.

* * *

(a) Housekeeping.

* * *

(2) The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We affirm the judge's vacation of the item but for a different reason than those set forth in the judge's decision.   We agree with the respondent that as a result of the Secretary's failure to establish that the news room was not in a sanitary condition, the item alleging noncompliance with §   1910.22(a)(1) should be vacated because another item in the same citation already addressed the hazard of the wet floor in alleging noncompliance with §   1910.22(a)(2) and was not contested by Westinghouse.   Lee Way Motor Freight, Inc., 77 OSAHRC 7/D13, 4 BNA OSHC 1968, 1976-77 CCH OSHD P21,464 (No. 10699, 1977) (an item alleging noncompliance with §   1910.22(b)(1), based on a portable dock plate not in good repair and presenting [*12]   a tripping hazard, was vacated as duplicative of another item alleging failure to comply with §   1910.30(a)(2), in that the portable dock plate was not secured in position during unloading).

Inasmuch as the contested item alleging noncompliance with §   1910.22(a)(1) is duplicative of the uncontested item charging failure to comply with §   1910.22(a)(2), we vacate the contested item. n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 We therefore need not reach the merits of the affirmative defense of impossibility of compliance that the respondent asserts.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

§   1910.106(d)(5)(i)

In Citation No. 1, Item No. 10, the Secretary alleged that the respondent failed to comply with §   1910.106(d)(5)(i) n6 by storing two five-gallon drums of alcohol in the videotape room so as to limit the use of exits or areas normally used by employees for safe egress from that room.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 The standard reads as follows:

Subpart H - Hazardous Materials

* * *

§   1910.106 Flammable and combustible liquids.

* * *

(d) Container and portable tank storage.

* * *

(5) Storage inside building --

(i) Egress. Flammable or combustible liquids, including stock for sale, shall not be stored so as to limit use of exits, stairways, or areas normally used for the safe egress of people.

  [*13]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The videotape room is small and congested with electronic equipment.   It is located on the first floor near the front of the building, and in it employees of the respondent record, edit, and play back videotapes of TV shows and commercials.   Technicians work in the room every day, while other employees and members of the public visit the room at times.

Two doors that swing out into a corridor and are located along the south wall of the videotape room are the only means of entering and leaving the room.   In the northwest corner of the room, a wooden double door leads to the compressor room, a cupboard-like room that provides no access to the outside of the building or to any other room.

Nine videotape recording machines (VTR's) form a circle not quite as large as the room.   Each VTR is about 40 inches long and 30 inches deep.   VTR No. 6, which is located in front of the wooden double door, is approximately six feet in height.   Employees work primarily within the circle made by the VTR's but occasionally must get commercials or other film from the shelves located along the walls.

On the floor of the [*14]   videotape room, in front of the left door of the double door leading to the compressor room, were two five-gallon drums full of isopropyl alcohol, which was used to clean the videotape machine heads.   Previte testified at the hearing that if the containers leaked and alcohol ran between the VTR's and caught fire, the fire would spread to the center of the room, preventing employees from reaching the doors on the south wall. n7 He further testified, however, that the containers did not physically obstruct any employee's route to or through one of the two exit doors.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 The compliance officer also testified that the containers should have been stored in an approved type of cabinet.   However, no citation was issued for noncompliance with §   1910.106(d)(5)(iii).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Based on the evidence discussed above, the judge vacated the item and its proposed penalty because "the two cans were not positioned to limit the use of the exit doors or areas normally used by employees."

The Secretary argues on review that the judge erred in [*15]   concluding that the two cans did not limit the use of the room's exits. The Secretary contends that the standard is intended to prevent more than just the physical obstruction of exits by stored containers of flammable liquids, for it was meant to protect employees from the dangers of flammable liquids and insure their safe egress during a fire.   The Secretary notes that a comparison of the standard at issue with other standards, such as §   1910.36(d)(1), n8 which he states generally prohibit physical obstruction of exits, reveals that the primary concern of the standard at issue is the flammable nature of the contents of the containers. He notes that Previte's testimony established that, in the event of fire, alcohol leaking from the containers would block employees' normal route to the doors on the south wall.   The Secretary contends that the cans would prevent, not merely limit, the use of the two exits on the south wall if an emergency occurred.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 The standard is set forth at note 18 infra.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The respondent [*16]   asserts on review that the judge correctly vacated the item because the containers did not limit the use of any exit or regular means of egress. The respondent argues that the double door in front of which the drums of alcohol were placed was not an "exit" n9 nor was the area behind the VTR's in the northwestern corner of the room an area "normally used for the safe egress of people." Westinghouse contends that the compliance officer's testimony that the flammable liquid could leak into the center of the room and thereby impede access to the two exit doors in the event of a fire is far too speculative to constitute proof of a violation by a preponderance of the evidence.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 "Exit" is defined as follows:

Subpart E - Means of Egress

* * *

§   1910.35 Definitions.

* * *

(c) Exit. Exit is that portion of a means of egress which is separated from all other spaces of the building or structure by construction or equipment as required in this subpart to provide a protected way of travel to the exit discharge.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - -   [*17]   - - -

There is nothing in the record to indicate that the containers of alcohol stored across the room from the two exits limited the use of those exits. We affirm the judge's vacation of the item and its proposed penalty.

§   1910.36(b)(4)

The Secretary alleged in Citation No. 2, Item No. 1A that the respondent committed a serious violation of the Act by not complying with §   1910.36(b)(4) n10 in both the prop storage room (subitem (a)) and the maintenance shop area (subitem (c)).   In each of the two rooms, a rear "exit," as defined at note 9 supra, which was the only door leading directly outside, was locked. The Secretary did not propose any particular penalty for these two alleged violations, but rather proposed a cumulative penalty of $700 for all five items and sixteen subitems in Citation No. 2.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 The standard provides:

Subpart E - Means of Egress

* * *

§   1910.36 General requirements.

* * *

(b) Fundamental requirements.

* * *

(4) In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied.   No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency.

  [*18]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Both rooms are on the first floor at the rear of the building.   The two rear doors in each location are not marked as exits. With these doors locked, employees in each room could exit the building only by going through corridors or other rooms.

The prop storage room contains sets and props not in present use as well as some five booths for film editing.   The room has four doors, one door leading to each of the following areas: the main television studio, the corridor to the center of the building, the set construction room (which can only be entered by going through the prop storage room), and the outside (the back of the building).

The cited door in the prop storage room is a padlocked double door requiring a key to be opened.   According to Puccio, there were no markings on the door or signs indicating how a person could get out of the room.   Only the building guard, the general service and maintenance supervisor, and possibly the general manager for maintenance had keys to this door. Puccio testified at the hearing that the station is in operation 24 hours a day, 7 days a week, and that it would [*19]   be difficult for an employee seeking to open the door to find someone with a key at night, on weekends, or when the guard is making his rounds.   The door is used to ship and receive large material and equipment.   Outside the door is a drop of four or five feet to the ground.   There are no stairs or ramps to bridge the drop.   Carpenters, maintenance persons, and film editors work in the room.

In the maintenance room, the maintenance personnel have their office, store tools and cleaning materials, and repair equipment.   The main power feed for the building is also in the room.   The maintenance room has four doors, one door leading to each of the following locations: the radio news room, the room containing the air conditioning compressors (leading to the boiler room), the main television studio, and the outside at the rear of the building.   The exit in question is a single door leading directly to the exterior of the building.   The door is kept locked with an internal lock that can only be opened with a key.   Puccio testified that the door leading to the outside did not contain any marking indicating that it was a door and that there was no sign in the room stating who had keys.   The [*20]   building guard, the general service and maintenance supervisor, and the maintenance workers were the sole possessors of keys to this door. Outside the door is a drop of four or five feet to the ground and a dumpster for trash.   Maintenance employees would open the door to dump rubbish about four or five times a day.   At least one employee who is not a member of the maintenance staff has entered the room to borrow tools and other materials.

Puccio also testified that, if a fire started, he would chance jumping four or five feet to the ground to escape from either of the rooms rather than going through corridors to reach the nearest exits on the other side of the building.

Previte testified that the hazard presented by the locked rear door in the prop storage room was that, if a fire started across the room, the rear door leading outside could provide the only or the best route for escape.   He further stated that he believed that about ten minutes elapsed between his request for the key to the lock on the prop storage room's rear door and his receipt of the key.   The compliance officer also noted the flammability of the items contained in that room.

Peter Sloan, the respondent's [*21]   general service and maintenance supervisor, as well as its safety officer, testified that the two locked doors at issue are not exits, and that they are not marked as such.   He said that Westinghouse's employees knew the two rear doors were not to be used as exits. He further stated that he used his own key to open each door within about a minute after Previte requested that each of the locked rear doors be opened.   He also testified that he went into all the rooms in the building in the course of his duties, and that he spends a considerable part of his time in the prop storage room. Sloan further stated that Westinghouse has no formal safety program.

Judge Knight vacated both of these subitems concluding that the locked rear doors in each of the two rooms were neither "exits" as defined by §   1910.35(c), quoted at note 9 supra, nor were they "exits necessary for escape in case of emergency" as required by §   1910.36(b)(1). n11 The judge determined that since there were other adequate emergency routes out of each of the two rooms there was no substantial probability of death or serious physical harm resulting from the locked doors even if the violations were to be affirmed.   [*22]   He considered Techno Products, Inc., d/b/a Techno Truck Mfg. Co., 76 OSAHRC 13/D1, 3 BNA OSHC 2009, 1975-76 CCH OSHD P20,413 (No. 3624, 1976), to be inapposite because the essential element of that case was that a pedestrian exit was kept locked. The judge concluded that the standard's prohibition against locking applies only to pedestrian doors, not to doors intended for other than pedestrian use.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 The standard provides:

Subpart E - Means of Egress

* *pt escape of occupants in case of fire or other emergency. The design of exits and other safeguards shall be such that reliance for safety to life in case of fire or other emergency will not depend solely on any single safeguard; additional safeguards shall be provided for life safety in case any single safeguard is ineffective due to some human or mechanical failure.

- - - - - - - - - - - - - - - - -End Footnotes-   [*23]   - - - - - - - - - - - - - - - -

The Secretary contends on review that the judge erred in determining that the respondent's locking of the doors in the prop room and the maintenance room did not constitute noncompliance with §   1910.36(b)(4).   He asserts that, as stated in Techno Products, supra, the cited standard prohibits any lock or fastening that would prevent free escape from the inside of any building regardless of the availability of other exits. Thus, the Secretary argues that the judge erred in considering the adequacy of the other means of escaping from the prop storage and maintenance rooms in reaching his conclusion regarding Westinghouse's compliance or noncompliance with the cited standard.   The Secretary contends that Judge Knight erred in concluding that Techno Products limited the standard's application to exits used regularly by pedestrians. The Secretary notes that there is no language in the standard limiting its applicability to only pedestrian exits or exits normally used in non-emergency situations.   He asserts that it would defeat the standard's purpose to so limit its applicability, citing §   1910.36(a). n13 The Secretary notes the increased [*24]   possibility of fire in the building due to the electrical wiring and equipment, the stored flammable liquids, and the wood and scenery stored in the prop room.   He also notes that the respondent had no formal safety program for its employees.   The Secretary refers to Puccio's testimony that, in the event of emergency he would prefer to jump the four or five feet from the rear doors to the ground rather than take the more roundabout routes through the building to the outside.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n13 The standard states in pertinent part:

Subpart E - Means of Egress

* * *

§   1910.36 General requirements.

(a) Application. This subpart contains general fundamental requirements essential to providing a safe means of egress from fire and like emergencies.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Westinghouse argues on review that the judge correctly vacated the citation because neither the prop storage room door nor the maintenance room door were in actuality or were intended to be "exits." For support, the respondent relies on Silver Skillet Food Products Co., [*25]   73 OSAHRC 6/D5, 1 BNA OSHC 1432, 1971-73 CCH OSHD P15,491 (No. 497, 1973), and Fineberg Packing Co., Inc., 74 OSAHRC 14/E12, 1 BNA OSHC 1598, 1973-74 CCH OSHD P17,518 (No. 61, 1974).   Westinghouse also notes the testimony indicating that the door was not used as an exit nor marked as one, and that there were several other exits from the room.   Westinghouse further asserts that, even if the two doors were "exits," the locking of the doors was not a violation of the Act because it was done to protect employees from the hazard of falling four to five feet. The respondent agrees with the judge that Techno Products is distinguishable since a pedestrian door was involved in that case.   Westinghouse generally criticizes the Secretary's broad interpretation of the cited standard and further asserts that no standard requires that each room have an exit leading directly to the outside.

We conclude that Westinghouse committed a serious violation by failing to comply with §   1910.36(b)(4) and thus reverse the judge's decision vacating this item.   We find that the two rear doors at issue were "exits" as defined in §   1910.35(c) and that our decision in Winn-Dixie Atlanta, Inc., Store   [*26]    No. 1810, 78 OSAHRC 44/A2, 6 BNA OSHC 1625, 1978 CCH OSHD P22,762 (No. 76-515, 1978), which relies on Techno Products, supra, is dispositive. n14

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n14 Neither of the two cases discussed at length in the respondent's brief on review are controlling.   In Silver Skillet Food Products Co., supra, the Commission affirmed without discussion the judge's decision that a nonserious violation based on noncompliance with §   1910.36(b)(4) had been committed by padlocking the shipping room fire exit door, which was adjacent to the unlocked loading dock overhead door. Thus, whether the loading dock door was an "exit" according to §   1910.35(c) and thus subject to §   1910.36(b)(4) was not in issue.

The respondent's reliance on Fineberg Packing Co., Inc., supa, is misplaced.   Review of that case was directed solely on an issue other than whether the respondent complied with §   1910.36(b)(4).   That portion of the judge's decision discussing compliance with §   1910.36(b)(4) lacked full Commission review and therefore does not constitute precedent binding upon us.   Leone Construction Co., supra note 2.

  [*27]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In Techno Products, supra, the employer was cited for failure to abate its violation of the Act due to noncompliance with §   1910.36(b)(4).   The employer's facility had four exits: one pedestrian exit in the rear that was padlocked on the inside for security reasons, one pedestrian exit in the front that was not locked, one entry way for vehicles, and one loading dock entry.   The last two exits had overhead doors that could be locked but were kept open during the working day.   In affirming the citation, the Commission held, that the second sentence of the cited standard prohibits any lock that prevents free escape from the inside of a building and that the padlock on the rear door had precisely the prohibited effect.

In Winn-Dixie, a case factually quite similar to the instant case, the employer was issued a citation for noncompliance with §   1910.36(b)(4) in that both exits on the back wall of the store's "receiving area" at the rear of the building were locked. In Winn-Dixie, as in the instant case, the doors at issue were not pedestrian exits, for they were not intended to be used [*28]   as exits either by employees or by any other persons.   Also, the doors were located in an area of the building that was not open to the public and were unlocked only for the receipt of merchandise or the removal of trash.   Only Winn-Dixie's managerial personnel had keys to the store's locked rear doors. An employee requesting that a door be unlocked at times had to wait 20 to 30 minutes for the door to be opened.   In order to leave the building when the rear doors were locked, an employee would have to pass through swinging doors to enter the public area of the store and then exit the building through one of the several doors in the front of the store.

In Winn-Dixie we stated,

Our decision in Techno Products . . . mandates affirmance of the alleged violation because locking the rear doors violated the standard's requirement that, "No lock or fastening to prevent free escape from the inside of any building shall be installed. . . ."

78 OSAHRC at 44/A6-A7, 6 BNA OSHC at 1626, 1978 CCH OSHD at p. 27,477.

Under our holding in Winn-Dixie, it is clear that Judge Knight incorrectly limited the applicability of Techno Products to pedestrian exits. In the instant case,   [*29]   the doors at issue in the prop storage room and the maintenance room were locked so as to prevent free escape from the inside of the building in the event of an emergency. We thus conclude that Westinghouse violated the Act by failing to comply with §   1910.36(b)(4) in both rooms.

We further conclude that the violations were serious within the meaning of section 17(k) of the Act. n15 In order to establish that a violation is serious, the Secretary must prove employer knowledge of the hazard and that an accident which could result from the failure to comply with the standard would have a substantial probability of resulting in death or serious physical injury.   Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127 (6th Cir. 1978); Niagara Mohawk Power Corp., 79 OSAHRC    /   , 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n15 The provision states:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

  [*30]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We take notice that, in the event of fire in one of the two rooms at issue, an employee trapped in one of the rooms due to the unavailability of an exit would likely suffer death or serious physical injury.   Furthermore, Puccio, the union's chief steward, testified that he and the union's business agent were accompanied by management representatives during a union inspection of the building in December of 1975, at which time the problem with the locked exit in the maintenance shop was pointed out.   In addition, Sloan testified that he went into all the rooms in the building and spent much time in the prop storage room. We thus conclude that Westinghouse knew or should have known of the violative conditions since it was informed of the hazard in the maintenance room by the union representatives at the time of their inspection in December of 1975, and since its general service and maintenance supervisor spent a good deal of time in the prop storage room.

In determining an appropriate penalty, we consider the criteria set forth in section 17(j) of the Act. n16 According to Sloan's testimony at the hearing,   [*31]   the television and radio station where the violations occurred is just one of a group of many such stations throughout the country controlled by Westinghouse with headquarters in New York.   In its answer to the Secretary's complaint, Westinghouse admitted that WBZ TV Group W Westinghouse Broadcasting is an Indiana corporation with the Boston station as a principal office.   The respondent employed approximately 250 persons at the worksite in question at the time of the violation.   The total number of persons employed at all Westinghouse stations is not set forth in the record.   With regard to the gravity of the violations in the two rooms, a number of employees are exposed to the hazard resulting from the locked rear doors, particularly in the prop storage room.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n16 The section reads as follows:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect 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.

  [*32]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As noted above, Sloan testified that Westinghouse has no formal safety program.   No previous violations of the Act by the respondent were entered into evidence.

On the basis of the factors mentioned above, we assess a penalty of $150 for the serious violations in both rooms. n17

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n17 Westinghouse asserts that the use of the doors in question as emergency exits would result in an additional hazard in that there was a four- or five- foot drop from each door to the ground below.   We have allowed employers to defend on the basis that compliance with a standard would result in greater hazards to employees.   In order to successfully assert a defense of greater hazard, an employer must prove (1) that the hazards created by compliance with the requirements of the cited standard are greater than those resulting from noncompliance, (2) alternative means of protecting employees are unavailable, and (3) a variance application under section 6(d) of the Act would be inappropriate.   M.J. Lee Construction Company, 79 OSAHRC 12/A2, 7 BNA OSFC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).   The hazard that an employee might be unable to escape the building in the event of an emergency far exceeds the hazard represented by a drop of a few feet from the doors to the ground below, and Westinghouse has not established the remaining two elements of the defense.   Indeed, §   1910.37(j) requires the elimination of such sudden changes in elevation.   That standard states:

Subpart E - Means of Egress

* * *

§   1910.37 Means of egress, general.

* * *

(j) Changes in elevation. Where a means of egress is not substantially level, such differences in elevation shall be negotiated by stairs or ramps.

  [*33]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

§   1910.36(d)(1)

In Citation No. 2, Item No. 1B, the Secretary alleged that Westinghouse committed a serious violation of the Act by failing to comply with §   1910.36(d)(1) n18 in that there was "(s)cenery drape curtain impeding exits and way of approach to exits" in the main television studio.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n18 The standard reads as follows:

Subpart E - Means of Egress

* * *

§   1910.36 General requirements.

* * *

(d) Maintenance. (1) Every required exit, way of approach thereto, and way of travel from the exit into the street or open space, shall be continuously maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency.

The term "required exit" is not expressly defined in the standards.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The main television studio is located on the first floor at the back of the building.   All the station's television shows originate in the room.   Cameras are kept in the studio as is the [*34]   set that is used on the show being filmed at the time.   Some shows have an audience of 40 to 50 people or possibly more.

The studio has five doors, with one door leading directly to each of these areas: the maintenance room, the television news room, a corridor of the building, the prop storage room, and the outside in the rear of the building.   A curtain is drawn across the back wall covering the door at issue, a double door leading directly to the outside. n19 The set and backdrop used for a show are placed in front of the curtain. The room contains no signs that would indicate to an occupant not aware of the door's existence that an exit is behind the curtain. n20 A prop light was stored between the drapery and the wall near the door at issue.   At least two employees of the respondent at the time of the alleged violation knew the double door was there, and one of them, Puccio, testified that in order for someone who knew the location of the door to reach it while a show is being taped, he would have to climb over the set, get behind the backdrop, and go under the curtain. Puccio also testified that the door on the back wall had been covered in that manner since he had been working [*35]   there, which apparently was about four years.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n19 The complaint repeats the language of the citation in alleging that exits and way of approach to exits were blocked by scenery curtain. Previte testified at the hearing that a drape was drawn across the side wall along which the entrance to the prop storage room was located.   He stated that no indication was given in the studio that the entrance to the prop storage room was located behind that drapery.   The Secretary did not offer into evidence any photograph of this wall.   The obstruction of the entrance to the prop storage room was not mentioned by the parties in either their post-hearing briefs or briefs on review.   In his decision, Judge Knight does not make any reference to the alleged obstruction of this exit, but rather considered the alleged violation to be based solely on the obstruction of the rear double door. Since the Secretary did not mention any alleged violation for blocking the entrance to the prop storage room subsequent to the compliance officer's testimony, we accordingly do not consider that door to be at issue.

n20 Two photographs [Exhibits C-7 and C-8] admitted into evidence at the hearing show the door after the curtain was drawn back at the request of the compliance officer.   On the upper left portion of the right door of the double door is a relatively small sign with the distinguishable, yet major, portion of it saying:

EMERGENCY EXIT ONLY WARNING OPENING DOOR SOUNDS ALARM

The Secretary did not put forth any evidence that this door was locked, which resulted in the dismissal of Item No. 1A(b) of Citation No. 2 which alleged that the rear exit door was locked, thereby constituting noncompliance with §   1910.36(b)(4).

  [*36]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Judge Knight found that the blocked rear double door was not a "required exit" and that there were adequate alternate routes out of the room if an emergency arose.   He vacated the item and its proposed penalty due to the Secretary's failure to prove that the double door was a "required exit" and that the standard was applicable to it.

The Secretary contends on review that the judge erred in concluding that the door was not a "required exit." He notes that the compliance officer defined "required exit" at the hearing as any means of egress that could reasonably provide a means of escape in an emergency. The Secretary states, "This definition is buttressed by the standard itself." he refers to §   1910.36(b)(1) n21 which provides in pertinent part that each building "shall be provided with exits sufficient to permit the prompt escape of occupants in case of fire or other emergency." (emphasis added).   The Secretary then quotes §   1910.36(b)(3). n22 He contends that whether a particular door is a "required exit" depends on the specific circumstances in each case viewed in terms of the factors mentioned [*37]   in § §   1910.36(b)(1) and 1910.36(b)(3).   The Secretary contends that none of the other exits provided a direct or uncomplicated route to the outside.   He mentions the fact that an audience of 40 to 50 persons, most probably unfamiliar with the studio's and building's exits, occupies the studio at certain times.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n21 See note 11 supra for text of standard.

n22 The standard states:

Subpart E - Means of Egress

* * *

§   1910.36 General Requirements.

* * *

(b) Fundamental Requirements.

* * *

(3) Every building or structure shall be provided with exits of kinds, numbers, location, and capacity appropriate to the individual building or structure, with due regard to the character of the occupancy, the numbers of persons exposed, the fire protection available, and the height and type of construction of the building or structure, to afford all occupants convenient facilities for escape.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The respondent contends on review that the standard by its own terms applies only to "required exits" and that the [*38]   rear double door is not a "required exit." Westinghouse essentially argues that, because the term "required exit" is not defined in the standards, consideration must be given to the source of the cited standard, which, according to §   1910.39, n23 is the National Fire Protection Association (NFPA) No. 101-1970, Life Safety Code.   Westinghouse notes that P8-1223, in NFPA, 5 Guide to OSHA Fire Protection Regulations 101-73(1972), requires that a room occupied by 100 to 300 people have at least two exits. n24 The respondent essentially argues that since the studio has more than two unobstructed exits n25 from the room, which is occupied by less than 100 people, the obstructed double door at issue is not a "required exit." The respondent asserts that, especially when other means of egress out of a room are available, merely because a door exists does not mean that it must be available for use as an exit. It also notes that the compliance officer admitted at the hearing that no standard requires direct egress from a room to the outside.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n23 §   1910.39 provides:

Subpart E - Means of Egress

* * *

§   1910.39 Sources of standards.

The entire subpart is promulgated from NFPA 101-1970, Life Safety Code.

n24 NFPA 101-1970, Life Safety Code, P8-1223 reads as follows:

Chapter 8. Places of Assembly

* * *

8-12.   Exit Details

* * *

8-122.   Minimum Number of Exits

* * *

8-1223.* Every Class C place of assembly (capacity 100 to 300 persons) shall have at least 2 means of exit, consisting of separate exits or doors leading to a corridor or other spaces giving access to 2 separate and independent exits in different directions.

n25 For a discussion of the fourth door, see note 19 supra.

  [*39]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Additionally, the respondent challenges the Secretary's contention that the judge should have adopted the compliance officer's definition of required exit. The respondent notes that the compliance officer, unlike the drafters of the NFPA Life Safety Code, was not an expert in the field.   Moreover, Westinghouse asserts, "(T)he fact that the Secretary thought enough of this organization (NFPA) to adopt their code (Life Safety Code) as his own estopps (sic) him from now arguing that the Commission should not look to the source of his standards to derive the meaning of terms which are not defined." Westinghouse cites Santa Fe Trail Transportation Co., 73 OSAHRC 60/C8, 1 BNA OSHC 1457, 1973-74 CCH OSHD P17,029, (No. 331, 1973), rev'd on other grounds sub nom. Brennan v. OSHRC (Santa Fe Trail Transport Co.), 505 F.2d 869 (10th Cir. 1974), and Modern Automotive Service, Inc., 74 OSAHRC 9/A11, 1 BNA OSHC 1544, 1973-74 CCH OSHD P17,369 (No. 1541, 1974) for the proposition that undefined terms in OSHA standards adopted by the Secretary from national consensus standards can be given meaning by reading [*40]   them in the light of other regulations and codes.

The respondent further argues that allowing every compliance officer to define the term "required exit" would result in subjective, non-uniform interpretations and inconsistent application of the standard, which would make the standard unconstitutionally vague.   Westinghouse's final contention is that the Secretary erred when he asserted that the respondent did not deny that the blocked door would be of no use if a fire occurred.   The respondent notes that the curtain over the door could be easily moved.

We hold that the judge correctly concluded that the blocked door is not a "required exit," and we affirm his vacation of this item.   We agree with the Secretary that whether a specific door is a "required exit" depends on the application of the factors in § §   1910.36(b)(1) and 1910.36(b)(3) to the facts of the case.   First of all, we consider the specific criteria set forth in §   1910.36(b)(3), i.e., the character of the occupancy, the numbers of persons exposed, the fire protection available, and the height and type of construction of the building.   As noted above, the television studio was occupied at times by an audience of   [*41]   approximately 40 to 50 persons.   The respondent's employees and guests also occupied the room.   Thus, some of the occupants were probably familiar with the location of the room's exits while others were not.   Although the evidence of record does not indicate the fire protection available, it was established that the television studio was located on the first floor at the back of the building.   It was further established that the televison studio has five doors on at least three, and most likely four, of its walls.   Based on the factors above, we conclude that the occupants of the television studio were afforded convenient facilities for escape.

With regard to the sufficiency of exits to permit prompt escape in case of fire or other emergency, a factor set forth in §   1910.36(b)(1), we note that, in accordance with our holding above, the respondent must comply with §   1910.36(b)(4) by not locking the doors leading directly to the outside from the maintenance room and the prop storage room so that occupants can freely escape from the inside of those rooms.   Thus, once occupants of the television studio would pass through the doors that are located on opposite walls of the studio and that [*42]   lead to the maintenance room and the prop storage room, they would be able to quickly escape to the outside of the building.   Although the routes from the television studio to the outside of the building that occupants of the studio would follow if they chose to use the door leading to the television news room or the one leading to a corridor of the building are less direct, they are sufficient to allow prompt escape in an emergency.

Another factor mentioned in §   1910.36(b)(1) is the "design of exits and other safeguards" so that reliance for safety in case of emergency is not solely dependent on any one safeguard.   We agree with the judge that, excluding the blocked rear exit at issue, there were sufficient routes out of the television studio if an emergency arose.

After considering the factors above, we conclude that the blocked double door leading directly to the outside from the television studio is not a "required exit" within the meaning of §   1910.36(d)(1) so that standard is inapplicable to the door at issue.   We therefore hold that the judge properly vacated this item.

§   1910.37(q)(1)

The Secretary asserted in Citation No. 2, Item No. 1C(e) that the respondent committed [*43]   a serious violation by not complying with §   1910.37(q)(1) n26 in that it failed to mark the exit in the FM studio area with a readily visible sign.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n26 The standard provides:

Subpart E - Means of Egress

* * *

§   1910.37 Means of Egress, general.

* * *

(q) Exit marking. (1) Exits shall be marked by a readily visible sign.   Access to exits shall be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visible to the occupants.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In the FM studio, FM radio shows are taped and aired.   Radio technicians, some radio management personnel, the chief engineering supervisor, and performers or other persons participating in shows that are taped all have occasion to go in the room.   The room has only one door, which leads to a corridor that is not straight, but rather, according to Puccio's testimony, "winds its way around, it's a kind of maze, to get to the main building corridor and then you have to go down that corridor to the lobby and out." There was no exit [*44]   sign on the door nor was there any sign in the room indicating the direction out of the room.   Puccio testified that the way out of the room is not always obvious to the persons who regularly work in the room, much less to an individual who has never been there before.

Previte testified at the hearing that the room is about 12 feet by 13 feet with windows on three of its sides.   He said that a number of employees were in the FM studio on the day of the inspection (but he did not know whether they were all actually working in the studio) and that one seat (a stool) was in the room.   The room contains electronic equipment that generates heat.   He described the hazard as the absence of signs indicating the direction in which to travel out of the room in the event of fire.   Previte stated that exit signs placed in the room would work to eliminate guessing and assure safe egress for employees who might panic in emergencies. He stated further, "Also, I understood other employees such as myself who were in there that day did not really know if there was more than one exit because there was a lack of signs around the room."

Sloan testified that the FM studio was 8 feet by 15 feet and glassed [*45]   in on three sides so that one can see the radio master control room through one side, the FM control room through another, and the corridor through the third side (which is the side along which the only door to the room is located).   He said that he never saw the studio occupied by more than one or two persons.

Judge Knight concluded that Westinghouse failed to comply with the standard.   He found that "the exit from the FM studio to the outside of the building was not marked and that the access to the exit was not immediately visible." He also found that there were no signs as to the way of travel from the studio to the outside.

The judge noted that "exit" as defined in §   1910.35(c) n27 does not mean "door," but instead refers to "'a protected way of travel' to the exit discharge, or way out." He further stated, "While the single door in the studio was obvious, the way out was not." He pointed out that the respondent did not present any testimony to rebut Puccio's assertion that a "maze" was located beyond the door.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n27 See note 9 supra.

- - - - - - - - - - - - - - - - -End Footnotes- -   [*46]   - - - - - - - - - - - - - - -

Judge Knight concluded that the violation was serious because the respondent knew of the hazard and, if a fire or other emergency occured in the room, there would be a substantial probability that death or serious physical injury would result.   He assessed a penalty of $100 for the violation after considering the low probability of an emergency happening and the respondent's good faith. n28

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n28 The Secretary did not propose a specific penalty for this alleged violation.   Instead, he proposed a penalty of $700 for all five items and their sixteen subitems in Citation No. 2.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

On review, Westinghouse takes exception to the judge's affirmance of the item, particularly his finding that the exit was not obvious.   The respondent also takes issue with the appropriateness of the $100 penalty.   The respondent argues that no violation was committed because the door in the FM studio was visible.   Westinghouse asserts that the Secretary misconstrued the standard in that he ignored its second sentence,   [*47]   which, according to the respondent, requires that exits be marked only if they are not immediately visible.

Westinghouse contends that the judge's finding that the sole door was obvious but the way out was not is inconsistent.   It reasons that if the door is obvious, the way out is also obvious.   The respondent also asserts, presumably with reference to the alleged "maze," that the judge "relies on one phase (sic) which was contradicted by the testimony of the compliance officer." The Secretary did not discuss this violation on review.

We affirm the judge's determination that Westinghouse failed to comply with the cited standard.   The respondent incorrectly considers the second sentence of the standard to be applicable to this case.   After considering the definition of "exit" set forth in §   1910.35(c) and the definition of "exit access" in §   1910.35(b), n29 we find that the sole door in the studio and the winding corridor which connects with the main corridor (the main corridor constituting the "exit discharge" n30) together comprise the "exit" out of the room.   What is at issue in this case, therefore, is the failure to mark the "exit" with a readily observable sign, which is what [*48]   the citation and complaint alleged, rather than failure to mark the "access to the exit." The first sentence of the standard clearly and unequivocally requires that all exits be marked by a readily visible sign.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n29 The standard provides:

Subpart E - Means of Egress

§   1910.35 Definitions.

* * *

(b) Exit access. Exit access is that portion of a means of egress which leads to an entrance to an exit.

n30 The standard that defines "exit discharge" reads as follows:

Subpart E - Means of Egress

§   1910.35 Definitions.

* * *

(d) Exit Discharge. Exit discharge is that portion of a means of egress between the termination of an exit and a public way.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We hold that Westinghouse's noncompliance with §   1910.37(q)(1) was a serious violation of the Act.   Applying the test set forth in Untry v. Hermitage Concrete Pipe Co., supra, and Niagara Mohawk Power Corp., supra, we find that there is a substantial probability that death or serious physical harm could result from [*49]   the lack of exit signs.   If a fire started or another emergency arose in the studio, the respondent's employees could experience at least uncertainty if not panic without an observable exit sign for guidance.   Moreover, employer knowledge of the hazard is indicated by Sloan's testimony describing the size, sides, and occupant capacity of the studio.

After considering the criteria set forth in section 17(j) of the Act, n31 i.e., the respondent's size, good faith, and history of violations, which are discussed above, as well as the low to moderate gravity of the violation (based on the presence of heat-producing electronic equipment in the studio and the conflicting testimony as to the number of employees occupying the room at different times), we assess a penalty of $75 for the violation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n31 See note 16 supra.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, it is ORDERED that Judge Knight's:

(1) decision to vacate the three items alleging noncompliance with 29 CFR §   1910.22(a)(1), 29 CFR §   1910.106(d)(5)(i), and 29 CFR §   1910.36(d)(1) is   [*50]   affirmed;

(2) conclusion that Westinghouse did not commit a serious violation of the Act in not complying with 29 CFR §   1910.36(b)(4) is reversed, and a $150 penalty is assessed for that serious violation;

(3) affirmance of the item alleging a serious violation of the Act for failure to comply with 29 CFR §   1910.37(q)(1) is affirmed, and a $75 penalty is assessed therefor.  

CONCURBY: COTTINE (In Part); BARNAKO (In Part)

DISSENTBY: COTTINE (In Part); BARNAKO (In Part)

DISSENT:

COTTINE, Commissioner, concurring and dissenting in part:

I concur in the Commission's decision on the alleged violations of § §   1910.22(a)(1), 1910.106(d)(5)(i), 1910.36(b)(4), and 1910.37(q)(1).   However, the alleged violation of §   1910.36(d)(1) should be affirmed based on WBZ's failure to maintain a required exit in its main studio "free of all obstructions and impediments to full instant use in the case of fire or other emergency." Accordingly, I dissent from the Commission's vacation of this item.

Continuous maintenance of unobstructed means of egress is central to effective fire protection and life safety.   29 C.F.R. § §   1910.35 et seq. (1979); NFPA, Life Safety Code ch. 5 (1971).   Obstructed and locked exits have contributed [*51]   to the significant loss of life in numerous workplace and theatre fires.   A single fire in New York City at the Triangle Shirtwaist Factory in 1911 claimed the lives of 146 employees.   This tragic event prompted the enactment of fire protection and inspection laws by the New York legislature.   J. Huthmacher, Senator Robert F. Wagner and the Rise of Urban Liberalism 3-11 (1968); B. Wertheimer, We Were There: The Story of Working Women in America 309-315 (1977); L. Stein, The Triangle Fire (1962).   By federal statute the Commission has become a successor to certain state authority originating in the factory inspection laws that were enacted by the State of New York after the Triangle Shirtwaist Factory fire.   See 29 U.S.C. § §   659(c), 667(h).   In the performance of its adjudicatory responsibilities, the Commission must reconcile its interpretation of the Secretary's standard on obstructed egress with the historical commitment to fire protection forged out of the devastating human consequences of workplace fires.

Obstructed exits have also contributed to the loss of life in fires at theatre worksites.   The fire at the Iroquois Theatre in Chicago on December 30, 1903 resulted [*52]   in 602 deaths.   The loss of life was partially attributable to exits obstructed by heavy drapes.   130 Fire Engineering No. 8, at 49-52 (1977).   An exit hidden by draperies at the Cocoanut Grove nightclub in Boston contributed to the loss of 491 in the 1942 fire at the club.   Id. at 67-72.   See generally Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944) (criminal prosecution for fire hazards at Cocoanut Grove).   Recent fires in worksites involving public assembly confirm the importance of continuous and unobstructed means of egress from areas where theatrical performances are presented, e.g., Willey, The Upstairs Lounge Fire, 68 Fire Journal No. 1, at 16-20 (1974) (stage scenery obstructed exit access), and the need to maintain these exits "free of all obstructions and impediments to full instant use in the case of fire." 29 C.F.R. §   1910.36(d)(1) (emphasis added).   Furthermore, exit discharge to the outside has a critical role to play in the prompt and efficient evacuation of individuals exposed to a fire hazard. See Bruno, Tragedy Revisited: Death at the Supper Club, 2 Fire-house, No. 12, at 16 & 57 (1977) (Beverly Hills Supper [*53]   Club).

The main TV studio involved in this case contained the regular complement of television and theatrical equipment necessary to produce various programs for broadcast from the station. These productions included several shows with live audiences in the studio. The main studio contained five doors. Two of these doors lead to rooms that had locked exits. Two other doors provided access to other parts of the structure with eventual discharge to the outside of the building.   Only one door discharged directly to the outside.   A sign on this door designated the door as an "emergency exit." However, the door was hidden by a curtain and at times stage scenery was positioned in front of the curtain, further obstructing use of the exit. n1 Following the Secretary's inspection of the studio WBZ was cited for failing to ensure that "every required exit . . . [was] continuously maintained free of all obstructions or impediments to full instant use in the case of a fire or other emergency" under §   1910.36(d)(1).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 At least two employees working in the studio were aware that this designated emergency exit was located behind the curtain.

  [*54]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Section 1910.36(d)(1) must be interpreted in light of its purpose to "permit prompt escape of occupants from buildings or structures in case of fire or other condition dangerous to life." NFPA, Life Safety Code §   1-3111 (1971).   Consistent with this purpose of prompt escape from the structure, the term "required exit" in §   1910.36(d)(1) is most reasonably interpreted to include an exit which directly discharges occupants to the outside of the building.   Accordingly, where an exit directly discharges to the outside of a structure, the employer is obligated under §   1910.36(d)(1) to maintain that "required exit" free from obstructions so that full instant use may be made of it in case of an emergency. n2 WBZ failed to meet this fundamental requirement of fire safety and therefore the citation should be affirmed.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The special circumstances of this case reinforce this interpretation.   The employees were generally aware that the studio contained a direct exit to the outside.   Unfortunately, the exact location of the exits was obscured by the stage curtain. In the event of a fire, an employee's uncertainty as to the location of exit could lead to confusion.   See, e.g., Lathrop, Seven Die in Night Club Fire, 70 Fire Journal, No. 6, at 50-52 & 71 (1976) (Blue Angel Night Club).   Furthermore, additional obstruction of the exit by stage scenery would complicate the evacuation.   Willey, The Upstairs Lounge Fire, supra.

  [*55]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

BARNAKO, Commissioner, Concurring in Part and Dissenting in Part:

I join in my colleagues' opinion with respect to citation no. 1, item no. 10 (29 C.F.R. §   1910.106(d)(5)(i)) and citation no. 2, item nos. 1A(a) and (c) (29 C.F.R. §   1910.36(b)(4)) and in the Chairman's opinion with respect to citation no. 2, item no. 1B (29 C.F.R. §   1910.36(d)(1)).   I would vacate citation no. 1, item no. 1(b) (29 C.F.R. §   1910.22(a)(1)) and would in part affirm and in part vacate item no. 1C(e) of citation no. 2 (29 C.F.R. §   1910.37(q)(1)) for the reasons that follow.

Citation no. 1, item no. 1(b) (29 C.F.R. §   1910.22(a)(1)) n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The full text of this standard is set forth at note 3 of the lead opinion.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

My colleagues properly observe that a citation allegation must be vacated if it is duplicative of another item in the same citation which is affirmed or has otherwise become a final order of the Commission.   Lee Way Motor Freight, Inc., 77   [*56]   OSAHRC 7/D13, 4 BNA OSHC 1968, 1976-77 CCH OSHD P21,464 (No. 10699, 1977).   In this case, the standard in issue, §   1910.22(a)(1), contains a requirement -- maintenance of a sanitary condition -- that does not appear in the standard, §   1910.22(a)(2), on which the uncontested citation is based.   Therefore, the two citation items arguably are not duplicative.   However, even assuming that the citation for violation of §   1910.22(a)(1) is not duplicative of the citation for violation of §   1910.22(a)(2) because the former is directed to the elimination of a health hazard not covered by the latter citation, item no. 1(b) must nevertheless be vacated. To establish the existence of a health hazard the Secretary must show that the news room was not in a sanitary condition.   The evidence, which is set forth in the majority opinion, does not establish that this condition existed.   Accordingly, this item is properly vacated.

Citation no. 2, item no. 1C(e) (29 C.F.R. §   1910.37(q)(1)) n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The full text of this standard is set forth at note 26 of the lead opinion.

- - - - - - - - - - - - - - - - -End Footnotes-   [*57]   - - - - - - - - - - - - - - - -

My colleagues conclude that the door from the FM studio and the winding corridor both constitute the "exit" within the cited standard so as to require marking by a readily visible sign under the first sentence of the standard, which requires all exits to be so marked. Their decision, therefore, would require a sign to be placed both at the door and in the corridor. I do not agree; I would affirm this item only insofar as it pertains to the corridor and would not require Respondent to mark the single door from the FM studio.

My colleagues' broad reading of the term "exit" to include both the studio door and corridor ignores the distinction between an "exit access" and an "exit." The former phrase is defined as "that portion of a means of egress which leads to an entrance to an exit" n3 while the latter term is defined as "that portion of a means of egress . . . [which provides] a protected way of travel to the exit discharge." n4 It is clear that the door from the FM studio and the corridor cannot both constitute an "exit." The corridor is the means by which employees gain access to the lobby and then the public way and thus constitutes the "exit."   [*58]   Because the door to the FM studio connects with the corridor, I would conclude that the studio door constitutes the "exit access," that is, it forms the means by which employees would enter the exit. Because the cited standard does not require an exit access to be marked unless the "exit or way to reach it" is not immediately visible, I would vacate the citation insofar as it encompasses the FM studio door on the judge's undisputed finding that the single door from the studio was obvious.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 29 C.F.R. §   1910.35(b), quoted at note 29 of the lead opinion.

n4 29 C.F.R. §   1910.35(c), quoted at note 9 of the lead opinion.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -