WINN-DIXIE STORES, INC., STORE No. 86

OSHRC Docket No. 76-1733

Occupational Safety and Health Review Commission

April 28, 1978

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Carlton J. Trosclair, Winn-Dixie Stores, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION: On November 3, 1976, Judge John S. Patton issued a decision affirming the only contested item of a citation alleging violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [the "Act"]. The item in issue alleged that respondent, Winn-Dixie Stores, Inc., Store No. 86, had failed to comply with 29 C.F.R. 1910.212(a)(5) n1 by not guarding the periphery of fan blades on compressors located in a motor room in respondent's retail food store.

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n1 That standard provides:

1910.212 General requirements for all machines.

(a) Machine guarding.

* * *

(5) When the periphery of the blades of a fan is less than seven (7) feet above the floor or working level, the blades shall be guarded. The guard shall have openings no larger than one-half (1/2) inch.

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Pursuant to section 12(j) of the Act, former Commissioner Noran directed that the Judge's decision be reviewed by the Commission. Respondent has filed both a petition for review and a brief in which it has taken exception to the Judge's opinion. For the reasons that follow, the Commission finds that respondent's objections lack merit. Accordingly, we affirm Judge Patton's decision.

Respondent is engaged in operating retail food markets. In the motor room of store number 86, 13 fans, which were a part of cooler and freezer compressors, were located approximately at knee and shoulder heights. Although there were no guards around the blades of any of these fans, compressor units located in front of the fans guarded all except two of the fans. Complainant's case involves only the alleged violative condition of these two fans, which were located in the north end of the room.

The motor room was kept locked during store hours. This room was not used to store goods and employees were not permitted to use it as a rest or eating area. Four managerial employees had access to the locked motor room. The four managerial employees entered the room on a [*3] regular basis approximately once per week but due to recent temporary malfunction of certain equipment, they had been entering the room several times to activate circuit breakers located on the front of the compressor rack two feet from the unguarded fen blades. They had no occasion, however, to place their hands through the wiring and pipes that partially guarded the two fans in issue. In addition to managerial employees, respondent's maintenance employees entered the motor room to repair compressor units. These employees also cleaned the condenser coils on the compressors located in a room behind the fans.

Judge Patton affirmed the nonserious violation and assessed no penalty. He determined that obstructions located in front of the two fans in issue were not situated so as to prevent an employee from being exposed to the hazard associated with the unguarded fan blades, even though the likelihood of employee injury was not great. Furthermore, the Judge found that the coils n2 and other obstructions located in front of the fans did not comport with the standard's requirements that guards have a maximum one-half inch opening.

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n2 In referring to "coils" the Judge presumably meant piping and wiring located in front of the fans, rather than the condenser coils located on the other side of the wall.

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Respondent seeks reversal of Judge Patton's decision on several grounds. Respondent's primary argument is that the Secretary failed to establish employee exposure since its employes did not have access to the hazard because the fans were located in a locked room and the employees who entered the room had no duties which required them to place their hands near the fan blades.

We reject respondent's argument. In Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976), the Commission formulated a rule of access for establishing employee exposure. In the instant case it is immaterial that respondent kept the motor room locked since employees in fact entered the room. Access of a least respondent's four managerial employees to the zone of danger was established because their normal duties require that they activate circuit breakers located approximately [*5] two feet from the unguarded fan blades. n3 See Deering-Milliken, Inc., 76 OSAHRC 140/B13, 4 BNA OSHC 1872, 1976-77 CCH OSHD para. 21,291 (No. 11118, 1976), appeal docketed, No. 77-1077 (4th Cir., Feb. 23, 1977).

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n3 Considerable testimony was adduced at hearing as to whether piping and coils partially blocked the fan blades. The Judge found that these obstructions did not remove the hazard of employees contacting the blades. Respondent does not dispute this finding. We have reviewed the Judge's decision with respect to this issue and adopt his finding.

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Respondent's other contentions also lack merit and are summarily disposed of below. First, respondent cited Anning-Johnson Company v. OSHRC, 516 F.2d 1081 (7th Cir. 1975) for the proposition that it has not violated the Act because the Act requires only a good faith effort to protect workers without undue interference with an employer's ability to function. Respondent has not only misconstrued the rationale of the court in Anning-Johnson Company, [*6] supra, but that case is totally inapplicable to the facts herein since it deals with the liability of a subcontractor on a multiemployer worksite who did not create or control the violative conditions. And in any event the Commission has declined to follow all aspects of the Seventh Circuit's decision. Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH oshd para. 20,691 (No. 12775, 1976).

Second, respondent contends that a reasonable man would not have recognized the need for guarding the fan blades because there is no evidence that employees had been injured by the exposed blades. It is well recognized that employers are not relieved of responsibility from compliance with a standard because of the absence of injuries. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). Moreover, the standard presupposes the existence of a hazard when its terms are not met. See Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD para. 22,247 (No. 15579, 1977). Accordingly, respondent's argument is without merit.

Third, respondent asserts that Grayson Lumber Company, Inc., 73 OSAHRC 24/A11, [*7] 1 BNA OSHC 1234, 1971-73 CCH OSHD para. 16,171 (No. 793, 1973), supports its claim that maintenance personnel need not be protected against the hazard. At the outset we note that the violation herein is being affirmed on the basis of exposure of managerial employees to the anguarded fans. In any event, Grayson, supra, does not support respondent's contention. In Grayson, supra, the Commission held that a mechanical transmission apparatus need not be guarded while being repaired by maintenance personnel. In the instant case, the maintenance personnel repaired the cooler and refrigeration systems, not the unguarded fans.

Fourth, respondent contends that the compliance officer did not properly apply and interpret the OSHA Field Operations Manual (FOM). Not only does respondent fail to establish how the Secretary improperly applied the FOM but Commission precedent indicates that complainant is not bound by his FOM; it is only a guide. See FMC Corporation, 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD para. 22,060 (No. 13155, 1977).

Fifth, respondent argues that enforcement of the cited standard would violate its due process rights under the Fifth [*8] Amendment to the United States Constitution. Since this argument was never expressly or impliedly raised before Judge Patton and it is not jurisdictional, the Commission will not review it. Gulf Stevedore Corp., 77 OSAHRC 135/E11, 5 BNA OSHC 1625, 1977-78 CCH OSHD para. 21,975 (No. 76-926, 1977).

Accordingly, the Judge's decision is affirmed.