LAKE BUTLER APPAREL COMPANY

OSHRC Docket No. 801

Occupational Safety and Health Review Commission

August 31, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision rendered by Judge James D. Burroughs. Among other things, the Judge affirmed a violation of the standard prescribed by 29 C.F.R. 1910.314(d)(4)(iii)(c) n1 and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. 84 Stat. 1590, hereinafter "the Act"). However, in reliance on the authority of Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc.,

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n1 The standard now appears as Article 250-45(d)(3) of the National Electrical Code 1971, NFPA 70-1971; ANSI C1-1971 and is incorporated by reference by 29 CFR 1910.309(a).

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We have reviewed the record including the Judge's decision and the materials filed on review by the parties. On the basis of such review we adopt the Judge's decision to the extent it is consistent with the following.

It is uncontroverted on the record that Respondent's employees continuously used six ungrounded portable tools or appliances in contravention of the requirements of 29 C.F.R. 1910.314(d)(4)(iii)(c). Accordingly, Judge Burroughs correctly found Respondent in violation of section 5(a)(2) of the Act.

However, he erred in concluding that our decision in Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc., supra, stands for the proposition that violations of electrical grounding requirements are of low gravity per se. The rule, as Judge Burroughs points out, is that the assessment of small penalties turns on the relationship between ". . . the non-serious violation involved and the corresponding degree of gravity." Secretary of Labor v. Hydroswift Corporation, Civil penalties have been assessed for violation of the electrical grounding requirements in a number of cases. See Secretary of Labor v. Dreher Pickle Company, Secretary of Labor v. Baltz Brothers Packing Company, ($200); Secretary of Labor v. Hydroswift Corporation, supra, ($30).

Similarly, a penalty is warranted in the circumstances of this case. Respondent's ungrounded equipment was in continuous use, was close to other equipment which was grounded, and some employees were barefooted. Under these circumstances, the possibilities for an injury by electrical shock were real. Therefore, the gravity of the violation cannot be characterized as being of a de minimis nature. Secretary of Labor v. General Meat Company, Inc., Having also considered Respondent's relative good faith, its moderate size, and its lack of a previous history of violations, we conclude that Complainant's proposed penalty of $30 is appropriate.

Therefore, the Judge's order is amended to assess a civil penalty of $30 for Respondent's violation of 29 C.F.R. 1910.314(d)(4)(iii)(c) and as amended it is hereby ORDERED affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Any monetary penalty assessment is necessarily a subjective judgment. I believe the Judge who tried the case is in a better position to determine such questions especially when the issue is confined to whether the amount thereof ought to be nothing or $30.

At a time when the number of cases awaiting decision by the three Commission Members exceeds 250, some of which have been pending for more than a year, it makes no sense at all to take up questions of such inconsequential import.

Just to look up the occupational safety and health standard allegedly violated in this case is very time consuming. There is still some doubt in my mind as to whether the Judge was correct when he listed it as 29 C.F.R. 1910.314(d)(4)(c) or whether the Commission decision correctly identifies it as 29 C.F.R. 1910.314(d)(4)(iii)(c). My attempt to resolve this in my own mind caused my head to spin in "confusion worse confounded." n2

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n2 Milton, Paradise Lost, Book II, Line 995.

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I do not think the Commission should engage in the unproductive exercise of substituting its subjective judgment for that of the Judge on $30 items. I decline to join in such meaninglessness.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE, OSAHRC: This is a proceeding under Section 10(c) 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) to review a citation issued by the Secretary of Labor (hereinafter referred to as the complainant), pursuant to Section 9(a) of the Act, and proposed assessment of penalties in the aggregate amount of $80.00 for the alleged violations set forth in the citation.

A citation was issued to respondent on March 27, 1972, alleging violations of 29 CFR 1910.314(d)(4)(c), 29 CFR 1910.144(a)(1)(e), 29 CFR 1910.215(a)(4) and 29 CFR 1903.2(a). A notification of proposed penalty was issued on the same date which proposed a penalty of $30.00 for the alleged violation of 29 CFR 1910.314(d)(4)(c) and $50.00 for the alleged violation of 29 CFR 1903.2(a). No penalties were proposed for the remaining two violations. By letter dated April 17, 1972, respondent forwarded a notice of contest advising that it wished to contest the four alleged violations and penalties proposed in the citation.

The alleged violations by respondent were described in the citation as follows:

1. 29 CFR 1910.314(d)(4)(c)

The following electrical equipment lacks ground circuit: Electric sweeper, ticket printer, Reese buttonholer, thermoply machine, electric drill, fan.

2. 29 CFR 1910.144(a)(1)(e)

Color coding of portable fire extinguisher on background is required and not apparent.

3. 29 CFR 1910.215(a)(4)

Tool rests were not provided on two grinders in machine shop.

4. 29 CFR 1903.2(a)

OSHA notice to employees were not posted.

The complainant advised the Occupational Safety and Health Review Commission of the notice of contest filed by respondent. The Commission assigned the case to this Judge for hearing pursuant to provisions of Section 10(c) of the Act. A hearing was held in Jacksonville, Florida, on August 22, 1972. No additional parties desired to intervene in the proceeding.

On July 31, 1972, respondent filed a Mation to Dismiss which was primarily based on the contention that the Act is unconstitutional. In addition a motion was made for a jury trial. These motions were denied by Orders entered on August 10, 1972. The motions were renewed on two occasions at the hearing and were denied on each occasion (Tr. 20, 54-55).

ISSUES

A determination must be made as to whether there were non-serious violations of the following standards.

1. 29 CFR 1910.314(d)(4)(c)

2. 29 CFR 1910.144(a)(1)(e)

3. 29 CFR 1910.215(a)(4)

4. 29 CFR 1903.2(a)

In addition to resolving what violations, if any, occurred, a determination must be made as to the appropriate penalties to be asserted for any violations.

FINDINGS OF FACT

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

Respondent is a corporation having a place of business and doing business at 1720 Perry Street, Lake Butler, Florida, where it is engaged in the manufacture of men's and women's clothing. Respondent employs in excess of 100 persons in its plant. At all times material to this proceeding, respondent has been engaged in a business affecting commerce within the meaning of the Act (Par. II, Complaint and Answer, Tr. 22).

The complainant, through one of his duly authorized compliance officers, conducted an inspection of respondent's plant on March 23, 1972 (Tr. 5-6, 22). The compliance officer identified himself, presented his credentials and advised the respondent's president as to the purpose of the inspection (Tr. 6). The compliance officer discussed the provisions of the Act with the president and inquired if he had received the poster informing employees of the protections and obligations provided for in the Act. The poster had not been posted. It was on the president's desk (Par. IV D. Complaint and Answer; Tr. 7, 22-23). The president advised the compliance officer that the poster was detrimental to his business and that it had not been posted and that he did not intend to post it (Tr. 8, 22-23).

The compliance officer conducted a walk around inspection and was accompanied by the respondent's president. Approximately six portable machines out of approximately 200 machines were found to be ungrounded. These included an electric drill, a ticket machine, a buttonholer, a sweeper and an electric fan (Tr. 9-10, 44). Some portable fire extinguishers were not color coded in a red color (Tr. 11).

A penalty of $30.00 was proposed for the alleged violation of 29 CFR 1910.314(d)(4)(c). The gravity of the violation, based on the probability, severity and extent of the violation, was determined to be medium and the unadjusted penalty was set at $100.00. Respondent was allowed a 20% reduction for previous history and a 20% reduction for good faith. This reduced the penalty to $60.00. A further reduction of 50% was allowed for abatement. This reduced the penalty to $30.00 (Ex. 2; Tr. 13-16). A flat $50.00 penalty was proposed for the failure to post the notice. This penalty is provided for by the Compliance Operations Manual (Tr. 49-50).

LAW AND OPINION

Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act. Complainant contends that respondent violated four standards.

1. Alleged violation of 29 CFR 1910.314(d)(4)(c)

Section 1910.314(d)(4)(c) of 29 CFR provides as follows:

(d) Equipment grounding . . .

(f) Equipment connected by cord and plug. Under any of the conditions of this subparagraph, exposed noncurrent carrying metal parts of cord and plug connected equipment, which are liable to become energized, shall be grounded:

(c) Portable, hand held, motor operated tools, and appliances of the following types: drills, hedge clippers, lawn mowers, wet scrubbers, sanders and saws, and. . . .

The record clearly reflects that the respondent had six portable machines which were ungrounded. Respondent offered no evidence to contradict this fact. Thus the violation is established.

2. Alleged violation of 29 CFR 1910.144(a)(1)(e)

Section 1910.144(a)(1)(e) provides as follows:

(a) Color identification -- (1) Red. Red shall be the basic color for the identification of:

(e) Fire extinguishers (if painting the extinguisher is impractical or undesirable, color should be used on the housing, wall, or support to identify the location).

The evidence is undisputed that respondent had some fire extinguishers in use which were not color coded in red as required by the standard. The violation is established.

3. Alleged violation of 29 CFR 1910.215(a)(4)

Section 1910.215(a)(4) provides as follows:

(a) General Requirements

(4) Work rests. On offhand grinding machines, work rests shall be used to support the work. They shall be of rigid construction and designed to be adjustable to compensate for wheel wear. Work rests shall be kept adjusted closely to the wheel with a maximum opening of one eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage. The work rest shall be securely clamped after each adjustment. The adjustment shall not be made with the wheel in motion.

The complainant has failed to meet its burden on this issue with proper evidence.

The only evidence presented on this issue is the following answer of the compliance officer (Tr. 10-line 5).

A. Yes, he had a grindstone in the machine shop which did not have the proper tool rest on either side of the stone.

The statement by the compliance officer represents a conclusion on his part that the grindstone did not meet the standard. Whether the tool rest was proper is a determination to be made by the Commission and not the compliance officer. He should testify only as to the facts. If the Commission sustained a violation on such statements it would be abdicating its responsibilities under the Act.

Since the compliance officer testified that the grindstone did not have "the proper tool rest" it is reasonable to assume that there was probably some type of tool rest in use. The reason as to why it did not meet the standard is not disclosed. Thus there are no facts of record on which a violation can be determined.

Section 10(c) of the Act specifically requires the Commission to "issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation." The facts are not established in the record on this issue. The personal conclusion of the compliance officer is insufficient evidence. The facts on which he reached the conclusion that the tool rest was not proper should have been established in the record. Accordingly, it is concluded that the complainant has failed to carry his burden on this issue.

4. Alleged violation of 29 CFR 1903.2(a)

Section 1903.2(a) of 29 CFR provides as follows:

(a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

Respondent conceded in its answer that it failed to post an OSHA notice to employees (Par. IV. D. Complaint and Answer). The testimony at the hearing also clearly established a violation of this standard.

Although respondent conceded a notice was not posted as required by 29 CFR 1903.2(a), it contends in its answer that the requirements of 29 CFR 1903.2(a) violates the rights guaranteed to it by the Constitution of the United States. In its motion to dismiss which was filed on July 31, 1972, respondent contended that 29 CFR 1903.2(a) violated the First and Fifth Amendments of the Constitution in that:

(a) Respondent's freedom of speech guaranteed by the First Amendment is abridged by the requirement that Respondent post in his place of business a notice containing thoughts and words not of his own choosing, and

(b) Respondent is required to provide its property for use by the Occupational Safety and Health Administration for the posting of such notice, which deprives the Respondent of its property, i.e., the space required for posting such notice without due process of law, in clear violation of the rights granted under the Fifth Amendment.

The constitutionality of the Act is not a question over which Judges of the Commission have jurisdiction. Administrative agencies have the power to determine constitutional applicability, but they do not have the power to determine constitutionality of legislation. See, Davis, Administrative Law Treatise 20.04; Engineers Public Service Co. v. S.E.C., 138 F. 2d 936 (D.C. Cir. 1943), dismissed as moot 332 U.S. 788. In Panitz v. District of Columbia, 112 F.2d 39, 42 (D.C. Cir. 1940), the court stated:

Likewise, it has been held that an administrative agency invested with discretion has no jurisdiction to entertain constitutional questions where no provision has been made therefor.

No statutory power is conferred upon the Commission to consider questions of constitutionality of the Act or to receive evidence or make findings of fact in respect thereto.

Constitutional applicability involves a determination as to whether 29 CFR 1903.2(a) as promulgated by the Secretary carries out the legislative intent of the Act, either express, implied or presumed. Section 8(c)(1) of the Act provides, in part, as follows:

The Secretary shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this Act, including the provisions of applicable standards.

It is readily apparent that the Act itself required the complainant to issue the regulation requiring the posting of notices to keep employees informed of their protections and obligations provided for it in the Act. The use of the word "shall" made the issuance of such a regulation mandatory. The wording of the regulation merely carries out the express intent of Congress. Since the legislative intent has been effectuated by the regulation, respondent's contentions are without merit.

APPROPRIATENESS OF PENALTIES

Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc., In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. It indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense.

The Commission in Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc., The same rationale was applied by the Commission in Secretary of Labor v. General Meat Company, Inc., Small monetary penalties were eliminated in both cases since the violations had been abated. However, this rationale was directed toward relatively minor violations of the Act which would be better described as de minimis. The Commission recognized that there would be instances where a small penalty would be justified. Whether small monetary penalties are justified must be determined by the relationship between the nonserious violation involved and the corresponding degree of gravity. Secretary of Labor v. Hydroswift Corporation,

1. Violation of 29 CFR 1910.314(d)(4)(c)

The complainant proposed a penalty of $30.00 for this violation. Respondent abated the violation in accordance with its agreement with the compliance officer (Par. IV Ao, Answer; Tr. 50-52).

In Secretary of Labor v. National Realty and Construction Company, Inc., In J.E. Chilton Millwork & Lumber Company, Inc., supra, the Commission did not indicate what emphasis it placed on these elements in holding no penalties applicable to ungrounded items. In that case the Judge found that a refrigerator, hot place, coffee pot, soft drink dispenser and borning machine were not grounded. No penalty was asserted for any of these ungrounded items. At least one of the items, i.e., the borning machine, was undoubtedly used in respondent's primary business operations. There were six ungrounded items in that case and the same number in this case.

Since the Commission did not assert any penalty for the ungrounded items in J.E. Chilton Millwork & Lumber Company, Inc., it is concluded that ungrounded equipment is considered by the Commission to have a low level of gravity. Accordingly, no penalty is asserted for the violation of 29 CFR 1910.314(d)(4)(c).

2. Violation of 29 CFR 1910.144(a)(1)(e).

Complainant did not propose any penalty for this violation. After considering all factors previously set out to determine an appropriate penalty, it is concluded that the level of gravity is not sufficient to warrant the assertion of a penalty.

3. Violation of 29 CFR 1903.2(a)

The complainant proposed a flat penalty of $50.00 for this violation. The $50.00 penalty is established by section B(9)a(1) of Chapter XI of the Compliance Operations Manual dated November 15, 1971, and released January 4, 1972. This section states, in part, as follows:

No penalty shall be proposed unless a copy of the prescribed notice had been furnished to the employer or the employer had knowledge of such a notice. A proposed penalty of $50 shall be assessed when warranted. The proposed penalty shall not be adjusted nor shall abatement credit be given.

The $50.00 penalty would appear to have been arbitrarily established. However, it is concluded that the circumstances of this case fully justify the $50.00 penalty. Respondent had been furnished the notice, was fully aware of the requirement and had purposely failed to post the notice.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent violated the standards set forth at 29 CFR 1910.314(d)(4)(c), 29 CFR 1910.144(a)(1)(e) and 29 CFR 1903.2(a).

4. Respondent did not violate the standard set forth at 29 CFR 1910.215(a)(4).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED:

(1) That the respondent committed a violation of 29 CFR 1910.314(d)(4)(c), 29 CFR 1910.144(a)(1)(e) and 29 CFR 1903.2(a);

(2) That a penalty of $50.00 is asserted for the violation of 29 CFR 1903.2(a) and that no penalty is appropriate for the remaining two violations; and

(3) That the respondent did not commit a violation of 29 CFR 1910.215(a)(4).