SIERRA PACIFIC INDUSTRIES, HAYFORK DIVISION

OSHRC Docket No. 838

Occupational Safety and Health Review Commission

August 14, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: This matter is before this Commission for review of a March 8, 1973, decision of Judge Harold A. Kennedy pursuant to 29 U.S.C. 661(i). At issue are the appropriateness of the Judge's penalty assessment and whether the citation was issued with reasonable promptness as required by 29 U.S.C. 658(a). Review of the entire record convinces us that the Judge assessed an appropriate penalty. We also hold that the respondent waived consideration of whether the citation was duly issued by not raising that defense in the proceedings below. Secretary v. Chicago Bridge and Iron Company, We therefore affirm the Judge's decision.

Chairman Moran would reverse for the reasons set forth in his dissenting opinions in Secretary v. Plastering, Incorporated, Secretary v. Advanced Air Conditioning, Inc.,

[The Judge's decision referred to herein follows]

KENNEDY, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act [*2] of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The citation, designated Citation No. 1 and dated April 11, 1972, alleges that as a result of the inspection of a workplace under the ownership, operation or control of the Respondent, located on Highway 3, East End of Hayfork, Post Office Box 668, Hayfork, California, by the Secretary on January 20, 1972, Respondent violated Section 5(a)(2) of the Act n1 by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

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n1 Section 5(a)(2) of the Act provides that each employer subject to the Act "shall comply with occupational safety and health standards promulgated under this Act."

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The citation, which was issued on April 11, 1972, contains 11 separate charges called "Items." Respondent's answer admits the violations alleged in Items [*3] 1, 8, 9 and 10. n2

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n2 Items 1, 8, 9 and 10 allege violation of the standards appearing at 29 CFR 1910.23(d)(1)(iii); 1910.141(a)(1)(i); 1910.141(d)(2); and 1910.180(d)(6), respectively.

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Item No. 2 alleges violation of the standard appearing at 29 CFR 1910.265(c)(18)(i) in the following language:

Failure to provide guarding on trail sprocket and take up assembly of bark and burner conveyors, and on tail pulley and chain of 3 shaker screen conveyors and on return run of hula saw transfer chains and inclined chains in sawmill building.

29 CFR 1910.265(c)(18)(i) reads:

(18) Conveyors -- (i) Standards. Construction, operation, and maintenance of conveyors shall be in accordance with American National Standard B20.1-1957.

The citation fixed the time for abatement of the violation alleged in Item No. 2 as 30 days.

Item No. 3 alleges violation of the standard appearing at 29 CFR 1910.23(c)(2) in the following language:

Failure to provide standard railing at platforms and runways about chip bins.

29 CFR 1910.23(c)(2) [*4] reads:

(2) Every runway shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides 4 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.

Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where operating conditions necessitate such omission, providing the falling hazard is minimized by using a runway of not less than 18 inches wide. Where persons entering upon runways become thereby exposed to machinery, electrical equipment, or other danger not a falling hazard, additional guarding than is here specified may be essential for protection.

The Citation fixed the time for abatement of the violation alleged in Item No. 3 as seven days.

Item No. 4 alleges violation of the standard appearing at 29 CFR 1910.23(c)(3) in the following language:

Failure to provided standard railing on open side of platform at shaker rolls.

29 CFR 1910.23(c)(3) reads:

(3) Regardless of height, open-sided floors, walkways, platforms, [*5] or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard railing and toe board.

The citation fixed the time for abatement of the violation alleged in Item No. 4 as seven days.

Item No. 5 alleges violation of the standard appearing at 29 CFR 1910.265(c)(26)(viii) in the following language:

Failure to provide guarding at lower landing area of unstacker at resaw side lift.

29 CFR 1910.265(c)(26)(viii) reads:

(viii) Guarding lower landing area. The lower landing area of stackers and unstackers shall be guarded by enclosures that prevent entrance to the area or pit below the hoist platform. Entrances should be protected by electrically interlocked gates which, when open, will disconnect the power and set the hoist brakes. When the interlock is not installed, other positive means of protecting the entrance shall be provided.

The citation fixed the time for abatement of the violation alleged in Item No. 5 as seven days.

Item No. 6 alleges violation of the standard appearing at 29 CFR 1910.265(e)(2)(ii)(c) in the following language:

Failure to provide adequate guarding on [*6] ponyrig band saw.

29 CFR 1910.265(e)(2)(ii)(c) reads:

(c) Band wheels shall be completely encased or guarded, except for a portion of the upper wheel immediately around the point where the blade leaves the wheel, to permit operator to observe movement of equipment. Necessary ventilating and observation ports may be permitted. Substantial doors or gates are allowed for repair, lubrication and saw changes; such doors or gates shall be closed securely during operation. Band head rigs shall be equipped with a saw catcher or guard of substantial construction.

The citation fixed the time for abatement of the violation alleged in Item 6 as seven days.

Item No. 7 alleges violation of the standard appearing at 29 CFR 1910.37(k)(2) in the following language:

Failure to maintain all ground floor exit egress free of all obstructions or impediments.

29 CFR 1910.37(k)(2) reads:

(2) Means of egress shall be continuously maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency.

The citation fixed the time for abatement of the violation alleged in Item No. 7 as "immediately."

Pursuant to the enforcement procedure set forth in Section [*7] 10(a) of the Act, Respondent was notified by letter dated April 11, 1972 from the Area Director of the San Francisco area, Occupational Safety and Health Administration, United States Department of Labor, that penalties were being proposed for the violations alleged as follows:

Item No.

Proposed Penalty

 1

None

 2

$110

 3

$185

 4

$110

 5

$185

 6

$110

 7

$185

 8

None

 9

None

10

$35 n3

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n3 Respondent did not contest the violation alleged in Item No. 10 or the penalty proposed therefor. No penalty was proposed for the other uncontested Items (1, 8 and 9).

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Respondent submitted its notice of contest to the Secretary of Labor under date of April 20, 1972, which was received by the Secretary of Labor on April 24, 1972, and by the Commission on April 28, 1972. Thereafter, complaint and answer were filed, and the case came on for hearing at San Francisco on November 9, 1972. Stanley A. Merrick, the inspecting officer, testified for the Secretary. Conrad J. Hagen, General Manager of Hayfork [*8] Division of Sierra Pacific, testified for Respondent. Both sides have filed proposed findings and briefs. Respondent's employees are not organized, and none sought to participate in the proceeding.

FINDINGS OF FACT

Jurisdiction-Business of Respondent -- Issues

The parties stipulated the following matters (J 17):

1. Respondent Sierra Pacific Industries (Hayfork Division) is a corporation with a place of business on Highway 3, Hayfork, California;

2. Respondent was and is engaged in the operation of a lumber mill in the manufacture and sale of lumber and lumber products;

3. Respondent's products were regularly shipped outside of the State of California;

4. Respondent employs approximately 92 employees at Hayfork, California;

5. Sierra Pacific Industries has an annual volume in excess of $1 million;

6. An authorized inspection was made of Respondent's Hayfork sawmill on January 20, 1972; and

7. Respondent is an "employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act."

Respondent admits in its answer that it violated Items 1, 8, 9 and 10, and it does not contest the $35 penalty proposed [*9] for Item No. 10. Respondent acknowledges that the abatement periods prescribed were reasonable. It must be determined whether Respondent violated the standards referred to in Items 2, 3, 4, 5, 6 and 7 and, if so, what penalty, if any, is appropriate.

Evidence and Findings as to the Charges

Item No. 2

It is apparent that Item No. 2 of the citation is invalid as a matter of law because of the failure of the Secretary to satisfy the "particularity" requirement of Section 9(a) of the Act. It is, therefore, unnecessary to discuss the evidence offered on this issue. Section 9(a) reads in part:

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.

Item No. 2 alleges violation of the standard appearing at 29 CFR 1910.265(c)(18)(i), but such "standard" quoted supra, simply provides that the "construction, operation, and maintenance of conveyors shall be in accordance with American National Standard B20.1 -- 1937." n4

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n4 Paragraph VI of the complaint alleges violation of the standard in essentially the same language used in the citation, but the former does make express reference to the ANSI standard.

[*10]

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The American National Standard in question, referred to as an ANSI standard, was not introduced into evidence. A copy was not even available at the hearing. There is no indication in the record on which sections or parts of the ANSI standard the Secretary relies. Inspector Merrick testified that he had borrowed a copy of the ANSI standards at one time. Respondent did not know what the ANSI standards were and did not know where to find a copy (Tr. 35, 42, 66-8; 102-104; 109-110; 117).

Item No. 2 must, therefore, be vacated. n5

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n5 Respondent in its brief points out that the Secretary not only failed to apprise it of the nature of charges contained in Item No. 1, but there is no way to evaluate the guarding of the areas referred to in Item No. 2 without knowing which standards are involved. "For all we know, maybe the American National Standard doesn't require guarding in this area at all, let alone any further guarding than has already been supplied. [W]ithout the American National Standard available to the Respondent, or to the Court, or to the Counsel for each side, no one can tell whether or not the reguisite degree of guarding has been accomplished in order to meet whatever the requirements may be."

[*11]

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Item No. 3

Paragraph VII of the complaint rephrases the wording of Item No. 3 and alleges the failure "to provide a standard railing on all open sides 4 feet or more above floor or ground level at runways about chip bins."

There are runways, or platforms, at two levels of the chip bin. General Manager Hagen agreed that a railing was missing on the lower runway. According to Inspector Merrick, there was "no railing protection on one end" of the runway where he estimated it to be 30 feet above the ground. He conceded that there was low employee exposure ("one or two at most, and very infrequently,") but that a very severe or even fatal injury could result (Tr. 16-17).

Respondent's Exhibit 13 shows the chip bin sometime after the inspection with railings completed. n6 Mr. Hagen testified that the top platform is almost never used, maybe "once every three months, six months, seven months" for maintenance (Tr. 85-88, 109).

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n6 All of Respondent's photographs (RXs 1-28) were taken on October 17, 1972 (Tr. 64).

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Since the runway is used only to reach the upper level, Respondent contends that it may be considered in compliance with the cited standard on the basis that the runway qualifies as "special purpose" runway as used in the quoted standard. The runway is approximately 26 inches wide and the chip bin affords some protection on one side of the lower runway. The second paragraph of 29 CFR 1910.23(c)(2) reads:

Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where operating conditions necessitate such omission, providing the falling hazard is minimized by using a runway of not less than 18 inches wide. Where persons entering upon runways become thereby exposed to machinery, electrical equipment, or other danger not a falling hazard, additional guarding than is here specified may be essential for protection.

The undersigned does not agree with Respondent's interpretation. The special purpose provision contemplates that there would be at least one railing on one side, and there was an area where there was no railing. [*13] The chip bin itself, while affording some protection, does not qualify as a railing. Thus, the violation alleged in Item No. 3 is established, albeit one of low gravity level.

Item No. 4

Item No. 4 and Paragraph VIII of the complaint charge Respondent with failing to provide a "standard railing" at the shaker rolls platform. The complaint refers to the shaker rolls as "dangerous moving equipment." Respondent's Exhibits 6 and 7 show the platform after the standard railing was added. The "platform," which is about eight feet above the floor, is in reality a 12" wide plank on which a workman would stand to oil the shaker rolls or to replace a sprocket "probably every two months" or so. The hazard is one of falling, but the level of employee exposure "would be very low" (Tr. 17-18, 42-44, 88-90, 107-9, 122).

Respondent's evidence does not really contradict the evidence of the Secretary. The violation was thus established, but again it was one of low level gravity.

Item No. 5

Item No. 5 and Paragraph IX of the complaint are directed at failure to guard under the area where a three pronged power-lift rises to lift lumber from the ground level up to a height of approximately [*14] 20 feet. Respondent's Exhibits 1 and 2 show the lift with rails in place after inspection. The hazard involved here is said to involve the possibility of pieces of lumber falling from the lift and striking an employee. Mr. Merrick thought there would be eight or ten employees ("at least") exposed each shift, but Mr. Hagen testified that a forklift driver would be the only worker in the area. See Tr. 18-19, 44-6; 90-93, 111.

The forklift operator is afforded protection by the safety canopy over the forklift, but the standard specifically requires guarding so as to prevent entry of employees into the area below the hoist. The violation was established.

Item No. 6

Paragraph X of the complaint revises the language of Item No. 6 slightly so as to charge failure "to provide a saw catcher or guard of substantial construction on a ponyrig handsaw(sic)." Respondent's Exhibits 23, 24 and 25 are photographs of the ponyrig saw. Both Mr. Merrick and Mr. Hagen testified on this issue (Tr. 19-24, 47-9, 62-4; 93-5, 112-13; 123-30, 134-38).

A ponyrig is similar to, but smaller in size than, a headrig. The latter is used to saw cants cut by the headrig. As shown in Respondent's [*15] Exhibit 23, the ponyrig is enclosed in a steel "house." There is no dispute about the fact that the ponyrig was not equipped with a saw catcher at the time Mr. Merrick made the inspection for the Secretary. n7 Likewise, it is not disputed that if the ponyrig bandsaw came off of its band wheel the sawyer, who works in the immediate area within a metal enclosure, could be exposed to serious injury. The ponyrig operator is concededly in a "much safer position than a head sawyer."

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n7 Respondent's Exhibit 23 was taken after the inspection after a saw catcher had been installed (Tr. 94).

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The difference between the parties on this issue revolves around the proper interpretation to be given the wording of the last sentence of the standard:

Band head rigs shall be equipped with a saw catcher or guard of substantial construction.

The Secretary contends in his brief (p. 5) that the language of the standard requires "either a saw catcher or a guard of substantial construction, which guard would serve the same purposes as the [*16] saw catcher, would be required in this instance."

The undersigned is inclined to agree that some form of saw catcher protection is needed for a ponyrig as well as a head rig. However, the standard as written can not be fairly held to apply to Respondent's ponyrig. As Respondent points out in its brief (pp. 9-10), there is a difference between a ponyrig and a head rig, and the standard by its terms is applicable only to "head" rigs. Further, when the standard applies, it affords an employer the option of equipping the rig either with a saw catcher "or" a guard of substantial construction. Even if the standard should be held to apply to Respondent, Respondent understandably could have believed that the substantial metal house enclosure around its ponyrig met the alternate requirement of "a guard of substantial construction." n8

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n8 According to Mr. Hagen, many sawmills still enclose ponyrig saws in wood houses (Tr. 94).

Quoting from the Commission's decision in California Stevedore & Ballast Company,

Inspector Merrick conceded that the citation relating to this issue was "poorly written," that Respondent was in compliance except for the final sentence of the standard and that part is confusing (Tr. 23, 40 and 62).

[*17]

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Item No. 6 was not established.

Item No. 7

Paragraph XI of the complaint revises the allegations of Item No. 7 so as to conform more closely to the cited standard and to charge that "respondent failed to continuously maintain means of egress on the ground floor exit free of all obstructions or impediments to instant use in the case of fire or other emergency." There are five entrances to Respondent's sawmill, but the testimony concerned the 16 feet-wide main entrance exit through which the "bulk" or most of Respondent's employees passed. Respondent's Exhibit No. 21 was offered to show that Respondent had installed a railing barricade after the investigation to keep the area clear. The Secretary offered no photographs to show how the area looked at the time of the inspection. Inspector Merrick and General Manager Hagen testified on this issue (Tr. 24 5, 50-3, 96-9; 113-14, 118).

Mr. Merrick testified that during his 3-4 hour inspection he observed materials (steel stock, welding equipment, machine parts, etc.) at the main egress which he felt could result in tripping, falling or stumbling. [*18] He said he "had to climb over stuff" to get through the area. Mr. Hagen agreed that material probably did "impinge upon the area" of the main entrance-exit, but he could not recall that it was ever really difficult to get through the area or down the stairwell nearby. He conceded that there were materials in the area that could "impede" but not stop the passage of persons. He said a vehicle might block the area temporarily while it was being loaded or unloaded.

The cited standard requires that the means of egress areas to be free of "all" obstructions or impediments. The inspecting official was positive in testifying on the housekeeping issue; Mr. Hagen did not completely contradict the inspector's testimony. Photographs taken at the time of inspection would have been more impressive, but the testimony was sufficient to sustain the allegation.

Penalties

Assessment of penalties must be considered for the violations alleged in Items 3, 4, 5 and 7 and found established. Such penalties must take in to account Respondent's "good faith," "size," "history" and the "gravity" of the violations (Section 17(j)). Respondent is entitled to an independent evaluation of these factors [*19] by the Review Commission. See Dreher Pickle Co.

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n9 For this reason Respondent will not be deprived of equal protection of the law because the Secretary's investigation was conducted by a state inspector who may have been prejudiced against it by prior state inspections.

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Respondent does not have a strong safety program, but it is not an employer entirely lacking in good faith. This is demonstrated in part by the fact that Respondent was willing to construct guards and to do the things the Secretary considered necessary to bring its Hayfork Division into compliance with the Act -- even though it did not agree with all of the Secretary's objections.

There is one "very competent" employee assigned full-time to safety responsibility for the corporation. His office is located in Arcata, California, however, and he is also responsible for the safety of other plants and mills. A safety committee does exist, at the Hayfork plant, and it meets each month.

Respondent [*20] has no history under the Act (Stipulation #14, J-17). The record indicates it is not an insignificant factor in the sawmill and lumber industry (see page 7, supra. ) The gravity of each of the violations found sustained (Items 3, 4, 5 and 7) is relatively low. A penalty of $100 for each of the violations established is considered appropriate under the Act. n10

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n10 The Secretary calculated the proposed penalty by starting with an unadjusted figure for each Item, which was intended to take into account the gravity of each violation. Each figure was then adjusted downward by application of a credit for the factors of good faith, size, history. The Secretary gave Respondent "0" for good faith, 5% for size and 20% for history. See SX 1; also testimony of Inspector Merrick (Tr. 16-19, 24-30, 46, 60-62; 120-123 and 131-3). Mr. Hagen's testimony reflects more favorably upon Respondent's good faith, and the hazard involved in Items 3, 4, 5 and 7. See Tr. 70-2, 86-89, 97-99; 103-06, 110, 114-19.

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Based on the foregoing, [*21] and the whole record, the undersigned makes the following:

CONCLUSIONS OF LAW

1. Respondent is, and at all times material herein, an "employer" within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and the subject matter.

2. Violations of the standards appearing at 29 CFR 1910.23(d)(1)(iii), 1910.141(a)(1)(i), 1910.141(d)(2) and 1910.180(d)(6) were established by Respondent's admissions with respect to Items 1, 8, 9 and 10.

3. The Secretary established that Respondent had violated 29 CFR 1910.23(c)(2) by failing to properly guard the runways about the chip bin.

4. The Secretary established that Respondent had violated 29 CFR 1910.23(c)(3) by failing to provide a standard railing at the platform on the shaker rolls.

5. The Secretary established that Respondent violated 29 CFR 1910.265(c)(26)(viii) by failing to provide a guard so as to prevent entry into the area of the resaw side lift.

6. The Secretary established that Respondent had violated 29 CFR 1910.37(k)(2) by failing to maintain a ground floor exit egress free of all obstructions or impediments.

7. The Secretary did not [*22] establish that Respondent violated either 29 CFR 1910.265(c)(18)(i) or 1910.265(e)(2)(ii)(c).

ORDER

Based on the foregoing findings of fact, conclusions of law and the entire record, it is ORDERED:

1. Items 1, 3, 4, 5, 7, 8, 9 and 10 of Citation No. 1 dated April 11, 1972 are affirmed.

2. The penalties proposed for Items 1 (none), 8 (none), 9 (none), and 10($35) are affirmed.

3. Items 2 and 6 of Citation No. 1 dated April 11, 1972, and the penalties proposed therefor ($110 for each) are vacated.

4. The penalties proposed for Items 3, 4, 5 and 7 ($185, $110, $185, and $185, respectively) are vacated, and a penalty of $100 is assessed in lieu thereof for each of these items.