MURRO CHEMICAL COMPANY, INC.

OSHRC Docket No. 857

Occupational Safety and Health Review Commission

October 11, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On February 8, 1973, Judge Leon J. Moran issued his decision and order in this case. On February 27, 1973, the case was directed for review pursuant to section 12 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act").

The Secretary of Labor had issued to respondent a citation for serious violation of section 5(a)(2) of the Act consisting of three separate items; a citation consisting of 22 items, for other than serious violation of section 5(a)(2) of the Act; and a notification of proposed penalties. Following the filing of complaint and answer, the case proceeded to hearing.

Among other procedural matters considered at the hearing, the Secretary moved to amend item 1 of the citation for serious violation of section 5(a)(2) of the Act so as to allege a violation of section 5(a)(1) of the Act. This motion was taken under advisement and was granted by the Judge in his decision.

We have considered the entire record including the briefs of the parties. We specifically affirm the Judge's granting of the motion to amend [*2] item 1 of the citation for serious violation and adopt his reasons for doing so. Our review of the entire record reveals no prejudicial error therein and accordingly it is ORDERED that the Judge's decision and order are affirmed.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur with the disposition of this case. Although Complainant essentially changed his legal theory at the hearing, Respondent by failing to challenge the propriety of the amendment has waived any objection which might have been available.

A last minute change of tactics should not be condoned where Respondent suffers prejudice. Having been cited under section 5(a)(2) for violation of a particular standard, this pro se Respondent presumably entered the hearing room prepared to defend against that standard. The unexpec;ted amendment of the charge from the 5(a)(2) to a 5(a)(1) violation added a complicated new issue to the case, i.e., the existence of a "recognized hazard." However, Respondent did not object at the hearing, nor was a continuance requested even though counsel for Complainant indicated his lack of opposition thereto. In addition, Respondent ignored Judge Moran's explicit [*3] invitation to submit written statements on the question and failed to challenge the propriety of the amendment in response to Chairman Moran's direction for review. Normally a precipitous amendment from a 5(a)(2) charge to a 5(a)(1) would prejudice Respondent, n1 but by failing to object at any time Respondent indicated a lack of prejudice and thereby waived the objection.

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n1 It should be noted that amendment in the opposite direction, i.e., from a 5(a)(1) to a 5(a)(2), may not prejudice Respondent. Although also a change in legal theory, such an amendment may not add new issues to the case.

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DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This respondent was originally charged with violating 29 U.S.C. 654(a)(2) by failing to guard a conveyor worm gear in contravention of an occupational safety standard codified at 29 C.F.R. 1910.212(a)(1). Despite the lengthy delay (36 days) in issuing the citation, it had not been correctly drawn. During the hearing conducted more than seven months after the inspection, complainant [*4] recognized that the standard cited in the charges did not apply to the condition which had been cited as a violation. He then moved to amend the complaint so as to allege a violation of 29 U.S.C. 654(a)(1), the Act's general duty clause. The Judge deferred ruling on the motion until after the hearing. n2 In his decision rendered more than three months after the hearing, the Judge granted the motion and held that the respondent had violated the general duty clause.

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n2 Therefore, the respondent did not know what charge he was required to defend against at the time of the trial. Obviously, this is an improper procedure.

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The respondent manufactures soap and fatty acids. The conveyor at issue in this case is used to feed fat and bones into another conveyor. That material is "dumped" on a steel plate which is located in front of the conveyor. It is then shoveled from there onto the conveyor. This conveyor simply transports the material and does not perform any crushing or grinding function. It had been [*5] in use for almost eight years without anyone having fallen into it.

The inspector estimated that the steel plate was about four by six feet in size. In his opinion, a person standing on the steel plate, even when clean, "could very easily slip and fall into and onto the worm gear" and be injured. However, the basis of this testimony was that he had been told by an unidentified person that "they would be standing on the steel plate." He had not seen the conveyor in operation.

The testimony of the respondent's treasurer was considerably different. He testified as to the conveyor's operation as follows:

There is a platform in front of the conveyor where the material is dumped, and the men work on the concrete floor away from the conveyor and to the side of it. . . . Also, the fact that the conveyor turns so slow that if somebody should run into the conveyor and just walk up into the area and fall into it, there is not a -- it's not turning at a speed that would do anything to you. It's turning at a speed that is, that would take several minutes to go a few feet, so that it doesn't pose a probability of serious bodily harm from somebody even stepping into the thing. You could [*6] stand in there and ride with it, unless you were unconscious, or something; and even then, there's plenty of time to get up. This thing is a very, very slow moving affair."

[T]he metal plate is not a working area. It's put there solely for the men who stand behind and to the side of this metal plate to dump the barrels of fat. They have shovels. The shovels are . . . used to shovel the material from this plate, and the material covers the plate, so they stand behind. It's not even feasible to stand in the material. They stand beside on the concrete. They walk around the plate, and the material is shoveled from that plate into the conveyor, so that the plate is not a working area. A standing area, I should say.

Concerning prior inspections, he rendered the following testimony:

The State inspector. He has seen this conveyor on numerous occasions, as have prior inspectors; and when the operation was explained, it was never -- no recommendation was ever made for us to do anything further to this thing. . . .

To prove a violation of the general duty clause, the complainant must establish that the alleged violation constitutes a "recognized hazard that [is] causing [*7] or [is] likely to cause death or serious physical harm" to the respondent's employees. 29 U.S.C. 654(a)(1). The term "likely" connotes a higher degree of probability than a mere possibility. Secretary v. Arizona Public Service Company,

A condition is a recognized hazard when it is commonly known to be a hazard by the public in general or in the cited employer's industry. See National Realty and Construction Company, Inc., v. OSAHRC, 489 F.2d 1257, n. 32 (D.C. Cir. 1973).

There is no evidence in this case which tends to show that an unguarded worm gear on a conveyor like the one at issue here is a recognized hazard in the soap and fatty acids manufacturing industry. Also, the evidence is insufficient to establish that it is a condition which is recognized as a hazard likely to cause death or serious physical harm by the public in general, or that the respondent knew that it presented such a hazard.

The inspector's testimony in this case was sheer speculation. He did not see the conveyor in operation, did not know the length of the shovels used by the workmen, and had no personal knowledge of the proximity of the workmen to [*8] the conveyor when it was in operation. To the contrary, the testimony of the respondent's treasurer was based on almost eight years of actual experience with the conveyor. That experience and the observation of the conveyor in operation by other safety inspectors without unfavorable comment support the conclusion that the conveyor was being operated in a safe manner and was not a recognized hazard.

In addition to the foregoing, it is my position that all violations and penalties affirmed against this respondent should be set aside because of the excessive delay in issuing the citations. There was a delay of 36 days between the inspection and the issuance of the citations. This was 33 days longer than Congress intended. For reasons expressed in Secretary v. Plastering, Incorporated, Secretary v. Advanced Air Conditioning, Inc., because they were not issued with reasonable promptness as required by 29 U.S.C. 658(a).

[The Judge's decision referred to herein follows]

MORAN, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational [*9] Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act) contesting Citations issued by the Complainant against the Respondent under the authority vested in the Complainant by Section 9(a) of the Act. The Citations set forth that as the result of an inspection (which took place on March 22, 1972) of a workplace under the ownership, operation, or control of the Respondent, located at Portsmouth, Virginia, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof. Respondent, Murro Chemical Company, Incorporated, engages in the manufacture of soaps and fatty acids.

There were two citations issued on April 27, 1972, to the Respondent by the Complainant. One was a Citation for Serious Violation alleging the Respondent violated the standards set forth in 29 C.F.R. 1910.212(a)(1); 29 C.F.R. 1910.219(m); and 29 C.F.R. 1910.243(a)(1), and the Citation required abatement immediately upon receipt of the Citation. The description of the alleged violation in this Citation states:

On or about March 22, 1972 the following unsafe [*10] conditions were noted:

1. The feed conveyor worm gear in the Rendering Building was not guarded to prevent an employee from falling into the moving machinery while working at said conveyor on a slippery floor.

2. Numerous conveyor belts, pulley belts and gears on other machinery were not fitted with standard guards.

3. The saw blade on power operated combination jointer and saw in Murport Building was not guarded.

The Complainant also issued to the Respondent on April 27, 1972, a notification of proposed penalty. The proposed penalty for the alleged violation in the Citation for Serious Violation is $750.00 and for other than serious violations the total sum of $180.00.

The second Citation issued by the Complainant alleged violations of 22 standards promulgated by the Secretary under Section 6 of the Act. The Respondent timely filed notice of contest with respect to the Citation for Serious Violation and the Citation for other than serious violations and the amount of penalties proposed. The Respondent, by its Answer filed in this proceeding and as testified to by its representative at the hearing, contested only the Citation for Serious Violation and the penalty [*11] proposed therefore and with regard to the Citation for other than serious violations only item 14 of that citation (paragraph VII(n) of the Complaint) with a proposed penalty of $35.00 and the abatement dates for item 11 of the Citation (paragraph VII(k) of the Complaint) and for item 13 (paragraph VII(m) of the Complaint). The Complainant through his attorney in the brief filed in this proceeding admits that the Secretary is unable to sustain his burden of proof as to paragraph VII(n) of the Complaint (item 14 of the Citation for other than serious violations) and "declines to pursue that matter further." The Order hereinafter to be made will therefore vacate the alleged violation of 29 C.F.R. 1910.157(d)(3)(i), item 14 of the Citation, and the proposed penalty of $35.00.

At the hearing held in this proceeding on October 27, 1972, the Secretary's attorney moved also to strike paragraph 5(c) of the Complaint which pertains to an alleged violation of 29 C.F.R. 1910.243(a)(1), item or paragraph 3 of the Citation for Serious Violation. This item 3 alleged a violation that the saw blade on power operated combination jointer and saw in the Murport Building was not guarded. The Murport [*12] Building is owned, operated and controlled by an employer other than Respondent. The motion to strike was granted.

With respect to the Citation for Serious Violation and in the Complaint, the Respondent in paragraph or item 1 of the Citation was charged with an alleged violation of 29 C.F.R. 1910.212(a)(1). The regulation provides:

(a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine areas from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

At the hearing, counsel for the Complainant moved to amend paragraph 5(a) of the Complaint to allege a violation of Section 5(a)(1) of the Act, the so-called general duty clause, rather than 29 C.F.R. 1910.212(a)(1). Complainant asserts that the standard cited has nothing to do with the description of alleged violation as set forth in the Citation for Serious Violation of failure to guard a conveyor worm gear so as to prevent employees [*13] who trip, slip, or fall from landing on the worm gear apparatus. Complainant contends that "all we have here is a clearly improper number" that does not fit the description of the alleged violation; that Respondent has at all times been fully apprised of what the alleged violation is and cannot be said to have been misled to its detriment in preparation of this case. The motion was taken under advisement at the time of the hearing.

It is clear from the record that the description of the alleged violation in the Citation does not fit the wording of the standard cited as having been allegedly violated, that is 29 C.F.R. 1910.212(a)(1) and the standards do not contain a section dealing with the industry involved in this case. The fact that the complainant cited an incorrect standard is not sufficient reason to preclude the Complainant from amending the citation and complaint where the Respondent has not been misled to its detriment in preparation of its case; where Respondent fully understood the nature of the alleged violation and ths hazard allegedly said to exist; and at no time was Respondent surprised by Complainant's allegations. The equipment claimed to be a hazard was identified [*14] for the Respondent from the beginning as evidenced by the Respondent's Answer and the alleged hazardous condition spelled out in the description of alleged violation in the Citation. The Complainant's motion to amend paragraph 5(a) of the Complaint from a reference to 29 C.F.R. 1910.212(a)(1) to allege a violation of Section 5(a)(1) of the Act is granted.

Item 2 of the Citation for Serious Violation alleges a violation of 29 C.F.R. 1910.219(m). The Complaint amended the Citation to allege a violation of 29 C.F.R. 1910.219(d), (e) and (m). The standard at 1910.219(d) pertains to guarding of pulleys; at 1910.219(e) to guarding of belts, ropes and chain drivers; and 1910.219(m) to standard guards, general requirements.

As previously stated, the evidence adduced at the hearing showed that the Murport Building involved a business operated and controlled by other than Respondent. While the Respondent filed its notice of contest to both citations and the penalties proposed thereunder it later limited its contest to the items hereinbefore discussed. The Citation for other than serious violations, however, contains alleged violations of standards for equipment only in the [*15] Murport Building. Item 1 alleges a violation of 29 C.F.R. 1910.26(c)(2)(vi)(d) for there being stepladders in "red oil cooling room" exposed to oil and grease and not adequately cleared of such materials. The Red Oil Section is identified in Item 4 as being in the Murport Building Item 1 for which no penalty was proposed is vacated. Item 3 alleges a violation of 29 C.F.R. 1910.27(b)(1)(iv) for "Jagged edges on ladder steps in Murport Building." This item 3 is vacated. No penalty was proposed. Item 6 alleges a violation of 29 C.F.R. 1910.133(a)(2)(vii) as "Goggles and face shields for use of operator of electric grinding machine in Murport Bldg. were not kept clean." This item for which no penalty was proposed is vacated. Item 21 pertains to an alleged violation of 29 C.F.R. 1910.315(n)(4) and NEC 370-15, NEC 370-18(c) for uncovered junction boxes and corner angle fitting in the Murport Building. This alleged violation for which no penalty was proposed is vacated. Item 22 is for an alleged violation of 29 C.F.R. 1910.106(d)(2)(i) in that two non-approved 5 gallon cans containing gasoline for use in warehouse forklifts in the Murport Building were found. This item for which [*16] no penalty was proposed is vacated.

ISSUES AND LAW

The general issues for determination are whether the Respondent violated Section 5(a)(1) of the Act by failure to provide guarding for the feed conveyor worm gear in the Rendering Building so as to prevent an employee from falling into the moving machinery while working at said conveyor on a slippery floor; whether the Respondent violated Section 5(a)(2) and the standards at 29 C.F.R. 1910.219(d)(e) and (m) for failing to have numerous conveyor belts, pulley belts and gears on other machinery fitted with standard guards; and if such violation existed whether it was a serious violated under Section 17(k) of the Act; whether the proposed penalty contained in the notification issued to the Respondent is reasonable; whether the abatement periods in the Citation for other than serious violations for items 11 and 13 were reasonable; and whether Respondent was improperly charged for alleged other violations of the standards for machinery and equipment in the Murport Building.

Section 5(a)(1) of the Act provides that each employer shall furnish to each of his employees employment and a place of employment which are free from recognized [*17] hazards that are causing or are likely to cause death or serious physical harm to his employees. Section 9(a) of the Act provides for the issuance of a citation by the Secretary and requires that it be in writing and "shall describe" with particularity the nature of the violation and, in addition, the citation is to fix a reasonable time for the abatement of the violation.

Section 17 of the Act provides for penalties for violations under the Act or standards promulgated thereunder. Section 17(k) provides:

. . . 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.

Section 17(j) of the Act gives the Commission the authority to assess all civil penalties provided in Section (k) giving due consideration to the appropriateness of the penalty with respect to the size of the business of the [*18] employer being charged, the gravity of the violation, the good faith of the employer, and the history of violations.

FINDINGS

Based upon the record as a whole, the following findings are made:

1. The Murro Chemical Company, Incorporated, is a corporation chartered and licensed to do business in the Commonwealth of Virginia, and its principal office is in Portsmouth, Virginia.

2. The Murro Chemical Company, Inc., manufactures soap, washing powders and cleaning products; has 44 employees and is engaged in business affecting commerce within the meaning of Section 3(5) of the Act.

3. At all times pertinent to the issues herein the Respondent owned, controlled and operated the machinery and equipment at the worksite that was inspected on March 22, 1972, by a compliance officer for the United States Department of Labor, Occupational Safety and Health Administration, except the equipment and machinery for which alleged violations in the Citation were charged in the Murport Building which were owned, operated and controlled by a company other than Respondent.

4. The Respondent Company did a gross business of approximately $2,100,000.00 during the prior year but operated [*19] at a very substantial loss. n1

5. The Respondent has no history of past violations of the Occupational Safety and Health Act.

6. The evidence of record discloses that the feed conveyor worm gear in Respondent's Rendering Building which turns at a very slow speed used to convey fat and bones shoveled from a steel plate in front of the conveyor for movement to another conveyor was not guarded to prevent an employee from falling into the equipment if he slipped because of the slippery condition either on the steel plate or the cement floor itself adjacent thereto, n2 and was a hazard which a reasonably prudent employer would recognize as likely to cause death or serious physical harm to his employees.

7. There has been no instance of an accident involving an employee falling into the feed conveyor in the seven years it has been in use.

8. The evidence of record fails to establish that Respondent had numerous conveyor belts, pulleys and gears on machinery not fitted with standard guards with the single exception of one machine being used by Respondent and the evidence of record further shows the machines or equipment testified to by the Compliance Officer either were [*20] in the Murport Building operated and controlled by other than Respondent or their location was not shown to be on Respondent's premises. n3

9. The Respondent did not provide adequate accessible toilet facilities for its employees in the Rendering Building and a portable facility to alleviate such a condition could have been secured within the abatement period allowed of five working days from receipt of the Citation for the use of these employees who were not located within 200 feet of accessible facilities. n4

10. The Respondent although allowed fifteen working days from receipt of the Citation to provide an adequate or suitable eating facility for its employees had not provided such facility up to the time of the hearing some five months after the Citation was issued and an adequate or suitable facility could have been provided within the abatement period specified. n5

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n1 Tr. 49-50.

n2 Tr. 9-14; 56-60; 97. See also Ex. C-1.

n3 Tr. 28-35; 61-68.

n4 Tr. 36-38; 41; 43-46; 74-75; 101-102.

n5 Tr. 38-42; 75-79.

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OPINION

Considering first the alleged violations contained in the Citation for Serious Violation, the Respondent is charged with violating Section 5(a)(1) of the Act for failure to guard a feed conveyor worm gear so as to prevent an employee from falling into the moving machinery while working at the conveyor on a slippery floor. This conveyor feeds fat and bones into another conveyor. It is a large conveyor about two feet in diameter and the screws are approximately two feet apart from elevation to elevation. It is used to move material from one level to another; it is on an incline and maybe 20 feet long and apparently goes up three feet. It turns very slowly. In front of the conveyor is a steel plate upon which the material to be conveyed is dumped and the employee stands behind the plate on a concrete floor and shovels the material into the conveyor according to the Respondent. The Compliance Officer for Complainant testified he was told the men would be standing on the steel plate but he did not see it in operation.

The evidence of record establishes that the feed conveyor worm gear was not guarded so as to prevent an employee from falling into the moving [*22] machinery while working at the conveyor. The record discloses that there was a steel plate in front of the conveyor from which fat and bones were shoveled into the conveyor. The material being shoveled into the conveyor would make the steel plate and adjacent concrete subject to being slippery. An employee could slip and fall into the conveyor and suffer serious injury. The Respondent by not providing a guard for this equipment did not provide a place of employment free from a recognized hazard that was likely to cause serious physical harm to his employees. The conveyor presents a hazard that would be recognized by a reasonably prudent employer as one likely to cause death or serious physical harm to his employees. The fact that the conveyor has been in use for seven years without an injury resulting is fortunate and the fact that the equipment turns very slowly has been considered but these facts do not make it any less a hazard.

The remaining item at issue in the Citation for Serious Violation (item 2) alleges a violation of 29 C.F.R. 1910.219(d)(e) and (m) described as "Numerous conveyor belts, pulley belts and gears on other machinery were not fitted with standard guards." [*23] At the outset any discussion of this alleged violation should point out that Section 9(a) of the Act provides that if upon inspection the Secretary or his authorized representative believes an employer has violated a requirement of Section 5 of the Act or any regulation promulgated under Section 6 he shall issue a citation to the employer and also "Each citation shall be in writing and shall describe with particularity the nature of the violation . . ." (italics supplied). One may well question whether the alleged violation at issue describes "with particularity the nature of the violation" where the Citation so broadly seeks to cover "numerous conveyor belts, pulley belts and gears on other machinery." Certainly an employer is entitled to a more specific identification of the specific machinery which allegedly violates the standard.

The lack of specificity in the Citation and Complaint as to the machinery involved is reflected in the testimony in this case. The Compliance Officer for the Complainant, Mr. Linwood W. Cherry, who made the inspection, testified that, besides the three motor drives that had exposed pulleys or belts as testified to by Mr. Herbert Auerbach, [*24] Respondent's treasurer (to be discussed hereinafter), there were at least a dozen or so he pointed out during the walk around; that he did not make notes as to each and every condition that he saw because it got so the number mounted so high "we just broke it off." Specifically he said he remembered the expeller machine in the rendering room testified to by Mr. Auerbach but he did not recall the other two he testified about. He recalled a Lard Oil Tank with an exposed pulley. This, however, he identified as located in the Murport Building, as was a "red oil tank storage No. 10." He testified there was a grinding wheel with no guard in the maintenance shop and a compressor with an unguarded pulley in the compressor room; a hammer mill and a filling machine in a room 606 with unguarded pulleys and belts; and a battery charger but he could not remember which building it was in offhand. He testified, "I'd have to go back to pick it out in my notes as to where I started, in what building." He did not, however, further identify whether it was in the Murport building or in the Murro (Respondent's) building. Nor did he specify what building the other machinery hereinabove mentioned were [*25] in except those in the Murport building. He further mentioned an unguarded pulley in the chill room in the Murport building. To sum up his testimony on this item of the Citation, the only machinery that he recalled or testified to as being specifically in the Murro building was the one testified to by Mr. Auerbach as being the expeller machine in the rendering room. As previously set forth here, the Murport Building is a distinct operation by an employer other than Respondent.

Prior to Mr. Cherry's testimony, the Complainant had called Mr. Auerback, the Respondent's representative, as a witness. He was asked to identify the particular motor or what type the motor was and where it was located as to the equipment referred to in Respondent's Answer which states "Inspection revealed three small motor drives on which guards were not in proper position." The witness identified one of the three as a small motor drive pump in the rendering building which they had been working on and the guard had been left off. The other two pieces of equipment referred to in the Answer he testified were machines which they had discontinued using prior to the inspection.

Based upon the aforegoing [*26] and the record as a whole, it is concluded that the Complainant has failed to establish the allegations of the Citation and Complaint that numerous conveyor belts, pulley belts and gears on other machinery belonging to the Respondent were not fitted with standard guards.

APPROPRIATENESS OF THE PROPOSED PENALTY

There remains to be considered the appropriateness of the proposed penalty. The record shows the Secretary proposed a penalty of $750.00 for the Citation for Serious Violation which consisted of three items of alleged violations. Under Section 17(b) of the Act it is provided that a penalty for a serious violation shall be assessed of up to $1,000.00. The alleged violations in this case were not considered separately as serious violations in assessing the proposed penalty. The Secretary allowed under Section 17(j) five percent for size of Respondent's business since there were less than 100 employees and twenty percent for history since there was no history of previous violations under the Act. No reduction was allowed for good faith. The Complaince Officer in testimony defined what constitutes good faith as "Well, the attempt to, or actual act of eliminating unsafe conditions, [*27] poor housekeeping, I didn't think there was too much good faith shown." n6 The Commission has said that good faith should be determined by a review of an employer's own occupational safety and health program, its commitment to the objective of assuming safe and healthful working conditions, and its cooperation with other persons and organizations including the Department of Labor seeking to achieve that objective. Secretary of Labor v. Nacirema Operating Company, In the instant case the Complainant's witness states no allowance was made for "good faith" because of the alleged violations found on inspection. Such a limitation of elements constituting "good faith" should not be countenanced. Section 17(j) of the Act further requires due consideration be also given to the gravity of the violation. The testimony it is believed discloses little consideration was given to this factor in arriving at the proposed penalty. As a matter of fact the witness testified that the charge in item or paragraph 2 of the Citation for Serious Violation "could or could not be" a serious violation.

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n6 T. 80-81.

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In view of the Complainant's having vacated item 3 of the Citation for Serious Violation; the determination that the record does not establish a violation of paragraph 2 of the same Citation; and a determination that the proposed penalty of $750.00 would not be appropriate for the reasons hereinabove given, it is concluded that the Respondent should be assessed a penalty of $200.00 for a violation of Section 5(a)(1) of the Act as charged in the Citation and Complaint as amended.

REASONABLENESS OF ABATEMENT DATES

As previously stated, the Respondent contests the period of time for abatement of the violations charged in items 11 and 13 of the Citation for other than serious violations. These are set forth in the Citation:

Standard -- Description -- Abatement

29 C.R.F. 1910.141(c)(1)(ii) -- Readily accessible toilets not provided in rendering and packaging buildings -- Within five working days from receipt of Citation

29 C.F.R. 1910.141(g)(1) -- No adequate or suitable eating facility was provided for workers in any of the three buildings at this workplace -- Within [*29] fifteen working days from receipt of Citation

The standard at 29 C.R.F. 1910.141(c)(1)(ii) provides as pertinent herein that toilet facilities shall be provided so as to be readily accessible to all employees and also that as far as is practicable the facilities should be located within 200 feet of all locations at which workers are regularly employed.

The Complainant's compliance officer stated he was accompanied by two industrial hygenists for the government, there was a discussion about the problem of an accessible toilet and that one possibility was a portable johnny and five days was agreed upon as sufficient time to acquire one. He testified that Mr. Auerbach was in the conversation. Mr. Auerbach testified that he had no recollection of a portable johnny being mentioned but that on his own he called about portable johnnies. Mr. Auerbach also testified that when they put up the building they installed the toilet facilities but they were inoperable because of a pitch problem to reach the sewer and since there were at most four employees that worked in the building they used other facilities in adjacent buildings, one of which was about 200 or 300 feet distant. [*30] He said that after the inspection they obtained an estimate on connecting the facilities which required rebuilding the elevation. He stated they finally decided to do it themselves because of the high estimate and redug the whole drainage but it took them several months to do it. It appears clear from the record that the abatement period allowed to provide toilet facilities was reasonable. The Compliance Officer testified it was mentioned in a discussion that a portable johnny would do. While Respondent testified he did not remember the discussion he did inquire about acquiring one but did not. Such a toilet facility could have been provided.

The standard at 29 C.R.F. 1910.141(g)(1) provides:

In all places of employment where employees are permitted to lunch on the premises, an adequate space suitable for that purpose shall be provided for the maximum number of employers who may use such space at one time. Such space shall be physically separate from any location where there is exposure to toxic materials.

Mr. Auerbach testified that the Respondent at one time had provided an eating space with vending machines and tables but it was impossible to maintain it because [*31] of vandalism. He stated that following the inspection they contemplated building a separate facility and a separate building for eating but were financially unable to do so. He further testified that at the time of the hearing they were in the process of putting in a lunchroom in space to be vacated by a firm in a building belonging to the Respondent. The testimony discloses that although the abatement period was 15 working days from receipt of the Citation the Respondent still had not provided an adequate or suitable eating facility at the time of the hearing which was months later. Fifteen days was a reasonable period to provide an adequate space where employees would be permitted to lunch. The standard does not require an elaborate facility. The evidence of record discloses no sincere effort to comply with the standard.

CONCLUSIONS OF LAW

1. The Respondent is, and at all times material hereto, was engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Respondent is, and at all time material hereto, was subject to the requirements of the Occupational Safety and Health Act and the standards [*32] promulgated thereunder and the Commission has jurisdiction of the parties and of the subject matter herein.

3. The Respondent violated Section 5(a)(1) of the Occupational Safety and Health Act of 1970 as charged in paragraph 1 of the Citation for Serious Violation and the Complaint, paragraph V(a), as amended, by failing to have guarded a feed conveyor worm gear at its worksite and a penalty of $200.00 is assessed therefore.

4. The Respondent was not in violation of the Occupation Safety and Health Act of 1970 and the standards promulgated thereunder as set forth in 29 C.R.F. 1910.219(d)(e) and (m) and 29 C.F.R. 1910.243(a)(1) as charged in paragraphs 2 and 3 of the Citation for Serious Violation and in the Complaint in paragraph V(b) and (c), as amended.

5. The periods of time allowed for abatement of the violations found in item 11 of the Citation for other than serious violations, paragraph VII(k) and of item 13 thereof, paragraph VII(m) of the Complaint, as amended, were reasonable.

ORDER

It is therefore Ordered that:

1. The Citation as amended charging a violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970 be and the same is hereby [*33] affirmed.

2. The Respondent is assessed and ordered to pay a penalty in the amount of two hundred dollars ($200.00) for the violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970.

3. The alleged violations of 29 C.F.R. 1910(d)(e) and (m) as amended by the Complaint and 29 C.F.R. 1910.243(a)(1) as set forth in paragraphs 2 and 3 of the Citation for Serious Violation are vacated.

4. Items 1, 3, 6, 21 and 22 of the Citation for Other than Serious Violations alleging violations of the standards at 29 C.F.R. 1910.26(c)(2)(vi)(d), 29 C.F.R. 1910.27(b)(1)(iv), 29 C.F.R. 1910.133(a)(2)(vii), 29 C.F.R. 1910.315n(4) and NEC370-15-NEC370-18(c) and 29 C.F.R. 1910.106(d)(2)(1) respectively for which no penalties were proposed are vacated.

5. Item 14 of the Citation for other than serious violations alleging a violation of 29 C.F.R. 1910.157(d)(3)(i) and the proposed penalty of $35.00 are vacated.

6. Items 2, 4, 5, 7 through 13, and 15 through 20 and the proposed penalty of $35.00 for item 4, $75.00 for item 7 and $35.00 for item 8 are affirmed.