OSHRC Docket No. 883
Occupational Safety and Health Review Commission
August 3, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
CLEARY, COMMISSIONER: On October 18, 1972, Review Commission Judge David H. Harris issued a decision in this case holding that respondent, a manufacturer of feed mill equipment, had violated section 10(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), for failure to abate a previously established violation of the Act within the period permitted for its correction. He assessed a penalty of $455. Thereafter, pursuant to section 12(j) of the Act, that decision was ordered to be reviewed by the Commission.
Having examined the record in its entirety, the Commission finds no prejudicial error therein.
Accordingly, it is ORDERED that the Judge's decision and order are hereby affirmed in all respects.
MORAN, CHAIRMAN, dissenting: I think a penalty of $100 per day is too high in this case.
Following the first inspection, respondent was cited because of a failure to provide guards for certain grinding wheels. The complainant proposed a penalty of $50 which respondent paid. The citation provided for correction of the infraction by March 31, 1972. A re-inspection 4 days after that date disclosed that the guards were not installed. The 4 days included a Saturday and Sunday.
This was not a deliberate or willful refusal to abate. The record reveals a misunderstanding between complainant and respondent resulting from respondent's interest in obtaining a variance from the guarding requirements for the machines in question.
This respondent is a small business with annual sales of approximately $200,000 and an average employment of 12. There is no evidence that the cited condition has ever been the cause of any injury.
Under these circumstances, a penalty for this infraction which is twice the amount of the original penalty and which is assessed for each and every day between the specified abatement date and the day of the second inspection, is unwarranted.
[The Judge's decision referred to herein follows]
HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act), to review a Notification of Failure to Correct Violation issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 10(b) of the Act and a proposed additional penalty thereon pursuant to Section 17(d), which bears date April 28, 1972 (P-2).
The said Notification of Failure to Correct Violation (P-2) alleges that Feedmobile, Incorporated (hereinafter Respondent) had failed to correct or abate certain violations of the Act alleged in Item No. 2 of a certain citation issued to it on March 1, 1972 within the time prescribed in said citation. Item No. 2 therein charged a violation of the standard at 29 CFR 1910.243(c)(1) in that "Abrasive wheels were being used on five vertical grinders which were not provided with safety guards," and required that the said condition be corrected by March 31, 1972. Said citation alleged that the charged violation was not a serious violation within the meaning of the Act (Compl. Exh. A(1); Tr. 12). A Notice of Proposed Penalty, also issued to Respondent on March 1972, proposed a penalty of $50 (Compl. Exh. B(1); Tr. 12).
The Notification of Failure to Correct Violation, aforesaid, proposes a total additional penalty of $755.
Respondent, by letter dated May 3, 1972, and filed on May 12, 1972 contested the said Notification of Failure to Correct Violation. The within matter was thereupon referred to the Occupational Safety and Health Review Commission (hereinafter Commission) for hearing pursuant to Section 10(c) of the Act.
The Secretary filed his complaint herein on May 17, 1972 and Respondent filed its answer on May 26, 1972. The matter was assigned to me for hearing in accordance with Section 12(e) of the Act on June 15, 1972, and pursuant to notice and by agreement of the parties, a prehearing conference and the hearing were held on July 12, 1972 in Lancaster, Pennsylvania.
The parties hereto entered into a stipulation in writing, which together with its attachments was received in evidence as a exhibit and marked P-1 (Tr. 4), whereby it is stipulated and agreed as follows: Respondent's correct title is Feedmobile, Incorporated; it is incorporated under the laws of the State of Pennsylvania and maintains its principal office at Lititz, Pennsylvania; its manufactured products are sold and shipped by it in interstate trade to various parts of the United States, Canada and England; no injuries occurred at the time and place of the alleged violation; Respondent is the second largest manufacturer of feed milling equipment in central Pennsylvania; it employs an average number of 12 employees; its sales in 1971 approximated $200,000; all machinery referred to herein is the property of Respondent; Respondent has no prior history of violation involving the Act and standards promulgated under the same or of any other law or regulation the enforcement of which is the responsibility of the United States Department of Labor; the citation issued on March 1, 1972 was posted on Respondent's shop bulletin board, as was the notice of hearing, immediately upon their receipt; Respondent admits the truth of the allegations in paragraphs I, II, III and IV of the Secretary's complaint; the citation, aforesaid, was accompanied by a cover letter, a copy of which is attached to the stipulation as Exhibit A; that Respondent's premises were re-inspected by a Compliance Officer of the Occupational Safety and Health Administration, United States Department of Labor (hereinafter OSHA) on April 4, 1972; that the condition described in Item 2 of the said citation had not been abated by April 4, 1972; that the abatement date required in said citation in connection with Item 2, aforesaid, was March 31, 1972 and that a closing conference was conducted by the Compliance Officer with Respondent's general manager.
According to paragraph IV of the Secretary's complaint, the truth of which is admitted by Respondent's answer (Ans. para. 4) and by the stipulation between the parties hereto (P-1, para. 1(1)), Respondent elected not to contest the citation issued on March 1, 1972, aforesaid, and remitted the civil penalties proposed by the Secretary, as a consequence of which, the said citation and the penalties proposed, became the final and non-reviewable order of the Commission by operation of law (Section 10(a)). Indeed, Respondent in its answer alleges:
It is admitted that there was a violation but this violation existed for the following reasons: That at the time of the initial inspection all defects were pointed out to Respondent and Respondent indicated it wanted a variance on Item No. 2. It was informed by Mr. Craig Leedom, the inspector, that it would be sent an application form to be filled out requesting a variance on Item No. 2. Relying on this, it corrected all the other items and awaited the arrival of the promised form requesting a variance. On April 4 a second inspection was made and Respondent was informed that it would be fined for failure to correct Item No. 2 and was also informed that it should not have waited to receive a variance application because the government did not send them and that it should have sent a letter to the appropriate department instead.
Respondent prays that the civil penalty proposed in the Notification of Failure to Correct Violation (P-2), in the sum of $755, be "stricken altogether or in the alternative, reduced" (Findings of Fact and Conclusion of Law, II 4; Tr. 14).
I have, therefore, before me for determination, the single issue as to whether the proposed civil penalty aforesaid under all of the circumstances of this case, should be affirmed, modified or vacated and if modified or vacated, what, if any, civil penalty should be assessed against Respondent.
There is but one narrow area of dispute between the parties touching those facts which bear upon this issue. At the closing conference between the Compliance Officer and Respondent's Plant Manager and Foreman (Tr. 7; 16), some discussion ensued regarding the necessity of procuring a variance to enable Respondent to avoid the requirement of the standard at 29 CFR 1910.243(c)(1) (Tr. 9), during which it is possible that the Compliance Officer used the word "form" although he considers it unlikely (Tr. 9-11), while Respondent's Plant Manager recalls that the Compliance Officer said he would send a "form" upon which to apply for the variance (Tr. 19) although it is possible that the word "form" as used may have had reference to the regulations covering variance applications (Tr. 25). The foreman recalled that the officer had said he would mail a "form and we could apply for a variance" (Tr. 35-36).
The following facts are undisputed. The grinders involved are vertical, portable 6-inch circular disc grinders turning at 1000 rpm. The abrasive material is stone, about 3/8 inch in thickness. The grinders weigh between 10 and 12 pounds and are used to grind steel edges varying from 8 gauge to 1/2 inch in thickness and to smooth welds. There are five such grinders in use. None have guards because the guard makes it impossible to use the grinders in the positions and in the places required in the manufacture of Respondent's product (Tr. 36-37). It is not feasible to manufacture that product without the use of the grinders (Tr. 34).
On February 17, 1972, Respondent's Plant Manager was advised by the Compliance Officer that the said grinders were in violation of the standard and that it would be necessary to secure a variance from OSHA (Tr. 9; 19; 35). On February 18, 1972 the said Compliance Officer mailed a copy of the regulations at 29 CFR Part 1905 to Respondent (Tr. 9), which was received shortly thereafter (P-1, Tr. 26). These regulations set out in detail the manner in which applications for variances from the standards are to be made. Respondent's Plant Manager did not read these regulations (Tr. 26). During the discussions between the said Compliance Officer and the Plant Manager, the latter was informed that in the event he had any questions he could telephone the Area Director of OSHA in Philadelphia, however, the Plant Manager did not call that official at any time (Tr. 26). All violations alleged in the citation issued on March 1, 1972, except that sub judice, were abated prior to April 4, 1972 and the proposed penalties aggregating $220 have been paid (Tr. 20; 39-40). On April 4, 1972, a second inspection of Respondent's premises was made by a Compliance Officer of OSHA (Tr. 5; 19). This officer explained how to apply for a variance (Tr. 20) and Respondent mailed a letter requesting a variance on April 5, 1972 (R 3). On May 25, 1972 OSHA wrote Respondent requesting additional information to which Respondent made reply by letter dated June 7, 1972 (R-4).
The grinders, which are not used continuously, have been in normal use since February 17, 1972 without guards (Tr. 28). Respondent's Plant Manager maintains that he was advised that he need do nothing until the variance was acted upon (Tr. 28). Guards for these grinders are on order at the local establishment which supplies them but it will be three or four months before they are available (Tr. 29). Respondent did not ascertain whether it was proper to use the grinders while the application was pending (Tr. 33). Respondent's employees, who preferred to work without the guards (Tr. 18; 27), all wear safety goggles when using the grinders (Tr. 37). Respondent's Plant Manager maintains that he waited for a form to be sent him upon which to apply for a variance from February 17 to April 4, 1972 (Tr. 19; 27).
Although Respondent's Plant Manager received the regulations covering applications for variance shortly after February 17, 1972 and these regulations did not "look like a form to" him (Tr. 25), he did nothing further until the advent of the second Compliance Officer on April 4, 1972, a period of some 46 days. From and after March 1, 1972, when the original citation was issued, Respondent was aware that the violation concerning the grinders would have to be abated by March 31. Even if, as its Plant Manager maintains, the filing of an application for a variance suspended the period for abatement, no effort was made to secure the "form" or make an inquiry of the Area Director concerning a "form" until after the period for abatement had expired. Under the circumstances of this case it would not be unfair to conclude that the mailing of the letter of April 5, 1972 (R-3) was occasioned by the second inspection. Neither that letter nor Respondent's letter of June 7, 1972 (R-4) inquire concerning authority to use the grinders pending the determination of the application for a variance from the standard.
Reference to the standards covering hand and portable power tools provides the following definition of "safety guard" (29 CFR 1910.241(b)(6)):
A safety guard is an enclosure designed to restrain the pieces of the grinding wheel and furnish all possible protection in the event that the wheel is broken in operation.
There is little doubt that safety goggles afford little protection from flying pieces of a grinding wheel which had been turning at 1000 rpm.
Respondent agrees that the penalty proposed by the Secretary for its failure to abate the violation herein was based upon a formula devised by the said Secretary (P-1, page 4), however, no evidence appears of record concerning either the reasonableness of the proposed penalty or that applying the said formula is appropriate under the circumstances of this case. Furthermore it appears that the Secretary's proposed penalty assesses the sum of $175 for each of five days. The abatement period fixed in the original citation ends on March 31, 1972 and there are but four days from March 31, 1972 to and including April 4, 1972, the date of the second inspection.
I am constrained to find that Respondent was in violation of Section 10(b) of the Act for a period of four days under circumstances which do not support its contention that it is entitled to receive special consideration in assessing a penalty for said violation.
I further find that, giving due consideration to the size of Respondent's business, the gravity of the violation, the good faith of the Respondent and its history of previous violations, a daily penalty of $100 per day is appropriate under the circumstances of this case and that Respondent should be required to pay the sum of $55 heretofore credited to it for the anticipated abatement of the violation alleged in Item 2 of the aforesaid citation.
Now therefore, good cause appearing, it is
1. The allegation in the Notification of Failure to Abate Violation herein be and it is hereby affirmed.
2. The total additional penalty proposed in said Notification of Failure to Abate Violation in the sum of $755 be and it is hereby vacated.
3. Respondent is hereby assessed and required to pay a civil penalty in the sum of $455.