DEERING MILLIKEN, INC.; ALAN B. SIBLEY MILL
OSHRC Docket No. 8927
Occupational Safety and Health Review Commission
June 18, 1975
Before MORAN, Chairman; and CLEARY, Commissioner
MORAN, CHAIRMAN: A February 10, 1975, decision of Review Commission Judge John S. Patton is before this Commission for review pursuant to 29 U.S.C. § 661(i).
The respondent contested a citation under the Occupational Safety and Health Act of 1970 n1 alleging a violation of 29 U.S.C. § 654(a)(2) for noncompliance with an occupational safety and health standard codified at 29 C.F.R. § 1910.23(c)(11) which requires standard railings, "or the equivalent" on elevated work platforms. In addition, the respondent contested the imposition of a $30.00 penalty which complainant had proposed for this violation. Judge Patton affirmed both the violation and the proposed penalty. Upon review, we affirm the violation and vacate the penalty.
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n1 29 U.S.C. § 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.
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At the hearing respondent admitted facts sufficient to show jurisdiction and admitted it does business in excess of two million dollars per year. [*2] The platform in question is approximately nine feet above floor level, and was above a machine known as a slasher. The platform was 20 feet long and about 24 inches wide, and is described as a catwalk upon which are located several valves which must be turned at the start and end of an operation. One side of the catwalk has a guardrail running its full length but the other is not protected by a guardrail. Respondent argues that ductwork three feet below the catwalk and pipes running along the other side constitutes "equivalent" protection under the standard. The government safety inspector testified that there were several gaps through which an employee could fall and the pipes were 1 1/2 to 2 1/2 feet away from the catwalk. Based on these facts we agree with the Judge that noncompliance with the requirements of the standard has been demonstrated. It is apparent that only one side of the catwalk had any railing and the pipes were at such a distance that they could not constitute an equivalent means of protection.
Pursuant to section 666(i), this Commission must base its penalty assessment on four factors: (1) size of business, (2) gravity of violation, (3) good faith [*3] of employer, and (4) history of previous violations. Here, only one person at a time would have a need to go up on the platform. It took between three to five minutes each time to adjust the valves and in a normal six day week the valves needed to be adjusted only 24 times. Respondent had an excellent safety record with no prior violations at this plant. There had not been a lost time accident in over two million man-hours worked. Respondent's parent company has a machine maintenance service program check and conducts unannounced safety inspections twice a year. Finally, there has never been a lost time accident in the slashing department and no one has ever fallen from the catwalk since the plant was opened.
We held in Secretary v. Nacirema Operating Co., 1 OSAHRC 33 (1972) that the "achievement of a just result" is the guideline as to penalties, not fixed calculated determinations. In a later case we said:
The Commission is of the opinion that the principal purpose of this Act is to obtain compliance with its requirements in order to ensure a safe and healthful workplace. Relatively minor monetary penalties do little to effectuate this objective. We therefore, will [*4] look carefully at cases involving such proposed penalties. This is a case where the proposed penalty adds nothing to the objectives of the Act.
Secretary v. J.E. Chilton Millwork & Lumber Co., Inc., 1 OSAHRC 307 (1972). This position was further amplified in Secretary v. General Meat Co., 1 OSAHRC 403 (1972) where we said:
It is the Commission's opinion that the assessment of small monetary penalties does little to effectuate the principal purposes of the Act in obtaining compliance in order to insure safe and healthful workplaces . . . . the Commission believes that the purposes and policies of the Act are better served by the encouragement of immediate abatement through other means than the proposal of small monetary penalties which do little to achieve voluntary compliance on the part of others.
In vacating the $30.00 penalty in this case, we reinforce ur agreement with the principles stated in those 1972 cases. Here the gravity was low, the exposure was extremely low and respondent's safety record and efforts toward safe working conditions were impeccable. The assessment of a penalty in this case serves no useful purpose under the Act. We vacate the [*5] Judge's assessment.
CLEARY, COMMISSIONER, concurring: I concur in the Commission's assessment of no penalty in this case. The gravity of the non-serious violation is very slight and respondent has demonstrated exceptional good faith, as evidenced by its outstanding safety program. I disassociate myself, however, from the lead opinion's reliance upon the ipse dixit in J.E. Chilton Millwork & Lumber Co., Inc., No. 123 (May 15, 1972) and General Meat Co., No. 250 (June 20, 1972) that the purposes of the Act are not furthered by the assessment of small monetary penalties for relatively minor violations.
[The Judge's decision referred to herein follows]
PATTON, JUDGE: This case is before the undersigned Judge on the complaint of the Secretary of Labor, Department of Labor, hereinafter referred to as complainant, alleging that respondent, Alan B. Sibley Mill, Deering Milliken, Inc., has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (84 Stat. 1604; 29 U.S.C. 651, et seq. ), hereinafter referred to as the Act and Occupational Safety and Health standard 29 CFR 1910.23(c)(1). The hearing was held on October 30, 1974, at Lavonia, [*6] Georgia. Miss Helen Hoban Rogers and Mr. Joseph Sparks appeared as attorneys for complainant and Mr. Guy Driver, Jr., and Mr. Gregory B. Tobin of the law firm of Thompson, Ogletree and Deakins, appeared as attorneys for the respondent. There was no motion to intervene.
LAW AND ISSUES
It was alleged that the respondent violated standard 29 CFR 1910.23(c)(1) in that respondent failed to provide standard railings, or the equivalent on a slasher work platform, as specified in paragraph (e)(3) of said standard. It was alleged that said platform was over four feet above an adjacent floor or ground level. A penalty in the amount of $30 was proposed in the complaint. It is the contention of the respondent that in all areas of the platform in which a guardrail did not exist pipes adjoining the platform constituted sufficient barrier to be the equivalent of a guardrail. The complainant contends that it was possible for employees to fall through open spaces in said pipe area. It is also the contention of the complainant that in the area in which the guardrail did exist, the guardrail was inadequate in that there was no toeboard or mid-rail.
EVIDENCE IN THE CASE
The answer [*7] of the respondent admitted that respondent is a corporation having a place of business and doing business among other places at Lavonia, Georgia, where it is engaged in textile manufacturing. It was admitted that respondent is and at all times relevant to this cause has been an employer engaged in a business affecting commerce within the meaning of the Act. It was stipulated at the hearing that the respondent does in excess of $2,000,000 of business a year.
It was testified that the respondent has a platform over a slasher operation approximately 9 feet above floor level, 20 feet long and about 24 inches wide. This platform is otherwise described as a catwalk. It runs across the top of the slasher and to areas where there are valves. It was stated that when the slasher operation begins, which is at the point of addition of sizing to the warp yarn, certain valves are turned to allow the size to float to the size boxes. When the set is complete, certain valves are turned to stop the flow of size to the size boxes.
A railing runs the full length of the platform on the backside of the platform. At the time of inspection there was no rail along the front. Mr. Oliver [*8] Chastain, the Compliance Officer for complainant, testified that at the time of the inspection there was only a single railing on the back side of the platform. It continued all the way down the length of the platform. The whole platform on the outside was not protected. He stated the rail was on the side opposite the pipes. There was also a metal type of duct work about three feet wide immediately under the platform on the side where the rail existed. The rail and duck work would catch an employee if he fell on that side. Mr. Chastain was of the opinion, however, that there were too many spaces an employee could fall through on the side where the pipes were. He also stated that since the pipes were only 42 inches high, a person could fall against them and go over them. He stated that if an employee fell and was unconscious when he hit the pipes, he didn't think the pipes would stop said employee. He estimated the pipes to be from one and a half to two and a half feet from the platform, but he was not certain.
Two people have occasion to go on the platform. Under normal circumstances, there is only one operator at a time. In an average week the men would use the platform [*9] about 24 times to turn the valves on and off. The floor beneath the platform was concrete. Employees frequently worked or walked underneath the platform. He stated the work could be accomplished with a railing and mid-rail in existence. The front rail would make it somewhat harder to reach the valves, however, they could be reached.
The evidence indicated that the respondent had an excellent safety record. Mr. Chastain stated that health and accident reports at said Sibley Plant showed over two million man-hours worked without a lost-time accident. Mr. George Ridenhour, manager of the machinery maintenance service department, testified that they have a safety program check, checking equipment against a particular goal. They have a point system on deficiencies which requires that a certain point goal be met. Safety inspectors go into the plant unannounced twice a year and inspect. There has not been a single lost-time accident in seven years. He stated there had been 1,992,000 man-hours worked since the last lost-time accident. There has never been a lost-time accident in the slashing department since the plant was built nor any falls from the platform.
EVALUATION [*10] OF THE EVIDENCE
The respondent has a remarkable safety record. One witness testified that there had been over 1,000,000 man-hours worked without a lost-time accident and another testified there had been approximately 2,000,000. In either event, the safety record is commendable. There has not been a lost-time accident for seven years and none have occurred in the particular department in question. There has never been a fall from a platform.
Notwithstanding this excellent safety record, the undersigned Judge is of the opinion that the standard has not been complied with. Standard 29 CFR 1910.23(c)(1) provides that every open-sided floor or platform four feet or more above adjacent floor or ground level shall be guarded by a standard railing or the equivalent as specified in subsection (e) of the section. It provides that guardrails shall be on all open sides except where there is an entrance to a stairway. Admittedly there was no rail on one side, although it is the position of the respondent that pipes would prevent an employee from falling off the platform to the floor below. The testimony of the complainant is that there were open spaces where the pipes existed and that [*11] employees could have fallen through. Not every equivalent is adequate to meet the standard but it must be equivalent as specified in paragraph (e)(3). The pipes would not appear to be the equivalent as defined by said subsection. The complainant also testified that if a person was bent over or kneeling, it would be possible to go under the rail on the side on which the rail existed. It therefore appears that there has not been compliance with standard 29 CFR 1910.23(c)(1).
It would appear that the danger is not great. No one has ever fallen from the platform, and there has never been a loss of time injury in the department. The probabilities are that an employee losing his balance would be stopped by either the rail or the pipes. Under these circumstances, a large penalty would not be justified. It would appear, however, that the complainant's proposed penalty takes these factors into consideration. A penalty in the amount of $30 is a very small penalty and, notwithstanding the good faith evidenced by the unusually splendid safety record of the respondent and notwithstanding the fact that the hazard to employees would not appear to be extreme, a penalty of $30 [*12] does appear to be justified.
FINDINGS OF FACT
1. Respondent is a corporation having a place of business and doing business, among other places, in Lavonia, Georgia, where it is engaged in textile manufacturing.
2. Respondent, at all times relevant to this proceeding, has been an employer engaged in a business affecting commerce within the meaning of the Act.
3. On or about June 18, 1974, respondent maintained a platform for the purpose of turning on and off valves running across the top of a slasher.
4. Said platform approximately 24 inches wide and 20 feet long, was located approximately nine feet above a concrete floor.
5. There was no guardrail on one side of the platform but there were pipes on said side of the platform forming a partial barrier against an employee falling from same.
6. There were open areas where the pipes existed on said side of said platform through which a man could have fallen.
7. On the side of the platform opposite the pipes, there was a single rail which did not meet the definition of a standard rail nor its equivalent as defined in subsection (e)(3) of standard 29 CFR 1910.23.
8. The respondent has operated at said plant in excess [*13] of 1,000,000 man-hours without a lost-time accident.
9. There has never been a lost-time accident in the slasher department and no one has ever fallen from the platform.
CONCLUSIONS OF LAW
1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.
2. On or about June 18, 1974, respondent violated section 5(a)(2) of the Act and Occupational Safety and Health standard 29 CFR 1910.23(c)(1).
It is therefore Ordered that:
On or about June 18, 1974, respondent was in violation of standard 29 CFR 1910.23(c)(1). A penalty in the amount of $30 is assessed for said violation. The requirement that said violation be abated by August 12, 1974, is sustained.