FRANKLIN LUMBER CO., INC.

OSHRC Docket No. 900

Occupational Safety and Health Review Commission

July 8, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision rendered by Judge J. Marker Dern. The Judge affirmed a notification of additional penalties issued under section 10(b) (29 U.S.C. 659(b)) n1 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). He assessed an aggregated penalty of $500 for failure to abate five previous violations of the Act. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The section authorizes such notification in the event Complainant believes an employer has failed to abate a violation or violations within the period or periods prescribed by a final order of the Commission.

n2 The Judge assessed an additional penalty of $25 per day for each of the five previous violations. It was stipulated between the parties that Respondent worked four days beyond the abatement dates set forth in the original citation.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In making his assessments Judge Dern concluded [*2] that the question of whether Respondent violated the cited regulations was not at issue in a proceeding concerning an alleged failure to abate previous violations of the Act. We do not agree. Accordingly, the decisions of the Judge is affirmed only to the extent it is consistent herewith.

A Respondent may defend in a failure to abate proceeding on the ground that the condition for which it was originally cited was in fact non-violative of the Act at the time of the original inspection or at the reinspection. Such a defense is cognizable where the original citation has become a final order of the Commission by operation of law. We have previously stated that to hold differently would subject an employer to daily penalties for failure to abate a condition that may not actually violate the Act. York Metal Finishing Company,

We have examined the entire record in light of the above ruling. We conclude that the Judge correctly found the Respondent failed to abate four of the previous violations and assessed appropriate penalties therefor. However, we find that the Judge erred in concluding the Respondent failed to abate the previous [*3] violation of 29 C.F.R. 1910.265(c)(20)(v) for the reasons stated herein.

The relevant facts pertaining to the aforementioned alleged failure to abate follow. On March 8, 1972 Respondent's workplace was inspected by the Complainant. Respondent was cited for, inter alia, a violation of 29 C.F.R. 1910.265(c)(20)(v) as follows: "Sawdust is exhausted into an unconfined outside pile." A notice of contest was not filed with regard to this violation.

A reinspection of Respondent's workplace was conducted on April 18, 1972. Respondent had an exhaust system which discharged sawdust into an outside area. The accumulation of sawdust from this operation resulted in a sawdust pile which was between 8 to 10 feet in height. It was located on open land with a swamp area to one side of it. Respondent's employees worked a minimum of 200 feet from the sawdust pile and had no reason, work related or otherwise, to go near the pile. The sawdust pile was also not in an area where people regularly passed by. The sawdust was not burned nor was any burning of other materials conducted near the sawdust pile. It was removed regularly by farmers who used it for chicken litter and hog parlors. [*4]

On these facts the Complainant's representative opinioned that there was a danger of fire and explosion of the sawdust pile. He suggested that spontaneous combustion might be possible and that a Halloween prankster might come by and set the sawdust on fire.

The cited standard provides:

Dust chambers. Exhaust pipes shall not discharge into an unconfined outside pile if uncontrolled fire or explosion hazards are created. They may empty into settling or dust chambers, designed to prevent the dust or refuse from entering any work area. Such chambers shall be constructed and operated to minimize the danger of fire or dust explosion.

The standard by its plain terms does not preclude the existence of unconfined outside piles unless uncontrolled fire or explosion hazards are created.

Complainant relied primarily on the opinion evidence of its representative to establish that uncontrolled fire or explosion hazards existed. However, his opinion was based on mere conjecture as to possible hazards if certain contingencies occurred without further elaboration. Moreover, it is apparent from the relevant facts, as noted above, that the sawdust pile was so situated that it was virtually [*5] removed from recognized sources of ignition.

Accordingly we conclude that Complainant has failed to sustain his burden of proof that Respondent was in violation of 29 C.F.R. 1910.265(c)(20)(v) at the time of reinspection. Thus, for the reasons stated above, it did not fail to abate the previously cited violation.

For the foregoing reasons the Judge's decision is amended so as to vacate Complainant's notification of additional penalties as to item 5, 29 C.F.R. 1910.265(c)(20)(v) and to assess an aggregate penalty of $400. The Judge's decision, as amended, is affirmed, and it is so ORDERED.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part, dissenting in part: I agree with all that is stated in this decision but it doesn't go far enough to clarify the elements of proof of a failure-to-abate charge. 29 U.S.C. 659(b).

This decision makes it clear that one such element is proof that the condition for which respondent was initially cited was, in fact, a violation of the Act. The mere fact that the citation has become an enforceable order by virtue of 29 U.S.C. 659(a) is insufficient to establish this point.

Secondly, this decision indicates [*6] what common sense makes clear: that there must also be evidence that the self-same condition which constituted the initial violation has continued unabated beyond the abatement deadline established by law.

I am in agreement with these two rulings but the facts of this case compel the declaration of an equally sensible principle for such cases, i.e.: that the initial citation (which became the order of the Commission by virtue of 29 U.S.C. 659(a)) must make it clear what must be done to abate the condition constituting the violation.

If a respondent is cited for not complying with an occupational safety and health standard and is unable to determine from the citation what must be done in order to get its workplace in compliance therewith, a subsequent action alleging failure-to-abate because respondent did not come into compliance with the said standard within the prescribed abatement period will not lie. A different rule would make a mockery out of this provision of the law. You can't penalize a respondent for not following an order if the terms of the order do not make it clear what the respondent is supposed to have done.

This principle follows logically from the [*7] rule enunciated in National Realty and Construction Co., Inc. v. OSAHRC et al, 489 F. 2d. 1257 (D.C. Cir., 1973):

To assure that citations issued only upon careful deliberation, the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures.

This rule has application to this case in a part of the charge not discussed in the Commission's opinion: the allegation of failure to abate a previously cited but uncontested citation charging failure to comply with the requirements of 29 C.F.R. 1910.213(i)(3).

The text of that occupational safety and health standard is as follows:

Feed rolls of band resaws shall be protected with a suitable guard to prevent the hands of the operator from coming in contact with the in-running rolls at any point. The guard shall be constructed of heavy material, preferably metal, and the edge of the guard shall come to within three-eighths inch of the plane formed by the inside face of the feed roll in contact with the stock being cut. (emphasis added)

The underlined portion of the foregoing is incapable of being translated [*8] into an understandable order. For this respondent, it has all the clarity of instructions for the home assembly of a Japanese sewing machine. To heap additional penalties on this respondent because he didn't know what these words were supposed to mean is totally unreasonable.

[The Judge's decision referred to herein follows]

DERN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, U.S.C. 651 et seq. (hereinafter referred to as the Act) initiated by Notice of Contest filed by the Franklin Lumber Company, Inc., (hereinafter referred to as the respondent) seeking review of the action of the Secretary of Labor (hereinafter referred to as the complainant) in assessing proposed penalties for failure to abate five items (other than serious) contained in a citation issued to the Respondent on April 28, 1972, pursuant to section 9(a) of the Act.

On March 17, 1972, following an inspection on March 8, 1972, of respondent's workplace, the complainant issued a citation to the respondent, who engages in processing, resawing and handling of wood, wood products and other materials for use in the building trades, alleging thirteen [*9] violations of Occupational Safety and Health Standards promulgated pursuant to section 6 of the Act. The complainant also issued notice of proposed penalties for five of the alleged ten violations of a total sum of $180.00. The respondent did not contest the citation issued on March 17, 1972, nor the proposed penalties for five of the alleged violations.

The complainant, thereafter, on April 18, 1972, conducted a reinspection of the respondent's workplace, and as a result on April 28, 1972, issued to the respondent a notification of failure to correct five (Items No. 5, 6, 8, 10 and 11) of the thirteen items contained in the citation issued on March 17, 1972, and of proposed additional penalties totaling $2,030 for the alleged failure to abate the violations. The respondent then filed notice of contest as to the proposed additional penalties.

Jurisdiction of the Review Commission having been invoked, the cause was assigned to the undersigned for hearing and issuing a decision. Pursuant to notice, a hearing was held in this matter in Florence, Alabama, on October 11, 1972. The parties hereto were represented by counsel who, subsequent to the hearing, filed briefs in [*10] support of their separate contentions.

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 hazards that are causing or likely to cause death or serious physical harm to his employees. Section 5(a)(2) provides that each employer shall comply with Occupational Safety and Health Standards promulgated under the Act. Occupational Safety and Health Standards have been promulgated by the Secretary pursuant to Section 6 of the Act. Section 9(a) of the Act provides that upon inspection or investigation the Secretary believes the employer has violated a requirement of section 5 of the Act, of any standard rule or order promulgated pursuant to section 6 of the Act, or of any regulations prescribed pursuant to the Act, he shall issue a citation to the employer and fix a reasonable time for abatement of the violation. Section 10(a) provides for notification to the employer by the Secretary of the penalty, if any, proposed to be assessed under Section 17 of the Act.

Section 10(a) further provides that the employer has 15 working days in which to notify the Secretary that he wishes [*11] to contest the citation or proposed assessment of penalty. If, within 15 working days from the receipt of the notice issued by the Secretary, the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, the citation and assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

Section 10(b) of the Act provides that if the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction, he shall notify the employer of such failure and of the penalty proposed to be assessed under section 17 by reason of such failure. Under section 17(c) of the Act, an employer may be assessed a civil penalty of up to $1,000 for each violation where the violation is considered not to be of a serious nature and section 17(d) provides that an employer who fails to correct a violation for which a citation has been issued may be assessed a civil penalty of not more than $1,000 for each day during which such failure or violation continued after the period permitted for its [*12] correction.

Under section 17(j) of the Act, the Commission has the authority to assess all civil penalties provided in section 17 giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer, the gravity of the violation, the good faith of the employer and the history of previous violations.

The issue is whether the proposed additional penalties contained in the notification issued by the complainant on April 28, 1972, for failure to abate the alleged violation in Items No. 5, 6, 8, 10 and 11 set forth in the citation issued by the complainant on March 17, 1972, were reasonable and proper.

FINDINGS OF FACT

The record contained substantial evidence to support the following findings of fact:

1. Respondent is an Alabama corporation engaged in processing, reselling, handling of wood, wood products and other materials for use in the building trade, and is a business affecting commerce (TR 99).

2. Respondent employes approximately 16 persons and is an employer within the meaning of the Act (TR 100-101).

3. On March 8, 1972, Carl T. Frazier, Safety and Health Compliance Officer of the Department of Labor, conducted [*13] an inspection of respondent's workplace (TR 33, 79).

4. The complainant, subsequently on March 17, 1972, issued a citation to the respondent for thirteen other than serious violations.

5. The complainant also on March 17, 1972, issued to the respondent a "notification of proposed penalty" in the total sum of $180.00 for certain of the 13 alleged violations listed in the citation, and specifically the "proposed penalty" for Item No. 10, was $30.00.

6. The respondent did not contest the citation which became the final order of the Review Commission and not subject to review by court or agency (Section 10(a) of the Act).

7. A reinspection of respondent's workplace was conducted on April 18, 1972, by Safety and Health Compliance Officer Frazier who found Items No. 8, violation of 29 CFR 1910.219(a) and No. 11, violation of 29 CFR 1910.215(a)(1) contained in the citation of March 17, 1972, which provided for correction of the alleged violations in Items No. 8 and 10 by March 24, 1972, and Items No. 5, violation of 29 CFR 1910.265(c)(20)(d), No. 6, violation of 29 CFR 1910.213(i)(3) and No. 10, violation of 29 CFR 1910.265(c)(12), contained in the citation issued March 17, 1972, [*14] provided for corrections by April 11, 1972, had not been corrected or abated (TR 80-82, 153-155).

8. On April 28, 1972, the complainant, issued to respondent, a notification of failure to correct violation and proposed additional penalty of a total sum of $2,030 with respect to Items No. 5, 6, 8, 10 and 11 of the citation issued to respondent on March 17, 1972.

9. Compliance Officer Frazier testified he inspected respondent's worksite on March 8, 1972, and made a reinspection on April 18, 1972 (TR 79).

10. On reinspection, there was no correction of Item No. 5, violation of 29 CFR 1910.265(c)(20) (TR 8, 16-17, 76, 80, Complainant's Exhibit No. 1, Photo No. 9).

11. On reinspection, there was no correction of Item No. 6, violation of 29 CFR 1910.213(i)(3) (Complainant's Exhibit No. 1, Photo No. 7, TR 76-77, 80).

12. On reinspection, there was no correction of Item No. 8, violation of 29 CFR 1910.219(a) (Photos 5 and 8, TR 20, 80-81). However, prior to a reinspection of 1" by 10" or 1" by 12" board was added to wooden frame as protection from V-belts on motors (TR 34, 80-81, 110-111).

13. On reinspection, there was no correction of Item No. 10, violation of [*15] 29 CFR 1910.265(c)(20)(v) (TR 21-22, 23-24, 61, 63, 64, 65, 81-82, 106-107, 149-150, 151, 156, 157). However, between original inspection and reinspection, efforts were made by respondent to correct the violations and corrections were made day after reinspection (TR 154-155).

14. On reinspection, there was no correction of Item No. 11, violation of 29 CFR 1910.215(a)(11) (TR 82, 106-107, 149-150, 155).

OPINION

The respondent contends that one of the elements of proof required to show a failure to abate the violation is that the employer was still in violation of the standard on the occasion of the reinspection. The respondent states:

In other words, the complainant has the same burden of proof as he does in providing an original violation, if contested.

The primary purpose of the follow-up inspection is to determine if the hazard has been abated. It is not the violation on reinspection which is the primary concern of the complainant, but rather whether there has been a correction of the violation. In the instant case, no contest was filed to the original citation issued March 18, 1972, and consequently, by operation of law, the violation and proposed penalty became [*16] the final order of the Review Commission. The Commission's Rules of Procedure, Rule 2200.73, places the burden of proof upon the complainant "in all proceedings commenced by the filing of a notice of contest." The complainant herein did not have the burden of reestablishing the violations but rather whether the violations were abated at the time of the reinspection. This frame of reference was mentioned during the course of the hearing. Since the violations as cited in the original citation were established, respondent's attention was directed to section 10(b) of the Act whereby an employer is permitted to show a good faith effort to abate or give reason why abatement was not completed. This section of the Act was mentioned solely for informational purposes and not an intent to shift the burden of proof to respondent. In fact, respondent assumed the burden of attempting to establish that it was not in violations of the cited regulations, a fact which was not in issue at the hearing.

The respondent, at conclusion of presentation of complainant's evidence, moved for a directed verdict. This is a misnomer in relation to administrative proceedings. A motion for a directed [*17] verdict (dismissal) is proper in that it is provided for by the Federal Rules of Civil Procedure and, therefore, must be given due consideration. However, the motion was denied not on the basis that it could not be entertained, but by reason that it is an administrative proceeding, which is subject to discretionary review by higher authority, the record should be complete in showing that all parties were permitted to present all relevant and material evidence.

Neither the Review Commission nor Review Commission Judge has the jurisdiction to determine the constitutionality of the Occupational Safety and Health Act. The question raised by respondent applies to whether the Review Commission or Review Commission Judge can determine the constitutionality of the regulation or standard promulgated under the Act. Administrative agencies have the power to determine constitutional applicability, but they do not have the power to determine constitutionality of legislation. See Davis, Administrative Law Treatise, Section 20.04; Engineers Public Service Company v. F.E.C. 138 F. 2d 936 (D. Cir. 1943), dismissed as moot 32 U.S. 788; Pansitz v. D.C. 112 S. 2d 39, 42 (D. Cir. [*18] 1940), the court stated:

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

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

The respondent further argues that the cited standards, which were determined to have been violated by the respondent, contained technical language, not easily capable of being understood by persons not trained in technical matters or were they, highly arbitrary and confusing which caused respondent to have "been denied due process of law as guaranteed by Amendment V of the Constitution of the United States of America."

Under heading of Purpose and Scope, 29 CFR 1910.1 provides:

(a) Section 6(a) of the William-Steiger Occupational Safety and Health Act of 1970 (84 Stat. 1593) provides that 'without regard to Chapter 5 of Title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective [*19] date of this Act and ending two years after such date, by rule promulgated as an Occupational Safety and Health Standard any national concensus standard, and any established Federal standard unless he determines the promulgation of the safety standard would not result in improved safety and health for specifically designated employees.' The legislative purpose of this provision is to establish as rapidly as possible and without regard to the rule-making provisions of the Administrative Procedure Act, standards with which industries are generally familiar, and on which interested and affected persons have already had an opportunity to express their views. Such standards are either (1) national concensus standards on whose adoption affected persons have reached substantial agreement, or (2) Federal Standards already established by Federal Statutes or Regulations.

(b) This part carries out the directive to the Secretary of Labor under Section 6(a) of the Act. It contains Occupational Safety and Health Standards which have been found to be national concensus standards or establish Federal Standards. (Emphasis supplied).

In general, job safety and health standards consist [*20] of rules for avoidance of hazards which have been proven by research and experience to be harmful to personal safety and health. They constitute an extensive compilation of wisdom, which sometimes applies to all employees. It is the obligation of all employers and employees to familiarize themselves with those standards which apply to them and to observe them at all times.

The record is abundantly clear that the violations of the cited standards were not corrected within the periods set forth in the citation issued April 28, 1972, namely March 24, 1972, for Item No. 8 and 11 and April 11, 1972, for Items No. 5, 6 and 10.

It was stipulated between the parties that the respondent worked four days beyond the abatement dates. The complainant assessed a penalty of $2,030 for the five items, based upon procedures in Compliance Operations Manual, dated January, 1972, at page XI-7 which provides:

For failure to correct and 'other' violation, the employer shall be assessed a proposed penalty equal to the unadjusted penalty as shown on the original worksheet, OSHA-10 form, for each day that the previously cited violation continues after the expiration of the prescribed abatement [*21] period. However, in no case should this proposed additional penalty be less than $100 per day. The employer shall also be assessed an additional penalty equal to 50% of the adjusted penalty. In those instances where no penalty was initially proposed, the additional daily penalty to be proposed under section 17(d) of the Act shall be $100 per day.

It was further stipulated that "The penalties were arrived at by determining a penalty of $100 a day for each of the five items, and multiplying that times an estimated 4 days of operation for each of these items during the period from the abatement, the respective abatement date, until April 18, 1972. . ., the additional $30.00 was arrived at through a process of this being the adjusted portion of the penalty previously leveled in the first citation." The complainant used the formula established in its compliance manual. This procedure requires "in those instances where no penalty was initially proposed, the additional daily penalty to be proposed under section 17(d) of the Act shall be $100 per day" (Emphasis supplied). The requirement of the complainant fails to consider that the Act does not require a penalty be assessed [*22] nor is any consideration given to provision contained in section 17(j).

Regardless of the procedures of the complainant in assessing the penalties, it is clear that once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in section 10(c) of the Act, is charged with affirming, modifying, or vacating citations issued by the Secretary under Section 9(a) and notification issued and penalties proposed by the Secretary under section 10(a) and (b). The Commission, by section 17(j) of the Act, is especially required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty.

The respondent's president showed his concern for safety of the employees; that he attempted compliance with the Act; that he attempted to correct certain violations which were admitted by the compliance officer; that although he attempted to attain the service of an electrician to correct grounding violations, he could not secure such services due to prior [*23] commitments of the electrical contractor; that the gravity of the violations were low in each instance, except for inadequate guarding on feed rolls of band saw; that respondent is a small corporation employing approximately 15 employees; that it did not, on a continuing basis, engage in full-time, day-to-day operation, and that respondent has no history of previous violations.

On these bases, it is concluded that the proposed penalties are unreasonable, inappropriate and the more appropriate penalty would be $25.00 per day for each violation for each day that the violation continued after the expiration of the abatement periods. Thus, the total penalty should be $530.00 which includes the $30.00 for Item No. 10, previously assessed in the original Notification of Proposed Penalty and which had become the final order of the Commission when the Respondent failed to contest the original Citation and Proposed Penalty.

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 times material [*24] hereto, was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and the subject matter herein.

3. The citation and proposed penalty issued against the respondent on March 17, 1972, not having been contested, are deemed final orders of the Occupational Safety and Health Review Commission and are not subject to review by the court or agency, in accordance with section 10(a) of the Act.

4. The total additional penalties proposed by the Occupational Safety and Health Administration for failure to abate Items No. 5, 6, 8, 10 and 11 of the citation issued March 17, 1972, are not appropriate under the circumstances herein.

5. The additional total penalty of $530.00 for failure of the respondent to abate Items No. 5, 6, 8, 10 and 11 of the citation issued on March 17, 1972, is reasonable, proper and is warranted under the circumstances herein.

ORDER

Upon the record evidence and good cause appearing therefore, it is ORDERED that:

1. A penalty of $125.00 per day for four days is assessed against the respondent for failure to abate violations of 29 CFR 1910.265(c)(20)(v), 1910.213(i)(3), 1910.219(a), [*25] 1910.265(c)(20)(d), and 1910.215(a)(11), aggregating a total of $500.00.

2. The respondent pay the $30.00 penalty for violation of Item No. 10, citation issued March 17, 1972, violation of 29 CFR 1910.265(c)(20)(v).