OSHRC Docket No. 91

Occupational Safety and Health Review Commission

February 8, 1973


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners.  



  VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision and order rendered by Judge Fred L. Woodlock.   Following a hearing, Judge Woodlock affirmed certain civil penalties n1 proposed by the Secretary of Labor (hereinafter, "the Secretary") against Baltz Brothers Packing Co., Inc. (hereinafter, "Respondent") for admitted non-serious violations of occupational safety and health standards and of the requirements of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq.; hereinafter, "the Act").

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n1 We note that in rendering his decision and order Judge Woodlock failed to affirm the citation.

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In reaching his decision the Judge indicated that he was not ". . . disposed to substitute his judgment for that of the Secretary in the absence of clear evidence that there was an arbitrary exercise thereof." Presumably it is for this reason that the Judge's decision contains no findings and conclusions concerning the gravity of the violations.

The Judge's rationale for his decision was erroneous.   According to the plain terms of section 10 of the Act the Secretary has only limited authority as concerns the imposition of civil penalties. He may "propose"   such penalties.   He has no authority to convert his proposals into a final order of this Commission.   Finality may be achieved only according to either of two alternative courses available to a cited employer.   The employer may consent to the proposed penalties by not filing a notice of contest. In such event the proposed penalties became a final order of the Commission by operation of law in accordance with the provisions of section 10(a) or 10(b).   On the other hand, the employer may file his notice of contest to thereby submit the issue of the appropriateness of the proposed civil penalty for judicial determination by this Commission. n2 In such event the Commission, by virtue of the provision of section 10 and 17(j), has the exclusive authority to assess an appropriate civil penalty.   In making such assessment we are mandated by section 10(c) to ". . . isue an order, based on   findings of facts, affirming, modifying, or vacating the Secretary's . . . proposed penalty. . . ."

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n2 Of course, the employer may thereafter choose to withdraw his notice of contest. In such cases we usually assess the penalty or penalties proposed by the Secretary.   This is not to say, however, that we are bound in such cases to assess the proposed penalties. Indeed, we conceive it proper to vacate small monetary penalties in appropriate and obvious circumstances.   See: Secretary of Labor v. J.E. Chilton Millwork & Lumber Co., Inc., Secretary of Labor v. General Meat Co., Inc., Secretary of Labor v. Hydroswift Corporation,

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As noted above Judge Woodlock failed to make findings of fact in that he was not disposed to substitute his judgment for that of the Secretary.   In view of the exclusive jurisdiction placed in this Commission as explained above the Judge's action constituted an abdication of the Commission's responsibilities and   must therefore be set aside.   We have reviewed the record and it is our opinion that the following findings and conclusions are supported by a preponderance of the evidence.

Respondent, a Tennessee corporation, is engaged in the business of processing livestock into packaged meat products.   On September 1, 1971, the Secretary by his duly authorized representative made a safety and health compliance inspection of Respondent's workplace in Nashville, Tennessee.   As a result of that inspection, the Secretary issued a citation to Respondent wherein it was alleged that Respondent had violated section 5(a)(2) of the Act in that:

(1) numerous pedestal fans and other electrical equipment such as a band saw were not electrically grounded in violation of 29 C.F.R. 1910.314(a)(3);

(2) the maintenance shop and storeroom presented a bump and trip hazard in violation of 29 C.F.R. 1910.22(a)(1);

(3) two connected electrical extension cords were lying in water on the floor of the bologna packaging room in violation of 29 C.F.R. 1910.314(d)(4)(iii) (d); and,

(4) an electrical box located in the incubator room was open in violation of 29 C.F.R. 1910.315(n)(4).

Penalties of $61 were proposed for each of items (1) and (3) and $105 for each of items (2) and (4).

Respondent thereafter timely filed its notice of contest. The issue were narrowed such that the only question left for determination concerns the amount of the civil penalties to be assessed.   In making such assessment we are mandated by section 17(j) to consider the Respondent's (1) size, (2) history of previous violations and (3) good faith.   We are also mandated by the section to consider the gravity of the violation.

  In this case we have no quarrel with the Secretary's evaluation of the first three criteria.   For that matter we agree that in determining the gravity of a violation consideration should be given to (1) the degree of probability of an injury occurring as a result of the violation, (2) the severity of an injury resulting from the violation and (3) the extent to which the standard has been violated.   See: Occupational Safety and Health Administration, Compliance Operations Manual, pg. X1-2 (January, 1972).   Also see: Secretary of Labor v. National Realty Construction Co., Inc.   appeal docketed, No. 72-1978, D.C. Cir. October 17, 1972, sub nom., National Realty Construction Co., Inc. v. United States Occupational Safety and Health Review Commission. However, we believe that in this case the Secretary underestimated the gravity of the violations.

As is evident, three of the violations were of electrical safety standards.   The unrebutted evidence of record is that all such violations occurred in wet locations; i.e., the floors were damp and puddles were standing in some areas.   Specifically, the compliance officer observed several ungrounded fans throughout Respondent's workplace. In addition, he observed an ungrounded "Welles Bandsaw" located on "moist" ground and several ungrounded meat grinders (item 1 of the citation).   As regards item 4 of the citation, he observed open electrical control boxes throughout the workplace and 4 or 5 such boxes in one location.   Water was standing on the floor in front of the last noted boxes.

It is clear from this testimony that the standards in items 1 and 4 of the citation were violated extensively in Respondent's workplace. That fact when taken with the conditions of dampness existing created a situation    wherein the likelihood or probability of injury was high.   Moreover, the compliance officer opinioned, without objection, that the degree of injury under these conditions was severe and could result in anything from a burned hand to death by electrocution.   Under these circumstances we conclude that the proposed penalties of $61 and $105 respectively are inappropriate and that a penalty of $200 should be assessed for each of the violations described by items 1 and 4 of the citation.

The situation is of an even graver nature as concerns item 3 of the citation.   The compliance officer testified that he saw two extension cords connected together by plugs so as to electrically energize an ungrounded packaging machine.   The workplace was very damp, and the plugs connecting the two cords together were lying in a puddle on the floor. To compound the situation employees working in the area were wearing wet shoes.   Under these circumstances the probability of injury was great.   There can be no question that death could have resulted had an injury occurred.   Consequently, the proposed penalty of $61 is inappropriate and a penalty of $400 should be assessed.

Item 2 of the citation concerns a housekeeping violation.   Specifically, the evidence of record is that the floor of Respondent's maintenance room was carpeted with junk.   In addition, gas hoses for welding equipment were stretched across the floor. The equipment was being used by three employees.   After carefully finding his way through this room the compliance officer testified that he had to pass through a poorly lighted storage room to gain access to another part of the plant.   He observed that large numbers of pipe, tubing and angle irons extended to his eye and forehead levels in the room's passageway.   At the hearing,   Respondent testified that construction was underway or about to commence at the time of the inspection and that the housekeeping situations were temporary.

Under these circumstances it appears that the probability for injury was moderate, and that the number of employees affected was small.   The range of severity of injury in the event of an occurrence is from negligible, i.e., a bruise, to serious, i.e., loss of an eye, concussion, and the like.   Under these circumstances the proposed penalty of $105 appears to be appropriate and should be assessed.

Accordingly, IT IS ORDERED,   That: (1) the decision and order of the Judge be set aside; (2) the citation be and the same is hereby affirmed; and (3) Respondent be assessed civil penalties of $200, $105, $400 and $200 respectively for its violation of standards and of section 5(a)(2) of the Act as described by items 1 through 4 of the citation.  



  BURCH, COMMISSIONER, concurring: I concur with the result reached by Commissioner Van Namee.   It is incumbent upon the Commission to fully disclose and discuss the basis for assessing a particular penalty.   The method by which the gravity of the violation and the employer's good faith, compliance history and size have been considered in order to attain the final result must be a part of the public record.

As the Commission has stated previously, and as stated by my colleague herein, the Commission, pursuant to sections 17(j) and 10(e) of the Act, is authorized to assess appropriate penalties.   Before that can be accomplished it is necessary to determine whether the violations in question are serious within the meaning of section 17(k) of the Act.   In the instant case the evidence   of record establishes that there is a substantial probability that death or serious physical injury could result from violations 1, 3 and 4.   It is my view that this circumstance, in conjunction with the knowledge requirement of section 17(k), and the possibility of an accident's occurrence is all that is required for a violation to be considered serious.   The occurrence of an accident because of an existing hazard in violation of the Act need not be substantially probable in order for a violation to be serious, within the meaning of the Act.

Section 17(k) reads as follows:

For purposes of this section, 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.

Serious and non-serious violations are distinguished on the basis of the seriousness of injuries which experience has shown are reasonably likely to occur.   Section 13(a) of the Act provides that the Secretary may petition to restrain conditions which ". . . could reasonably be expected to cause death or serious physical harm immediately. . . [Emphasis added]." Providing for an additional means of enforcement for conditions which constitute imminent dangers distinguishes section 13 violations from those of section 17(k).   The difference is the immediacy of the danger.   Similarly, serious and non-serious violations are differentiated on the basis of the degree of probable injury. n3 These violations are   defined primarily to provide appropriate means of enforcement.   Imminent dangers may be restrained.   Serious violations, unlike non-serious ones, warrant mandatory penalties.   Thus, by reading these sections of the Act together, a rational distinction among the three types of violations is revealed.   To require, in addition, that for serious violations the occurrence of accidents be substantially probable is inconsistent with the logical progression of violations and their concomitant remedies.   That interpretation would make serious violations and those constituting imminent dangers practically indistinguishable.

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n3 The Act also deals with de minimis, willful, repeated, and unabated violations.

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Section 2(b) of the Act states the purpose and policy of Congress, which is ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources -- (1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards. . . ." The intent of Congress is to prevent the occurrence of injury.   To require, as a prerequisite to a serious violation, that an accident be substantially probable, rather than simply possible, is inconsistent with this purpose.   Here, the electrocution or electric shock hazards posed by items 1, 3 and 4 of the citation bring those violations within the ambit of section 17(k).

Determination of the appropriateness of the penalties in the instant case must be preceded by a discussion of the assessment methodology employed.   I find that the means utilized by the Secretary when determining penalties for non-serious violations provide a manageable system based upon criteria which are reasonably objective, n4 and that a similar guideline can be   devised for serious violations.   It is important to note, however, that application of the Secretary's methodology to the facts herein (assuming the highest level of gravity) would preclude a penalty in excess of $350 for any given violation.

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n4 Secretary of Labor v. J.E. Chilton Millwork & Lumber Co., Inc.,

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By my construction of section 17(k) of the Act, supra, I have concluded that, aside from knowledge of the violation, the fact that substantial probability that death or serious injury could result is the determining factor with respect to the seriousness of a violation.   In assessing an appropriate monetary penalty, I believe that a reasonable starting point is the gravity of the violation. n5 Clearly, one essential element of gravity is the probability of an accident occurring as the result of a violation.   A second essential element of gravity is the exposure to the violation.   This includes both the number of employees exposed and the duration of their exposure. In addition, the probable severity of injury in the event an accident were to occur is an element of gravity as well as being determinative of whether a violation is serious.   Apparently, with respect to gravity, the Secretary takes only this last factor into account in proposing penalties for serious violations.   Once a violation has been cited as serious the $1000 maximum penalty is assessed for gravity of the violation on the basis of substantial probability of serious injury.   Adjustments for size, good faith, and compliance history result in the proposed assessment.   I suggest that the monetary penalty to be assessed for serious violations be computed in a manner similar to that used by the   Secretary in proposing penalties for non-serious violations.   However, both the serious nature of the violation and the exposure and probability aspects of gravity must be taken into consideration.   This may be accomplished by utilizing more stringent assessment guidelines because of the seriousness of the violation and as a means of including the severity of the injury as an element of gravity. The remaining two elements, probability and exposure, can then be rated "A" through "C" according to their degree and applied to the guideline. The penalty is computed separately for each of these two gravity determinants, as follows:

A = $1-250

B = $251-400

C = $401-500

The two are then added in order to arrive at an unadjusted penalty.   Where both criteria are rated "C" no deductions are allowed for an employer's history of compliance or good faith. n6 Where one criterion is rated "C" a maximum 10 percent reduction is allowed for each of these factors with a 20 percent reduction allowed where there is no "C" rating. It is noted that the adjustment allowed for employer size is based upon considerations extraneous to safety and health.   It is primarily an attempt to avoid oppressive penalties and, as such, the 10 percent reduction allowed by the Secretary may be insufficient to prevent inequity in some   circumstances.   This issue is not raised by the facts here and will be discussed in an appropriate case.

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n5 Gravity, unlike good faith, compliance history and size, is relevant only to the violation being considered in a case and therefore is of the greatest significance.   The other factors are concerned with the employer generally, and are considered as modifying factors.

n6 Compliance history includes experience under all relevant safety and health statutes to which an employer is subject.   The extent of an employer's good faith is determined, in part, by an examination of his overall safety program.   In certain cases, consideration of the precautions, if any, taken by an employer to prevent a situation from arising which could result in death or serious physical harm may be given with regard to good faith as well as with regard to the gravity of the violation.


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In addition, I believe it is in furtherance of the purposes of the Act to allow, in appropriate circumstances, a credit for abatement of serious violations similar to that utilized by the Secretary in assessing penalties for non-serious violations.   A reduction up to 50 percent may be made from an adjusted penalty based upon the steps taken to abate the violation and the difficulty and expense involved.   No abatement adjustment should be made for assurances of future compliance where a non-continuing violation is involved.

In the instant case Commissioner Van Namee has stated that he has ". . . no quarrel with the Secretary's evaluation . . ." of respondent's size, history of violations and good faith.   The Secretary's 0, 20 and 10 percent adjustments, respectively, for size, history, and good faith were affirmed, without discussion, by Judge Woodlock.   The opinion of my colleague similarly affirms the Secretary's adjustments without any amplification whatsoever.   Thus, neither the Judge's recommended decision nor the opinion of my colleague, the only documents susceptible to public scrutiny, contain any discussion of the bases for the allotted adjustments.   I believe that the Commission has a responsibility to make known to the parties and the public the foundation for its decisions.

The lack of adjustment for size seems appropriate in light of the only fact in that regard available to us, that respondent's work force is comprised of approximately 350 persons.   The 20 percent maximum adjustment n7 for history of previous violations is also appropriate   in the absence of evidence of any prior violations of this or any other safety and health law.   However, based upon the evidence of record, I find that respondent has demonstrated sufficient good faith to warrant adjustment for that factor.   It is undisputed that respondent cooperated fully with the compliance officer.   Testimony of respondent's representative that safety meetings are held and that safety measures are implemented pursuant to a formal safety program is not rebutted by the Secretary.   The fact that respondent erroneously views the instant violations as "trivial" is not sufficient reason, in view of its demonstrated good faith, to deny the adjustment.

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n7 The percentage adjustments may vary according to the gravity of the violation, as discussed in the context of my suggested assessment procedure, supra.

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Having concluded that items 1, 3 and 4 are serious violations, the penalty should be assessed according to the guideline set forth herein.   I find that the probability of an accident occurring because of violation no. 1, numerous pieces of electrical equipment not being grounded, is moderate, warranting a "B" rating and $350 assessment.   It is reasonably foreseeable, as stated by the compliance officer in his testimony, that an employee could be touching the band saw were a short to occur.   The probability of occurrence is also increased by the substantial number of machines in violation and the wet conditions in which they are used.   Similarly, numerous employees are exposed to the multiple hazards over a continuing period of time, warranting the same "B" rating and $350 assessment.   The $700 total is reduced by the full 40 percent adjustment because neither factor was rated "C".   The $420 total is further reduced by 50 percent, to $210, for abatement.

With respect to item no. 2, a non-serious violation, I concur with my colleague's affirmance of the Secretary's "C" ratings for "probability," "severity" and   "extent" based upon the factors set forth in their decision.   The Secretary's $300 assessment is reduced, however, by 40 percent to $180 and is further reduced to $90 for abatement.

Item no. 3, two extension cords connected and lying in water, constitutes a serious violation.   The wet condition of the room, specifically in the area of the connection, and employees' wet shoes make the probability of occurrence moderate.   Exposure is similarly rated because of the sizeable number of employees passing through the area of the violation during cleaning operations.   The penalty should be assessed in the same manner as violation no. 1; however, the $420 adjusted penalty is reduced further by only 10 percent because of the ease of achieving abatement, for a total penalty of $378.

With respect to item no. 4, cied as an "open electrical box in incubator room," the compliance officer's testimony and my colleague's finding that many such violations existed throughout the plant goes far   beyond the violation as cited.   Respondent was put on notice and was prepared to defend only the one instance of this violation.   Accordingly, the exposure factor appears to be low in these circumstances.   The lack of evidence with respect to the exact location of the box warrants only a low "A" rating. Each factor is assessed an "A" rating and $100 penalty.   The $200 total is adjusted to $120 and a 10 percent abatement credit results in a penalty of $108.

Inasmuch as the penalties assessed by Commissioner Van Namee approximate those which I have computed, I concur with his result.  



  MORAN, CHAIRMAN, concurring in part and dissenting in part: I concur that the record in this case establishes   that the respondent violated the Act as alleged and that the Judge arrived at the amount to be assessed as a penalty by an improper route.   I dissent because the penalty assessed by the Commission is unnecessarily high.   Since the record already demonstrates that three people can produce three different amounts as an appropriate penalty on the basis of the same fact situation, there is no use in adding the views of a fourth person at this point.

WOODLOCK, JUDGE,   OSAHRC: Pursuant to an inspection on September 1, 1971 of a workplace under the control of Baltz Brothers Packing Company, defendant herein, a determination was made by the Secretary of Labor that the defendant had violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, and regulations issued under authority of such Act.   A Citation and Notification of Proposed Penalty were issued to defendant on September 21, 1971.   By letter of October 8, 1971 the defendant advised the Occupational Safety and Health Administration that the alleged violations had been corrected immediately following the inspection and by letter of October 12, 1971, further advised the Administration that it contested the proposed penalties. A complaint was filed by the Secretary of Labor with the Occupational Safety and Health Review Commission on October 26, 1971 setting forth the alleged violations and proposing civil penalties in the sum of $332.00.   By answer filed November 3, 1971 the defendant denied that the penalties proposed were reasonable and contested such penalties.

The proceeding was assigned to the undersigned Hearing Examiner, and a hearing was held in Nashville, Tennessee, on November 18, 1971.   Plaintiff was   represented by John P. Garner, Esquire, and defendant by Jack W. Robinson, Esquire.   James S. Broos, Compliance Officer for Occupational Safety and Health Administration, testified for plaintiff and L. D. Murray, Jr., Vice-President and Controller of Baltz Brothers Packing Company, on behalf of defendant.   No employees of defendant were present nor were they represented.

The only issue before the Hearing Examiner was the amount of penalty to be assessed against the defendant, no question being raised as to the determination of the violations described in the complaint, of timely abatement of the conditions which existed at the time of inspection, nor of proper posting of required documents at defendant's plant.

Testimony of James Broos, Compliance Officer with the Occupational Safety and Health Administration of the Department of Labor, indicated that he was one of two individuals who conducted the inspection of defendant's place of business.   He described the violations found and the procedure used in arriving at the proposed penalty. The forms used and formulas employed reveal that the inspection and assessment are intended to be as mechanical as possible and to eliminate individual judgment to the extent possible.   The Examiner was impressed by the objectivity of the witness and by his apparent efforts to be fair.

Mr. L. D. Murray, Vice-President and Controller of Baltz Brothers Packing Company, took exception primarily to the penalty assessed for Item 2 on the Citation.   (The witness testified, in response to a question from the Hearing Examiner that his concern was with Item 4, but this was clearly in error, since his remarks were directed to the condition of the maintenance shop and storeroom.) In extenuation he stated that the steel   stored in these areas was for a large construction project which made some untidiness inevitable.   The testimony of Mr. Broos describing the condition of the maintenance shop appears to support that of Mr. Murray to the effect that there was some sort of construction work underway.   However, Broos' description is of conditions which appear far worse than those ordinarily attendant upon construction.   He was specific about conditions which appeared to have existed in the storeroom for some long period of time.

Arguments of the defendant relating to the newness of the Act and   to its lack of information as to what constituted violations are not persuasive.   Such factors were considered in arriving at the penalties assessed.   Furthermore, in every case where a penalty is assessed, some personal judgment is necessary.   A completely mechanical method of arriving at a sanction is impossible.   Nor is this Examiner disposed to substitute his judgment for that of the Secretary in the absence of clear evidence that there was an arbitrary exercise thereof.

The determination of penalties is considered fair and reasonable, and it is so found.

Defendant is ordered to pay the sum of $332.00 as penalties for the violations described.