BRASWELL MOTOR FREIGHT LINES, INC.
OSHRC Docket No. 9480
Occupational Safety and Health Review Commission
May 19, 1977
[*1]
Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Norman Winston, Assoc. Regional Sol., USDOL
James L. Martin, for the employer
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: Respondent, a common carrier engaged in the movement of freight, operates a terminal in Pearl, Mississippi. An inspection of that facility conducted on July 2, 1974, resulted in the issuance of a citation which alleged eleven nonserious violations of 29 U.S.C. § 654(a)(2). Respondent did not contest this citation and it became a final order by operation of law pursuant to 29 U.S.C. § 659.
On August 5, 1974, respondent's terminal was reinspected. A notification of proposed additional penalties for failure to abate six of the violations which had previously been cited was issued as a result of this reinspection. n1 Respondent timely contested this notification, and the case was heard by Review Commission Judge John S. Patton.
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n1 An abatement date of July 29, 1974 had been set for all six or these violations in the original citation.
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In a decision dated February 19, 1975, which is attached hereto as Appendix A, n2 Judge Patton found that respondent had failed to abate items 4, 5, 7, and 11 of the original citation, but had abated items 9 and 10 thereof. Review was directed pursuant to 29 U.S.C. § 661(i) on the propriety of these holdings. n3 For the reasons which follow, the Judge's decision is affirmed except that no penalty is assessed for item 4 of the notice and items 5, 7, and 11 thereof are vacated.
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n2 Chairman Barnako does not agree to this attachment.
n3 Respondent was also cited for two new violations of 29 U.S.C. § 654(a)(2) as a result of the August 5, 1974 inspection. The Judge affirmed both violations. Review was not directed with respect to these violations, and the parties have not questioned the correctness of the Judge's findings thereon.
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Before examining the evidence in this case, it will be useful to review what complainant must prove to establish a failure to abate and what [*3] an employer may assert as a defense to such a charge. Where, as here, the original citation is not timely contested and there is a reinspection subsequent to the expiration of the abatement date specified in that citation, the complainant's prima facie case of failure to abate is established upon a showing that: (1) the original citation has become a final order of the Commission, and (2) the condition or hazard found upon reinspection is the identical one for which respondent was originally cited. An employer may rebut this prima facie case by showing that the condition was corrected or, if not corrected, that the employer has prevented the exposure of his employees to the violative condition. Secretary v. York Metal Finishing Company, 7 OSAHRC 845 (1974). The prima facie case may also be rebutted by a showing that the condition for which the employer was cited was in fact not violative of the Act either at the time of the original inspection or at the time of reinspection. Secretary v. Franklin Lumber Co., Inc., 9 OSAHRC 922 (1974). The evidence as to each of the charges in this case is hereafter considered with these principles in mind.
Item 4 - Stair Handrail [*4] Charge
Respondent was charged with noncompliance with 29 C.F.R. § 1910.23(d)(1)(iii) because open-sided stairs leading up to a loading dock had a handrail on only one side. The cited standard requires handrails on both sides of open stairs that consist of four or more risers. The second handrail had not been installed on the stairs by the time the worksite was reinspected.
Respondent's principal defense to this charge was that its failure to have the condition corrected by the abatement date was due to factors beyond its reasonable control. Shortly after the initial inspection, respondent contacted a welding service with whom it did business, instructed the company to install a handrail, and asked that the work be done promptly because a deadline had to be met. Thereafter, respondent contacted the company at least every other day to urge that the work be completed promptly. A representative of the welding company testified that it had been unable to respond to these requests due to a heavy workload, but did, finally, complete the work a few days after the reinspection.
Judge Patton held that the difficulties respondent experienced in having the handrails installed did not [*5] constitute a defense to the notification of proposed additional penalties for failure to abate. He reasoned that in order to establish such a defense, an employer had the burden of proving that it was impossible to have the condition corrected by the prescribed date. The evidence presented by respondent did not satisfy this burden, he held, because respondent did not establish that it could not have looked elsewhere for the handrail installation. He stated, however, that the diligent efforts respondent made to comply was a factor to be considered in assessing a penalty. Because of these efforts, and the fact that a fall from the stairs was unlikely to cause serious injury since their elevation was low, he reduced the penalty to $100 from the $500 that had been proposed.
We agree with the Judge that the evidence does show a failure to abate but that the substantial efforts respondent made to comply should be considered in assessing a penalty. The proper course for an employer to follow when he discovers that the abatement requirement of a citation cannot be met because of factors beyond his reasonable control is to petition for modification of the abatement pursuant to 29 U.S.C. [*6] § 659(c). Because respondent did not do so, or succeed in having the condition corrected by the prescribed date, respondent is in violation as alleged. However, in view of the low level of gravity of the violation and respondent's good faith efforts to abate, we conclude that it is appropriate to assess no penalty in this case.
Item 5 - Covered Receptacle for Combustible Waste
At the initial inspection, complainant's safety inspector observed oily rags lying on a floor at respondent's facility. As a result, respondent was cited for noncompliance with 29 C.F.R. § 1910.106(e)(9)(iii) for failure to provide a covered metal container for the rags. Shortly after the initial inspection, respondent secured a container with a lid for the rags and placed it in its shop. At the time of the reinspection, the rags were in the container, but the lid was not on the container. In the presence of the inspector, respondent's mechanic got the lid for the container and secured it on the can. The mechanic testified that despite instructions to keep the can covered, the employees of respondent who emptied the can frequently failed to replace the lid.
The Judge held that the abatement requirements [*7] of the citation were not satisfied because the evidence showed that the top was not kept on the can consistently. He reasoned that, in order to properly correct the condition, respondent not only had to secure a covered can and instruct employees to use it, but also had to effectively enforce its instructions to keep it covered.
We do not agree that the evidence shows a failure to abate. Only when a cited condition has continued uncorrected is a failure to abate established. Abatement of a violation is accomplished once the corrective action required by the citation has been taken. This was clearly done when a covered container was placed in service for the rags. While the failure to effectively enforce instructions to keep it covered could constitute a new, repeated violation of the same standard, it does not constitute a failure to abate. This distinction between a failure to abate and a repeated violation is recognized by complainant's own regulations. n4
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n4 The OSHA Field Operations Manual provides the following at paragraph VIII-B-5-c:
If upon reinspection, a violation of a previously cited standard is found on the same piece of equipment or in the same location and the evidence indicates that the violation has continued uncorrected since the original inspection then, there has been a failure to abate. If, however, the violation was not continuous; i.e., if it had been corrected and reoccurred, the subsequent reoccurrence is a repeated violation.
[*8]
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In its brief to the Commission, complainant concedes that this violation, as well as violations of 29 C.F.R. § 1910.157(a)(5) and 29 C.F.R. § 1910.309(a), which will be discussed below, were not continuous and, thus, that a failure to abate has not been shown. Complainant contends, however, that the evidence with respect to each shows that the violations reoccurred sometime prior to reinspection and, thus, that repeated violations under 29 U.S.C. § 666(a) have been established. Complainant therefore requests that we convert these items of the notification of proposed additional penalties for failure to abate into citations for repeated violations or in the alternative into citations for nonserious violations.
We decline to do so at this late stage of the proceedings. The first time complainant raised the issue of converting the notification into new citations was in its review brief to the Commission. Respondent was not given advance warning either by the notification of proposed additional penalties, the complaint, or any other paper filed prior to trial that it would also have to defend on the [*9] question of repeated violations or new nonserious violations. The only question tried on these charges at the hearing was whether respondent had abated violations alleged in the original citation.
The evidence relevant to rebutting a charge of failure to abate may differ significantly from that relevant to rebutting a repeated violation. Compare Secretary v. York Metal Finishing Company, supra with Secretary v. George Hyman Construction Company, OSAHRC Docket No. 13559, April 26, 1977. Permitting an amendment at this late date would therefore prejudice respondent by denying it an opportunity to introduce rebuttal evidence on the elements of a repeated violation. Moreover, these arguments also apply to complainant's motion insofar as he would have the Commission, in effect, issue new citations for nonserious violations. Contrary to his arguments on review, all issues were not tried by consent since the proceedings have not included the issue of reasonable abatement dates, an issue peculiar to a citation issued under 29 U.S.C. § 658(a) and not involved in a failure to abate proceeding. See Secretary v. National Roofing of Sioux City, Inc., OSAHRC Docket [*10] No. 8275, August 3, 1976; Secretary v. The Murphy Company, 7 OSAHRC 453 (1974). Accordingly, we deny the amendments requested by complainant.
Item 7 - Mounting of Fire Extinguishers
Two fire extinguishers were on the floor at the time of the initial inspection. Respondent was charged with noncompliance with 29 C.F.R. § 1910.157(a)(5) which requires that extinguishers be mounted on brackets, in cabinets, or set on shelves. At the time of the reinspection the extinguishers were not mounted or elevated, but were again located on the floor, although not in the same places where they were located at the time of the first inspection.
An employee of respondent testified that, at the direction of his supervisor, he installed brackets for the extinguishers and mounted them on the same day as the initial inspection. He testified further that they remained mounted through August 5, 1974. He stated, however, that he was not at the premises on the date of the reinspection and, if the extinguishers were on the floor, he did not know how they got there.
The Judge held that a failure to abate the violation was established by virtue of the fact that the extinguishers were not mounted [*11] on the day of the reinspection. We do not agree, for as the evidence shows and the Judge found, the condition was corrected prior to the abatement date. While the failure to have the extinguishers properly mounted on the day of the reinspection may constitute a new infraction, it does not, as previously indicated, constitute a failure to abate.
Item 11 - Guarding of Electrical Devices
At the time of the initial inspection, live electrical terminals in approximately 14 electrical plug-ins and outlets were exposed either because the faceplates were removed or the boxes had broken loose from the walls. These conditions resulted in the issuance of a citation for failure to guard live electrical devices as required by 29 C.F.R. § 1910.309(a) which adopts National Electrical Code Article 110-17(a). At the time of the reinspection, at least two of the previously cited boxes and wires were not covered.
An employee of respondent testified that, prior to the abatement date, he corrected the condition at all locations by placing covers over the live parts or repairing broken boxes. He expressed the opinion that the covers may have been knocked off after they were repaired at the [*12] two locations observed by the safety inspector.
The Judge held that a failure to abate was shown because of the lack of covers on the day of the reinspection. This was error in view of respondent's earlier corrective action.
Items 9 & 10 - Bench Grinder
Respondent was cited for noncompliance with 29 C.F.R. § 1910.215(a)(4) because a bench grinder lacked a work rest and with noncompliance with 29 C.F.R. § 1910.215(a)(2) because the spindle end nut and flange projections of the same grinder were not guarded. The protective devices required by the standard had not been installed when the worksite was reinspected. The Judge held, however, that a failure to abate was not shown because the evidence revealed that the grinder was too worn out to use and that employees were instructed not to use it. Our review of the record indicates that the Judge's finding of no exposure to the hazard is supported by the preponderance of the evidence and, accordingly, is adopted. Secretary v. Okland Construction Company, OSAHRC Docket No. 3395, February 20, 1976. Furthermore, complainant concedes the correctness of the Judge's holdings on these charges in his review brief. n4a
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n4a Chairman Barnako would affirm the Judge's decision as to items 9 and 10 solely on the basis that complainant has not taken exception to the Judge's decision to vacate those items. See State, Inc., 76 OSAHRC 134/F7, 4 OSHC 1806, 1976-77 OSHD para. 21,209 (1976).
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The penalty assessed for item 4 of the notification of failure to correct is vacated and no penalty is assessed therefor. Items 5, 7, and 11 of the notification and the penalties assessed therefor are vacated. The remaining findings of the Judge are affirmed.
CONCURBY: CLEARY (In Part)
DISSENTBY: CLEARY (In Part)
DISSENT:
CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART.
I agree with the majority's decision only insofar as it finds that respondent failed to correct item 4 of the original citation and assesses no penalty in light of respondent's good faith efforts to have handrails erected.
I dissent from vacating the notification of failure to correct items 5, 7, and 11. n5 In my view, the Judge correctly held that respondent failed to abate these violations, and the [*14] violation as to each should therefore be affirmed.
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n5 I do not join the majority's discussion of items 9 and 10 involving an alleged failure to comply with 29 CFR § 1910.215(a)(2) and (4), as it is unnecessary. The Judge vacated these items on the basis of lack of employee exposure to the hazards involved. In his brief, the Secretary expressly states that the Judge's vacation of these items is not being challenged before the Commission. These items, therefore, are not before us for review. Cf. Star Circle Wall Systems, Inc., 4 BNA OSHC 1011, 1975-76 CCH OSHD para. 20,502 (No. 3271, 1976).
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My disagreement with the majority's decision is rooted in the different meanings that we ascribe to the term "abatement." Under the majority's interpretation, abatement of a violation requires only that the violative condition be brought into momentary compliance with the literal terms of the standard. I submit that this is an unduly narrow reading of the term "abatement" that poorly serves the purposes of the Act. [*15]
In my view, "abatement" contemplates an initial remedying of noncomplying conditions as well as a continuing duty on the part of an employer to take all reasonable steps necessary to ensure that compliance with a standard's requirements is maintained. The Murphy Co., 1 BNA OSHC 1618, 1973-74 CCH OSHD para. 17,532 (No. 445, 1974) (Cleary, Commissioner, concurring and dissenting opinion). The undesirability of the majority's position is amply demonstrated by the facts of the instant case.
The original citation alleging a failure to comply with the standards herein involved was issued on July 3. The violations were ordered to be corrected by July 29. Respondent did not contest the citation, and the citation therefore became a final order of the Commission by operation of law. On August 5, a reinspection of respondent's facility was made. On this date, less than one week after abatement was to be completed, the same oily rag receptacle was found uncovered, n6 the same fire extinguishers were found sitting on the shop floor, n7 and certain of the same electrical switches and panels were found with wires exposed. n8
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n6 The applicable standard, 29 CFR § 1910.106(e)(9)(iii), a fire protection standard, requires that combustible waste and residues be "kept to a minimum, stored in covered metal receptacles and disposed of daily." Plainly, respondent has failed to do this.
n7 The standard at 29 CFR § 1910.157(a)(5) requires the mounting of portable fire extinguishers. It does not provide for mounting only some of the time.
n8 Section 1910.309(a) of 29 CFR Part 1910 incorporates by reference the 1970 National Electrical Code requiring the guarding of live parts of electrical equipment. As the Administrative Law Judge observed, "To put a cover in place and then promptly remove it or permit it to be knocked off and remain off is not genuine abatement of a violation." J.D.-22.
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Even if respondent's evidence that it covered the receptacle and electrical outlets, and that it mounted the fire extinguishers, is credible, I would conclude that these actions alone do not fulfill respondent's continuing duty to control the hazards involved. To do so in view of the fleeting nature of the "compliance" [*17] achieved in this case is to compromise unnecessarily the safety of employees. n9
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n9 To cite the noncomplying conditions observed during the reinspection as "repeat" violations, as is suggested in the majority opinion, would be an unsatisfactory method of dealing with this type of situation, especially in view of the fact that my colleagues' interpretation of the term "repeated" limits its application to some form of aggravated conduct. See the separate opinions in George Hyman Constr. Co., (No. 13559, April 26, 1977).
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Appendix A
DECISION AND ORDER
Patton, Judge, OSAHRC
This case is before the undersigned Judge on the complaint of the Secretary of Labor, Department of Labor, hereinafter referred to as complainant, versus Braswell Motor Freight Lines, Inc., hereinafter referred to as respondent, alleging that respondent failed to abate certain violations of 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, notwithstanding [*18] the fact that a citation alleging said violations had become a final order. It was further alleged that at the time inspection revealed a failure to abate respondent was found to have also violation additional standards. The complaint alleged that a citation and notification of proposed penalty issued to respondent on July 3, 1974 alleging violation of Standards 29 CFR 1910.23(d)(1)(iii) 29 CFR 1910.106(e)(9)(iii) 29 CFR 1910.157(a)(5) 29 CFR 1910.215(a)(2) 29 CFR 1910.215(a)(4) and National Electrical Code Article 110-17(a) as adopted by Standard 29 CFR 1910.309(a). It was alleged that said citations were not contested and became final orders, requiring abatement not later than July 29, 1974. The complaint alleged that on August 5, 1974 reinspection of the premises was made and that none of the above violations had been abated.
The complaint alleges that upon said reinspection on August 5, 1974 the respondent was found to be additionally in violation of Standards 29 CFR 1910.106(e)(2)(ii) and 29 CFR 1903.16. Hearing was held on November 27, 1974 at Jackson, Mississsippi. Mr. Ellis Cruse appeared as counsel for the complainent and Mr. James L. Martin appeared as counsel for [*19] the respondent. There was no motion to intervene.
LAW AND ISSUES IN THE CASE
It was alleged that Standard 29 CFR 1910.23(d)(1)(iii) was violated by failure of respondent to install handrails on both sides of stairs leading up to the loading docks.
It was alleged that respondent failed to provide covered metal containers for oily rags in the shop in violation of Standard 29 CFR 1910.106(e)(9)(iii).
It was alleged that respondent failed to install, mount in cabinets, or place on shelves the two fire extinguishers in the shop. It was alleged that said fire extinguishers were placed on the floor. These actions were alleged to be in violation of Standard 29 CFR 1910.157(a)(5).
It was alleged that respondent failed to provide a guard over the spindle end nut and flange projections of the bench grinder in the shop in violation of Standard 29 CFR 1910.215(a)(2).
It was alleged that respondent failed to provide a work rest on the bench grinder located in the shop in violation of Standard 29 CFR 1910.215(a)(4).
It was alleged that respondent failed to comply with National Electrical Code Article 110-17(a) as adopted by Standard 29 CFR 1910.309(a). It was alleged that this standard [*20] was violated by failure to guard all live parts of electrical equipment throughout the terminal area. Complainant stated that complainant does not contend that said violation occurred in the air conditioning room.
It was alleged that all of the aforesaid violations were not abated by July 29, 1974, the date at which abatement was required and that additional penalties should be assessed as follows: For violation of Standard 29 CFR 1910.23(d)(1)(iii) $500, 29 CFR 1910.106(e)(9)(iii) $500, 29 CFR 1910.157(a)(5) $500, 29 CFR 1910.215(a)(2) $500, 29 CFR 1910.215(a)(4) $500, 29 CFR 1910.309(a) $790, making a total penalty of $3,290 for failure to abate.
As a result of second inspection of the premises it was alleged that respondent had committed the following additional violation: Failure to store flammable or combustible liquids in tanks or closed containers in that an open can was being used in the shop for storing gasoline in violation of Standard 29 CFR 1910.106(e)(2)(ii). No penalty was proposed for said violation. Respondent concedes the allegation of said violation.
It was further alleged that said second inspection revealed failure to post citations of July 2, 1974 in violation [*21] of Standard 29 CFR 1903.16. A penalty in the amount of $500.00 was proposed for said violation.
EVIDENCE IN THE CASE
The respondent in its answer admitted that respondent is a corporation having a place of business and doing business at Fanning Road, Pearl, Mississippi where it has been and is engaged in Interstate transportation of motor freight to and from points located outside the state of Mississippi. Respondent admitted that at all relevant times respondent was engaged in a business affecting commerce within the meaning of the Act.
At the beginning of the hearing the parties stipulated that dispatcher Jerry Jones, if called to testify, would testify that during the period from July 29, the abatement date in the original citation, to August 5, the date of reinspection, employees of respondent were engaged in their customary duties and would have been working in and around the alleged violations except that complainant would not introduce evidence to show the air conditioner room had an exposed electrical box (TR 6, 7 and 9). The complainant stated at the beginning of the hearing that complainant no longer maintained that respondent violated the act by having an exposed [*22] electrical box in the air conditioning room.
Mr. Dennis Butler, the compliance officer for the respondent, testified that he had been employed by the State Board of Health for in excess of 20 years, six of which had been in their accident prevention program for State Employees. He taught safety, gave television programs and seminars, and engaged in other similar activities. He also worked for eight years inspecting industries throughout the state. He was employed one year by the Occupational Safety and Health Administration (TR 10, 11).
Mr. Butler testified that on July 2, 1974 he inspected respondent's premises at Pearl, Mississippi. He found handrails on only one side of the stairs leading up to the loading docks. There was an open stairway (TR 16, 17). A picture of said steps was introduced as a part of complainant's Exhibit 1. On reinspection of the premises on August 5, he found that no additional handrails had been installed (TR 40). There was one handrail on each of the steps but not a handrail on both sides. A representative of the respondent told Mr. Butler that he had contacted someone to install them, but, Mr. Butler stated, at that time they had not been installed [*23] (TR 40).
Mr. Charles L. Mosley, Assistant Terminal Manager of respondent, testified that he told Mr. Buddy Cheek, a mechanic in the body shop, to call Shacks Welding Service and ask that handrails be installed on both sides of the steps and also a toeboard around the storage area (TR 64). Mr. Cheek confirmed the fact that he was so instructed and stated that he immediately called Mr. Cook at Shacks Welding Service and requested Mr. Cook to come over to the respondent's place of business and get measurements. Mr. Cook did come and take the measurements. Mr. Cook told him, however, "I can't tell you just for sure when we can get it. We are just tied up." Mr. Cheek told Mr. Cook that it was necessary to secure it as soon as possible because they had a deadline to meet, although he did not tell Mr. Cook what the deadline was (TR 83). The respondent has used Shacks Welding Service as long as the respondent has been at that location (TR 83). Said Shacks Welding Service is located next door to respondent and in the past has given satisfactory service (TR 84). Mr. Cheek testified that he kept after Mr. Cook almost every day after that to get it done.
Mr. Cook testified that he is [*24] a welder working for Shacks Welding Service (TR 54). He confirmed the fact that Mr. Cook had called him and wanted some handrails installed on steps around the platform of the building (TR 55). He stated that Mr. Cheek told him that it was a safety device that had a deadline. Mr. Cook told Mr. Cheek he would secure it as quickly as possible (TR 55). No specific date was discussed (TR 55). Mr. Cook stated that Mr. Cheek came by every few days inquiring as to when the handrails were going to get fixed. Mr. Cook started actually working on the handrails on August 9 (TR 55, 56). He stated they had performed other services for the respondent and the respondent looks to them for welding (TR 56). He did not tell Mr. Cheek what the minimum time for building it would be (TR 57). Mr. Cook stated that he was "awfully busy and we couldn't get any help and just told him that we would get it as quick as we could." (TR 57).
Mr. Butler also testified that at the time of the original inspection there was no cover for a can in the tool room which can contained oily rags. There was a danger of spontaneous combustion in a heat change which could cause a fire (TR 18). At the time of the second [*25] inspection there was still no lid on the can (TR 43). A mechanic secured a lid from the opposite end of the building (TR 44).
Mr. Mosley testified that Mr. Cheek was on vacation at the time of the initial inspection and returned approximately a week later. Immediately upon Mr. Cheek's return, Mr. Mosley instructed him to secure a covered metal can for the oily rags in the shop and this instruction was complied with prior to the abatement date (TR 65, 80). He testified that the can was covered during the period from July 29, the date of abatement, to August 5, 1974, the date of the second inspection and is still covered (TR 80). Mr. Cheek testified that he was instructed on July 9, 1974 to start putting rags in a container and put a top over it. He did get a lid to fit the can and welded the handle on it so it could be lifted up and down. This was done very shortly after July 9, 1974 and prior to July 29, 1974, the abatement date (TR 84, 85). The top to the can, according to Mr. Cheek, is still there on top of the can. A rag man comes through the department. If Mr. Cheek is going to be out the rag man sets the can outside. A man dumps all the rags out and counts them. A [*26] substantial part of the time he will kick the bucket back inside of just set it down (TR 85). The can was inside the little office where they keep tools at the time of the second inspection. The lid was outside the door where the rag man had come by, and the rag man had not replaced the lid. Mr. Cheek stated he put the lid on every time someone came by there and left if off (TR 86). He stated there was one rag man that would keep the lid off all the time, making it necessary for Mr. Cheek to come back by and put the lid on (TR 86). Mr. Cheek issued instructions more than once to keep the lid on (TR 86). The can, with the lid on it, was used between the abatement date of July 29, 1974 and the date of second inspection, August 5, 1974 (TR 86).
Mr. Butler testified that at the time of the original inspection, two fire extinguishers were on the floor, one in the east part of the building and one in the northeast part of the building. On the second inspection, they were still on the floor but had been placed in a different position (TR 18, 24, 39). On the second inspection he did not happen to observe any wall brackets or mountings along any of the three walls although he was [*27] told some had been put up (TR 40).
Mr. Mosley testified that he instructed Mr. Truitt Williamson, a serviceman working for the respondent to mount fire extinguishers. These instructions were issued the day of the first inspection (TR 66). Mr. Mosley observed Mr. Williamson erect same (TR 66). Mr. Mosley testified that brackets for fire extinguishers were installed and fire extinguishers were mounted the entire time from July 29 through August 5, 1974.
Mr. Williamson testified that Mr. Mosley told him the day of inspection to "get it all done" (TR 91). Mr. Williamson hung the fire extinguishers the same day. He stated that they are still there, and they were there from July 29 through August 5, 1974. Mr. Williamson stated, however, that he was not at the premises on the date of the second inspection on August 5, 1974. Mr. Mosley instructed him that the fire extinguishers were supposed to be on the brackets when not in use and if they were on the floor on August 5, 1974, he did not know how they got there (TR 92, 93).
Mr. Butler testified that on the first inspection there was a small bench grinder sitting in the back of the shop that had no flange guards or tool rests on it. [*28] On the other end of the grinder there was a small wire brush on which there was no tool rest and no tool spindle end nut guard (TR 19). On the second inspection the bench grinder was in approximately the same area as on the first inspection but there still was no guard on the grinder rock or tool rest (TR 19). He stated that on the grind rod's side there were some fresh looking metal shavings under the rock where the little cup-like part of the housing was placed, indicating someone had used it (TR 19, 20). He stated that on July 2, 1974 there was no tool rest or work rest on the grind rod itself. On the second inspection there had been no change (TR 20).
A work rest is needed to keep the object grinded from getting wedged between the rod and the housing of the motor or rock. A tool could wedge and burst the rod (TR 20). A guard is needed to keep the rock, in case it explodes or any explosion happens, from flying apart and out in every direction and injuring employees in the work area. He stated that they do explode and, when they do, it's almost like a bullet. Some of them run around 1700 to 1800 r.p.m. It is necessary to keep the rod inside the guard (TR 20, 21). He [*29] stated that although shavings on the cover indicated it had been used the employee said he didn't use it. He said, "He didn't use the thing." Mr. Butler did not notice on the first inspection whether the machine was plugged into the electric outlet or not and he was not certain whether it was plugged in on the second inspection (TR 38).
Mr. Mosley first stated that he did not know for certain but that he did not think the bench grinder in the shop was being used (TR 61). He discussed with Mr. Cheek the question of a guard on said machine. He stated Mr. Cheek told him the grinder was not being used but the rock was worn out, the motor was weak, it was not being used, and that he unplugged the grinder, wrapped the plug around it and tied the cord (TR 66, 67). He stated the employees were aware of the fact that the grinder was not to be used. They were instructed not to use it by Mr. Mosley. He stated this instruction was given at the first inspection. He so instructed Mr. Truitt Williamson on July 2, and he instructed Mr. Cheek as soon as he got back from his vacation which was July 9, 1974 (TR 67, 68). He was not certain whether it had been used prior to the first inspection [*30] (TR 68). He gave instructions to disconnect the cord on the grinder. He was not sure of the date but believes it to be July 9, 1974 (TR 76). It was not done in his presence, but he inspected it a week or so later and saw that it had been done. The cord was wound up at the time of the second inspection (TR 76, 77). He stated, however, that Mr. Jones, the dispatcher, inspected it, and he, Mr. Mosley, did not personally do so (TR 77). He disputed the contention that the grinder was in use between the first and second inspection (TR 77, 81).
Mr. Cheek testified that the day of the first inspection the cord was unplugged and rolled around and around the machine and he told employees whatever they did not to use it (TR 86, 87). He stated the rock and brushes were worn out. It was too weak and worn out to use (TR 87). He could not turn it. The last time it was used was before his vacation, the latter part of June, 1974. It was not used subsequent to the time he came back from his vacation (TR 87, 88). He stated the cord was still rolled up. He plans to return it as salvage to the home office in Dallas, Texas. He is not on the job at night to see if it is used. The cord was [*31] still wound up the day of the second inspection (TR 88, 89).
Mr. Butler testified that on July 2, 1974 he found approximately 14 electrical plugs and outlets around the terminal and all had either the box broken loose from the wall or the faces off of them exposing live electrical terminals. Most of those exposed were on the dock area. A remote switch which was required for the gas pump out in the yard and also some kind of an electrical control panel adjacent to it, both had covers off exposing live wires (TR 22). Photographs showing the electrical panels were part of Exhibits 1 and 2 (TR 22, 24). Complainant's Exhibit 1 consisted of photographs made during the August 5, 1974 inspection. Exhibit 2 pertained to the July inspection (TR 23). Mr. Butler testified that one of the photographs on Exhibit 1 showed what he was told by Mr. Jones to be the electrical switch to the gas pump outside. Mr. Jones was the dispatcher and the company's representative during the inspection (TR 25). He stated that the top photograph on Exhibit 2 was taken August 5 and showed the same outlet switches from a little closer view (TR 26). Mr. Mosley stated that he instructed Mr. Williamson to secure [*32] the necessary parts and correct the electrical equipment. Mr. Williamson replaced the covers on the receptacles on the dock and also on the junction boxes and the ones that didn't have covers he placed covers on (TR 74). Mr. Mosley stated that in normal operations only Mr. Mosley and a dock foreman or dispatcher would come in contact with the boxes. He stated the security guard also came in contact with them by turning the dock lights on or off or turning the inside lights on or off, or turning the flood lights on the outside on or off (TR 75). About 13 employees were on duty at one time on the docks. Face plates for the plug-ins were provided and installed prior to July 29 and remained there every day between July 29 and August 5, 1974 the date of the second inspection (TR 79, 80). He stated that electrical outlets were covered (TR 80, 81). This was confirmed by Mr. Williamson. However, Mr. Williamson stated that he was not there on August 5, the day of the second inspection (TR 95, 96). Mr. Williamson testified that Mr. Mosley told him to go around and see what was needed with reference to electrical outlets and to get the necessary parts and put them on (TR 93). He stated [*33] that he did so and has fixed them twice since then (TR 93). He got electrical covers and plugs that go inside the junction box. He stated they had one junction box that had since broken off (TR 93, 94). He started securing them in the week of July 9, 1974, the week that Mr. Cheek returned. He put every cover on including covering the gas pump switches (TR 95). He stated they all had been corrected, but that they could have been knocked off subsequent to being corrected (TR 95, 96).
Mr. Butler testified that Mr. Mosley told him he, Mr. Mosley, didn't know whether or not the citation had been posted. They therefore looked to see if it had but, upon looking on the bulletin board, found it was not posted. The citation had been properly mailed to the respondent (TR 42, 43). Mr. Mosley testified that the citations of July 2, 1974 were posted on the bulletin board in the lunchroom for a three day period. He instructed Miss Kathy Pervis, a general office clerk, to post it. He subsequently instructed her to remove the citations and enclose them with the letter he sent to the Area Director of respondent. He stated in the letter that the citations with the proposed penalties had [*34] been corrected (TR 70, 71). He testified he was not familiar with the Occupational Safety and Health Act until the first inspection (TR 72).
Miss Kathy Pervis testified she was employed by respondent as general office clerk at the time of both inspections and worked for respondent until September 20, 1974. She is now laid off (TR 96, 97). Mr. Mosley told her to post the first citation on the bulletin board which she did. It remained for three days. Mr. Mosley instructed her to remove it. She typed a letter to the Occupational Safety and Health Administration stating that abatement had been accomplished for all citations which carried penalties. The citation which had been posted was forwarded to the respondent with said letter.
Mr. Butler testified that at the time of the second inspection there was an open can without a lid on it located at the front of the building. He picked the can up, and it smelled like gasoline. The man said they used it for gassing up trucks (TR 42). Mr. Mosley testified that the respondent has a weekly safety program. The attorney in the general office in Dallas held a conference with all terminal managers and told them to get each terminal in [*35] order so far as the act was concerned. Mr. Mosley said he received a copy of the act, the Federal Register and one other item from the home office. Mr. Butler also left him material which he read (TR 73, 74).
EVALUATION OF THE EVIDENCE
It is conceded that the handrails on the stairs were not installed et the time of the second inspection. It will be noted that the respondent did make a rather substantial effort to meet the abatement date in installation of the handrails. The respondent very promptly contacted the Shacks Welding Service with whom they constantly did business and instructed them to install the handrail. Said company was advised that a deadline had to be met and that the matter was urgent. The undisputed testimony is also to the effect that the respondent constantly pressed the welding company to install the handrails and that inquiry was made at least every other day. This is not only testified to by respondent but is confirmed by Mr. Cook of Shacks Welding Service. The availability or lack of availability of other companies to perform this service is not reflected in the record. This judge takes judicial notice of the fact that Pearl, Mississippi, is [*36] a community of approximately 10,000 people. There would not, therefore, be as many companies available to perform this service as would be ture if the respondent's operation was in a major city.
It is the opinion of this judge, however, that the respondent, having conceded that the requirement for abatement had not been met, had the burden of establishing impossibility of performance. It was therefore incumbent upon respondent to establish that respondent could not have looked elsewhere to have said handrails installed. Under these circumstances the respondent does appear to be in further violation by failing to install handrails by August 5, 1974.
Under all circumstances, however, it appears that a further penalty in the amount of $500 for this violation is far too high. Such a penalty would have been justified had the respondent made no substantial effort to comply. It appears that the respondent made considerable effort to comply and not only promptly instructed that the handrails be erected but constantly pressed that it be done more expeditiously. It further appeared that the hazard to the employees was not very great. Photographs introduced in evidence to establish [*37] that handrails were not erected show only a few steps and a very small elevation and it is unlikely that a fall from this level would have very serious consequences. In view of all the above mitigating circumstances, it would appear that an additional penalty in the amount of $100 is adequate.
It appears that the allegations of failure to abate the violation of Standard 20 CFR 1910.106(e)(9)(iii) by failing to maintain a cover on a metal container for oily rags has been sustained. The evidence establishes that the respondent did promptly secure a top for the can. Mr. Butler testified, however, that at the time of inspection on August 5, 1974, the top was not on the can, and it was necessary for an employee to go down the hall and get the top and replace it on the can. The assistant terminal manager, Mr. Mosley, testified that he instructed Mr. Cheek to secure a covered metal can for the oil rags in the shop and that this was done. This was substantiated by Mr. Cheek. Mr. Cheek testified, however, that the rag man came by and took rags out of the can. Apparently, the lid is then often left off. Mr. Cheek indicated that the lid was frequently off because he stated that he put [*38] the lid on. He stated that there was one employee who kept the lid off all the time necessitating Mr. Cheek's replacing it. Although Mr. Cheek testified that he instructed the employees more than once to have the lid on the can, this instruction was frequently honored in its breach. It was the responsibility of the respondent to enforce its safety orders and the fact that its employees frequently ignored those orders is not a reason justifying a failure to properly abate. Securing a top and placing it on a can did not constitute abatement unless the top was kept on the can. The evidence would indicate that this never was done consistently. Mr. Butler testified that rags in such can could be very flammable and that a hazard did exist to employees. Employees of the respondent admittedly worked in the area where they could have been injured in the event a fire started.
It is probable, however, that a fire starting in the can could have been reasonably well contained. The can itself would have tended to confine the area to which a fire would have spread. It also is apparent that some effort was made to comply even though the effort was inadequate. The top was secured and the [*39] company's supervisors did place the top on the can every time they saw it off. These factors do not constitute an excuse for failure to completely abate but do constitute some mitigation. The respondent in its brief cites the case of Standard Glass Company, Inc. 1 OSAHRC 594 (1972) as authority for its position that the respondent should not be found to have failed to abate because of the disobedience of its orders by its employees. Said case of Standards Glass Company, Inc. is clearly distinguishable from the case at bar. In the case of Standard Glass Company, Inc., there was one single isolated incident lasting perhaps five minutes and the evidence established that there was no way in which the supervisors of the respondent could have known that it was going to occur or that it had occurred. In the case at bar, according to the testimony of Mr. Cheek, there were frequent instances in which the can did not have a top on it, and this situation was known to Mr. Cheek and observed by him. According to Mr. Cheek, one employee constantly violated the instructions with reference to putting the top on the can. There is no indication that any disiplinary action for this breach of [*40] orders was even taken against said employee or any other employee.
In view of the fact that the hazard was not great and that the respondent did make an attempt, although an inadequate attempt, to comply with the requirement to abate, an additional penalty of $500.00 is excessive. A penalty in the amount of $150.00 would, under the circumstances of this case, be adequate.
In the opinion of this judge the allegations of violation of Standard 29 CFR 1910.215(a)(2) and violation of Standard 29 CFR 1910.215(a)(4) have not been sustained. As above noted, it was alleged that Standard 29 CFR 1910.215(a)(2) was violated by failure to provide a guard over the spindle end nut and flange projections of the bench grinder in the shop. It was alleged that Standard 29 CFR 1910.215(a)(4) was violated by failure to provide a work rest on said bench grinder. The evidence in the case convinces this Judge that at the time of the second inspection on August 5, 1974, neither said guards nor said work rest existed on the bench grinder. The respondent does not contend that the guards and work rest were provided. Both Mr. Mosley and Mr. Cheek, however, testified that the bench grinder was too weak [*41] to use, they could not turn it, said grinder was too worn out to use, and, as a result of these factors, the employees were instructed not to use said grinder. It is true that Mr. Mosley and Mr. Cheek were not present at all shifts. There is no evidence that instructions were violated, and this judge is of the opinion that a prima facie defense has been established. The compliance officer, Mr. Butler, testified that there were recent shavings which indicated use. The inspection was made only one week after the expiration of the abatement date, and it is only possible to guess as to the age of the shavings. To hold that the machine had been used since the abatement date would be to decide the case on pure speculation rather than on fact. The shavings are the only alleged evidence of use. It has been repeatedly held by the Review Commission that an employee must be exposed to hazards for a violation to exist. If the grinder was not in use, no employee was imperiled by the failure to have a guard or work rest, and the respondent has abated the problem by taking the faulty machine out of use.
As above noted, it is alleged that respondent did not abate violation of Standard [*42] 29 CFR 1910.157(a)(5) in that respondent failed to keep fire extinguishers properly mounted in cabinets, in brackets, or placed on shelves. The evidence of Mr. Butler for the complainant is that at the time of the follow-up inspection the fire extinguishere were on the floor. This fact is borne out by photographs introduced in evidence. It must therefore be concluded that at the time of inspection the fire extinguishers were not mounted or elevated. Mr. Williamson testified that he was instructed by Mr. Mosley to mount the fire extinguishers and that he placed the brackets and mounted the fire extinguishers the same day. He testified they were still there between the abatement date and the day of inspection, although Mr. Williamson was not present on the date of the second inspection and, therefore, was not in a position to testify as to whether the fire extinguishers were mounted on that date. Any issue of fact as to this issue is resolved by the photograph taken at the time of the second inspection which clearly showed the fire extinguishere on the floor.
The inspection was made within 5 days of the abatement date. To have inspected prior to the abatement date would have [*43] been to act prematurely. It is not adequate to mount the fire extinguishers temporarily, but it is necessary that they be maintained in a mounted condition. In the opinion of this Judge, mounting fire extinguishers on the wall and then letting them very promptly be removed and replaced on the floor is not an abatement of the violation.
The respondent cites the case of Kit Manufacturing Company OSHARC Docket No. 603 (1973) decided by Judge Carl Watkins. A review has been ordered in this case and, therefore, it connot be treated as precedent. Aside from this fact, said case does not sustain the position of respondent. In the Kit Manufacturing Company case, it was found that the employees were not, after the abatement date, exposed to the hazards. In the case at bar, the employees were still working in the area where they could have been injured by a fire.
The fact that some effort was made to comply does, however, constitute some mitigation as to penalty. It should further be considered that the difference in hazard in the event of a fire between a fire extinguisher on the wall and a fire extinguisher readily at hand and easily accessible on the floor is extremely slight. [*44] An additional penalty in the amount of $100.00 would appear to be adequate.
It was further alleged that respondent failed to abate violation of Standard 29 CFR 1910.309(a) in that respondent failed to guard all live parts of electrical equipment throughout the terminal area. Complainant does not maintain that said violation occurred in the air conditioning room. Mr. Butler testified that on July 2, he found approximately 14 electrical plug-ins and outlets on which the boxes were broken loose from the wall exposing live electrical terminals. He stated that the electrical control panel had the cover off exposing live wires and that on the first inspection the remote switch required for the gas pump in the yard was exposed. The photograph taken July 2 showing the electrical control panels on the dock and the electrical switch for the gas pump with wires exposed was introduced in evidence. Another photograph taken August 5 showed the same outlet switches still exposed. The respondent testified that the proper covers were ordered to be erected and were actually erected promptly after the first inspection. Said photograph taken August 5, establishes that on the date of the second [*45] inspection there was not complete compliance. To put a cover in place and then promptly remove it or permit it to be knocked off and remain off is not a genuine abatement of the violation. Electrical current is a very dangerous thing. Every precaution should be taken to insulate employees working around the electrical wires from any possible hazard. It is incumbent upon the respondent not merely to place a cover over the wires, but it is equally the responsibility of the respondent to keep them there. The proposed penalty of $790 appears proper.
Although there were two alleged new violations discovered on August 5, 1974, the respondent contested only one and, therefore, only one is before this Judge. It is alleged that the respondent failed to post citation of July 2, 1974 in violation of Standard 29 CFR 1903.16.
The evidence establishes that said notice was posted for three days and then mailed to the Area Director. The Standard provides that a citation must remain posted until the violation has been abated or for three working days, whichever is later. The respondent mailed a letter to the Area Director stating that all of the citations carrying a penalty had been abated. [*46] The facts, however, do not sustain said statement. The evidence does indicate, however, that the respondent may well have been in good faith in making said statement. An attempt at abatement was made although the attempt was inadequate. The fact that the citation which had been posted was mailed to the Area Director is an indication to this Judge that the respondent was not seeking to ignore or defy the law, which is a mitigating factor. The fact remains, however, that the law requiring posting was not adequately complied with. A penalty in the amount of $500.00 appears excessive and this Judge is of the opinion that a penalty in the amount of $100.00 is adequate.
As above stated the respondent concedes that it violated Standard 29 CFR 1910.106(e)(2)(ii) by failing to store flammable or combustible liquids in tanks or closed containers.
FINDINGS OF FACT
1. Respondent is a corporation having a place of business and doing business at Fanning Road, Pearl, Mississippi where it is engaged in interstate transportation of motor freight to and from points located outside the state of Mississippi.
2. On or about July 2, 1974 respondent failed to install handrails on both sides [*47] of the stairs leading up to the loading dock on the north and south sides of its terminal in Pearl, Mississippi. A citation issued on July 3, 1974 alleging said acts to be a violation of Standard 29 CFR 1910.23(d)(1)(iii) and said citation became the final order of the Commission on or about July 26, 1974. The abatement date was July 29, 1974.
3. Respondent promptly after the issuance of said citation and before the abatement date contracted for said handrails to be installed.
4. On August 5, 1974 at the time of the second inspection by complainant respondent had not installed said handrails.
5. On or about July 2, 1974 respondent failed to provide a covered metal container for oily rags in the shop. On July 3, 1974 citation issued alleging said actions to be a violation of Standard 29 CFR 1910.106(e)(9)(iii), said citation becoming a final order of the Commission on or about July 26, 1974. The abatement date was July 29, 1974.
6. Within a week of the issuance of said citation the respondent secured a metal covered container for the oily rags, but the cover for said container was frequently not on said container, and it was not on said container on August 5, 1974, the [*48] date of the second inspection.
7. On or about July 2, 1974 respondent failed to install in wall brackets, mount in cabinets or place on shelves the two fire extinguishers in the shop, said fire extinguishers at that time being on the floor. On July 3, 1974 a citation issued alleging said action to be a violation of Standard 29 CFR 1910.157(a)(5). This citation became a final order of the Commission on or about July 26, 1974. The abatement date was July 29, 1974.
8. On August 5, 1974, at the time of said second inspection by complainant, the respondent had erected wall brackets and placed said fire extinguishers in the brackets, but they did not remain in the brackets at all times and were on the floor at the time of said inspection.
9. On or about July 2, 1974 the respondent failed to provide a guard over the spindle end nut and flange projections of the bench grinder in the shop. Citation issued on July 3, 1974 alleging said action to be a violation of Standard 29 CFR 1910.215(a)(2). The abatement date was July 29, 1974.
10. A guard was not placed on said bench guards by August 5, 1974.
11. Following said inspection of July 2, 1974 and prior to said abatement date of [*49] July 29, 1974 said bench grinder was disconnected and was not used by the employees of the respondent.
12. On or about July 2, 1974 respondent failed to provide a work rest on said bench grinder located in the shop. On July 3, 1974 citation issued alleging said action to be a violation of Standard 29 CFR 1910.215(a)(4). The abatement date was July 29, 1974.
13. A work rest was not placed on said bench grinder by August 5, 1974.
14. Subsequent to said inspection of July 2, 1974 and prior to the abatement date of July 29, 1974 said bench grinder was disconnected and was not used by the respondent's employees.
15. On or about July 2, 1974, except in the air-conditioning room, respondent failed to guard all live parts of electrical equipment throughout the terminal area including electrical plug-ins and outlets having boxes broken loose from the wall or the bases thereof. An additional electrical control box and the remote switch required for operation of the gas pump in the yard were improperly exposed with no covers over live wires contained therein. On July 3, 1974 citation issued alleging said actions to be a violation of the National Electrical Code Article 110-17a as [*50] adopted by Standard 29 CFR 1910.309(a). The abatement date was July 29, 1974.
16. The respondent following the inspection of July 2, 1974 placed covers over said wiring but did not maintain the covers upon same at all times.
17. On August 5, 1974 at the time of the second inspection by complainant certain of said boxes and wires were not covered.
18. The respondent posted the citation of July 2, 1974 for three days and then mailed said copy of citation to the Area Director of complainant.
19. At the time that said posting was terminated the respondent had not completely abated said violations.
20. The respondent on August 5, 1974 used an open can in the Shop for storing gasoline.
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. Respondent failed by August 5, 1974 to abate said violation of Standard 29 CFR 1910.23(d)(1)(iii).
3. Respondent failed by August 5, 1974 to abate said violation of Standard 29 CFR 1910.106(e)(9)(iii).
4. Respondent failed by August 5, 1974 to abate said violation of Standard 29 CFR 1910.157(a)(5).
5. Respondent failed [*51] by August 5, 1974 to abate said violation of Standard 29 CFR 1910.309(a).
6. Prior to the abatement date of July 29, 1974 respondent abated the violation of Standard 29 CFR 1910215(a)(2).
7. Prior to the abatement date of July 29, 1974 respondent abated the violation of Standard 29 CFR 1910.215(a)(4).
8. Respondent failed to post citation of July 9, 1974 for the time required by law in violation of Standard 29 CFR 1903.16.
9. Respondent on August 5, 1974 violated Standard 29 CFR 1910.106(e)(2)(ii) by storing gasoline in an open can.
ORDER
It is therefore ordered that:
Respondent failed to abate by the abatement date of July 29, 1974 the violation of Standard 29 CFR 1910.23(d)(1)(iii). A penalty in the amount of $100 is assessed for said failure to abate.
Respondent failed to abate by August 5, 1974 the violation of Standard 29 CFR 1910.106(e)(9)(iii). A penalty in the amount of $150.00 is assessed for said failure to abate.
Respondent failed prior to August 5, 1974 to abate the violation of Standard 29 CFR 1910.157(a)(5). A penalty in the amount of $100.00 is assessed for said failure to abate.
Respondent failed prior to August 5, 1974 to abate the violation of [*52] Standard 29 CFR 1910.309(a). A penalty in the amount of $790.00 is assessed for said failure to abate.
The allegation of failure to abate the violation of Standard 29 CFR 1910.215(a)(2) is dismissed.
The allegation of failure to abate the violation of Standard 29 CFR 1910.215(a)(4) is dismissed.
Respondent by failing to post citations of July 2, 1974 for the length of time required by law violated section (5)(a)(2) of the Act and Standard 29 CFR 1903.16. A penalty in the amount of $100.00 is assessed for said violation. The requirement that said violation be abated by August 30, 1974 is affirmed.
Respondent by storing gasoline in an open can in the shop violated Standard 20 CFR 1910.106(e)(2)(ii). No penalty is assessed for said violation. The requirement that said violation be abated by August 30, 1974 is affirmed.
Dated this 19th day of February, 1975.
JOHN S. PATTON, Judge, OSHRC