AUTOMOTIVE PRODUCTS CORPORATION
OSHRC Docket No. 988
Occupational Safety and Health Review Commission
May 23, 1974
Before VAN NAMEE and CLEARY, Commissioners
CLEARY, COMMISSIONER: On December 18, 1972, Judge Henry K. Osterman issued his decision in this case.
On January 18, 1973, review by the Commission of the Judge's decision was ordered pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., (hereinafter "the Act") on the single issue of whether the citation was issued with "reasonable promptness" as required by section 9(a) of the Act. This is the only issue briefed by the Secretary and respondent did not file a brief in response to the direction for review.
The Commission has reviewed the entire record and finds no prejudicial error in the Administrative Law Judge's decision.
The issue of "reasonable promptness" was raised for the first time in the direction for review. It was not raised before or during the hearing, and the issue is not something jurisdictional to be raised at any stage of the proceedings or considered by the Commission even though it is not raised by the parties. See the majority opinion subscribed by Commissioner Van Namee and Chairman Moran in Chicago Bridge & Iron Co., No. 744 (January 24, [*2] 1974). It is now well settled that under these circumstances the issue should not be examined. E.g., Morrison-Knudsen Co. & Assoc., No. 692 (March 28, 1974); Advance Air Conditioning, No. 1036 (April 4, 1974).
In view of the absence of prejudicial error, the Administrative Law Judge's decision is affirmed in all respects.
[The Judge's decision referred to herein follows]
OSTERMAN, JUDGE, OSAHRC: This is a proceeding initiated by the Automotive Products Corporation, the Respondent herein, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereafter called the Act) to contest a Citation dated May 24, 1972 enumerating sixteen non-serious violations and a Notification of Proposed Penalty, dated May 24, 1972, issued by the Secretary of Labor against Respondent pursuant to Section 9(a) of the Act.
The regulations allegedly violated and the pertinent portions thereof; the abatement dates; and the penalties proposed by the Secretary are as follows:
Item No. -- Violation -- Abatement Date -- Proposed Penalty
1. -- 29 C.F.R. 1910.242(a) provides that compressed air used for cleaning purposes shall not exceed 30 p.s.i. [*3] and only with chip guarding equipment. -- 6-6-72 -- None
2. -- 29 C.F.R. 1910.26(c)(2)(vii) n1 provides that defective ladders are to be marked and taken out of service until repaired. -- 5-26-72 -- None
3. -- 29 C.F.R. 1910.315(n)(4) provides that junction boxes and outlet boxes shall be provided with covers. -- 6-6-72 -- None
4. -- 29 C.F.R. 1910.37(q)(6) provides that exit signs shall be illuminated by a reliable light source. -- 5-27-72 -- None
5. -- 29 C.F.R. 1904.2 provides that each employer shall keep a log of occupational injuries and illness on OSHA Form 100 or in another manner if approved in accordance with 29 C.F.R. 1904. 13. -- 5-25-72 -- $100.00
6. -- 29 C.F.R. 1904.4 provides that each employer shail keep a supplementary record of occupational injuries and illnesses on OSHA Form 101. -- 5-25-72 -- 100.00
7. -- 29 C.F.R. 1904.5 provides that each employer shall compile an annual summary of occupational injuries and illnesses on OSHA Form 102 and shall maintain the summary at its place of business. -- 5-26-72 -- 100.00
8. -- 29 C.F.R. 1910.219(c)(2) provides that all horizontal shafting, seven feet or less from the floor, shall be protected by casing [*4] which completely encloses the shafting. -- 6-1-72 -- None
9. -- 29 C.F.R. 1910.141(f) requires that an employer shall provide a retiring room for female employees where 10 or more women are employed at any time. -- 6-23-72 -- None
10. -- 29 C.F.R. 1910.30(b)(1) provides for the placement of machines so that there is sufficient clearance between them to allow operators to work without interference with one another. -- 6-23-72 -- 40.00
11. -- 29 C.F.R. 1903.2 provides that an employer shall post a notice or notices furnished by the OSHA informing employees of the protection and obligations provided by the Act. -- 5-25-72 -- $50.00
12. -- 29 C.F.R. 1910.176(a) provides that permanent aisles shall be appropriately marked where mechanical equipment is used. -- 6-11-72 -- 40.00
13. -- 29 C.F.R. 1910.178(e)(1) provides that High Lift Rider trucks shall be fitted with an overhead guard. -- 6-23-72 -- None
14. -- 29 C.F.R. 1910.157(a)(2) provides that fire extinguishers shall be kept readily available for use in the event of a fire. -- 5-27-72 -- None
15. -- 29 C.F.R. 1910.157(d)(4)(viii) provides that the hydrostatic test date shall be displaced on each fire extinguisher in a plant. [*5] -- 6-23-72 -- None
16. -- 29 C.F.R. 1910.141(c)(2) provides that toilet facilities shall have separate compartments with doors, latches, and clothes hangers. -- 6-1-72 -- None
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n1 The regulation violated was stated in the Citation to be 29 CFR 1910(25)(d)(i)(x) but was amended in the Complaint to read as it appears above.
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On June 6, 1972 Respondent filed a Notice of Contest challenging the Citation in its entirety. The Secretary's Complaint was filed on June 19th. Respondent requested and received an extension of time within which to respond to the Complaint. An Answer was filed on August 7th. A pre-hearing conference and a hearing was held in Chicago, Illinois on October 3, 1972. Complainant and Respondent were represented by counsel. The employees' union did not file an appearance and was not represented at the hearing (Tr. 18). Briefs were submitted by both parties.
By stipulation read into the record of the hearing by counsel for Complainant, the Respondent conceded inter alia the [*6] jurisdiction of the Secretary of Labor and this Commission over the Respondent corporation for the purposes expressed in the Occupational Safety and Health Act of 1970 (Tr. 2-4). n2 Respondent also withdrew his contest of the violations charged in Items 1 through 4 inclusive and Items 8, 9, 10, 11, 12, 13, 14, 15, and 16 of the Complaint and agreed that the abatement dates specified with respect to all items in the Citation, except Item 10, are reasonable (Tr. 4-12; Resp. Br. 2, 4). With respect to Item 10 it was conceded by Respondent that the violation existed but it was stipulated that because of the possibility of condemnation proceedings affecting Respondent's property the abatement date would be extended for a period of 60 days (until December 3, 1972), with the further agreement that Respondent would report to the Complainant his progress with respect to abatement of this violation thirty days from the date of this hearing (Tr. 11-12; Resp. Br. 4).
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n2 Also admitted in Respondent's Answer.
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As a consequence [*7] of the concessions and stipulations described above the issues remaining to be tried were the following.
1. Whether Respondent on February 15, 1972 was in violation of 29 C.F.R. 1904.2 [Item 5 -- failure to maintain a log of injuries and illnesses on OSHA Form 100 or in some other manner which has been approved in accordance with 29 C.F.R. 1904.13].
2. Whether Respondent on February 15, 1972 was in violation of 29 C.F.R. 1904.4 [Item 6 -- failure to have available a supplementary record of occupational injuries and illnesses on OSHA Form 101 or other acceptable form].
3. Whether Respondent on February 15, 1972 was in violation of 29 C.F.R. 1904.5 [Item 7 -- failure to compile and maintain an Annual Summary of Occupational Injuries and Illnesses on OSHA Form 102] (Tr. 13).
4. Whether Respondent is required to pay the proposed penalty for its violation of 29 C.F.R. 1903.2 [Item 11 -- Failure to post notice "Safety and Health Protection" at its work place] (Tr. 31-32).
The undersigned also requested sua sponte that evidence be presented on Items 8 and 13 of the Citation i.e.; 29 C.F.R. 1910.219(c)(2) [Respondent's failure to provide casing on a horizontal shaft] [*8] and 29 C.F.R. 1910.178(e)(1) [Respondent's failure to provide an overhead guard on a lift truck] (Tr. 30, 38).
Evidence introduced by the Complainant disclosed that on February 15, 1970, a compliance officer employed by the Complainant made an inspection of the Respondent's plant at 1351 South Cicero Avenue, Chicago, Illinois. He was accompanied during his inspection by one Don Kellner, an employee of the Respondent corporation and the employee representative at the plant (Tr. 16-17). At the conclusion of his tour of inspection the compliance officer asked to see Respondent's log of occupational injuries and illnesses required to be kept by 29 C.F.R. 1904.2. None was available and he was informed by one Mrs. Prunier, the employee, whose duty it was to keep such a log, that she had the proper form but that "I do not have the log available because I didn't have the time to fill it out" (Tr. 21-23). Further discussion disclosed that there had been nine recordable injuries during the past years which had been reported on insurance forms but not on OSHA Form 100 (Tr. 24). Mrs. Prunier also disclosed that Respondent did not keep a "supplementary record of occupational [*9] injuries and illnesses" on OSHA Form 101 as required by 29 C.F.R. 1904.4 or an Annual Summary of Occupational Injuries and Illnesses which is required by 29 C.F.R. 1904.5. In both instances the reason given the compliance officer for failure to maintain these records was the same, i.e., lack of time to complete the forms although the forms were available (Tr. 25-29). Uncontradicted testimony by the compliance officer also disclosed that the poster referred to in 29 C.F.R. 1903.2 was not posted or displayed anywhere in the Respondent's plant (Tr. 30-33).
With respect to the two violations concerning which the undersigned requested evidence, the compliance officer testified that a shafting attached to an operating motor and located less than 7 feet above ground was unguarded in violation of 29 C.F.R. 1910.219(c)(2) (Tr. 33-36) and that three high fork-lift trucks lacked overhead safety bars in violation of 29 C.F.R. 1910.178(e)(1) (Tr. 36). No evidence was offered by Respondent to contradict the testimony of the compliance officer that an unguarded shafting existed. Concerning the three fork-lift trucks observed by the compliance officer to be without headguards, the Respondent's [*10] witness testified that these were not used to lift goods above the operator's head but that an additional fourth lift truck fitted with a protective device, but not observed by the compliance officer, was used for this purpose (Tr. 87-88). Respondent's testimony on this point is consistent with the testimony of the compliance officer who stated that he had observed only three lift trucks in operation and that they did not raise material above the operator's head (Tr. 51). It may also be noted in passing that the insurance reports examined by the compliance officer did not record any injuries resulting from the use of fork lift trucks (Tr. 51-52). I conclude, therefore, that the three lift trucks observed by the compliance officer were not "high" lift rider trucks within the meaning of 29 C.F.R. 1910.178(e)(1) and that this alleged violation is not supported by the evidence.
With respect to three alleged violations noted above which relate to the record-keeping requirements of 29 C.F.R. 1904.2, 1904.4, and 1904.5 Respondent's counsel asserts that the insurance reports kept by Respondent contain the same basic information called for in OSHA Forms 100 and 101 and that the [*11] requirements of both 29 C.F.R. 1904.2 and 1904.4 have been met (Tr. 61-77; Resp. Br. 3-4). A comparison of said insurance form (Resp. Exh 1) with OSHA Form 101 (Comp. Exh. 3) supports the contention that keeping Respondent's insurance report is a substantial compliance with the requirements of 29 C.F.R. 1904.4 since this regulation provides that insurance reports are an acceptable alternative to OSHA Form 101 if they contain the information called for in OSHA Form 101. I find that Respondent was not in violation of 29 C.F.R. 1904.4 (Tr. 67-68, 73-74, 77, 85-86).
However, Respondent has not met the requirements of 29 C.F.R. 1904.2. That regulation does not permit the substitution of alternative methods of record keeping unless prior approval has been obtained in accordance with the provisions of 29 C.F.R. 1904.13. Respondent did not contend, and there is no evidence in the record, that Respondent did proceed under 29 C.F.R. 1904.13 to obtain permission to omit the use of OSHA Form 100. It is also clear from the record that Respondent was not in compliance with 29 C.F.R. 1904.5 (Tr. 21-23, 73, 75-77). Mrs. Prunier's explanation that she lacked time to complete these [*12] forms is without merit as is the argument that Respondent should not be penalized for Item No. 11 because the poster referred to in 29 C.F.R. 1903.2 had been displayed prior to the abatement date (Tr. 31-33).
Concerning those alleged violations on which testimony was taken at the hearing I have concluded that Respondent on February 15, 1972, was in violation of 29 C.F.R. 1904.2, 29 C.F.R. 1904.5, and 29 C.F.R. 1903.2. Respondent was also in violation of 29 C.F.R. 1910.219(c)(2) which relates to unguarded shafting but not in violation of 29 C.F.R. 1910.178(e)(1), which requires high lift Rider trucks to carry overhead guards. I find also that the penalties proposed by Complainant are in each case reasonable and appropriate under the circumstances herein and in conformity with the standards imposed by Section 17 of the Act (Tr. 43-50).
FINDINGS OF FACT
1. The Automotive Products Corporation, Respondent, herein, is a corporation organized and existing under the laws of the State of Illinois. Its office and principal place of business is located at 1351 South Cicero Avenue, Cicero, Cook County, Illinois.
2. At all material times Respondent employed approximately 180 [*13] persons and was engaged in the manufacture and sale of universal joints, drive shafts, and other metal products which moved across state lines.
3. At all material times Respondent owned and controlled equipment and machinery referred to in the Citation issued by Complainant on May 24, 1972.
4. Respondent employed a daily average of 180 persons during the current year 1972.
5. An inspection of Respondent's manufacturing plant was made on February 15, 1972 by a compliance officer employed by the Complainant as a result of which, on May 24, 1972, a Citation was issued to Respondent by the Complainant alleging sixteen (16) separate violations of the Occupational Safety and Health Act of 1970 and the regulations issued thereunder.
6. Also, on May 24, 1972 a Notification of Proposed Penalties was issued to Respondent proposing the following penalties -- Items Numbered 5, 6, and 7 of the citation -- $100.00 each; Item No. 10 -- $40.00; Item No. 11 -- $50.00; Item No. 12 -- $40.00.
7. By stipulation entered into by the parties, at the hearing respondent elected not to contest Items numbered 1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15 and 16 alleged in the Citation. The parties [*14] also stipulated that the abatement date with respect to Item #10 in the Citation would be extended until December 3, 1972 with the understanding that Respondent within 30 days from the date of the hearing would report to the Complainant on its progress towards abatement.
8. On February 15, 1972 Respondent did not maintain and did not have available for inspection by the compliance officer the log of occupational injuries and illnesses as required by 29 C.F.R. 1904.2 or the Annual Summary of Occupational Injuries and Illnesses as required by 29 C.F.R. 1904.5.
9. On February 15, 1972, Respondent did not have posted on display in its plant a notice informing its employees of the protections and obligations provided for under the Occupational Safety and Health Act of 1970 as required by 29 C.F.R. 1903.2.
10. Respondent on February 15, 1972 did maintain insurance reports of occupational injuries and illnesses containing substantially the same information required in OSHA Form 101. Respondent's insurance reports are acceptable alternative records to those required by 29 C.F.R. 1904.4.
11. On February 15, 1972 the horizontal shafting attached to a motor which was in use [*15] in Respondent's plant, and which was located less than 7 feet above the floor, was not protected by a stationary casing or a trough as required by 29 C.F.R. 1910.219(c)(2).
12. On February 15, 1972 Respondent employed four (4) forklift trucks in its operations. Three of said trucks observed by the compliance officer were not used to raise goods above the head of the operator and were not equipped with overhead guards. A fourth truck which was used used to raise material above the head of the operator was equipped with an overhead guard as required by 29 C.F.R. 1910.178(e)(1).
CONCLUSIONS OF LAW
1. At all material times Respondent was an "employer" engaged in "commerce" as those terms are defined by Section 3 of the Occupational Safety and Health Act of 1970 (29 USC § 651 et seq. ) and was subject to the safety, health and record keeping standards issued pursuant to the said Act by the Secretary of Labor.
2. On February 15, 1972 Respondent violated the standards issued by the Secretary of Labor by failing to comply with the following regulations as alleged in Complainant's Citation dated May 24, 1972; 29 C.F.R. sections 1910.242(a); 1910.26(c)(2)(viii); 1910.315(n)(4); [*16] 1910.37(g)(6); 1904.2; 1904.5; 1910.219(c)(2); 1910.141(f); 1910.30(b)(1); 1903.2; 1910.176(a); 1910.157(a)(2); 1910.157(d)(4)(viii); and 1910.141(c)(2).
3. On February 15, 1972 Respondent was in compliance with 29 C.F.R. Sections 1904.4 and 1910.178(e)(1)contrary to the allegations in Complainant's Citation dated May 24, 1972 and the Complaint filed June 19, 1972.
4. The violations alleged in the said Citation and Complaint, and established by the Complainant, were non-serious violations, and the penalties proposed by Complaint are reasonable and appropriate under the circumstances herein and not inconsistent with Section 17 of the Act.
On the entire record herein, and pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 and 29 C.F.R. 2200.66, it is ORDERED:
1. That Item #6 of the Citation [Violation of 29 C.F.R. 1904.4] and Item #13 of the Citation [Violation of 29 C.F.R. 1910.178(e)(1)] be, and the same hereby are, DISMISSED and the penalty proposed with respect to Item #6 is VACATED.
2. Items #1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, and 16 of the Citation, together with the penalties, if any, proposed for these violations, and [*17] the extended abatement date for Item #10 are AFFIRMED.