UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

July 11, 1974

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

BY THE COMMISSION:

This matter is before this Commission for review of a March 30, 1973, decision of Judge Paul L. Brady pursuant to 29 U.S.C. § 661(i). At issue is whether the citation was issued with reasonable promptness as required by 29 U.S.C. § 658(a). We hold that the respondent waived consideration thereof at this level because that defense was not raised in the proceedings below. Chicago Bridge and Iron Company, OSAHRC Docket No. 744 (January 24, 1974). We therefore affirm the Judge’s decision.1

Chairman Moran would reverse for the reasons set forth in his dissenting opinions in Secretary v. Plastering, Incorporated, OSAHRC Docket No. 1037 (May 3, 1974), and Secretary v. Advanced Air Conditioning, Inc., OSAHRC Docket No. 1036 (April 4, 1974).

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

March 30, 1973

BRADY, JUDGE, OSAHRC:

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereinafter referred to as the Act) contesting a citation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to Section 9(a) of the Act. The citation which was issued August 22, 1972, alleges that as the result of an inspection of the respondent’s workplace located at Turner Chapel Road, Rome, Georgia, respondent violated Section 5(a)(2) of the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary pursuant to Section 6 thereof. A notice of proposed penalty in the amount of $665.00 was issued with the said citation.

  The hearing was held January 9, 1973, at Rome, Georgia. Mr. H. David Moore, who is not an attorney, represented the respondent. No parties sought to intervene in the proceedings.

Respondent is a corporation doing business at Turner Chapel Road, Rome, Georgia, where it is engaged in the manufacturing of television antennas and masts and is a business affecting commerce within the meaning of the Act. (Ans.).

It is alleged in the citation that respondent had violated the Act on August 22, 1972, in the following respects:

Item No. 1: 29 CFR 1910.219(d)(4); Plant—Electronics Dept.—There was a drill press without motor and V-belt guard.

Item No. 2: 29 CFR 1910.217(c); The metal shear was without point of operation guard.

Item No. 3: 29 CFR 1910.37(9); Exit egress from the department was not marked.

Item No. 4: ‘National Electrical Code’ Article 250–45 (as adopted by CFR Sec. 1910.309(a); There was a fan in use setting [sic] on a bench that was not grounded.

Item No. 5: 29 CFR 1910.215(a); Plant—Machine Shop—There were two (2) grinders (bench), one (1) without side wheel guards and the other tool rest out of adjustment.

Item No. 6: 29 CFR 1910.219(d), (e); The Die File machine had two (2) exposed V-belts and an exposed motor drive.

Item No. 7: 29 CFR 1910.219(d), (e); The metal lathe had exposed motor drive & belts.

Item No. 8: 29 CFR 1910.219(d), (e); The power hack saw was without motor and belt guard.

Item No. 9: 29 CFR 1910.219(d)(e); Large drill press had exposed motor drive pulleys and belts.

Item No. 10: 29 CFR 1910.217(c); Plant—Manufacturing Area. There were three (3) cut-off machines without point of operation guards.

Item No. 11: 29 CFR 1910.217(c); There was one (1) punch press with cutter die that should be equipped with point of operation guard.

Item No. 12: 29 CFR 1910.217(c); There were five (5) punch presses used for a sleeving operation that were without point of operations guards.

Item No. 13: 29 CFR 1910.219(b); There were twelve (12) punch presses without the approved flywheel guards.

  Item No. 14: 29 CFR 1910.219(b); The Cross Arm machine was without flywheel guard.

Item No. 15: 29 CFR 1910.219(b); There was one riveting machine without flywheel guard.

Item No. 16: 29 CFR 1910.219(d), (e); The drill press was without V-belt & motor pulley guard.

Item No. 17: 29 CFR 1910.215(a); There was one (1) bench grinder without side wheel guards & tool rests.

Item No. 18: 29 CFR 1910.212(a)(5); There were three (3) large fans below the seven (7) feet height without the approved 1/2 inch mesh guard.

Item No. 19: 29 CFR 1910.219(b); Plant—Final Assembly Dept. There were three (3) riveting presses without flywheel guards.

Item No. 20: 29 CFR 1910.217(c); There were three (3) riveting presses without the point of operation guards.

Item No. 21: 29 CFR 1910.219(d), (e); Plant—Wire Sub-Assembly Dept. There were two (2) wire cut-off machines without motor drive & belt guards.

Item No. 22: 29 CFR 1910.217(c); There were two (2) wire cut-off machines without point of operation guards.

Item No. 23: 29 CFR 1910.217(c); There were two rivet machines without the point of operation guard.

Item No. 24: 29 CFR 1910.219(b); There were two (2) rivet machines without the flywheel guards.

Item No. 25: 29 CFR 1910.22(a), (b); Plant—General—Improve the housekeeping in all production areas including the warehouse.

The allegations contained in the citation are not specifically denied by respondent in the Notice of Contest or Answer filed herein. However, it is indicated in the pleadings that the proposed penalty was being protested, in view of the considerable time and expense in purchasing and installing the safety equipment necessary to meet the Occupational Safety and Health Administration requirements.

At the hearing a motion was granted allowing the Secretary to withdraw the alleged violations contained in Items 2, 10, 11, 20, 22 and 23, of the citation (Tr. 3).

The issue to be decided in this proceeding is whether the proposed penalties are appropriate. The authority to assess such penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a), and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b).

In determining the appropriate penalty, the Commission under Section 17(j) of the Act is expressly required to give ‘due consideration’ to the size of the employer’s business, the gravity of the violation, good faith of the employer, and history of previous violations, in determining the assessment of an appropriate penalty.

Mr. Robert S. Krueger, Compliance Officer for the Department of Labor testified as to the factors considered, and the manner of determining the amount of the proposed penalties for the alleged violations (Tr. 14, 15) (Exh. 1). He stated that the most severe violation was listed under Item 13, which consisted of 12 punch presses being operated without approved fly wheel guards. Mr. Krueger stated that possible dismemberment of a finger or arm could result from contact with the exposed fly wheel.

The record does not indicate what specific consideration if any was given to the gravity of the violations by the Secretary.

In Nacirema Operating Company, Inc., OSHRC Docket No. 4, the Commission pointed out that the four criteria provided under Section 7(j) cannot always be given equal weight, however it was indicated that the principal factor to be considered is the gravity of the offense. The Commission stated in National Realty and Construction Co., Inc., OSHRC Docket No. 85, that the elements to be considered in determining the gravity of a violation to be: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury.

Respondent employed over 100 employees, which indicated a sizeable number of persons were exposed to the risk of injury due to the unguarded machines listed in the citation (Tr. 15).

It was pointed out by respondent at the time of the inspection that safety guards were either on order, or were going to be made by respondent for the machines listed in the citation. This factor was also duly considered by complainant in determining the proposed penalties (Tr. 20, 23).

Upon considering the factors set forth in Section 17(j) of the Act in light of the circumstances of this case, it is determined that the proposed penalties in the amount of $315.00 are reasonable and appropriate.

FINDINGS OF FACT

1. Kay-Townes Inc. is a corporation doing business at Turner Chapel Road, Rome, Georgia where it is engaged in manufacture of television antennas and masts, and is a business affecting commerce within the meaning of the Act.

2. On August 2, 1972, an authorized representative of the Secretary conducted an inspection of respondent’s workplace at Turner Chapel Road, Rome, Georgia, resulting in the issuance of a citation on August 22, 1972, for other than serious violations, and a notice of proposed penalties.

3. The inspection on August 2, 1972, revealed that respondent was in violation of 18 (eighteen), occupational safety and health standards. The violations, included the operation of 12 punch presses without fly wheel guards, as well as other unguarded fly wheels, and exposed motor drives and belts.

4. The respondent employs over 100 (one-hundred), persons.

5. The proposed penalty was determined, in accordance with the administrative guidelines of the Secretary, and is found to be reasonable and appropriate.

CONCLUSIONS OF LAW

1. Kay-Townes Inc. at all times pertinent hereto was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein, pursuant to Section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a) of the Act.

  3. On August 22, 1972, the respondent was in violation of the following standards at 29 CFR:

No. 1—29 CFR 1910.219(d)(e)

No. 3—29 CFR 1910.37(9)

No. 4—‘National Electrical Code’ Article 250–45 (as adopted by 29 CFR Sec. 1910.309(a)

No. 5—29 CFR 1910.215(a)

No. 6—29 CFR 1910.219(d), (e)

No. 7—29 CFR 1910.219(d), (e)

No. 8—29 CFR 1910.219(d), (e)

No. 9—29 CFR 1910.219(d), (e)

No. 13—29 CFR 1910.219(b)

No. 14—29 CFR 1910.219(b)

No. 15—29 CFR 1910.219(b)

No. 16—29 CFR 1910.219(d), (e)

No. 17—29 CFR 1910.215(a)

No. 18—29 CFR 1910.212(a)(5)

No. 19—29 CFR 1910.219(b)

No. 21—29 CFR 1910.219(d), (e)

No. 24—29 CFR 1910.219(b)

No. 25—29 CFR 1910.22(a), (b)

4. A penalty of $315.00 is assessed for the violations contained in the citation.

5. Respondent failed to comply with the regulations set forth above, thereby violating Section 5(a)(2) of the Act.

Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is

ORDERED

1. That the citation and proposed penalty is affirmed and a penalty of $315.00 is hereby assessed.

1 However, it is noted that the Judge’s decision erroneously omitted item 12 of the citation in enumerating violations that were withdrawn by complainant and incorrectly refers to 29 C.F.R. § 1910.37(9) rather than 29 C.F.R. § 1910.37(q) in discussing the violation charged in item 3.