UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
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SECRETARY
OF LABOR, |
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Complainant, |
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v. |
Docket
No. 3449 |
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KOPPERS
CO., INC. |
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Respondent. |
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November 14, 1974
Van
Namee, Commissioner:
This
matter was originally consolidated with Dockets 2975 and 4349 (United States
Steel Corporation) by Judge Charles K. Chaplin for purposes of argument and
decision regarding a question of law common to all three cases.[1] It arose out of two citations. One alleged a serious violation of the
Occupational Safety and Health Act of 1970[2] (the “Act”) saying that Respondent
(Koppers) failed to control the exposure of a shift foreman and a pusher man to
the level specified by 29 C.F.R. 1910.93 for coal tar pitch volatiles by
feasible engineering or administrative controls contrary to the requirements of
29 C.F.R. 1910.93(e). The second
citation alleged a non-serious violation of the Act saying that Koppers failed
to provide a lidman and lorry-man with respirators of an approved design
contrary to the requirements of 29 C.F. R. 1910.134 (a)(2).
Koppers
timely filed a notice contest as to both citations. Thereafter a complaint was filed. The serious allegation included a statement
saying that Koppers had failed to provide “protective equipment or any other
protective measures” for the shift foreman and pusher man. Koppers answered and raised no objection to
the change in allegation concerning the serious citation. Thereafter, Koppers moved to dismiss the
citation for a serious violation saying the cited standard was inappropriate to
coke oven operations by virtue of a decision rendered by the Secretary on
September 1, 1971.[3] By its brief filed in support of its motion
to dismiss Koppers conceded the existence of the alleged non-serious violation
of 29 C.F.R. 1910.134(a)(2).
Judge
Chaplin granted the motion. We reversed
in the companion U.S. Steel cases, and we do so here for the reasons given in
those cases. A copy of our decision
therein is attached hereto and made a part of.
Judge Chaplin also dismissed the personal protective equipment
allegation under 29 C.F.R. 1910..93 saying that it arose out of the same
factual situation as the charge made under 29 C.F.R. 1910.134(a)(2). He noted that the latter allegation had been
admitted, and he dismissed it because he was of the view that an employer
cannot be found in violation of two standards based on the same factual
situation.
His
decision dismissing the personal protective protective measure allegation under
29 C.F.R. 1910.93(e) was plain error.
Although we can conceive of many circumstances wherein the same factual
circumstances will support findings of violations of two standards we need not
rest reversal on such grounds. The plain
fact is that the alleged violations of 29 C.F.R. 1910.93 herein were with
respect to the shift foreman and the pusher man whereas 1910.134(a)(2)
allegation was made with respect to two other individuals on a different
basis. The foreman and pusher man were
said not to be wearing or using personal protective measures at all. The lidman and lorryman were said to be using
inadequate equipment. There being
different factual situations involved it was plain error to dismiss allegations
as being duplicative.
Accordingly,
the Judge’s decision is reversed. Since his disposition was on a pre-hearing
motion the matter is remanded for a hearing consistent with this decision. It
is so ORDERED.
Moran, Chairman, dissenting:
Judge
Chaplin’s disposition of the charge relating to 29 C.F.R. 1910.93 should be
affirmed for the reasons set forth in my dissenting opinion in Secretary v. United States Steel Corporation,
(Docket No. 2975/4349, November 14, 1974).
The
decision below also dismissed the charge of failure to comply with the
occupational safety and health standard codified at 29 C.F.R.
1910.134(a)(2). That decision should
also be affirmed.
Sec.
1910.134(a)(2) requires that:
Respirators shall be provided by the
employer when such equipment is necessary to protect the health of the
employee. The employer shall provide the respirators which are applicable and
suitable for the purposes intended…
Sec. 1910.93 provides:
To achieve compliance…feasible
administrative…controls must first be determined and implemented. In
cases where protective equipment or protective equipment in addition to other
measures is used as the method of protecting the employee, such protection
must be approved….(Emphasis added).
These standards obviously overlap; both apply to
personal protective equipment. The
decision below held that an employer cannot be found in violation of two
standards based on the same factual situation.
I agree.
The
Commission attempts here, however, to distinguish specific employees not
protected or adequately protected by equipment.
This distinction is without merit.
The
nub of both standards is that protective equipment must be supplied that is
suitable to protect against the hazards contemplated therein. Adequate protection of the one in this case
satisfies the requirements to the other.
This
remand, therefore, requires a trial where respondent could twice be found in
violation of the Act and where an abatement of one satisfies both. Once again we find the Commission imposing a punitive
sanction with has no place in remedial type legislation, the purposes of which are
“to assure so far as possible…safe…working conditions…” 29 U.S.C. 651(b).