UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 7987 |
NATIONAL
ROLLING MILLS CO., |
|
Respondent. |
|
September 21, 1976
DECISION
BEFORE BARNAKO, Chairman; MORAN and CLEARY,
Commissioners.
BARNAKO, Chairman:
A decision of Administrative Law Judge
William E. Brennan is before us for review pursuant to section 12(j) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter
‘the Act’). The only substantive issue before us[1] is whether Judge Brennan
erred in vacating item 20 of a nonserious citation, which alleged a violation
of 29 C.F.R. 1910.22(c).[2] For the reasons below, we
reverse the Judge, modify the item to de minimis, and affirm the item as
modified.
The facts are these: Respondent is a
manufacturer of steel products. In its cold mill building, a pit in the floor
extending between the down ender and the high temper mill measured
approximately 20 feet in length, 23 inches in width, and 7 feet in depth at the
deepest point. Inside the pit, a coil buggy ran electrically on tracks. Its
function was to stand coils of metal on end at the down ender, move the coils
from the down ender to the high temper mill, and mount the coils on a spindle
at the temper mill. The coil buggy was operated from a control panel located
away from the edge of the pit. However, on each run of the coil buggy, it was
usually necessary for an employee to help guide the steel coil onto the
spindle. To perform this job, it was necessary for the employee to step across
the pit. The coil car’s position in the pit was directly below the employee so
that the fall distance into the pit was no more than 3 feet. The compliance
officer observed that the area at the edge of the pit appeared to be slick with
an oily substance.
Respondent’s supervisor admitted that it
was contemplated that the pit would create a falling hazard. For this purpose,
Respondent initially constructed a drawbridge across the pit. However, the
drawbridge proved unsatisfactory since it was frequently torn off by coils
running into it. After repairing it many times, Respondent abandoned the use of
the drawbridge in 1971. Consequently, it installed steel guardrails around some
portions of the pit. The area where employees stepped across admittedly was
neither guarded nor covered. However, Respondent installed ‘all-grip plates,’
which are steel plates imbedded with carbide, at the edges of the pit.
Respondent also provided employees with nonskid oil resistant safety shoes at
its own expense and enforced their use. When the coil buggy was not in
operation, coils of metal were ordinarily stored in the pit.
The compliance officer testified that he
was told by three employees that they had fallen into the pit many times.
However, Respondent’s records indicated that only one employee had fallen into
the pit in 1970 or 1971. The Judge resolved the conflict by finding that one
employee had fallen into the pit. In so doing, he fairly weighed the evidence.
We have said that in such circumstances, where a Judge’s finding is supported
by the evidence, we will not reweigh the evidence on review. Okland
Construction Co., No. 3395, BNA 3 OSHC 2023, CCH OSHD para. 20,441 (Feb.
20, 1976).
On these facts, Respondent was issued a
citation which alleged a nonserious violation of 29 C.F.R. 1910.22(c) in that
Respondent failed to provide a cover or guardrails to protect employees from
the hazard presented by a pit. A penalty of $150 was proposed.
Judge Brennan vacated the citation on the
basis that there was a lack of substantial and probative evidence that the pit
presented any hazard to employees. He also granted Respondent’s request for an
extension of the abatement period.[3]
As a threshold matter, Respondent
maintains that the standard at 1910.22(c) is inapplicable to the cited
condition by virtue of 1910.21(a)(2).[4] Respondent’s argument is
that the definitional section at 1910.21(a)(2) excepts from the requirements of
the subpart ‘floor openings occupied by elevators, dumb waiters, conveyors,
machinery, or containers.’ Therefore, Respondent contends that the cited pit,[5] which contains the coil
car and tracks, is excepted from the requirements of the subpart, including
1910.22(c). We find to the contrary. The clear intent of the exception is to
exclude only those openings which are fully occupied by the listed items so
that there is no hazard of falling into the opening. The inclusion of elevators
and dumbwaiters, which totally cover a floor opening, strongly indicates that
the terms ‘machinery’ and ‘conveyors’ should be interpreted as encompassing
only those which completely occupy the opening. Respondent’s interpretation of
the exception would permit a pit filled only partially with a machine to be
unguarded even though it presents the same or a greater hazard as a totally
empty pit. We will not adopt such an unreasonable interpretation since it would
be inconsistent with the purposes of the Act. Brennan v. OSHRC (Gerosa,
Inc.), 491 F.2d 1340 (2d Cir. 1974). Accordingly, we conclude that the
cited standard at 1910.22(c) is applicable to the condition before us.
Turning to the merits, we reverse the
Judge’s vacation of the item. The Judge erred in imposing upon the Secretary a
burden of showing the existence of a hazard. Section 1910.22(c) by its clear
terms assumes the existence of a hazard with regard to open pits and therefore
does not require that a hazard be proven by the Secretary before noncompliance
with its terms is established. Lee Way Motor Freight, Inc., 7 OSAHRC
1128, BNA 1 OSHC 1689, CCH OSHD para. 17,693 (1974), aff’d 511 F.2d 864
(10th Cir. 1975). Inasmuch as the evidence shows that the pit was not protected
by guardrails or a cover, a violation of 1910.22(c) was established.[6]
We do not, however, find the violation to
be nonserious as alleged. A violation is properly characterized as de minimis
where it has only a negligible relationship to safety and health and where it
is thus inappropriate to require that the violation be abated or to assess a
penalty. General Electric Co., 17 OSAHRC 49, BNA 3 OSHC 1031, CCH OSHD
para. 19,567 (1975), appeal docketed, No. 75–4116 (2d Cir., June 20,
1975); Van Raalte Co., Inc., No. 5007, BNA 4 OSHC 1151, CCH OSHD para.
29633 (April 19, 1976); Alfred S. Austin Construction Co., No. 4809, BNA
4 OSHC 1166, CCH OSHD para. 20,650 (April 28, 1976). Such is the case here. We
conclude that the hazard here was, at most, trifling. Particularly persuasive
in this regard are the brief periods of exposure, the short fall distance of
three feet, and the precautions taken by Respondent in its installation of
all-grip plates and its enforcement of the use of nonskid shoes. In these
circumstances, we conclude that the violation was of a de minimis nature and
does not warrant a requirement of abatement or the imposition of any penalty.
Accordingly, item 20 of the citation is
modified to de minimis and is affirmed as modified. It is so ORDERED.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
DATE: SEP 21, 1976
MORAN, Commissioner, Concurring in Part, Dissenting in
Part:
I agree with the affirmance of item 4
without a penalty assessment. In the body of his opinion the Judge clearly
indicates that a violation had been established. Thus, it is clear that his
vacation of the item in the decretory portion of his decision was an
inadvertent mistake.
I disagree, however, with the majority’s
reversal of the Judge’s vacation of item 20. Judge Brennan was the trier of the
facts in this case and, after observing the demeanor of the witnesses,
evaluating their credibility, and weighing the evidence, he vacated item 20 of
the citation on the ground that complainant failed to establish that the pit in
question posed a hazard to respondent’s employees.[7] He was eminently correct
in so holding and his finding should be affirmed.
The sole purpose of the Occupational
Safety and Health Act is to protect employees from injuries and illnesses
resulting from their employment. 29 U.S.C. § 654. It is therefore obvious that
when there is no occupational hazard to employees arising out of a cited
condition, there is no violation of the Act. The Commission has previously
recognized this sound principle in Secretary v. Straight Creek Constructors,
7 OSAHRC 1158, 1162 (1974), where Commissioner Cleary was the author of the
lead opinion.
In this case, the evidence establishes
that respondent installed steel guardrails around almost the entire pit. At the
unguarded areas, where employees were required to step across the pit,
respondent installed steel plates embedded with carbide to prevent employees
from slipping. Respondent also provided employees with nonskid oil resistant
safety shoes at its own expense and enforced their use. No probative evidence
was presented at the hearing to show that any of respondent’s employees fell
into the pit since 1971 when these measures were instituted.[8]
Under these circumstances, it is clear
that complainant failed to establish that the guardrails installed by
respondent inadequately ‘protect[ed] personnel from the hazards of open pits,
tanks, vats, ditches, etc.,’ as required by the standard. Moreover, by finding
a de minimis violation, Messrs. Barnako and Cleary have in effect acknowledged
that the pit did not constitute a hazard.
The Act provides that the Secretary of
Labor may issue ‘a notice in lieu of a citation with respect to de minimis
violations’ which are defined as ‘violations which have no direct or immediate
relationship to safety or health.’ 29 U.S.C. § 658(a) (emphasis added). Thus,
by finding a de minimis violation, the majority has in effect concluded that
the pit in question did not constitute a hazard.[9] In such a situation,
Congress has decreed that it is improper to issue a citation but that the
Secretary may issue a notice in lieu thereof. Since the Commission does not
have the authority to issue a notice, it must vacate any citation that pertains
to a nonhazardous condition. See my dissenting opinions in Secretary v.
Alfred S. Austin Construction Company, OSAHRC Docket No. 4809, April 28,
1976, and Secretary v. Van Raalte Company, Inc., OSAHRC Docket No. 5007,
April 19, 1976, where I have also discussed the impropriety of my colleagues’
affirmance of so-called de minimis violations.
APPENDIX
A
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 7987 |
NATIONAL
ROLLING MILLS CO., |
|
Respondent. |
|
February 10, 1975
DECISION AND ORDER
APPEARANCES:
FOR THE SECRETARY OF LABOR Louis Weiner,
Regional Solicitor Alan J. Davis, Esq. U.S. Department of Labor
FOR THE RESPONDENT Mr. Barney Bus Chief
Industrial Engineer
Brennan, W.E.; A.L.J.
This is an action arising under the
provisions of Section 10(c) of the Occupational Safety and Health Act of 1970,
29 U.S.C. 659(c), (hereinafter the Act), to review certain Items of a Citation
for Nonserious Violations and certain penalties proposed thereon, issued
pursuant to Sections 9(a) and 10(a) of the Act, (29 U.S.C. 659(a) and (c)) on
April 18, 1974, by the Secretary of Labor through the Area Director of the
Occupational Safety and Health Administration for Philadelphia, Pennsylvania,
(hereinafter Complainant) to National Rolling Mills Company, of Malvern,
Pennsylvania, (hereinafter Respondent).
On April 15, 1974, an inspection was made
at Respondent’s mill located at 100 Morehall Road, Malvern, Pennsylvania, where
it is engaged in manufacturing steel products. As a result of this inspection,
Respondent was issued a Citation for Nonserious Violations of Section 5(a)(2)
of the Act, 29 U.S.C. 654(a)(2) consisting of 20 numbered Items together with a
Notification of Proposed Penalties.
Pursuant to Section 10(c) of the Act, 29
U.S.C. 659(c), Respondent, through a letter from its Chief Industrial Engineer,
gave notice of its intention to contest the following:
The violations alleged in Items numbered
1(a) and (c); 3; 13; 14; 16; 17 and 20.
The penalties in the amounts indicated
proposed for Items numbered 1(a), (c) and (d)—$40; 3—$40; 4—$60; 14—$50; 17—$50
and 20—$150.
This Notice of Contest additionally
requested extension of abatement periods as follows:
Item No. 1(d) from 5/20/74 to 6/14/74
Item No. 7 from 5/20/74 to 5/31/74
Item No. 20 from 5/20/74 to 90 days
following the Commission’s final Order herein.[10]
After
the filing of the Complaint and Answer herein, this case came on for trial at
Philadelphia pursuant to notice.
Post-trial briefs were ultimately filed by
both parties by November 6, 1974.
Having considered the entire record
herein, the testimony and demeanor of the witnesses, the exhibits,
stipulations, representations and admissions of the parties, it is concluded
that the substantial evidence of record considered as a whole supports the
following findings of fact and conclusions of law.
No affected employees or representatives
thereof desired party status.
At the outset of the trial, Complainant
moved to withdraw Items numbered 3, 13 and 14, which Motion was granted without
objection. (TR 4.)
Complainant further moved to amend Item
No. 16 to refer to only one fan at Respondent’s mill. This Motion was granted.
(TR 4.) Respondent, appearing through its Chief Industrial Engineer, Mr. Barney
Bus, not an attorney, then moved to withdraw its contest to this Item, as
amended. This Motion was granted. (TR 5.)
The following stipulations were agreed
upon. At the time of the inspection, Respondent was a Division of the Bundy
Corporation. However, on April 12, 1974, it was incorporated itself in the
State of Pennsylvania under the name National Rolling Mills Company. Its
principal office is located at 100 Morehall Road in Malvern, Pennsylvania.
Respondent conceded that it is an employer engaged in a business affecting
commerce within the meaning of Sections 3 (5) and 3 (6) of the Act, 29 U.S.C.
652(5) and (6). It does not dispute the jurisdiction of the Review Commission.
It classifies itself as the smallest of the three steel fabricating companies
in the area with approximately 600 daily employees and total sales for 1973 of
$45 million. It has no known history of prior violations of the Act and no
injuries were involved with this case.
Complainant’s case was presented through two
witnesses, the inspecting Compliance Officer, Mr. Dillon and the Area Director,
Mr. Sachkar. Respondent presented the testimony of its Chief Engineer, Mr.
Martin, who accompanied Mr. Dillon on his inspection. The Citation set forth the following relative
to this Item:
Item
No. |
Standard |
Description
of Alleged Violation |
1 |
29
CFR 1910.22(b)(1) |
Aisles
and passageways, in the following locations, were not kept clear and in good
repair with no obstructions across or in the aisles that could create a
hazard: a)
Electro-Galvanizing Department—skids of 55-gallon drums obstructing the aisle
by galvanizing machine #1 c)
Acoustical Building #1—skids, coils of steel and boxes of material
obstructing the aisle d)
Pickle House, Building #7—floor was in disrepair with holes, indentations and
uneven surface |
Abatement was called for ‘Immediately upon
receipt of Citation’ except for Item No. 1(d) with an abatement date of
5/20/74. A $40 penalty was proposed.
The Standard cited, provides:
29 CFR 1910.22(b)(1)
(b)
Aisles and passageways.
(1) Where mechanical handling equipment is
used, sufficient safe clearances shall be allowed for aisles, at loading docks,
through doorways and wherever turns or passage must be made. Aisles and
passageways shall be kept clear and in good repairs, with no obstruction across
or in aisles that could create a hazard.
Compliance Officer Dillon testified that
on the day of his inspection, April 15, 1974, he observed ‘. . . skids of
55-gallon drums sitting in what was an aisle immediately off the galvanizing
line.’ (TR 13.) The hazard presented, in his opinion, was impaired egress in
the event of an emergency. The Compliance Officer did not photograph this
condition nor did he take any measurements.
Respondent, some two months after the
inspection, did take photographs of the locations involved in the various
contested Items, to show the locations involved, not the conditions alleged to
be in violation of the Act. Some of these black and white photographs were admitted
into evidence as Complainant’s exhibits, others as Respondent’s exhibits.
Respondent’s Chief Engineer, Mr. Martin,
who accompanied Mr. Dillon on his inspection, testified that the area involved
in this Item was a storage area. He stated that one barrel was ‘askew’ because
employees were taking some material from it. (TR 74.) He further testified that
the passageway was not completely blocked as it was his recollection that he
and Mr. Dillon had to walk ‘single-file’ around this barrel.
The location involved is depicted in
Exhibit R–8. Additionally, Mr. Martin testified that there existed two paths of
travel in this area, an aisle shown in Exhibit R–7 or between rolls of steel
stock, as shown in Exhibits R–4 and R–5. (TR 74.) He further advised the Compliance
Officer that, on the Monday of the inspection, the galvanizing line was not in
operation, and the obstruction in this aisle was not a normal condition. (TR
13.)
Upon this state of the evidence it is
concluded that the temporary, partial obstruction in this aisle did not create
a hazard, within the intent of the cited Standard, even under the emergency
conditions envisioned by Mr. Dillon, because of the availability of alternate
escape routes. Thus, Item 1(a) must be vacated.
The second condition observed by Mr.
Dillon, set forth in Item 1(c), was located in Respondent’s acoustical
building. He testified to observing a skid or pallet, upon which were stacked
cardboard cartons containing metal ‘grid work,’ ‘. . . sitting out in the
aisle, and there were some coils of steel which were encroaching on the aisle.’
(TR 14.) He admitted that the loaded pallet was on the right side of this
aisle, leaving approximately one half unobstructed. (TR 41–43.) The area in
question, not the condition observed, is depicted in two of Respondent’s
photographs, Exhibits C–1 and C–2. The hazard here, in Mr. Dillon’s view was ‘.
. . impairment of egress in the event of an emergency.’ (TR 17.)
Mr. Martin testified that the aisle in
question, which was not measured by the Compliance Officer (TR 36), was 12 feet
wide. Two forklift trucks are used regularly and continuously in this area, to
service 15 production lines involving Respondent’s products. The usual
procedure followed is for a forklift truck to remove a loaded pallet, place it
in the aisle, then to place an empty pallet in the vacant storage spot, and to
then immediately retrieve the loaded pallet and transport it to its
destination. He readily admitted to having seen the loaded pallet in this aisle
but stated that he had never seen such a condition at this location for longer
than 15 minutes at any time. This was so because this area is heavily traveled
by Respondent’s forklift trucks servicing the various production lines, and any
such condition would impede this traffic flow and hence production, and also
possibly result in damage to finished products. (TR 76–81.) He further stated
that employees are instructed to keep this aisle clear at all times, and the
condition observed was unusual and temporary, perhaps occasioned by the
forklift truck leaving the area to refuel.
Upon this state of the record it is
concluded that the aisle in question was only partially obstructed, a temporary
condition, not usually pertaining at this location and contrary to company
instructions. In my view, such a temporary condition is not within the
contemplation of the cited Standard and this Item must be vacated.
The last condition observed by Mr. Dillon
under Item No. 1 of the Citation herein was the rough surface of an undefined
area of flooring adjacent to the ‘pickle’[11] line in Building No. 7.
The surface of this concrete floor had been eroded by the dripping of the rust
preventative oil and, in Mr. Dillon’s view, presented ‘... a tripping hazard to
pedestrian traffic and could present a hazard to industrial trucks traveling
over that surface.’ (TR 17.)
The Respondent did not contest this Item,
as far as the alleged violation was concerned, only the penalty. Mr. Martin
testified to having advised Mr. Dillon, during the inspection, that as of that
date, Respondent had already received quotations for the cost of repairing this
surface and had placed an order for this repair. (TR 82.) At the time of the
trial herein, this repair had been completed.
Upon this evidence, no penalty is
justified. It is therefore concluded, that the proposed penalty of $40 based
upon Item No. 1, not proportionately allocated to the four sub-items thereof,
must be vacated in its entirety.
Item
No. |
Standard |
Description
of Alleged Violation |
4 |
29
CFR 1910.23(c)(2) |
Walkways,
in the following location, four feet or more above adjacent floor/ground
level, were not guarded by standard railings: a)
Electro Galvanizing Line #2, Steel walkways—intermediate rails not provided |
Abatement was ordered by 5/20/74 and a $60
penalty was proposed.
Respondent contested only the penalty. Mr.
Dillon testified to having observed an unmeasured section of a metal catwalk
which had no midrail although it did have a top rail. He stated that this
catwalk was above a production line at a point where flat sheet steel was being
unrolled for galvanizing and the hazard was that an employee might fall onto
the moving steel sheets below and be carried into the rollers. (TR 18.)
Respondent’s photograph, Exhibit C–3, shows the location involved.
Mr. Martin testified that the catwalk
involved was over 500 feet long and that on the day of the inspection, top and
mid rails had been installed on both sides thereof except for the 40-foot
section observed by Mr. Dillon. Pipe for the missing section of mid rail was at
the location for installation and construction thereof had not been completed.
Further, that this catwalk is used only by
maintenance personnel on Mondays, on which day the production line below the
catwalk was shut down. (TR 85–87.)
Upon this state of the evidence, it is my
view that this condition at the worst constituted only a technical violation.
The mid rail had been installed by the time of trial. (See Exhibits C–3, R–1,
R–2). No penalty is justified and the proposed $60 penalty must be vacated.
Item
No. |
Standard |
Description
of Alleged Violation |
17 |
29 CFR 1910.252(b)(4)(vii) |
Electrode
holder, not in use on the following welding equipment, was not so placed that
accidental electrical contact cannot be made with persons or conducting
objects: a)
Construction Department—‘Hobart’ AC-DC welding machine extending into the
aisle |
Abatement was ordered ‘Immediately upon
receipt of Citation’ and a $50 penalty was proposed.
The Standard cited provides:
29 CFR 1910.252(b)(4)(vii)
(vii) Electrode holders. Electrode holders
when not in use shall be so placed that they cannot make electrical contact
with persons, conducting objects, fuel or compressed gas tanks.
Mr. Dillon testified to observing an AC-DC
Hobart electrical welding machine in Respondent’s construction department upon
which, ‘. . . the electrode holder was facing towards the front of this machine
presenting a hazard of contact with anyone or any object passing where the
machine was located.’ (TR 21.) He voiced the opinion that the outward facing
electrode holder presented ‘. . . the hazard of shock to someone who would be
passing by there or carrying a conducting object past there and came in
contact.’ (TR 23.) Respondent’s photos, Exhibits C–4 and C–5 depict this welding
machine except for the outward facing electrode holder.
The Compliance Officer observed no one in
this area. (TR 53.)
Mr. Martin testified that the area in
which this welder is located is a work station and that no aisle nor traffic
passes through it. Further, at the time of the inspection, the machine was
turned off, contained no electrode, and that there was no employee working at
this station. (TR 89–90.)
Thus there is a complete failure of proof
tending to establish any possibility of ‘electrical contact,’ by anyone or
anything with this electric welder. This Item of the Citation and proposed
penalty must be vacated.
Item
No. |
Standard |
Description
of Alleged Violation |
20 |
29 CFR 1910.22(c) |
Covers
and/or guardrails were not provided to protect personnel against the hazards
of open pits in the following location: a)
Cold Mill, Building #8, between Downender and the Four High Temper Mill— pit
where coils of steel are moved by means of a drive chain. |
Abatement was ordered by 5/20/74 and a
$150 penalty was proposed.
The Standard cited provides:
29 CFR 1910.22(c)
(c) Covers and guardrails.
Covers and/or guardrails shall be provided
to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.
This Item involves a pit running from
equipment known as a ‘down under’ to a ‘four high temper mill.’ (TR 25.) Mr.
Dillon testified that it is approximately 20 feet long, up to 7 feet deep ‘at
some points’ and 3 to 3 1/2 feet wide (TR 28.) Along the bottom of this pit
runs a piece of equipment known as a ‘coil buggy’ or ‘coil car’ which is used
to convey coils or rolls of steel to the temper mill where the coil is mounted
on a spindle. The ‘coil buggy’ is operated electrically from a control panel
near the temper mill spindle. Each time a coil of steel is positioned by the
coil buggy for mounting on the spindle, it is frequently necessary for an
employee to step across this pit to guide the steel coil onto the spindle. Mr.
Dillon did photograph this scene which photographs were admitted into evidence
as Exhibits C–6 through C–10. Along either side of this opening, very heavy
guardrails or barriers are installed.
Mr. Dillon found that the surface where
the employee would step across the pit ‘. . . appeared slick from some type of
a liquid oily substance.’ (TR 29.)
He testified that he asked three employees
working at this location if ‘. . . anyone ever fell in there, and they said on
many occasions they had fallen into there.’ (TR 28.) Mr. Dillon believed this condition
presented a falling hazard.
Mr. Martin testified that the point where
an employee steps over the pit measures 23 inches (TR 104, Exhibit 20). On each
side of the edge of this pit, at this point, are installed ‘all grip plates,’
steel plates embedded with carbide producing a non-slip surface. (See Exhibit
R–17.) Its employees are provided nonskid, oil resistant safety shoes at
company expense. (TR 106.) Further, that when an employee does step across this
pit to position a coil of steel, the coil car which conveyed the coil of steel
to the spindle is below such an employee in the pit and thus, the distance from
the nonskid plates to the coil car below is about 3 feet. (TR 104, Exhibit
R–20.) In addition, normally coils of steel are stored on top of this pit, thus
preventing anyone from falling into this pit. (See Exhibits R–15, R–16, R–18,
TR 105–106.)
He further testified that he is
management’s representative on the company’s safety committee[12] and in this position
would have knowledge of anyone falling into this pit. A search of Respondent’s
records was made upon the request of Mr. Bus, which revealed one employee had
fallen into this pit sometime in 1970 or 1971. Mr. Martin did not recall
whether this was a lost-time accident. (TR 119.)
Mr. Martin further testified that when
this pit was installed in 1968, some type of a drawbridge was installed at the
point where employees step across to guide the steel coil onto the spindle.
However, this drawbridge was constantly being torn off by the steel coils being
brought into position. It had been repaired ‘. . . many, many times.’ (TR 108.)
It was finally removed sometime in 1971 as non-feasible and a hindrance to
production. The monskid plates and heavy guardrails were then installed.
This evidence is in sharp conflict with
the hearsay evidence produced through Compliance Officer Dillon, that he had
been told by three unidentified employees that they had fallen into this pit
‘on many occasions.’ (TR 28.)
Such a conflict leads me to the conclusion
that there is a lack of substantial and probative evidence that an employee
hazard at this location has been established by Complainant.[13] It is therefore concluded
that Complainant has not sustained the burden of proof as to this Item and it,
as well as the proposed penalty based thereon, must be vacated.
The evidence of record establishes that
all violative conditions, except for Item No. 20, were abated by the time of
trial (TR 117). As to Item No. 20, Respondent has petitioned the Assistant
Secretary of Labor for a variance (see R., p. J–5). This record, in my view,
supports the granting of Respondent’s requested extension of the abatement date
for Item No. 20 to 90 days after entry of the Commission’s Final Order herein.
Based upon the foregoing findings and
conclusions and pursuant to the provisions of Sections 10(c) and 12(j) of the
Act, (29 U.S.C. 659(c) and 661(i)) it is hereby,
ORDERED:
1. That Items numbered 1(a) and 1(c) are
VACATED.
2. That the $40 penalty proposed for Item
No. 1 is VACATED.
3. That Item No. 4 and the $60 penalty
proposed thereon are VACATED.
4. That Item No. 17 and the $50 penalty
proposed thereon are VACATED.
5. That Item No. 20 and the $150 penalty
proposed thereon are VACATED.
6. Respondent’s request for the extension
of the abatement date for Item No. 20 from 5/20/74 to 90 days after entry of a
Final Order herein, is GRANTED.
WILLIAM E. BRENNAN
Judge, OSAHRC
Dated: FEB 10, 1975
Hyattsville, Maryland
[1] The case was also directed for
review on whether Judge Brennan erred in vacating item 4, which alleged a
violation of 1910.23(c)(2). We conclude that the vacation was inadvertent
error. The Judge recognized in his discussion of the item that Respondent had
contested only the penalty. On review, Respondent states that it is a matter of
record that it contested only the penalty in its notice of contest. However,
Respondent argues that it thought that its contest would place in issue certain
matters of importance in determining whether a violation existed. We conclude
that Respondent’s notice of contest evidences a clear intent to contest only
the proposed penalty for item 4. Whereas Respondent specifically contested both
the citation and the proposed penalty for some items, for item 4 it
specifically contested only the proposed penalty. Further, in its brief before
the Judge, Respondent reiterated that only the penalty was contested. Compare Turnbull
Millwork Co., No. 7413, BNA 3 OSHC 1781, CCH OSHD para. 20,221 (1975).
Respondent’s failure to contest the citation renders the citation final as a
matter of law under section 10(a) of the Act.
[2] The standard at
1910.22(c) requires that ‘covers and/or guardrails shall be provided to protect
personnel from the hazards of open pits, tanks, vats, ditches, etc.’
[3] Judge Brennan
found that, if a violation were established, a 90-day extension of the abatement
date was warranted on the record. Inasmuch as we affirm the item as a de
minimis violation requiring no abatement, we need not pass on Respondent’s
request for an extension of the abatement period.
[4] The term ‘floor
opening’ is defined in 1910.21(a)(2) as
an opening measuring 12 inches or more in
its least dimension, in any floor, platform, pavement, or yard, through which
persons may fall; such as a hatchway, stair or ladder opening, pit, or large
manhole. Floor openings occupied by elevators, dumb waiters, conveyors,
machinery, or containers are excluded from this subpart.
[5] Section
1910.21(a)(2) characterizes a ‘pit’ as a type of floor opening.
[6] We note by way of an aside that Respondent’s supervisor, when testifying as part of Respondent’s case, stated that precautions were taken around the pit because it was contemplated that pit would create a falling hazard.
[7] See his decision
which is incorporated herein by reference and attached hereto as Appendix A.
[8] In their desire
to prove that the pit presented a hazard to respondent’s employees, my
colleagues seem to completely forget that respondent did not replace a
previously used ‘drawbridge’ with the steel railings and nonskid plates until
1971. The only probative evidence regarding falling accidents shows that an
employee fell into the pit ‘sometime in 1970 or 1971.’ This evidence is
woefully inadequate to establish that the pit, as now guarded, is hazardous in
any way. The Judge most certainly recognized this in finding that there was ‘a
lack of substantial and probative evidence that an employee hazard [existed] at
this location.’
[9] Query: If there is a hazard, how can a failure to order abatement be justified? See footnote 3 of the majority opinion. On the other hand, if there is no hazard—how can a finding that the employer was in violation of the Act be justified?
[10] The uncontested
Items of this Citation and proposed penalties have become the Final Order of
the Commission by operation of Section 10(a) of the Act, 29 U.S.C. 659(a), no
notice having been filed by any employee or representative thereof.
[11] ‘Pickling’ is a process by which scale is removed from steel by hydrochloric acid. After pickling, the steel is treated with some type of oil as a rust preventor.
[12] This committee
meets approximately each month and is quite active. In the past two years
Respondent has spent over $160,000 to bring its plant into compliance with the
Act (TR 110).
[13] Hearsay evidence standing alone cannot support a finding. Consolidated Edison Co. v. NLRB; 305 U.S. 197, 230 (1938). One wonders why the declarant employees are not produced by Complainant in this type of situation.