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.