UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3624
TECHNO PRODUCTS, INC., DBA TECHNO TRUCK MANUFACTURING CO.,
Respondent.

February 11, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

This matter involves the question whether Administrative Law Judge William E. Brennan erred in (1) vacating a notification alleging that Respondent (Techno) failed to abate a violation for having an inadequate supply of fire extinguishers on the ground that the cited standard is vague and (2) vacating for failure of proof a notification alleging failure to abate a violation for having a locked exit door. For the reasons given below we vacate the notification as to the first allegation and affirm it as to the second.

The Fire Extinguisher Charge

Techno was first inspected by Complainant (Labor) on December 19, 1972. Thereafter Labor issued a citation alleging that Techno had violated the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter ‘the Act’) by failing to comply with, inter alia, 29 C.F.R. § 1910.107(f)(4)[1]1 because it did not provide an adequate supply of portable fire extinguishers in a spray paint booth area. The citation was not contested and therefore became a final order (29 U.S.C. § 659(a)). On June 1, 1973 Labor conducted a reinspection and then issued a notification alleging the failure to correct the violation.

The facts of record establish that at the time of both inspections, Techno had provided both a 25-pound CO2 fire extinguisher and a sprinkler system for the spray paint booth area. The inspector opined that an additional extinguisher was necessary, but conceded that another inspector might reach a different conclusion.

As noted above, the Judge concluded that the cited standard is vague, and, accordingly, vacated the notification. In finding the standard vague, however, the Judge did not look beyond its literal wording, whereas we had said before that broad terms may acquire meaning when read in light of other regulations or codes. Modern Automotive Services, Inc., 6 OSAHRC 738, BNA 1 OSHC 1544, CCH E.S.H.G. para. 17,369 (1974).

In this regard, it was error for the Judge to read 29 C.F.R. § 1910.107(f)(4) when there is another general industry standard that clarifies the cited standard. Specifically, the standard at 29 C.F.R. § 1910.157(c)(1)(i) provides as follows:

The number of fire extinguishers needed to protect a property shall be determined as prescribed herein, considering the area and arrangement of the building or occupancy, the severity of the hazard, the anticipated classes of fires, and the distances to be traveled to reach extinguishers.

Inasmuch as this standard appears in Subpart L which is entitled Fire Protection, it is apparent that the general industry standards, read as a whole, set forth an objective performance measure for determining the number and types of fire extinguishers that are necessary according to the kinds of fire hazards that may occur in a workplace. The cited standard is therefore not objectionable for being imprecise.[2]

The facts are that fire extinguishing apparatus consisting of the portable extinguisher and the sprinkler system were available in the spray paint booth area. The only evidence of inadequacy considering the area, nature of the hazard, and the other factors specified in 1910.157(c)(1)(i) is the opinion of Labor’s compliance officer. And he minimized the probative value of his opinion by conceding that the extinguishing equipment provided by Techno might be sufficient.

Accordingly, a preponderance of the evidence does not establish a failure to abate the alleged violation of 29 C.F.R. § 1910.107(f)(4). Kit Mfg. Co., 16 OSAHRC 80, BNA 2 OSHC 1672, CCH E.S.H.G. para. 19,415 (1975); Franklin Lumber Co., 9 OSAHRC 922, BNA 2 OSHC 1077, CCH E.S.H.G. para. 18,206 (1974); Armor Elevator Co., 5 OSAHRC 260, BNA 1 OSHC 1409, CCH E.S.H.G. para. 16,958 (1973).

The Locked Exit Charge

Labor’s notification also alleged that Techno failed to abate a violation of the Act for failure to comply with 29 C.F.R. § 1910.36(b)(4)[3] because it did not maintain free and unobstructed egress from its plant in that one exit was locked.

The facts are that the building in which Techno conducts its business has four exits. At the time of both inspections the door to one pedestrian exit in the rear of the building was padlocked on the inside for security reasons since on at least one prior occasion an armed intruder had entered the building. A similar pedestrian door in the front of the building was not equipped with a lock. The building also has a 13-foot wide entryway for vehicles and a loading dock entry, both of which were equipped with overhead doors which are lockable but are kept open during the working day. However, only the two pedestrian exits are intended by Techno for use by persons. An average of 15 employees work in this building.

Subsequent to the reinspection Techno unlocked the rear door but felt that by so doing it exposed its employees to the hazard of armed intruders. However, Labor indicated that it would approve of a push-bar type of lock, that is, a device which allows a door to be locked on the outside only while remaining unlocked on the inside, and Techno’s superintendent stated that Techno intended to install such a lock.

The Judge reasoned that the standard does not require that all exits be maintained so as to provide free and unobstructed egress. Rather, he concluded, it requires that all occupants of the building have free and unobstructed egress. Accordingly, he vacated because he concluded that the employees working in the building had such egress either through the front pedestrian door or through either overhead door. We reverse.

As Judge Brennan properly determined, the first sentence of the cited standard by its terms requires only that some means of free and unobstructed egress by provided. However, the Judge erred because he failed to consider the second sentence prohibiting a ‘lock or fastening to prevent free escape from the inside of any building . . ..’ The padlock on the rear pedestrian door has precisely this effect; it prevents free escape. And while we are sympathetic to Techno’s legitimate concern for the security of its employees, we have since indicated, on substantially similar facts, that security considerations are not sufficient justification for locking an exit door in a manner so as to deny ready egress to employees. Pratt and Whitney Aircraft, 16 OSAHRC 345,394, BNA 2 OSHC 1713, CCH E.S.H.G. para. 19,443 (1975). Moreover, the record shows that Techno could with Labor’s approval provide a lock to serve its security needs which would comply as well with the egress requirements of the standard. Accordingly, the evidence establishes a failure to abate.[4]

Turning now to the penalty, we consider Labor’s proposed penalty of $285 for the failure to abate this violation to be unreasonably high. The gravity is reduced by the existence of the heretofore mentioned sprinkler system and the unlocked front pedestrian exit. Considering also that only a small number of employees work in the building we find the gravity to be low to moderate. The parties also stipulated that Techno’s size is relatively small, and its motive for locking the exit indicates that this action was taken in good faith. We conclude that a penalty so $100 is appropriate.

Accordingly, the notification alleging failure to abate is vacated as to the 29 C.F.R. § 1910.107(f)(4) charge and affirmed as to the 29 C.F.R. § 1910.36(b)(4) charge. A penalty of $100 is assessed. The Judge’s decision is modified so as to be consistent with this decision and as modified is affirmed. So ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATE: FEB 11, 1976

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

The holding of the latter part of the opinion is that 15 employees were exposed to fire hazard even though they worked in a building where there were three doors they could use to escape from their work area in the event of fire. The author of that opinion is head of a government agency which has three times more employees working on the 4th floor of an office building from which there are only two exits which employees could use in event of fire. It is clear to me that Techno employees can escape a fire in their workplace at least four times more readily than can the OSAHRC employees for whose safety Mr. Barnako is responsible.

I point this out—not to question the adequacy of OSAHRC’s existing protection from fire hazard—but to demonstrate both the assonance of the Commission’s ruling in this case and the triumph of form over substance which it represents.

It is my view that Judge Brennan correctly decided this case, and his decision should be affirmed in its entirety for the reasons given by him. Since I agree with his determination that the charge of noncompliance with 29 C.F.R. § 1910.36(b)(4) cannot be sustained on the evidence in this case, I would vacate the subsequent notification of a failure to abate which pertains thereto.

Judge Brennan properly concluded that section 1910.36(b)(4) does not require that all exits must be maintained so as to provide free and unobstructed egress from all parts of the building. That standard provides that:

‘In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape shall be installed except in mental, penal or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency.’ (Emphasis added.)

As Judge Brennan noted, there is nothing within this regulation to indicate how many such exits must be provided.

The record establishes that 15 employees worked at the respondent’s worksite which had four doors. Aside from the locked rear door, there was another exit door and two overhead doors. All of the latter three remained unlocked during business hours. Any one of them was available as an exit in case of an emergency.[5] Since there were three alternate exits, locking the rear door in no way prevented ‘free escape’ from the building.

I am also compelled to take issue with the following statement in the foregoing opinion:

‘And while we are sympathetic to Techno’s legitimate concern for the security of its employees we have since indicated, on substantially similar facts that security considerations are not sufficient justification for locking an exit door in a manner so as to deny ready egress to employees. Pratt and Whitney Aircraft, 16 OSAHRC 345, 394, BNA 2 OSHC 1713, CCH E.S.H.G. para. 19,443 (1975).’

The instant case is readily distinguishable from the case relied on by my colleagues. In Secretary v. Pratt and Whitney Aircraft, supra at 393–394, Judge Bates states:

‘Let it suffice to say, in accord with the above-listed findings of fact that the Secretary sustained his burden of proving through substantial evidence that the reasonable safety of numbers of employee-occupants [more than 100] in the Respondent’s assembly room . . . was endangered in that only one ‘means of egress’ (Door A), was available to such occupants, and that door was available only on the first and second shifts and particular week-end shifts when the work shift was large. No ‘means of egress,’ within the definition of same, above, would therefor be available to assembly room occupants on those occasions when Door A was locked an [sic] unmanned or indeed under conditions when Door A was in manned, open operation, but blocked by fire, smoke or other emergency conditions. (Emphasis added.)

I feel it only fair to note however, that the above described patently hazardous situation apparently resulted from the Respondent’s efforts to comply with Department of Defense (D.O.D.) security regulations pertaining to the safeguarding of classified defense information, in this case by the securement of the assembly room area . . .. While such security compliance is necessary and under normal circumstances laudable, in this case it appears that it conflicts with the parallel, if not superior interest of employee health and safety as represented by 29 CFR 1910.36(b)(8) of the OSHA safety regulations. In this age of technical efficiency and sophistication there appears to be no reason why the Respondent could not install appropriate exit facilities for the Safety of its assembly room employees which would be in joint compliance with both security (D.O.D.) and safety (O.S.H.A.) regulations.’

It should be rather obvious that the reliance on this case is misplaced—a maximum of one exit for 100 employees vis-a-vis three exits for 15 employees. Not only have my colleagues cited a case in which the facts were strikingly dissimilar, but they have also misconstrued the holding therein. As is indicated above, Judge Bates held that when the need for safeguarding classified information conflicts with the need to protect the safety and health of employees, the latter being paramount shall take precedence.

In the case at hand there was no such conflict. The rear door was locked for the protection of the employees from intrusion by undesirables. The quintessence of the Act is to assure so far as possible safe and healthful working conditions. 29 U.S.C. § 651(b). It is rather extraordinary that the majority would reject the respondent’s efforts in this regard. Barring one door to protect employees from the hazard of intruders—even though there were three other ways employees could exit in case of fire—is a violation of the law, Messrs. Barnako and Cleary say. It is apparently of no concern that intruders presented more of a safety threat than did fire because there is nothing in their regulation book on that one.

Since both opinions in this decision refer several times to Judge Brennan’s decision, the full text of the same is attached hereto as Appendix A.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3624
TECHNO PRODUCTS, INC., DBA TECHNO TRUCK MANUFACTURING CO.,
Respondent.

FINAL ORDER DATE: May 31, 1974

DECISION AND ORDER

APPEARANCES:

For the Secretary of Labor W. S. Kloepfer Associate Regional Solicitor 881 Federal Office Building 1240 East Ninth Street Cleveland, Ohio 44119 Attn: Gregory B. Taylor, Esq.

For the Respondent Richard A. Fromson, Esquire Nadler, Sokolsky and Bahas 1000 One Public Square Building Cleveland, Ohio 44113

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 an ‘Amended Notification of Failure to Correct alleged Violation and of Proposed Additional Penalty’ issued pursuant to Sections 9(b) and 17(d) of the Act, on June 19, 1973, by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Cleveland, Ohio (hereinafter Complainant) to Techno Products, Inc., of Cleveland, Ohio, (hereinafter Respondent).

On January 5, 1973 the Complainant issued a Nonserious Citation to Respondent containing 13 numbered Items together with a Notification of Proposed Penalty in the total amount of $465.00.

On January 22, 1973 an Amended Nonserious Citation was issued to Respondent in which the original Item No. 2 was withdrawn and Item No. 1 was amended. The Amended Notification of Proposed Penalty reduced the proposed penalty for Item No. 1 from $150.00 to $50.00, and withdrew the original proposed penalty of $45.00 for Item No. 2, resulting in a total proposed penalty of $320.00.

The Amended Nonserious Citation and amended proposed penalties were not contested by Respondent and became the final Order of the Review Commission by operation of Section 10(a) of the Act.

After the expiration of the latest abatement date set forth in the Amended Nonserious Citation, a reinspection of Respondent’s plant located at 1961 East 61st Street in Cleveland was made on June 1, 1973. On June 5, 1973 the Complainant issued to Respondent a Notification of Failure to abate 8 of the 12 conditions set forth in the Amended Citation, (Items numbered 1, 2, 3, 4, 5, 9, 10 and 12) and proposed additional penalties in the total amount of $1880.00.

On June 19, 1973 an Amended Notification of Failure to abate was issued which withdrew Items numbered 2 and 10 from the Original Notification, as well as the $200.00 proposed additional penalty for each of these items, resulting in a proposed additional penalty for failure to abate of $1480.00.

Pursuant to Section 10(c) of the Act, Respondent, through its President, gave notice of its intention to contest the Amended Notification and Proposed penalties.

After the filing of the Secretary’s Complainant and Respondent’s Answer by its counsel, this case came on for hearing at Cleveland, Ohio on November 7, 1973.

No other person desired party status.

The Complainant’s brief and findings were filed on December 20, 1973. The Respondent did not file any post hearing documents.

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.

The parties stipulated the following:

The correct name of Respondent is Techno Products, Inc., doing business as Techno Truck Manufacturing Company. It is an Ohio Corporation with its principal office located at 20850 St. Clair Avenue, Cleveland, Ohio. It is engaged in the manufacture of food handling equipment and deals extensively in interstate commerce. It is the smallest such business in the general area having total sales during 1972 of approximately $900,000. The worksite involved in this case is one of Respondent’s two plants, located on East 61st Street in Cleveland where it employs 15 employees. Respondent has no known history of prior violations of laws or regulations affecting the health or safety of employees.

The conditions alleged not to have been corrected on June 1, 1973 are set forth in the Complaint as follows:

Item	Regulation	Abatement Dates	Violation
1	29 CFR 1910.107(c)(2) & (6), (e)(2), (f)(4), (g)(2) & (7)	2/28/73	Failed to provide and/or maintain adequate spray booth operation: a. Heater located less than 20 feet from spray booth not separated by partition. b. Electrical overhead fixtures within spray booth and outside (but less than 20 feet from) not approved type. c. Quantity of combustible liquids kept in vicinity exceeds one day’s supply. d. Inadequate supply of portable fire extinguishers. e. Accumulation of combustible residues in spray booth. f. Inadequate ‘No Smoking’ signs in vicinity of spray booth (employee smoking in paint supply room adjacent to spray booth).
3	29 CFR 1910.141(a)(1)(i) & (ii)	5/30/73	Failed to maintain adequate housekeeping: a. Restroom adjacent to spray booth. b. Materials scattered in storage area. c. General plant area—floors flooded with water.
4	29 CFR 1910.212(a)(1)	2/28/73	Failed to provide adequate guarding of belts on power drill and compressor.
	29 CFR 1910.212(a)(5)	2/28/73	Failed to provide adequate guarding fan blades.
9	29 CFR 1910.157(d)(2)(i)	1/3/73	Failed to maintain monthly inspection of portable fire extinguishers.
12	29 CFR 1910.36(b)(4)	3/2/73	Failed to maintain exit in a manner which provides free and unobstructed egress (exit in rear of plant locked).

The Complainant produced one witness, Compliance Officer Szakovits, who made both the original inspection on December 19, 1972 and the routine reinspection on June 1, 1973.

Item No. 1

As to this Item, the Compliance Officer (hereinafter CO) testified that the first three conditions, Item 1(a), (b), and (c) had been corrected upon reinspection, but the last three conditions, Item 1(d)(e) and (f) had not been corrected (Tr. 50, 51).

Item No. 1(d)—‘Inadequate supply of portable fire extinguishers.’

The Standard relied upon by Complainant as to this charge, as set forth at 29 CFR 1910.107(f)(4), provides:

(4) Portable extinguishers. An adequate supply of suitable portable fire extinguishers shall be installed near all spraying areas.

The C.O. testified to having observed one fire extinguisher ‘. . . in the immediate area . . .’ of the paint spray booth on the original inspection, and to having seen it again on the reinspection. After the original inspection at the closing conference he advised Respondent that in his opinion, two fire extinguishers would constitute an ‘adequate supply’ under the circumstances, which included the presence of an overhead spinkler system which the C.O. did not determine to be operational because to make this determination would be ‘impractical’. (Tr. 15, 58, 59, 60).

The Respondent, evidently questioning what was meant by ‘an adequate supply of suitable portable fire extinguishers . . .’ as set forth in the cited Standard, met with the Area Director, Mr. Bowman on January 19, 1973, which resulted in a letter from Mr. Bowman dated January 22, 1973. In this letter, Mr. Bowman stated that the cited Standard, ‘. . . means there must be a minimum of two (2) fire extinguishers.’ (Exh. C–1, Tr. 15–19).

The Respondent defends against this charge on the ground that the Standard is vague and unspecific and subject to varying interpretations by various compliance officers or inspectors. Indeed the C.O. here readily admitted that someone other than himself might have a different opinion as to what number of fire extinguishers might be considered ‘an adequate supply . . .’, all other facts being equal (Tr. 60).

In my opinion the cited Standard is vague and nonspecific. What is ‘an adequate supply . . .’ of portable fire extinguishers, and what constitutes ‘. . . suitable . . .’ extinguishers are not specified in this Standard. As Chairman Moran has pointed out, ‘The enforcement of vague standards . . . results in denial of the respondent’s right to due process of law. This constitutional requirement affords to parties against whom regulations are enforced the right to have fair warning of the conduct which is prohibited or required whenever the violation of such regulations are subject to civil or criminal sanctions. It also requires that a party be free from arbitrary application of the law which can vary with each individual enforcement official.’ (Secretary of Labor v. Santa Fe Trail Transport Company; OSHRC Docket No. 331, /18/73).

Based upon the Commission decision in the Santa Fe case supra and the authorities therein cited, the charge encompassed in Item No. 1(d) and penalty proposed thereon must be vacated.

Item No. 1(e)—‘Accumulation of combustible residues in spray booth.’

The Standard relied upon, as set forth at 29 CFR 1910.107(g)(2), provides:

(2) Cleaning. All spraying areas shall be kept as free from the accumulation of deposits of combustible residues as practical, with cleaning conducted daily if necessary. Scrapers, spuds, or other such tools used for cleaning purposes shall be of nonsparking material.

The C.O. testified as to this charge that upon reinspection, ‘There was an accumulation of residue on the fixtures, the piping and all the walls.’ of the paint spray booth (Tr. 15). Further, ‘It was not maintained, there were indications of deposits on the piping and also the fixtures and also the wall was, or had accumulation of paint.’ (Tr. 20). He photographed this scene which photograph was admitted as Exh. C–2 #2. He was told by Respondent that the paint used in this booth was combustible (Tr. 21). He further testified that on his follow-up inspection on June 1st, the residues had been reduced (Tr. 21). He explained the basis for his conclusion as to this charge, ‘. . . was just my observation of the interior of the booth itself. There was an accumulation on the interior of the booth.’ (Tr. 22). He testified that due to the nature of the articles painted in this spray booth there was a considerable amount of paint which would accumulate on the interior of the booth and adjacent pipes. He did not ascertain the volume of painting done in this booth during any given period, and could not recall instructing Respondent that daily cleaning would be necessary (Tr. 64–71). In fact, there is no showing in the Complainant’s evidence, that any further reduction of the paint accumulation in the spray booth could have ‘practically’ been accomplished by Respondent.

Respondent’s plant foreman Mr. Milliron testified that the normal procedure at this worksite is to paint 64 carts at any given time, as Respondent ships this number of units routinely in its standard shipments. This painting process usually takes two days. After the 64 carts are painted, ‘. . . the painter scrapes the floor and the walls, changes the filter and generally cleans the area.’ (Tr. 98).

As to this case, under the Standard allegedly violated, the Complainant has the burden of establishing by substantial evidence that ‘. . . spraying areas . . .’ are not ‘. . . kept as free from the accumulation of deposits of combustible residues as practical, with cleaning conducted daily if necessary.’ (29 CFR 1910.107(g)(2) underlining supplied). To meet this burden, there must be some showing that a reduction of residue, beyond that accomplished by Respondent, is practical.

Upon the state of the evidence of this record, the Complainant has not met this burden of proof and thus this charge and the proposed penalty based thereon must be vacated.

Item No. 1(f) ‘Inadequate ‘No Smoking’ signs in vicinity of spray booth (employee smoking in paint supply room adjacent to spray booth).

The Standard relied upon, as set forth at 29 CFR 1910.107(g)(7) provides:

(7) ‘No Smoking’ signs. ‘No smoking’ signs in large letters on contrasting color background shall be conspicuously posted at all spraying areas and paint storage rooms.

The CO testified that upon his reinspection a ‘No Smoking’ sign was displayed in the area of the paint spray booth, but this sign was ‘. . . quite small and difficult to read.’ (Tr. 22). Although he did not measure these signs, he opinioned that the sign was ‘several inches high’ with an overall length of about ‘one foot’. (Tr. 22 to 74). He stated, ‘The signs should be large enough to indicate a hazard before the employee walks into the area where the problem is because he is not walking in the area to read the signs. In this particular case, I felt it was not adequate and Section 1910.145 of the Federal Register, page 22239 covers the requirement for signs and so forth and after reviewing that section I felt that the signs in this particular case were not adequate.’ (Tr. 22, 23).

The CO readily admitted that no information was given Respondent after the original inspection concerning the exact size of the required signs (Tr. 71, 72). This one ‘No Smoking’ sign he observed on the reinspection was also present during his original inspection. Although he suggested that additional ‘No Smoking’ signs had been posted at other locations in the plant, the condition at the spray booth was not altered on June 1st from the time of the original inspection (Tr. 73–77).

Mr. Stribinger, Respondent’s superintendent testified that prior to the reinspection, sometime in March or April, seven additional ‘No Smoking’ signs were ordered but had not been received on June 1st. Since that date however, these signs have been received and posted throughout the plant including one additional sign near the spray booth. These new signs were ‘. . . the biggest that we could buy,—they are good size, red background with white letters.’ (Tr. 130, 131).

It is noted that the C.O. relied upon a Standard (29 CFR 1910.145), which spells out the specifics as to the required sizes of various signs, including ‘No Smoking’ signs, in concluding that Respondent failed to abate this violation, but never referred the Respondent to this Standard, or indeed, never gave the Respondent any information as to required sizes. Thus Respondent, in attempting to bring its plant into complete compliance, ordered the ‘biggest’ signs available. Further, additional signs were ordered prior to the reinspection, but, as far as the evidence of record establishes, were not received not through any fault of Respondent. Thus it is concluded, that although there was a technical failure to abate Item No. 1(f), this failure was due to circumstances beyond Respondent’s control and consequently, any penalty for this failure is not reasonable or appropriate. Therefore, this charge will be affirmed but no penalty assessed.

Item No. 3—‘Failed to maintain adequate housekeeping:

a. Restroom adjacent to spray booth.

b. Materials scattered in storage area.

c. General plant area—floors flooded with water.’

The Standard relied upon, as set forth at 29 CFR 1910.141(a)(1)(i) and (ii) provides:

(a) General requirements.

(1) Housekeeping.

(i) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

(ii) The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition. Where wet processes are used, drainage shall be maintained and false floors, platforms, mats, or other dry standing places should be provided where practicable.

As to this charge, the C.O. testified that ‘there were deposits or accumulations of dusts on lockers in the toilet area, washing facilities and so forth.’ (Tr. 23). However, his real concern was some broken windows and ‘. . . debris scattered all over the storage area . . .’. (Tr. 23). The evidence reveals that at the time of the reinspection, the Respondent was building the new storage area involved, installing storage racks and moving material into this new area, which work had not been completed on June 1st. Approximately 15 to 20 percent of the window panes in an interior wall were broken. No broken glass was found on the floor of this area however. The CO felt that the broken panes within the window frame presented a hazard to Respondent’s employees installing the new storage racks (Tr. 23–26). He found this condition corrected however when he reinspected for a second time in mid-June (Tr. 23).

Upon cross examination it was brought out that as to the rest room, the dust found by the CO was on top of lockers and on windowsills. The CO admitted ‘. . . that some areas were clean, some areas may not have been cleaned.’ (Tr. 78). At the time of the reinspection, this facility was not completely enclosed and the work of constructing the new storage area, near the rest room, undoubtedly contributed significantly to the dust problem.

As to Item No. 3c. ‘floors flooded with water’., the CO testified that on the original inspection there was a leaking roof which resulted in some water on the plant floor. However when reinspected on June 1st, the leak in the roof had been repaired and the plant floor was dry.

Mr. Stribinger, Respondent’s superintendent testified that Respondent has had difficulty keeping a maintenance man in its employ, but at the time of hearing it had two such employees on its payroll. Further, that the mens room at the worksite is cleaned once a day. Additionally he confirmed that fact that the leak in the roof had been repaired by Respondent’s own employees by June 1st. (Tr. 131–133).

On this state of the evidence I conclude that the Secretary has not proven the charge connected with Item No. 3. The dust found in the rest room was a condition caused by the construction work being carried on by Respondent, and was a condition beyond the reasonable control of Respondent on June 1st. This condition has been rectified. The ‘materials scattered in [the] storage area’, in part had been rectified on June 1, and the remaining material was due to the renovation of the storage area. The ‘flooded floors’, and cause thereof were corrected upon reinspection. The broken window panes are not specifically covered by the Standard relied upon and in any event, this condition was corrected by mid-June. Thus the charges embraced by Item No. 3 and penalty proposed thereon must be vacated.

Item No. 4—‘Failed to provide adequate guarding of belts on power drill and compressor.’

The Standard relied upon, as set forth at 29 CFR 1910.212(a)(1) provides:

(a) Machine guarding—(1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are—barrier guards, two-hand tripping devices, electrenic safety defices, etc.

The evidence reveals that on the original inspection, a drill at Respondent’s 61st Street plant was not adequately guarded in the opinion of the CO. Upon reinspection however, this particular drill had been ‘. . . taken out of service.’ (Tr. 28) and a new drill installed, which, in the CO’s opinion also was not properly guarded (Tr. 28, 29).

On these facts of course, the charge of failure to abate cannot be sustained because the offending drill on June 1st was a different drill than originally cited. However, the evidence further reveals that when this new drill was installed, it was determined that its motor was not sufficient. Consequently, the guarding on this drill, and its motor was removed prior to June 1st, and it was in this condition when inspected by the CO on June 1. Thus, this drill was not operative on June 1st. (Tr. 95).

As to the ‘compressor’ the CO’s testimony concerning this piece of equipment is vague at best. He testified that the compressor, located next to a wall in the production area, when he observed it upon reinspection, was partially but not totally guarded. The unguarded drive belt and pulley were next to the wall and there was not sufficient room for an employee to fit between the wall and compressor. Although he did not measure this compressor the CO believed that an employee could reach over the compressor and be exposed to a ‘minimum’ hazard. (Tr. 29–34). Upon cross examination the CO admitted that he could not say, either from his notes or recollection, that there was or was not a steel mesh cage completely guarding the compressor on June 1st. (Tr. 81, 82).

Respondent’s plant foreman, Mr. Milliron testified that prior to the original inspection, the compressor in question was not guarded. However, prior to the reinspection, a heavy wire mesh cage was built and installed around the compressor and this cage was in place on June 1st. (Tr. 94).

Upon this state of the evidence of record it is concluded that the charge embraced under Item No. 4 has not been proven by Complainant. Thus this charge and the penalty proposed thereon must be vacated.

Item No. 5 ‘Failed to provide adequate guarding fan blades.’

The Standard relied upon, as set forth at 29 CFR 1910.212(a)(5) provides:

(5) Exposure of blades. When the periphery of the blades of a fan is less than seven (7) feet above the floor or working level, the blades shall be guarded. The guard shall have openings no larger than one half (1/2) inch.

The CO testified that upon his reinspection, one floor fan located in the welding area was inadequately guarded. This fan did have a metal guard over the blades as supplied by the manufacturer but this guard had openings larger than 1/2 inch as required by the Standard. (Tr. 35–50). Upon cross examination the CO admitted that of about 5 such fans in Respondent’s plant, all but one had had additional guarding installed. (Tr. 83–84).

Respondent’s plant foreman testified to having personally fabricated and installed additional wire mesh guarding on four of Respondent’s fans, but readily admitted to not having installed the additional guarding on the fan in question on June 1st. (Tr. 95–96).

Upon this state of the evidence I conclude that abatement had not been accomplished as to this one fan, whereas it had been accomplished as to four fans. Further, in my view, the imposition of any penalty for this infraction, in light of all the circumstances presented by this record, and based upon the extremely minimal employee exposure to this similarly minimal hazard, will not further the objectives of the Act. Thus the penalty proposed will be vacated.

Item No. 9 ‘Failed to maintain monthly inspection of portable fire extinguishers.’

The Standard relied upon, as set forth at 29 CFR 1910.157(d)(2)(i) provides:

(2) Inspection. (i) Extinguishers shall be inspected monthly, or at more frequent intervals when circumstances require, to insure they are in their designated places, to insure they have not been actuated or tampered with, and to detect any obvious physical damage, corrosion, or other impairments.

The CO testified that upon his reinspection, he checked the maintenance tags on an unspecified number of portable fire extinguishers in Respondent’s plant. These tags bore a stamped date of ‘October 1972’, the same date he observed during his original inspection. He therefore concluded that these extinguishers had not been inspected monthly. (Tr. 40–44). Upon cross examination the CO could not recall whether he had asked anyone if monthly inspections had been made. (Tr. 85).

The plant foreman testified that his ‘normal practice’ was to check the 12 fire extinguishers in the plant monthly and readily admitted that he had not made any notation or record of these inspections. (Tr. 92–93, 100).

It is noted that the Standard relied upon does not require that any record or notation of the monthly inspections be made or maintained. Thus, based upon the evidence of this record it is concluded that monthly inspections had been made of Respondent’s portable fire extinguishers and the Complainant has not proven its charge under Item No. 9. This charge and the penalty proposed thereon must be vacated.

Item No. 12 ‘Failed to maintain exit in a manner which provides free and unobstructed egress (exit in rear of plant locked).

The Standard relied upon, as set forth at 29 CFR 1910.36(b)(4) provides:

(4) In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency.

The CO testified that on the original inspection, a rear exit door in Respondent’s plant was padlocked on the inside, which condition remained unchanged on June 1st. (Tr. 44–46).

Upon cross examination it was brought out that during the original closing conference there was ‘considerable discussion’ concerning this condition as it related to employee safety. Additionally, upon the suggestion of the CO the hinges on this door had been changed so that the door swung outward. (Tr. 85–86).

Respondent’s President, Mr. Isaacs testified that the rear exit door had been padlocked because at sometime prior to the original inspection, an armed, disgruntled, ex-employee had entered the premises through this door, which abutted an alley, which was ‘. . . not a very pleasant experience.’ Thus, in order to protect his employees and premises, the door had been kept locked. (Tr. 120–121).

He further testified that this plant has four doors, the one locked door, one exit door at the front of the plant, and two overhead doors, one of which is 13 feet wide to allow vehicle entry the other overhead door being used at a loading dock. Three of the four doors remain unlocked during business hours. (Tr. 121). Since June 1st, in order to comply with the CO’s recommendation, the rear exit door has been left unlocked despite potential danger, and efforts are being made to find an appropriate method to secure this exit. This testimony was confirmed by Respondent’s Superintendent. (Tr. 134–135). There are 15 employees at Respondent’s worksite.

Under the express terms of the Standard relied upon, it is concluded that the charge under Item No. 12 has not been proven. It is noted that this Standard does not require that all exits be maintained so as to provide free and unobstructed egress from all parts of the building or structure. Rather, the precise terms and obvious intent of this Standard is that free and unobstructed egress for all occupants of the, building or structure must be maintained when the building is occupied. Upon the evidence of this record, it is impossible for me to, conclude that the 15 employees normally occupying this premises did not have ‘free and unobstructed’ egress from this building through either the front exit or through either of two 13 foot wide overhead doors, none of which were locked during business hours. Thus this charge and the penalty proposed thereon must be vacated.

At all times involved in this case, Respondent furnished employment to its employees at the worksite hereinbefore identified. The Act is applicable to such employment within the meaning of Section 4(a) thereof and the Commission has jurisdiction of the parties and the subject matter herein pursuant to the provisions of Section 10 thereof.

Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c) and 12(j), of the Act, it is hereby, ORDERED:

1. That the charges of failure to abate Items numbered 1a, b, c, d, and e; Item No. 3; Item No. 4, Item No. 9 and Item No. 12 and the penalties proposed thereon are VACATED.

2. That the charges of failure to abate Item No. 1(f) and Item No. 5, as specified in the foregoing findings, are AFFIRMED. No penalties are assessed thereon.

WILLIAM E. BRENNAN

Judge, OSHRC

Dated: May 1, 1974

Washington, D.C.

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[1] The cited standard provides:

(4) Portable extinguishers. An adequate supply of suitable portable fire extinguishers shall be installed near all spraying areas.

[2] Commissioner Cleary concurs but also notes that in his view the Commission does not have authority to determine whether a standard is vague. See his opinions in United States Steel Corp., BNA 2 OSHC 1343, CCH E.S.H.G. para. 19,047 (1947); Santa Fe Trail Transport Co., 5 OSAHRC 840, BNA 1 OSHC 1457, CCH E.S.H.G. para. 17,029 (1973), rev’d, 505 F.2d 869 (10th Cir. 1974); Divesco Roofing & Insulating Co., 4 OSARC 339, BNA 1 OSHC 1279, CCH. E.S.H.G. para. 16,443 (1973).

[3] The cited standard provides:

In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire.

[4] We further note that only one of the three means of egress on which the Judge’s decision relies was a pedestrian exit, and that, although the issue is not before us, a side-hinged, swinging type of exit door is required by 29 C.F.R. § 1910.37(f)(2). Indeed, Techno indicated that the two entryways equipped with overhead doors were not intended for personnel use. However, since we affirm Labor’s charge on a different basis, we need not determine whether the Judge erred in his conclusion that Techno’s employees had adequate means of unobstructed egress from the building.

[5] The Commission decision indicates that only ‘the two pedestrian exits are intended by Techno for use by persons.’ I submit that normal usage of the remaining two doors is irrelevant because in an emergency situation a person of common sense could be expected to disregard normal usage and utilize them as a means of ‘free escape.’