SECRETARY OF LABOR,

Complainant,

v.

COLECO INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 84-0546

DECISION

BEFORE: FOULKE, Chairman;

MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

Following the investigation of a fatality at one of its facilities, the
Secretary of Labor issued a citation alleging that Coleco Industries,
Inc. had willfully violated section 5 (a) (1) , 29 U.S.C.§ 654(a)(1),
[[1/]] of the Occupational Safety and Health Act of 1970, 29 U.S.C. §
651-678 ("the Act"). The citation alleged that safety equipment on an
elevator, which had inadvertently been set in motion and crushed an
employee, was either missing or had been rendered inoperative. Former
Review Commission Administrative Law Judge David J. Knight found that
Coleco had willfully violated section 5(a)(1) and assessed a $10,000
penalty. Based on the reasons set forth below, the Commission agrees
with the judge's conclusions that Coleco willfully violated section 5
(a) (1) and that a $10,000 penalty is appropriate.

I. Factual Background

Coleco is a toy manufacturer with a manufacturing and distribution
complex in Amsterdam, New York. Building 8 in Coleco's complex is a
ten-story warehouse used to receive, store and ship raw materials and
finished products. The building contains two freight elevators,
designated numbers 12 (the west elevator) and 13 (the east elevator).
The elevators are used to move goods onto the building's upper floors
for storage and onto the lower floors for shipping. Most materials moved
by the elevators are stored on pallets and moved on and off the
elevators by forklifts.

On February 17, 1984, Coleco employee Blaine Lamson was using a forklift
to load material onto elevator 12 from the third floor when the elevator
unexpectedly began to rise. This resulted in him being crushed to death
between the forklift and the top of the elevator hoistway opening. OSHA
was notified of the fatality and investigated the incident.

The record in this case reveals the following essentially undisputed
facts. On the third floor, elevator 12 opened on its east side. On that
side the elevator had a gate, but it did not have a sill plate. (A sill
plate is a steel plate used to bridge the gap between an elevator car
and the floor at which it is stopped.) With a sill plate in place,
forklift trucks pass more easily over the gap. On the elevator's west
side there was a sill plate, but no gate. At the time of the fatality,
the doors on the east side of the elevator were open, and Lamson had
opened the gate on that side to load the elevator.[[2/]]

Because the locking mechanism on the handle that operated the sill plate
on the west side of the elevator did not work, and there was no gate on
that side, if the sill plate were to fall, it would rest against the
elevator doors. If the elevator began to move with the sill plate
against the door, the plate could come into contact with stationary
components in the elevator shaft and possibly be damaged itself or
damage other equipment.

In order to avoid such damage, employees usually wedged a piece of wood
between the sill plate handle and the side of the elevator to keep the
sill plate upright. Lamson, however, had taken a length of "avis strap,"
a type of strap used to secure packages to pallets, and tied one end of
the strap to the sill plate handle and the other end to the elevator
control handle. Unfortunately, this effort apparently failed to secure
the sill plate. The sill plate fell, pulling the sill plate handle,
which in turn pulled the elevator operating control clockwise and caused
the elevator car to rise. Lamson's forklift was partially on the car at
the time, and the resulting fatal injury occurred.

On each floor of building 8 were doors that, when open, could provide
access to elevators 12 and 13. When closed, the doors would isolate the
elevator shafts on that floor. The elevator doors were manually-operated
and bi-parting, i.e., when a door was opened, the bottom half would
retract into the floor and the top half would retract into the ceiling.
The doors rode within vertical rails at the sides of each door opening.
Each elevator door was equipped with an electrical interlock switch that
was designed to prevent elevator movement when the door was not fully
closed. However, doors and rails were often damaged so that some of the
doors could not fully close. Even when one set of doors could not fully
close, an elevator could only be operated by bypassing the interlocks.
Coleco employees accomplished this by installing a jumper cable in the
control panel of the elevator engine room. Production demands made it
necessary to keep the elevators running, and because the doors and rails
were frequently damaged, it was common for employees to operate the
elevators with the interlock switches intentionally bypassed.

The east side of elevator 12 was equipped with a gate which, when
closed, isolated the car from the elevator shaft in which it moved. The
gate moved vertically to open and close, and it was equipped with
"contacts" -- electrical devices like those used on door
interlocks--that were designed to prevent the elevator from moving when
the gate was not fully closed. At the time of the accident, the elevator
moved with the east gate in the open position, indicating that the
contact switch for that gate was bypassed. The gate on the west side of
elevator 12 had been missing for approximately six months at the time of
the accident. Coleco had fabricated a gate for the west side; however,
it had not been installed by the time of the accident. Since the west
gate was missing, the interlock for that gate could not be relied on to
prevent the elevator from moving.

The sill plate on the east side of elevator 12 was hinged to the
elevator car floor so that it could be raised or lowered. It was also
equipped with an interlock that prevented the car from moving if the
plate was not in the fully raised position. This interlock also had been
bypassed. The sill plate could be raised or lowered by moving a handle
in the elevator car. The handle was supposed to lock in position when
the plate was upright. However, at the time of the accident, the handle
did not lock in position.

Each elevator car's up-and-down movement was regulated by an electrical
control in the car. When the control was in its upright, or neutral,
position, the elevator would not move. When the control was rotated
clockwise, the elevator would move up; and when rotated
counterclockwise, the elevator would move down. The knob on the control
was supposed to be spring loaded, so that the knob would have to be
pulled outward before the control would rotate. However, because the
spring-loading mechanism was defective on elevator 12, the control
apparently could rotate without the knob being pulled.

Following her investigation of the accident, the Secretary issued a
citation charging Coleco with a willful violation of section 5(a)(1) of
the Act. Item 1(a) of the citation alleged that Coleco "[e]mployees were
permitted to load, unload, ride in and work near" elevator 12 "without
adequate precautions taken to prevent the elevator car from moving, when
it should not," in that, at the time the elevator moved: (1) all its
access (hoistway) doors were not fully closed and not equipped with
functioning door interlocks, (2) its east gate was not fully closed and
not equipped with a functioning electric contact switch, (3) its west
end gate had been removed and the electric contact switch for the gate
was not functioning, (4) its west end sill plate lacked a functioning
electric contact switch, and (5) its west end sill plate control lever
was not functioning and was tied to the elevator's control lever. Item
1(b) of the citation alleged, with respect to elevator 13, that its
access doors were not fully closed and lacked functioning door
interlocks, and that its car gates lacked functioning electric contact
switches.

The citation recommended the following abatement measures: (1) the
repair or replacement of all the electric interlocks and contact
switches referred to in the citation, (2) the installation of the
missing car gate on elevator 12, (3) the repair of elevator equipment
malfunctions and nonuse of malfunctioning elevators, (4) the prohibition
of the bypassing of electric contact switches and interlocks, and (5)
the maintenance of all sill plates in proper condition.

Judge Knight affirmed the citation. He found that the operation of
elevators 12 and 13 exposed Coleco employees to hazards that "could
cause or would likely cause death or serious physical harm" and that
Coleco had actual knowledge of the hazards, which resulted from its
failure to use door interlocks, as well as gate and sill plate contact
switches. He also found that Coleco had "constructive notice" that the
absent preventive devices must be used on its elevators. The judge
concluded that the violation was willful because Coleco acted with plain
indifference to the requirements of the Act and was "inattentive", to
the safety of its employees who used the elevators.

II.

Proof of a Section 5(a)(1) Violation

(a) The Secretary's Prima Facie Case

To prove that an employer violated section 5(a)(1), the Secretary must
show: (1) that a condition or activity in the employer's workplace
presented a hazard to employees, (2) that the cited employer or the
employer's industry recognized the hazard, (3) that the hazard was
likely to cause death or serious physical harm and (4) that feasible
means existed to eliminate or materially reduce the hazard. United
States Steel Corp., 12 BNA OSHC 1692, 1697-98, 1986-87 CCH OSHD ¶
27,517, p. 35,669 (No. 79-1998, 1986).

There is little dispute over the first, third and fourth elements, and
the Commission concludes that the Secretary has established those
elements of her burden of proof. With respect to the first element,
whether the Secretary established that the elevators presented a hazard
to Coleco employees, the record clearly shows that the system of
interlocks and contacts that would ordinarily prevent Coleco's elevator
cars from moving, unless the doors and gates were completely closed had
been bypassed, allowing the cars to move whether the doors and gates
were open, closed, or missing. Numerous employees testified that they
either regularly or occasionally operated the elevators or used forklift
trucks to transport freight onto the elevators. The Secretary's elevator
expert, Crager, testified that the absence of functioning inter-locks
meant that an elevator could operate with its doors opens, which meant
that a person or forklift could fall into the open shaft. Crager also
testified that the absence of an elevator gate and functioning
interlocks was hazardous because a person on a moving car could be
struck by a projection in the elevator shaft or fall into a space
between the car platform and the hoistway walls. [[3/]] The accident
itself demonstrates that the lack of functioning door interlocks
permitted an elevator to move while it was being loaded, subjecting the
employee doing such work to numerous hazards, including the hazard of
being crushed between the moving elevator and the stationary hoistway
structure. Also, employees Reese and Farina testified that employees
standing on the shop floor occasionally stuck their heads into the
elevator shaft to look for or call an elevator, thereby exposing
themselves to the hazard of being struck by a moving elevator.

In regard to the third element of proof, we agree with Judge Knight's
finding that the hazard of an elevator potentially able :o move with its
doors and gates open could cause death or serious physical harm. Coleco
has not taken exception to this finding. Here, the hazard caused the
death of an employee. See Simplex Time Recorder Co., 12 BNA OSHC 1591,
1597, 1984-85 CCH OSHD ¶ 27,456, p. 35,572 (serious violation evident
from death of employee).
As to the fourth element of the Secretary's burden of proof, we
acknowledge Judge Knight's finding--to which Coleco does not take
exception--that after the occurrence of the fatality, Coleco prohibited
the operation of unsafe elevators and either immediately repaired them
or shut them down. We find that such actions represented a feasible
means of eliminating or materially reducing the alleged hazards.

With respect to the remaining element of the Secretary's prima facie
case, whether she proved that either Coleco or its industry recognized
the cited hazard, the parties strongly disagree. We need not reach the
question of industry recognition, however, because the evidence
convincingly establishes that Coleco had actual knowledge of the alleged
hazards. See Brennan v. Vy Lactos Laboratories, Inc., 494 F.2d 460,
463-464 (8th Cir. 1974) (actual employer knowledge of hazard satisfies
general duty clause "recognition" requirement).

We base this finding of employer knowledge on the following evidence.
First, Coleco learned of at least some of the hazards alleged in the
citation from a letter written on November 18, 1982, by the president of
Simmons Elevator Co., which Coleco had hired to service and inspect its
elevators. In the letter, Simmons Elevator's president, Ben C. Stanley,
wrote to Coleco's president, Arnold Greenberg, regarding the condition
of the elevators at the Amsterdam complex. The letter read in part:

Because of their condition and the fact that the people in the plant
will never agree to a time when the elevators can be repaired, your
production in Amsterdam is in great jeopardy and could be shut down at
any time. Also, if a New York State inspector were to come in and check
the elevators, he would immediately shut down ten of the thirteen
elevators, possibly all of them.

These elevators are in very poor condition; i.e., the doors, gates,
rails, just to mention a few items.

I realize that you are not an elevator man ... I just want to make you
aware that you are in a potentially disastrous position as far as
liability and production.
We have been servicing your elevators for several years ... trying to
work through ... your people [including a "Dick Suplicki"]. These people
are aware that there is work which needs to be done on the elevators and
want the work done. However, there does not appear to be any sort of
system whereby the elevators can be shut down in order to make the
repairs. It appears that the biggest concern is slowing down production
because of elevator shut downs due to repairs.

I think it would be a good idea if I could meet with you ... I could
show you some of the problems that exist and how dangerous some of these
conditions are ... I think this would be a start ... towards making
these elevators safe... we ... want you to be aware of these hazardous
conditions, in the hope that ... [they] can be remedied.

The letter also made it clear that Richard Suplicki, Coleco's plant
engineer at the time of the fatality, had been advised of the problems.
In early 1983, soon after the Simmons Elevator letter was written,
Suplicki had been given responsibility for maintenance in building 8,
which included elevator maintenance. Suplicki, along with others at the
Amsterdam facility, received a copy of the letter from Stanley. Suplicki
testified that he merely put the letter in a file he kept on elevators,
and he took no action in response to the letter.

The letter, however, clearly informed Coleco that there were serious
safety problems with its elevators. Although it did not provide detailed
information about the condition of the elevators, the letter
specifically refers to the "very poor condition" of elevator doors and
gates, both of which figure prominently in this case. We, therefore,
reject Coleco's argument that the letter did not identify any specific
hazard.

Second, the inadequacies of Coleco's elevators were also brought to its
attention by the monthly elevator maintenance reports that Simmons
Elevator provided for Coleco. After the conduct of each monthly
inspection of Coleco's elevators, Simmons Elevator provided Coleco with
check-off sheets that showed the results of the inspection and indicated
elevator parts that needed repair or replacement. The sheets sometimes
contained handwritten comments about problems with those parts.

According to the check-off sheet for February 9, 1984--eight days before
the accident--the front gate for elevator 12 was not being used and the
rear gate was missing. The sheets for January of 1984 and November and
December of 1983, note that the door and gate interlocks for elevators
12 and 13 were intentionally bypassed and that the "[d]oors [to elevator
13] are being left open while running[,] not good" (emphasis in the
original). For October of 1983, the sheet covering elevator 12 states
"Hoistway Doors Jumped Out - Unsafe" (emphasis in the original).

These check-off sheets were either given directly to Coleco plant
engineer Suplicki or left for him to review. Thus, they provided further
notice to Coleco of the cited elevator hazards. We, therefore, conclude
that there is no merit in Coleco's arguments that the check-off sheets
did not identify a specific hazard, and that the information it received
from Simmons Elevator led it to believe that its elevator problems were
being corrected.

Finally, a number of Coleco employees testified that their supervisors
knew that elevators 12 and 13 were regularly operated with their doors
or gates open, as well as with their door and gate interlocks bypassed,
and that the rear gate for elevator 12 was missing. One employee
testified that he "ran the elevator for a long time and ... 90% of the
time they [the doors and gates] didn't work, especially the gates." That
same employee also testified that he would tell his supervisors about
doors not closing and gates not working and that the supervisors "would
tell [you] that they would fix them but they didn't." Other employees
testified to the same effect and also that even though their supervisors
knew the elevators operated with their doors or gates open, the
supervisors told the employees to continue to run the elevators until
the elevators stopped functioning. We find that this employee testimony
further establishes that Coleco had actual knowledge of the alleged
hazards at elevators 12 and 13.

Based on the above cited evidence, we conclude that the Secretary has
established that Coleco had actual knowledge of the alleged hazards
presented by the nonfunctioning door and gate interlocks and unclosed
doors on elevators 12 and 13, as well as the missing gate of elevator
12. Accordingly, we find that the Secretary has proven all the elements
of a section 5 (a) (1) violation. However, we find that the Secretary
failed to prove that either Coleco or its industry recognized the hazard
created by the lack of a functioning electrical contact switch for the
sill plate in elevator 12 and we, therefore, vacate item 1(a) (4) of the
citation. We also vacate item 1(a)(5) of the citation, regarding the
nonfunctioning sill plate control lever. Judge Knight concluded that the
allegation was a "peripheral issue ... not within the proof of the
section 5 (a) (1) charge." Since the Secretary relies on the judge's
decision, she apparently does not wish to pursue the allegation; we
therefore affirm the judge as to this allegation.

(b) Coleco's Affirmative Defenses

Coleco argues that the citation is defective because it specifies only
the means of abatement, and it does not specify a hazard. Under
Commission precedent, Coleco argues, a hazard must be defined in such a
way that the citation apprises the employer of its obligations, and
identifies conditions or practices over which it can reasonably be
expected to exercise control. Coleco relies on Pelron Corporation, 12
BNA OSHC 1833, 1835, 1986-87 CCH OSHD ¶ 27,605, p. 35,872 (No. 82-388,
1986), citing Davey Tree Expert Co., 11 BNA OSHC 1898, 1899, 1983-4 CCH
OSHD ¶ 26,852, p. 34,399 (No. 77-2350, 1984). Coleco's argument is
without merit. The citation here clearly identifies hazardous conditions
over which Coleco exercised control. The citation alleges that:

Employees were permitted to load, unload, ride in and work near Freight
Elevator #12 [and 13] ... without adequate precautions taken to prevent
the elevator car from moving, when it should not ....

Thus, the crux of the hazard alleged by the Secretary was Coleco's
failure to prevent employee exposure to elevators that could move
unexpectedly.
Coleco also appears to argue that the citation is defective because it
fails to specify generic hazards. There is no merit to this suggestion.
The Secretary is not required to frame a section 5(a)(1) hazard in
generic, i.e., broad, general terms. Davey Tree, 11 BNA OSHC at 1899,
1983-84 CCH OSHD at p. 34,399. Moreover, the circumstances of the
accident and the testimony at the hearing--that employees could fall
into an open shaft while working outside the shaft, be struck by a
projection in the shaft while riding the elevator or be struck by the
elevator while calling for the elevator--establish the existence of
broad, generic hazards.

Coleco also argues that the Secretary's failure to adopt an American
National Standards Institute ("ANSI") standard on elevators [ANSI
A17.1-1971, entitled "Elevators, Dumbwaiters, Escalators and Moving
Walks"] as an OSHA standard under section 6(a) of the Act, 29 U.S.C. §
655(a), should preclude her from attempting to enforce it under section
5(a)(1). Coleco further claims that the Secretary's failure to adopt the
ANSI standard improperly subjects it to dual state-federal enforcement
in that it will have to comply with the ANSI elevator standard and the
New York State elevator code.[[4/]] Both of these arguments are without
merit.

The Secretary is not attempting to enforce the ANSI standard here, but
is relying on it as general evidence of the hazards presented and to
show industry recognition of the hazards. Such reliance is permitted.
Duriron Co., 11 BNA OSHC 1405, 1407 n. 2, 1983-84 CCH OSHD ¶ 26,527, p.
33,798 at n. 2 (No. 77-2847, 1983), aff'd, 750 F.2d 28 (6th Cir. 1984).
Because we find that Coleco acquired knowledge of the hazards through
its own supervisors and the warnings of Simmons Elevator, we do not rely
on the ANSI standard as evidence of industry recognition.

In arguing that it is being forced improperly to comply with both the
state elevator code and the requirements of the general duty clause,
Coleco alleges that the New York State code does not require certain of
the measures the Secretary would have Coleco implement of its elevators
to enhance employee safety. However, this fact alone does not establish
that Coleco is exempt from compliance with the general duty clause. As
the United States Court of Appeals for the First Circuit stated in
Puffer's-Hardware v. Donovan, 742 F.2d 12, 16 (1st Cir. 1984):

There is nothing in either the language of [the] Act or its history that
indicates that Congress intended compliance with the minimum standards
of applicable state law to create an exemption from the general duty
clause.

Consequently, Coleco's argument is rejected.

Finally, Coleco argues that it was improperly cited under section
5(a)(1), because specific OSHA standards apply to its door interlocks
and sill plates. Since we do not base our finding of a violation on the
condition of the sill plates on elevator 12, we need only address
Coleco's contention that a specific OSHA wall opening standard addresses
the same hazards as the citation's allegation that the elevator door
interlocks were bypassed.

The wall opening standard on which Coleco relies is at 29 C.F.R. §
1910.23(b)(1)(f), which provides that "[e]very wall opening from which
there is a drop of more than 4 feet shall be guarded by one of the
following: (1) Rail, roller, picket fence, half door, or equivalent
barrier." Coleco points out that the Secretary's elevator expert
testified that functioning door interlocks are intended to prevent
elevator hoistway doors from being opened when the elevator is not
stopped at a particular floor, and that the expert identified two
hazards associated with open hoistway doors: (1) persons might fall into
the hoistway, and (2) a person might place part of his body into the
hoistway and be struck by a moving elevator car. Coleco asserts that it
was taking the type of precautions required by the wall opening standard
by placing pallets in front of partially-open doors to keep people from
falling into the elevator shaft and by closing doors seen to be ajar.
The record shows, however, that the precautions taken by Coleco,
regardless of whether they were sufficient to withstand a citation
issued under section 1910.23(b)(1)(f), did not abate other hazards, not
encompassed by that standard, that exist when an elevator door interlock
fails to function. The most obvious of these hazards is sudden and
unexpected elevator movement. Such movement can have devastating effects
when an employee is loading freight on an elevator, as in this case. See
Puffer's Hardware, 742 F.2d at 14; St. Joe Minerals Corp. v. OSHRC, 647
F.2d 840, 842 (8th Cir. 1981); Ford Motor Co., 5 BNA OSHC 1765, 1766-67,
1977-78 CCH OSHD ¶ 22,106, p. 26,638 (No. 13682, 1977). Moreover, the
means of abatement sought by the Secretary here go considerably beyond
the picket fences and other barriers contemplated by the wall opening
standard. We, therefore, reject Coleco's argument. The citation
encompasses hazards that would exist even if there were full compliance
with the wall opening standard. Accordingly, we find that Coleco
violated section 5(a)(1).

III.

Willfulness

Under Commission precedent, a violation is willful if "it was committed
voluntarily with either an intentional disregard for the requirements of
the Act or plain indifference to employee safety." U.S. Steel, 12 BNA
OSHC at 1703, 1986-87 CCH OSHD at p. 35,675.

Judge Knight found that, although it recognized the hazardous condition
of its elevators, Coleco gave overriding consideration to production. He
found that Coleco repaired the elevators only when it was convenient to
do so, and then only to keep them in operation, not out of any concern
for safety. He also found that the only precaution Coleco took to abate
the dangerous conditions created by the elevators was to barricade open
elevator doors when the elevator was not at the level of the doors. The
judge correctly observed that this precaution did not afford any
protection to employees on the elevators. He concluded that Coleco
"acted with intentional disregard, was plainly indifferent to
requirements of the Act, and was markedly inattentive to the safety of
its personnel using its elevators[--]all in the name of production."

Coleco argues that the record shows that it was not indifferent to the
safety of its employees and that it spent considerable amounts of money
and employee time to modernize and repair its elevators. Coleco points
out that at the time of the accident, while running at full production,
it had shut down elevator 13 for major repairs and had scheduled
elevator 12 for repairs after elevator 13 was back in operation. It also
notes that it took steps to minimize hazards to employees by barricading
open elevator doors.

The record clearly demonstrates that Coleco knew that interlocks and
contacts are intended to make elevators operate more safely. It also
knew that the interlocks and contacts for elevators 12 and 13 were
bypassed on a regular, long-term basis, and that one of the gates to
elevator 12 was missing. Coleco had completed construction of a new gate
for elevator 12 at least two weeks before the accident occurred, but had
failed to install it. Coleco had received ample warning of these and
other problems with elevators 12 and 13 from: Simmons Elevator's
November 1982 letter; Simmons Elevator's monthly inspection reports
during the six months prior to the accident; and its own employees.
Nevertheless, at the time of the accident, and after Coleco's door and
gate problems had been highlighted by the Simmons Elevator letter,
Coleco still allowed elevators 12 and 13 to operate with unsafe doors
and elevator 12 to operate without one of its gates. Also, although the
record establishes that Coleco expended considerable funds and employee
work hours in repairing and maintaining its elevators, and that it had
temporarily shut down elevator 13 for repairs, we agree with the judge
that "all [Coleco's] ... efforts were designed to insure elevator
operation rather than safe elevator operation." The fact that Coleco
sometimes blocked access to open elevator doors does not significantly
detract from this conclusion. Thus, the evidence clearly establishes
Coleco's plain indifference to the safety of its employees, which
establishes a willful violation.

Coleco also points to two cases, with allegedly analogous facts, in
which the Commission found that violations were not willful, citing R.D.
Anderson Construction Co., 12 BNA OSHC 1665, 1669, 1986-87 CCH OSHD ¶
27,500, p. 35,641 (No. 81-1469, 1986) and U.S. Steel, 12 BNA OSHC at
1704, 1986-87 CCH OSHD at p. 35,675.

These cases do not lend support to Coleco. The employer in R.D. Anderson
had taken a series of significant steps to comply with the standard
cited there. The employer in U. S. Steel had made efforts to abate the
cited hazard and had concluded that its employees were not exposed to
the hazard. Here, Coleco only addressed its elevator hazards to the
extent that the hazards interfered with production. Accordingly, we find
that the violation was willful.

IV.

ORDER

Judge Knight assessed the Secretary's proposed penalty of $10,000 for
Coleco's willful violation of section 5 (a) (1). After consideration of
the penalty factors enumerated in section 17(j) of the Act, 29 U. S. C.
§ 666 (j), we conclude that the assessed penalty is appropriate.

Accordingly, Item 1 of willful citation 1 (with the exception of vacated
parts (a) (4) and (a) (5)) is affirmed as a willful violation, and a
penalty of $10,000 is assessed.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner


Dated: January 14, 1991

------------------------------------------------------------------------

SECRETARY OF LABOR,

Complainant,

v.

COLECO INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 84-0546

DECISION AND ORDER

Appearances:  

For complainant

Patricia M. Rodenhausen, Esquire
Regional Solicitor
U. S. Department of Labor
New York, New York

By:

Harry W. Scott., Jr.,
Esquire

For respondent

W. Scott Railton, Esquire,
and James F. Kearney, Esquire
Reed, Smith, Shaw & McClay
Washington, D. C.

The Event:

An employee of the respondent, Coleco Industries, Inc., a large
manufacturer of toys, at its Amsterdam, New York, facility, an the
morning of February 17, 1984, working alone drove a forklift truck
carrying pallets onto elevator no. 12 in building no. 8. While he was in
this process, half on the elevator, it began to rise and he was pinned
between the elevator entrance and the forklift truck's seat. The
employee was killed.

Statement of Proceedings:

The Occupational Safety and Health Administration of the U. S.
Department of Labor (OSHA or complainant) conducted an inspection of the
elevators in building 8 over the period February 17 to March 7, 1984. As
a result, it issued[[1/]] a citation on May 7, 1984, which respondent
duly contested,[[1/]] alleging a willful violation of the general duty
clause, 29 U.S.C. § 654(a)(1), requiring that each employer furnish his
employees with a place of employment free from recognized hazards which
might cause death or serious physical harm.[[2/]] A proposed civil
penalty in the amount of $10,000 was assessed and abatement was to be
accomplished within a month.

Hearings were held on March 25 through 27 and April 29, 1985, with both
parties represented by counsel. No affected employee or his
representative appeared after due notice (Transcript, hereafter Tr., 4).
Post-hearing proposed findings and motions (to impose sanctions) were
completed by December 8, 1985. Respondent admits the jurisdictional
facts alleged in the complaint (Tr. 4) and I conclude that the
Commission's power to decide this matter is proper. 29 U. S. C. §§
652(3), (5) and 653(a).

The Evidence:

James F. Cahill, an OSHA compliance officer, arrived at building 8 on
Friday, February 17, 1984, to investigate the conditions surrounding the
death of employee Blaine Lamson that day on elevator 12 in building 8
(Tr. 22-27). This is a 10-story building with shipping done from the
second floor (Tr. 87) and is a warehouse facility (Tr. 71) served by two
elevators, numbers 12 and 13, on the west and east ends, respectively
(Tr. 33, 49). Both elevators are of the same type, but 13 was not in use
on that day (Tr. 49). The elevators are used heavily carrying loads for
30 to 40 trucks a day (Tr. 70).

The accident occurred on the third floor (Tr. 29) and according to Mr.
Pakenas, respondent's safety coordinator, Mr. Lamson was loading pallets
onto elevator 12 with a forklift truck. The elevator began to rise and
the employee was pinned between the elevator's entrance and the seat of
the truck. When the elevator was lowered, Mr. Lamson was dead (Tr.
31-32). The truck's steering column was broken and the LP gas canister
at the truck's rear was bent and flattened (Tr. 33-34, 37).

The truck was halfway onto the elevator (Tr. 36). No one witnessed the
event (Tr. 37-38). The elevator, 18 feet long, 9 feet wide and 7 feet
high (Tr. 481), with access from either side on most floors, was fitted
with bi-parting vertical-type doors. The inside gate was up, but Mr.
Cahill saw no gate on the opposite side. The sill plate (a metal,
raisable plate bridging the gap between the building's floor and
elevator) was down (Tr. 34) and there was none on the operator's side
(Tr. 35). The missing gate had been off for about six months Mr. Knapp,
the shipping department supervisor, told Mr. Cahill (Tr. 35-36).

An Avis strap, a nylon packing strap, was tied from the sill plate to
the sill plate's control level (Tr. 34) and then to the elevator's
control lever (Tr. 47, 131-132, and photo exhibits C-2, 4 and 5). The
plate's control lever was not operating properly so it was either braced
by a piece of wood (photo exhibit C-2) or tied with the Avis strap (Tr. 45).

Mr. Cahill testified that the electric contacts prevent the elevator's
operation if the door is open, the gate is up, or the sill plate is
down. The elevator was equipped with these contacts (Tr. 38-40, 124-126)
so employees and Mr. Knapp, Mr. Suplicki (the plant engineer) and Mr.
Pakenas, told Mr. Cahill (Tr. 42).
David Stadel, respondent's manager of safety and environmental services,
showed Mr. Cahill reports noting that the contacts were bypassed or
jumped (Tr. 40, 66). These are on the records reported to respondent by
an elevator maintenance company which inspected the elevators, namely,
the Simmons Elevator Comp (Simmons) (Tr. 57-58).

Four months before the accident, from October 1983 through January 1984,
Simmons had inspected all of respondent's elevators and exhibit C-6 is
the result in the form of checklists (front side) and notes (back side).
An "X" on the checklists indicates a negative condition (Tr. 58, 60-61,
65), but this is not explicit (Tr. 85-86). For various dates, there are
12 reports concerning elevator nos. 12 and 13 (Tr. 62, 67). Among other
matters, these reports show that the elevators' contact switches were
not working and had even been jumped (Tr. 64-65).

Elevator no. 13, according to Mr. Cabill, was used between February 22
and March 7, 1984. It could be operated with its gates and doors open
and on February 21, after the accident, employees refused to ride on it.
Then it was taken out of service (Tr. 50, 52-55).

Ordinarily, if an elevator developed an operational problem, Mr. Knapp
would notify the maintenance department and go on with the regular work
(Tr. 70). Mr. Reed, the distribution manager (Tr. 4/29,65), [[3/]] had
reported elevator number 12's sill plate malfunction to maintenance on
the day before the accident and on the day itself (Tr. 129-130). But
since the products had to be shipped, the elevator had to be kept in use
(Tr. 70-71 ). According to Mr. Reed's statement to Mr. Cahill, there
were continuing problems with the elevators and maintenance worked on
them constantly. However, that work is not scheduled to interfere with
production and maintenance is done around the shipping schedules (Tr. 72).

Respondent's safety manual contains nothing about elevator safety; in
fact, there is no written program or policy covering the safe operation
of elevators (Tr. 72-73). According to Mr. Reed's comment to Mr. Cahill,
if a problem occurs, an employee is instructed to inform his supervisor
and continue working (Tr. 73). Further, and Mr. Stadel also reported
this, no preventive maintenance is done; but problems or damage to an
elevator are handled as they might occur (Tr. 76). Employees confirmed
this to Mr. Cahill adding that a maintenance repair would not be done
for a long time (Tr. 74).

Mr. Cahill recommended the maximum civil penalty of $10,000 because 20
employees on all three shifts were constantly exposed to the dangers
presented by these elevators and, compounding the hazard, they were
subject to the stress of the pressure of production. "It was go, go,
go...." (Tr. 79-81).

Richard Suplicki testified that as the plant engineer (assuming that
position at the end of 1982), he is responsible for all maintenance of
manufacturing machines including elevators (Tr. 134-135). He had no
experience with elevators and so an elevator consultant was retained,
namely, Simmons through its president, Ben Stanley, and inspections were
conducted on a monthly basis (Tr. 135-136).

Simmons used a check-off sheet with comments on the back and in the
column labeled remarks. Mr. Suplicki received a copy of these (Tr.
137-138). He would give this to maintenance to make repairs which they
could do such as fuse and broken bolt replacement and straightening
gates and rails (Tr. 4/29, 8).[[4/]] Simmons did major work such as
replacing doors and interlocks and repairing contacts (Tr. 4/29, 32).

Maintenance supervisors report to him and he would expect them to
schedule repairs if they saw a malfunctioning elevator. They had no
specific instructions; this was just his expectation (Tr. 140-141).
Regular inspections are conducted by maintenance men and the findings
are reported to the supervisors who would schedule repairs (Tr.
142-143). And Mr. Suplicki would expect that, if a repair had to be done
immediately, the department head would be notified and the work arranged
to be done. That has happened, but Mr. Suplicki couldn't remember an
instance (Tr. 143-144).

He received the Simmons report on the condition of the elevators
(exhibit C-6) and gave them to the maintenance supervisor. Mr. Suplicki
would "expect" them to investigate as a normal function, but he did
nothing to be assured that the repairs were made (Tr. 162-163).

This exhibit shows that in January 1984 the car gates were both "jumped
out" on elevator 12 and the hoist doors "need work." "Jumped out"
generally means, according to Mr. Suplicki, bypassing the contacts.
Similarly, this condition existed on elevator 13 as of December 16,
1983, and the car could operate with the doors open. The Simmons report
underscored this condition as "not good." On November 23, 1983, the
doors and gates of both 12 and 13 were jumped out. And on October 31,
1983, the hoistway doors on number 12 were jumped out. Here the report
underscores "unsafe" (Tr. 165-168).

No one, Mr. Suplicki testified, is ultimately responsible for the
maintenance of the elevators. So, in February 1984, he described
maintenance as a centralized department and "no one particular person
that was responsible" (Tr. 161).

He described the maintenance problems as recurring but not continuous
(Tr. 169). As a normal routine he did not check to see if a problem was
corrected (Tr. 170).

Mr. Suplicki received a copy of a letter from Mr. Stanley of Simmons to
respondent's president, Arnold Greenberg, dated November 8, 1982 (Tr.
155, 160; exhibit C-7). This is a three-page document making three
points: 1. the elevators are in "very poor condition;" 2. that
respondent's position is "disastrous" concerning potential liability and
production; and 3. scheduling of repairs is very difficult due to the
need for the elevators.

As a result of this letter and another one, Simmons repaired elevators
12 and 13 between December 1982 and January 1983, according to Mr.
Suplicki. Otis Elevator did some cable and mechanism repairs on number
13 in February 1984. By that time, as described below, if respondent
could handle some of the repairs, they would (Tr. 171-174).

But the elevators in building 8 do operate 24 hours a day (Tr. 138-139,
146, 174). Mr. Suplicki did not know what instructions are given to
employees should they discover a malfunction (Tr. 139). Before February
1984, he did not know that a gate was missing from number 12, but he
knew a gate was being fabricated by the maintenance department (Tr. 144)
It was not put in place before that accident because of scheduling,
i.e., the necessity to close the elevator down for three-quarters of a
day (Tr. 145-146). He did not know how long the new, completed gate was
in the shop before it was installed (Tr. 146).

The missing gate had been equipped with a contact so it would have had
to have been closed to operate the elevator. That contact, Mr. Suplicki
learned as a result of his investigation of the accident, was in a good
working condition. But it had been deactivated or tied off (Tr.
147-148). The contact on the sill plate of number 12 was not working on
the day of the accident. It had not been bypassed and was repaired later
(Tr. 152).

Interlocks had been jumped with a wire in the machine room located on
the first floor, a room to which only maintenance personnel had access
(Tr. 150). But Mr. Suplicki did not know who did this and would prefer
to repair rather than jump (Tr. 4/29, 62-63).

Repair work was always necessary on elevators 12 and 13. Their doors and
rails were abused by forklifts hitting them and the doors would be
difficult to open and close (Tr. 148-149). This is an ongoing situation
(Tr. 151) and it would require one to four hours to straighten a door or
rail by various means (Tr. 153-154). To prevent this type of damage,
employees would be reprimanded (Tr. 154, 155).

When Mr. Suplicki was placed in charge of maintenance in January 1983,
the employees in that department were all handymen and not journeymen
mechanics. He began hiring experienced men in the various maintenance
fields and thus was able to take on more of the work that would have
been given to outside contractors (Tr. 4/29, 6, 9). Thus, in late 1982,
the maintenance men would not do any work on interlocks but in 1983,
they could repair them, gates and doors. Simmons would do only what
inside men could not do (Tr. 4/29, 43-49, 61). All repair work was done
around production schedules (Tr. 4/29, 57-58).

A system was devised to keep track of work needed to be done and when it
was accomplished and how long it took (Tr. 4/29, 10-13; exhibit R-7).
Sometime in early 1983, a program of elevator repair was begun as well
as weekly inspections by the maintenance department (Tr. 4/29, 17-18,
25-26). Simmons inspected the elevators on a monthly basis (Tr. 4/29, 83).

The letter of November 1982 from Mr. Stanley to Mr. Greenberg (exhibit
C-7) generated work done on the elevators (Tr. 4/29, 28). Bids were
received, Simmons obtained the contract, and repairs took almost a year
(1983) to complete throughout the facility (Tr. 4/29, 29, 35, 55).

Elevator 13 was repaired over the period February 9 to 20, 1984 and
these were extensive (Tr. 4/29, 16-17). Elevator 12 was scheduled to be
done after that (Tr. 4/29, 20). The repairs to that elevator took about
a week before it went back into service (Tr. 4/29, 27).

Five employees in building no. 8 were called by complainant. Uniformly
they testified that prior to the accident and going back as far as ten
years, the elevators there could be operated with their doors and gates
open (Tr. 217, 184-185, 193-194, 222-223, 261-262, 279). The rule was:
run them until they stop (Tr. 192, 228, 252). And maintenance would then
make repairs (Tr. 209, 256-257, 264, 276) according to two of these
employees. Once repaired, the elevators would operate properly for a
time (Tr. 197, 285). But not all repairs were made immediately, such as
the broken sill plates (Tr. 209). There are assigned personnel as
elevator operators; but, if they are not available, any employee will
run them (Tr. 184. 197-198, 229-232, 265-266).

These employees reported elevator malfunctions to their supervisors and
the plant manager and these saw the abnormalities in any event since
they, too, rode the lifts (Tr. 189, 192-1949 216, 22, 225-226, 262, 264
267, 273-274, 280). At one labor-management meeting, it was brought up
that elevator doors on number 12 dropped from the second floor down to
the first about a month before the accident. It was two weeks before
these were repaired (Tr. 267-268).

One employee testified that the elevator control lever on number 12
"sometimes" did not lock into neutral (Tr. 188); and another said it
never did (Tr. 225). Still another did see the elevator rise when it
should not have but not to the extent that occurred at the accident (Tr.
272). Because door latches did not work, one employee even opened them
from the outside (Tr. 274). No employee testifying ever saw an Avis
strap used as the deceased used it (Tr. 201, 236-237, 239, 256). Rather,
a board had been used to brace the sill plate's handle to prevent it
from falling over for about two weeks (Tr. 189, 219, 220-221, 264;
exhibit C-2).

The safety switch on the elevator's (no. 12) control panel shuts the
elevator down completely. But no instructions were given an its use (Tr.
191, 223-224). One employee was told never to use it (Tr. 198). Since
the accident on February 17, 1984, one employee, at least, was
instructed to shut off the elevator (Tr. 224). That employee and another
were unaware that elevators were equipped with interlocking devices (Tr.
223, 281).

Since the accident, a malfunction is corrected right away or the
elevator is shut down (Tr. 211, 228) because the union refused to use an
unsafe elevator (Tr. 269).

Forklift trucks or their loads could hit the elevator's closed doors
since skids were used to block openings on floors where the doors did
not close completely and the elevator was not at that landing (Tr.
211-212, 235). One sill plate which protects the door when open was
missing from elevator 12 for probably more than a week (Tr. 205,
221-222, 232, 250, 262, 279).

Elevator number 12 was missing a gate and its new one, made in the
machine shop, sat on the sixth floor for months until installed after
the accident (Tr. 223, 279). One employee testified that there never had
been the second gate on this elevator (Tr. 262).

An employee testifying about his training was taught on the use of the
elevator control lever but not about what he should do should the
elevator move with the door or gate open (Tr. 227). Another testified
the doors would remain up to three inches open and they never closed
squarely (Tr. 274). But it was easier to run them with the doors so open
(Tr. 282, 284).

Elevator number 13 also ran with open doors (Tr. 28), but another
employee indicated that there the gates would not shut but the doors
would (Tr. 227). Doors jam (Tr. 233). Supervisors used to "holler" for
freight through the open doors into the shaft (Tr. 273-274).

Donald Karl, called by complainant, worked in respondent's maintenance
department for three and a half years, at the time of the hearing,
repairing elevators. A Mr. Vulo is his supervisor (Tr. 302-303). He
testified that the gate missing from elevator 12 had been gone since at
least November 1982. He was asked to make another in January 1984 and
fabricated a new gate in three days at respondent's machine shop
finishing two weeks before the accident. Because of other work, the gate
was not installed until after the accident (Tr. 302, 303-304).

The elevators run continuously and, prior to the accident, if any repair
could be done in a half-hour, it would (Tr. 309); but there were only
two maintenance men and not enough time to maintain all 13 elevators
(Tr. 302, 308).

He knew the elevators would operate with the doors and gates open (Tr.
303); he knew that all gates had contacts which were not operative (Tr.
304-305); and that the latching mechanism on the sill plate lever was
hard to lock. The maintenance department built that lever (Tr. 306). And
five or six months before the accident, he knew that the safety circuits
had been jumped. He told this to Mr. Vulo and Mr. Suplicki and he knew
that Simmons Elevator Company told them (Tr. 307).

According to Mr. Karl, the doors are the elevators' major problem and
take many, many hours to repair (Tr. 307-308).

Before the accident, in 1983, the maintenance department would inspect
the elevators on a weekly basis, grease and oil them and make small
repairs; after that, it was done daily (Tr. 308-309, 315-316).

Mr. Karl worked with the Simmons Elevator repair personnel and he used
their report sheets to inspect the elevators and do the repairs. He kept
his own records in a three-ringed notebook (exhibit R-4). There he
recorded problems, where he found them, when he did repairs, and how
long it took (Tr. 310-312, 318). This was in addition to the
respondent's work order and timecard records (Tr. 312). Should another
repairman correct a problem, he would not know this until his next
inspection (Tr. 330-331). He reviewed the data in his book with Mr. Vulo
on a daily basis and thus work assignments were devised (Tr. 322).

The sill plate lever, to which the deceased had tied the Avis strap, had
a bent latch so that it was not aligned with the hole locking it in
place. The latch would drop into the hole but only after much effort. He
did repair this but even before that there was no need for any
make-shift device, according to Mr. Karl (Tr. 315-317). On the day of
the accident, that sill plate was not equipped with an electrical
contact (Tr. 343). Mr. Karl was not told that one was required there
(Tr. 343).

Doors must be in near-perfect alignment to run smoothly up and down, but
the rails are bent frequently due to the carelessness of forklift
operators. This type of damage occurred frequently on both number 12 and
13 elevators (Tr. 313-314). Sill plates are constantly wearing and every
three weeks something must be replaced. They take abuse which the doors
would without them (Tr. 314-315).

According to safety codes, Mr. Karl testified, if an elevator gate is
missing, the elevator cannot operate and that is their condition today.
Before the accident, the elevators would continue to run without gates
(Tr. 339-341).

Mr. Karl was never instructed to remove bypasses he found in the machine
room. If he did, the elevators would stop (Tr. 344). His book, exhibit
R-4, shows, however, that interlocks which had been jumped were cleared
in certain cases when the underlying problem could be repaired (Tr.
344-348; exhibit R-4 pages 7, 9, 11).

The safety switch on the elevator control plan (exhibit C-5) is for
emergency use only; but since the accident, it is used as an added
safety feature in conjunction with others (Tr. 350-351).

Elevator number 13 on February 17, 1984, was being repaired and was shut
down. Elevator number 12 was to be shut down and repaired when 13 was
back in service (Tr. 353).

Bradley Hill works with Mr. Karl in maintenance and has done so for
almost two years (Tr. 287-288, 299). During 1982, the elevators were
inspected on a monthly basis. He would lubricate bearings and check oil
levels (Tr. 293-294). Simmons Elevator inspected monthly also (Tr. 295).
Now, respondent's maintenance department inspects daily and an unsafe
elevator will be shut down, in fact, both elevators in building 8 could
be closed (Tr. 300-301).

David Stadel assumed the position as respondent's Manager of Safety and
Environmental Services two or three months before the accident and
served as the safety engineer before that (Tr. 358-359, 4/29, 87). As a
witness called by complainant, he testified that he had no specific duty
in building 8 and its elevators and no specific function with the safety
committee (Tr. 359). He coordinates safety, suggests improvements,
inspects the facility with the safety committee monthly, and that is the
extent of his safety responsibility (Tr. 373-375). Robert Freedman,
Director of Human Resources, is the highest ranking employee concerning
safety matters (Tr. 370).

According to respondent's handbook, safety is "everyone's
responsibility" (Tr. 359). The supervisors in that building (Messrs.
Knapp, Reed, Hewitt and Belfance), as part of management, would be
responsible for safety there (Tr. 360).

There is no training program in elevator safety. The deceased's use of
the Avis strap was unsafe and a violation of company policy as would
management's non-action would be if they knew of such use. A supervisor
should have removed the strap immediately (Tr. 366-368).

Prior to the accident, Mr. Stadel noticed that the doors on elevator 13
were ajar at the first-floor level and he told Mr. Suplicki and Mr. Reed
about it (Tr. 360-361). He told them to correct this without specifying
a time. It did not have to be done right away and he did not know of any
arrangements made to accomplish the repair. But he did know that it was
repaired (Tr. 361-362).

He also told these same men to repair the interlocks on elevator 13
because he saw it operating with the doors open. There was a problem of
scheduling the repair and a week later it was done. That was
satisfactory to him (Tr. 363-365).

He did not order these gentlemen to repair these conditions: "It was a
suggestion." They could have refused and, if the conditions were
sufficiently severe, he would take the matter to a higher level (Tr.
375-376).

In December 1983, he was advised that the New York State Department was
not enforcing the state's elevator code. That Department made an
inspection after the accident but did nothing beyond that (Tr. 371-372).

Called by respondent, Mr. Stadel testified that his function is to
improve the safety program and issue the safety manual (Tr. 4/29, 88).
When he assumed his position, respondent's accident rate was 12.8 (about
12 employees out of 100 hurt severely enough to require a doctor's
care). But no accident occurred on an elevator (Tr. 4/29, 89). Mr.
Stadel's education and work experience are heavily weighed in safety
matters, but he has had no training in elevator safety (Tr. 4/29, 105-106).

Mr. Stadel's guide for safety matters is the National Safety Council's
handbook. He considers this a recognized book and he uses it as a quick
reference for many subjects including elevator safety (Tr. 4/29, 91-93).

Mr. Stadel was unable to obtain a copy of the New York State Code on
elevator safety (which was not being enforced) from the senior
consultant or inspector to whom he spoke in December 1983. Rather he
referred to the ANSI code (ANSI A17.1-1971) (Tr. 4/29, 90-91). He
ordered a copy of that in December 1983 and received it after the
accident on February 23, 1984 (Tr. 4/29, 93-94).

The state investigated the accident on two occasions concerning building
8 and eventually--after first identifying nothing wrong--sent a notice
of violation in May 1984 which included two other buildings. Mr. Stadel
gave this notice to Mr. Suplicki to correct the deficiencies (Tr. 4/29,
95-99).

William S. Crager, a safety consultant for elevators, moving walks and
dumbwaiters, was called as complainant's expert witness. He has been
consulting since 1967 (Tr. 478) and has been inspecting elevators since
1923 (Tr. 496). His qualifications are shown on exhibit C-9 (Tr. 479).
He served as the chairman of the ANSI A17 committee for 15 years, was
chairman of the executive committee, an honorary member and chairman
emeritus (Tr. 504). He is a certified safety professional and a
registered professional engineer in California. He has worked on the
development of many state and local elevator codes (Tr. 509-515).

Mr. Crager inspected the elevators in building 8 and heard the testimony
of all of complainant*s witnesses (Tr. 480).

In all of his experience, he has never seen an elevator with such a
combination of safety devices made inoperative in order to permit the
car to move. This was caused primarily by the lack of maintenance (Tr. 496).

He listed the hazardous conditions which existed for a length of time
as: no electric contacts on the sill plate and two are required; no
gate, contacts on other gates and doors shorted out; doors left open;
and the operating lever was defective since it would not lock into
neutral position (Tr. 486-487, 490). Had it locked into position, this
accident would not have happened even with the Avis strap wound around
the lever and pulling on it (Tr. 494-495, 547).

Gates prevent a person being caught on the projection of a wall while
the car is in motion (Tr. 486) and contacts prevent movement if a gate
or door should be open so an employee on a forklift would not fall down
with the machine or be decapitated (Tr. 491-492).

It is not an acceptable practice to operate a car with the doors open
indicating eight contacts have been shorted out even for a day or two
(Tr. 498-499). The hazards on this elevator are those with which safety
experts are familiar and would "positively" guard against (Tr. 499).

The ANSI Code A17.1 (1971) covers all of these matters: the switch; the
gate contacts; the gates; the emergency release switch; the car
emergency stop switch; the hinged platform; the door interlocks;
prohibition against jumping; and the machine room (Tr. 502-503).

The New York State Code Rule No. 8 covers the operation of elevators in
factories and mercantile establishments and covers the matters
substantially as the ANSI Code (Tr. 505-506, 508). Most local codes use
the ANSI standard as their starting points (Tr. 515-516).

Mr. Crager applied the 1971 ANSI code to these elevators for they
underwent major repair or modernization in 1973 (Tr. 517, 518). The
sections he enumerated are long existing (Tr. 517). And while the ANSI
standard permits exceptions (§ 2) to its requirements granted by
application, reasonable safety measures during the relaxed period must
be assured (Tr. 540).

The National Safety Council's Accident Prevention Manual for Industrial
Operations (8th Ed.) is, according to Mr. Crager, only a reference book
and not a code so it uses the term "should" implying a permissiveness
and not a mandate as the term "shall" is interpreted. At page 265 of the
Manual, it reads that interlocks for freight elevators should be used
(Tr. 555-557, 565).

But, Mr. Crager pointed out on redirect examination, the Manual directs
users to the basic ANSI standard, A17.1 (ch. 7 of the Manual, p. 258)
which uses the mandatory term "shall" differentiating it by definition
from the permissive "should" (Tr. 561). And respondent has had the
Manual in its possession since June 23, 1983 (Tr. 562).

Clifford Reed, called by respondent, is the Distribution Manager
coordinating shipping and receiving in buildings 5 and 8 (Tr. 4/29,
65-66). Building 8 is 10 stories tall with three docks on the second
floor and two at the first. The elevators are the only way to move goods
between the floors and no elevators, no shipping (Tr. 4/29, 67). The
elevators had to be kept going for production purposes end it was
possible but slower to operate with only one elevator in building 8 (Tr.
4/29 83, 85). In the extreme, it might be possible to ship out of
building 4 should both elevators be down in building 8 (Tr. 4/29, 68).
The elevators are greased either early in the morning or on Saturdays
(Tr. 4/29, 72).

Elevator breakdown is frequent and at times they wouldn't operate at
all. Sometimes the employees complained because of non-operation or
doors hard to close. But they did not complain about safety conditions
(Tr. 4/29, 70-71).

Mr. Reed would notify maintenance should a malfunction occur and, on
occasion, would go there (Tr. 4/29, 69). But no maintenance would be
scheduled unless an elevator was not working at all (Tr. 4/29, 71).

And he never complained to maintenance on any matter related to safety
(Tr. 4/29, 72). He saw elevators operate with doors open about six
inches and instructed that they be closed, but employees did not
complain about the open doors (Tr. 4/29, 77-78). And, as he recalls, the
union never brought up the elevators at the monthly labor-management
meetings (Tr. 4/29, 79).

In February 1984, he reported the sill plate condition on elevator 12 to
maintenance; and, when nothing was done, he went to report it personally
the morning of the day of the accident or day before. It was a constant
problem (Tr. 4/29, 73-74).

Mr. Reed saw employees use elevator 12 with one gate missing and one
sill plate gone but never reported these matters. And while the doors
were difficult to close, he doesn't recall a time when they couldn't be
closed completely (Tr. 4/29, 80-81).

Elevator 12 was scheduled for repair when 13 was put back in service
(Tr. 4/29, 75).

Respondent's expert, John McAulay, has been a consulting engineer for
five years and before that was employed by Otis Elevator Company for 31
years in the Door Group. He was engaged in research and development; his
articles have been published; he has taught the subject to new
engineers; he holds several patents; and he has belonged to the ANSI
A17.1 Committee for 15 years. He is a mechanical engineer and licensed
by New York State as a Professional Engineer. He has worked on
maintenance of elevators for seven months as a routeman covering a large
territory for Otis and this included freight elevators (Tr. 4/29,
107-115; exhibit R-14).

He inspected elevators 12 and 13 in January or February 1985, almost a
year after the accident (Tr. 4/29, 136-137). Based on that and the
testimony of Messrs. Suplicki, Karl, and Hill (Tr. 4/29, 116), he would
rate respondent's maintenance program as an eight out of a possible
perfect ten (Tr. 4/29, 117). Its safety program is embryonic but moving
in the right direction (Tr. 4/29, 150). While he regards Mr. Karl's
program as "stellar" (Tr. 4/29, 117), the eight is based mainly on the
outside service company which respondent relied upon. That reliance
allowed the eight rating even though respondent--a company with 13
elevators--had no written program covering elevator safety (Tr. 4/29,
122-123, 144-145). The eight rating is not based on the conditions of
the elevators in February 1984 but takes into account all of the
improvements before and after that date (Tr. 4/29, 153-154, 156). He
does not like to see jumpers in a control room, but he considered this
in his rating (Tr. 4/29, 148-49). Bypassing creates a hazard, but open
doors could be barricaded to prevent people falling from a floor (Tr.
4/29, 158-159).

Mr. McAulay served as chairman of the ANSI Hoistway Committee of A17.1
which renders interpretations of the standards, about 40 a year (Tr.
4/29, 118- 130). In his opinion, because the code is technical and
difficult to read without training and preferably hands-on experience,
Mr. Suplicki would not understand it because a good knowledge of the
operation is first necessary (Tr. 4/29, 121-122, 138, 142). But he never
asked Mr. Suplicki if he understood the code, in fact, he never spoke to
him beyond a "good morning" (Tr. 4/29, 164). He did not know what
training either Mr. Suplicki or Mr. Stadel had (Tr. 4/29, 140).

Mr. McAulay regarded Simmons Elevator elevator maintenance reports
(exhibit C-6) as not saying enough. They do not inform respondent as to
the floors where a repair is needed or where the doors need work nor
where an interlock is jumped out (Tr. 4/29, 123-125, 130). He considered
Simmons warning letter to respondent (exhibit C-7) as too broad
concerning the conditions and he would not write it in that fashion; but
he never spoke to Mr. Stanley of Simmons (the author of the letter) (Tr.
4/29, 160-161).

The New York State Code for Elevators, according to Mr. McAulay's
review, does not include a necessity for gates or sill plates. And he
does not consider the absence of the latter as creating a hazard. They
are permitted but not required by the ANSI code. While, if asked, he
would suggest their use, the local code would govern since the ANSI code
has no enforcement procedures. He doubts whether Mr. Suplicki could
figure all of this out (Tr. 4/29, 130-132, 135).

Contentions of the Parties, Findings of Fact and Conclusions of Law:

Despite respondent's claim that there is no evidence to support findings
that it should have recognized the alleged necessity to use interlocks,
electric gate contacts and electric sill contact switches to avoid any
hazard likely to cause death or serious injury (post-hearing brief, p.
4), I find

1) Respondent had actual knowledge of this specific hazard based on
a) Simmons Elevator Company's letter to respondent's president dated
November 18, 1982, (exhibit C-6) in which the general state of disrepair
of the elevators is stated to put ". . . you ...in a potentially
disastrous position as far as liability and production" (page 1) and "We
merely want you to be aware of these hazardous conditions" (page 2) and
"... there must be some way around this situation [i.e., production] in
order to keep these elevators in safe running condition" (page 2);
b) Respondent acted on this letter and repairs were made by in-house
personnel and Simmons, but the latter's monthly reports (exhibit C-6)
showed that devices to prevent elevator movement when a door or gate is
open were almost continually bypassed month to month and that was
described by Simmons to respondent as "not good," "unsafe" and "doors
don't latch, need to be fixed for safety;"
c) These monthly reports were received and reviewed by Mr. Suplicki, the
plant engineer, and all supervisory personnel in building 8 witnessed
the elevators operating with doors and gates open; and
d) Employees were instructed to operate the elevators with doors and
gates open and unlatched until they (the elevators) were incapable of
further movement. This direction was given because of the absolute
necessity for the use of the elevators to continued production round the
clock.
Further, respondent had constructive notice that the preventive devices
must be used on the elevators. I find

2) Respondent's Manager of Safety and Environmental Services relied on
the National Safety Council's handbook and this told him
a) Interlocks and contacts should be used and that he should refer to
the ANSI A17.1-1971 standard;
b) He had that handbook in his possession some six months before ever
seeking out a copy of the ANSI standard on the proper operation and
maintenance of elevators; and
c) In the exercise of minimal diligence, respondent would have
discovered the hazard and its prevention through the use of the ANSI
standard any explanation of it through its expert, Simmons Elevator
Company, who had informed it of the dire consequences of not complying
and allowing the malfunctions to continue unabated in its letter of
November 18, 1982, (exhibit C-6) which in addition to the unsafe
conditions, Simmons warned that should the local authorities inspect,
the elevators would be shut down immediately. As discussed below, the
thread of one of respondent's defenses is that the local code (New York
State Code 8) was the authority here.
In the final analysis, I find

3) Respondent recognized the hazard of an elevator potentially able to
move with its doors and gates open; it took steps to repair these
deficiencies; but repair was delayed until either employees voiced their
fright; complete breakdown was imminent; or production scheduling
permitted shutdown. Unfortunately, the latter permit occurred just about
the time of the accident.[[5/]]

4) In the meantime while the elevators were in a state of disrepair,
employees were given no special instruction--in fact, there was no
policy regarding the safe operations of elevators either written or
oral, employees were merely shown how to make them go--to mitigate the
hazard by using the emergency stop switch to completely shut down an
elevator at a floor, rather one employee was told not to use it; or by
the assignment of an employee specifically as the full-time operator
when interlocks and contacts were jumped out.

5) In this same vein, I find, based on Mr. Crager's evidence, that had
the interlocks and contacts been operative on February 17, 1984, and the
control lever been capable of locking into the neutral position, the
accident would not have occurred even with the deceased's unusual use of
the Avis strap wound around that lever. Thus, the consequences of his
idiosyncratic, demented or suicidal conduct in using the strap, could
have been avoided had an effective safety policy regarding operation and
maintenance been in effect.

6) To repeat, the evidence on elevator policy and it is overwhelming by
employees and management alike, is that they must run, run, run regardless.

7) Following the accident, no elevator was permitted to operate if it
were deemed unsafe but was repaired immediately or shut down.[[6/]]

Based on these facts, I conclude that a violation has been established
in that respondent had actual knowledge of the hazard [[7/]] of allowing
the operation of elevators 12 and 13 with the interlocks and electrical
contacts on the doors, gates (on elevators 12 and 13) and sill plate
being bypassed or jumped out (this applies in addition to 12) and that
it failed to abate or counter these hazards by instituting timely repair
and maintenance programs but allowed the elevators to run for inordinate
periods of time in a state of disrepair. It took no steps to instruct
employees on operating the elevators as safely as possible when
malfunctions existed to accommodate production nor did it assign
full-time operators during those periods to assure that a stopped
elevator is stopped. The hazard of operating the elevators without these
devices could cause or would likely cause death or serious physical harm.

Thus, the elements of a section 5(a)(1), the general duty clause,
violation have been shown. St. Joe Minerals, above, at footnote 5.

I further conclude that the violation was willful. That characterization
will exist where an employer has violated the Act voluntarily with
intentional disregard or plain indifference to the Act.

A prior citation or accident is not necessary to put an employer on
notice that a subsequent citation could be deemed willful. Although as
relevant as these may be, a "marked inattention to safety" will support
and justify a charge of willfulness. St. Joe Minerals, 647 F.2d 840 (8th
Cir. 1981) at 848 and note 19 (quoted material).

Respondent contends that such blindness to safety is not present in this
case. It reasons that (1) the elevators were absolutely required to
continue production; (2) they were subject to great abuse and damage;
(3) in November 1982 it began a program of repair after being advised by
Simmons that there might be a problem [i.e., "which Simmons thought to
exist" (brief p. 46)]; (4) thereafter, Simmons never complained of
problems (brief p. 46); (5) the plant engineer moved promptly to build
in-house expertise and those personnel spent 2100 hours repairing
(exhibit R-12); (6) Simmons continued repair work from December 1982 to
February 1984; and (7) only a freak accident defeated respondent's efforts.

Thus, it concludes there is no justification to find a willful violation
(brief, pp. 44-49).

These contentions are not supported by the record and I find with
reference to them

1) Simmons month to month in 1983 reported the jumps and bypasses by at
least "X's" on its inspection reports;

2) On at least three of these, that condition was described with a
reference to a danger;

3) Whatever repair work was done was accomplished when production best
allowed it; but

4) The rule was that the elevators must run;

5) Employees reported malfunctions to supervisors regularly;

6) Elevator 13 was shut down for repair when breakdown was imminent and
employees balked at using it;

7) Respondent produced no evidence other than the hours and money spent
on maintenance to show that elevators 12 and 13 were in any better
condition at the end of 1983 than they were at the beginning indicating
that no preventive maintenance was performed, no safeguards or training
were instituted to prevent damage and the time and money expended were
only to repair necessary items to forestall shutdowns; and

8) After the accident, no elevator ran unless all safety items were in
place and operative yet production was not affected as far as this
record would indicate. Hence a safe operation could have been
accomplished had more attention been shown.

In St. Joe Minerals, the court affirmed the Commission's violation of
section 5 (a) (1) concerning its freight elevators but did not affirm
that as willful. Respondent here claims that the fact patterns are
comparable and no willfulness may be justified here. In respondent's
analysis of that case, it omits to mention that when interlocks were
bypassed

An employee was also assigned to assist in opening and closing the doors
and to prevent the elevator from moving while being loaded or unloaded . . .
***
...the petitioner's [St. Joe] conduct falls short of plain indifference
to the general duty clause. (647 F.2d at 848-849).

There is nothing in the record before me to show any precautions
whatsoever, except for barricading open elevator doors to prevent a fall
through that area when the elevator was not at that level, taken to
protect a person on the lift, loading or unloading it, at a time when
safety mechanisms were not operative which was most if not all of the
time according to employees as buttressed by the Simmons' inspection
reports.

I find that respondent acted with intentional disregard, was plainly
indifferent to requirements of the Act, and was markedly inattentive to
the safety of its personnel using its elevators all in the name of
production. I conclude that respondent willfully violated section
5(a)(1), the general duty clause.

The record is sufficient to show that respondent realized the hazard its
elevators 12 and 13 presented through the warnings sounded by Simmons in
November 1982. If Simmons did not sufficiently describe the conditions
and consequences as its expert, Mr. McAulay, would have done, this does
not provide relief. Once it was advised of the hazardous condition which
it attempted to correct in a manner configuring with its production
schedule, it alone was responsible not Simmons. Brock v. City Oil Well
Service, __F.2d__ (No. 85-4375, 5th Cir., July 30, 1986). In any event,
Simmons notified respondent in monthly reports to its plant engineer
that interlocks on doors were bypassed or jumped and this was unsafe.
Mr. McAulay agrees that such action creates a hazard. His abatement plan
would be to barricade open doors to prevent falls, a matter not directly
connected to this proceeding as explained below.

Respondent was made aware of a hazard contemplated by section 5(a)(1)
and allowed it to continue. Therefore, reference to the ANSI standard,
the New York State Code and the application to local authorities to do
the remodeling and construction of the elevators in 1972-1973 as shown
in exhibit C-8, in whatever building those elevators might be are not
determinative here. Any of these would put respondent on notice for the
necessity of the safety devices specified in each but that notice was
sufficiently supplied by Simmons' warnings and respondent, in accordance
with its production schedule and in derogation of employee safety, acted
on those warnings.

Exhibit C-8 is respondent's application for a building permit to the
local authority and concerns elevators but is insufficient to be related
specifically to elevators 12 and 13. Whatever elevators they are, their
location is the Amsterdam facility. In the application, respondent
specifically agrees to be bound by the New York State Construction Code.
That application is dated February 15, 1973. Simmons warned respondent
in November 1982 that should local authorities inspect, elevators 12 and
13 would be shut down immediately. Simmons was respondent's expert.
Respondent acted on its advice. Is there doubt that the local code was
applicable to these elevators? Is there doubt that respondent was on
constructive notice of the requirements of the local code? Hardly.

Respondent, throughout this proceeding, has argued that this section
5(a) (1) citation must be dismissed because the State of New York
regulates the safety of elevator operation (brief pp. 15-19). Under
section 667(a) of the Act [29 U.S.C. § 667(a)], a state may assert
jurisdiction over any safety or health issue where no federal standard
is in effect. The argument is that to allow the 5(a)(1) citation here
would permit dual enforcement not contemplated by the Act. Earlier in
this case, this question was decided;[[8/]] but, if that were
respondent's belief that it was regulated by a local authority, it may
hardly be heard not to claim that it was not, at least, on constructive
notice of the local requirements. Whatever mistake was made in this
regard (Mr. Stadel being told by a local state official that the local
code was not in effect) may go to the characterization of the violation
as willful but not to the issue of constructive notice. Otherwise, to
follow respondent's argument to its end, these elevators were subject to
absolutely no standard at all. But to the contrary, respondent through
the letter and inspection reports of Simmons, was actually aware of each
and every deficiency and the elevators' unsafe conditions.

The order below affirms the citation as follows: Respondent willfully
violated the general duty clause in that it permitted elevator 12 in
building 8 to be operated:

1) Without a functioning hoistway door interlock system;

2) Without a functioning electric contact switch on the car's installed
gate;

3) Without a functioning electric contact switch on a gate because the
gate itself was not installed;

4) Without a functioning electric contact switch on the car's sill
plate; and

5) Without an operating control lever capable of locking into its
neutral position.
The safeguards of these items are all designed to prevent elevator
movement when it should not or when a mischance occurs. It is the
prevention of that which complainant proved by a preponderance of the
evidence. The non-locking lever to operate the sill plate contributed to
this, but it is a peripheral issue and not within the proof of the
section 5 (a) (1) charge.

So, too, the citation is affirmed with regard to elevator 13 for it
also, in February 1984, was permitted to be operated

1) Without a functioning hoistway door Interlock system; and

2) Without functioning electric contact switches on its gates.

The limit of complainant's proof makes immaterial respondent's defense
that certain standards apply to certain conditions so a 5 (a) (1) charge
may not lie. Specifically, 29 C. F. R. §1910.23 (b) (1) requiring
protection of wall openings (elevator doors open when elevator not at
that level); 29 C. F. R. § 1910.178(j) and (n;(11), (12) and 29 C. F. R.
§1910.30(a) covering bridge (sill) plates (brief pp. 19-25).

The complainant's evidence presented under the citation and complaint
all went to the hazard of chance elevator movement. Expert Crager's
statement of the danger presented by an open elevator door exposing the
gaping shaft was not pursued and was not specifically addressed to the
allegations of the complaint. Had respondent moved to strike that
statement, for the reason stated, that motion would have been granted.

The $10,000 civil penalty, the maximum allowable on a charge of
willfulness [29 U.S.C. §666(a)], is proposed giving full weight to the
gravity of the violations. 29 U.S.C. §666(1). Twenty employees over the
three shifts round the clock were exposed to death or serious physical
harm. The respondent's commitment to safety, i.e., its good faith, was
minimal in that all of its efforts were designed to insure elevator
operation rather than safe elevator operation (Tr. 79-81). Civil
penalties have as their purpose the encouragement of the Act's main
purpose of insuring a safe workplace. Zemon Concrete Corp. v. Marshall,
683 F.2d 176 (7th Cir. 1982). I conclude that the proposed penalty is
appropriate.

A review of the corrections to the transcript suggested by complainant
in its motion to correct shows them to be proper and they are allowed.

Motion for Sanctions:

Respondent, contending that statements in complainant's brief seriously
misstate and mischaracterize the record, asks that sanctions be imposed
suggesting that all the pleadings be stricken and the citation be
vacated insofar as it alleges willfulness and that an award of
attorney's fees and expenses would not be inappropriate. (Respondent's
motion to impose sanctions, filed September 30, 1985, pp. 5-6).

This is based on Rule 11 of the Federal Rules of Civil Procedure. That
rule makes an attorney signing a pleading responsible for its propriety;
and sanctions, such as expenses, may be imposed for a violation.
Complainant responded to this (filed December 9, 1985) countering every
alleged misstatement.

It appears from the respondent's reply brief (the basis of the motion
for sanctions) that the foundation of its motion is complainant's (1)
equating a bypass or jump to knowledge of a hazard; (2) his assumption
that respondent knew interlocks and contacts were safety devices; and
(3) his assumption that respondent knew that failure to use these
creates a hazard. None of this has any basis whatsoever in the record
according to respondent's motion.

On the theory that those personnel at respondent's facility are
intelligent and responsible men, complainant could justifiably infer
that they would know from Simmons' correspondence using terms such as
disastrous, hazardous, elevators would likely be shut down, and the
like, that something involving safety was involved. Further, its
maintenance report (exhibit C-6) of October 31, 1983, remarks "Elev. #12
Hoistway Doors--Jumped Out--UNSAFE," surely could support an allegation
that respondent knew, or should have known that bypasses create hazards,
and that interlocks and contacts are safety devices.

Respondent's motion is not well taken. Complainant's statements of the
record and arguments are within the bounds of propriety. Respondent's
motion for sanctions is denied.

ORDER:

Based on these findings and conclusions and after considering the
parties' proposals, which to the extent shown above are adopted or,
otherwise rejected as not supported by the preponderance of the evidence
or precedent, it is ordered that the citation issued May 7, 1984, is
affirmed in that respondent willfully violated 29 U.S.C. § 654(a)(1) in
that it permitted elevators 12 and 13 in building 8 to be operated
without interlocks and contact switches on the doors and gates and, in
addition, permitted elevator 12 to be operated without an electric
contact on its sill plate and without an elevator control lever capable
of locking into the neutral position. A civil penalty in the amount of
$10,000 is assessed therefor.

David J. Knight
Judge

Dated: October 20, 1986
Boston, Massachusetts

------------------------------------------------------------------------


FOOTNOTES:

[[1/]] 29 U.S.C. § 654(a)(1) provides:

§ 654. Duties of employers and employees
(a) Each employer--
(1) shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or
are likely to cause death or serious physical harm to his employees[.]

[[2/]] As explained more fully below, the doors of the elevator are part
of the building's structure, while the gates are attached to the
elevator car. Thus, each elevator has only one set of gates, but has
doors on each floor of the building.

[[3/]] We also note that Crager testified, with respect to elevator 12,
that in his 58 years of experience with elevators he had never seen an
elevator with such a "combination of so many safety devices... made
inoperative to permit the car to be put in motion with the required
protections such as gates and doors in the open position." He stated
that if he had seen the elevator operating that way, he would have
recommended that it be "shut down immediately until all safety devices
were made to properly operate ..."

[[4/]] New York State authorities also inspected Coleco's elevators
after the fatality. They issued Coleco a notice that alleged violations
existed at the elevators in building 8. The notice did not refer to the
conditions cited by the Secretary.

[[1/]] Under the Occupational Safety and Health Act of 1970, 29 U.S.C.
{secs} 651, et. seq., citations are issued after inspection and may be
contested within a 15-working-day period. 29 U.S.C {secs} 658 and 659
(a). Respondent's notice of contest is dated May 24, 1984.

[[2/]] The specific allegations are:
Concerning elevator 12:
1. Interlocks not functioning so that elevator could move with its doors
open;
2. The elevator gate (east end) did not have a functioning contact so
that the elevator could move with the gate open;
3. The elevator gate (west end) was missing and its contact was not
functioning;
4. The west end sill plate's contact was not functioning; and
5. The west end sill plate's control level (to raise and lower it) was
not functioning.
Concerning elevator 13:
1. Interlocks not functioning so that elevator could move with doors
open; and
2. The elevator car gates' contacts were not functioning.

[[3/]] See footnote 4, below.

[[4/]] The pages for the four-day hearing run consecutively for the
first three days, March 25, 26 and 27, and then begin again for the
April 29 hearing. The transcript for the latter day's hearing is noted
as "Tr. 4/29."

[[5]] Given the hazard, it appears that right-minded man do not dispute
the possible consequences of death or serious injury. St. Joe Minerals
Corp. v. OSHRC, 647 F.2d 840 (8th Cir. 1981) at footnote 9. Thus, it is
not necessary to find, based on expert Crager's testimony untouched by
cross-examination, that an employee could be decapitated by an elevator
moving when it should not.

[[6/]]The evidence by employees to this effect was not objected to and
thus the conflict between the press for production versus the
feasibility for safe operation and timely repair is resolved. See Fed.
R. of Evid. Rule 407.

[[7/]] Assuming respondent could not have known of the requirements of
the New York State Code 8 regulating elevators or the ANSI A17.1 (1971)
and that the toy manufacturing industry, as the relevant industry here,
does not recognize the hazard; this actual knowledge is sufficient under
section 5(a)(1), the general duty clause. See Usery v. Marquette Cement
Mfg. Co., 568 F.2d 902 (2d Cir. 1977) at 910; and cf., Cape & Vinyard
Div. of The New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148
(1st Cir. 1975) at 1152 and n.5.

[[8/]] This question was decided on respondent's application to depose a
certain federal official and that permission was denied to it. The
decision there is attached hereto as Appendix A and the question raised
is not further discussed herein.