” ADM Grain CO., Inc.,, Docket No.1767p{\tmargin-top: 0px;\tmargin-bottom: 1px}table{\tborder-collapse: collapse;\tborder-spacing: 0pt;\tborder-color: black;\tempty-cells: show;\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal}td{\tborder-color: black}td.table1column1{\tpadding-left: 0.075in;\tpadding-right: 0.0816667in}td.table1column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}hr{\theight: 0.0125in;\tbackground-color: black}td.table2column1{\tpadding-left: 0.075in;\tpadding-right: 0.0816667in}td.table2column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}td.table3column1{\tpadding-left: 0.075in;\tpadding-right: 0.075in}td.table3column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}td.table3column3{\tpadding-left: 0.075in;\tpadding-right: 0.075in}td.table3column4{\tpadding-left: 0.075in;\tpadding-right: 0.075in}td.table4column1{\tpadding-left: 0.075in;\tpadding-right: 0.075in}td.table4column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}body{\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal;\tmargin-left: 0.075in;\tpadding-left: 0.1in}UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0SECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v. OSHRC DOCKET NO. 1767ADM GRAIN CO. , INC.,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0February 20, 1973ORDER OF REMANDBefore MORAN, Chairman; VAN NAMEE and BURCH, CommissionersBURCH, COMMISSIONER:On January 19, 1973, the Judge issued his recommended order in this case vacating theSecretary\u2019s citation and inferentially the notification of proposed penalty for the latter\u2019s failureto comply with Commission rule 2200.32 requiring the Secretary to forward notices of contest tothe Commission within seven days of their receipt.Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A.651 et seq., 84 Stat. 1590, hereinafter referred to as \u2018the Act\u2019), I am herewith directing that theJudge\u2019s order be reviewed by the Commission.The Commission has reviewed the record and notes that on October 12, 1972, respondentwas issued a citation for 12 other than serious violations of the Act together with a notification ofproposed penalty totaling $375. A timely notice of contest was filed with the Secretary\u2019s AreaDirector on November 9, which was subsequently transmitted to and received by theCommission on November 24\u2014an intervening period of 15 days. Issue was thereafter drawnwith the exchange of the Secretary\u2019s complaint and respondent\u2019s answer, neither of whichreferenced what would appear to be the Secretary\u2019s failure to comply with the applicableCommission procedural rule for filing the notice of contest with the Commission.Commission rule 2200.32, which served as the predicate for the Judge\u2019s vacating theSecretary\u2019s citation, requires the Area Director to forward notices of contest to the Commissionwithin seven days of their receipt. By virtue of that rule the Area Director had until November16 to forward the notice of contest to the Commission. The record is absent any evidence as towhen the Area Director forwarded the notice of contest other than its receipt by the Commissionon November 24. Nor is there any reason present therein for the delay in transmitting the noticeof contest, if there was, in fact, a tardy transmittal. We do note that between November 16 and24, there was a Saturday, Sunday and a national holiday.While the Commission has in the past vacated the Secretary\u2019s enforcement actions forflagrant failure to comply with the subject rule (See Secretary of Labor v. Lennox Industries,Inc., OSHRC Docket No. 1106; Secretary of Labor v. Brent Towing Co., Inc., OSHRC DocketNo. 1003, Petition for Judicial Review, Docket No. 72\u20133511, filed November 21, 1972, 5th Cir.;Secretary of Labor v. Pleasant Valley Packing Co., Inc., OSHRC Docket No. 464) we will notresort to the imposition of such an extreme sanction under the circumstances of this case absent ashowing of prejudice to the respondent. In Secretary of Labor v. J. Dale Wilson, Builder,OSHRC Docket No. 1625, we stated that in cases of this kind the Secretary should be affordedthe opportunity to explain the delay and respondent the right to show that it has been prejudicedthereby. Such opportunity is appropriate here also.Accordingly, it is ORDERED that Judge\u2019s order is set aside and the case is remanded fora determination not inconsistent with this order.\u00a0MORAN, CHAIRMAN, dissenting:This is another case where the Commission now refuses to observe one of its ownprocedural rules because to do so will bring about a result it doesn\u2019t like. This occurredpreviously with Commission Rule 73(a) concerning the burden of proof Secretary v. Wright-Schuchart-Harbor Contractors, OSAHRC No. 559, decided February 15, 1973.There were similar decisions in Secretary v. Thorleif Larsen and Son, Inc., OSAHRC No.370, decided January 17, 1973, and Secretary v. Chicago Bridge & Iron Company, OSAHRCNo. 224, decided January 19, 1973, where the Commission refused to follow the plainrequirements of a statute because it didn\u2019t like the way an individual case would be decided byso doing.It makes one wonder where all this is leading.Among the reasons for granting this 3-member tribunal the authority to change decisionsrendered by an individual trial judge is to establish uniform precedent. This is particularlyimportant since there are presently 41 such judges and there are bound to be cases where some ofthem will render different interpretations of the same legal requirement. The ultimate purpose forthe existence of this authority is to effect a single authoritative interpretation of the Act uponwhich those bound by its requirements can rely.Unfortunately, that purpose is frustrated when the Commission members act on a case-by-case basis, apparently oblivious to all statutes, rules, or prior decisions which would compel aresult different from that which the members want to see achieved in the individual case beforethem.Decisions such as this indicate to me that the Commission has lost sight of its purposeand has opted for the role of readjudicator. In Other words, the Commission member\u2019s role,these decision say, is the same as the judge\u2019s role\u2014to decide cases as we think they should bedecided. The cases, therefore, get two \u2018hearings\u2019\u2014one by the judge who decides it the way hethinks it ought to be decided\u2014the other by the members who decide it the way they think itought to be decided.This leads inevitably to the question\u2014why should there be both judges and Commissionmembers, both with the exact same role?\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0This case has one additional aspect conveniently overlooked in the effort to explain awaythis deviation from Commission Rule 32 and the several decisions in which it has been applied.The Act in Section 10(c) requires that when an employer sends the Secretary of Labor a notice ofcontest,. . . the Secretary shall immediately advise the Commission of such . . . [emphasissupplied].\u00a0In this case, there was a notice of contest in the hands of the Secretary on November 9 ofwhich the Commission was first advised on November 24 when it received a copy thereof. Inother words \u2018immediately\u2019 means 15 days. An interpretation as far out as this deserves anexplanation. But, alas, not an exegetic word is spoken or written on the matter.Nevertheless, there are ominous indications in this decision that even further expansionof the word \u2018immediately\u2019 may loom on the horizon. What else could this mean?. . . the Secretary should be afforded the opportunity to explain the delay andrespondent the right to show that it has been prejudiced thereby.\u00a0I hesitate to answer my own question until there are examples, but theoretically\u2018immediately\u2019 could mean a rather extended length of time if the Secretary could give a logicalexplanation and the employer was in no hurry for a hearing.This rule, of course, overlooks some people who might be exposed to a hazardouscondition during this period, as well as the clear intent of Congress in enacting this law: earlyabatement of conditions which are potentially hazardous to working men and women.\u00a0[The Judge\u2019s decision referred to herein follows]HARRIS, JUDGE, OSAHRC:The Respondent in this record filed its notice of contest on the 15th day after receipt ofthe citation. The notice of contest was mailed to the Complainant on November 6, 1972, and notreceived by the Occupational Safety and Health Review Commission until November 24, 1972.Absent circumstances to explain or mitigate the delay, a period of 18 days neither complies with29 CFR 2200.32 or meets the requirement of 29 USC 651 et seq., (Section 10(c)). It is orderedthat the said citation be and the same is hereby vacated.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0SECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v. OSHRC DOCKET NO. 1767ADM GRAIN CO. , INC.,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0\u00a0November 26, 1973RIEHL, JUDGE, OSAHRC:This case is before us upon a remand from the Commission.On October 12, 1972, Respondent was issued a Citation for twelve Other Than SeriousViolations of the Act together with a Notification of Proposed Penalty totaling $375. TheCitation alleged that an inspection of a workplace under the ownership, operation, and control ofthe Respondent reveals the existence of workplace conditions that violated Section 5(a)(2) of theAct for the reason that these conditions fail to comply with certain Occupational Safety andHealth Standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.The Citation alleged that the violations result from a failure to comply with standardspromulgated by the Secretary by publication in the Federal Register. The description of thealleged violations contained in said Citation states:\u00a0\u00a0Standard orRegulation AllegedlyViolatedDescription of Alleged Violation Date On WhichAlleged ViolationMust Be Corrected\u00a0129 CFR 1918.106(b)Failure to protect employees byU.S. Coast Guard approved vestagainst drowning.Corrected at time ofinspection\u00a029 CFR 1918.96(d)Failure to provide Stokes basketstretcher or its equivalent.October 19, 197229 CFR1918.96(b)First aid kit did notinclude splints.October 19, 1972\u00a0429 CFR 1918.96(e)Failure to furnish a ladder whichwill reach from the top of theapron to the surface of the water.October 24, 1972529 CFR 1918.13(a) (1,2 & 3)Failure to provide certification ofgrain sprout (sic).November 13, 1972629 CFR 1918.7Failure to file notification ofaccident within 48 hours resultingin an employee\u2019s admission to ahospital as a bed patient.Corrected at time ofinspection.729 CFR 1918.23(b)Failure to provide a safe walkwaymeeting the requirements of1918.21(d) for access to barges.\u2018Upriver\u2019 access needed repairs ongangway.October 27, 1972829 CFR 1918.25(d)Failure to have 4 inches clearancein back of ladder rungs. Portableladder used for barge access.October 17, 1972929 CFR 1918.63(c)Failure where \u2018U\u2019 bolts wire ropeclips are used to form eyes, thenumber and spacing shall bedetermined by Table G\u20136. Onsprout (sic) and gangway.October 27, 19721029 CFR 1918.23(b)Failure to provide a safe access tobarge from dock meeting therequirements of 1918.21(d).Employees required to step morethan one foot from ladder to barge.October 27, 19721129 CFR 1918.53(a)(1)Failure to guard moving parts ofwrenches when they present ahazard.October 19, 19721229 CFR 1910.141(g)Failure to cover waste containersin the lunchroom.Corrected at time ofinspection\u00a0A timely Notice of Contest was filed with the Secretary\u2019s Area Director on November 9,1972, which was subsequently transmitted to and received by the Occupational Safety andHealth Review Commission on November 24, 1972, (an intervening period of 15 days). Issuewas thereafter drawn with the exchange of the Secretary\u2019s Complaint and Respondent\u2019s Answer,neither of which reference what would appear to be the Secretary\u2019s failure to comply with theapplicable Commission Procedure Rule for filing the Notice of Contest with the Commission.Commission Rule 2200.32, which served as the predicate for the Judges vacating theSecretary\u2019s Citation, requires the Area Director to forward Notice of Contest to the Commissionwithin seven days of receipt. By virtue of that rule the Area Director had until November 16,1972, to forward the Notice of Contest to the Occupational Safety and Health ReviewCommission.On January 19, 1973, Judge David H. Harris issued his recommended Order in this casevacating the Secretary\u2019s Citation and inferentially the Notification of Proposed Penalty for thelatter\u2019s failure to comply with Commission Rule 2200.32 requiring the Secretary to forwardnotices of contest to the Commission within seven days of receipt.On February 5, 1973, the Commission received a Petition for Discretionary Review andMotion for Summary of Reversal. The Petition alleged that had Complainant had notice of thisproceeding and been permitted to present evidence on the timeliness of his transmittal of theNotice of Contest, the evidence would have shown that the Notice of Contest was received bythe Secretary on November 9, 1972, and was transmitted (mailed) to the Commission onNovember 10, 1972, a time lapse of one day, not 18, as held by Judge Harris.The Commission remanded the case to this Judge in order to give the Complainant theopportunity to explain the delay and the Respondent the opportunity to show prejudice.On April 12, 1973, a hearing was held in St. Paul, Minnesota, at which time these issuesas ordered by the Commission were covered by testimony. Additionally, evidence was presentedas to the reasonableness of the penalties and, over Complainant\u2019s continuing objection, as to thevalidity of ten items of the Citation.THE QUESTION OF DELAY IN FORWARDING RESPONDENT\u2019S NOTICE OF CONTEST`The substantial probative evidence of record indicates that the Notice of Contest wastransmitted to the Commission well within the seven day limit set by Rule 32.Commission Rule 32 (29 CFR 2200.32) reads: \u2018The Secretary shall, within seven days ofreceipt of a notice of contest, transmit the original to the Commission, together with copies of allrelevant documents.\u2019The testimony of Mr. Vernon P. Fern, Area Director, Occupational Safety and HealthAdministration, established that the Notice of Contest was transmitted by OSHA to theCommission one day after received. There was no evidence offered by either party to thecontrary. The Decision of the Occupational Safety and Health Review Commission indicates thatit received the notice from the Occupational Safety and Health Administration on November 24,1972. Exhibit G\u20133 is a return receipt by the Post Office. The date of receipt stamped on thereturn receipt is November 27, 1972. Fern testified that he personally supervises the processingof all contested actions that are received by his office (T. 10). The actual preparation and mailingof documents is performed by his personal secretary under his supervision (T. 11). It was Fern\u2019stestimony that his secretary was very efficient (T. 21).Testimony was further that the ADM Notice of Contest was handled according to normaloffice procedure. At the time it was received by the office on November 9, 1972, it was filestamped in (T. 11). The date of receipt was noted in the official transmittal sheet to theCommission (T. 11\u201312, G\u20131). Also the evidence shows that an office log is also kept on a case-by-case basis showing the employer\u2019s name, date sent to the Commission, and a notation oftransmittal to the Regional Solicitor (T. 13\u201315, G\u20132). The log shown in evidence indicates thatNumber 9, ADM\u2019s Notice of Contest, was the only one received by the Minneapolis OSHAoffice on November 9, 1972, and it was sent to the Commission on November 10, 1972. Thetransmittal was made to the Commission via certified mail, return receipt requested (T. 15, 16).The receipts for certified mail to the Commission (G\u20133, G\u20134) indicate a mailing date ofNovember 10, 1972, and receipt by the Commission on November 27, 1972. G\u20133 contains anotation \u2018OSHRCADM.\u2019 This notation identifies the receipt as a transmittal of the ADM Noticeof Contest to the Commission. The date of mailing is typed up by Fern\u2019s secretary. Fern testifiedthat certified mail is always mailed on the date typed in and that mailing is double checked byhim or his secretary (T. 20, 21). It was his testimony that there was no possibility that the mailcould have been held in the office (T. 21). Additionally, the file to the Regional Solicitor wasmailed using the same procedures as above at the same time as the mailing to the Commission(T. 20\u201324, 27). The receipts for that mail (G\u20135 and G\u20136) indicate mailing on November 10,1972, and receipt by the Regional Solicitor on November 13. G\u20136 contains a type notationindicating the subject of the mailing to be \u2018ADM.\u2019 The certified number is sequentially thenumber after that used for mailing to the Commission. Additionally, the November 10, 1972,letter of transmittal to the Regional Solicitor states that the file had been transmitted to theCommission on November 10, 1972. (T. 25, G\u20137).The substantial, credible, uncontradicted evidence of record established to oursatisfaction that the date of mailing of Notice of Contest to the Commission could only beNovember 10, 1972.Unfortunately, we feel that such a delay is entirely possible in the state of the presentmail system of the United States. We personally have had a number of incidents involving ratherlengthy delays in mail. We have also had personal knowledge of situations in which mail hasbeen delayed in the last several years that have absolutely staggered us insofar as the inefficiencyof this mail service is concerned. Therefore, we must take judicial notice that it is quite possible,and in this case, it did actually happen, that mail was delayed for the period of time as indicatedin this instant case.Having established to our satisfaction that the mail was actually sent forth by theComplainant on the dates indicated, then we must turn to the question of whether or not theRespondent was materially prejudiced by the delay in receipt by the Commission of the Noticeof Contest.We hold that they were not so prejudiced.Respondent\u2019s attorney admitted that the delay itself did not prejudice the Respondent inany way (T. 22\u201323). Additionally, Respondent made no showing whatsoever of prejudice.Accordingly, we can see no reason to vacate the Citation on the grounds or prejudice.DISCUSSIONThe Compliance Officer, Mr. Memmott, used a \u2018penalty assessment sheet\u2019 to arrive at hisconclusions during his testimony (T. 82, G\u201318). He took into account the gravity of the violationincluding the number of employees exposed to the condition, the likelihood of injury toemployees, and the possible seriousness of the injury. He also considered the good faith, size,and history of previous violations of the company (T. 83). The method used by Memmott inassessing good faith was that he reduced the unadjusted penalty (G\u201318, Col. 5) by twentypercent for Respondent\u2019s good faith. This reduction was the maximum allowed under theOccupational Safety and Health Administration policy, under which he operates, and was madebecause Respondent did have some activity in safety and was cooperative and helpful inconnection with the inspection (T. 83, 84).Memmott also reduced the unadjusted penalty by twenty percent since the subjectinspection was the first of Respondent in the Minneapolis area and Respondent thus had noprevious history of violations to Memmott\u2019s knowledge. This twenty percent reduction was themaximum allowed by the Occupational Safety and Health Administration policy (T. 85).There was no reduction made for size in the unadjusted penalty since ADM has 25employees at the workplace in question and between two and three thousand Nation-wide.Item 1The evidence establishes that the gravity of violation of Item 1 was moderate and theadjusted penalty of $45 was appropriate for the violation of letting employees work on bargesunprotected by approved life jackets. The probability was moderate since the company recordsdid not reflect a high frequency of employees falling into the river (T. 87). No employeesobserved by Memmott working on the barges were protected by life jackets.Item 2The adjusted penalty of $45 for the violation of Item 2 was appropriate under thecircumstances. Evidence establishes that a Stokes basket as required by 29 CFR 1918.96(d),(G\u201312), was not provided at the worksite. The probability of injury was moderate since aninjured man in the hole of a barge could sometimes not be safely removed without immobilizingand hoisting or carrying him out in a device which would not allow him to fall out (T. 48, 88).The probability of serious injury was moderate since an injured man must be carefully handledand could be further injured if improperly moved from the accident scene (T. 48).It is to be noted also that Respondent did not demonstrate provision of an alternative to aStokes basket.Item 3The adjusted penalty of $30 for Item 3 was appropriate under the circumstances. Item 3charged violation of 29 CFR 1918.96(b), (G\u201312), which required provision of splints in the first-aid kit. The first-aid kit provided did not contain such splints (T. 50).The probability of seriousness of injury was moderate since a broken bone can be injuredfurther and blood vessels can be injured if the bone is not properly immobilized (T. 51, 89). Inthis case exposure was high\u2014the same as in the items aforementioned.item 4The adjusted penalty of $45 is appropriate for the violation of Item 4(29 CFR1918.96(e)), (G\u201312). Probability of injury occuring from the lack of a ladder was moderate.Item 5The adjusted penalty of $45 for the violation of Item 5 (29 CFR 1918.13(a) (1, 2 and 3)),(G\u201313), was appropriate. Item 5 required certification of certain types of grain spouts. The spouton the side was not certified (T. 56). Grain spouts have a record of falling down at the leastexpected time and that just because the spout in question appeared to be in fairly good conditiondid not mean that it could not also fall down (T. 134). Failure to inspect therefore created anactual hazard (T. 135). Serious injury or death could result from a failure of ADM\u2019s spout (T. 59,91\u201392, 160). Exposure to the hazard involved all deck employees.Item 6Item 6 was of such low gravity as to not warrant a penalty.Item 7The gravity of the violation of Item 7 was moderate. The adjusted penalty of $30 wasappropriate under the circumstances. This violation of 29 CFR 1918.23(b), (G\u201314), requires asafe walkway for barge access. The evidence establishes that the existing walkway was unsafe(T. 64).There was moderate probability that employees using this walkway would fall and beinjured since boards and nails protruded and the handrail was loose (T. 68, 93, 138). Exposure toinjury was greater during slippery winter conditions (T. 68). Such injury could be serious,requiring doctor\u2019s care or even resulting in death (T. 68, 69, 92). Employees positioning movingbarges would be exposed to the hazard (T. 68).Item 8The adjusted penalty was appropriate as established by the evidence. Item 8 chargedviolation of 29 CFR 1918.25(d), (G\u201315), which requires ladders to have 4 inches of clearancebehind the rungs to be considered safe. A portable ladder at the jobsite does not have suchclearance (T. 71).Item 9Evidence establishes that the Respondent has violated Item 9 (29 CFR 1918.63(c)),(G\u201316), which requires that a specific number of \u2018U\u2019 bolt wire clips be used when eyes areformed. Under the circumstances we feel that there was a minimal problem of gravity. The two\u2018U\u2019 bolt clamps anchoring each eye was tight and in good condition. Under the circumstancesthere was little likelihood of injury from the absence of specific required number of such bolts.This condition has been promptly corrected and we accordingly feel that the penalty of $30should be vacated for Item 9.Item 10The gravity of the violation of Item 10 was moderate. The adjusted penalty of $30however is appropriate under the circumstances. Item 10, 29 CFR 1918.23(b), G\u201314), whichrequires provisions for safe access to barges being marked. Such access was not provided in thatall employees stepped across a three foot gap to reach the barge. The probability of injury wasmoderate. There was however a possibility of severe injury should there have been such a falland we feel that the $30 penalty is indicated.Item 11The adjusted penalty of $45 is appropriate in Item 11. Item 11 charges violation of 29CFR 1918.53(a)(1), (G\u201317), requiring moving parts of winches or other machinery be guardedwhen they present a hazard to employees. The evidence establishes that a winch was not soguarded. The probability of injury was significant in that an employee sometimes worked on thewinch to repair it while it was in operation, and employees also reached over the unguarded beltto guide the winch line on a cylinder by hand. In order to do this the employee had to stand in aprecarious position on a rail (T. 100, 150\u2013155). There was a very real possibility of severe injurysince an employee could get clothing caught or otherwise be pulled into the moving belt andpossibly loose a finger or cripple a hand (T. 78, 99, 155).Item 12The gravity of Item 12 was not severe enough to warrant a penalty and is not an issue.FINDINGS OF FACT1. The Respondent, ADM Grain Company, at all times involved was a corporationhaving its principal office in Decatur, Illinois (Complaint and Answer).2. Respondent had an office and place of business at St. Paul, Minnesota where it wasengaged in interstate transportation of grain by barge and rail (Complaint and Answer).3. Respondent is an employer employing approximately 25 employees in a businessaffecting commerce at said workplace (Complaint and Answer).4. Respondent\u2019s workplace was inspected on September 29, 1972, by a ComplianceOfficer.5. Respondent, on October 12, 1972, was issued a Citation for violation of Section5(a)(2) of the Occupational Safety and Health Act and 12 Occupational Safety and HealthStandards duly promulgated pursuant to Section 6 of the Act. Also on the same date Respondentwas issued a Notification of Proposed Penalty, covering each of the alleged violations andproposing a penalty to be assessed for ten items of violation listed in the Citation (Complaint andAnswer, Citation, Notification of Proposed Penalties).6. On November 9, 1972, Respondent filed with the Secretary a notification to contest theproposed penalties. This notification of the contest was transmitted to the Occupational Safetyand Health Review Commission by certified mail on November 10, 1972 (Complaint, T. 15, 16,G\u20132, G\u20137).7. The receipt of the Notice of Contest from the Area Director by the Commission onNovember 24, 1972, was no indication of any act or omission or negligence to forward on thepart of the Secretary of Labor.8. The Respondent was not prejudiced by any delay in the delivery to the Commission ofthe Notice of Contest (T. 22\u201323), and the Respondent so conceives.9. A penalty in the total adjusted amount of $375 was proposed by the Complainant asfollows:a.Item NumberProposed Penalty145.00245.00330.00445.00545.006-0-730.00830.00930.001030.001145.0012-0-\u00a0TOTAL $375.00\u00a0b. The amount of each proposed penalty considered(1) The Respondent\u2019s good faith in that Respondent did have some activity in safety andshowed concern for safety in that its agents afforded the Department of Labor investigatorcooperation during his inspection (T. 83, 84). A sum of twenty percent was deducted from theunadjusted penalty for each item of good faith (G\u20138).(2) Respondent had no history of violations in the Minneapolis Area (T. 85). Twentypercent for no previous history of violations was deducted from the unadjusted penalty for eachitem (G\u201318).(3) Respondent employed 25 employees at the Drake Street workplace and employed twoto three thousand Nation-wide (T. 85\u201386). No deduction was made from the unadjusted penaltybecause of Respondent\u2019s large size (G\u201318).(4) The gravity of each violation including the number of employees exposed to thecondition, the likelihood of injury to such employees, and the possible seriousness of injury (T.83).(a) The gravity of Items 6 and 12 was low (G\u201318).(b) The gravity of Items 1, 2, 4, 5 and 11 was middle moderate (G\u201318, T. 43\u201345, 48,52\u201354, 59, 78, 87\u201388, 91\u201392, 99\u2013100, 134\u2013135, 153, 160).(c) The gravity of Items 3, 7 and 10 was low moderate (G\u201318, T. 51, 68\u201369, 71, 75, 77,89, 92\u201398, 138).10. The evidence establishes that the Citation was correct in fact with respect to Item 1 in that:a. Respondent failed to protect employees by using U.S. Coast Guard approved lifejackets in violation of 29 CFR 1918.106(b), (G\u201311, T. 40\u201341, G\u20138, G\u20139).b. This condition affected the safety of Respondent\u2019s employees in that they could fallinto the river and sink under the water and drown without life jackets (T. 43, 44).11. Respondent was in violation of 29 CFR 1918.96(d), (G\u201312, T. 44\u201346), in that he failed toprovide a Stokes basket stretcher or its equivalent. This condition affected the safety ofRespondent\u2019s employees in that the means of safe removal of an injured employee from theinterior of the barge was not provided (T. 48).12. Item 3. Respondent was in violation of 29 CFR 1918.96(b) for failure to provide a first-aidkit that contained splints (G\u201312, T. 50). This condition affected the safety of Respondent\u2019semployees in that broken bones can be further injured and blood vessels damaged if a brokenbone is not immobilized by a splint (T. 89, 51).13. Item 4. Contray to Occupational Safety and Health Standards, Respondent failed to furnish aladder which would reach from the top of the apron to the surface of the water (G\u201312, T. 51, 52).This condition affected the safety of Respondent\u2019s employees in that an employee who fell intothe river could be disabled and require instant aid and safe removal from the water (T. 52\u201354).14. Item 5. Contrary to Occupational Safety and Health Standard, 29 CFR 1918.13(a) (1, 2, and3), Respondent failed to provide certification of a grain spout (G\u201313, T. 56).15. Item 6. The penalty for Item 6 is appropriate.16. Item 7. Contrary to Occupational Safety and Health Standard, 29 CFR 1918.23(b),Respondent failed to provide a safe walkway meeting the requirements of 29 CFR 1918.21(d),(G\u201314, T. 64\u201368). This failure affected the safety of Respondent\u2019s employees in that they couldslip and fall on the unsafe gangway, seriously injuring themselves (T. 68, 69, 92).17. Item 8. Contrary to Occupational Safety and Health Standard 29 CFR 1918.25(d), theportable ladder on Respondent\u2019s dock failed to have four inch clearance in back of ladder rungs,creating a safety hazard (G\u201315, T. 71).18. Item 9. Contrary to Occupational Safety and Health Standard 29 CFR 1918.63(c),Respondent failed to provide the proper number, as determined by Table G\u20136 of the standard, of\u2018U\u2019 bolt wire rope clips where said clips were used to form an eye (G\u201316, T. 75, 96).19. Item 10. Contrary to Occupational Safety and Health Standard 29 CFR 1918.23(b),Respondent failed to provide safe access from the dock to the barge within the meaning of1918.21(d), (G\u201314, T. 77, 98). This condition affected the safety of Respondent\u2019s employees inthat they could slip and fall into the gap between the dock and barge covers and be injured (T.77, 98).20. Item 11. Contrary to Occupational Safety and Health Standard 29 CFR 1918.53(a)(1),Respondent failed to guard moving parts of winches when they present a hazard (G\u201317, T.99\u2013100, 150\u2013155). This condition affected the safety of Respondent\u2019s employees in that anemployee could catch clothing or could otherwise be pulled into the moving parts, injuring afinger or hand or other parts of the body (T. 78, 99, 155).21. Abatement dates were orally stipulated to be not in issue (T. 103).CONCLUSIONS OF LAW1. Jurisdiction of this proceeding is conferred upon the Occupational Safety and HealthReview Commission by Section 10(c) of the Act and the undersigned has been duly designatedto hear and make determinations upon this proceeding and to report such determinations to theCommission pursuant to Section 12(j) of the Act.2. Respondent is and at all material times was an employer within the meaning of Section3(5) of the Act.3. Inspection of Respondent\u2019s workplace was conducted under the authority granted inSection 8(a) of the Act.4. Respondent has violated Section 5(a)(2) of the Act by violating the OccupationalSafety and Health Standards 29 CFR 1918.106(b), 29 CFR 1918.96(d), 29 CFR 1918.96(b), 29CFR 1918.96(e), 29 CFR 1918.13(a) (1, 2 & 3), 29 CFR 1918.7, 29 CFR 1918.23(b), 29 CFR1918.25(d), 29 CFR 1918.63(c), 29 CFR 1918.23(b), 29 CFR 1918.53(a)(1) and 29 CFR1910.141(g)(2) in the manner alleged in paragraph IV of the Complaint.5. The violations of the aforementioned standards are not serious violations within themeaning of the Act.6. The penalties proposed for Items 1, 2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 are appropriate andshould be affirmed.7. The penalty proposed for Item 9 is inappropriate and should be vacated.8. The Area Director of OSHA timely transmitted the Notice of Contest to theCommission. The transmission of the Notice of Contest to the Commission was made onNovember 10, 1972. The notice was delayed by the U.S. Postal Service and arrived at theCommission on November 24, 1972. This delay in transmittal did not prejudice the Respondert\u2019srights to due process and a fair hearing.DECISIONBased upon the above Findings of Fact and Conclusions of Law, it is hereby ORDEREDthat:1. Citations 1, 2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 and their proposed penalties are affirmed.2. The penalty on Item 9 is hereby vacated.\u00a0″