“SECRETARY OF LABOR,Complainant,v.COLECO INDUSTRIES, INC.,Respondent.OSHRC Docket No. 84-0546DECISIONBEFORE: FOULKE, Chairman;MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:Following the investigation of a fatality at one of its facilities, theSecretary 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 anelevator, which had inadvertently been set in motion and crushed anemployee, was either missing or had been rendered inoperative. FormerReview Commission Administrative Law Judge David J. Knight found thatColeco had willfully violated section 5(a)(1) and assessed a $10,000penalty. Based on the reasons set forth below, the Commission agreeswith the judge’s conclusions that Coleco willfully violated section 5(a) (1) and that a $10,000 penalty is appropriate.I. Factual BackgroundColeco is a toy manufacturer with a manufacturing and distributioncomplex in Amsterdam, New York. Building 8 in Coleco’s complex is aten-story warehouse used to receive, store and ship raw materials andfinished 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 floorsfor storage and onto the lower floors for shipping. Most materials movedby the elevators are stored on pallets and moved on and off theelevators by forklifts.On February 17, 1984, Coleco employee Blaine Lamson was using a forkliftto load material onto elevator 12 from the third floor when the elevatorunexpectedly began to rise. This resulted in him being crushed to deathbetween the forklift and the top of the elevator hoistway opening. OSHAwas notified of the fatality and investigated the incident.The record in this case reveals the following essentially undisputedfacts. On the third floor, elevator 12 opened on its east side. On thatside the elevator had a gate, but it did not have a sill plate. (A sillplate is a steel plate used to bridge the gap between an elevator carand 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 westside 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 hadopened the gate on that side to load the elevator.[[2\/]]Because the locking mechanism on the handle that operated the sill plateon the west side of the elevator did not work, and there was no gate onthat side, if the sill plate were to fall, it would rest against theelevator doors. If the elevator began to move with the sill plateagainst the door, the plate could come into contact with stationarycomponents in the elevator shaft and possibly be damaged itself ordamage other equipment.In order to avoid such damage, employees usually wedged a piece of woodbetween the sill plate handle and the side of the elevator to keep thesill 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 ofthe strap to the sill plate handle and the other end to the elevatorcontrol handle. Unfortunately, this effort apparently failed to securethe sill plate. The sill plate fell, pulling the sill plate handle,which in turn pulled the elevator operating control clockwise and causedthe elevator car to rise. Lamson’s forklift was partially on the car atthe time, and the resulting fatal injury occurred.On each floor of building 8 were doors that, when open, could provideaccess to elevators 12 and 13. When closed, the doors would isolate theelevator shafts on that floor. The elevator doors were manually-operatedand bi-parting, i.e., when a door was opened, the bottom half wouldretract 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 thatwas designed to prevent elevator movement when the door was not fullyclosed. However, doors and rails were often damaged so that some of thedoors could not fully close. Even when one set of doors could not fullyclose, an elevator could only be operated by bypassing the interlocks.Coleco employees accomplished this by installing a jumper cable in thecontrol panel of the elevator engine room. Production demands made itnecessary to keep the elevators running, and because the doors and railswere frequently damaged, it was common for employees to operate theelevators with the interlock switches intentionally bypassed.The east side of elevator 12 was equipped with a gate which, whenclosed, isolated the car from the elevator shaft in which it moved. Thegate moved vertically to open and close, and it was equipped with\”contacts\” — electrical devices like those used on doorinterlocks–that were designed to prevent the elevator from moving whenthe gate was not fully closed. At the time of the accident, the elevatormoved with the east gate in the open position, indicating that thecontact switch for that gate was bypassed. The gate on the west side ofelevator 12 had been missing for approximately six months at the time ofthe accident. Coleco had fabricated a gate for the west side; however,it had not been installed by the time of the accident. Since the westgate was missing, the interlock for that gate could not be relied on toprevent the elevator from moving.The sill plate on the east side of elevator 12 was hinged to theelevator car floor so that it could be raised or lowered. It was alsoequipped with an interlock that prevented the car from moving if theplate was not in the fully raised position. This interlock also had beenbypassed. The sill plate could be raised or lowered by moving a handlein the elevator car. The handle was supposed to lock in position whenthe plate was upright. However, at the time of the accident, the handledid not lock in position.Each elevator car’s up-and-down movement was regulated by an electricalcontrol in the car. When the control was in its upright, or neutral,position, the elevator would not move. When the control was rotatedclockwise, the elevator would move up; and when rotatedcounterclockwise, the elevator would move down. The knob on the controlwas supposed to be spring loaded, so that the knob would have to bepulled outward before the control would rotate. However, because thespring-loading mechanism was defective on elevator 12, the controlapparently could rotate without the knob being pulled.Following her investigation of the accident, the Secretary issued acitation charging Coleco with a willful violation of section 5(a)(1) ofthe Act. Item 1(a) of the citation alleged that Coleco \”[e]mployees werepermitted to load, unload, ride in and work near\” elevator 12 \”withoutadequate precautions taken to prevent the elevator car from moving, whenit should not,\” in that, at the time the elevator moved: (1) all itsaccess (hoistway) doors were not fully closed and not equipped withfunctioning door interlocks, (2) its east gate was not fully closed andnot equipped with a functioning electric contact switch, (3) its westend gate had been removed and the electric contact switch for the gatewas not functioning, (4) its west end sill plate lacked a functioningelectric contact switch, and (5) its west end sill plate control leverwas not functioning and was tied to the elevator’s control lever. Item1(b) of the citation alleged, with respect to elevator 13, that itsaccess doors were not fully closed and lacked functioning doorinterlocks, and that its car gates lacked functioning electric contactswitches.The citation recommended the following abatement measures: (1) therepair or replacement of all the electric interlocks and contactswitches referred to in the citation, (2) the installation of themissing car gate on elevator 12, (3) the repair of elevator equipmentmalfunctions and nonuse of malfunctioning elevators, (4) the prohibitionof 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 ofelevators 12 and 13 exposed Coleco employees to hazards that \”couldcause or would likely cause death or serious physical harm\” and thatColeco had actual knowledge of the hazards, which resulted from itsfailure to use door interlocks, as well as gate and sill plate contactswitches. He also found that Coleco had \”constructive notice\” that theabsent preventive devices must be used on its elevators. The judgeconcluded that the violation was willful because Coleco acted with plainindifference to the requirements of the Act and was \”inattentive\”, tothe safety of its employees who used the elevators.II.Proof of a Section 5(a)(1) Violation(a) The Secretary’s Prima Facie CaseTo prove that an employer violated section 5(a)(1), the Secretary mustshow: (1) that a condition or activity in the employer’s workplacepresented a hazard to employees, (2) that the cited employer or theemployer’s industry recognized the hazard, (3) that the hazard waslikely to cause death or serious physical harm and (4) that feasiblemeans existed to eliminate or materially reduce the hazard. UnitedStates 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, andthe Commission concludes that the Secretary has established thoseelements of her burden of proof. With respect to the first element,whether the Secretary established that the elevators presented a hazardto Coleco employees, the record clearly shows that the system ofinterlocks and contacts that would ordinarily prevent Coleco’s elevatorcars from moving, unless the doors and gates were completely closed hadbeen bypassed, allowing the cars to move whether the doors and gateswere open, closed, or missing. Numerous employees testified that theyeither regularly or occasionally operated the elevators or used forklifttrucks to transport freight onto the elevators. The Secretary’s elevatorexpert, Crager, testified that the absence of functioning inter-locksmeant that an elevator could operate with its doors opens, which meantthat a person or forklift could fall into the open shaft. Crager alsotestified that the absence of an elevator gate and functioninginterlocks was hazardous because a person on a moving car could bestruck by a projection in the elevator shaft or fall into a spacebetween the car platform and the hoistway walls. [[3\/]] The accidentitself demonstrates that the lack of functioning door interlockspermitted an elevator to move while it was being loaded, subjecting theemployee doing such work to numerous hazards, including the hazard ofbeing crushed between the moving elevator and the stationary hoistwaystructure. Also, employees Reese and Farina testified that employeesstanding on the shop floor occasionally stuck their heads into theelevator shaft to look for or call an elevator, thereby exposingthemselves to the hazard of being struck by a moving elevator.In regard to the third element of proof, we agree with Judge Knight’sfinding that the hazard of an elevator potentially able 😮 move with itsdoors and gates open could cause death or serious physical harm. Colecohas not taken exception to this finding. Here, the hazard caused thedeath of an employee. See Simplex Time Recorder Co., 12 BNA OSHC 1591,1597, 1984-85 CCH OSHD ? 27,456, p. 35,572 (serious violation evidentfrom death of employee).As to the fourth element of the Secretary’s burden of proof, weacknowledge Judge Knight’s finding–to which Coleco does not takeexception–that after the occurrence of the fatality, Coleco prohibitedthe operation of unsafe elevators and either immediately repaired themor shut them down. We find that such actions represented a feasiblemeans of eliminating or materially reducing the alleged hazards.With respect to the remaining element of the Secretary’s prima faciecase, whether she proved that either Coleco or its industry recognizedthe cited hazard, the parties strongly disagree. We need not reach thequestion of industry recognition, however, because the evidenceconvincingly establishes that Coleco had actual knowledge of the allegedhazards. See Brennan v. Vy Lactos Laboratories, Inc., 494 F.2d 460,463-464 (8th Cir. 1974) (actual employer knowledge of hazard satisfiesgeneral 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 thecitation from a letter written on November 18, 1982, by the president ofSimmons Elevator Co., which Coleco had hired to service and inspect itselevators. In the letter, Simmons Elevator’s president, Ben C. Stanley,wrote to Coleco’s president, Arnold Greenberg, regarding the conditionof the elevators at the Amsterdam complex. The letter read in part:Because of their condition and the fact that the people in the plantwill never agree to a time when the elevators can be repaired, yourproduction in Amsterdam is in great jeopardy and could be shut down atany time. Also, if a New York State inspector were to come in and checkthe elevators, he would immediately shut down ten of the thirteenelevators, 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 youaware that you are in a potentially disastrous position as far asliability and production.We have been servicing your elevators for several years … trying towork through … your people [including a \”Dick Suplicki\”]. These peopleare aware that there is work which needs to be done on the elevators andwant the work done. However, there does not appear to be any sort ofsystem whereby the elevators can be shut down in order to make therepairs. It appears that the biggest concern is slowing down productionbecause of elevator shut downs due to repairs.I think it would be a good idea if I could meet with you … I couldshow you some of the problems that exist and how dangerous some of theseconditions are … I think this would be a start … towards makingthese elevators safe… we … want you to be aware of these hazardousconditions, in the hope that … [they] can be remedied.The letter also made it clear that Richard Suplicki, Coleco’s plantengineer 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 theAmsterdam facility, received a copy of the letter from Stanley. Suplickitestified 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 serioussafety problems with its elevators. Although it did not provide detailedinformation about the condition of the elevators, the letterspecifically refers to the \”very poor condition\” of elevator doors andgates, both of which figure prominently in this case. We, therefore,reject Coleco’s argument that the letter did not identify any specifichazard.Second, the inadequacies of Coleco’s elevators were also brought to itsattention by the monthly elevator maintenance reports that SimmonsElevator provided for Coleco. After the conduct of each monthlyinspection of Coleco’s elevators, Simmons Elevator provided Coleco withcheck-off sheets that showed the results of the inspection and indicatedelevator parts that needed repair or replacement. The sheets sometimescontained handwritten comments about problems with those parts.According to the check-off sheet for February 9, 1984–eight days beforethe accident–the front gate for elevator 12 was not being used and therear gate was missing. The sheets for January of 1984 and November andDecember of 1983, note that the door and gate interlocks for elevators12 and 13 were intentionally bypassed and that the \”[d]oors [to elevator13] are being left open while running[,] not good\” (emphasis in theoriginal). 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 plantengineer Suplicki or left for him to review. Thus, they provided furthernotice to Coleco of the cited elevator hazards. We, therefore, concludethat there is no merit in Coleco’s arguments that the check-off sheetsdid not identify a specific hazard, and that the information it receivedfrom Simmons Elevator led it to believe that its elevator problems werebeing corrected.Finally, a number of Coleco employees testified that their supervisorsknew that elevators 12 and 13 were regularly operated with their doorsor gates open, as well as with their door and gate interlocks bypassed,and that the rear gate for elevator 12 was missing. One employeetestified that he \”ran the elevator for a long time and … 90% of thetime they [the doors and gates] didn’t work, especially the gates.\” Thatsame employee also testified that he would tell his supervisors aboutdoors not closing and gates not working and that the supervisors \”wouldtell [you] that they would fix them but they didn’t.\” Other employeestestified to the same effect and also that even though their supervisorsknew the elevators operated with their doors or gates open, thesupervisors told the employees to continue to run the elevators untilthe elevators stopped functioning. We find that this employee testimonyfurther establishes that Coleco had actual knowledge of the allegedhazards at elevators 12 and 13.Based on the above cited evidence, we conclude that the Secretary hasestablished that Coleco had actual knowledge of the alleged hazardspresented by the nonfunctioning door and gate interlocks and uncloseddoors on elevators 12 and 13, as well as the missing gate of elevator12. Accordingly, we find that the Secretary has proven all the elementsof a section 5 (a) (1) violation. However, we find that the Secretaryfailed to prove that either Coleco or its industry recognized the hazardcreated by the lack of a functioning electrical contact switch for thesill plate in elevator 12 and we, therefore, vacate item 1(a) (4) of thecitation. We also vacate item 1(a)(5) of the citation, regarding thenonfunctioning sill plate control lever. Judge Knight concluded that theallegation was a \”peripheral issue … not within the proof of thesection 5 (a) (1) charge.\” Since the Secretary relies on the judge’sdecision, she apparently does not wish to pursue the allegation; wetherefore affirm the judge as to this allegation.(b) Coleco’s Affirmative DefensesColeco argues that the citation is defective because it specifies onlythe means of abatement, and it does not specify a hazard. UnderCommission precedent, Coleco argues, a hazard must be defined in such away that the citation apprises the employer of its obligations, andidentifies conditions or practices over which it can reasonably beexpected to exercise control. Coleco relies on Pelron Corporation, 12BNA 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 CCHOSHD ? 26,852, p. 34,399 (No. 77-2350, 1984). Coleco’s argument iswithout merit. The citation here clearly identifies hazardous conditionsover which Coleco exercised control. The citation alleges that:Employees were permitted to load, unload, ride in and work near FreightElevator #12 [and 13] … without adequate precautions taken to preventthe elevator car from moving, when it should not ….Thus, the crux of the hazard alleged by the Secretary was Coleco’sfailure to prevent employee exposure to elevators that could moveunexpectedly.Coleco also appears to argue that the citation is defective because itfails to specify generic hazards. There is no merit to this suggestion.The Secretary is not required to frame a section 5(a)(1) hazard ingeneric, i.e., broad, general terms. Davey Tree, 11 BNA OSHC at 1899,1983-84 CCH OSHD at p. 34,399. Moreover, the circumstances of theaccident and the testimony at the hearing–that employees could fallinto an open shaft while working outside the shaft, be struck by aprojection in the shaft while riding the elevator or be struck by theelevator while calling for the elevator–establish the existence ofbroad, generic hazards.Coleco also argues that the Secretary’s failure to adopt an AmericanNational Standards Institute (\”ANSI\”) standard on elevators [ANSIA17.1-1971, entitled \”Elevators, Dumbwaiters, Escalators and MovingWalks\”] 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 section5(a)(1). Coleco further claims that the Secretary’s failure to adopt theANSI standard improperly subjects it to dual state-federal enforcementin that it will have to comply with the ANSI elevator standard and theNew York State elevator code.[[4\/]] Both of these arguments are withoutmerit.The Secretary is not attempting to enforce the ANSI standard here, butis relying on it as general evidence of the hazards presented and toshow 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 throughits own supervisors and the warnings of Simmons Elevator, we do not relyon the ANSI standard as evidence of industry recognition.In arguing that it is being forced improperly to comply with both thestate elevator code and the requirements of the general duty clause,Coleco alleges that the New York State code does not require certain ofthe measures the Secretary would have Coleco implement of its elevatorsto enhance employee safety. However, this fact alone does not establishthat Coleco is exempt from compliance with the general duty clause. Asthe United States Court of Appeals for the First Circuit stated inPuffer’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 thatindicates that Congress intended compliance with the minimum standardsof applicable state law to create an exemption from the general dutyclause.Consequently, Coleco’s argument is rejected.Finally, Coleco argues that it was improperly cited under section5(a)(1), because specific OSHA standards apply to its door interlocksand sill plates. Since we do not base our finding of a violation on thecondition of the sill plates on elevator 12, we need only addressColeco’s contention that a specific OSHA wall opening standard addressesthe same hazards as the citation’s allegation that the elevator doorinterlocks 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 whichthere is a drop of more than 4 feet shall be guarded by one of thefollowing: (1) Rail, roller, picket fence, half door, or equivalentbarrier.\” Coleco points out that the Secretary’s elevator experttestified that functioning door interlocks are intended to preventelevator hoistway doors from being opened when the elevator is notstopped at a particular floor, and that the expert identified twohazards associated with open hoistway doors: (1) persons might fall intothe hoistway, and (2) a person might place part of his body into thehoistway and be struck by a moving elevator car. Coleco asserts that itwas taking the type of precautions required by the wall opening standardby placing pallets in front of partially-open doors to keep people fromfalling 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 citationissued under section 1910.23(b)(1)(f), did not abate other hazards, notencompassed by that standard, that exist when an elevator door interlockfails to function. The most obvious of these hazards is sudden andunexpected elevator movement. Such movement can have devastating effectswhen an employee is loading freight on an elevator, as in this case. SeePuffer’s Hardware, 742 F.2d at 14; St. Joe Minerals Corp. v. OSHRC, 647F.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, themeans of abatement sought by the Secretary here go considerably beyondthe picket fences and other barriers contemplated by the wall openingstandard. We, therefore, reject Coleco’s argument. The citationencompasses hazards that would exist even if there were full compliancewith the wall opening standard. Accordingly, we find that Colecoviolated section 5(a)(1).III.WillfulnessUnder Commission precedent, a violation is willful if \”it was committedvoluntarily with either an intentional disregard for the requirements ofthe Act or plain indifference to employee safety.\” U.S. Steel, 12 BNAOSHC at 1703, 1986-87 CCH OSHD at p. 35,675.Judge Knight found that, although it recognized the hazardous conditionof its elevators, Coleco gave overriding consideration to production. Hefound that Coleco repaired the elevators only when it was convenient todo so, and then only to keep them in operation, not out of any concernfor safety. He also found that the only precaution Coleco took to abatethe dangerous conditions created by the elevators was to barricade openelevator doors when the elevator was not at the level of the doors. Thejudge correctly observed that this precaution did not afford anyprotection to employees on the elevators. He concluded that Coleco\”acted with intentional disregard, was plainly indifferent torequirements of the Act, and was markedly inattentive to the safety ofits personnel using its elevators[–]all in the name of production.\”Coleco argues that the record shows that it was not indifferent to thesafety of its employees and that it spent considerable amounts of moneyand employee time to modernize and repair its elevators. Coleco pointsout that at the time of the accident, while running at full production,it had shut down elevator 13 for major repairs and had scheduledelevator 12 for repairs after elevator 13 was back in operation. It alsonotes that it took steps to minimize hazards to employees by barricadingopen elevator doors.The record clearly demonstrates that Coleco knew that interlocks andcontacts are intended to make elevators operate more safely. It alsoknew that the interlocks and contacts for elevators 12 and 13 werebypassed on a regular, long-term basis, and that one of the gates toelevator 12 was missing. Coleco had completed construction of a new gatefor elevator 12 at least two weeks before the accident occurred, but hadfailed to install it. Coleco had received ample warning of these andother problems with elevators 12 and 13 from: Simmons Elevator’sNovember 1982 letter; Simmons Elevator’s monthly inspection reportsduring the six months prior to the accident; and its own employees.Nevertheless, at the time of the accident, and after Coleco’s door andgate problems had been highlighted by the Simmons Elevator letter,Coleco still allowed elevators 12 and 13 to operate with unsafe doorsand elevator 12 to operate without one of its gates. Also, although therecord establishes that Coleco expended considerable funds and employeework hours in repairing and maintaining its elevators, and that it hadtemporarily shut down elevator 13 for repairs, we agree with the judgethat \”all [Coleco’s] … efforts were designed to insure elevatoroperation rather than safe elevator operation.\” The fact that Colecosometimes blocked access to open elevator doors does not significantlydetract from this conclusion. Thus, the evidence clearly establishesColeco’s plain indifference to the safety of its employees, whichestablishes a willful violation.Coleco also points to two cases, with allegedly analogous facts, inwhich 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 at1704, 1986-87 CCH OSHD at p. 35,675.These cases do not lend support to Coleco. The employer in R.D. Andersonhad taken a series of significant steps to comply with the standardcited there. The employer in U. S. Steel had made efforts to abate thecited hazard and had concluded that its employees were not exposed tothe hazard. Here, Coleco only addressed its elevator hazards to theextent that the hazards interfered with production. Accordingly, we findthat the violation was willful.IV.ORDERJudge Knight assessed the Secretary’s proposed penalty of $10,000 forColeco’s willful violation of section 5 (a) (1). After consideration ofthe 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 vacatedparts (a) (4) and (a) (5)) is affirmed as a willful violation, and apenalty of $10,000 is assessed.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: January 14, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.COLECO INDUSTRIES, INC.,Respondent.OSHRC Docket No. 84-0546DECISION AND ORDERAppearances: For complainantPatricia M. Rodenhausen, EsquireRegional SolicitorU. S. Department of LaborNew York, New YorkBy:Harry W. Scott., Jr.,EsquireFor respondentW. Scott Railton, Esquire,and James F. Kearney, EsquireReed, Smith, Shaw & McClayWashington, D. C.The Event:An employee of the respondent, Coleco Industries, Inc., a largemanufacturer of toys, at its Amsterdam, New York, facility, an themorning of February 17, 1984, working alone drove a forklift truckcarrying pallets onto elevator no. 12 in building no. 8. While he was inthis process, half on the elevator, it began to rise and he was pinnedbetween the elevator entrance and the forklift truck’s seat. Theemployee 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 theelevators in building 8 over the period February 17 to March 7, 1984. Asa result, it issued[[1\/]] a citation on May 7, 1984, which respondentduly contested,[[1\/]] alleging a willful violation of the general dutyclause, 29 U.S.C. ? 654(a)(1), requiring that each employer furnish hisemployees with a place of employment free from recognized hazards whichmight cause death or serious physical harm.[[2\/]] A proposed civilpenalty in the amount of $10,000 was assessed and abatement was to beaccomplished within a month.Hearings were held on March 25 through 27 and April 29, 1985, with bothparties represented by counsel. No affected employee or hisrepresentative appeared after due notice (Transcript, hereafter Tr., 4).Post-hearing proposed findings and motions (to impose sanctions) werecompleted by December 8, 1985. Respondent admits the jurisdictionalfacts alleged in the complaint (Tr. 4) and I conclude that theCommission’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 onFriday, February 17, 1984, to investigate the conditions surrounding thedeath 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 thesecond floor (Tr. 87) and is a warehouse facility (Tr. 71) served by twoelevators, 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 useon that day (Tr. 49). The elevators are used heavily carrying loads for30 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 palletsonto elevator 12 with a forklift truck. The elevator began to rise andthe employee was pinned between the elevator’s entrance and the seat ofthe truck. When the elevator was lowered, Mr. Lamson was dead (Tr.31-32). The truck’s steering column was broken and the LP gas canisterat the truck’s rear was bent and flattened (Tr. 33-34, 37).The truck was halfway onto the elevator (Tr. 36). No one witnessed theevent (Tr. 37-38). The elevator, 18 feet long, 9 feet wide and 7 feethigh (Tr. 481), with access from either side on most floors, was fittedwith 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 andelevator) 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 tothe sill plate’s control level (Tr. 34) and then to the elevator’scontrol lever (Tr. 47, 131-132, and photo exhibits C-2, 4 and 5). Theplate’s control lever was not operating properly so it was either bracedby 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’soperation if the door is open, the gate is up, or the sill plate isdown. 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 orjumped (Tr. 40, 66). These are on the records reported to respondent byan 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 isthe 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 are12 reports concerning elevator nos. 12 and 13 (Tr. 62, 67). Among othermatters, these reports show that the elevators’ contact switches werenot working and had even been jumped (Tr. 64-65).Elevator no. 13, according to Mr. Cabill, was used between February 22and March 7, 1984. It could be operated with its gates and doors openand 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. Knappwould notify the maintenance department and go on with the regular work(Tr. 70). Mr. Reed, the distribution manager (Tr. 4\/29,65), [[3\/]] hadreported elevator number 12’s sill plate malfunction to maintenance onthe day before the accident and on the day itself (Tr. 129-130). Butsince 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, therewere continuing problems with the elevators and maintenance worked onthem constantly. However, that work is not scheduled to interfere withproduction and maintenance is done around the shipping schedules (Tr. 72).Respondent’s safety manual contains nothing about elevator safety; infact, there is no written program or policy covering the safe operationof elevators (Tr. 72-73). According to Mr. Reed’s comment to Mr. Cahill,if a problem occurs, an employee is instructed to inform his supervisorand continue working (Tr. 73). Further, and Mr. Stadel also reportedthis, no preventive maintenance is done; but problems or damage to anelevator are handled as they might occur (Tr. 76). Employees confirmedthis to Mr. Cahill adding that a maintenance repair would not be donefor a long time (Tr. 74).Mr. Cahill recommended the maximum civil penalty of $10,000 because 20employees on all three shifts were constantly exposed to the dangerspresented by these elevators and, compounding the hazard, they weresubject 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 thatposition at the end of 1982), he is responsible for all maintenance ofmanufacturing machines including elevators (Tr. 134-135). He had noexperience with elevators and so an elevator consultant was retained,namely, Simmons through its president, Ben Stanley, and inspections wereconducted on a monthly basis (Tr. 135-136).Simmons used a check-off sheet with comments on the back and in thecolumn labeled remarks. Mr. Suplicki received a copy of these (Tr.137-138). He would give this to maintenance to make repairs which theycould do such as fuse and broken bolt replacement and straighteninggates and rails (Tr. 4\/29, 8).[[4\/]] Simmons did major work such asreplacing doors and interlocks and repairing contacts (Tr. 4\/29, 32).Maintenance supervisors report to him and he would expect them toschedule repairs if they saw a malfunctioning elevator. They had nospecific instructions; this was just his expectation (Tr. 140-141).Regular inspections are conducted by maintenance men and the findingsare reported to the supervisors who would schedule repairs (Tr.142-143). And Mr. Suplicki would expect that, if a repair had to be doneimmediately, the department head would be notified and the work arrangedto be done. That has happened, but Mr. Suplicki couldn’t remember aninstance (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. Suplickiwould \”expect\” them to investigate as a normal function, but he didnothing to be assured that the repairs were made (Tr. 162-163).This exhibit shows that in January 1984 the car gates were both \”jumpedout\” 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 reportunderscored this condition as \”not good.\” On November 23, 1983, thedoors 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 reportunderscores \”unsafe\” (Tr. 165-168).No one, Mr. Suplicki testified, is ultimately responsible for themaintenance of the elevators. So, in February 1984, he describedmaintenance as a centralized department and \”no one particular personthat 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 wascorrected (Tr. 170).Mr. Suplicki received a copy of a letter from Mr. Stanley of Simmons torespondent’s president, Arnold Greenberg, dated November 8, 1982 (Tr.155, 160; exhibit C-7). This is a three-page document making threepoints: 1. the elevators are in \”very poor condition;\” 2. thatrespondent’s position is \”disastrous\” concerning potential liability andproduction; and 3. scheduling of repairs is very difficult due to theneed for the elevators.As a result of this letter and another one, Simmons repaired elevators12 and 13 between December 1982 and January 1983, according to Mr.Suplicki. Otis Elevator did some cable and mechanism repairs on number13 in February 1984. By that time, as described below, if respondentcould 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 toemployees should they discover a malfunction (Tr. 139). Before February1984, he did not know that a gate was missing from number 12, but heknew 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 aday (Tr. 145-146). He did not know how long the new, completed gate wasin the shop before it was installed (Tr. 146).The missing gate had been equipped with a contact so it would have hadto have been closed to operate the elevator. That contact, Mr. Suplickilearned as a result of his investigation of the accident, was in a goodworking condition. But it had been deactivated or tied off (Tr.147-148). The contact on the sill plate of number 12 was not working onthe 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 onthe first floor, a room to which only maintenance personnel had access(Tr. 150). But Mr. Suplicki did not know who did this and would preferto repair rather than jump (Tr. 4\/29, 62-63).Repair work was always necessary on elevators 12 and 13. Their doors andrails were abused by forklifts hitting them and the doors would bedifficult 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 orrail 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 journeymenmechanics. He began hiring experienced men in the various maintenancefields and thus was able to take on more of the work that would havebeen 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 whatinside men could not do (Tr. 4\/29, 43-49, 61). All repair work was donearound production schedules (Tr. 4\/29, 57-58).A system was devised to keep track of work needed to be done and when itwas 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 wellas 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 (exhibitC-7) generated work done on the elevators (Tr. 4\/29, 28). Bids werereceived, 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 andthese were extensive (Tr. 4\/29, 16-17). Elevator 12 was scheduled to bedone after that (Tr. 4\/29, 20). The repairs to that elevator took abouta week before it went back into service (Tr. 4\/29, 27).Five employees in building no. 8 were called by complainant. Uniformlythey testified that prior to the accident and going back as far as tenyears, the elevators there could be operated with their doors and gatesopen (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 thenmake repairs (Tr. 209, 256-257, 264, 276) according to two of theseemployees. Once repaired, the elevators would operate properly for atime (Tr. 197, 285). But not all repairs were made immediately, such asthe broken sill plates (Tr. 209). There are assigned personnel aselevator operators; but, if they are not available, any employee willrun them (Tr. 184. 197-198, 229-232, 265-266).These employees reported elevator malfunctions to their supervisors andthe plant manager and these saw the abnormalities in any event sincethey, too, rode the lifts (Tr. 189, 192-1949 216, 22, 225-226, 262, 264267, 273-274, 280). At one labor-management meeting, it was brought upthat elevator doors on number 12 dropped from the second floor down tothe first about a month before the accident. It was two weeks beforethese 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 itnever did (Tr. 225). Still another did see the elevator rise when itshould not have but not to the extent that occurred at the accident (Tr.272). Because door latches did not work, one employee even opened themfrom the outside (Tr. 274). No employee testifying ever saw an Avisstrap 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 itfrom 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 theelevator down completely. But no instructions were given an its use (Tr.191, 223-224). One employee was told never to use it (Tr. 198). Sincethe accident on February 17, 1984, one employee, at least, wasinstructed to shut off the elevator (Tr. 224). That employee and anotherwere unaware that elevators were equipped with interlocking devices (Tr.223, 281).Since the accident, a malfunction is corrected right away or theelevator is shut down (Tr. 211, 228) because the union refused to use anunsafe elevator (Tr. 269).Forklift trucks or their loads could hit the elevator’s closed doorssince skids were used to block openings on floors where the doors didnot close completely and the elevator was not at that landing (Tr.211-212, 235). One sill plate which protects the door when open wasmissing 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 themachine shop, sat on the sixth floor for months until installed afterthe accident (Tr. 223, 279). One employee testified that there never hadbeen the second gate on this elevator (Tr. 262).An employee testifying about his training was taught on the use of theelevator control lever but not about what he should do should theelevator move with the door or gate open (Tr. 227). Another testifiedthe doors would remain up to three inches open and they never closedsquarely (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 anotheremployee indicated that there the gates would not shut but the doorswould (Tr. 227). Doors jam (Tr. 233). Supervisors used to \”holler\” forfreight through the open doors into the shaft (Tr. 273-274).Donald Karl, called by complainant, worked in respondent’s maintenancedepartment for three and a half years, at the time of the hearing,repairing elevators. A Mr. Vulo is his supervisor (Tr. 302-303). Hetestified that the gate missing from elevator 12 had been gone since atleast November 1982. He was asked to make another in January 1984 andfabricated a new gate in three days at respondent’s machine shopfinishing two weeks before the accident. Because of other work, the gatewas not installed until after the accident (Tr. 302, 303-304).The elevators run continuously and, prior to the accident, if any repaircould be done in a half-hour, it would (Tr. 309); but there were onlytwo 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 washard to lock. The maintenance department built that lever (Tr. 306). Andfive or six months before the accident, he knew that the safety circuitshad been jumped. He told this to Mr. Vulo and Mr. Suplicki and he knewthat Simmons Elevator Company told them (Tr. 307).According to Mr. Karl, the doors are the elevators’ major problem andtake many, many hours to repair (Tr. 307-308).Before the accident, in 1983, the maintenance department would inspectthe elevators on a weekly basis, grease and oil them and make smallrepairs; after that, it was done daily (Tr. 308-309, 315-316).Mr. Karl worked with the Simmons Elevator repair personnel and he usedtheir report sheets to inspect the elevators and do the repairs. He kepthis own records in a three-ringed notebook (exhibit R-4). There herecorded problems, where he found them, when he did repairs, and howlong it took (Tr. 310-312, 318). This was in addition to therespondent’s work order and timecard records (Tr. 312). Should anotherrepairman correct a problem, he would not know this until his nextinspection (Tr. 330-331). He reviewed the data in his book with Mr. Vuloon a daily basis and thus work assignments were devised (Tr. 322).The sill plate lever, to which the deceased had tied the Avis strap, hada bent latch so that it was not aligned with the hole locking it inplace. The latch would drop into the hole but only after much effort. Hedid repair this but even before that there was no need for anymake-shift device, according to Mr. Karl (Tr. 315-317). On the day ofthe accident, that sill plate was not equipped with an electricalcontact (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, butthe rails are bent frequently due to the carelessness of forkliftoperators. This type of damage occurred frequently on both number 12 and13 elevators (Tr. 313-314). Sill plates are constantly wearing and everythree weeks something must be replaced. They take abuse which the doorswould without them (Tr. 314-315).According to safety codes, Mr. Karl testified, if an elevator gate ismissing, 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 machineroom. If he did, the elevators would stop (Tr. 344). His book, exhibitR-4, shows, however, that interlocks which had been jumped were clearedin 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 foremergency use only; but since the accident, it is used as an addedsafety feature in conjunction with others (Tr. 350-351).Elevator number 13 on February 17, 1984, was being repaired and was shutdown. Elevator number 12 was to be shut down and repaired when 13 wasback in service (Tr. 353).Bradley Hill works with Mr. Karl in maintenance and has done so foralmost two years (Tr. 287-288, 299). During 1982, the elevators wereinspected on a monthly basis. He would lubricate bearings and check oillevels (Tr. 293-294). Simmons Elevator inspected monthly also (Tr. 295).Now, respondent’s maintenance department inspects daily and an unsafeelevator will be shut down, in fact, both elevators in building 8 couldbe closed (Tr. 300-301).David Stadel assumed the position as respondent’s Manager of Safety andEnvironmental Services two or three months before the accident andserved as the safety engineer before that (Tr. 358-359, 4\/29, 87). As awitness called by complainant, he testified that he had no specific dutyin building 8 and its elevators and no specific function with the safetycommittee (Tr. 359). He coordinates safety, suggests improvements,inspects the facility with the safety committee monthly, and that is theextent of his safety responsibility (Tr. 373-375). Robert Freedman,Director of Human Resources, is the highest ranking employee concerningsafety matters (Tr. 370).According to respondent’s handbook, safety is \”everyone’sresponsibility\” (Tr. 359). The supervisors in that building (Messrs.Knapp, Reed, Hewitt and Belfance), as part of management, would beresponsible for safety there (Tr. 360).There is no training program in elevator safety. The deceased’s use ofthe Avis strap was unsafe and a violation of company policy as wouldmanagement’s non-action would be if they knew of such use. A supervisorshould have removed the strap immediately (Tr. 366-368).Prior to the accident, Mr. Stadel noticed that the doors on elevator 13were ajar at the first-floor level and he told Mr. Suplicki and Mr. Reedabout it (Tr. 360-361). He told them to correct this without specifyinga time. It did not have to be done right away and he did not know of anyarrangements made to accomplish the repair. But he did know that it wasrepaired (Tr. 361-362).He also told these same men to repair the interlocks on elevator 13because he saw it operating with the doors open. There was a problem ofscheduling the repair and a week later it was done. That wassatisfactory to him (Tr. 363-365).He did not order these gentlemen to repair these conditions: \”It was asuggestion.\” They could have refused and, if the conditions weresufficiently 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 wasnot enforcing the state’s elevator code. That Department made aninspection after the accident but did nothing beyond that (Tr. 371-372).Called by respondent, Mr. Stadel testified that his function is toimprove the safety program and issue the safety manual (Tr. 4\/29, 88).When he assumed his position, respondent’s accident rate was 12.8 (about12 employees out of 100 hurt severely enough to require a doctor’scare). But no accident occurred on an elevator (Tr. 4\/29, 89). Mr.Stadel’s education and work experience are heavily weighed in safetymatters, 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’shandbook. He considers this a recognized book and he uses it as a quickreference 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 onelevator safety (which was not being enforced) from the seniorconsultant or inspector to whom he spoke in December 1983. Rather hereferred to the ANSI code (ANSI A17.1-1971) (Tr. 4\/29, 90-91). Heordered a copy of that in December 1983 and received it after theaccident on February 23, 1984 (Tr. 4\/29, 93-94).The state investigated the accident on two occasions concerning building8 and eventually–after first identifying nothing wrong–sent a noticeof violation in May 1984 which included two other buildings. Mr. Stadelgave this notice to Mr. Suplicki to correct the deficiencies (Tr. 4\/29,95-99).William S. Crager, a safety consultant for elevators, moving walks anddumbwaiters, was called as complainant’s expert witness. He has beenconsulting since 1967 (Tr. 478) and has been inspecting elevators since1923 (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, waschairman of the executive committee, an honorary member and chairmanemeritus (Tr. 504). He is a certified safety professional and aregistered professional engineer in California. He has worked on thedevelopment of many state and local elevator codes (Tr. 509-515).Mr. Crager inspected the elevators in building 8 and heard the testimonyof all of complainant*s witnesses (Tr. 480).In all of his experience, he has never seen an elevator with such acombination of safety devices made inoperative in order to permit thecar to move. This was caused primarily by the lack of maintenance (Tr. 496).He listed the hazardous conditions which existed for a length of timeas: no electric contacts on the sill plate and two are required; nogate, contacts on other gates and doors shorted out; doors left open;and the operating lever was defective since it would not lock intoneutral position (Tr. 486-487, 490). Had it locked into position, thisaccident would not have happened even with the Avis strap wound aroundthe lever and pulling on it (Tr. 494-495, 547).Gates prevent a person being caught on the projection of a wall whilethe car is in motion (Tr. 486) and contacts prevent movement if a gateor door should be open so an employee on a forklift would not fall downwith the machine or be decapitated (Tr. 491-492).It is not an acceptable practice to operate a car with the doors openindicating eight contacts have been shorted out even for a day or two(Tr. 498-499). The hazards on this elevator are those with which safetyexperts are familiar and would \”positively\” guard against (Tr. 499).The ANSI Code A17.1 (1971) covers all of these matters: the switch; thegate contacts; the gates; the emergency release switch; the caremergency 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 infactories and mercantile establishments and covers the matterssubstantially as the ANSI Code (Tr. 505-506, 508). Most local codes usethe ANSI standard as their starting points (Tr. 515-516).Mr. Crager applied the 1971 ANSI code to these elevators for theyunderwent major repair or modernization in 1973 (Tr. 517, 518). Thesections he enumerated are long existing (Tr. 517). And while the ANSIstandard permits exceptions (? 2) to its requirements granted byapplication, reasonable safety measures during the relaxed period mustbe assured (Tr. 540).The National Safety Council’s Accident Prevention Manual for IndustrialOperations (8th Ed.) is, according to Mr. Crager, only a reference bookand not a code so it uses the term \”should\” implying a permissivenessand not a mandate as the term \”shall\” is interpreted. At page 265 of theManual, it reads that interlocks for freight elevators should be used(Tr. 555-557, 565).But, Mr. Crager pointed out on redirect examination, the Manual directsusers to the basic ANSI standard, A17.1 (ch. 7 of the Manual, p. 258)which uses the mandatory term \”shall\” differentiating it by definitionfrom the permissive \”should\” (Tr. 561). And respondent has had theManual in its possession since June 23, 1983 (Tr. 562).Clifford Reed, called by respondent, is the Distribution Managercoordinating shipping and receiving in buildings 5 and 8 (Tr. 4\/29,65-66). Building 8 is 10 stories tall with three docks on the secondfloor and two at the first. The elevators are the only way to move goodsbetween the floors and no elevators, no shipping (Tr. 4\/29, 67). Theelevators had to be kept going for production purposes end it waspossible 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 ofbuilding 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 atall. Sometimes the employees complained because of non-operation ordoors 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, onoccasion, would go there (Tr. 4\/29, 69). But no maintenance would bescheduled 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 sixinches and instructed that they be closed, but employees did notcomplain about the open doors (Tr. 4\/29, 77-78). And, as he recalls, theunion never brought up the elevators at the monthly labor-managementmeetings (Tr. 4\/29, 79).In February 1984, he reported the sill plate condition on elevator 12 tomaintenance; and, when nothing was done, he went to report it personallythe morning of the day of the accident or day before. It was a constantproblem (Tr. 4\/29, 73-74).Mr. Reed saw employees use elevator 12 with one gate missing and onesill plate gone but never reported these matters. And while the doorswere difficult to close, he doesn’t recall a time when they couldn’t beclosed 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 forfive years and before that was employed by Otis Elevator Company for 31years in the Door Group. He was engaged in research and development; hisarticles have been published; he has taught the subject to newengineers; he holds several patents; and he has belonged to the ANSIA17.1 Committee for 15 years. He is a mechanical engineer and licensedby New York State as a Professional Engineer. He has worked onmaintenance of elevators for seven months as a routeman covering a largeterritory 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 ayear after the accident (Tr. 4\/29, 136-137). Based on that and thetestimony of Messrs. Suplicki, Karl, and Hill (Tr. 4\/29, 116), he wouldrate respondent’s maintenance program as an eight out of a possibleperfect ten (Tr. 4\/29, 117). Its safety program is embryonic but movingin the right direction (Tr. 4\/29, 150). While he regards Mr. Karl’sprogram as \”stellar\” (Tr. 4\/29, 117), the eight is based mainly on theoutside service company which respondent relied upon. That relianceallowed the eight rating even though respondent–a company with 13elevators–had no written program covering elevator safety (Tr. 4\/29,122-123, 144-145). The eight rating is not based on the conditions ofthe elevators in February 1984 but takes into account all of theimprovements before and after that date (Tr. 4\/29, 153-154, 156). Hedoes not like to see jumpers in a control room, but he considered thisin his rating (Tr. 4\/29, 148-49). Bypassing creates a hazard, but opendoors 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 A17.1which renders interpretations of the standards, about 40 a year (Tr.4\/29, 118- 130). In his opinion, because the code is technical anddifficult to read without training and preferably hands-on experience,Mr. Suplicki would not understand it because a good knowledge of theoperation is first necessary (Tr. 4\/29, 121-122, 138, 142). But he neverasked Mr. Suplicki if he understood the code, in fact, he never spoke tohim beyond a \”good morning\” (Tr. 4\/29, 164). He did not know whattraining 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 tothe floors where a repair is needed or where the doors need work norwhere an interlock is jumped out (Tr. 4\/29, 123-125, 130). He consideredSimmons warning letter to respondent (exhibit C-7) as too broadconcerning the conditions and he would not write it in that fashion; buthe 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’sreview, does not include a necessity for gates or sill plates. And hedoes not consider the absence of the latter as creating a hazard. Theyare permitted but not required by the ANSI code. While, if asked, hewould suggest their use, the local code would govern since the ANSI codehas no enforcement procedures. He doubts whether Mr. Suplicki couldfigure 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 findingsthat it should have recognized the alleged necessity to use interlocks,electric gate contacts and electric sill contact switches to avoid anyhazard likely to cause death or serious injury (post-hearing brief, p.4), I find1) Respondent had actual knowledge of this specific hazard based ona) Simmons Elevator Company’s letter to respondent’s president datedNovember 18, 1982, (exhibit C-6) in which the general state of disrepairof the elevators is stated to put \”. . . you …in a potentiallydisastrous position as far as liability and production\” (page 1) and \”Wemerely want you to be aware of these hazardous conditions\” (page 2) and\”… there must be some way around this situation [i.e., production] inorder to keep these elevators in safe running condition\” (page 2);b) Respondent acted on this letter and repairs were made by in-housepersonnel and Simmons, but the latter’s monthly reports (exhibit C-6)showed that devices to prevent elevator movement when a door or gate isopen were almost continually bypassed month to month and that wasdescribed by Simmons to respondent as \”not good,\” \”unsafe\” and \”doorsdon’t latch, need to be fixed for safety;\”c) These monthly reports were received and reviewed by Mr. Suplicki, theplant engineer, and all supervisory personnel in building 8 witnessedthe elevators operating with doors and gates open; andd) Employees were instructed to operate the elevators with doors andgates open and unlatched until they (the elevators) were incapable offurther movement. This direction was given because of the absolutenecessity for the use of the elevators to continued production round theclock.Further, respondent had constructive notice that the preventive devicesmust be used on the elevators. I find2) Respondent’s Manager of Safety and Environmental Services relied onthe National Safety Council’s handbook and this told hima) Interlocks and contacts should be used and that he should refer tothe ANSI A17.1-1971 standard;b) He had that handbook in his possession some six months before everseeking out a copy of the ANSI standard on the proper operation andmaintenance of elevators; andc) In the exercise of minimal diligence, respondent would havediscovered the hazard and its prevention through the use of the ANSIstandard any explanation of it through its expert, Simmons ElevatorCompany, who had informed it of the dire consequences of not complyingand allowing the malfunctions to continue unabated in its letter ofNovember 18, 1982, (exhibit C-6) which in addition to the unsafeconditions, Simmons warned that should the local authorities inspect,the elevators would be shut down immediately. As discussed below, thethread of one of respondent’s defenses is that the local code (New YorkState Code 8) was the authority here.In the final analysis, I find3) Respondent recognized the hazard of an elevator potentially able tomove with its doors and gates open; it took steps to repair thesedeficiencies; but repair was delayed until either employees voiced theirfright; complete breakdown was imminent; or production schedulingpermitted shutdown. Unfortunately, the latter permit occurred just aboutthe 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 nopolicy regarding the safe operations of elevators either written ororal, employees were merely shown how to make them go–to mitigate thehazard by using the emergency stop switch to completely shut down anelevator at a floor, rather one employee was told not to use it; or bythe assignment of an employee specifically as the full-time operatorwhen interlocks and contacts were jumped out.5) In this same vein, I find, based on Mr. Crager’s evidence, that hadthe interlocks and contacts been operative on February 17, 1984, and thecontrol lever been capable of locking into the neutral position, theaccident would not have occurred even with the deceased’s unusual use ofthe Avis strap wound around that lever. Thus, the consequences of hisidiosyncratic, demented or suicidal conduct in using the strap, couldhave been avoided had an effective safety policy regarding operation andmaintenance been in effect.6) To repeat, the evidence on elevator policy and it is overwhelming byemployees and management alike, is that they must run, run, run regardless.7) Following the accident, no elevator was permitted to operate if itwere deemed unsafe but was repaired immediately or shut down.[[6\/]]Based on these facts, I conclude that a violation has been establishedin that respondent had actual knowledge of the hazard [[7\/]] of allowingthe operation of elevators 12 and 13 with the interlocks and electricalcontacts on the doors, gates (on elevators 12 and 13) and sill platebeing bypassed or jumped out (this applies in addition to 12) and thatit failed to abate or counter these hazards by instituting timely repairand maintenance programs but allowed the elevators to run for inordinateperiods of time in a state of disrepair. It took no steps to instructemployees on operating the elevators as safely as possible whenmalfunctions existed to accommodate production nor did it assignfull-time operators during those periods to assure that a stoppedelevator is stopped. The hazard of operating the elevators without thesedevices 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 characterizationwill exist where an employer has violated the Act voluntarily withintentional disregard or plain indifference to the Act.A prior citation or accident is not necessary to put an employer onnotice that a subsequent citation could be deemed willful. Although asrelevant as these may be, a \”marked inattention to safety\” will supportand justify a charge of willfulness. St. Joe Minerals, 647 F.2d 840 (8thCir. 1981) at 848 and note 19 (quoted material).Respondent contends that such blindness to safety is not present in thiscase. It reasons that (1) the elevators were absolutely required tocontinue production; (2) they were subject to great abuse and damage;(3) in November 1982 it began a program of repair after being advised bySimmons that there might be a problem [i.e., \”which Simmons thought toexist\” (brief p. 46)]; (4) thereafter, Simmons never complained ofproblems (brief p. 46); (5) the plant engineer moved promptly to buildin-house expertise and those personnel spent 2100 hours repairing(exhibit R-12); (6) Simmons continued repair work from December 1982 toFebruary 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 withreference to them1) Simmons month to month in 1983 reported the jumps and bypasses by atleast \”X’s\” on its inspection reports;2) On at least three of these, that condition was described with areference to a danger;3) Whatever repair work was done was accomplished when production bestallowed it; but4) 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 andemployees balked at using it;7) Respondent produced no evidence other than the hours and money spenton maintenance to show that elevators 12 and 13 were in any bettercondition at the end of 1983 than they were at the beginning indicatingthat no preventive maintenance was performed, no safeguards or trainingwere instituted to prevent damage and the time and money expended wereonly to repair necessary items to forestall shutdowns; and8) After the accident, no elevator ran unless all safety items were inplace and operative yet production was not affected as far as thisrecord would indicate. Hence a safe operation could have beenaccomplished had more attention been shown.In St. Joe Minerals, the court affirmed the Commission’s violation ofsection 5 (a) (1) concerning its freight elevators but did not affirmthat as willful. Respondent here claims that the fact patterns arecomparable and no willfulness may be justified here. In respondent’sanalysis of that case, it omits to mention that when interlocks werebypassedAn employee was also assigned to assist in opening and closing the doorsand to prevent the elevator from moving while being loaded or unloaded . . .***…the petitioner’s [St. Joe] conduct falls short of plain indifferenceto the general duty clause. (647 F.2d at 848-849).There is nothing in the record before me to show any precautionswhatsoever, except for barricading open elevator doors to prevent a fallthrough that area when the elevator was not at that level, taken toprotect a person on the lift, loading or unloading it, at a time whensafety mechanisms were not operative which was most if not all of thetime according to employees as buttressed by the Simmons’ inspectionreports.I find that respondent acted with intentional disregard, was plainlyindifferent to requirements of the Act, and was markedly inattentive tothe safety of its personnel using its elevators all in the name ofproduction. I conclude that respondent willfully violated section5(a)(1), the general duty clause.The record is sufficient to show that respondent realized the hazard itselevators 12 and 13 presented through the warnings sounded by Simmons inNovember 1982. If Simmons did not sufficiently describe the conditionsand consequences as its expert, Mr. McAulay, would have done, this doesnot provide relief. Once it was advised of the hazardous condition whichit attempted to correct in a manner configuring with its productionschedule, it alone was responsible not Simmons. Brock v. City Oil WellService, __F.2d__ (No. 85-4375, 5th Cir., July 30, 1986). In any event,Simmons notified respondent in monthly reports to its plant engineerthat interlocks on doors were bypassed or jumped and this was unsafe.Mr. McAulay agrees that such action creates a hazard. His abatement planwould be to barricade open doors to prevent falls, a matter not directlyconnected 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 dothe remodeling and construction of the elevators in 1972-1973 as shownin exhibit C-8, in whatever building those elevators might be are notdeterminative here. Any of these would put respondent on notice for thenecessity of the safety devices specified in each but that notice wassufficiently supplied by Simmons’ warnings and respondent, in accordancewith its production schedule and in derogation of employee safety, actedon those warnings.Exhibit C-8 is respondent’s application for a building permit to thelocal authority and concerns elevators but is insufficient to be relatedspecifically to elevators 12 and 13. Whatever elevators they are, theirlocation is the Amsterdam facility. In the application, respondentspecifically agrees to be bound by the New York State Construction Code.That application is dated February 15, 1973. Simmons warned respondentin November 1982 that should local authorities inspect, elevators 12 and13 would be shut down immediately. Simmons was respondent’s expert.Respondent acted on its advice. Is there doubt that the local code wasapplicable to these elevators? Is there doubt that respondent was onconstructive notice of the requirements of the local code? Hardly.Respondent, throughout this proceeding, has argued that this section5(a) (1) citation must be dismissed because the State of New Yorkregulates the safety of elevator operation (brief pp. 15-19). Undersection 667(a) of the Act [29 U.S.C. ? 667(a)], a state may assertjurisdiction over any safety or health issue where no federal standardis in effect. The argument is that to allow the 5(a)(1) citation herewould permit dual enforcement not contemplated by the Act. Earlier inthis case, this question was decided;[[8\/]] but, if that wererespondent’s belief that it was regulated by a local authority, it mayhardly be heard not to claim that it was not, at least, on constructivenotice of the local requirements. Whatever mistake was made in thisregard (Mr. Stadel being told by a local state official that the localcode was not in effect) may go to the characterization of the violationas willful but not to the issue of constructive notice. Otherwise, tofollow respondent’s argument to its end, these elevators were subject toabsolutely no standard at all. But to the contrary, respondent throughthe letter and inspection reports of Simmons, was actually aware of eachand every deficiency and the elevators’ unsafe conditions.The order below affirms the citation as follows: Respondent willfullyviolated the general duty clause in that it permitted elevator 12 inbuilding 8 to be operated:1) Without a functioning hoistway door interlock system;2) Without a functioning electric contact switch on the car’s installedgate;3) Without a functioning electric contact switch on a gate because thegate itself was not installed;4) Without a functioning electric contact switch on the car’s sillplate; and5) Without an operating control lever capable of locking into itsneutral position.The safeguards of these items are all designed to prevent elevatormovement when it should not or when a mischance occurs. It is theprevention of that which complainant proved by a preponderance of theevidence. The non-locking lever to operate the sill plate contributed tothis, but it is a peripheral issue and not within the proof of thesection 5 (a) (1) charge.So, too, the citation is affirmed with regard to elevator 13 for italso, in February 1984, was permitted to be operated1) Without a functioning hoistway door Interlock system; and2) Without functioning electric contact switches on its gates.The limit of complainant’s proof makes immaterial respondent’s defensethat certain standards apply to certain conditions so a 5 (a) (1) chargemay not lie. Specifically, 29 C. F. R. ?1910.23 (b) (1) requiringprotection of wall openings (elevator doors open when elevator not atthat 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 complaintall went to the hazard of chance elevator movement. Expert Crager’sstatement of the danger presented by an open elevator door exposing thegaping shaft was not pursued and was not specifically addressed to theallegations of the complaint. Had respondent moved to strike thatstatement, for the reason stated, that motion would have been granted.The $10,000 civil penalty, the maximum allowable on a charge ofwillfulness [29 U.S.C. ?666(a)], is proposed giving full weight to thegravity of the violations. 29 U.S.C. ?666(1). Twenty employees over thethree shifts round the clock were exposed to death or serious physicalharm. The respondent’s commitment to safety, i.e., its good faith, wasminimal in that all of its efforts were designed to insure elevatoroperation rather than safe elevator operation (Tr. 79-81). Civilpenalties have as their purpose the encouragement of the Act’s mainpurpose of insuring a safe workplace. Zemon Concrete Corp. v. Marshall,683 F.2d 176 (7th Cir. 1982). I conclude that the proposed penalty isappropriate.A review of the corrections to the transcript suggested by complainantin its motion to correct shows them to be proper and they are allowed.Motion for Sanctions:Respondent, contending that statements in complainant’s brief seriouslymisstate and mischaracterize the record, asks that sanctions be imposedsuggesting that all the pleadings be stricken and the citation bevacated insofar as it alleges willfulness and that an award ofattorney’s fees and expenses would not be inappropriate. (Respondent’smotion to impose sanctions, filed September 30, 1985, pp. 5-6).This is based on Rule 11 of the Federal Rules of Civil Procedure. Thatrule 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 everyalleged misstatement.It appears from the respondent’s reply brief (the basis of the motionfor sanctions) that the foundation of its motion is complainant’s (1)equating a bypass or jump to knowledge of a hazard; (2) his assumptionthat respondent knew interlocks and contacts were safety devices; and(3) his assumption that respondent knew that failure to use thesecreates a hazard. None of this has any basis whatsoever in the recordaccording to respondent’s motion.On the theory that those personnel at respondent’s facility areintelligent and responsible men, complainant could justifiably inferthat they would know from Simmons’ correspondence using terms such asdisastrous, hazardous, elevators would likely be shut down, and thelike, that something involving safety was involved. Further, itsmaintenance report (exhibit C-6) of October 31, 1983, remarks \”Elev. #12Hoistway Doors–Jumped Out–UNSAFE,\” surely could support an allegationthat 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 therecord and arguments are within the bounds of propriety. Respondent’smotion for sanctions is denied.ORDER:Based on these findings and conclusions and after considering theparties’ proposals, which to the extent shown above are adopted or,otherwise rejected as not supported by the preponderance of the evidenceor precedent, it is ordered that the citation issued May 7, 1984, isaffirmed in that respondent willfully violated 29 U.S.C. ? 654(a)(1) inthat it permitted elevators 12 and 13 in building 8 to be operatedwithout interlocks and contact switches on the doors and gates and, inaddition, permitted elevator 12 to be operated without an electriccontact on its sill plate and without an elevator control lever capableof locking into the neutral position. A civil penalty in the amount of$10,000 is assessed therefor.David J. KnightJudgeDated: October 20, 1986Boston, 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 ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees[.][[2\/]] As explained more fully below, the doors of the elevator are partof the building’s structure, while the gates are attached to theelevator car. Thus, each elevator has only one set of gates, but hasdoors 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 anelevator with such a \”combination of so many safety devices… madeinoperative to permit the car to be put in motion with the requiredprotections such as gates and doors in the open position.\” He statedthat if he had seen the elevator operating that way, he would haverecommended that it be \”shut down immediately until all safety deviceswere made to properly operate …\”[[4\/]] New York State authorities also inspected Coleco’s elevatorsafter the fatality. They issued Coleco a notice that alleged violationsexisted at the elevators in building 8. The notice did not refer to theconditions 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 becontested 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 doorsopen;2. The elevator gate (east end) did not have a functioning contact sothat the elevator could move with the gate open;3. The elevator gate (west end) was missing and its contact was notfunctioning;4. The west end sill plate’s contact was not functioning; and5. The west end sill plate’s control level (to raise and lower it) wasnot functioning.Concerning elevator 13:1. Interlocks not functioning so that elevator could move with doorsopen; and2. The elevator car gates’ contacts were not functioning.[[3\/]] See footnote 4, below.[[4\/]] The pages for the four-day hearing run consecutively for thefirst three days, March 25, 26 and 27, and then begin again for theApril 29 hearing. The transcript for the latter day’s hearing is notedas \”Tr. 4\/29.\”[[5]] Given the hazard, it appears that right-minded man do not disputethe possible consequences of death or serious injury. St. Joe MineralsCorp. v. OSHRC, 647 F.2d 840 (8th Cir. 1981) at footnote 9. Thus, it isnot necessary to find, based on expert Crager’s testimony untouched bycross-examination, that an employee could be decapitated by an elevatormoving when it should not.[[6\/]]The evidence by employees to this effect was not objected to andthus the conflict between the press for production versus thefeasibility 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 ofthe 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 undersection 5(a)(1), the general duty clause. See Usery v. Marquette CementMfg. Co., 568 F.2d 902 (2d Cir. 1977) at 910; and cf., Cape & VinyardDiv. 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 acertain federal official and that permission was denied to it. Thedecision there is attached hereto as Appendix A and the question raisedis not further discussed herein.”