“Docket No. 84-0546 SECRETARY OF LABOR, Complainant, v. COLECO INDUSTRIES, INC.,Respondent.OSHRC Docket No. 84-0546DECISION BEFORE: FOULKE, Chairman;MONTOYA and WISEMAN, Commissioners. BY THE COMMISSION:Following the investigation of a fatality at one of itsfacilities, the Secretary of Labor issued a citation alleging that Coleco Industries, Inc.had willfully violated section 5 (a) (1) , 29 U.S.C.? 654(a)(1), [[1\/]] of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651-678 (\”the Act\”).The citation alleged that safety equipment on an elevator, which had inadvertently beenset in motion and crushed an employee, was either missing or had been renderedinoperative. Former Review Commission Administrative Law Judge David J. Knight found thatColeco had willfully violated section 5(a)(1) and assessed a $10,000 penalty. Based on thereasons set forth below, the Commission agrees with the judge’s conclusions that Colecowillfully violated section 5 (a) (1) and that a $10,000 penalty is appropriate.I. Factual BackgroundColeco is a toy manufacturer with a manufacturing anddistribution complex in Amsterdam, New York. Building 8 in Coleco’s complex is a ten-storywarehouse used to receive, store and ship raw materials and finished products. Thebuilding 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 moved by the elevatorsare stored on pallets and moved on and off the elevators by forklifts.On February 17, 1984, Coleco employee Blaine Lamson was using aforklift to load material onto elevator 12 from the third floor when the elevatorunexpectedly began to rise. This resulted in him being crushed to death between theforklift and the top of the elevator hoistway opening. OSHA was notified of the fatalityand investigated the incident.The record in this case reveals the following essentiallyundisputed facts. On the third floor, elevator 12 opened on its east side. On that sidethe elevator had a gate, but it did not have a sill plate. (A sill plate is a steel plateused to bridge the gap between an elevator car and the floor at which it is stopped.) Witha sill plate in place, forklift trucks pass more easily over the gap. On the elevator’swest side there was a sill plate, but no gate. At the time of the fatality, the doors onthe east side of the elevator were open, and Lamson had opened the gate on that side toload the elevator.[[2\/]]Because the locking mechanism on the handle that operated thesill plate on the west side of the elevator did not work, and there was no gate on thatside, if the sill plate were to fall, it would rest against the elevator doors. If theelevator began to move with the sill plate against the door, the plate could come intocontact with stationary components in the elevator shaft and possibly be damaged itself ordamage other equipment.In order to avoid such damage, employees usually wedged a pieceof wood between the sill plate handle and the side of the elevator to keep the sill plateupright. Lamson, however, had taken a length of \”avis strap,\” a type of strapused to secure packages to pallets, and tied one end of the strap to the sill plate handleand the other end to the elevator control handle. Unfortunately, this effort apparentlyfailed to secure the sill plate. The sill plate fell, pulling the sill plate handle, whichin turn pulled the elevator operating control clockwise and caused the elevator car torise. Lamson’s forklift was partially on the car at the time, and the resulting fatalinjury occurred.On each floor of building 8 were doors that, when open, could provide access to elevators12 and 13. When closed, the doors would isolate the elevator shafts on that floor. Theelevator doors were manually-operated and bi-parting, i.e., when a door was opened, thebottom half would retract into the floor and the top half would retract into the ceiling.The doors rode within vertical rails at the sides of each door opening. Each elevator doorwas equipped with an electrical interlock switch that was designed to prevent elevatormovement when the door was not fully closed. However, doors and rails were often damagedso that some of the doors could not fully close. Even when one set of doors could notfully close, an elevator could only be operated by bypassing the interlocks. Colecoemployees accomplished this by installing a jumper cable in the control panel of theelevator engine room. Production demands made it necessary to keep the elevators running,and because the doors and rails were frequently damaged, it was common for employees tooperate the elevators with the interlock switches intentionally bypassed.The east side of elevator 12 was equipped with a gate which,when closed, isolated the car from the elevator shaft in which it moved. The gate movedvertically to open and close, and it was equipped with \”contacts\” — electricaldevices like those used on door interlocks–that were designed to prevent the elevatorfrom moving when the gate was not fully closed. At the time of the accident, the elevatormoved with the east gate in the open position, indicating that the contact switch for thatgate was bypassed. The gate on the west side of elevator 12 had been missing forapproximately six months at the time of the accident. Coleco had fabricated a gate for thewest 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 to prevent theelevator from moving.The sill plate on the east side of elevator 12 was hinged tothe elevator car floor so that it could be raised or lowered. It was also equipped with aninterlock that prevented the car from moving if the plate was not in the fully raisedposition. This interlock also had been bypassed. The sill plate could be raised or loweredby moving a handle in the elevator car. The handle was supposed to lock in position whenthe plate was upright. However, at the time of the accident, the handle did not lock inposition.Each elevator car’s up-and-down movement was regulated by anelectrical control in the car. When the control was in its upright, or neutral, position,the elevator would not move. When the control was rotated clockwise, the elevator wouldmove up; and when rotated counterclockwise, the elevator would move down. The knob on thecontrol was supposed to be spring loaded, so that the knob would have to be pulled outwardbefore the control would rotate. However, because the spring-loading mechanism wasdefective on elevator 12, the control apparently could rotate without the knob beingpulled.Following her investigation of the accident, the Secretaryissued a citation charging Coleco with a willful violation of section 5(a)(1) of the Act.Item 1(a) of the citation alleged that Coleco \”[e]mployees were permitted to load,unload, ride in and work near\” elevator 12 \”without adequate precautions takento prevent the elevator car from moving, when it should not,\” in that, at the timethe elevator moved: (1) all its access (hoistway) doors were not fully closed and notequipped with functioning door interlocks, (2) its east gate was not fully closed and notequipped with a functioning electric contact switch, (3) its west end gate had beenremoved and the electric contact switch for the gate was not functioning, (4) its west endsill plate lacked a functioning electric contact switch, and (5) its west end sill platecontrol lever was not functioning and was tied to the elevator’s control lever. Item 1(b)of the citation alleged, with respect to elevator 13, that its access doors were not fullyclosed and lacked functioning door interlocks, and that its car gates lacked functioningelectric contact switches.The citation recommended the following abatement measures: (1)the repair or replacement of all the electric interlocks and contact switches referred toin the citation, (2) the installation of the missing car gate on elevator 12, (3) therepair of elevator equipment malfunctions and nonuse of malfunctioning elevators, (4) theprohibition of the bypassing of electric contact switches and interlocks, and (5) themaintenance of all sill plates in proper condition.Judge Knight affirmed the citation. He found that the operationof elevators 12 and 13 exposed Coleco employees to hazards that \”could cause or wouldlikely cause death or serious physical harm\” and that Coleco had actual knowledge ofthe hazards, which resulted from its failure to use door interlocks, as well as gate andsill plate contact switches. He also found that Coleco had \”constructive notice\”that the absent preventive devices must be used on its elevators. The judge concluded thatthe violation was willful because Coleco acted with plain indifference to the requirementsof the Act and was \”inattentive\”, to the safety of its employees who used theelevators.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), theSecretary must show: (1) that a condition or activity in the employer’s workplacepresented a hazard to employees, (2) that the cited employer or the employer’s industryrecognized the hazard, (3) that the hazard was likely to cause death or serious physicalharm and (4) that feasible means existed to eliminate or materially reduce the hazard.United States Steel Corp., 12 BNA OSHC 1692, 1697-98, 1986-87 CCH OSHD ? 27,517, p.35,669 (No. 79-1998, 1986).There is little dispute over the first, third and fourthelements, and the Commission concludes that the Secretary has established those elementsof her burden of proof. With respect to the first element, whether the Secretaryestablished that the elevators presented a hazard to Coleco employees, the record clearlyshows that the system of interlocks and contacts that would ordinarily prevent Coleco’selevator cars from moving, unless the doors and gates were completely closed had beenbypassed, allowing the cars to move whether the doors and gates were open, closed, ormissing. Numerous employees testified that they either regularly or occasionally operatedthe elevators or used forklift trucks to transport freight onto the elevators. TheSecretary’s elevator expert, Crager, testified that the absence of functioning inter-locksmeant that an elevator could operate with its doors opens, which meant that a person orforklift could fall into the open shaft. Crager also testified that the absence of anelevator gate and functioning interlocks was hazardous because a person on a moving carcould be struck by a projection in the elevator shaft or fall into a space between the carplatform and the hoistway walls. [[3\/]] The accident itself demonstrates that the lack offunctioning door interlocks permitted an elevator to move while it was being loaded,subjecting the employee doing such work to numerous hazards, including the hazard of beingcrushed between the moving elevator and the stationary hoistway structure. Also, employeesReese and Farina testified that employees standing on the shop floor occasionally stucktheir heads into the elevator 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 JudgeKnight’s finding that the hazard of an elevator potentially able 😮 move with its doorsand gates open could cause death or serious physical harm. Coleco has not taken exceptionto this finding. Here, the hazard caused the death of an employee. See Simplex TimeRecorder Co., 12 BNA OSHC 1591, 1597, 1984-85 CCH OSHD ? 27,456, p. 35,572 (seriousviolation evident from death of employee).As to the fourth element of the Secretary’s burden of proof, we acknowledge Judge Knight’sfinding–to which Coleco does not take exception–that after the occurrence of thefatality, Coleco prohibited the operation of unsafe elevators and either immediatelyrepaired them or shut them down. We find that such actions represented a feasible means ofeliminating or materially reducing the alleged hazards.With respect to the remaining element of the Secretary’s primafacie case, whether she proved that either Coleco or its industry recognized the citedhazard, the parties strongly disagree. We need not reach the question of industryrecognition, however, because the evidence convincingly establishes that Coleco had actualknowledge of the alleged hazards. See Brennan v. Vy Lactos Laboratories, Inc., 494 F.2d460, 463-464 (8th Cir. 1974) (actual employer knowledge of hazard satisfies general dutyclause \”recognition\” requirement).We base this finding of employer knowledge on the following evidence. First, Colecolearned of at least some of the hazards alleged in the citation from a letter written onNovember 18, 1982, by the president of Simmons Elevator Co., which Coleco had hired toservice and inspect its elevators. In the letter, Simmons Elevator’s president, Ben C.Stanley, wrote to Coleco’s president, Arnold Greenberg, regarding the condition of theelevators at the Amsterdam complex. The letter read in part:Because of their condition and the fact that the people in theplant will never agree to a time when the elevators can be repaired, your production inAmsterdam is in great jeopardy and could be shut down at any time. Also, if a New YorkState inspector were to come in and check the elevators, he would immediately shut downten of the thirteen elevators, possibly all of them.These elevators are in very poor condition; i.e., the doors,gates, rails, just to mention a few items.I realize that you are not an elevator man … I just want tomake you aware that you are in a potentially disastrous position as far as liability andproduction.We have been servicing your elevators for several years … trying to work through …your people [including a \”Dick Suplicki\”]. These people are aware that there iswork which needs to be done on the elevators and want the work done. However, there doesnot appear to be any sort of system whereby the elevators can be shut down in order tomake the repairs. It appears that the biggest concern is slowing down production becauseof elevator shut downs due to repairs.I think it would be a good idea if I could meet with you … Icould show you some of the problems that exist and how dangerous some of these conditionsare … I think this would be a start … towards making these elevators safe… we …want you to be aware of these hazardous conditions, in the hope that … [they] can beremedied.The letter also made it clear that Richard Suplicki, Coleco’splant engineer at the time of the fatality, had been advised of the problems. In early1983, soon after the Simmons Elevator letter was written, Suplicki had been givenresponsibility for maintenance in building 8, which included elevator maintenance.Suplicki, along with others at the Amsterdam facility, received a copy of the letter fromStanley. Suplicki testified that he merely put the letter in a file he kept on elevators,and he took no action in response to the letter.The letter, however, clearly informed Coleco that there wereserious safety problems with its elevators. Although it did not provide detailedinformation about the condition of the elevators, the letter specifically refers to the\”very poor condition\” of elevator doors and gates, both of which figureprominently in this case. We, therefore, reject Coleco’s argument that the letter did notidentify any specific hazard.Second, the inadequacies of Coleco’s elevators were alsobrought to its attention by the monthly elevator maintenance reports that Simmons Elevatorprovided for Coleco. After the conduct of each monthly inspection of Coleco’s elevators,Simmons Elevator provided Coleco with check-off sheets that showed the results of theinspection and indicated elevator parts that needed repair or replacement. The sheetssometimes contained handwritten comments about problems with those parts.According to the check-off sheet for February 9, 1984–eight days before the accident–thefront gate for elevator 12 was not being used and the rear gate was missing. The sheetsfor January of 1984 and November and December of 1983, note that the door and gateinterlocks for elevators 12 and 13 were intentionally bypassed and that the \”[d]oors[to elevator 13] are being left open while running[,] not good\” (emphasis in theoriginal). For October of 1983, the sheet covering elevator 12 states \”Hoistway DoorsJumped Out – Unsafe\” (emphasis in the original).These check-off sheets were either given directly to Colecoplant engineer Suplicki or left for him to review. Thus, they provided further notice toColeco of the cited elevator hazards. We, therefore, conclude that there is no merit inColeco’s arguments that the check-off sheets did not identify a specific hazard, and thatthe information it received from Simmons Elevator led it to believe that its elevatorproblems were being corrected.Finally, a number of Coleco employees testified that theirsupervisors knew that elevators 12 and 13 were regularly operated with their doors orgates open, as well as with their door and gate interlocks bypassed, and that the reargate for elevator 12 was missing. One employee testified that he \”ran the elevatorfor a long time and … 90% of the time they [the doors and gates] didn’t work, especiallythe gates.\” That same employee also testified that he would tell his supervisorsabout doors not closing and gates not working and that the supervisors \”would tell[you] that they would fix them but they didn’t.\” Other employees testified to thesame effect and also that even though their supervisors knew the elevators operated withtheir doors or gates open, the supervisors told the employees to continue to run theelevators until the elevators stopped functioning. We find that this employee testimonyfurther establishes that Coleco had actual knowledge of the alleged hazards at elevators12 and 13.Based on the above cited evidence, we conclude that theSecretary has established that Coleco had actual knowledge of the alleged hazardspresented by the nonfunctioning door and gate interlocks and unclosed doors on elevators12 and 13, as well as the missing gate of elevator 12. Accordingly, we find that theSecretary has proven all the elements of a section 5 (a) (1) violation. However, we findthat the Secretary failed to prove that either Coleco or its industry recognized thehazard created by the lack of a functioning electrical contact switch for the sill platein elevator 12 and we, therefore, vacate item 1(a) (4) of the citation. We also vacateitem 1(a)(5) of the citation, regarding the nonfunctioning sill plate control lever. JudgeKnight concluded that the allegation was a \”peripheral issue … not within the proofof the section 5 (a) (1) charge.\” Since the Secretary relies on the judge’s decision,she apparently does not wish to pursue the allegation; we therefore affirm the judge as tothis allegation.(b) Coleco’s Affirmative DefensesColeco argues that the citation is defective because itspecifies only the means of abatement, and it does not specify a hazard. Under Commissionprecedent, Coleco argues, a hazard must be defined in such a way that the citationapprises the employer of its obligations, and identifies conditions or practices overwhich it can reasonably be expected to exercise control. Coleco relies on PelronCorporation, 12 BNA OSHC 1833, 1835, 1986-87 CCH OSHD ? 27,605, p. 35,872 (No. 82-388,1986), citing Davey Tree Expert Co., 11 BNA OSHC 1898, 1899, 1983-4 CCH OSHD ? 26,852, p.34,399 (No. 77-2350, 1984). Coleco’s argument is without merit. The citation here clearlyidentifies hazardous conditions over which Coleco exercised control. The citation allegesthat:Employees were permitted to load, unload, ride in and work nearFreight Elevator #12 [and 13] … without adequate precautions taken to prevent theelevator car from moving, when it should not ….Thus, the crux of the hazard alleged by the Secretary wasColeco’s failure to prevent employee exposure to elevators that could move unexpectedly.Coleco also appears to argue that the citation is defective because it fails to specifygeneric hazards. There is no merit to this suggestion. The Secretary is not required toframe a section 5(a)(1) hazard in generic, i.e., broad, general terms. Davey Tree, 11 BNAOSHC at 1899, 1983-84 CCH OSHD at p. 34,399. Moreover, the circumstances of the accidentand the testimony at the hearing–that employees could fall into an open shaft whileworking outside the shaft, be struck by a projection in the shaft while riding theelevator or be struck by the elevator while calling for the elevator–establish theexistence of broad, generic hazards.Coleco also argues that the Secretary’s failure to adopt an American National StandardsInstitute (\”ANSI\”) standard on elevators [ANSI A17.1-1971, entitled\”Elevators, Dumbwaiters, Escalators and Moving Walks\”] as an OSHA standard undersection 6(a) of the Act, 29 U.S.C. ? 655(a), should preclude her from attempting toenforce it under section 5(a)(1). Coleco further claims that the Secretary’s failure toadopt the ANSI standard improperly subjects it to dual state-federal enforcement in thatit will have to comply with the ANSI elevator standard and the New York State elevatorcode.[[4\/]] Both of these arguments are without merit.The Secretary is not attempting to enforce the ANSI standardhere, but is relying on it as general evidence of the hazards presented and to showindustry recognition of the hazards. Such reliance is permitted. Duriron Co., 11 BNA OSHC1405, 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 hazardsthrough its own supervisors and the warnings of Simmons Elevator, we do not rely on theANSI standard as evidence of industry recognition.In arguing that it is being forced improperly to comply withboth the state elevator code and the requirements of the general duty clause, Colecoalleges that the New York State code does not require certain of the measures theSecretary would have Coleco implement of its elevators to enhance employee safety.However, this fact alone does not establish that Coleco is exempt from compliance with thegeneral duty clause. As the 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 itshistory that indicates that Congress intended compliance with the minimum standards ofapplicable state law to create an exemption from the general duty clause. Consequently, Coleco’s argument is rejected.Finally, Coleco argues that it was improperly cited undersection 5(a)(1), because specific OSHA standards apply to its door interlocks and sillplates. Since we do not base our finding of a violation on the condition of the sillplates on elevator 12, we need only address Coleco’s contention that a specific OSHA wallopening standard addresses the same hazards as the citation’s allegation that the elevatordoor interlocks were bypassed.The wall opening standard on which Coleco relies is at 29C.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 the following: (1) Rail,roller, picket fence, half door, or equivalent barrier.\” Coleco points out that theSecretary’s elevator expert testified that functioning door interlocks are intended toprevent elevator hoistway doors from being opened when the elevator is not stopped at aparticular floor, and that the expert identified two hazards associated with open hoistwaydoors: (1) persons might fall into the hoistway, and (2) a person might place part of hisbody into the hoistway and be struck by a moving elevator car. Coleco asserts that it wastaking the type of precautions required by the wall opening standard by placing pallets infront of partially-open doors to keep people from falling into the elevator shaft and byclosing doors seen to be ajar. The record shows, however, that the precautions taken byColeco, regardless of whether they were sufficient to withstand a citation issued undersection 1910.23(b)(1)(f), did not abate other hazards, not encompassed by that standard,that exist when an elevator door interlock fails to function. The most obvious of thesehazards is sudden and unexpected elevator movement. Such movement can have devastatingeffects when an employee is loading freight on an elevator, as in this case. See Puffer’sHardware, 742 F.2d at 14; St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840, 842 (8th Cir.1981); Ford Motor Co., 5 BNA OSHC 1765, 1766-67, 1977-78 CCH OSHD ? 22,106, p. 26,638(No. 13682, 1977). Moreover, the means of abatement sought by the Secretary here goconsiderably beyond the picket fences and other barriers contemplated by the wall openingstandard. We, therefore, reject Coleco’s argument. The citation encompasses hazards thatwould exist even if there were full compliance with the wall opening standard.Accordingly, we find that Coleco violated section 5(a)(1).III.Willfulness Under Commission precedent, a violation is willful if \”itwas committed voluntarily with either an intentional disregard for the requirements of theAct or plain indifference to employee safety.\” U.S. Steel, 12 BNA OSHC at 1703,1986-87 CCH OSHD at p. 35,675.Judge Knight found that, although it recognized the hazardouscondition of its elevators, Coleco gave overriding consideration to production. He foundthat Coleco repaired the elevators only when it was convenient to do so, and then only tokeep them in operation, not out of any concern for safety. He also found that the onlyprecaution Coleco took to abate the dangerous conditions created by the elevators was tobarricade open elevator doors when the elevator was not at the level of the doors. Thejudge correctly observed that this precaution did not afford any protection to employeeson the elevators. He concluded that Coleco \”acted with intentional disregard, wasplainly indifferent to requirements of the Act, and was markedly inattentive to the safetyof its personnel using its elevators[–]all in the name of production.\”Coleco argues that the record shows that it was not indifferentto the safety of its employees and that it spent considerable amounts of money andemployee time to modernize and repair its elevators. Coleco points out that at the time ofthe accident, while running at full production, it had shut down elevator 13 for majorrepairs and had scheduled elevator 12 for repairs after elevator 13 was back in operation.It also notes that it took steps to minimize hazards to employees by barricading openelevator doors.The record clearly demonstrates that Coleco knew thatinterlocks and contacts are intended to make elevators operate more safely. It also knewthat the interlocks and contacts for elevators 12 and 13 were bypassed on a regular,long-term basis, and that one of the gates to elevator 12 was missing. Coleco hadcompleted construction of a new gate for elevator 12 at least two weeks before theaccident occurred, but had failed to install it. Coleco had received ample warning ofthese and other problems with elevators 12 and 13 from: Simmons Elevator’s November 1982letter; Simmons Elevator’s monthly inspection reports during the six months prior to theaccident; and its own employees. Nevertheless, at the time of the accident, and afterColeco’s door and gate problems had been highlighted by the Simmons Elevator letter,Coleco still allowed elevators 12 and 13 to operate with unsafe doors and elevator 12 tooperate without one of its gates. Also, although the record establishes that Colecoexpended considerable funds and employee work hours in repairing and maintaining itselevators, and that it had temporarily shut down elevator 13 for repairs, we agree withthe judge that \”all [Coleco’s] … efforts were designed to insure elevator operationrather than safe elevator operation.\” The fact that Coleco sometimes blocked accessto open elevator doors does not significantly detract from this conclusion. Thus, theevidence clearly establishes Coleco’s plain indifference to the safety of its employees,which establishes a willful violation.Coleco also points to two cases, with allegedly analogousfacts, in which the Commission found that violations were not willful, citing R.D.Anderson Construction Co., 12 BNA OSHC 1665, 1669, 1986-87 CCH OSHD ? 27,500, p. 35,641(No. 81-1469, 1986) and U.S. Steel, 12 BNA OSHC at 1704, 1986-87 CCH OSHD at p. 35,675.These cases do not lend support to Coleco. The employer in R.D. Anderson had taken aseries of significant steps to comply with the standard cited there. The employer in U. S.Steel had made efforts to abate the cited hazard and had concluded that its employees werenot exposed to the hazard. Here, Coleco only addressed its elevator hazards to the extentthat the hazards interfered with production. Accordingly, we find that the violation waswillful. IV.ORDERJudge Knight assessed the Secretary’s proposed penalty of$10,000 for Coleco’s willful violation of section 5 (a) (1). After consideration of thepenalty factors enumerated in section 17(j) of the Act, 29 U. S. C. ? 666 (j), weconclude that the assessed penalty is appropriate.Accordingly, Item 1 of willful citation 1 (with the exceptionof vacated parts (a) (4) and (a) (5)) is affirmed as a willful violation, and a penalty of$10,000 is assessed.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: January 14, 1991SECRETARY OF LABOR,Complainant,v.COLECO INDUSTRIES, INC.,Respondent.OSHRC Docket No. 84-0546DECISION AND ORDER Appearances:\u00a0\u00a0 For complainantPatricia M. Rodenhausen, Esquire Regional SolicitorU. S. Department of LaborNew York, New YorkBy:Harry W. Scott., Jr.,EsquireFor respondentW. Scott Railton, Esquire,and James F. Kearney, Esquire Reed, Smith, Shaw & McClay Washington, D. C.The Event:An employee of the respondent, Coleco Industries, Inc., a largemanufacturer of toys, at its Amsterdam, New York, facility, an the morning of February 17,1984, working alone drove a forklift truck carrying pallets onto elevator no. 12 inbuilding no. 8. While he was in this process, half on the elevator, it began to rise andhe was pinned between the elevator entrance and the forklift truck’s seat. The employeewas killed.Statement of Proceedings:The Occupational Safety and Health Administration of the U. S.Department of Labor (OSHA or complainant) conducted an inspection of the elevators inbuilding 8 over the period February 17 to March 7, 1984. As a result, it issued[[1\/]] acitation on May 7, 1984, which respondent duly contested,[[1\/]] alleging a willfulviolation of the general duty clause, 29 U.S.C. ? 654(a)(1), requiring that each employerfurnish his employees with a place of employment free from recognized hazards which mightcause death or serious physical harm.[[2\/]] A proposed civil penalty in the amount of$10,000 was assessed and abatement was to be accomplished within a month.Hearings were held on March 25 through 27 and April 29, 1985, with both partiesrepresented by counsel. No affected employee or his representative appeared after duenotice (Transcript, hereafter Tr., 4). Post-hearing proposed findings and motions (toimpose sanctions) were completed by December 8, 1985. Respondent admits the jurisdictionalfacts alleged in the complaint (Tr. 4) and I conclude that the Commission’s power todecide this matter is proper. 29 U. S. C. ?? 652(3), (5) and 653(a).The Evidence:James F. Cahill, an OSHA compliance officer, arrived atbuilding 8 on Friday, 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 isa 10-story building with shipping done from the second floor (Tr. 87) and is a warehousefacility (Tr. 71) served by two elevators, numbers 12 and 13, on the west and east ends,respectively (Tr. 33, 49). Both elevators are of the same type, but 13 was not in use onthat day (Tr. 49). The elevators are used heavily carrying loads for 30 to 40 trucks a day(Tr. 70).The accident occurred on the third floor (Tr. 29) and accordingto Mr. Pakenas, respondent’s safety coordinator, Mr. Lamson was loading pallets ontoelevator 12 with a forklift truck. The elevator began to rise and the employee was pinnedbetween the elevator’s entrance and the seat of the truck. When the elevator was lowered,Mr. Lamson was dead (Tr. 31-32). The truck’s steering column was broken and the LP gascanister at the truck’s rear was bent and flattened (Tr. 33-34, 37).The truck was halfway onto the elevator (Tr. 36). No one witnessed the event (Tr. 37-38).The elevator, 18 feet long, 9 feet wide and 7 feet high (Tr. 481), with access from eitherside on most floors, was fitted with bi-parting vertical-type doors. The inside gate wasup, but Mr. Cahill saw no gate on the opposite side. The sill plate (a metal, raisableplate bridging the gap between the building’s floor and elevator) was down (Tr. 34) andthere was none on the operator’s side (Tr. 35). The missing gate had been off for aboutsix months Mr. Knapp, the shipping department supervisor, told Mr. Cahill (Tr. 35-36).An Avis strap, a nylon packing strap, was tied from the sillplate to the sill plate’s control level (Tr. 34) and then to the elevator’s control lever(Tr. 47, 131-132, and photo exhibits C-2, 4 and 5). The plate’s control lever was notoperating properly so it was either braced by a piece of wood (photo exhibit C-2) or tiedwith the Avis strap (Tr. 45).Mr. Cahill testified that the electric contacts prevent theelevator’s operation if the door is open, the gate is up, or the sill plate is down. Theelevator 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. Cahillreports noting that the contacts were bypassed or jumped (Tr. 40, 66). These are on therecords reported to respondent by an elevator maintenance company which inspected theelevators, namely, the Simmons Elevator Comp (Simmons) (Tr. 57-58).Four months before the accident, from October 1983 through January 1984, Simmons hadinspected all of respondent’s elevators and exhibit C-6 is the result in the form ofchecklists (front side) and notes (back side). An \”X\” on the checklistsindicates a negative condition (Tr. 58, 60-61, 65), but this is not explicit (Tr. 85-86).For various dates, there are 12 reports concerning elevator nos. 12 and 13 (Tr. 62, 67).Among other matters, these reports show that the elevators’ contact switches were notworking and had even been jumped (Tr. 64-65).Elevator no. 13, according to Mr. Cabill, was used betweenFebruary 22 and March 7, 1984. It could be operated with its gates and doors open and onFebruary 21, after the accident, employees refused to ride on it. Then it was taken out ofservice (Tr. 50, 52-55).Ordinarily, if an elevator developed an operational problem,Mr. Knapp would notify the maintenance department and go on with the regular work (Tr.70). Mr. Reed, the distribution manager (Tr. 4\/29,65), [[3\/]] had reported elevator number12’s sill plate malfunction to maintenance on the day before the accident and on the dayitself (Tr. 129-130). But since the products had to be shipped, the elevator had to bekept in use (Tr. 70-71 ). According to Mr. Reed’s statement to Mr. Cahill, there werecontinuing problems with the elevators and maintenance worked on them constantly. However,that work is not scheduled to interfere with production and maintenance is done around theshipping schedules (Tr. 72).Respondent’s safety manual contains nothing about elevator safety; in fact, there is nowritten program or policy covering the safe operation of elevators (Tr. 72-73). Accordingto Mr. Reed’s comment to Mr. Cahill, if a problem occurs, an employee is instructed toinform his supervisor and continue working (Tr. 73). Further, and Mr. Stadel also reportedthis, no preventive maintenance is done; but problems or damage to an elevator are handledas they might occur (Tr. 76). Employees confirmed this to Mr. Cahill adding that amaintenance repair would not be done for a long time (Tr. 74).Mr. Cahill recommended the maximum civil penalty of $10,000because 20 employees on all three shifts were constantly exposed to the dangers presentedby these elevators and, compounding the hazard, they were subject to the stress of thepressure of production. \”It was go, go, go….\” (Tr. 79-81).Richard Suplicki testified that as the plant engineer (assumingthat position at the end of 1982), he is responsible for all maintenance of manufacturingmachines including elevators (Tr. 134-135). He had no experience with elevators and so anelevator consultant was retained, namely, Simmons through its president, Ben Stanley, andinspections were conducted on a monthly basis (Tr. 135-136).Simmons used a check-off sheet with comments on the back and inthe column labeled remarks. Mr. Suplicki received a copy of these (Tr. 137-138). He wouldgive this to maintenance to make repairs which they could do such as fuse and broken boltreplacement and straightening gates and rails (Tr. 4\/29, 8).[[4\/]] Simmons did major worksuch as replacing doors and interlocks and repairing contacts (Tr. 4\/29, 32).Maintenance supervisors report to him and he would expect themto schedule repairs if they saw a malfunctioning elevator. They had no specificinstructions; this was just his expectation (Tr. 140-141). Regular inspections areconducted by maintenance men and the findings are reported to the supervisors who wouldschedule repairs (Tr. 142-143). And Mr. Suplicki would expect that, if a repair had to bedone immediately, the department head would be notified and the work arranged to be done.That has happened, but Mr. Suplicki couldn’t remember an instance (Tr. 143-144).He received the Simmons report on the condition of theelevators (exhibit C-6) and gave them to the maintenance supervisor. Mr. Suplicki would\”expect\” them to investigate as a normal function, but he did nothing to beassured that the repairs were made (Tr. 162-163).This exhibit shows that in January 1984 the car gates were both\”jumped out\” on elevator 12 and the hoist doors \”need work.\”\”Jumped out\” generally means, according to Mr. Suplicki, bypassing the contacts.Similarly, this condition existed on elevator 13 as of December 16, 1983, and the carcould operate with the doors open. The Simmons report underscored this condition as\”not good.\” On November 23, 1983, the doors and gates of both 12 and 13 werejumped out. And on October 31, 1983, the hoistway doors on number 12 were jumped out. Herethe report underscores \”unsafe\” (Tr. 165-168).No one, Mr. Suplicki testified, is ultimately responsible forthe maintenance of the elevators. So, in February 1984, he described maintenance as acentralized department and \”no one particular person that was responsible\” (Tr.161).He described the maintenance problems as recurring but notcontinuous (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 ofSimmons to respondent’s president, Arnold Greenberg, dated November 8, 1982 (Tr. 155, 160;exhibit C-7). This is a three-page document making three points: 1. the elevators are in\”very poor condition;\” 2. that respondent’s position is \”disastrous\”concerning potential liability and production; and 3. scheduling of repairs is verydifficult due to the need for the elevators.As a result of this letter and another one, Simmons repairedelevators 12 and 13 between December 1982 and January 1983, according to Mr. Suplicki.Otis Elevator did some cable and mechanism repairs on number 13 in February 1984. By thattime, as described below, if respondent could handle some of the repairs, they would (Tr.171-174).But the elevators in building 8 do operate 24 hours a day (Tr.138-139, 146, 174). Mr. Suplicki did not know what instructions are given to employeesshould they discover a malfunction (Tr. 139). Before February 1984, he did not know that agate was missing from number 12, but he knew a gate was being fabricated by themaintenance department (Tr. 144) It was not put in place before that accident because ofscheduling, i.e., the necessity to close the elevator down for three-quarters of a day(Tr. 145-146). He did not know how long the new, completed gate was in the shop before itwas installed (Tr. 146).The missing gate had been equipped with a contact so it wouldhave had to have been closed to operate the elevator. That contact, Mr. Suplicki learnedas a result of his investigation of the accident, was in a good working condition. But ithad been deactivated or tied off (Tr. 147-148). The contact on the sill plate of number 12was not working on the day of the accident. It had not been bypassed and was repairedlater (Tr. 152).Interlocks had been jumped with a wire in the machine roomlocated on the first floor, a room to which only maintenance personnel had access (Tr.150). But Mr. Suplicki did not know who did this and would prefer to repair rather thanjump (Tr. 4\/29, 62-63).Repair work was always necessary on elevators 12 and 13. Theirdoors and rails were abused by forklifts hitting them and the doors would be difficult toopen and close (Tr. 148-149). This is an ongoing situation (Tr. 151) and it would requireone to four hours to straighten a door or rail by various means (Tr. 153-154). To preventthis type of damage, employees would be reprimanded (Tr. 154, 155).When Mr. Suplicki was placed in charge of maintenance inJanuary 1983, the employees in that department were all handymen and not journeymenmechanics. He began hiring experienced men in the various maintenance fields and thus wasable to take on more of the work that would have been given to outside contractors (Tr.4\/29, 6, 9). Thus, in late 1982, the maintenance men would not do any work on interlocksbut in 1983, they could repair them, gates and doors. Simmons would do only what insidemen could not do (Tr. 4\/29, 43-49, 61). All repair work was done around productionschedules (Tr. 4\/29, 57-58).A system was devised to keep track of work needed to be doneand when it was accomplished and how long it took (Tr. 4\/29, 10-13; exhibit R-7). Sometimein early 1983, a program of elevator repair was begun as well as weekly inspections by themaintenance department (Tr. 4\/29, 17-18, 25-26). Simmons inspected the elevators on amonthly basis (Tr. 4\/29, 83).The letter of November 1982 from Mr. Stanley to Mr. Greenberg(exhibit C-7) generated work done on the elevators (Tr. 4\/29, 28). Bids were received,Simmons obtained the contract, and repairs took almost a year (1983) to completethroughout the facility (Tr. 4\/29, 29, 35, 55).Elevator 13 was repaired over the period February 9 to 20, 1984and these were extensive (Tr. 4\/29, 16-17). Elevator 12 was scheduled to be done afterthat (Tr. 4\/29, 20). The repairs to that elevator took about a week before it went backinto service (Tr. 4\/29, 27).Five employees in building no. 8 were called by complainant.Uniformly they testified that prior to the accident and going back as far as ten years,the elevators there could be operated with their doors and gates open (Tr. 217, 184-185,193-194, 222-223, 261-262, 279). The rule was: run them until they stop (Tr. 192, 228,252). And maintenance would then make repairs (Tr. 209, 256-257, 264, 276) according totwo of these employees. Once repaired, the elevators would operate properly for a time(Tr. 197, 285). But not all repairs were made immediately, such as the broken sill plates(Tr. 209). There are assigned personnel as elevator operators; but, if they are notavailable, any employee will run them (Tr. 184. 197-198, 229-232, 265-266).These employees reported elevator malfunctions to theirsupervisors and the plant manager and these saw the abnormalities in any event since they,too, rode the lifts (Tr. 189, 192-1949 216, 22, 225-226, 262, 264 267, 273-274, 280). Atone labor-management meeting, it was brought up that elevator doors on number 12 droppedfrom the second floor down to the first about a month before the accident. It was twoweeks before these were repaired (Tr. 267-268).One employee testified that the elevator control lever onnumber 12 \”sometimes\” did not lock into neutral (Tr. 188); and another said itnever did (Tr. 225). Still another did see the elevator rise when it should not have butnot to the extent that occurred at the accident (Tr. 272). Because door latches did notwork, one employee even opened them from the outside (Tr. 274). No employee testifyingever saw an Avis strap used as the deceased used it (Tr. 201, 236-237, 239, 256). Rather,a board had been used to brace the sill plate’s handle to prevent it from falling over forabout two weeks (Tr. 189, 219, 220-221, 264; exhibit C-2).The safety switch on the elevator’s (no. 12) control panelshuts the elevator down completely. But no instructions were given an its use (Tr. 191,223-224). One employee was told never to use it (Tr. 198). Since the accident on February17, 1984, one employee, at least, was instructed to shut off the elevator (Tr. 224). Thatemployee and another were unaware that elevators were equipped with interlocking devices(Tr. 223, 281).Since the accident, a malfunction is corrected right away orthe elevator is shut down (Tr. 211, 228) because the union refused to use an unsafeelevator (Tr. 269).Forklift trucks or their loads could hit the elevator’s closeddoors since skids were used to block openings on floors where the doors did not closecompletely and the elevator was not at that landing (Tr. 211-212, 235). One sill platewhich protects the door when open was missing from elevator 12 for probably more than aweek (Tr. 205, 221-222, 232, 250, 262, 279).Elevator number 12 was missing a gate and its new one, made inthe machine shop, sat on the sixth floor for months until installed after the accident(Tr. 223, 279). One employee testified that there never had been the second gate on thiselevator (Tr. 262).An employee testifying about his training was taught on the useof the elevator control lever but not about what he should do should the elevator movewith the door or gate open (Tr. 227). Another testified the doors would remain up to threeinches open and they never closed squarely (Tr. 274). But it was easier to run them withthe doors so open (Tr. 282, 284).Elevator number 13 also ran with open doors (Tr. 28), butanother employee indicated that there the gates would not shut but the doors would (Tr.227). Doors jam (Tr. 233). Supervisors used to \”holler\” for freight through theopen doors into the shaft (Tr. 273-274).Donald Karl, called by complainant, worked in respondent’smaintenance department for three and a half years, at the time of the hearing, repairingelevators. A Mr. Vulo is his supervisor (Tr. 302-303). He testified that the gate missingfrom elevator 12 had been gone since at least November 1982. He was asked to make anotherin January 1984 and fabricated a new gate in three days at respondent’s machine shopfinishing two weeks before the accident. Because of other work, the gate was not installeduntil after the accident (Tr. 302, 303-304).The elevators run continuously and, prior to the accident, ifany repair could be done in a half-hour, it would (Tr. 309); but there were only twomaintenance men and not enough time to maintain all 13 elevators (Tr. 302, 308).He knew the elevators would operate with the doors and gatesopen (Tr. 303); he knew that all gates had contacts which were not operative (Tr.304-305); and that the latching mechanism on the sill plate lever was hard to lock. Themaintenance department built that lever (Tr. 306). And five or six months before theaccident, he knew that the safety circuits had been jumped. He told this to Mr. Vulo andMr. Suplicki and he knew that Simmons Elevator Company told them (Tr. 307).According to Mr. Karl, the doors are the elevators’ majorproblem and take many, many hours to repair (Tr. 307-308).Before the accident, in 1983, the maintenance department would inspect the elevators on aweekly basis, grease and oil them and make small repairs; after that, it was done daily(Tr. 308-309, 315-316).Mr. Karl worked with the Simmons Elevator repair personnel andhe used their report sheets to inspect the elevators and do the repairs. He kept his ownrecords in a three-ringed notebook (exhibit R-4). There he recorded problems, where hefound them, when he did repairs, and how long it took (Tr. 310-312, 318). This was inaddition to the respondent’s work order and timecard records (Tr. 312). Should anotherrepairman correct a problem, he would not know this until his next inspection (Tr.330-331). He reviewed the data in his book with Mr. Vulo on a daily basis and thus workassignments were devised (Tr. 322).The sill plate lever, to which the deceased had tied the Avisstrap, had a bent latch so that it was not aligned with the hole locking it in place. Thelatch would drop into the hole but only after much effort. He did repair this but evenbefore that there was no need for any make-shift device, according to Mr. Karl (Tr.315-317). On the day of the accident, that sill plate was not equipped with an 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 anddown, but the rails are bent frequently due to the carelessness of forklift operators.This type of damage occurred frequently on both number 12 and 13 elevators (Tr. 313-314).Sill plates are constantly wearing and every three weeks something must be replaced. Theytake abuse which the doors would without them (Tr. 314-315).According to safety codes, Mr. Karl testified, if an elevator gate is missing, theelevator cannot operate and that is their condition today. Before the accident, theelevators would continue to run without gates (Tr. 339-341).Mr. Karl was never instructed to remove bypasses he found inthe machine room. If he did, the elevators would stop (Tr. 344). His book, exhibit R-4,shows, however, that interlocks which had been jumped were cleared in certain cases whenthe 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) isfor emergency use only; but since the accident, it is used as an added safety feature inconjunction with others (Tr. 350-351).Elevator number 13 on February 17, 1984, was being repaired andwas shut down. Elevator number 12 was to be shut down and repaired when 13 was back inservice (Tr. 353).Bradley Hill works with Mr. Karl in maintenance and has done sofor almost two years (Tr. 287-288, 299). During 1982, the elevators were inspected on amonthly basis. He would lubricate bearings and check oil levels (Tr. 293-294). SimmonsElevator inspected monthly also (Tr. 295). Now, respondent’s maintenance departmentinspects daily and an unsafe elevator will be shut down, in fact, both elevators inbuilding 8 could be closed (Tr. 300-301).David Stadel assumed the position as respondent’s Manager ofSafety and Environmental Services two or three months before the accident and served asthe safety engineer before that (Tr. 358-359, 4\/29, 87). As a witness called bycomplainant, he testified that he had no specific duty in building 8 and its elevators andno specific function with the safety committee (Tr. 359). He coordinates safety, suggestsimprovements, inspects the facility with the safety committee monthly, and that is theextent of his safety responsibility (Tr. 373-375). Robert Freedman, Director of HumanResources, is the highest ranking employee concerning safety 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 be responsible for safety there (Tr.360).There is no training program in elevator safety. The deceased’suse of the Avis strap was unsafe and a violation of company policy as would management’snon-action would be if they knew of such use. A supervisor should have removed the strapimmediately (Tr. 366-368).Prior to the accident, Mr. Stadel noticed that the doors onelevator 13 were ajar at the first-floor level and he told Mr. Suplicki and Mr. Reed aboutit (Tr. 360-361). He told them to correct this without specifying a time. It did not haveto be done right away and he did not know of any arrangements made to accomplish therepair. But he did know that it was repaired (Tr. 361-362).He also told these same men to repair the interlocks onelevator 13 because he saw it operating with the doors open. There was a problem ofscheduling the repair and a week later it was done. That was satisfactory to him (Tr.363-365).He did not order these gentlemen to repair these conditions: \”It was asuggestion.\” They could have refused and, if the conditions were sufficiently severe,he would take the matter to a higher level (Tr. 375-376).In December 1983, he was advised that the New York StateDepartment was not enforcing the state’s elevator code. That Department made an inspectionafter the accident but did nothing beyond that (Tr. 371-372).Called by respondent, Mr. Stadel testified that his function isto improve the safety program and issue the safety manual (Tr. 4\/29, 88). When he assumedhis position, respondent’s accident rate was 12.8 (about 12 employees out of 100 hurtseverely enough to require a doctor’s care). But no accident occurred on an elevator (Tr.4\/29, 89). Mr. Stadel’s education and work experience are heavily weighed in 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 SafetyCouncil’s handbook. 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 StateCode on elevator safety (which was not being enforced) from the senior consultant orinspector to whom he spoke in December 1983. Rather he referred to the ANSI code (ANSIA17.1-1971) (Tr. 4\/29, 90-91). He ordered a copy of that in December 1983 and received itafter the accident on February 23, 1984 (Tr. 4\/29, 93-94).The state investigated the accident on two occasions concerning building 8 andeventually–after first identifying nothing wrong–sent a notice of violation in May 1984which included two other buildings. Mr. Stadel gave this notice to Mr. Suplicki to correctthe deficiencies (Tr. 4\/29, 95-99).William S. Crager, a safety consultant for elevators, movingwalks and dumbwaiters, was called as complainant’s expert witness. He has been consultingsince 1967 (Tr. 478) and has been inspecting elevators since 1923 (Tr. 496). Hisqualifications are shown on exhibit C-9 (Tr. 479). He served as the chairman of the ANSIA17 committee for 15 years, was chairman of the executive committee, an honorary memberand chairman emeritus (Tr. 504). He is a certified safety professional and a registeredprofessional engineer in California. He has worked on the development of many state andlocal elevator codes (Tr. 509-515).Mr. Crager inspected the elevators in building 8 and heard thetestimony of all of complainant*s witnesses (Tr. 480).In all of his experience, he has never seen an elevator withsuch a combination of safety devices made inoperative in order to permit the car to move.This was caused primarily by the lack of maintenance (Tr. 496).He listed the hazardous conditions which existed for a lengthof time as: no electric contacts on the sill plate and two are required; no gate, contactson other gates and doors shorted out; doors left open; and the operating lever wasdefective since it would not lock into neutral position (Tr. 486-487, 490). Had it lockedinto position, this accident 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 wallwhile the car is in motion (Tr. 486) and contacts prevent movement if a gate or doorshould be open so an employee on a forklift would not fall down with the machine or bedecapitated (Tr. 491-492).It is not an acceptable practice to operate a car with thedoors open indicating eight contacts have been shorted out even for a day or two (Tr.498-499). The hazards on this elevator are those with which safety experts are familiarand would \”positively\” guard against (Tr. 499).The ANSI Code A17.1 (1971) covers all of these matters: theswitch; the gate contacts; the gates; the emergency release switch; the car emergency stopswitch; the hinged platform; the door interlocks; prohibition against jumping; and themachine room (Tr. 502-503).The New York State Code Rule No. 8 covers the operation ofelevators in factories and mercantile establishments and covers the matters substantiallyas the ANSI Code (Tr. 505-506, 508). Most local codes use the ANSI standard as theirstarting points (Tr. 515-516).Mr. Crager applied the 1971 ANSI code to these elevators forthey underwent major repair or modernization in 1973 (Tr. 517, 518). The sections heenumerated are long existing (Tr. 517). And while the ANSI standard permits exceptions (?2) to its requirements granted by application, reasonable safety measures during therelaxed period must be assured (Tr. 540).The National Safety Council’s Accident Prevention Manual for Industrial Operations (8thEd.) is, according to Mr. Crager, only a reference book and not a code so it uses the term\”should\” implying a permissiveness and not a mandate as the term\”shall\” is interpreted. At page 265 of the Manual, it reads that interlocks forfreight elevators should be used (Tr. 555-557, 565).But, Mr. Crager pointed out on redirect examination, the Manualdirects users to the basic ANSI standard, A17.1 (ch. 7 of the Manual, p. 258) which usesthe mandatory term \”shall\” differentiating it by definition from the permissive\”should\” (Tr. 561). And respondent has had the Manual in its possession sinceJune 23, 1983 (Tr. 562).Clifford Reed, called by respondent, is the DistributionManager coordinating shipping and receiving in buildings 5 and 8 (Tr. 4\/29, 65-66).Building 8 is 10 stories tall with three docks on the second floor and two at the first.The elevators are the only way to move goods between the floors and no elevators, noshipping (Tr. 4\/29, 67). The elevators had to be kept going for production purposes end itwas possible but slower to operate with only one elevator in building 8 (Tr. 4\/29 83, 85).In the extreme, it might be possible to ship out of building 4 should both elevators bedown in building 8 (Tr. 4\/29, 68). The elevators are greased either early in the morningor on Saturdays (Tr. 4\/29, 72).Elevator breakdown is frequent and at times they wouldn’toperate at all. Sometimes the employees complained because of non-operation or doors hardto close. But they did not complain about safety conditions (Tr. 4\/29, 70-71).Mr. Reed would notify maintenance should a malfunction occur and, on occasion, would gothere (Tr. 4\/29, 69). But no maintenance would be scheduled unless an elevator was notworking at all (Tr. 4\/29, 71).And he never complained to maintenance on any matter related tosafety (Tr. 4\/29, 72). He saw elevators operate with doors open about six inches andinstructed that they be closed, but employees did not complain about the open doors (Tr.4\/29, 77-78). And, as he recalls, the union never brought up the elevators at the monthlylabor-management meetings (Tr. 4\/29, 79).In February 1984, he reported the sill plate condition onelevator 12 to maintenance; and, when nothing was done, he went to report it personallythe morning of the day of the accident or day before. It was a constant problem (Tr. 4\/29,73-74).Mr. Reed saw employees use elevator 12 with one gate missingand one sill plate gone but never reported these matters. And while the doors weredifficult to close, he doesn’t recall a time when they couldn’t be closed completely (Tr.4\/29, 80-81).Elevator 12 was scheduled for repair when 13 was put back inservice (Tr. 4\/29, 75).Respondent’s expert, John McAulay, has been a consultingengineer for five years and before that was employed by Otis Elevator Company for 31 yearsin the Door Group. He was engaged in research and development; his articles have beenpublished; he has taught the subject to new engineers; he holds several patents; and hehas belonged to the ANSI A17.1 Committee for 15 years. He is a mechanical engineer andlicensed by New York State as a Professional Engineer. He has worked on maintenance ofelevators for seven months as a routeman covering a large territory for Otis and thisincluded freight elevators (Tr. 4\/29, 107-115; exhibit R-14).He inspected elevators 12 and 13 in January or February 1985,almost a year after the accident (Tr. 4\/29, 136-137). Based on that and the testimony ofMessrs. Suplicki, Karl, and Hill (Tr. 4\/29, 116), he would rate respondent’s maintenanceprogram as an eight out of a possible perfect ten (Tr. 4\/29, 117). Its safety program isembryonic but moving in 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 the outsideservice company which respondent relied upon. That reliance allowed the eight rating eventhough respondent–a company with 13 elevators–had no written program covering elevatorsafety (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 the improvements before andafter that date (Tr. 4\/29, 153-154, 156). He does not like to see jumpers in a controlroom, but he considered this in his rating (Tr. 4\/29, 148-49). Bypassing creates a hazard,but open doors could be barricaded to prevent people falling from a floor (Tr. 4\/29,158-159).Mr. McAulay served as chairman of the ANSI Hoistway Committeeof A17.1 which renders interpretations of the standards, about 40 a year (Tr. 4\/29, 118-130). In his opinion, because the code is technical and difficult to read without trainingand preferably hands-on experience, Mr. Suplicki would not understand it because a goodknowledge of the operation 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 to him beyond a\”good morning\” (Tr. 4\/29, 164). He did not know what training either Mr.Suplicki or Mr. Stadel had (Tr. 4\/29, 140).Mr. McAulay regarded Simmons Elevator elevator maintenancereports (exhibit C-6) as not saying enough. They do not inform respondent as to the floorswhere a repair is needed or where the doors need work nor where an interlock is jumped out(Tr. 4\/29, 123-125, 130). He considered Simmons warning letter to respondent (exhibit C-7)as too broad concerning the conditions and he would not write it in that fashion; but henever spoke to Mr. Stanley of Simmons (the author of the letter) (Tr. 4\/29, 160-161).The New York State Code for Elevators, according to Mr.McAulay’s review, does not include a necessity for gates or sill plates. And he does notconsider the absence of the latter as creating a hazard. They are permitted but notrequired by the ANSI code. While, if asked, he would suggest their use, the local codewould govern since the ANSI code has no enforcement procedures. He doubts whether Mr.Suplicki could figure all of this out (Tr. 4\/29, 130-132, 135).Contentions of the Parties, Findings of Fact and Conclusions ofLaw: Despite respondent’s claim that there is no evidence to support findings that it shouldhave recognized the alleged necessity to use interlocks, electric gate contacts andelectric sill contact switches to avoid any hazard 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 dated November 18, 1982,(exhibit C-6) in which the general state of disrepair of the elevators is stated to put\”. . . you …in a potentially disastrous position as far as liability andproduction\” (page 1) and \”We merely want you to be aware of these hazardousconditions\” (page 2) and \”… there must be some way around this situation[i.e., production] in order to keep these elevators in safe running condition\” (page2);b) Respondent acted on this letter and repairs were made by in-house personnel andSimmons, but the latter’s monthly reports (exhibit C-6) showed that devices to preventelevator movement when a door or gate is open were almost continually bypassed month tomonth and that was described by Simmons to respondent as \”not good,\”\”unsafe\” and \”doors don’t latch, need to be fixed for safety;\”c) These monthly reports were received and reviewed by Mr. Suplicki, the plant engineer,and all supervisory personnel in building 8 witnessed the elevators operating with doorsand gates open; andd) Employees were instructed to operate the elevators with doors and gates open andunlatched until they (the elevators) were incapable of further movement. This directionwas given because of the absolute necessity for the use of the elevators to continuedproduction round the clock.Further, respondent had constructive notice that the preventive devices must be used onthe elevators. I find2) Respondent’s Manager of Safety and Environmental Servicesrelied on the National Safety Council’s handbook and this told hima) Interlocks and contacts should be used and that he should refer to the ANSI A17.1-1971standard;b) He had that handbook in his possession some six months before ever seeking out a copyof the ANSI standard on the proper operation and maintenance of elevators; andc) In the exercise of minimal diligence, respondent would have discovered the hazard andits prevention through the use of the ANSI standard any explanation of it through itsexpert, Simmons Elevator Company, who had informed it of the dire consequences of notcomplying and allowing the malfunctions to continue unabated in its letter of November 18,1982, (exhibit C-6) which in addition to the unsafe conditions, Simmons warned that shouldthe local authorities inspect, the elevators would be shut down immediately. As discussedbelow, the thread of one of respondent’s defenses is that the local code (New York StateCode 8) was the authority here.In the final analysis, I find3) Respondent recognized the hazard of an elevator potentiallyable to move with its doors and gates open; it took steps to repair these deficiencies;but repair was delayed until either employees voiced their fright; complete breakdown wasimminent; or production scheduling permitted shutdown. Unfortunately, the latter permitoccurred just about the time of the accident.[[5\/]]4) In the meantime while the elevators were in a state ofdisrepair, employees were given no special instruction–in fact, there was no policyregarding the safe operations of elevators either written or oral, employees were merelyshown how to make them go–to mitigate the hazard by using the emergency stop switch tocompletely shut down an elevator at a floor, rather one employee was told not to use it;or by the assignment of an employee specifically as the full-time operator when interlocksand contacts were jumped out.5) In this same vein, I find, based on Mr. Crager’s evidence,that had the interlocks and contacts been operative on February 17, 1984, and the controllever been capable of locking into the neutral position, the accident would not haveoccurred even with the deceased’s unusual use of the Avis strap wound around that lever.Thus, the consequences of his idiosyncratic, demented or suicidal conduct in using thestrap, could have been avoided had an effective safety policy regarding operation andmaintenance been in effect.6) To repeat, the evidence on elevator policy and it isoverwhelming by employees and management alike, is that they must run, run, runregardless.7) Following the accident, no elevator was permitted to operateif it were deemed unsafe but was repaired immediately or shut down.[[6\/]]Based on these facts, I conclude that a violation has been established in that respondenthad actual knowledge of the hazard [[7\/]] of allowing the operation of elevators 12 and 13with the interlocks and electrical contacts on the doors, gates (on elevators 12 and 13)and sill plate being bypassed or jumped out (this applies in addition to 12) and that itfailed to abate or counter these hazards by instituting timely repair and maintenanceprograms but allowed the elevators to run for inordinate periods of time in a state ofdisrepair. It took no steps to instruct employees on operating the elevators as safely aspossible when malfunctions existed to accommodate production nor did it assign full-timeoperators during those periods to assure that a stopped elevator is stopped. The hazard ofoperating the elevators without these devices could cause or would likely cause death orserious physical harm.Thus, the elements of a section 5(a)(1), the general dutyclause, violation have been shown. St. Joe Minerals, above, at footnote 5.I further conclude that the violation was willful. Thatcharacterization will 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 on notice that asubsequent citation could be deemed willful. Although as relevant as these may be, a\”marked inattention to safety\” will support and justify a charge of willfulness.St. Joe Minerals, 647 F.2d 840 (8th Cir. 1981) at 848 and note 19 (quoted material).Respondent contends that such blindness to safety is notpresent in this case. It reasons that (1) the elevators were absolutely required tocontinue production; (2) they were subject to great abuse and damage; (3) in November 1982it began a program of repair after being advised by Simmons that there might be a problem[i.e., \”which Simmons thought to exist\” (brief p. 46)]; (4) thereafter, Simmonsnever complained of problems (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 to February 1984; and (7) only a freakaccident defeated respondent’s efforts.Thus, it concludes there is no justification to find a willfulviolation (brief, pp. 44-49).These contentions are not supported by the record and I findwith reference to them1) Simmons month to month in 1983 reported the jumps and bypasses by at least\”X’s\” on its inspection reports;2) On at least three of these, that condition was described with a reference to a danger;3) Whatever repair work was done was accomplished whenproduction best allowed 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 wasimminent and employees balked at using it;7) Respondent produced no evidence other than the hours andmoney spent on maintenance to show that elevators 12 and 13 were in any better conditionat the end of 1983 than they were at the beginning indicating that no preventivemaintenance was performed, no safeguards or training were instituted to prevent damage andthe time and money expended were only to repair necessary items to forestall shutdowns;and8) After the accident, no elevator ran unless all safety itemswere in place and operative yet production was not affected as far as this record wouldindicate. Hence a safe operation could have been accomplished had more attention beenshown.In St. Joe Minerals, the court affirmed the Commission’sviolation of section 5 (a) (1) concerning its freight elevators but did not affirm that aswillful. Respondent here claims that the fact patterns are comparable and no willfulnessmay be justified here. In respondent’s analysis of that case, it omits to mention thatwhen interlocks were bypassedAn employee was also assigned to assist in opening and closing the doors and to preventthe elevator from moving while being loaded or unloaded . . .***…the petitioner’s [St. Joe] conduct falls short of plain indifference to the generalduty clause. (647 F.2d at 848-849).There is nothing in the record before me to show anyprecautions whatsoever, except for barricading open elevator doors to prevent a fallthrough that area when the elevator was not at that level, taken to protect a person onthe lift, loading or unloading it, at a time when safety mechanisms were not operativewhich was most if not all of the time according to employees as buttressed by the Simmons’inspection reports.I find that respondent acted with intentional disregard, wasplainly indifferent to requirements of the Act, and was markedly inattentive to the safetyof its personnel using its elevators all in the name of production. I conclude thatrespondent willfully violated section 5(a)(1), the general duty clause.The record is sufficient to show that respondent realized thehazard its elevators 12 and 13 presented through the warnings sounded by Simmons inNovember 1982. If Simmons did not sufficiently describe the conditions and consequences asits expert, Mr. McAulay, would have done, this does not provide relief. Once it wasadvised of the hazardous condition which it attempted to correct in a manner configuringwith its production schedule, 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 notifiedrespondent in monthly reports to its plant engineer that interlocks on doors were bypassedor jumped and this was unsafe. Mr. McAulay agrees that such action creates a hazard. Hisabatement plan would 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 section5(a)(1) and allowed it to continue. Therefore, reference to the ANSI standard, the NewYork State Code and the application to local authorities to do the remodeling andconstruction of the elevators in 1972-1973 as shown in exhibit C-8, in whatever buildingthose elevators might be are not determinative here. Any of these would put respondent onnotice for the necessity of the safety devices specified in each but that notice wassufficiently supplied by Simmons’ warnings and respondent, in accordance with itsproduction schedule and in derogation of employee safety, acted on those warnings.Exhibit C-8 is respondent’s application for a building permitto the local authority and concerns elevators but is insufficient to be relatedspecifically to elevators 12 and 13. Whatever elevators they are, their location is theAmsterdam facility. In the application, respondent specifically agrees to be bound by theNew York State Construction Code. That application is dated February 15, 1973. Simmonswarned respondent in November 1982 that should local authorities inspect, elevators 12 and13 would be shut down immediately. Simmons was respondent’s expert. Respondent acted onits advice. Is there doubt that the local code was applicable to these elevators? Is theredoubt that respondent was on constructive notice of the requirements of the local code?Hardly.Respondent, throughout this proceeding, has argued that this section 5(a) (1) citationmust be dismissed because the State of New York regulates the safety of elevator operation(brief pp. 15-19). Under section 667(a) of the Act [29 U.S.C. ? 667(a)], a state mayassert jurisdiction over any safety or health issue where no federal standard is ineffect. The argument is that to allow the 5(a)(1) citation here would permit dualenforcement not contemplated by the Act. Earlier in this case, this question wasdecided;[[8\/]] but, if that were respondent’s belief that it was regulated by a localauthority, it may hardly be heard not to claim that it was not, at least, on constructivenotice of the local requirements. Whatever mistake was made in this regard (Mr. Stadelbeing told by a local state official that the local code was not in effect) may go to thecharacterization of the violation as willful but not to the issue of constructive notice.Otherwise, to follow respondent’s argument to its end, these elevators were subject toabsolutely no standard at all. But to the contrary, respondent through the letter andinspection reports of Simmons, was actually aware of each and every deficiency and theelevators’ unsafe conditions.The order below affirms the citation as follows: Respondentwillfully violated the general duty clause in that it permitted elevator 12 in building 8to be operated:1) Without a functioning hoistway door interlock system;2) Without a functioning electric contact switch on the car’sinstalled gate;3) Without a functioning electric contact switch on a gatebecause the gate itself was not installed;4) Without a functioning electric contact switch on the car’ssill plate; and5) Without an operating control lever capable of locking intoits neutral position.The safeguards of these items are all designed to prevent elevator movement when it shouldnot or when a mischance occurs. It is the prevention of that which complainant proved by apreponderance of the evidence. The non-locking lever to operate the sill plate contributedto this, but it is a peripheral issue and not within the proof of the section 5 (a) (1)charge.So, too, the citation is affirmed with regard to elevator 13for it also, 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’sdefense that certain standards apply to certain conditions so a 5 (a) (1) charge may notlie. Specifically, 29 C. F. R. ?1910.23 (b) (1) requiring protection of wall openings(elevator doors open when elevator not at that level); 29 C. F. R. ? 1910.178(j) and(n;(11), (12) and 29 C. F. R. ?1910.30(a) covering bridge (sill) plates (brief pp.19-25).The complainant’s evidence presented under the citation and complaint all went to thehazard of chance elevator movement. Expert Crager’s statement of the danger presented byan open elevator door exposing the gaping shaft was not pursued and was not specificallyaddressed to the allegations 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 the gravity of theviolations. 29 U.S.C. ?666(1). Twenty employees over the three shifts round the clockwere exposed to death or serious physical harm. The respondent’s commitment to safety,i.e., its good faith, was minimal in that all of its efforts were designed to insureelevator operation rather than safe elevator operation (Tr. 79-81). Civil penalties haveas their purpose the encouragement of the Act’s main purpose of insuring a safe workplace.Zemon Concrete Corp. v. Marshall, 683 F.2d 176 (7th Cir. 1982). I conclude that theproposed penalty is appropriate.A review of the corrections to the transcript suggested bycomplainant in its motion to correct shows them to be proper and they are allowed.Motion for Sanctions:Respondent, contending that statements in complainant’s briefseriously misstate and mischaracterize the record, asks that sanctions be imposedsuggesting that all the pleadings be stricken and the citation be vacated insofar as italleges willfulness and that an award of attorney’s fees and expenses would not beinappropriate. (Respondent’s motion to impose sanctions, filed September 30, 1985, pp.5-6).This is based on Rule 11 of the Federal Rules of CivilProcedure. That rule makes an attorney signing a pleading responsible for its propriety;and sanctions, such as expenses, may be imposed for a violation. Complainant responded tothis (filed December 9, 1985) countering every alleged misstatement.It appears from the respondent’s reply brief (the basis of themotion for sanctions) that the foundation of its motion is complainant’s (1) equating abypass or jump to knowledge of a hazard; (2) his assumption that respondent knewinterlocks and contacts were safety devices; and (3) his assumption that respondent knewthat failure to use these creates a hazard. None of this has any basis whatsoever in therecord according to respondent’s motion.On the theory that those personnel at respondent’s facility areintelligent and responsible men, complainant could justifiably infer that they would knowfrom Simmons’ correspondence using terms such as disastrous, hazardous, elevators wouldlikely be shut down, and the like, that something involving safety was involved. Further,its maintenance report (exhibit C-6) of October 31, 1983, remarks \”Elev. #12 HoistwayDoors–Jumped Out–UNSAFE,\” surely could support an allegation that respondent knew,or should have known that bypasses create hazards, and that interlocks and contacts aresafety devices.Respondent’s motion is not well taken. Complainant’s statements of the record andarguments are within the bounds of propriety. Respondent’s motion for sanctions is denied.ORDER: Based on these findings and conclusions and after consideringthe parties’ proposals, which to the extent shown above are adopted or, otherwise rejectedas not supported by the preponderance of the evidence or precedent, it is ordered that thecitation issued May 7, 1984, is affirmed in that respondent willfully violated 29 U.S.C.? 654(a)(1) in that it permitted elevators 12 and 13 in building 8 to be operated withoutinterlocks and contact switches on the doors and gates and, in addition, permittedelevator 12 to be operated without an electric contact on its sill plate and without anelevator control lever capable of locking into the neutral position. A civil penalty inthe amount of $10,000 is assessed therefor.David J. Knight JudgeDated: October 20, 1986Boston, MassachusettsFOOTNOTES: [[1\/]] 29 U.S.C. ? 654(a)(1) provides:? 654. Duties of employers and employees (a) Each employer–(1) shall furnish to each of his employees employment and a place of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees[.][[2\/]] As explained more fully below, the doors of the elevatorare part of the building’s structure, while the gates are attached to the elevator car.Thus, each elevator has only one set of gates, but has doors on each floor of thebuilding.[[3\/]] We also note that Crager testified, with respect toelevator 12, that in his 58 years of experience with elevators he had never seen anelevator with such a \”combination of so many safety devices… made inoperative topermit the car to be put in motion with the required protections such as gates and doorsin the open position.\” He stated that if he had seen the elevator operating that way,he would have recommended that it be \”shut down immediately until all safety deviceswere made to properly operate …\”[[4\/]] New York State authorities also inspected Coleco’s elevators after the fatality.They issued Coleco a notice that alleged violations existed at the elevators in building8. The notice did not refer to the conditions cited by the Secretary.[[1\/]] Under the Occupational Safety and Health Act of 1970, 29U.S.C. {secs} 651, et. seq., citations are issued after inspection and may be contestedwithin a 15-working-day period. 29 U.S.C {secs} 658 and 659 (a). Respondent’s notice ofcontest is dated May 24, 1984.[[2\/]] The specific allegations are:Concerning elevator 12:1. Interlocks not functioning so that elevator could move with its doors open;2. The elevator gate (east end) did not have a functioning contact so that the elevatorcould move with the gate open;3. The elevator gate (west end) was missing and its contact was not functioning;4. The west end sill plate’s contact was not functioning; and 5. The west end sill plate’s control level (to raise and lower it) was not functioning.Concerning elevator 13:1. Interlocks not functioning so that elevator could move with doors open; 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 the first three days,March 25, 26 and 27, and then begin again for the April 29 hearing. The transcript for thelatter day’s hearing is noted as \”Tr. 4\/29.\”[[5]] Given the hazard, it appears that right-minded man do notdispute the possible consequences of death or serious injury. St. Joe Minerals Corp. v.OSHRC, 647 F.2d 840 (8th Cir. 1981) at footnote 9. Thus, it is not necessary to find,based on expert Crager’s testimony untouched by cross-examination, that an employee couldbe decapitated by an elevator moving when it should not.[[6\/]]The evidence by employees to this effect was not objectedto and thus the conflict between the press for production versus the feasibility for safeoperation and timely repair is resolved. See Fed. R. of Evid. Rule 407.[[7\/]] Assuming respondent could not have known of therequirements of the New York State Code 8 regulating elevators or the ANSI A17.1 (1971)and that the toy manufacturing industry, as the relevant industry here, does not recognizethe hazard; this actual knowledge is sufficient under section 5(a)(1), the general dutyclause. See Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977) at 910; andcf., Cape & Vinyard Div. of The New Bedford Gas & Edison Light Co. v. OSHRC, 512F.2d 1148 (1st Cir. 1975) at 1152 and n.5.[[8\/]] This question was decided on respondent’s application todepose a certain federal official and that permission was denied to it. The decision thereis attached hereto as Appendix A and the question raised is not further discussed herein.”