“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-224 GLENDALE MILLs INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 15, 1978DECISIONBefore: CLEARY, Chairman; and BARNAKO, Commissioner.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Foster Furcolo is before the Commissionpursuant to a direction for review by former Commissioner Moran issued under ?12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651 etseq. Judge Furcolo vacated one alleged violation of an occupational safety andhealth standard and affirmed three other alleged violations of standards. Heassessed a total penalty of $75 for those violations that he affirmed,recharacterizing an alleged repeated-nonserious violation as nonserious andassessing a $35 penalty rather than the $85 penalty that had been proposed bycomplainant.??????????? Noparty has taken issue with those parts of the decision in which the Judgevacated an alleged violation and reclassified a repeated-nonserious citation asnonserious, assessing a reduced penalty. Accordingly, the Commission will notreview these actions. Gulf Oil Co., 77 OSAHRC 216\/B10, 6 BNA OSHC 1240,1977?78 CCH OSHD para. ___ (No. 14281, 1977); see Water Works InstallationCorp., 76 OSAHRC 61\/B8, 4 BNA OSHC 1339, 1976?77 CCH OSHD para. 20,780 (No.4136, 1976); Crane Co., 76 OSAHRC 87\/A2, 4 BNA OSHC 1015, 1975?76 CCH OSHDpara. 20,508 (No. 3336, 1976).??????????? Withrespect to the alleged violations that were affirmed, respondent did notpetition for review of the Judge?s decision and the direction for review didnot specify any issues. Inasmuch as on review respondent resubmitted itspost-trial brief, asking in effect that the Commission reconsider its argumentsmade before the Judge, and the Judge correctly decided the issues before him,we adopt the Judge?s decision. Gulf Oil Co., supra; see Phillip E.Runyan, d\/b\/a Chief Metal Products, 77 OSAHRC 184\/D4, 5 BNA OSHC 1980,1977?78 CCH OSHD para. 22,251 (No. 14005, 1977).??????????? It isORDERED that the Judge?s decision be affirmed.FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: FEB 15, 1978\u00a0\u00a0?UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-224 GLENDALE MILLs INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 22, 1976APPEARANCES\u00a0Barnett Silverstein, Esq. for Complainant\u00a0Mr. Irwin Luxenberg and Mr. Carl Ross forRespondent?DECISION AND ORDERFurcolo, Judge??????????? Thisis a proceeding pursuant to the Occupational Safety and Health Act of 1970, asamended (29 USC, sec. 651 et seq.) hereinafter called the Act. The Complainantalleges that the Respondent has violated sec. 5(a)(2) of the Act (sec. 654) bynot complying with Occupational Safety and Health standards.??????????? TheRespondent is a corporation engaged in the business of manufacturing knitwearand clothing and its business affects the commerce of the United States.??????????? TheRespondent?s worksite at 5601 55th Avenue, Maspeth, New York, was inspected bythe Occupational Safety and Health Administration (hereinafter called OSHA) onDecember 19, 1975.??????????? On orabout December 31, 1975, the following Citations, together with Notice ofProposed Penalty, were issued against the Respondent:Citation #1,?Item #1, the nonserious violation ofstandard 29 CFR 1910.37(q)(2)….. Zero?Item #2, the nonserious violation ofstandard 29 CFR 1910.23(d)(1)(ii)….. $40?Citation #2,?Item #1, the repeated nonserious violationof standard 29 CFR 1903.2(a)….. $85?Citation #3,?Item #1, the repeated nonserious violationof Standard 29 CFR 1910.215(a)(1)….. $85???????????? On orabout January 14, 1976, the Respondent filed Notice of Contest to the Citationsand the penalties proposed therefor.??????????? Thepertinent words of the standards involved are:1910.37(q)(2): ?Any door . . . which isneither an exit . . . and which is so located . . . as to be likely to bemistaken for an exit, shall be identified by a sign reading ?Not an exit? orsimilar designation . . ..??1910.23(d)(1)(ii): ?Every flight of stairshaving four or more risers shall be equipped with standard stair railing . . ..On stairways less than 44 inches wide having one side open, at least one stairrailing on open side.??1903.2(a): No OSHA poster.?1910.215(a)(1): Abrasive wheel had noworkrest on left side; and the angular exposure of the grinding wheel peripheryon left side exceeded one-fourth of the periphery.?EVIDENCE??????????? TheRespondent normally employs about 80 persons and it buys and sells materials inother states. It had two prior Citations for nonserious violations . . . Tr.pp. 5, 19, 21.??????????? EfraimZoldan testified that he has been a Compliance Officer for OSHA for over threeyears. During that time he inspected about 20 knitting factories. He hadinspected and cited the Respondent for violations in April, 1976 (hereinaftercalled the April or First Inspection). The present inspection (hereinaftercalled the December or Second Inspection) was a follow-up to that FirstInspection . . . Tr. pp. 18?22, 70. The Respondent has 80 employees but he onlysaw about 30 working there . . . Tr. pp. 19, 50, 51. Concerning Citation #1,Item 1, Zoldan testified the two doors in question (one in the warehouse andone in the Shipping Department) were both locked, had spider webs and obviouslywere not being used but each had an exit sign which could be illuminated butwas not. Neither had a ?No exit? sign or anything similar . . . Tr. pp. 22, 79.If mistaken for an exit, the hazard was that a person might go to it and betrapped in a fire . . . Tr. pp. 33, 34. There were no arrows or signs in thevicinity pointing to an exit away from these doors. He did not see anythingthat looked like a change since his April, 1975 Inspection . . . Tr. pp. 42,48, 80. The people at the Respondent?s job-site were cooperative and courteousexcept for one employee who just walked away from him . . . Tr. pp. 48, 63, 68.After the April Inspection, the Respondent?s Vice-President Ross had said thetwo doors in question would be changed from ?Exit? doors, the ?Exit? signswould be removed, and two other doors would be so designated instead . . . Tr.pp. 23, 76, 77, 113.??????????? CarlRoss testified that he has been the Respondent?s Vice-President for 10 years.After the April Inspection, the Respondent had arrows and signs pointing toexits away from the doors in question. The doors in question had cobwebs andobviously were not exits . . . Tr. pp. 84, 85. He cannot say if the doors hadexit signs . . . Tr. pp. 85, 115, 117. After the April Inspection, theRespondent agreed that the two doors would not be used as exits and, in fact,they had not been so used, anyway . . . Tr. pp. 93?95.??????????? ConcerningCitation #1, Item #2, Zoldan testified there was no railing on the right sideof the stairway with five risers that were less than 44 inches wide. The hazardwas that a person who fell five steps could break a leg or sustain otherinjuries . . . Tr. pp. 25, 33.??????????? CarlRoss testified that the stairway, which leads into a truck well, is usedprimarily by truckmen. During the April Inspection there was no indication thata banister was necessary . . . Tr. pg. 86.??????????? ConcerningCitation #2, Item #1, Zoldan testified that in April, 1975, he had furnishedthe Respondent with an OSHA poster but it was not up anyplace at the time ofthe December Inspection. There were other posters of various kinds up indifferent places. He observed nothing that indicated any recent painting . . .Tr. pp. 26, 27, 107. A previous Citation for violation of 1903.2(a) had becomea final order against the Respondent before the present Citation . . . Tr. pg.27.??????????? CarlRoss testified that for 14 years the plant is cleaned and painted everyDecember by the Respondent?s employees. During the process, various signs mustbe taken down. Apparently some employee had taken the OSHA poster down and notreplaced it. As soon as the Respondent was aware of it, which was probablyright after the first of the year, it was immediately re-posted. There may ormay not have been other signs up but there would have been none up in the areabeing painted. In mid-December, the plant was practically closed for productionduring the clean-up period . . . Tr. pp. 82?84.??????????? IrwinLuxenberg testified that the Respondent?s plant was closed for several days inmid-December for painting. As soon as it was noticed that the OSHA poster hadnot been re-posted, he immediately replaced it sometime shortly after December19th . . . Tr. pp. 100, 102.??????????? ConcerningCitation #3, Zoldan testified that the exposure of the grinding wheel on theleft side of the bench grinder was 180 degrees . . . Tr. pp. 34, 53. A previousCitation for the same violation by the same machine had become a final orderbefore this inspection . . . Tr. pg. 29. If the wheel broke, pieces could flyout and injure an employee . . . Tr. pg. 34. A workrest is fixed to the machineand must be adjustable so the opening is not more than 1\/8th of an inch. Thewooden block here does not qualify as a workest. It cannot be adjusted and itis permanently fixed to the machine with nails and screws . . . Tr. pp. 27, 28,62?66, 72, 75. Exhibit R1 shows the bench grinder with two differences from itsappearance in the December Inspection: 1.) the exposure in Exhibit R1 is lessthan 90 degrees whereas in December it was 180 degrees; and 2.) the woodenblock in December was one inch in height whereas in Exhibit R1 another blockhas been added to make it three or four inches in height . . . Tr. pp. 62, 73,74. When the opening is more than 1\/8th of an inch, a finger or hand could gointo it and injure the employee . . . Tr. pp. 34, 65. The opening was at leastone inch . . . Tr. pg. 28.??????????? Rosstestified that the Compliance Officer would not tell him, specifically why thebench grinder was not all right . . . Tr. pp. 87, 88. Exhibit R1 shows themachine with some changes from the date of the December Inspection . . . Tr.pg. 73. the wooden block is a workrest . . . Tr. pp. 64, 119. The periphery ofthe wheel has to be exposed as much as it was in order to permit theRespondent?s working tools to get in . . . Tr. pg. 87. It would beimpracticable to have a much larger wheel so that sufficient exposure would notexceed 1\/4th of the periphery . . . Tr. pg. 87.THE INSPECTION??????????? Concerningthe inspection, Luxenberg testified that he has been the Respondent?s OfficeManager for 15 years. He had accompanied Compliance Officer Zoldan during theApril walk-around but was not present at the December Inspection. TheRespondent paid a penalty for the April violations involving the abrasive wheeland poster . . . Tr. pp. 6, 9?11, 27. (He also testified at some length aboutthe April Inspection but that is not an issue in this hearing . . . Tr. pp.97?99). The Respondent has an excellent reputation and has always cooperatedand tried to comply with regulations . . . Tr. pg. 101.??????????? ComplianceOfficer Zoldan testified that he presented his credentials, was accompanied onthe walk-around by the Respondent?s Vice-President Ross, and he went over theitems in detail with Ross and even took him to the various locations concernedand explained the lack of compliance . . . Tr. pp. 108?110. He was not deniedaccess to the plant and Luxenberg was not there on December 19th . . . Tr. pp.109, 110.DISCUSSION??????????? Asconcerns the December 19th Inspection, I find that the Compliance Officerpresented his credentials, was accompanied on the walk-around by theRespondent?s Vice-President, and the inspection was properly conducted.??????????? Asconcerns Item 1 of Citation #1, both sides agreed the doors in question werenot used as exits. The Compliance Officer was positive and emphatic in describingthe ?exit? signs on the doors whereas the Respondent?s witness, Ross, was notcertain whether they were still there but did acknowledge they had been on thedoors at some time. In that state of the evidence, it seems that a reasonableconclusion would be that the doors bore exit signs, and I so find.??????????? Thetestimony of the witnesses differed on the question of whether there werearrows and signs in the vicinity pointing to an exit away from these doors. Onthat point, while I believe the witnesses were all equally credible, it wouldseen that Mr. Ross? memory would be more reliable solely because he obviouslywould have been on the premises more, and more recently, than the ComplianceOfficer. I find that there were exit markings in the vicinity of the doorspointing away from them. However, that would not change the finding that thedoors in question themselves bore exit signs so that the doors were likely tobe mistaken for exits, and I so find.??????????? Asconcerns Item 2 of Citation #1, there was no contradiction of the ComplianceOfficer?s testimony about the stairway or its use. I find it did not complywith standard 1910.23(d)(1)(ii).??????????? Asconcerns Citation #2, there is no question that the Respondent did not have anOSHA poster in view on the date of the inspection. However, the Respondent?stestimony about the plant being practically closed during the yearly paintingand clean-up seemed very logical and credible; and it was indirectlycorroborated (to some extent, at least) by the Compliance Officer?s testimonythat he only saw 30 employees in the plant. The Respondent?s witnesses admittedthere was no OSHA poster up on the date of the inspection but said it hadalways been up and had been removed only temporarily during the clean-up, thatits absence was inadvertent, and it was replaced shortly after December 19th orshortly after the first of the year. I see no reason to disbelieve thattestimony. I find that the Respondent had substantially complied with its dutyto exhibit the OSHA posters.??????????? Asconcerns Citation #3, the Respondent did not really contradict the ComplianceOfficer?s testimony but merely took the position that the conditions describedhad to exist for its type of production; and that the Compliance Officer wouldnot specify why the bench grinder in question was not all right. I find that theexposure of the periphery of the grinding wheel in question exceeded 1\/4th ofthe periphery; and that the condition was hazardous in that, if the wheelbroke, pieces of it could fly out and injure employees.??????????? Ifind that the ?workrest? used by the Respondent was not adjustable, had anopening greater than 1\/8th of an inch, and was not the kind of workrestrequired by the standard. It was hazardous to an employee whose finger or handmight go into its opening.??????????? Whilethe evidence establishes a violation of 1910.215(a)(1), the evidence fallsshort of proving it was a ?repeated? violation. The Complainant has proven thatthe Respondent had not complied with the identical standard several monthsbefore. It was the identical machine, in fact. However, a repeated violation issomething more than merely a second violation. The Review Commission decisionin Secretary v. General Electric Co., 17 OSHRC 49, indicates that ?repeated?comprehends a violation occurring more than once in a manner which ?flaunts?the requirements of the act. The Third Circuit Court of Appeals case ofBethlehem Steel Corp. v. OSAHRC, Docket 75?2301, says: ?The mere occurrence ofa violation of a standard or regulation more than twice does not constitutethat flaunting necessary to be found . . .? for a repeated violation.??????????? Inthe instant case, I find that there was no evidence of conduct by theRespondent that would constitute ?flaunting? (i.e. flouting) of the Act. Infact, the Respondent had tried to correct the condition by attaching a woodenblock to the machine. Without subscribing completely to the reasoning expressedin either of the cases cited above, it is clear that the Complainant isrequired to show that the Respondent?s conduct is in such disregard of therequirements of the Act that it would constitute ?flaunting? of its provisions.In the instant case, that has not been shown. I find that the Respondent didnot comply with 1910.215(a)(1) but I find that the Complainant has notestablished that the non-compliance was a ?repeated? one.??????????? Onthe same point of ?repeated?, I also find that the second violation (beingidentical to the first and involving the identical machine) was a failure toabate rather than a repeated violation. The Compliance Officer testified thatthe second inspection was a ?follow-up? to see if conditions had been correctedafter the first inspection. He testified that on the second inspection themachine in question and the violation in question were identical with the firstinspection. In those circumstances, the violation would be a failure to abaterather than a ?repeated? offense.FINDINGS OF FACT??????????? Havingheard the testimony, observed the witnesses, and examined the exhibits, thefollowing Findings of Fact are made:??????????? 1. Atall times concerned, the Respondent regularly received, handled or worked withgoods which had moved across state lines.??????????? 2. Asconcerns Item #1 of Citation #1, the two doors in question were likely to bemistaken for exits and neither had any sign indicating it was not an exit.??????????? 3. Asconcerns Item #2 of Citation #1, the stairway in question had more than fourrisers, had one side open, was less than 44 inches wide, and had no railing onthe open side.??????????? 4. Asconcerns Item #1 of Citation #2, there was no OSHA poster posted on the date ofthe inspection because it had been removed during the annual December painting;it was replaced by the Respondent as soon as its absence was noted not morethan two weeks later. The Respondent had substantially complied with therequirement of posting it.??????????? 5. ConcernsItem #1 of Citation #3, the machine in question did not have a proper workreston the left side.??????????? 6. Asconcerns Item #1 of Citation #3, the machine in question had an angularexposure of the grinding wheel periphery in excess of 1\/4th of the periphery.??????????? 7.The conditions described in Item #1 of Citation #1 exposed the Respondent?semployees to sustaining harm because of the hazard of going to the wrong exitin the event of fire.??????????? 8.The conditions described in Item #2 of Citation #1 exposed the Respondent?semployees to sustaining harm because of the hazard of falling from thestairway.??????????? 9.The conditions described in Item #1 of Citation #3 exposed the Respondent?semployees to sustaining harm because of the hazard of the wheel breaking andflying pieces of it injuring the employee; and a finger or hand going throughthe improper workrest and being cut.??????????? 10.Although there had been two prior nonserious violations, the Respondent?sconduct did not amount to ?flaunting? the requirements of the Act.??????????? 11.One or more officers or supervisory personnel of the Respondent knew of thehazardous conditions described herein and knew that employees were exposed tosuch hazards.CONCLUSIONS OF LAW??????????? 1. Atall times concerned, the Respondent was an employer engaged in a businessaffecting commerce within the meaning of the Act; and the Occupational Safetyand Health Review Commission has jurisdiction over the subject matter and theparties.??????????? 2. Atall times concerned, the Respondent knew, or with the exercise of due diligenceshould have known, of the alleged violations??????????? 3. Onthe date in question, the Respondent was not in compliance with standards 29CFR 1910.37(q)(2); 1910.23(d)(1)(ii); and 1910.215(a)(1) and the Complainanthas sustained the burden of proving the Respondent violated sec. 5(a)(2) of theAct (Sec. 654).??????????? 4.The Complainant has not sustained the burden of proving the Respondent violatedstandard 1903.2(a) or committed a ?repeated? violation of standard1910.215(a)(1).ORDER??????????? Thewhole record having been considered, and due consideration having been given to29 U.S.C., sec. 666(j) it is ordered:??????????? 1.Items #1 and 2 of Citation #1 are affirmed and a penalty of $40 is assessed forItem #2.??????????? 2.Item #1 of Citation #3 is affirmed only as a nonserious violation but not as a?repeated? one; and a penalty of $35 is assessed therefor.??????????? 3.Citation #2, and the penalty proposed therefor, are vacated.So ORDERED.FOSTER FURCOLOJudge, OSHRCDated: November 22, 1976Boston, Massachusetts”