“Docket No. 79-5328 SECRETARY OF LABOR, Complainant, v.SPOT-BILT, INC., Respondent.OSHRC Docket No. 79-5328DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).Following an inspection of its Bangor, Maine sport shoe manufacturing plantby a compliance officer of the Occupational Safety and Health Administration, Spot-Bilt,Inc. was cited for allegedly violating three standards pertaining to safe exits.\u00a0 Thecitations alleged that Spot-Bilt locked and obstructed an exit door and removed the exitsign from the door.\u00a0 Administrative Law Judge Richard DeBenedetto concluded thatSpot-Bilt did not violate the standards and vacated the citations.\u00a0 We affirm thejudge’s disposition.Spot-Bilt’s plant consists of three building segments situated and connected like a\”U.\”\u00a0 In the center of the \”U\” is an open courtyard.\u00a0 Thedoor in question leads from the bottom of the \”U\” to the courtyard and is theonly door leading from the building to the courtyard.\u00a0 Around the outside of the\”U\” are nine other doors that provide egress from the plant.\u00a0 One of thesesouth exits is directly opposite the courtyard door.\u00a0 The courtyard door was oncemarked and maintained as an exit but, because Spot-Bilt found that employees were usingthe door for unauthorized egress during work hours and because of break-ins, Spot-Biltlocked the door permanently and removed the handle and exit sign.\u00a0 During theinspection, a lawn mower, some shoe carts, and sheets of plywood blocked the way to thedoor.The courtyard door is in a large room, referred to as the packing area, about100 feet in the north-south direction, and 120 feet in the east-west direction.\u00a0 Thesouth exit directly opposite the courtyard door is the only door in the room leadingdirectly outside the plant.\u00a0 The east and west walls of the packing area each havetwo door openings leading to adjacent rooms where other exits from the plant arelocated.[[1]]\u00a0 Thus, an employee seeking to leave the room in an emergency would havefive potential means of egress even with the courtyard door locked.\u00a0 Approximatelyten employees normally worked in the packing area.The citations alleged that the courtyard door failed to comply with 29 C.F.R.?? 1910.36(b)(4), 1910.37(k)(2), and 1910.37(q)(1). These standards provide:?1910.36 General requirements.(b) Fundamental requirements.(4) In every building or structure exits shall be so arranged and maintainedas to provide free and unobstructed egress from all parts of the building or structure atall times when it is occupied.\u00a0 No lock or fastening to prevent free escape from theinside of any building shall be installed except in mental, penal, or correctiveinstitutions where supervisory personnel is [sic] continually on duty and effectiveprovisions are made to remove occupants in case of fire or other emergency.? 1910.37 Means of egress, general. (k) Maintenance and workmanship.(2) Means of egress shall be continuously maintained free of all obstructions orimpediments to full instant use in the case of fire or other emergency(q) Exit marking.\u00a0 (1) Exits shall be marked by a readily visible sign.\u00a0Access to exits shall be marked by readily visible signs in all cases where the exitor way to reach it is not immediately visible to the occupants.IIThe Secretary argued to the judge that, because the courtyard door had once beenan exit, Spot-Bilt was required to maintain it as an exit in compliance with the citedstandards unless the company bricked or boarded up the door so as to entirely eliminateany question as to whether the door was or was not an exit.\u00a0 The Secretary relied onprevious cases in which the Commission found employers in violation of section1910.36(b)(4) by maintaining locked exit doors:\u00a0 Westinghouse Broadcasting Co.,80 OSAHRC 8\/A2, 7 BNA OSHC 2158, 1980 CCH OSHD ? 24,194 (No. 76-1036, 1980); Winn-DixieAtlanta, Inc., 78 OSAHRC 44\/A2, 6 BNA OSHC 1625, 1978 CCH OSHD ? 22,762 (No. 76-515,1978); Techno Products, Inc., d\/b\/a Techno Truck Manufacturing Co., 76OSAHRC 13\/D1, 3 BNA OSHC 2009, 1975-76 CCH OSHD ? 20,413 (No. 3624, 1976).\u00a0 TheSecretary argued that, under these cases, any door leading directly to the outside of abuilding is an exit door that must be maintained in accordance with the cited standards.\u00a0 The Secretary contended in particular that the second sentence of section1910.36(b)(4) is an \”absolute prohibition against the locking or fastening of a doorthat provides a means of egress from the inside of a building.\”Spot-Bilt argued to the judge that the company did not violate the citedstandards because the employees in the packing area had free egress through the south doorand the courtyard door was \”inoperative\” as an exit, not a locked exit as theSecretary maintained.\u00a0 Spot-Bilt contended that the cases on which the Secretaryrelied were not dispositive because, in those cases, the locked doors were the only doorsleading to the outside from the rooms in question and employees occasionally used thelocked doors during their work activities.\u00a0 Spot-Bilt emphasized that the citedstandards do not contain \”an absolute prohibition against all closing of formerexits,\” and do not \”require that an employer seeking to render an exitinoperable must rebuild a wall in order to achieve that purpose.\”\u00a0 JudgeDeBenedetto agreed with Spot-Bilt’s arguments and vacated the citation.IIIThe Secretary relies on several Commission precedents in alleging that the courtyard doorviolated section 1910.36(b)(4).\u00a0 In the earliest of the cases, Techno Truck,the Commission found that the employer violated the standard by locking a door leading tothe outside of the building, considering it irrelevant that employees had free andunobstructed egress from the building even with the one door locked.\u00a0 The Commissionheld that the second sentence of the standard, prohibiting any \”lock or fastening toprevent free escape from the inside of the building,\” creates a requirementindependent of the first sentence, which requires that exits be maintained so as toprovide free and unobstructed egress from all parts of the building at all times. \u00a0Subsequently, in Winn-Dixie and Westinghouse, the Commission relied on thisinterpretation in finding violations of the standard.We believe that the Commission’s interpretation of section 1910.36(b)(4) in TechnoTruck was erroneous.\u00a0 The purpose of the standards in section 1910.36 is toassure that workplaces have adequate exits in the event of a fire or other emergency.\u00a0 This purpose pervades the section.\u00a0 Thus, section 1910.36(b)(1) states, inpart:Every building or structure, new or old, designed for human occupancy shallbe provided with exits sufficient to permit the prompt escape of occupants in case of fireor other emergency.Section 1910.36(b)(2) provides:Every building or structure shall be constructed, arranged, equipped,maintained, and operated as to avoid undue danger to the lives and safety of its occupantsfrom fire, smoke, fuses, or resulting panic during the period of time reasonably necessaryfor escape from the building or structure in case of fire or other emergency.Section 1910.36(b)(3) states:Every building or structure shall be provided with exits of kinds, numbers,location, and capacity appropriate to the individual building or structure, with dueregard to the character of the occupancy, the number of persons exposed, the fireprotection available, and the height and type of construction of the building orstructure, to afford all occupants convenient facilities for escape.Section 1910.36(b)(8) requires:Every building or structure, section, or area thereof of such size,occupancy, and arrangements that the reasonable safety of numbers of occupants may beendangered by the blocking of any single means of egress due to fire or smoke, shall haveat least two means of egress remote from each other, so arranged as to minimize anypossibility that both may be blocked by any one fire or other emergency conditions.Section 1910.36(b)(4) also has as its purpose the provision of adequateemergency egress by requiring \”exits . . . arranged and maintained so as to providefree and unobstructed egress from all parts of the building or structure. . . . . \”Given this purpose, we do not read the second sentence as creating an independent duty toleave all doors unlocked if there is otherwise free and unobstructed egress from all partsof the building at all times.\u00a0 The second sentence of the standard cannot be read inisolation.\u00a0 The purpose of the sentence is to create an exception to the requirementof \”free\” egress or escape set forth in the first sentence.\u00a0 That exceptionrefers to buildings such as penal institutions in which it is the common practice to lock alldoors leading to the outside. Clearly, section 1910.36(b)(4) precludes an employer fromlocking all of the doors leading to the outside of a building, but it does not logicallyfollow that the standard precludes the locking of a single door when other means of egressare readily available. Accordingly, we overrule Techno Truck, Winn-Dixie,and Westinghouse to the extent they hold that section 1910.36(b)(4) is violatedwhenever a door leading to the outside of a building is locked.\u00a0 Instead, weinterpret the standard to require the Secretary to prove that the locked door deprivesemployees of free and unobstructed egress from the areas of the building or structure inwhich they work in order to establish a violation.In this case, in addition to the south exit, there were means of egress ateach of the four corners of the packing room.\u00a0 It is difficult to envision any typeof emergency in which employees would not be able to use one of the five doors leadingfrom the packing room as a means of egress.\u00a0 Certainly, the Secretary did not proveotherwise.\u00a0 Accordingly, the Secretary failed to prove that Spot-Bilt’s locking ofthe south door deprived employees of free and unobstructed egress from all parts of thepacking room and therefore he did not show that Spot-Bilt violated section 1910.36(b)(4).IV We also conclude that Spot-Bilt did not violate sections 1910.37(k)(2) and1910.37(q).\u00a0 These charges were based on Spot-Bilt’s removal of the \”Exit\”sign from above the north door and its obstruction of the door with various materials.\u00a0 However, the reason Spot-Bilt took these actions was to eliminate the door’sidentity as an exit.\u00a0 The basis of the Secretary’s charges is not that Spot-Biltobstructed the door and removed the sign but that the company did not go further and brickor board up the door.\u00a0 We agree with the judge that an employer is not required tobrick or board up a door in order to discontinue it as an exit.\u00a0 In this case,Spot-Bilt took adequate steps to eliminate the use of the door for any purpose andtherefore did not violate sections 1910.37(k)(2) and 1910.37(q).The judge’s decision is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 JUN 20 1984CLEARY, Commissioner, dissenting:The majority, having examined a diagram of Spot-Bilt’s plant, finds thatpersons who may be in the packing room when a fire or other emergency occurs have numerouspossible means of egress available and it therefore does not matter that one of the doorsleading to the outside of the plant was locked and partly obstructed.\u00a0 Unfortunately,if an emergency arises, the persons whose lives my be endangered will not have the leisureto examine diagrams, but will have to make a rapid decision on how to exit the plant.Should they attempt to exit through the door that is locked, the time they waste may meanthe difference between life and death.\u00a0 To avoid such danger, the Secretary’sstandards recognize that a building must not only have an adequate number of exits, butthat these must be unambiguously identifiable and accessible.\u00a0 In this case,Spot-Bilt violated those standards by locking and obstructing the courtyard door in thepacking room.Spot-Bilt’s packing room had a real need for adequate fire exits.\u00a0 Cansof flammable liquids were stored throughout the room.\u00a0 The flammable liquids wereused in the room for spray painting and for cleaning residues from the shoes Spot-Biltmanufactured. Despite the presence of \”No Smoking\” signs, the OSHA complianceofficer who inspected the plant observed employees smoking. He also observed improperelectrical wiring that could serve as an ignition source.\u00a0 The compliance officerconsidered the room to be a high fire hazard area, and the record supports thatevaluation.According to both the compliance officer and Spot-Bilts superintendent, atthe time of the inspection there was only one operative exit door from the packing room –the south door.\u00a0 The north door leading to the courtyard had once been marked andmaintained as an exit, but Spot-Bilt removed the \”Exit\” sign and locked thedoor, primarily to prevent employees from leaving the building without authorizationduring working hours.\u00a0 The door was also partially obstructed by shoe carts and othermaterials.\u00a0 However, photographic exhibits show that the obstructions did not coverthe top half of the door, which contained a window.\u00a0 The presence of the windowindicated that the door led to the outside.\u00a0 Therefore, in an emergency, people mightwell have attempted to leave the building through the door.\u00a0 As the complianceofficer stated, \”In an emergency, if the lights were off . . . people would go forthe light, the light on the doorway, and they wouldn’t be able to make it out thedoorway.\”The majority reasons that there were at least five ways in which a personcould escape the packing room in an emergency.\u00a0 But four of these, the doors that ledto adjacent rooms instead of directly to the outside, were not marked as exits, and evenSpot-Bilt’s superintendent did not consider them to be exits.\u00a0 Thus, there is noreason to conclude that these doors provided free and unobstructed egress from the plant.\u00a0Indeed, two of the doors lead to a room which contained aisleways totally obstructedwith shoe carts.\u00a0 Had employees tried to escape through those two doors, they wouldhave found their way blocked and lost precious time.\u00a0 Of course, it is possible thatall employees could have found a safe way out of the packing room in an emergency, but itis unreasonable to interpret the standards in such a way that employees’ lives depend ontheir ability to guess correctly.In prior decisions, the Commission has interpreted the fire exit standards soas to eliminate the need for guesswork in an emergency. Westinghouse Broadcasting Co.,80 OSAHRC 8\/A2, 7 BNA OSHC 2158, 1980 CCH OSHD ? 24,194 (No. 76-1036, 1980); Winn-DixieAtlanta, Inc., 78 OSAHRC 44\/A2, 6 BNA OSHC 1625, 1978 CCH OSHD ? 22,762 (No. 76-515,1978); Techno Products, Inc., 76 OSAHRC 13\/D1, 3 BNA OSHC 2009, 1975-76 CCHOSHD ? 20,413 (No. 3624, 1976).\u00a0 The majority now overrules those decisions andpermits employers to lock and obstruct exit doors as long as there is some way for personsto get out of the plant in an emergency.Essentially, what the majority has done is to take a standard requiring thatthere should be sufficient exits from a building in the event of fire, and that none ofthe exit doors should be locked, and convert it into a standard which says there should bea sufficient number of exits from a building in the event of fire.\u00a0 If the Secretary,as administrator of this statute had chosen to rewrite the standard in this fashion, it iswithin his province to do so, but it is not within the discretion of this Commission tosimply revise a regulation of the Secretary of Labor to delete certain mandates whichCommissioners do not agree with.\u00a0 It is not possible to read the last provision ofthis standard to simply create an exception for mental or penal institutions as themajority suggests.\u00a0 [[1]]\u00a0 The standard says \”No lock or fastening toprevent free escape from the inside of any building shall be installed . ..\” [emphasis supplied].\u00a0 The exception for mental and penal institutions thenfollows this phrase.\u00a0 The majority interprets this exception to negate the entirerule.\u00a0 In my opinion, the standard prohibits locked doors for the obvious reason thata locked door is dangerous in the event of a fire because it could, at a minimum, causeemployees to waste valuable time in attempting to exit through it.\u00a0 This plain importof the standard is distorted by the majority to conclude that only the requirement thatthere should be sufficient exits is to have any effect.The majority concludes in support of its position that ? 1910.36 has as itsprincipal purpose the assurance of adequate exits in the event of fire.\u00a0 They thenrecite certain provisions of ? 1910.36.\u00a0 However, the regulations governing egressfrom buildings in the event of fire encompass all of Subpart E of Part 1910 including ??1910.35 through 40, and the Subpart is not confined to the number of exits, but also thedesign of exits, the kinds of exits, and the capacity appropriate to the individualbuilding (?? 1910.36(b)(i)(ii) and (iii), ? 1910.37).\u00a0 The volume of the standardsalone indicates at a glance that the provisions do not stop at enumerating a safe numberof exits.The Judge in the case and the majority agree that an employer is not requiredto brick or board up a door in order to discontinue it as an exit.\u00a0 They furtherconclude that Spot-Bilt took adequate steps to eliminate the use of the door for anypurpose, and therefore did not violate ?? 1910.37(k)(ii) and 1910.37(q).\u00a0 Contraryto the Secretary’s position, I agree that the Respondent is not required to brick or boardup the door.\u00a0 However, I do not believe that Spot-Bilt adequately eliminated thedoor’s identity as an exit.\u00a0 Section 1910.37(q)(ii) statesAny door, passage, or stairway which is neither an exit nor a way of exitaccess, and which is so located or arranged as to be likely to be mistaken for an exit,shall be identified by a sign reading \”Not An Exit,\” or similar designation, orshall be identified by a sign indicating its actual character, such as \”ToBasement,\” \”Store Room,\” \”Linen Closet,\” or the like.From the preceding, it is apparent that Subpart E provides a clearlydiscernible scheme as to when doors should be locked and unlocked, and how they should bemarked.\u00a0 The whole Subpart is part of a program for protection of occupants ofbuildings in the eventuality of fire developed by the National Fire ProtectionAssociation.\u00a0 The program evolved undoubtedly after years of study and experience,and is not to be avoided by the simple expedient of locking a door and piling materials infront of it, nor can the standard blithely be read to mean only that a building isprotected against fire if a certain number of exits are provided.I would reaffirm the Commission’s prior decisions interpreting the fire exitstandards and would find that Spot-Bilt violated the cited standards as alleged.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1]] A diagram of the physical layout of the plant was introduced intoevidence as Exhibit C-1.\u00a0 The parties agreed that the exhibit accurately showed thelayout of the plant, although there was some uncertainty as to whether its scale wasentirely correct.\u00a0 Exhibit C-1 shows four door openings from the packing room intoadjacent rooms, and also shows exits to the outside from these adjacent rooms.\u00a0 Thefour door openings are located near the northeast, northwest, southeast, and southwestcorners of the packing room.[[1]] The National Fire Protection Association 101-1970 Life Safety Code isidentified in ? 1910.39 as the source of the Secretary’s standards in Subpart E of Part1910.\u00a0 Section 5-2131 of this document provides\”An exit door shall be so arranged as to be readily opened from the sidefrom which egress is to be made at all tines when the building served thereby is occupied.\u00a0 Locks, if provided, shall not require the use of a key for operation from theinside of the building.\”It is apparent that the provision prohibiting the locking of doors was notsimply an afterthought to refer to penal institutions.”