RICARDO CORREA, JR., d/b/a RICARDO'S MEXICAN ENTERPRISES OF OMAHA
OSHRC Docket No. 2272
Occupational Safety and Health Review Commission
April 2, 1976
� [*1] �
Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners. �
COUNSEL:
T. A. Housh, Jr. Regional Solicitor, USDOL
Martin A. Cannon, for the employer
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: A March 14, 1974, decision of Review Commission Judge Vernon Riehl (attached hereto as Appendix A) is before this Commission for review pursuant to 29 U.S.C. � � 661(i). � That decision is affirmed except insofar as it finds respondent liable for violations of the Occupational Safety and Health Act of 1970 n1 for failure to abate prior violations of the Act for noncompliance with the requirements of three safety standards codified at 29 C.F.R. � � 1910.263(e)(1) and one codified at 29 C.F.R. � � 1910.23(c)(3). � For the reasons hereinafter given, we reverse such findings.
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n1 29 U.S.C. � � � 651, et. seq.
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Respondent is engaged in the production of Mexican food in Omaha, Nebraska. � He was initially cited for violating the Act following a plantsite inspection. The inspection was conducted on the day after a young employee was fatally injured � [*2] � by a piece of machinery at respondent's plant known at a "masa feeder." The citation, which issued on December 6, 1972, alleged that respondent has violated the Act by failing to comply with the requirements of several occupational safety and health standards, including those stated above. � That citation was not contested and became a final order of the Commission by operation of law. � 29 U.S.C. � � 659(a). � Thereafter, on the basis of a second inspection of respondent's worksite, complainant issued the notification of failure to abate n2 which is at issue here.
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n2 The statutory provisions regarding notifications of failure to abate known violations of the Act appear in 29 U.S.C. � � 659(b).
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Each allegation of failure to abate must be judged by the criteria established in Secretary v. York Metal Finishing Co., 7 OSAHRC 845 (1974), which was decided subsequent to Judge Riehl's decision in this case. � Therein we held that complainant could establish a prima facie case of failure to abate only by showing, inter � [*3] � alia, that
(1) the original citation has become a final order of the Commission, and
(2) the condition or hazard found upon reinspection is the identical one for which respondent was originally cited.
We also held that an employer may rebut a prima facie case by showing
(1) abatement of the hazardous condition by prevention of employee exposure or correction of the physical condition; or
(2) the condition for which respondent was originally cited was in fact nonviolative of the Act even though the original citation has become a final order of the Commission by operation of law.
The safety standard in � � 1910.263(e)(1) applies only to "horizontal dough mixers." Respondent contends that since the masa feeder is not a mixer at all, it cannot be charged with a violation of the Act based upon noncompliance with that standard. � Respondent submitted the following testimony of a well-qualified expert in support of that contention:
"Q. � . . . Is it a mixer, sir?
A. � Definitely not.
Q. � What is a mixer?
A. � A mixer would be a vehicle, or a machine, that is used to combine two or more elements using a liquid base that you bring them together. � And the function of this particular � [*4] � machine is strictly a press, a die, a feeder, which is the name of the machine, a Masa Feeder, into the quad head which shapes the tortillas prior to going onto a conveyor belt for baking purposes.
I was going to point out that in fact it is not necessary for the presses of the Masa Feeder to run in order to run this particular operation. � It can actually be fed by hand. � Its only function is to serve as a convenience and efficiency measure so that the operator can throw in a bowl of the tortilla mix and walk away for fifteen, twenty, minutes instead of having to stand there and every two minutes feed a ball of the tortilla mix into the quad head.
So in that respect if it were a mixer this operation could be replaced but it can, in fact, be done by hand.
* * *
Q. � What difference is there between the dough that is put into the Masa Feeder and the dough that comes out of its extruder?
A. � There is no difference whatsoever in its composition."
The expert witness testified that the feeder has no agitator as a mixer does and that the blades of a feeder revolve at a much slower rate than that of a mixer. The blades of the feeder serve only to scrape the masa off the sides of the � [*5] � container and to funnel the dough toward the extruder. � They do not stir the dough in any way, and would ruin the dough if they did.
Respondent submitted much corroborating evidence that the feeder cannot be classified as a mixer and that it does not fulfill the functions of a mixer. n3 In contrast, complainant's witnesses who testified that the feeder was a mixer had never seen a machine like the feeder before, had never seen the machine in operation, and showed no basis for classifying the feeder as a "mixer." We therefore find that the condition for which respondent was originally cited was not a violation of the Act as charged. � Secretary v. York Metal Finishing Co., supra.
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n3 We also note that respondent's evidence that the masa feeder cannot be classified as a mixer is corroborated by the occupational standards for mixers, which indicate that mixers have mixing bowls (� � 1910.263(e)(1)(iv) and (vi) and � � 1910.263(e)(2)(iii)) and agitators (� � 1910.263(e)(1)(v) and (e)(2)(v)), and are provided with several ingredient openings (� � 1910.263(e)(1)(vii)).
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The � � 1910.23(c)(3) n4 charge in the original citation was based on the fact that a footstool was placed near the masa feeder. At the time of the reinspection, however, the footstool had been replaced by a short ladder. We think that this charge must be vacated because a footstool or a ladder cannot be considered to be an open-sided floor, walkway, platform, or runway, which are the only items to which the standard pertains. � Moreover, even if � � 1910.23(c)(3) did apply to either item, complainant failed to establish a prima facie case as defined in York Metal. Since the footstool was replaced by a ladder, the condition obviously was not the same upon reinspection. � Finally, we find that the use of the ladder constitutes abatement because 29 C.F.R. � � 1910.28(a)(1) permits a person to use a ladder to perform work that cannot be accomplished from ground level.
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n4 That standard provides as follows: Regardless of height, open-sided floors, walkways, platforms, or runways above and adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard railing and toe board.
� [*7] �
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The notification of failure to correct and the penalties assessed therefor are vacated. � The remaining findings of the Judge are affirmed. �
CONCURBY: BARNAKO
CONCUR:
BARNAKO, Chairman, concurring.
I concur in the disposition for the following reasons. � The evidence is that the "masa feeder" is not a mixer within the meaning of the cited standard, and this interpretation is supported by the referenced standards noted in footnote 3 of the lead opinion. � As for the 1910.23(c)(4) allegation I concur because Respondent had abated at the time of reinspection; the evidence shows compliance with 29 C.F.R. 1910.28(a)(1). � In any event, literal compliance with the standard originally cited would have required a standard railing on a footstool, a situation bordering on the absurd.
I do not join in attaching the Judge's report as an appendix. �
DISSENTBY: CLEARY
DISSENT:
CLEARY, Commissioner, DISSENTING:
The majority misapplies our decision in York Metal Finishing Co., 7 OSAHRC 845, BNA 1 OSHC 1655, CCH OSHD para. 17,633 (1974).
In this case, an employee of respondent was killed when he became somehow enmeshed in the blades of a machine called � [*8] � the "masa feeder." As a consequence, a citation alleging violations of the Act was issued by the Secretary and not contested by respondent. � Thus, the citation became a final order of the Commission by operation of law. � Section 10(a); 29 U.S.C. � � 659(a). � Subsequent to the scheduled abatement date, respondent's plant was re-inspected. � Upon discovering that conditions with respect to the masa feeder, as well as other cited items, were identical to those for which respondent was originally cited, the Secretary issued the notice of failure to abate that is now before us.
This Commission in York Metal Finishing Co., supra held that
[w]here . . . there is no contest of the original citation and there is a re-inspection subsequent to the scheduled abatement date, the Secretary's prima facie case of failure to abate is made upon showing that: (1) the original citation has become a final order of the Commission, and (2) the condition or hazard found upon re-inspection is the identical one for which respondent was originally cited (emphasis added).
The Commission went on to state that the Secretary's case may be rebutted "by a showing of actual abatement of the hazardous [*9] � condition by prevention of employee exposure or correction of the physical condition" (emphasis added). � In Franklin Lumber Co., Inc., 9 OSAHRC, BNA 2 OSHC 1077, CCH OSHD para. 18,206 (1974), we held as follows:
A Respondent may defend in a failure to abate proceeding on the ground that the condition for which it was originally cited was in fact nonviolative of the Act at the time of the original inspection or at the reinspection. � Such a defense is cognizable where the original citation has become a final order of the Commission by operation of law (emphasis added).
Note that our references throughout both York and Franklin are to the condition or hazard and not to the "violation as charged" (emphasis added). � What we held, therefore, was that a respondent can affirmatively defend against a charge of failure to abate by showing that "the condition . . . was in fact nonviolative of the Act" (emphasis added) - not, as the majority in this case has found, that the condition was "not a violation of the Act as Charged" (emphasis added).
On the record before us, the Secretary has sustained his burden of establishing respondent's [*10] � failure to abate under the criteria set forth in York. Respondent, on the other hand, has neither rebutted the Secretary's case nor shown by a preponderance of the evidence n5 that the condition for which it was originally cited was in fact nonviolative of the Act. � Granted respondent has demonstrated that it was probably cited under the wrong standard, but to elevate this error in form over the substance of the situation - permitting a hazardous condition to continue unabated - is hardly consistent with the Act's purpose "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." n6
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n5 A preponderance of the evidence is the standard of proof in Commission cases. � Olin Constr. Co., Inc. v. O.S.H.R.C. and Brennan, 525 F.2d 464 (2d Cir. 1975). Armor Elevator Co., Inc., 5 OSAHRC 260, BNA 1 OSHC 1409, CCH OSHC para. 16,958 (1973).
n6 Section 2(b) of the Act; 29 U.S.C. � � 651(b).
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It is well settled that "administrative pleadings are very liberally construed [*11] � and very easily amended." National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1264 (D.C. Cir. 1973) (footnotes omitted). � This principle is particularly applicable to the amendment of pleadings to conform to the evidence presented as delineated in Rule 15(b) of the Federal Rules of Civil Procedure. n7 See Consolidated Edison v. N.L.R.B., 305 U.S. 197, 225 (1938); N.L.R.B. v. Mackay Radio & Tel. Co., 304 U.S. 333, 350 (1938); American Boiler Mfrs. Assn'n v. N.L.R.B., 366 F.2d 815, 821 (8th Cir. 1966).
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n7 The Federal Rules of Civil Procedure govern Commission proceedings. � See section 12(g) of the Act and rule 2(b) of the Commission's Rules of Procedure. � Rule 15(b), in pertinent part, provides:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. � Such an amendment of the plendings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues.
Fed. R. Civ. P. 15(b)
� [*12] �
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Rule 15(b), as applicable here, gives us the authority to amend the pleadings to conform to the evidence on our own motion. � Not only does an adjudicative body have the right to amend the pleadings on its own motion, it has an affirmative duty to consider issues raised by the evidence, even if not specifically pleaded. � American Boiler Mfrs. Ass'n v. N.S.R.B., supra; Michigan Consol. Gas Co. v. FPC, 283 F.2d 204, 224 (D.C. Cir. 1960); Underwriters Salvage Co. v. Davis & Shaw Furn. Co., 198 F.2d 450, 453 (10th Cir. 1952).
The Commission has employed the authority granted in Rule 15(b) on many occasions to conform the pleadings to the evidence presented, see, e.g., Park Constr. Co., 17 OSAHRC 343, BNA 3 OSHC 1120, CCH OSHD para. 19,591 (1975); Gerstner Electric, Inc., 10 OSAHRC 441, BNA 2 OSHC 1130, CCH OSHD para. 18,406 (1974); Advance Air Conditioning, Inc., 7 OSAHRC 736, BNA 1 OSHC 1626, CCH OSHD para. 17,585 (1974), and in Godwin-Bevers Co., Inc., 14 OSAHRC 723, BNA 2 OSHC 1470, CCH OSHD para. 19,206 (1975) (Cleary, Commissioner, dissenting), the five factors [*13] � to be considered before making such an amendment were set out. � While in the typical case all five criteria are important, the propriety for an amendment in this case hinges upon the resolution of the first three of those factors plus one additional factor that should be considered in a failure to abate case. � The factors to be considered are as follows: (1) whether the underlying facts upon which a violation is alleged are the same; (2) whether the parties expressly or impliedly consented to the trial of the amended issue; (3) whether respondent has had a chance to raise all relevant defenses to the amended pleading; and (4) whether satisfying the abatement requirements of the original pleading would have been sufficient to meet the abatement requirements under the amended pleading.
In my view the record in this case, after examining it against the four factors just listed, establishes that respondent should have been cited originally under the standard at 29 CFR � � 1910.212(a)(1). n8 Moreover, under the Administrative Procedure Act, n9 an agency may find that the respondent's conduct violates a different provision of law than that specified in the complaint as long as the underlying [*14] � facts have been alleged in the complaint and the shift in legal theory does not prejudice respondent. � N.L.R.B. v. Majestic Weaving Co., 355 F.2d 854, 861-2 (2d Cir. 1966); N.L.R.B. v. Pecheur Lozenge Co., 209 F.2d 393, 402 (2d Cir. 1953), cert. denied, 347 U.S. 953 (1954). Amending the pleadings to conform to the evidence presented in the case would in no way prejudice respondent. � The employer certainly was aware of the nature of the hazardous condition and what was required to abate it. � Indeed, item 4 of the original citation, as amended, reads, in pertinent part, as follows:
(The Processing or Production Area - The "Masa Feeder") The dough mixer was not equipped with an enclosure over the bowl which permits only minor openings when the agitator is in motion.
Had the original citation been contested, heard, and reviewed by us on a record substantially the same as that complied in the failure to abate hearing, the error of form now before us would have been cured by an amendment under Rule 15(b). � Had that been the case, my colleagues, I am confident, would have had little problem finding that respondent failed to abate the condition. � The fact, however, that [*15] � a situation ripe for amendment confronts us at this stage rather than after a hearing on the original citation should not and, in fact, does not alter our obligation to so amend. � In a York-type case, when a respondent puts forth its affirmative defense, our primary concern is not with the form of the charge, but whether the originally cited condition was actually violative of the Act and, if it is, whether the hazardous condition continues unabated. � Unfortunately for those employees of respondent still exposed to the hazards of the "masa feeder," my colleagues do not make this important distinction.
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n8 The standard provides in pertinent part, as follows:
� � 1910.212 General requirements for all machines
(a) Machine guarding - (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.
n9 Rule 72 of the Commission's Rules of Procedure provides in part that "[h]earings before the Commission and its Judge's shall be in accordance with � � 554 of Title 5 U.S.C. . . ." (the Administrative Procedure Act).
� [*16] �
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I also disagree with the majority's disposition of the failure to abate allegation with respect to the standard at 29 CFR � � 1910.23(c)(3). n10 While a footstool may not be a floor, walkway, or runway, it is a platform within the meaning of the standard. � Replacing the footstool with a small ladder is certainly not abatement and, in fact, does not alter the hazardous condition. � It is replacing one unguarded platform with another. � Moreover, to find that the use of a small ladder constitutes abatement in this case because such is permitted under the standard at 29 CFR � � 1910.28(a)(1) is to ignore completely the fundamental difference between the type of hazard contemplated by the standard at issue, 29 CFR � � 1910.23(c)(3), and that contemplated by the standard at � � 1910.28(a)(1). � The hazard here, correctly cited under the standard at 29 CFR � � 1910.23(c)(3), is that of falling from an unguarded platform, regardless of height, into an adjacent piece of dangerous equipment. � The standard at 29 CFR � � 1910.28(a)(1) requires an employer to furnish either a standard scaffold or ladder when his employees are � [*17] � engaged "in work that cannot be done safely from the ground or from solid construction." The typical case under this latter standard finds employees working at dangerous heights on hazardous surfaces. � See, e.g., Allis-Chalmers Corp., 20 OSAHRC 546, BNA 3 OSHC 1629, CCH OSHD para. 20,065 (1975); Bethlehem Steel Corp., 16 OSAHRC 527, BNA 2 OSHC 1732, CCH OSHD para. 19,482 (1975); Daniel Constr. Co., 10 OSAHRC 531, BNA 2 OSHC 1145, CCH OSHD para. 18,407 (1974). � Since the standards obviously contemplate two distinct hazards, providing a ladder as permitted under the standard at 29 CFR � � 1910.28(a)(1) simply does not constitute abatement for a condition cited under the standard at 29 CFR � � 1910.23(c)(3).
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n10 See note 4 supra.
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APPENDIX A
DECISION AND ORDER
JOHN WEISS AND DONALD R. MC COY, Office of the Solicitor, U.S. Department of Labor
MARTIN A. CANNON, for the Respondent
Hearing was held May 16 and 17, 1973, at Omaha, Nebraska, Judge Vernon Riehl presiding.
STATEMENT OF CASE
Vernon [*18] � Rienl, Judge, OSAHRC
This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970, (29 USC 651 et seq., hereinafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. � The Citation alleges that an inspection of the workplace under the ownership, operation, and control of the Respondent reveals the existence or workplace conditions that violate Section 5(a)(2) of the Act for the reason that these conditions fail to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The Citation alleges that the violation results from a failure to comply with standards promulgated by publication in the Federal Register.
A description of alleged violations contained in said Citation states:
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CITATION NUMBER 1 FOR NONSERIOUS VIOLATION |
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alleged |
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regulation |
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violation |
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must be |
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corrected |
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29 CFR 1904.2, |
(Throughout the work.) The employer |
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which is from 36 |
does not maintain the Occupational |
Upon Receipt |
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FR, page 12612, |
Safety and Health Administration |
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July 2, 1971, |
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29 CFR 1904.4, |
(Throughout the work.) The employer |
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which is from 36 |
does not maintain the Occupational |
Upon Receipt |
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FR, page 12612 |
Safety and Health Administration |
Of This |
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July 2, 1971 |
Form, OSHA #101. |
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3 |
29 CFR 1903.2(a). |
(Throughout the work.) The employer |
Immediately |
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which is from 36 |
failed to post the Occupational |
Upon Receipt |
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FR, page 17850 |
Safety and Health Administration, |
Of This |
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Sept. 4, 1971 |
U.S. Dept. of Labor notice inform- |
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ing employees of the protections |
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and obligations provided for in the |
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Act. |
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� [*19] �
The alleged violations in this citation were cited from the Federal Register, page 12612, July 2, 1971; and page 17850, Sept. 4, 1971.
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CITATION NUMBER 1 FOR SERIOUS VIOLATION |
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corrected |
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29 CFR 1910.263(e)(1)(vii), |
(The Processing or Production Area -- |
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page 10681, Column 3. |
The "Masa Feeder") The ingredient |
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opening on the Mixer is not located as |
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to be conveniently manipulated by the |
Immediately |
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operator without requiring abnormal |
Upon Receipt |
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reaching or improvisation which might |
Of This |
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jeopardize his safety. |
Citation. |
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29 CFR 1910.263(e)(1)(iii), |
(The Processing or Production Area -- |
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page 10681, Column 2. |
The "Masa Feeder") The dough mixer |
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was not equipped with a conveniently |
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located manual switch to prevent the |
Immediately |
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mixer from being started in the usual |
Upon Receipt |
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manner while the machine is being |
Of This |
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serviced or cleaned. |
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29 CFR 1910.263(e)(1)(vii), |
(The Processing or Production Area -- |
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page 10681, Column 3. |
The "Masa Feeder") The dough mixer was |
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not equipped with an enclosure over |
Immediately |
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the bowl which permits only minor |
Upon Receipt |
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openings when the agitator is in |
Of This |
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motion. |
Citation |
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29 CFR 1910.263(a)(2), |
(Throughout the Worksite.) "Do Not |
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page 10679, Column 3, |
Start" tags are not placed in con- |
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29 CFR 1910.145(f)(3)(iii), |
spicuous locations or placed in a |
Immediately |
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page 10600, Column 3. |
manner that effectively blocks the |
Upon Receipt |
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starting mechanism on equipment which |
Of This |
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creates a hazardous condition should |
Of This |
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the equipment be energized. |
Citation |
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29 CFR 1910.263(a)(2), |
(The Portable Stool -- Near the "Masa |
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page 10679, Column 3, |
Feeder") The portable step stool |
Immediately |
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which refers to |
located adjacent to the dough-mixer |
Upon Receipt |
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29 CFR 1910.23(c)(3), |
is not guarded with a standard |
Of This |
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page 10473, Column 3. |
railing. |
Citation |
� [*20] �
The alleged violations in this citation for serious violation were cited from the Federal Register, dated May 29, 1971, Volume 36, Number 105, Part II.
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AMENDED CITATION, NUMBER 1, FOR NONSERIOUS VIOLATION |
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violation |
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allegedly |
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violated |
Description of alleged violation |
corrected |
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1 |
29 CFR 1904.2, which |
(Throughout the work.) The employer |
Immediately |
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is from 36 FR, page |
does not maintain the Occupational |
Upon Receipt |
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12612, July 2, 1971 |
Safety and Health Administration |
Of This |
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Form, OSHA #100. |
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2 |
29 CFR 1904.4, which |
(Throughout the work.) The employer |
Immediately |
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is from 36 FR, page |
does not maintain the Occupational |
Upon Receipt |
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12612, July 2, 1971 |
Safety and Health Administration |
Of This |
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Form, OSHA #101. |
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3 |
29 CFR 1903.2(a), |
(Throughout the work.) The employer |
Immediately |
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which is from |
failed to post the Occupational |
Upon Receipt |
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36 FR, page 17850 |
Safety and Health Administration, |
Of This |
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Sept. 4, 1971 |
U.S. Dept. of Labor notice inform- |
Citation |
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ing employees of the protections |
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and obligations provided for in the |
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Act. |
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The above alleged violations in this citation |
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were cited from the Federal Register, |
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page 12612, July 2, 1971, and page 17850, Sept. 4, 1971. |
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4 |
29 CFR 1910.263(e) |
(The Processing or Production Area -- |
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(1)(vii), page |
The "Masa Feeder") The ingredient |
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10681, Column 3. |
opening on the Mixer is not located as |
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to be conveniently manipulated by the |
Immediately |
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operator without requiring |
Upon Receipt |
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reaching or improvisation which might |
Of This |
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jeopardize his safety. |
Citation. |
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29 CFR 1910.263(e) |
(The Processing or Production Area -- |
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(1)(iii), page |
The "Masa Feeder") The dough mixer |
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10681, Column 2. |
was not equipped with a conveniently |
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located manual switch to prevent the |
Immediately |
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mixer from being started in the usual |
Upon Receipt |
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manner while the machine is being |
Of This |
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serviced or cleaned. |
Citation. |
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29 CFR 1910.263(e) |
(The Processing or Production Area -- |
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(1)(vii), page |
The "Masa Feeder") The dough mixer |
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10681, Column 3. |
was not equipped with an enclosure |
Immediately |
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over the bowl which permits only minor |
Upon Receipt |
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openings when the agitator is in |
Of This |
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motion. |
Citation |
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29 CFR 1910.263(a) |
(Throughout the Worksite.) |
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(2), page 10679. |
"Do Not Start" tags are not placed |
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Column 3 which |
in a manner that effectively blocks |
Immediately |
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refers to 29 CFR |
the starting mechanism on equipment |
Upon Receipt |
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1910.145(f)(3) |
which creates a hazardous condition |
Of This |
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(iii), page 10600, |
should the equipment be energized. |
Citation |
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Column 3. |
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29 CFR 1910.263(a) |
(The Portable Stool -- Near the "Masa |
Immediately |
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(2), page 10679 |
Feeder") The portable step stool |
Upon Receipt |
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Column 3, which |
located adjacent to the dough-mixer |
Of This |
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refers to 29 CFR |
is not guarded with a standard |
Citation. |
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1910.23(c)(3), page |
railing. |
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10473, Column 3. |
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� [*21] �
The alleged violations in Item #4 were cited from the Federal Register, dated May 29, 1971, Volume 36, Number 105, Part II.
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Date on |
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which |
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Standard or |
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alleged |
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regulation |
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violation |
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Item |
allegedly |
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must be |
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number |
violated |
Description of alleged violation |
corrected |
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1 |
29 CFR 1910.22(c) |
(Toco Fryer Room.) The floor |
February |
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Page 22108, Column 2 |
drain cover is missing on the |
16, 1973 |
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12-inch by 12-inch floor drain |
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adjacent to the two toco deep |
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fat fryer units. |
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2 |
29 CFR 1910.212(a)(5) |
(Alongside aisle in Storage |
February |
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Page 22274, Column 1 |
Area.) The walk-in cooler com- |
23, 1973 |
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pressor unit and the walk-in |
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freezer compressor unit have |
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cooling fan blades unguarded. |
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3 |
29 CFR 1910.219(e)(1)(i) |
Part (a). |
February |
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29 CFR 1910.219(d)(1) |
(Manufacturing Plant, alongside |
23, 1973 |
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Page 22290, Column 2. |
aisle in Storage Area.) The corn |
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grinder machine had unguarded |
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V-belts and pulleys. |
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The walk-in cooler compressor unit |
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and the walk-in freezer compressor |
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unit had unguarded V-belts and |
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pulleys. The Casa Herrera quad-head |
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corn tortilla machine had un- |
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guarded V-belts and pulleys. |
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29 CFR 1910.219(f)(3) |
Part (b). |
February |
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Page 22291, Column 1. |
(Manufacturing Plant.) The |
23, 1973 |
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following pieces of equipment |
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had exposed chains and sprockets |
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which were not enclosed: |
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(1) Serial #685010 Casa Herrera |
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elevated Bunn feeder, and |
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(2) Three (3) toco fryers. |
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4 |
29 CFR 1910.309(a) |
Part (a). |
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Page 22342, Column 2 |
(Manufacturing Plant Area.) The Casa |
February |
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which adopts the National |
Herrera quad-head corn |
14, 1973 |
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Electric Code, NFPA, |
tortilla machine, Serial #6810615, |
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70-1971, Section 100--17(a) |
has the cover missing on the |
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operating start switch exposing |
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live 220 volts electrical current. |
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29 CFR 1910.309(a) |
Part (b). |
February |
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Page 2. Column 2 |
(Manufacturing Plant Area.) The |
14, 1973 |
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Which adopts the National |
Casa Herrera quad-head corn |
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Electric Code, NFPA |
tortilla machine, Serial #6810615, |
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70-1971, Section 400-5 |
has an electrical supply flexible |
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cord with a splice in the middle |
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of the cord. |
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29 CFR1910.309(a) |
Part (c). |
February |
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Page 22342, Column 2 |
(Manufacturing Plant Area.) The |
14, 1973 |
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which adopts the National |
flexible cord, used to connect |
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Electric Code, NFPA |
the upright food freezer to the |
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70-1971, Section 400-4 |
electrical outlet, passes through |
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the door opening and is layed |
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across five (5) nails attached |
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to the wall. |
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29 CFR 1910.309(a) |
Part (d). |
February |
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Page 22342, Column 2 |
(Manufacturing Plant Area.) The |
14, 1973 |
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which adopts the National |
electrical operated Hobart |
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Electric Code, NFPA |
slicer machine was not properly |
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70-1971 Section 250-45(d) |
connected to provide adequate |
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grounding of the equipment. |
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� [*22] �
The alleged violations in this citation were cited from the Federal Register dated October 18, 1972, Volume 37, Number 202.
On November 24, 1972, Respondent was issued Citation Number 1, for Serious Violation, and a Notification of Proposed Penalty pursuant thereto, in accordance with Section 9(a) of the Act. � Citation Number 1 dealt with recordkeeping and posting violations alleged in Items 1-3, for which no penalty was proposed. � Citation Number 1 for Serious Violation proposed a penalty of $650. � After an informal conference with Respondent's General Manager, the Area Director reclassified this violation as nonserious, reduced the proposed penalty to $160 and on December 6, 1972, issued an Amended Citation alleging the same conditions as a single Nonserious Violation (Item 4 of the Amended Citation). � The Amended Citation, received by Respondent on December 7, 1972, also specified that each condition be corrected "immediately upon receipt of this citation".
Neither the original Citation, nor the Amended Citation, issued on December 6, 1972, was contested by Respondent within the 15 working days allowed by Section 10(a) of the Act.
After receiving two letters (Exhibit G-19, � [*23] � G-20) requesting payment of the amended penalty and information regarding correction of the cited violations, Respondent paid the $160 penalty and by letter, dated January 15, 1973, indicated that information as to when and how each violation was corrected would follow.
Having not received such information, the Area Director scheduled a follow-up inspection which was conducted on February 1, 1973, and thereafter on February 9, 1973, and, issued a Notification of Failure to Correct and additional daily penalties totaling $19,160. � Also in addition, Citation Number 2 was issued alleging in Items 1-4, four additional Non-serious Violations for which the proposed penalties totaled $460.
On February 21, 1973, Respondent filed with representatives of the Secretary a notice of intent to contest the Notification of Failure to Correct, and on February 22, 1973, similarly contested Citation Number 2.
Subsequent to the filing of his Complaint, the Secretary moved to reduce the proposed additional penalty for failure to correct to $3,545.
ISSUES
1. � Whether Respondent failed to correct the conditions cited in Item 4 of Amended Citation Number 1 within the period permitted for their correction. � [*24] �
2. � If so, whether the $3,545 proposed penalty for such failure is appropriate.
3. � Whether Respondent has violated Standard 29 CFR Part 1910 as alleged in Citation Number 2, Items 1-4.
4. � If so, whether the respective penalties proposed for said violations are appropriate.
DISCUSSION
There was much contradictory evidence at the hearing and the transcript was 585 pages of such contradictions. � We had opportunity to closely observe all witnesses and examine all evidence in the file and have concluded that with the exception of Items (b) and (d) mentioned in Item 4 of the Citation, which alleges four violations of 29 CFR 1910.309(a), the remaining allegations of the Complaint are supported by the preponderance of the credible, probative and substantial evidence.
The testimony establishes that Respondents had a rather Laodicean attitude toward correcting safety conditions in their plant.
Certainly they do not show much good faith insofar as correcting conditions called to their attention by the first Citation.
The total credible, probative, substantive evidence shows that Respondent failed to correct the conditions cited in Item 4 of Amended Citation Number 1 within the � [*25] � period provided for their correction. � This Amended Citation is a final order, not reviewable by any court or agency.
Among the defenses Respondent has raised is one going to the validity of the Amended Citation, and Respondent argues that the "Masa Feeder" is not a dough maker to which 29 CFR 1910.263 is applicable, or that it was not such a "dangerous machine" within the meaning of 29 CFR 1910.23(c)(3). � As Complainant has mentioned in his brief - such arguments are, however, foreclosed by Respondent's election not to contest the Citation when it was issued. � (See Brennan v. Florida East Coast Properties. � OSHRC Docket Number 2354, which holds that: . . . "any item or part of a citation uncontested within the 15 day working limit . . . could not be reviewed by the Commission".)
Further than that, the evidence of record establishes that the "Masa Feeder" is such a mixer within the meaning of the Act.
The dictionary definition of mixer is: "one who or that which mixes". � One of the more common instruments in construction work is a "cement mixer". � A cement mixer has a whirling blade similar to that of the "Masa Feeder" in the instant case. � Also one of the cement mixer's functions, � [*26] � in addition, is simply keep the cement stirred up and extrude it through a hole while the blades are rotating such as a Masa Feeder's blades rotate in extruding dough. The whirling and the mixing done by the blades, coupled with extrusion, all are so similar to other instruments called "mixers" that they definitely come within the definition of mixers under the standard involved here.
Respondent in his reply brief does not stand on firm ground when he argues against the finality of an uncontested Citation under the Act. � Respondent also argues that the doctrine of collateral estoppel does not extend to "evidentiary facts" such as whether the Masa Feeder machine which was cited as a mixer could in fact be a Boeing 747.
We further point out that an employer who has not contested a Citation within the statutory period is certainly not without remedies if he finds that the Citation abatement requirement cannot be complied with. � Section 10(c) of the Act provides that Respondent could have petitioned for modification of abatement requirements "Upon a showing be an employer of a good faith effort to comply with the abatement requirements of a Citation, and that abatement has not been [*27] � completed because of factors beyond his reasonable control, . . .". � Also the Review Commission Rule 34 reflects a recognition of the necessity that abatement requirements be promptly complied with or litigated in providing that a petition for modification of abatement be filed no later than the close of the next working day following the date on which abatement is required. � For good cause shown, this procedural rule of the Commission can be and has been waived. � Therefore, Respondent was not precluded from seeking modification of the abatement requirements, nor was he foreclosed from doing so in a timely manner because of the Citation requirement that the alleged violations be abated immediately.
The Respondent could have contested the Citation and thus put into issue the question of whether 29 CFR 1910.263 applied to the machine in question, or petitioned for modification of the abatement requirements. � Respondent advised Complainant by letter dated January 15, 1973, that "A letter will follow shortly advising you as to the specific correction in each violation and the date on which it was corrected". � Respondent's own evidence of record thus confirms that Respondent had earlier [*28] � elected not to contest the Citation. � It is to be noted that he did so with the advice of his counsel (T. 524), and with knowledge that the items of the Amended Citation were required to be corrected (T. 558).
Respondent's payment of a reduced penalty therefore in no way affects the abatement requirement under the Act.
In Brennan v. Occupational Safety and Health Review Commission and Bill Echols Trucking Company, CCH Occupational Safety and Health Decisions, Section 16,990, the United States Court of Appeals for the 5th Circuit held that the appropriateness of a proposed penalty may be put at issue while the Citation absent a clear notice of intent to contest it within the 15 day statutory period, becomes "a final order of the Commission and not subject to review by any court or agency". � In this case the court further held that the Citation then becomes literally "final and unreviewable" and that the Commission itself has no authority to vacate it. � On remand of this case to the Review Commission, the Commission Judge found that the Citation had, in fact, become final and held that the merits of the alleged violations could not be inquired to. � Secretary of Labor v. Bill � [*29] ��
It is our opinion that the Masa Feeder definitely does come under the standard cited in the instant case. � Even if it didn't the Respondent's failure to contest the Citation makes the nomenclature of the machine and the evidentiary facts regarding its function irrelevant to the question of whether the cited conditions were corrected and forecloses the issue of whether they needed to be.
The Citation requires that the Masa Feeder be equipped with a conventently located manual switch to prevent it from being started in the usual manner while being serviced or cleaned. Evidence was presented by the Respondent regarding two switches with which the machine in question was allegedly equipped (That is, switches in the circuitry between the point where the machine was plugged in and the motor which caused its internal parts to revolve). � One of these two switches was the on-off [*30] � switch on the front of the machine; this was of the push-to-start, pull-to-stop variety and was undisputedly the means by which the machine was started; pushing this switch was the usual manner of starting the machine, according to all the witnesses. � The second of the two switches described by Respondent's witnesses, in testimony of record, was one which allegedly would prevent revolution of the internal blades of the machine when the lid of the machine was lifted. � The presence of this switch prior to the citation being issued is very much in question as stated in the transcript, pages 41 and 42, as follows:
"A. � (by Mr. White, Compliance Officer) Yes, it does. � The hazard that it presents is that if an individual, or an employee, were servicing, or cleaning, a piece of equipment, he has no control over the machine and another employee could inadvertently, especially with the push-pull type switch, energize the machine while he is in the operating cycle, or involved in the interior of the bowl with the agitators in motion.
* * *
A. � The door was a full-hinged door which could be opened fully and not stop the motion of the agitators in the machine. The machine could be operated [*31] � with the door completely opened.
Q. � (by Mr. McCoy) How did you determine that this was so?
A. � I investigated the bowl of the Masa Feeder on the upper lip and found no switch and questioned Mr. Joe Garza who was in charge of the piece of machinery, and the Production Sueprvisor, whether or not the machine was equipped with an interlock system or a system to prevent the bowl from -- the agitator from operating when the ingredient lid was opened.
***
A. � And Mr. Garza responded that there was no interlock system at all, or no way of preventing the agitators from revolving while the lid was open."
The testimony of record establishes that if such a switch was present on the day of the fatality, it did not prevent the machine from being started. The apparent fact that the machine could be and was operated without its cover on the date of Mr. Barone's follow-up inspection was unrebutted.
Even if we concede for the sake of argument that such a switch was present then and functioning at all such times, neither it nor the on-off switch is - a conveniently located manual switch to prevent the mixer from being started in the usual manner while the machine is being serviced and cleaned, � [*32] � as contemplated by 29 CFR 1910.263(e)(1)(iii). � The Citation stated that such a device was required to be installed and was, clearly not present at any time (testimony of Mr. White, T. 39), (testimony of Mr. ReVelle who testified regarding the on-off switch and the so called post safety switch). � Respondent's failure to correct this single condition, the absence of a manual switch to prevent the machine from being started when serviced or cleaned, constitutes failure to correct a hazard clearly required to be corrected immediately upon receipt of the Citation. � The credible evidence in the file indicates that Robert Correa, Respondent's General Manager, (T. 16) directed Mr. White, the Compliance Officer, to the machine "pictured in Exhibit G-1" and identified it as a "Masa Feeder" in which Tom Carl, an employee of Respondent, was killed the previous day, November 6, 1972. � (T. 15, 21)
In Exhibit G-1, Mr. Joe Garza, Production Sueprvisor, is illustrating the position an employee would be in when cleaning and servicing the machine. This photograph was taken in Mr. Correa's presence (T. 23). � The basic function of the machine as explained to Mr. White by Messrs. Garza and Correa is [*33] � as follows:
Corn meal, lime and water in dough form are introduced into the machine, kneaded by two revolving bars or agitators and forced out through an extruder located at the bottom of the bowl.
The machine was so used two or three days a week (T. 37).
A portable step-stool shown on Exhibit G-1 was used, as demonstrated in the photograph by Mr. Garza, each time the machine was cleaned and on some occasions when the machine was in operation and it would be necessary to look into the interior of the bowl (T. 37). � This stool was about three feet high. � It had a very limited standing area and no guardrails. � The floor, at the scene wherein the machine was located was of a slick nature and the stool had no safety feet to keep it from sliding (T. 35). � It was Mr. White's opinion that the use of the stool was thus hazardous whether or not the machine was in operation (T. 36). � White further testified that steps with guardrails are very common place where it is necessary for an individual to get up to an elevated height to work on a piece of machinery (T. 46). � The Respondent did obtain such safety steps after being notified of his failure to correct the violation.
The machine was [*34] � operated by the push-pull switch circled in Exhibit G-1. � When the switch was pushed in, the machine started and the button had to be pulled out to stop the machine (T. 40). � If left in the on position while the machine was unplugged and the machine was subsequently plugged in, the machine would immediately start agitating (T. 79). � There were no manual switches on the machine other than the push-pull switch, to insure that the machine would not be started in the normal manner when being serviced or cleaned (T. 39). � Due to the absence of such an additional manual switch, an employee servicing or cleaning the machine would be endangered if another employee energized the machine either by the push-pull switch or by plugging in the machine (T. 41).
Mr. White also stated that the enclosure over the top opening of the machine, through which dough was placed into the machine, could be fully opened while the blades inside remained in motion. � White questioned Mr. Garza (again, in Mr. Correa's presence) and was told that there was no way of preventing the agitators from revolving while the lid was open (T. 41-43).
The Respondent, Mr. Correa, informed Mr. White that "Do Not Start" tags � [*35] � were not used in the plant. � These tags were described by Mr. White as a visual indicator that can be placed on the controls of a machine to give notice that it should not be started due to some impending hazard such as an employee working on the machine. Mr. Correa stated that Respondent relied instead upon unplugging the machine and giving verbal instructions (T. 44).
Shortly after his inspection, which was limited to the Masa Feeder Machine, Mr. White conducted a closing conference with Mr. Correa, advising him of the Citation and Notice of Contest procedures (T. 48), and the need for a more substantial work platform, a control system for the machine, and an interlocking system so that the lid could not be opened while the machine was in motion (T. 49).
After having issued the original Citations, and after the informal conference held between Mr. DiSilvestro and Mr. Correa, an Amended Citation and Notification of Proposed Penalty was issued (Exhibit 5 and Request for Ad. issions No. 14). � They were received by the Respondent on December 7, 1972, (Request for Admissions No. 15), and were not contested (T. 81).
A follow-up inspection was conducted by Compliance Officer Carmine [*36] � Barone on February 1, 1973, (T. 111). � Barone found that the employer was not in compliance with the recordkeeping violations previously cited (T. 116-119). � Respondent Mr. Correa, also stated that instead of the step stool previously used for access to the top of the Masa Feeder they were now using the wooden stepladder shown in Exhibit G-6. � No manual switch other than the push-pull normally used to start the machine had been installed on the machine (T. 123-124). � "Do Not Start" tags had been provided and, according to Mr. Correa, were used as required by the Citation (T. 123).
The evidence definitely establishes the machine was plugged in at the time of the incident involving the death of Respondent's employee (T. 482). � Mr. Garza in his testimony stated that he and Mr. Correa were the only ones who cleaned the machine. (T. 497)
He also stated that another boy named Gregory Heineman did not ever clean the quad head (T. 498). � He was confronted with a signed statement (Exhibit G-18) which states the following:
"I oversee all the operations in the plant and manage the wholesale operations. � Generally, Bob Correa or I do all the hiring of plant personnel. � I hired Tom Carl, the [*37] � boy who was killed, and Bob Correa hired his predecessor, Greg Heineman. � Both Carl and Heineman were responsible for cleaning out all of the machines except for the flour dough mixer. I always made sure that the person who cleaned the flour dough mixer was 18. � It was the only machine that I was aware of that it was illegal for someone under 18 to clean or operate. � Jane Zook cleans the flour dough mixer. Before her another girl named Janet cleaned that machine. Carl and Heineman cleaned the corn vats, corn grinder, and masa feeder, and the machine which rolls the dough into their sheets and cuts the tortillas out. � They also swept around the various machines.
I have read the above, and it is correct."
Signed: Joe Garza
Witnessed: Gary L. Mauer
We had an opportunity to observe the witness throughout all the hearing and consider all the credible evidence in the file and feel that the evidence contained in Exhibit G-18 is correct. � More so because it was made closer to the event when Joe Garza had the details of the accident and everything connected with the scene more vividly in his mind. � It could be that time and other circumstances dulled his memory or caused him to wander [*38] � away from his original statement. � We feel the original statement is a correct account.
We have carefully considered the method used by the Compliance Officers in arriving at the final figure of $3,545 for said failure to correct the hazardous conditions. � The proposed additional penalty for failure to correct conditions cited in Item 4 of the Amended Citation is not inappropriate.
The proposed penalty, for Items 1, 2, and 3 and parts (a) and (c) of Item 4, of the Citation issued Respondent on February 9, 1973, is not inappropriate.
The Respondent in our opinion has been quite neglectful in carrying out the safety requirements for his business. � His conduct in posting the notice in his desk, and, other conduct in failing to correct this condition, indicated a contumelious posture towards the Act itself.
FINDINGS OF FACT
1. � Respondent has a place of business located at 1910 N. 72nd Street, Omaha, Nebraska, doing business as Ricardo's Mexican Enterprises of Omaha.
2. � At said place of business, Respondent produces and packages Mexican Foods.
3. � At said place of business, Respondent receives products which were manufactured, produced or processed outside the State of Nebraska. � [*39] �
4. � Respondent regularly ships Mexican Food to locations outside the State of Nebraska (T. 8). � Respondent sells Mexican Food produced and packaged at said place of business to certain grocery chains, to Hinky Dinky and United A.G.
5. � In calendar year 1971, Respondent's wholesale sales of Mexican Food totaled approximately $144,673.
6. � Respondent was issued Citation Number 1 on or about November 24, 1972.
7. � Respondent received said Citation on or about November 25, 1972.
8. � Respondent was issued Citation Number 1 for Serious Violation on or about November 24, 1972.
9. � Respondent received said Citation on or about November 25, 1972. � (T. 7, 8, 9, 10)
10. � Respondent was issued a Notification of Proposed Penalties on or about November 24, 1972.
11. � Respondent received said Notification of Proposed Penalty on or about November 25, 1972.
12. � On or about December 5, 1972, Respondent, Ricardo Correa, Jr., met with Acting Area Director, Oscar F. DiSilvestro and Compliance Officer, William White, United States Department of Labor, Occupational Safety and Health Administration, to discuss such Citations and Notification of Proposed Penalty (T. 10).
13. � On or about December [*40] � 6, 1972, as a result of said discussion, Respondent was issued Amended Citation Number 1 and an Amended Notification of Proposed Penalties (T. 10).
14. � Respondent received said Amended Citation and Amended Notification of Proposed Penalties on or about December 7, 1972.
15. � Neither the original Citation nor the Amended Citation issued on December 6, 1972, was contested by Respondent within the 15 working days allowed by Section 10(a) of the Act.
16. � On or about November 6, 1972, Respondent employed at his said place of business, 1910 North 72nd Street, Omaha, Nebraska, an employee named Thomas Carl (T. 10).
17. � On or about November 6, 1972, Thomas Carl was fatally injured while cleaning Respondent's machine identified as a "Masa Feeder" at Respondent's said place of business.
18. � Said machine was the same "Masa Feeder" described in the Citation for Serious Violation and in Amended Citation Number 1.
19. � On or about February 1, 1973, Carmine A. Barone, Compliance Officer, United States Department of Labor, Occupational Safety and Health Administration, conducted a second inspection of Respondent's said place of business and inspected the "Masa Feeder" referred to above. � [*41] �
20. � Said "Masa Feeder" machine is presently in use at Respondent's said place of business.
21. � After receiving two letters (Exhibits G-19, G-20) requesting payment of the Amended Penalty and information regarding correction of the cited violations, Respondent paid the $160 penalty and by letter dated January 15, 1973, indicated that information as to when and how each violation was corrected would follow.
22. � Having not received such information, the Area Director scheduled a follow-up inspection which was conducted on February 1, 1973, and thereafter on February 9, 1973; thereupon, he issued the Notification of Failure to Correct and Additional Daily Penalties totaling $19,160. � Additionally, Citation Number 2 was issued alleging in Items 1-4, four additional Non-serious Violations for which the Proposed Penalties totaled $460.
23. � On February 21, 1973, Respondent filed with a representative of the Secretary a notice of intent to contest the Notification of Failure to Correct, and on February 22, 1973, similarly contested Citation Number 2.
24. � Subsequent to filing his Complaint, the Secretary moved to reduce the Proposed Additional Penalty for Failure to Correct to $3,545. � [*42] �
25. � William White, Compliance Officer, OSHA, inspected Respondent's place of business on November 7, 1972, (T 15). � During his inspection he was accompanied by Robert Correa, Respondent's General Manager, (T. 16). � Mr. Correa directed Mr. White to the machine, pictured in Exhibit G-1, and identified it as a "Masa Feeder" in which Tom Carl, an employee of Respondent, was killed the previous day (T. 21).
26. � Exhibit G-1, shows Mr. Joe Garza, Respondent's Production Supervisor, illustrating the position an employee would be in when cleaning or servicing the machine. This photograph was taken in Mr. Correa's presence (T. 23). � The basic function of the machine, as explained to Mr. White by Garza and Correa, is as follows:
Corn meal, lime and water in dough form are introduced into the machine, kneaded by two revolving bars or agitators and forced out through an extruder located at the bottom of the bowl.
This machine was so used two or three times a week (T. 37).
27. � The portable step stool shown in Exhibit G-1 was used, as demonstrated in the photograph by Mr. Garza, each time the machine was cleaned and on some occasions when the machine was in operation and it would be necessary [*43] � to look into the interior of the bowl (T. 37).
28. � This stool was about three feet high, had a very limited standing area, and no guardrails.
29. � The floor where the machine was located was of a slick nature and the stool had no safety feature to keep it from sliding (T. 35).
30. � Mr. White's opinion was that the use of the stool was thus hazardous whether or not the machine was in operation (T. 36).
31. � White further stated that steps with guardrails are very common place where it is necessary for an individual to get up to an elevated height to work on a piece of machinery (T. 46).
32. � Respondent, in fact, obtained such steps with a guardrail after being notified of his Failure to Correct the Violation. n33. � The machine in question was operated by a push-pull switch circled in Exhibit G-1. � When the switch was pushed in, this machine started and the button had to be pulled out to stop the machine (T. 40).
34. � If left in the on position while the machine was unplugged, and the machine was subsequently plugged in, the machine would immediately start agitating (T. 79).
35. � There were no manual switches on the machine other than the push-pull switch to insure that the � [*44] � machine would not be started in the normal manner while being serviced or cleaned. (T. 39)
36. � Due to the absence of such an additional manual switch, an employee servicing or cleaning the machine would be endangered if another employee energized the machine either by the push-pull switch or by plugging in the machine (T. 41).
37. � Mr. White also observed that the enclosure over the top opening of the machine, through which dough was placed into the machine, could be fully opened while the blades inside remained in motion.
38. � White questioned Mr. Garza (again in Mr. Correa's presence) and was told there was no way of preventing the agitators from revolving while the lid was open (T. 41-43).
39. � Mr. Correa informed Mr. White that "Do Not Start" tags were not used in the plant. � These tags were described by Mr. White as a visual indicator that can be placed on the controls of a machine to give notice that it should not be started due to some impending hazard such as an employee working on the machine. Mr. Correa also stated, that they relied instead upon unplugging the machine and giving verbal instructions (T. 44).
40. � Following his inspection which was limited to the "Masa [*45] � Feeder" machine, Mr. White conducted a closing conference with Mr. Correa advising him of the Citation and Notice of Contest procedure (T. 48), and of the need for a more substantial work platform and control system for the machine, and an interlocking system so that the lid could not be opened while the machine was in motion (T. 49).
41. � After the issuance of the original Citations, and an informal conference held between Mr. DiSilvestro and Mr. Correa, the Amended Citation and Notification of Proposed Penalty were issued (Exhibit G-5 and Request for Admissions No. 14) received by the Respondent December 7, 1972, (Request for Admissions No. 15) and were not contested (T. 81).
42. � A follow-up inspection was conducted by Compliance Officer, Carmine Barone, on February 1, 1973 (T. 111). � He found that the employer was not in compliance with the recordkeeping violations previously cited (T. 116-119). � Mr. Correa also stated that instead of the step stool previously used for access to the top of the Masa Feeder they were now using a wooden step ladder shown in Exhibit G-6. � No manual switch other than the push-pull which are normally used to start the machine had been installed on [*46] � the machine (T. 123-124). � "Do Not Start" tags had been provided and according to Mr. Correa, were used as required by the Citation (T. 123).
43. � The "Mesa Feeder" is a dough mixer within the meaning of the Act and to which 29 CFR 1910.263 is applicable, and, it is a "dangerous machine" within the meaning of 29 CFR 1910.23(c)(3).
44. � As of February 1, 1973, four of the five conditions cited had not been corrected:
a. � The location of the ingredient opening at the top of the "Masa Feeder" which was cited as a violation of 29 CFR 1910.263(e)(1)(vii) provides:
(vii) Mixers shall be provided with flour-gate operating mechanisms, ingredient openings, and water inlets, which can be conviently manipulated by the operator from the normal area of activity (either platform or floor) without requiring abnormal reaching, or improvisations which might jeopardize his safety.
(1) Respondent's employees used a hazardous "improvisation", a kitchen step stool in lieu of a platform. Mr. Garza told Mr. White during the first inspection that the stool was used for access to the machine when it was running (T. 37).
(2) This stool itself was cited as a violation of 29 CFR 1910.23(c)(3) which provides [*47] � that regardless of their height, platforms ". . . above or adjacent to dangerous equipment . . . and similar hazards shall be guarded with a standard railing and toeboard". � This is a condition which could have been easily remedied, however, as of February 1, 1973, a stepladder had merely been substituted for the stool.
(b) 29 CFR 1910.263(e)(1)(iii) provides that:
(iii) Each mixer shall be equipped with an individual motor and control, and with a conveniently located manual switch to prevent the mixer from being started in the usual manner while the machine is being serviced and cleaned. (Emphasis added)
No such switch was present on the Masa Feeder either at the time of the first inspection or the follow-up.
(c) 29 CFR 1910.263(e)(1)(iii) provides that:
(viii) Every mixer shall be equipped with a full enclosure over the bowl which is closed at all times while the agitator is in motion. � Only minor openings in this enclosure . . . each representing less than 1 1/2 square feet in area, shall be capable of being opened while the mixer is in operation.
As of the hearing date, the Masa Feeder was equipped with a spring operated switch which woiuld disconnect power to the machine's [*48] � revolving blades when the top is lifted. � At the time of the first inspection, the Masa Feeder was not so equipped.
(d) On February 1, 1973, the Masa Feeder was in use without its cover (in fact the cover was not on the premises). � At this time the switch was not fulfilling the function as contemplated by 29 CFR 1910.263(e)(1)(viii) and was not on on the date of the fatality.
45. � The original proposed penalty of $19,160 was computed by the Area Director according to procedures then in effect. � The original unadjusted penalty of $500 was assessed as a daily penalty for 38 days, the period between the abatement date and the follow-up which disclosed failure to correct the violation. � The original $160 abatement credit was then added back to the total.
46. � This Proposed Penalty was reduced to $3,545 under new procedures to avoid penalizing employers for unnecessary delay in conducting follow-up inspections, to allow the original credit for size and prior history and to reflect partial abatement. Such a penalty was warranted due to Respondent's bad faith as evidenced by his failure to comply with the recordkeeping items cited (for which no additional penalty was proposed), failure [*49] � to post the original Citation, as well as exposing his employees to uncorrected hazards for a 38 day period.
47. � Item 1. The floor drain cover was being removed for repair and was replaced prior to employees other than the cleaning crew being exposed to the hazard. The penalty therefore is inappropriate and should be vacated.
48. � Item 2. Fan blades on two compressor units were unguarded in violation of 29 CFR 1910.212(a)(5). � The proposed penalty for this item is $45 which is appropriate.
49. � Item 3. Inspection found four instances of unguarded V-belts and pulleys and four instances of exposed chains and sprockets (T. 129-137, Exhibits G-9 through G-12). � Two employees had sustained injuries from the chain and sproket assemblies (T. 494-495). � The chain assembly on the Bunn Feeder (Exhibit G-11) was exposed directly adjacent to where an employee normally worked and only 4 1/2 inches from the center of a conveyor belt on which the employee would be placing products by hand (T. 133). � The proposed penalty of this violation is $195 which is appropriate.
50. � Item 4. Respondent is found in violation of four violations of 29 CFR 1910.309(a) which incorporates the [*50] � National Electric Code by reference. � Parts (b) and (d) were not supported by the evidence and should be dismissed. � Part (a) of Item 4 alleged that the 220 volt switch shown in Exhibit G-10 had unguarded live parts as prohibited by Section 100-17(a) of the Code. � Such terminals should be covered. � The frame of the machine on which they were mounted would offer a ground to any employee who came in contact with them (T. 443-444). � The cover plate was off the switch for some three or four weeks while a new one was being ordered (T. 328). � In the meantime, the switch was operable and no temporary cover was substituted. � Part (c) of Item 4 was a violation in that the Respondent ran a flexible electric cord through a doorway. � Section 400-4 clearly prohibits such use of flexible cord. � The total proposed penalty for Item 4 was $150. � This amount should be reduced by one-half because two of the four alleged violations were dismissed. � In view of the severe hazard presented by Part (a) of Item 4, a penalty of $75 is appropriate for Item 4.
CONCLUSIONS OF LAW
1. � Respondent is an employer engaged in a business affecting commerce within the meaning of the Act (T. 8-9).
2. � Respondent [*51] � is in violation of the Act by failing to wholly correct the conditions cited in Amended Citation Number 2, Item 4 and is therefore subject to additional penalties under the provisions of Section 17(d) of the Act.
3. � The said Amended Citation is a final order of the Commission under Section 10(a) of the Act and not subject to review by any court or agency.
4. � Respondent was not in violation of Item 1, Citation Number 2 for Nonserious Violation. � The Citation and Proposed Penalty for Item 1 should be vacated.
5. � Respondent was in violation of Item 2, Citation Number 2, for Nonserious violation. � The Citation and Proposed Penalty for Item 2 should be affirmed.
6. � Respondent was in violation of Item 3, Citation Number 2, for Nonserious violation. � The Citation and Proposed Penalty for Item 3 should be affirmed.
7. � Respondent was not in violation of Parts (b) and (d) of Item 4, Citation Number 2, for Nonserious Violation.
8. � Respondent was in violation of Parts (a) and (c) of Item 4, Citation Number 2 for Nonserious Violation.
9. � The penalty for Item 4 should be reduced to $75.
DECISION
After considering the total credible, probative, substantial evidence of record, � [*52] � it is hereby ORDERED:
1. � Penalty for Failure to Correct, in the amount of $3545, is affirmed.
2. � Item 1, Citation Number 2 for Nonserious Violation, and the Proposed Penalty are vacated.
3. � Item 2, Citation Number 2 for Nonserious Violation and Proposed Penalty in the amount of $45 are affirmed.
4. � Item 3, Citation Number 2 for Nonserious Violation, and Proposed Penalty in the amount of $195 are affirmed.
5. � Parts (b) and (d), Item 4, Citation Number 2 for Nonserious Violation are vacated.
6. � Parts (a) and (c), Item 4, Citation Number 2 for Nonserious Violation, are affirmed.
7. � The reduced penalty for Item 4, in the amount of $75, is affirmed.
Vernon Riehl, Judge, OSAHRC
Date: March 14, 1974