UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

July 25, 1974

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

BY THE COMMISSION:

A, decision of Review Commission Judge Henry K. Osterman in a proceeding initiated under the Occupational Safety and Health Act of 1970 (29 U.S.C. §§ 651 et seq., 84 Stat. 1590) is before this Commission for review pursuant to 29 U.S.C. § 661(i).

The Judge sustained a failure-to-abate charge against respondent. 29 U.S.C. § 659(b). For reasons stated in Secretary v. Kesler and Sons, OSAHRC Docket No. 306 (July 8, 1974) we reverse. Commissioner Cleary disagrees with this disposition for reasons given in his dissenting opinion in Kesler.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

November 16, 1973

OSTERMAN, JUDGE, OSAHRC:

This is a proceeding initiated by the Respondent pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereafter the Act) to contest a Citation and Notice of Proposed Penalty issued to Respondent by the Secretary on April 2, 1973.

The record discloses that Respondent is engaged in business as a distributor of paper products with its principal place of business located at 36 Terminal Way, Pittsburgh, Pennsylvania. An investigation conducted on March 8, 1972 by a compliance officer employed by the Secretary disclosed the existence of six (6) separate non-serious violations of the standards promulgated by the Secretary. The alleged violations, the abatement dates, and the proposed penalties are as follows:

  Respondent did not contest this Citation.

Thereafter a reinspection of Respondent’s worksite was made on April 19, 1973, following which, on May 1st, a Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty was served upon Respondent. This Notification proposed an additional penalty in the total amount of $260.00. On May 14th Respondent filed a Notice of Contest challenging the additional penalty proposed by the Secretary.

The record further discloses that the sole basis for the issuance of the Notification of Additional Penalty was Respondent’s failure to abate Item 1 of the original Citation [29 CFR 1910.176(a); insufficient safe clearance for aisles on the 2d, 3d and 4th floors where mechanical equipment is used. Aisles not kept clear and obstructions (cartons) were across aisles. Aisles not appropriately marked.] A Notice of Contest was timely filed by the Respondent challenging only the proposed penalty of $260.00.

At the hearing in this matter held in Pittsburgh, Pennsylvania on September 18th the parties stipulated the essential facts stated above (Jt. Exh. 1).

Testimony by Respondent’s representative at the hearing was to the effect that the Respondent loads and unloads in the neighborhood of a dozen trucks a day and that material is constantly coming in and going out of the premises. As a consequence there will always be some material in the aisles before being placed in inventory (Tr. 18). This witness also testified that it was found to be impossible to mark the aisles because of the age of the building which is about 70 years old. He stated that because of the condition of the floors he had found it impossible to put down disks as markers for the aisles (Tr. 20). Respondent was eventually able to locate a firm whose business it was to paint parking lots and this firm was hired to mark the aisles properly 4 or 5 days after the Notification of Additional Penalty was received (Tr. 20–21). A receipt offered in evidence by Respondent covering the cost of painting lines on the aisles in Respondent’s plant is dated May 23d. (Resp. Exh. 1). It was Respondent’s testimony that the receipt was given on the day the painting was done (Tr. 23).

FINDINGS OF FACT

1. Respondent is a Corporation organized and existing under the laws of the State of Pennsylvania with a place of business located at 36 Terminal Way, Pittsburgh, Pennsylvania. Respondent is engaged in the distribution of paper products.

2. Respondent regularly handles products which are shipped across state lines.

3. Respondent employs approximately 31 persons. Gross receipts for the calendar year 1972 were approximately $4,000,000.00.

4. As a result of an inspection conducted on March 8, 1973 by the Complainant, Respondent was issued a Citation on April 2, 1973 for six non-serious violations. A total of $30.00 was proposed as a penalty for Item 1 in the Citation. The abatement date for this violation was April 17, 1973.

5. On April 19, 1973 a reinspection of Respondent’s plant was conducted. Said reinspection disclosed that Item 1 of the original Citation had not been abated.

6. As a result of Respondent’s failure to timely abate the said violation, a Notification of Proposed Additional Penalty was issued on May 1, 1973 in the amount of $260.00.

7. The violation which Respondent had failed to timely abate on April 17, 1973 was not abated until May 23, 1973.

8. In arriving at the amount of the additional penalty proposed by the Secretary for Respondent’s failure to timely abate Item 1 referred to in Paragraph 3 above the Secretary properly considered all appropriate factors established by the Act.

CONCLUSIONS OF LAW

1. Respondent, Paper Products Company, Inc. is an ‘employer’ engaged in ‘commerce’ as those terms are defined by Section 3 of the Act.

2. On March 8, 1973, Respondent was in violation of six (6) separate safety and health standards established by the Secretary of Labor.

3. The Citation issued as a result of the Secretary’s inspection on March 8th required Respondent to abate Item 1 of the said Citation [29 CFR 1910.176(a)] on or before April 17, 1973.

4. On April 19, 1973 a reinspection by the Secretary disclosed that Respondent had failed to abate the violation referred to in Paragraph 3 above and thus was in violation of the directive for abatement contained in the Citation dated April 2, 1973.

5. The additional penalty of $260.00 proposed by the Secretary for Respondent’s failure to abate the violation referred to in Paragraph 3 above is appropriate and not inconsistent with the provisions of Section 17 of the Act.

ORDER

Pursuant to Section 10 of the Act and Rule 66 of this Commission’s Rules of Procedure it is ORDERED:

That the Citation issued by the Secretary to the Respondent on April 2, 1973 and the Notice of Proposed Additional Penalty issued to Respondent on May 1, 1973 be, and the same hereby are AFFIRMED.