Docket No. 1318

BOUMA POST YARDS, INC.

OSHRC Docket No. 1318

Occupational Safety and Health Review Commission

October 18, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision of Judge J. Paul Brenton. Judge Brenton affirmed certain items of Complainant's citation alleging that Respondent violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). Judge Brenton vacated certain other items of this citation, and he vacated all penalties proposed by Complainant. We affirm his disposition for the following reasons.

Complainant petitioned for discretionary review of the Judge's decision stating that the Judge had committed certain errors. I directed review because it appeared that the Judge's decision was arguably erroneous in some respects. However, Complainant did not file a brief in response to the order directing review even though he had previously stated that he intended to file such a brief. Under these circumstances Complainant's failure to file a brief should be construed as an indication that Complainant has abandoned his petition for review and now acquiesces in the Judge's disposition. We will affirm that disposition [*2] in view of Complainant's evident acquiescence therein.

Accordingly, it is ORDERED that the Judge's disposition of this case be and the same is hereby affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: While I agree generally with the foregoing I don't think it should be dispositive in all situations. Judge Brenton decided this case properly and I would affirm his disposition for the reasons stated therein.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: The majority concludes that the Secretary's failure to file a brief should be construed as an indication that he now acquiesces in the Judge's decision. I do not agree. The Secretary should be given the benefit of the doubt because of the Commission's policy concerning the filing of exceptions and the submission of briefs.

Section 2200.91 of the Commission's Rules of Procedure (29 CFR 2200.91) provides that a party aggrieved by a Judge's decision may submit a petition for discretionary review. The same section provides that a failure of the Commission to act upon a petition shall be deemed a denial thereof. Whether such a rule meets the requirements of section 6 of the Administrative Procedure Act (5 U.S.C. [*3] section 555(e)) is not before us.

Here, the Secretary filed on April 2, 1973, a petition for discretionary review containing numerous exceptions to the Judge's decision. On April 4, 1973, Commissioner Van Namee directed review of the Judge's report by the full Commission. The Direction for Review listed four issues that were included in the Secretary's petition, but the Direction did not refer to the petition in any way.

The Commission's published rules establish no procedures for the filing of briefs subsequent to a Notice of Direction for Review before the full Commission. Instead, instructions are sent with the Notice to the parties stating that briefs are "invited" specifically on the issues that have been directed for review, but informing the parties that they may make presentations on other issues and expressly affording the parties the right to file exceptions to the Judge's decision. Notice of an intent to brief or file exceptions must be given within ten days from the date of the Direction for Reveiw. Briefs or exceptions must be filed within thirty days of the date of the notice. A copy of the notice is appended to this opinion for easy reference. I need not discuss [*4] here whether the notice meets the publication requirements of public information section of the APA (5 U.S.C. section 552).

In this case the Secretary did file a notice of intent to file brief and he had previously filed exceptions. That latter filing clearly met the thirty-day requirement, since exceptions were filed even before the Direction for Review was issued. The result reached by the majority apparently would require the Secretary to refile his exceptions after the Direction for Review or at least indicate that he is standing on his earlier presentation. The difficulty with this is that neither the Commission's rules nor instructions require him to do this. Indeed, the instructions permit exceptions. These have been filed, and have not been formally abandoned.

When a petition for review is filed containing exceptions to a Judge's decision and the Commission directs review of that decision, the exceptions should be considered by the Commission unless they are expressly abandoned. Section 557 of Title 5, U.S. Code (the APA) requires that an agency rule upon exceptions that are before it. Commission proceedings are subject to this requirement. See section [*5] 10(c) of the Act.

In closing, I note that the Commission is empowered under section 12(j) of the Act to review in its discretion the decisions of its hearing examiners (Administrative Law Judges). It follows perforce that the Commission is empowered to limit the issues that it will review in particular cases. It is clear, however, from the aforementioned instructions that it is not the general policy of the Commission to limit issues only to those expressly listed in any Direction for Review. Accordingly, the Secretary exceptions must be considered. The APA requires no less.

[The Judge's decision referred to herein follows]

BRENTON, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter 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 as the result of an inspection of a workplace under the onwership, operation or control of the Respondent, located at or near Lincoln, Montana and described as follows, "A mill to process small logs for fence posts," the Respondent [*6] has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation which was issued on August 8, 1972 alleges that the violations result from a failure to comply with certain standards promulgated by the Secretary by publication in the Federal Register on May 29, 1971 (36 F.R. 10466), and codified in 29 CFR Part 1910.

The description of the alleged violations contained on said Citation is as follows:

Citation No. 1: --

Item 1: -- Subpart "D", 29 CFR 1910.22(c): Covers and or guardrails were not provided to protect personnel from the hazards of open pit and tank in the following locations.

(1) South side -- long pole butt treating tank;

(2) East side -- treating tank.

Item 2: -- Subpart "H", 29 CFR 1910.106(e)(6)(i): Adequate precautions were not taken to prevent the ignition of flammable vapors -- no "No Smoking" sign provided in the vicinity of fuel dispensing units located in yard.

Item 3: -- Subpart "J", 29 CFR 1910.145(f)(i): The following equipment not in use with no guards and/or shield was not tagged "Do Not Use":

(1) Portable [*7] hand grinder -- shop;

(2) Trouble light -- shop;

(3) Oil pump -- south side of treating building.

Item 3: -- Subpart "J", 29 CFR 1910.145(f)(i): The following equipment not in use with no guards and or shield was not tagged "Do Not Use":

Item 4: -- Subpart "N", 29 CFR 1910.178(m)(5): Unattended industrial truck, JD 440, with load engaging means not fully lowered -- located in yard south of office.

Item 5: -- Subpart "O", 29 CFR 1910.213(b)(5): A positive means was not provided for rendering controls or devices to electric motors inoperative while adjustments and repairs were being made -- chain on post deck.

Item 6: -- Subpart "O", 29 CFR 1910.215(a)(2)(4): Abrasive wheel grinder was not provided with guards and work rests -- shop work bench.

Item 7: -- Subpart "Q", 29 CFR 1910.252(b)(4)(ix)(c): Welding cables with damaged insulation or exposed conductors were not repaired/replaced at the following locations:

(1) Shop -- south side;

(2) Post sorting area -- east side.

Item 8: -- Subpart "R", 29 CFR 1910.265(c)(4)(iv): Walkway on mix tanks more than 4 feet from ground level was not provided with a standard railing.

29 CFR 1910.265(c)(10): Side rails of fixed metal ladder [*8] for access to top of diesel storage tank did not extend 3-1/2 feet above top of tank -- southeast of office.

29 CFR 1910.265(c)(12)(i) Article 250-45 NEC 1971: Master 1/2 inch drill located in shop was not provided with a ground.

29 CFR 1910.265(c)(16): 3000 gallon diesel tank located less than 5 feet from main building was not provided with a foundation designed to minimize the possibility of uneven settling -- southeast of office.

29 CFR 1910.265(c)(22): The following equipment was not provided with belt and pulley guard: (1) Feeder pump -- boiler house; (2) Portable compressor -- shop.

29 CFR 1910.265(c)(24)(v) to (viii)(c): Wire rope located on boom truck winch drum was kinked smashed and not taken out of service. U-bolt wire rope clips were not applied so that "U" section is in contact with the dead end of the rope -- boom truck.

29 CFR 1910.265(c)(30)(ii): Yard -- Pettibone carry lift was in operation without audible warning signal.

Item 9: -- 29 CFR 1910.265(g): Protective shield and barriers were not provided to prevent physical contact with auger and auger chain drive -- post sorting area.

Item 10: -- 29 CFR 1910.265(i): Tags to show maintenance and recharge [*9] dates were missing from portable fire extinguishers -- six throughout the mill.

The standards as promulgated by the Secretary provide as follows:

Item No. 1 of Citation -- Subpart "D" 29 CFR 1910.22(c): "22" General requirements. This section applies to all permanent places of employment, except where domestic, mining, or agricultural work only is performed. Measures for the control of toxic materials are considered to be outside of the scope of this section.

(c): Covers and guardrails. Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches etc.

Item No. 2 of Citation -- Subpart "H" 29 CFR 1910.106(e)(6)(i): "106" Flammable and combustible liquids. (e) Industrial plants. (6) Sources of ignition -- (i) General. Adequate precautions shall be taken to prevent the ignition of flammable vapors. Sources of ignition include but are not limited to open flames; lightning; smoking; cutting and welding; hot surfaces; frictional heat; static, electrical, and mechanical sparks; spontaneous ignition, including heat-producing chemical reactions; and radiant heat.

Item No. 3 of Citation -- Subpart "J" 29 CFR 1910.145(f)(1): [*10] "145" Specifications for accident prevention signs and tags (f) Accident prevention tags -- (1) Scope and purpose. (i) The tags are a temporary means of warning all concerned of a hazardous condition, defective equipment, radiation hazards, etc. The tags are not to be considered as a complete warning method, but should be used until a positive means can be employed to eliminate the hazard; for example, a "Do Not Start" tag on power equipment shall be used for a few moments or a very short time until the switch in the system can be locked out; a "Defective Equipment" tag shall be placed on a damaged ladder and immediate arrangements made for the ladder to be taken out of service and sent to the repair shop.

Item No. 4 of Citation -- Subpart "N" 29 CFR 1910.178(m)(5): "178" Powered industrial trucks. (m) Truck operations. (5) When leaving a powered industrial truck unattended, load engaging means shall be fully lowered, controls shall be neutralized, power shut off, brakes set, key or connector plug removed. Wheels shall be blocked if the truck is parked on an incline.

Item No. 5 of Citation -- Subpart "O" 29 CFR 1910.213(b)(5): "213" Woodworking machinery requirements. [*11] (b) Machine controls and equipment. (5) On each machine operated by electric motors, positive means shall be provided for rendering such controls or devices inoperative while repairs or adjustments are being made to the machines they control.

Item No. 6 of Citation -- Subpart "O" 29 CFR 1910.215(a)(2)(4): "215" Abrasive wheel machinery. (a) General requirements -- (2) Guard design. The safety guard shall cover the spindle end nut, and flange projections. The safety guard shall be mounted so as to maintain proper alignment with the wheel, and the strength of the fastenings shall exceed the strength of the guard, except:

(i) Safety guards on all operations where the work provides a suitable measure of protection to the operator, may be so constructed that the spindle end, nut, and outer flange are exposed; and where the nature of the work is such as to entirely cover the side of the wheel, the side covers of the guard may be omitted; and

(ii) The spindle end, nut, and outer flange may be exposed on machines designed as portable saws.

(4) Work rests. On offhand grinding machines, work rests shall be used to support the work. They shall be of rigid construction and designed [*12] to be adjustable to compensate for wheel wear. Work rests shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage. The work rest shall be securely clamped after each adjustment. the adjustment shall not be made with the wheel in motion.

Item No. 7 of Citation -- Subpart "Q" 29 CFR 1910.252(b)(4)(ix)(c): "252" Welding, cutting, and brazing. (b) Application, installation, and operation of arc welding and cutting equipment. (4) Operation and maintenance. (ix) Maintenance. (c) Work and electrode lead cables should be frequently inspected for wear and damage. Cables with damaged insulation or exposed bare conductors shall be replaced. Joining lengths of work and electrode cables shall be done by the use of connecting means specifically intended for the purpose. The connecting means shall have insulation adequate for the service conditions.

Item No. 8 of Citation -- A. Subpart "R": 29 CFR 1010.265(c)(4)(iv): "265" Sawmills. (c) Building facilities, and isolated equipment -- (4) Walkways, docks, and platforms -- (iv) Elevated walks. All elevated [*13] walks, runways, or platforms, if 4 feet or more from the floor level, shall be provided with a standard railing except on loading or unloading sides of platforms. If height exceeds 6 feet, a standard toe board also shall be provided to prevent material from rolling or falling off.

B. 29 CFR 1910.265(c)(10): "265" Sawmills. (c) Building facilities and isolated equipment -- (10) Ladders. Ladders shall be installed and maintained as specified in § § 1910.25, 1910.26, and 1910.27. Section 1910.27 is as follows: Fixed ladders (d) Special requirements -- (3) Ladder extensions. The side rails of through or side-step ladder extensions shall extend 3-1/2 feet above parapets and landings.

C. 29 CFR 1910.265(c)(12)(i): "265" Sawmills. (c) Building facilities and isolated equipment -- (12) Electrical wiring and equipment -- (i) All electrical equipment should be installed and maintained in accordance with requirements specified in Subpart "S" of this part, Subpart "S", Section 1910.314 is as follows: Grounding. (a) Circuit and system grounding -- (4) Equipment connected by cord and plug. Under any of the conditions of this subparagraph, exposed non-current carrying metal parts [*14] of cord and plug connected equipment, which are liable to become energized, shall be grounded: (iii) In other than residential occupancies, (c) Portable, hand held, motor operated tools, and appliances of the following types: drills, hedge clippers, lawnmowers, wet scrubbers, sanders and saws, . . .

D. 29 CFR 1910.265(c)16): "265" Sawmills. (c) Building facilities and isolated equipment -- (16) Flammable liquids -- Flammable liquids shall be stored and handled in accordance with Section 1910.106." Section 1910.106 is as follows: Flammable and combustible liquids. (b) Tank storage. (5) Supports, foundations and anchorage for all tank locations. (v) Tanks shall rest on the ground or on foundations made of concrete, masonry, piling or steel. Tank foundations shall be designed to minimize the possibility of uneven settling of the tank and to minimize corrosion in any part of the tank resting on the foundation.

E. 29 CFR 1910.265(c)(22): "265" Sawmills. (c) Building facilities and isolated equipment -- (22) Mechanical power-transmission apparatus. The construction, operation, and maintenance of all mechanical power-transmission apparatus shall be in accordance with the requirements [*15] of Section 1910.219. Section 1910.219 is as follows: Mechanical power-transmission apparatus. (d) Pulleys -- (1) Guarding. Pulleys, any parts of which are seven (7) feet or less from the floor or working platform, shall be guarded in accordance with the standards specified in paragraphs (m) and (o) of this section. (e) Belt rope, and chain drives -- (1) Horizontal belts and ropes. (i) Where both runs of horizontal belts are seven (7) feet or less from the floor level, the guard shall extend to at least fifteen (15) inches above the belt or to a standard height (see Table 0-12), except that where both runs of a horizontal belt are 42 inches or less from the floor, the belt shall be fully enclosed in accordance with paragraphs (m) and (o) of this section. (3) Vertical and inclined belts. (i) Vertical and inclined belts shall be enclosed by a guard conforming to standards in paragraphs (m) and (o) of this section. (m) Standard guards -- general requirements -- (1) Materials. (i) Standard conditions shall be secured by the use of the following materials. Expanded metal, perforated or solid sheet metal wire mesh on a frame of angle iron, or iron pipe securely fastened to floor [*16] or to frame of machine. (o) Approved materials -- (1) Minimum requirements. The materials and dimensions specified in this paragraph shall apply to all guards, except horizontal overhead belts, rope, cable, or chair guards more than seven (7) feet above floor or platform.

F. 29 CFR 1910.265(c)(24)(v)(viii)(c): "265" Sawmills. (c) Building facilities, and isolated equipment -- (24) Ropes, cables, slings, and chains -- (v) Ropes or cables. (a) Wire rope or cable shall be inspected when installed and once each week thereafter, when in use. It shall be removed from hoisting or load-carrying service when kinked or when one of the following conditions exists: (viii) Socketing, splicing, and seizing. (c) Wire rope clips attached with U-bolts shall have these bolts on the dead or short end of the rope. The U-bolt nuts shall be retightened immediately after initial load carrying use and at frequent intervals thereafter.

G. 29 CFR 1910.265(c)(30)(ii): "265" Sawmills. (c) Building facilities, and isolated equipment -- (30) Vehicles. (ii) Warning signals and spark arrestors. All vehicles shall be equipped with audible warning signals and where practicable shall have spark [*17] arrestors.

Item No. 9 of Citation -- Subpart "R": 29 CFR 1910.265(g): "265" Sawmills. (g) Personal protective equipment. The requirements for personal protective equipment specified in subpart I shall be complied with. Subpart I -- Personal Protective Equipment, Section 1910.132, General requirements, the pertinent portion of which is as follows: (a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

Item No. 10 of Citation -- Subpart "R": 29 CFR 1910.265(i): "265" Sawmills. (i) Fire protection. The requirements of Subpart L of this part shall be complied with in providing the necessary fire protection for sawmills. The applicable portion of Subpart L -- Fire Protection [*18] is as follows: Section 1910.157 -- Portable fire extinguishers -- (iv) Each extinguisher shall have a durable tag securely attached to show the maintenance or recharge date and the initials or signature of the person who performs this service.

Pursuant to the enforcement procedure set forth the Section 10(a) of the Act, Respondent was notified by letter dated August 8, 1972, from Vernon A. Strahm, Area Director of the Billings, Montana Area, that the Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the violations alleged in the amount of $135.00.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Great Falls, Montana on November 20, 1972.

This cause is now before this Review Commission Judge for determination on the pleadings, the transcript of the testimony, the exhibits and oral arguments of the parties. The parties declined to prepare and file written briefs on the facts and law.

The essential facts for a definitive Decision and Order, as delineated from the transcript, record and exhibits are:

FINDINGS OF FACT

1.) [*19] The correct Montana corporate name of the Respondent is Bouma Post Yards (TR 4).

2.) Respondent produces goods in Montana which it sells and ships beyond the boundary lines of this State (TR 4).

3.) Respondent averages seven (7) workmen on the job site annually (TR 6). They are engaged in fabricating posts from raw logs (totality of the TR).

4.) The Citation, notice of contest and each piece of correspondent including the notice of the scheduled hearing, as received by Respondent, were posted in the lunchroom on the job site (TR 7 and Record).

5.) No affected employee nor affected employee representative appeared to claim party status prior to the commencement of the hearing (TR 2, 7, 8).

6.) There was a cover for the treatment tank to which the Compliance Officer alluded which was resting at or near the tank at the time of the inspection (TR 81, 83). Further, the totality of the testimony fails to allude to any failure to provide a cover and/or guardrail for an additional tank as set forth in Item 1 of the Citation.

7.) There was no "No Smoking" sign posted within the area of Respondent's gas pump (TR 21, 85, 86).

8.) The portable hand grinder, the trouble light, and oil [*20] pump were not tagged "Do Not Use."

(a) This equipment was not presently being utilized.

(b) There was no ground on the grinder, it was scheduled for repairs and out of service and was not capable of being energized unless plugged into an electric outlet. Further, it was equipped with a wire brush instead of a grinding wheel.

(c) The oil pump was equipped with a pulley absent a guard, not capable of being energized unless plugged into an electric outlet, and it was outside the confines of any building or work area.

(d) No evidence of a hazard was presented touching on the trouble light (TR 22, 23, 24, 87, 88).

9.) The grapple on the unattended industrial truck was resting approximately twelve (12) inches above the level of the ground (TR 89, Exh. C-2).

10.) An electrical control box with eight multi-breakers with door, lock and key, one breaker of which controlled the system operating the chain on the post deck was located on the wall in the peeling plant (TR 91, 92).

11.) The abrasive wheel machine was a little portable bench grinder (TR 93, Exh. C-3, 95).

(a) No work rest (TR 37)

(b) No shields (TR 37)

(d) It was inoperative and out of service (TR 37, 93).

12.) The insulation on the welding lead cable was broken (Exhs. C-4, C-5).

(a) Abatement may be accomplished by repairs (TR 100).

13.) The guard rail around the mix tanks did not have a middle rail (TR 102, 103, 104).

(a) This rail was constructed on the outside of the walkway which was below the top of the tank (TR 45).

(b) This guard rail is to prevent a workman from falling to the ground (TR 46).

14.) Side rails to fixed metal ladder attached to Diesel storage tank failed to extend three and one-half feet (3-1/2) above top of tank (Exh. C-6).

(a) This ladder was not utilized for any purpose and was removed after the inspection (TR 104).

15.) The master drill utilized in Respondent's place of business was connected by cord and plug, had exposed non-current carrying metal parts which could become energized (TR 52).

(a) This drill was not equipped with a ground (Exh. C-7).

16.) The foundation upon which the supporting legs of the Diesel fuel tank rested consisted of logs of uneven surfaces laid horizontally with boards covering the logs in two instances (Tr. 54; Exh. C-8).

(a) The evidence is inconclusive [*22] that one leg made no contact with the foundation (Tr. 54; Exh. C-8).

(b) Cross-examination revealed the mere naked fact that this tank may be located at a place less than five (5) feet from the main building on Respondent's premises (Tr. 107).

17.) The feeder pump was equipped with a vertical belt and pulleys less than seven (7) feet from the floor and was unguarded (Tr. 56; Exh. C-10). The portable compressor was equipped with a horizontal belt and pulleys less than seven (7) feet from the floor and was unguarded (Tr. 55; Exh. C-9).

(a) No work whatsoever is performed in the area of the feeder pump except for one man to go to the front of the machine to flip the switch, to make the machine operable, at which time he would be no nearer to the belt and pulleys than eighteen (18) to twenty-four (24) inches (Tr. 108, 109, 110).

(b) However, it was oiled periodically and has been guarded following the inspection. (Tr. 135).

18.) The wire rope of the boom truck where a wire rope clip was attached by means of a U-bolt was engaged on the live or long end of this wire rope (Tr. 58, 59, 60, 110, 111; Exh. C-11). There may be, at the very most, a flat spot in the wire rope around the [*23] winch drum of the boom truck (Tr. 60, 112, 113, 114, 115; Exh. C-12).

19.) The pettibone carry lift is a vehicle which was equipped with a warning device that was not audible (Tr. 62, 63, 64, 115, 116; Exh. C-13).

20.) The auger and auger chain drive are located under the frame of a peeling machine. One half of the auger is buried beneath the floor level and thirty (30) inches below the middle of the frame of the machine which is four (4) feet wide. The outside of the frame of the machine and the location of the switch box on a fram were so constructed that together there was an extension over and above the auger chain drive of thirty (30) inches perpendicularly and horizontally (Tr. 117, 118, 119, 120, 121, 122, 123, 125).

There was no separate barrier or shield on or near the auger nor the auger chain drive (Tr. 65, 66, 69, Exhs. C-14, C-15).

21.) No portable fire extinguisher was tagged and initialed to show the maintenance or recharge date (Tr. 71).

(a) Employees of Respondent checked the extinguishers daily for pressure (Tr. 126, 128).

22.) The total proposed penalty for alleged violations set forth in items, 5, 6, 8 and 9 of the Citation is $135.00 (Exh. C-17). [*24] This monetary figure was reached by considering the gravity of each violation, which consisted of severity and likelihood of injury and instances of exposure, thereby establishing a maximum penalty for each alleged violation. Each was reduced by the maximum credit for each of good faith, previous history, abatement and size of the business (Tr. 31, 32, 33, 34, 35, 38, 39, 40, 49, 50, 53, 54, 56, 61, 62, 63, 64, 70, 71; Exh. C-17).

(a) The proposed penalty for Item 8 which consists of seven separate alleged violations is $40.00; calculated in the same manner as heretofore delineated but as a group (Tr. 64).

Further, the Secretary's only witness, the Compliance Officer, was unable to demonstrate in any manner the allocation of the proposed penalty to any one of the seven alleged violations. The fact is the proposed penalty was assessed for Item 8 as a whole.

(b) Respondent strove in every way to bring its plant and the facilities therein and thereon up to accepted and known safety practices and standards immediately prior to, during and after the inspection. Abatement of any finalized violations either has been or will be accomplished (Tr. 11, 12, 13, 33 and totality of the Tr.). [*25]

(d) Respondent employed less than twenty (20) workmen (Tr. 34).

23.) Each alleged violation is cited as other than serious, willful or repeated (See citation in the record).

24.) The gravity of the violations as set forth in items 1, 2, 3, 4, 7 and 10 of the citation was determined to be nil by the inspector and the area director. No penalty was proposed for any one of these (Exh. C-17).

DISCUSSION OF THE ISSUES

Item 1 of Citation

Here the allegation is failure to provide covers and or guardrails for two treating tanks. The thrust of the standard is "shall be provided" for the protection of personnel from the hazard of an open tank. The word "provided" means to furnish, supply or equip. Obviously if provision has been made it should be utilized for the purpose intended. The Secretary would read into the standard "covers and/or guardrails shall be in place on or at open tanks when not in use." This construction is unacceptable. The standard must be construed within the framework of the meaning and intent of the language chosen by its fashioners. (See the discussion under Item 59 of Citation) This [*26] allegation should be vacated.

Item 2 of Citation

The allegation here is for a violation of a general as opposed to a specific standard. The intent and purpose of the standard is to prevent the ignition of flammable vapors. There was no evidence as to the propensity of the gasoline to vaporize, the volume thereof, if any, and its flash point, if any, while being extracted from an underground tank through the pump and hose into a tank of a motor vehicle within the confines of the particular area and location of the gas pump.

The standard requires "adequate precautions." Evidently the Secretary has made a judgment that given a gasoline dispensing unit, regardless of all the attending facts and circumstances, it is mandatory under the standard cited to post a "No Smoking" sign within the vicinity of the unit to ensure the safety and health of any employee engaged in using it.

This Judge has the strange notion, that it is common knowledge, that some care and caution attaches to the act of dispensing gasoline. Also, that regardless of such knowledge, the frailities of human nature oft times compel a resistance to a "No Smoking" sign.

The issue thus presented is not the adequacy [*27] of the precaution mandated by the Secretary but rather whether the standard proscribes the ommission of posting a "No Smoking" sign as dangerous and harmful under the dearth of the evidence presented.

The Citation dictates "flammable vapors" and is void as to "combustible liquids."

There being a total absence of evidence as to the emission of a vapor that may or could be ignited by smoking, this allegation should be vacated.

Item 3 of Citation

The allegation here has to do with the failure to tag three items of non-used equipment "Do Not Use." Again the standard alleged to have been violated is general and not specific.

Accident prevention tags, according to the standard cited, are only a temporary means for warning, cautioning or safety instruction of employees who may be exposed to hazards.

No where do the standards disclose the tag "Do Not Use," however, it is suggested by reference to "Do Not Start" and "Defective Equipment" tags.

The Compliance Officer was rather vague as to what he had in mind as to the alleged non-tag violations, nevertheless, it appears that the issue, in each instance has to do with the potential for injury under the peculiar facts and circumstances [*28] revealed by the evidence.

Obviously as to the trouble lamp there is no issue. The memory and memorandum of the government's witness on this subject was totally void and this portion of this item as alleged should be vacated.

True, the belt and pulley on the oil pump was unguarded, however, due to its location and the other attendant facts and circumstances its potential for physical harm, absent a tag, was exceedingly remote. Therefore, this portion of this item as alleged should be vacated.

It is also true that the portable hand grinder was absent a ground wire. Here it would seem that the issue has to do with the probability of an employee attempting to make use of it, absent the tag, to buff an inner tube. The evidence discloses only a naked possibility that this could occur. The law deals in probabilities and not mere possibilities.

This Judge construes the standards for the use of accident prevention tags to mean, that where, under all the facts and circumstances of any particular situation, there exists a reasonable probability of physical harm from the use of a particular instrumentality then it should be so tagged accordingly.

Further, if the framers of these standards [*29] intended possibility of harm then it must be made manifest to knowledgeable men of affairs in like and similar circumstances. Neither having been reflected by the evidence this portion of this item as alleged should also be vacated.

Item 4 of Citation

Here it is apparent this allegation was cited because of the language of the standard requiring that the load engaging means of an unattended powered industrial truck shall be fully lowered. The evidence is undisputed that it was only lowered to a point approximately one foot or slightly more from terra firma.

This then raises the issue of strict compliance with the standard promulgated under the Job Safety Act. Section 5(a)(2) of the Act states that "Each employer shall comply with occupational safety and health standards promulgated under this Act."

Strictly construed, then, a violation of the standard in this instance is unalterable. Further under the Act the standards set by the Secretary are, by the Congress, made mandatory. However, since the Congressional declaration of the purpose and policy of the Act, is to assure so far as possible every working man and woman in the nation safe and healthful working conditions, [*30] then the voice of substantial compliance surely rings a bell.

So, in this instance would the workman have been made any more free of physical harm had the grapple been fully lowered. This Judge just feels that the probability of harm under the facts and circumstances here presented was so remote that it was in fact nonexistent. Accordingly this item of the Citation as alleged should be vacated.

Item 5 of Citation

The hazardous conduct here is alleged as being a failure to provide a positive means for rendering controls or devices to electric motors inoperative while adjustments and repairs were being made to chain on post deck.

It is the Secretary's theory that when the lockout system provided in accordance with the standard is not used, then this omission, standing along is a violation of the standard.

It is the Respondent's theory that you can lead a horse to water but you can't make him drink.

The congress wisely imposed certain duties on each employee by virtue of Sec. 5(b) of the Act. The contemplation of each standard promulgated by the Secretary is to assure so far as possible safe and healthful working conditions. In this specific instance the Citation [*31] and the standard are separately couched in clear and unequivocal language. The sole duty imposed on the employer is to make provision for a lockout system. In other words, furnish the appropriate means, by which an employee may make repairs or adjustments to machines operated by electric motors free of the hazard of an inadvertent or accidental engagement of the control of any machine being so repaired or adjusted. The standard fails to impose a specific duty upon anyone to use the facility so provided. Nevertheless it would appear that its utilization is mandatory by implication.

The Respondent has not been charged with a failure to make use of the facility but with a failure to provide the facility. Had it been so charged then the issue of responsibility as to utilization as between employer and employee would have emerged. In passing it would appear that the logical conclusion would impose this duty upon the employee.

This Judge feels no compulsion to distinguish this item of the Citation from Review Commission decision in Secretary of Labor v. Universal Maintenance and Repair Corporation,

This item of [*32] the Citation and the accompanying proposed penalty should be vacated.

Item 6 of Citation

Here the concern has to do with whether or nor the failure to provide certain guards and a work rest for an inoperable portable bench grinder is a violation of the specific standard relied upon by the government. Also, whether the fact that, admittedly it had been operable and apparently used prior to inspection, in its then present appointments, subjects this machine to the provision of the standard alleged to have been violated.

The evidence presented having to do with this alleged violation left much to be desired. For example, a complete failure to disclose the diameter of the abrasive wheels of the portable grinder by direct evidence. The standards except safety guards on machines where mounted wheels are used in portable operations two (2) inches and smaller in diameter. Sec. 1910.215(a)(1)(ii). The trier of the facts is thus relegated to the task of making an inference predicated upon the photograph of the machine (Exh. C-3) together with all the other attending facts and circumstances. The resolution on this point, although difficult, should be in favor of the Respondent. [*33]

Further as to the charge of no guards it is observed that the standard relied on has to do with guard design rather than a requirement of guards. Machine guarding is covered under sub part (1) of paragraph (a) and paragraph (b). Moreover, the standard defining "safety guard" refers to paragraph (b) of Sec. 1910.215. The Compliance Officer was very emphatic about the standards under Subpart O is the word "shield" alluded to, however, it is apparent that he used it synonymously with guard. Nevertheless he in fact charged a failure to provide guards in accordance with a general standard which has nothing at all to do with where and when machine guards must be used. Under these circumstances the Respondent knows that it has been charged with failure to provide guards. But upon examination of the standard, it is alleged to have violated, it is utterly confused and at a complete loss to ascertain the specific omission with which it has been charged. Consequently Respondent is at a loss to frame a response or defense to the charge and thereby is effectively denied an opportunity to be heard.

The portion of this item alleging a failure to provide guards on an abrasive wheel grinder [*34] should be vacated.

The portion of this item alleging a failure to provide work rests for the same machine is not as perplexing. Sub paragraph (4) of the standard as cited reads in part "On offhand grinding machines work rests shall be used to support the work." "Offhand grinding" means the grinding of any material or part which is held in the operators hand. Subpart O Sec. 1910.211(b)(11). The matter of the word of art describing the kind of machine requiring the use of work rests was neither alleged nor contested. Nevertheless the evidence is conclusive that the machine in question is an offhand grinding machine as contemplated under the standard alleged.

There were no work rests provided and thus this portion of this item of the Citation should be affirmed if an inoperable machine is within the purview of the standard relied upon for violation.

The appropriateness of the penalty proposed here must be reckoned with. It is apparent that it has been made applicable to a single violation yet the gravity between the failure to use so called "side shields" and work rests is entirely different. Bursting of an abrasive wheel while at work and ths slipping of a hand into [*35] the wheel are two distinct matters. It would be a rare occassion that the latter would require medical attention; whereas the former, being struck by a piece of a bursted wheel, would be a rare occassion when medical attention would not be required. It just seems that there was a failure to account for any distinguishment.

Item 7 of Citation

The only problem presented by the broken insulation on welding lead cables is the method of abating the same. The standard would appear to make replacement mandatory. Nevertheless the Secretary of Labor by his own witness has apparently in this particular situation concluded to be realistic and approve repairs of cracked insulation by means of electrical tape equal to the insulation.

The Respondent having failed to repair or replace, the alleged violation here should be affirmed.

Item 8 of Citation

There are seven distinct and separate alleged violations here. For convenience in discussing these they will be identified by successive letters in the order of their appearance hereinabove.

The allegation here is the failure to provide a standard railing pursuant to the provisions of the standard alleged.

The issue presented is whether [*36] or not a mid-rail is a requisite to a standard railing.

A standard railing is defined by the standards as "A vertical barrier erected along exposed edges of a floor opening, wall opening, ramp, platform, or runway to prevent falls to persons." Sec. 1910.21(a)(6).

A mid-rail is defined by the standards as "A rail approximately midway between the guardrail and platform, used when required, and secured to the uprights erected along the exposed sides and ends of platforms."

It is obvious that the requirement of a standard railing, without more excludes a mid-rail. The requisite of a mid-rail is "used when required." There was argument that an applicable standard mandated an intermediate rail. Sec. 1910.23(c)(1). However, there was not one microscopic bit of evidence presented tending to show that the railing provided would not prevent falls to workmen engaged in using the platforms in the performance of their work.

Factually the guard rail, as that term was used by both the Complainant and the Respondent, is a vertical barrier within the definitive sense of a standard railing. But the lack of an intermediate rail falls short of satisfying the components of a standard [*37] railing if Sec. 1910.23(c)(1) and (e)(1) is determinative of the issue.

The standards relating to this issue may well be confusing and misleading. By virtue thereof the alleged violation failed to inform the employer with particularity that with which it was charged. The charge was a conclusion and not a definite and certain statement. The better practice certainly warrants a definitive allegation, even though in this case the Respondent was well aware of the intent of the allegation.

Although it would appear that an intermediate rail would not necessarily be excess baggage in the instant case, the allegation here should be vacated inasmuch as there has been substantial performance.

No issue was presented here except the relation of the proposed penalty for all of Item 8 to this particular alleged violation, if any there be, together with the degree of hazard, if any.

At the very most, this fixed metal ladder, absent the extension required by the standard, together with no utilization for any purpose, might in some quarters be considered an attractive nusiance. The likelihood of injury to an employee was non-existent. Furthermore, the hazard, if any, was abated [*38] immediately.

There was no showing here of any direct or immediate relationship to safety, consequently the alleged violation here should be accorded de minimis status.

The master drill was not provided with a ground which the Respondent concedes. Thus, no issue here except the appropriateness of any portion of the proposed penalty that may have been allocated to this alleged violation under Item 8.

This alleged violation should be affirmed.

The issue tried here was the possibility of uneven settling of a fuel tank. Only upon cross-examination did the allegation of its location being less than five (5) feet from the main building arise.

Respondent argued that regardless of the possibility of uneven settling of the foundation supporting the fuel tank, the asserted hazard of it falling over was an impossibility, because of the great weight of the amount of fuel contained in the tank at all times.

The real question presented is whether or not there was substantial reliable and probative evidence upon which a finding may be justified that the foundation in question was not designed to minimize the possibility of uneven settling. The Compliance Officer simply stated that [*39] the photograph depicted this fact. He evidently inferred this from the fact that he contended the picture shows one leg support not in contact with the foundation and that the surface of some pilings are uneven. Apparently he didn't make any of the simple tests to ascertain the tanks present state of unevenness, if any. Nor was any showing made as to the non-stability of the earth, if any. It is true that the foundation, composed of pilings, appears crude and unaesthetic. Also the housekeeping thereabouts is bad. None of these, however, tend to show a design incapable of minimizing uneven settling.

It is apparent from Respondent's evidence that it was not aware that it was charged with locating its tank at a place less than five (5) feet from nearest important building, until the Compliance Officer alluded to it on cross-examination. Apparently trial counsel for the Secretary was equally unaware. Nevertheless, the evidence on this point may at best disclose a mere naked violation of Sec. 1910.106(b)(2)(i)(e). Also there is a void in the evidence as to the consequences, if any there be, of a violation such as is alleged here.

The allegations here should be vacated. [*40]

Respondent made no issue of the alleged violation for failure to guard belt and pulley on portable compresser, but did argue that by reason of the very nature of the construction in and about and the location of the feeder pump the likelihood of injury was impossible, unless a workman purposely reached into the pulleys and belt.

It may be advisable to question the wisdom of a standard now and then, however, in this instance the applicable standard should and must have very broad application. The guard is essential to protect against inadvertence, curiosity and just plain cussedness. Moreover, its very presence is a warning in and of itself.

These allegations should be affirmed.

Here there are actually two separate and distinct allegations resulting in the issue of whether the engagement of a U-bolt in attaching a wire rope clip to the rope had been accomplished in accordance with the provisions of the standard alleged. Also, the issue of whether the wire rope had developed a kink requiring that it be removed from hoisting and load carrying service.

The first issue has been resolved by a finding adverse to the Respondent and therefore a discussion is rendered unnecessary. [*41] (See first paragraph of Finding of Fact No. 18 above)

The second issue presents the question of whether "flat spot," or, in the word of the Compliance Officer, "smashed," is synonymous with "kink."

The fashioners of the particular standard in issue here apparently coined the word "kinked," inasmuch as it has no standing in any available dictionary. In any event the word "kink," a noun, is defined as a twist or curl caused by a rope doubling or bending upon itself. It is most likely that the word "kinked" has common usage and understanding albeit absent dictionary inclusion. Therefore, the fashioners undoubtedly selected "kinked" in the sense of "kink" with its attended meaning and this Judge so construes.

The phrase "flat spot" is used here in the sense of a minute portion of the wire rope having a level characteristics as opposed to spherical or globular.

Smashed means a shattered condition. To smash is a process or state of collapse, ruin or destruction.

Now, therefore, there is no way to ascribe any synonymity as between "flat spot," "smashed" and "kink."

There being no evidence of a twist or a curl in the wire rope, it cannot be said that it was kinked as [*42] contemplated by the fashioners of the standard.

Accordingly the allegations here should be affirmed in part and vacated in part.

There is no justicable issue here. The warning signal system, although a part of the equipment of the vehicle in question, failed to function with audibility.

Accordingly the alleged violation here should be affirmed.

Item 9 of Citation

The issue presented here is whether at the particular place of employment in question, an employee may encounter any hazard, by reason of the processes or the environment present, in a manner capable of causing injury or impairment through physical contact thereby requiring a personal protective shield or barrier.

Environment as it relates to the standard cited means the aggregate of surrounding things, conditions or influences as affecting the existence of a workman. A process is a series of progressive and interdependent steps by which an end is attained.

Therefore the inquiry is whether, under all the facts and circumstances presented, there has been a showing of a reasonable probability of harm that may or could result from the processes employed or the environment then and there existing.

This requires [*43] a searching analysis of the standard relied upon by the Secretary. His focus, through his Compliance Officer, was on the fact that some kind of shield or barrier was not provided on or around the auger chain drive and the auger. The standards alleged to have been violated speak unequivocably to "Personal Protective Equipment." Personal as used here must mean pertaining to, relating to, directed to or intended for a particular person; an employee, but personal unto himself in the sense of his own individual person or bodily aspect.

A shield is something that protects and, when personal, it is on or about the persons body to be protected. A barrier is anything that restrains or obstructs access and, likewise, when personal, it is on or about the person's body to prevent access.

The standards relied upon include a mandatory provision that the shields and barriers so provided be maintained in a sanitary condition. Further, paragraph (b) of Sec. 1910.132 permits employee-owned equipment and paragraph (c) thereof speaks to the design of all personal protective equipment. All of which, should leave no doubt as to the intent, purpose and requirements of the totality of the standards [*44] alleged in this item under consideration. These standards are specifically personal and have no general application.

There having been no evidence presented upon which a violation of the standards cited may be predicated this item of the Citation and the proposed penalty should be vacated.

Furthermore, even if there is any merit to the application of the standards urged by the Secretary, it would appear that the proof fails to show any reasonable probability that harm could or may result from the processes or the environment. The work performed by the one lone employer in the area was that of guiding logs into and through a log peeling and finishing machine. This machine and its appointments were all so constructed that there was in fact a natural barrier barring access to the auger chain drive and the auger.

Also it is observed that regardless of Respondent's vigorous defense to this item of the Citation it immediately abated the condition alleged by the Compliance Officer by placing barriers on or about the auger chain drive and the auger.

Item 10 of Citation

Respondent's concern here was where, when and by whom should portable fire extinguisher be inspected and [*45] maintained.

The specific charge relates only to the failure of each extinguisher to disclose by a tag the maintenance and recharge dates. There having been a finding that this failure did in fact exist, the standard alleged was violated and thus this item of the Citation should be affirmed.

The other matters raised hereunder by the Respondent are not in issue and require no consideration.

CONCLUSIONS OF LAW

1. Respondent is engaged in interstate commerce and was accorded procedural due process, thereby establishing jurisdiction of the cause and the parties in this Review Commission.

2. All affected employees of the Respondent, represented or otherwise, were afforded procedural due process and a right to be heard.

3. Where the evidence shows that a machine is inoperable, there must be a showing of at least a minimum probability of its capability to be made operable, in order to predicate a violation upon any particular standard with reference to this machine. This is so, otherwise there is not even a possibility of harm, much less a probability.

4. The Job Safety Act has not made the employer an insurer or a guarantor of the safety of his employees. Therefore, when he [*46] has provided the facility or means compelled by a standard, for the purpose of rendering a hazardous condition safe, he has satisfied the legal imposition of the standard.

5. When an employer provides a cover for an open tank and a positive means to lockout electric power it becomes the duty of the employee in governing and discipling his own actions and conduct to utilize these facilities when the occasion demands, provided he has been so instructed and made knowledgeable concerning the same.

6. The Secretary of Labor does not gain Carte Blanche authority, from the naked fact that a standard gasoline pump is in existence and utilized upon an employer's property, to issue a Citation for failure to post a "No Smoking" sign.

7. The attribute of a "No Smoking" sign as an adequate precaution for the prevention of the ignition of flammable vapors or combustible liquids is denied when the trier of the facts must resort to guess work and speculation.

8. Accident prevention tags, as prescribed in the safety standards, are required in each instance where the peculiar facts and circumstances, then and there existing, demonstrate to a reasonable prudent employer a reasonable [*47] minute probability or a relative possibility that harm will occur upon the failure to so tag.

9. Where substantial performance of a particular standard demonstrates, without a reasonable doubt, no relative possibility of injury or harm, an alleged violation of this standard should be vacated.

10. Where a charge is the failure to provide guards on an abrasive wheel grinder, predicated upon the requisites of a standard describing safety guard design, the charge is a nullity.

11. The Government has the burden of showing that a particular charge does not fall within a particular exception provided by the standards, and where neither party makes issue thereof, but the direct and circumstantial evidence reveals the issue, the trier of the facts and the law may inferentially resolve the matter.

12. Where the Secretary's own expert witness attests to the fact that, repairing cracked insulation on welding lead cables by means of electrical tape equal to the insulation is complemental to replacement, then the mandate of the standard is satisfied.

13. In order to sustain a Citation for failure to provide a standard railing upon a walkway in accordance with the requirement for an intermediate [*48] rail, there must be made to appear, affirmatively from the evidence, that the absence of the mid-rail creates a condition whereby it may reasonably be ascertained that some injury, however slight, could or may be anticipated as a common probability. Absent this evidence, any vertical barrier provided must be accorded the conclusion that there has been substantial compliance with the standards which satisfies the legal impositions.

14. Where the hearing develops facts from which it may be reasonably concluded that the alleged Citation is a de minimis violation, together with the fact that the condition was abated immediately, then the Citation is subject to being vacated.

15. Where, upon cross-examination, there is revealed that there may be a mere naked violation of a standard and the Complainant fails to pursue this matter, then the Citation pertaining thereto has been abandoned.

16. Before an employer is required to remove a wire rope or cable from hoisting or load carrying service, it must be shown that a kink therein in fact exists, from the rope or cable doubling or bending upon itself.

17. Personal protective equipment means personal to the employee in the [*49] sense of his own individual person or bodily aspect.

18. The absence of barriers and shields to or about an auger and an auger chain drive is not a violation of 29 CFR 1910.265(g) as alleged and prosecuted by the Secretary.

19. Tagging portable fire extinguishers showing maintenance and recharge dates is one of the many essential requisites to assure so far as possible every workman safe working conditions. Therefore, the standard relating thereto is valid and enforceable.

20. Where the proposed penalty for one item of a Citation which includes seven separate and distinct alleged violation of the standards, is grouped and assessed as a whole for that Item of the Citation, and after due hearing of the contest, some of these alleged violations are vacated, then there is no way whereby a determination of the proposed penalty may be allocated to the affirmed alleged violations, and thus the proposed penalty here must be vacated.

ORDER

In accordance with the Findings of Fact, the Discussion of the Issues and the Conclusions of Law, hereinabove delineated, it is adjudged that the Complainant either failed on the law or on the substantial, reliable and probative evidence [*50] to sustain a case for Items of alleged violations of the Citation numbered and lettered as follows: 1, 2, 3, 4, 5, 6, 8A, 8B, 8D, 8F in part as hereinafter delineated and 9. Also it is adjudged by the same criteria that he succeeded in sustaining a case for Items of alleged violations of the Citation numbered and lettered as follows: 7, 8C, 8E, 8F in part as hereinafter delineated, 8G and 10.

It is further adjudged, in accordance with all of the foregoing, that all the proposed penalties be vacated.

WHEREFORE, it is Ordered that alleged violations being Items 1, 2, 3, 4, 5, 6, 8A, 8B, 8D, 9 and 8F, excepting therefrom the alleged violation of the misapplication of U-bolt wire rope clip, of the Citation, be and they are hereby vacated.

It is further Ordered that alleged violations being Items 7, 8C, 8E, 10 and 8F, excepting therefrom the alleged violation of failure to remove kinked rope from service, of the Citation, be and they are hereby affirmed.

Further, it is Ordered that each separate proposed penalty together with the total thereof, be and the same are hereby vacated.