GENERAL ELECTRIC COMPANY, INC.
OSHRC Docket No. 2739
Occupational Safety and Health Review Commission
April 21, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: This case is before us on directions for review issued separately by Chairman Moran and Commissioner Van Namee under section 12(j) of the Occupational Safety and Health Act of 1970.
I. Background
On March 21 and 22, 1973, the Steam Turbine-Generator Products Division of General Electric's facility in Schenectady, New York, was inspected by two U.S. Labor Department safety inspectors. The Steam Turbine Division is housed in Buildings 52 and 273, and provides work for approximately four thousand of the more than twenty-seven thousand people employed by General Electric in the greater Schenectady area.
Subsequent to the March 1973 inspection, General Electric was served with six citations alleging serious violations of the Act: n1 one citation alleging six "other than serious" items as violations; one citation alleging a serious repeated violation; one citation alleging three "other than serious" items as repeated violations; and one citation alleging a willful serious violation. Concurrently with service of the citations, General Electric received a notification of proposed penalties [*2] in total amount of $14,800. A hearing was held in June 1973 in Schenectady, New York, before Administrative Law Judge Charles Chaplin. The Judge affirmed three of the citations for serious violations; the citation for a serious repeated violation with a reduced penalty; two items of the citation for non-serious violation and two items of the citation for repeated non-serious violations. The Judge dismissed one of the citations for serious violation; four items of the citation for non-serious violation; one item of the repeated non-serious violation; and the willful serious violation. Penalties totalling $1,650 were assessed. The following chart summarizes the status of each violation and proposed penalty at the time the case was called for review and also the disposition thereof by the Administrative Law Judge. It should facilitate discussion of the issues.
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n1 The Occupational Safety and Health Act of 1970 [29 U.S.C. § 651 et seq. (1970)].
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STATUS OF ALLEGED VIOLATIONS AT TIME CASE CALLED FOR REVIEW [*3]
29 CFR § 1910 n2 Standard Violated -- Key Words Describing Alleged Violation -- Nature of Violation -- Proposed Penalty -- Disposition by Administrative Law Judge -- Assessed Penalty
-- 252(b)(4)(ix)(c) -- Bare leads and conductors, welding machine -- Non-serious -- 0 -- Affirmed -- 0
-- 27(c)(4) -- Ladder clearance -- Non-serious -- 100 -- Amended to serious by ALJ's motion and affirmed -- 100
-- 27(f) -- Side rails of fixed metal ladder bent -- Non-serious -- 0 -- Vacated
-- 106(d)(2)(i) -- Open 55 Gallon Drum partially filled with combustible liquid -- Non-serious -- 100 -- Allowed amendment to allege.106(e)(9)(iii) violation. Vacated
-- 176(a) -- Permanent aisles and passageways not marked -- Non-serious -- 0 -- Vacated
-- 27(b)(1)(iii) -- Fixed metal ladder with less than 16 inch rungs -- Non-serious -- 0 -- Vacated
-- 252(e)(1)(i) -- Stator frame railings. Fall protection -- Serious -- 1,000 -- Vacated
-- 29(a)(3)(i) -- Improper height base ratio of scaffold -- Serious -- 1,000 -- Motion to Amend to § 5(a)(1) violation granted. Secretary moves to withdraw allegation based on failure of proof. Vacated
-- 27(d)(2) -- Ladder offset, ladder caging -- Serious -- 1,000 [*4] -- Affirmed -- 1,000
-- 243(c)(1)(i) -- Safety Guard on portable abrasive wheel -- Serious -- 1,000 -- Affirmed -- 250
-- 179(f)(4)(vii) -- Overhead Crane brake -- Serious -- 1,000 -- Dismissed on Motion of Secretary
-- 243(b)(1)(ii) -- Tool retainer on hand-held pneumatic chisel -- Serious -- 1,000 -- Changed characterization of violation from serious to de minimis and affirmed
-- 22(a)(i) -- Welding leads creating tripping hazard -- repeat Non-serious -- 500 -- Vacated
-- 157(a)(2) -- Fire Extinguisher -- repeat Non-serious -- 100 -- Affirmed -- 100
-- 252(e)(2)(iii) -- Welding Screens -- repeat Non-serious -- 1,000 -- Affirmed -- 100
-- 133(a)(1) -- Eye Protection -- repeat Serious -- 2,000 -- Affirmed -- 100
-- 23(c)(1) -- Fall Protection Stator Frame, Platforms 6' 10" lacked standard rails, Powered Work Platform lacked standard rail -- willful Serious -- 5,000 -- Vacated
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n2 Since all alleged standards violations were taken from 29 CFR Part 1910, only the numbers to the right of the decimal point are used in showing section designations.
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II. Issues Directed or Presented for Review
Chairman Moran has directed review and invited submissions on the following issues:
(1) Did the Judge err in concluding that "if the Secretary elects not to go forward with the proof as to any part of a citation any other party may elect to establish by exhibits or examination of witnesses such part of the citation?" (Section 1910.29(a)(3)(i) n3 Improper height base ratio of scaffold.)
(2) Did the Judge err by his disposition of that portion of the citation alleging a violation of the Act for failure to comply with 29 CFR § 1910.27(c)(4)? n4 (Ladder clearance; raised from non-serious to serious.)
(3) Was the Judge's duty to conduct a fair and impartial hearing (Rule 22) compromised by the action reflected by the following excerpt from the opinion (p. 54) ". . . the evidence clearly establishes that this is a serious violation and in accord with my earlier discussion I am amending the pleadings to so charge and find" (emphasis in the original).
(4) Was the said action of the Judge permissible in view of the Act's provisions that charges of violations thereof shall be made by the [*6] Secretary of Labor?
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n3 29 CFR § 1910.29 Manually propelled mobile ladder stands and scaffolds (towers).
(a) General requirements
(3) Work levels. (i) The maximum work level height shall not exceed four (4) times the minimum or least base dimension of any mobile ladder stand or scaffold. Where the basic mobile unit does not meet this requirement, suitable outrigger frames shall be employed to achieve this least base dimension, or provision shall be made to guy or brace the unit against tripping.
n4 See footnote 18 infra.
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Commissioner Van Namee has invited submissions on the following additional issues:
(1) Whether the trial Judge committed reversible error in vacating the alleged non-serious violation of 29 CFR § 1910.27(b)(1)(iii) n5 under the circumstances of this case?
(2) Whether the trial Judge committed reversible error in finding a serious repeated violation of 29 CFR § 1910.133(a)(1) n6 since respondent had made eye protection conveniently available to its employees?
(3) Whether [*7] the trial Judge committed reversible error in finding respondent in repeated violation of 29 CFR § 1910.157(a)(2) n7 and 29 CFR § 1910.252(e)(2)
(iii) n8 on the basis that respondent's Schenectady industrial complex and its various satellite operations constituted a single establishment for purposes of the Act?
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n5 29 CFR § 1910.27 Fixed ladders.
(b) Specific features -- (1) Rungs and Cleats
(iii) The minimum clear length of rungs or cleats shall be 16 inches.
n6 29 CFR § 1910.133 Eye and face protection.
(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition . . . .
n7 29 CFR § 1910.157 Portable fire extinguishers.
(a) General requirements --
(2) Location. Extinguishers shall be conspicuously located where they will be readily accessible and immediately available in the event of fire. They shall be located along normal paths of travel.
n8 29 CFR § 1910.252 Welding, cutting, and brazing.
(e) Protection of Personnel
(2) Eye Protection
(iii) Protection from arc welding rays. Where the work permits, the welder should be enclosed in an individual booth painted with a finish of low reflectivity such as zinc oxide (an important factor for absorbing ultraviolent radiations) and lamp black, or shall be enclosed with noncombustible screens similarly painted. Booths and screens shall permit circulation of air at floor level. Workers or other persons adjacent to the welding areas shall be protected from the rays by noncombustible or flameproof screens or shields or shall be required to wear appropriate goggles.
[*8]
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In addition to those issues directed for review by the Commission both the Secretary and Local Nc. 301 (IUE), an authorized employee representative, have preserved issues which require discussion and disposition. n9 They have taken exception to the parts of the Judge's decision which held:
(1) That section 1910.252(e)(1)(i) n10 did not apply to the top of a Stator Frame;
(2) That the violation of section 1910.243(b)(1) n11 was of a de minimis nature;
(3) That complainant failed to meet his burden of proof with respect to section 1910.106(e)(9)(iii) n12 since the liquid in the fifty-five gallon drum was not tested to see if it was combustible; (Issue preserved only by the Secretary of Labor.)
(4) That the evidence clearly established a repeat violation of section 1910.22(a)(1); n13
(5) That the evidence clearly established a willful serious violation of section 1910.23(c)(1). n14
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n9 Respondent did not request review of any portion of the Judge's decision.
n10 29 CFR § 1910.252 Welding, cutting, and brazing.
(e) Protection of personnel -- (1) General -- (i) Railing -- A welder or helper working on platforms, scaffolds, or runways shall be protected against falling. This may be accomplished by the use of railing, safety belts, life lines, or some other equally effective safeguards.
n11 29 CFR § 1910.243 Guarding of Portable power tools.
(b) Pneumatic powered tools and hose --
(1) Tool retainer -- A tool retainer shall be installed on each piece of utilization equipment which, without such a retainer, may eject the tool.
n12 29 CFR § 1910.106 Flammable and Combustible liquids.
(e) Industrial plants --
(9) Housekeeping
(iii) Waste and residue. Combustible waste material and residue in a building or unit operating area shall be kept to a minimum stored in covered metal receptacles and disposed of daily.
n13 29 CFR § 1910.22 General requirements.
(a) Housekeeping (1) All places of employment, passageways, storerooms and service rooms shall be kept clean and orderly and in a sanitary condition.
n14 29 CFR § 1910.23 Guarding floor and wall openings and holes.
(c) Protection of open-sided floors, platforms and runways. (1) Every opensided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent . . .) on all opensides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever beneath the opensides, (i) Persons can pass or, (ii) There is equipment with which falling materials could create a hazard.
[*9]
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On December 14, 1973, the Union Petition for Discretionary Review, asked that the Commission review the Judge's Decision and Order with regard to the following additional issues:
(1) That the Judge erred by finding that there was no serious violation of section 1910.29(a)(3)(i), n15 amended to a violation of section 5(a)(1) (29 U.S.C. § 654(a)(1)), notwithstanding record evidence establishing that the scaffold in question created a general duty hazard to employees;
(2) That the Judge erred in dismissing the citation for a violation of section 1910.27(f), n16 by overlooking record testimony of credited witnesses that the hazard created was that of an employee misjudging, slipping, and falling rather than of stability of a bent ladder;
(3) That the Judge erred in failing to find a violation of section 1910.176(a), notwithstanding General Electric's admissions that it had not complied with the standard;
(4) That the Judge erred by vacating OSHA standard section 1910.27(b)(1)(iii), n17 rather than finding a violation for which the respondent had been cited and an employee injured;
(5) That [*10] the Judge erred by not reclassifying certain citations that should have been classified willful and/or repeated, and that were more serious than claimed by the Secretary; and
(6) That the Judge erred by failing to recommend "other appropriate relief" consistent with the statutory mandate in Section 10(c) (29 U.S.C. § 659(c)) in view of respondent's numerous, repeated violations of sections 5(a)(1) and (2) (29 U.S.C. § 654(a)(1), (2)).
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n15 See footnote 3 supra.
n16 29 CFR § 1910.27 Fixed Ladders.
(f) Maintenance. All ladders shall be maintained in a safe condition. All ladders shall be inspected regularly, with the intervals between inspection being determined by use and exposure.
n17 See footnote 5, supra.
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III. Disposition
Resolution of the issues presented by this case will begin with those directed by Commission Chairman Moran; will continue with those directed by Commissioner Van Namee: and conclude with those preserved by the Secretary of Labor and the authorized employee's [*11] representative.
The critical issues that are presented by the various contentions are outlined below. For easy reference, the lettered items correspond with the detailed discussion that follows.
A. Height-base ratio of a scaffold -- the power of a union to assume the burden of proof concerning a violation when the Secretary of Labor seeks to withdraw.
B. Ladder with inadequate clearance -- whether the Judge was empowered to characterize the "other than serious" violation as "serious."
C. Concerning a requirement in a standard that fixed ladder rungs have a minimum clear length of 16 inches -- was the Judge empowered to rule in effect that the standard did not meet the statutory defintion of the term "occupational safety and health standard" in section 3(8) (29 U.S.C. § 652(8)) of the Act because it was "not necessary or appropriate to provide a safe or healthful employment and place of employment."
D. Eye protection -- the responsibility of an employer with respect to a "repeated" violation, whether a previously cited violation may be the basis of a "repeated" violation at a different worksite involving the same employer and essentially the same violation.
E. Fall protection [*12] for employees -- a question of standards interpretation involving exotic working conditions.
F. Pneumatic powered tools -- another question of standards interpretation.
G. Housekeeping; combustible waste -- a question of the Secretary of Labor's burden of proof.
H. Welding leads; tripping hazard -- a matter of reading two standards -- a standard designed to prevent tripping hazards resulting from welding cables in light of another standard that requires welding cables to be spread out in order to avoid serious overheating.
I. Stator frames and powered work platforms -- here are several issues, perhaps the most important of which is whether a violation of a standard may be based upon potential exposure of employees.
J. Bent fixed ladder -- a question of burden of proof.
K. Use of mechanical handling equipment in an area where permanent ailes and passageways were not appropriately marked -- a question of standards interpretation.
L. Other issues -- miscellaneous issues, including (1) whether the Commission has the power to order an employer to "cease and desist" from a policy of "unilaterally establishing health and safety programs without the advice, consent, [*13] and active participation of the Authorized Representative of Employees," and whether the Union may recover from General Electric the costs of this adjudication and reasonable attorney's fees.
A. Improper Height-Base Ratio of Scaffold
Citation for serious violation No. 2 (complaint paragraph VII-b) alleged respondent's violation of section 5(a)(2) (29 U.S.C. § 654(a)(2)) for failure to comply with 29 CFR 1910.29(a)(3)(i). As the result of a pre-hearing conference and at the outset of the hearing herein, the Secretary moved to withdraw the alleged violation. The motion was immediately objected to by the Union. Judge Chaplin reserved on the motion and the Union was permitted to present proof on the issue. Subsequent to the Union's presentation, the Secretary moved to withdraw its pending motion to withdraw that part of the complaint alleging respondent's violation of section 1910.29(a)(3)(i), and to substitute a motion to amend the complaint to allege respondent's violation of section 5(a)(1) (29 U.S.C. § 654(a)(1)), the so-called "general duty" clause. The Union concurred in the motion. General Electric strongly objected. Again Judge Chaplin reserved and the Secretary was [*14] permitted to offer proof on the "recognized hazard" element of a "general duty" clause violation. Finally, in his Reply Brief before Judge Chaplin, the Secretary noted that:
The respondent presented credible evidence with respect to the Secretary's alleged section 5(a)(1) violation, involving the weldevator scaffold, and the Secretary has apparently not sustained his burden of proof with respect to that alleged violation.
In his decision the Judge granted the Secretary's motion to amend in order to allege a section 5(a)(1) violation, and then vacated the citation. The Union challenged this holding. After a painstaking review of the evidence, we are convinced that the Judge should be affirmed on this issue.
The testimony of the Secretary's and the Union's witnesses was in direct contradiction to that of General Electric. The hazard alleged was the possibility of the weldevator scaffold tipping over while men were working from it. At maximum elevation (31 feet), there was between 1/2 to 1 inch of sway on the platform. Mr. Gordon Richardson, Vice President of M.D. Knowlton Co., manufacturer of the weldevator in question, testified that the unit met New York State requirements [*15] that 50 pounds of force in any direction would not render the weldevator unstable and that engineering calculations for the particular weldevator showed that the point of unstability was approximately 450 pounds of force applied at maximum height. In addition, on the Secretary's second objection, that the height-base ratio violated the widely accepted 4-to-1 rule, Mr. Richardson testified that the weldevator was manufactured with compensating outriggers. The effect of these outriggers was to increase the least-base measurement of the weldevator such that the 4-to-1 rule was not violated. Although the Union offered testimony that there were no outriggers or that available outriggers were not used, the Judge's credibility resolution on that issue is not overruled in light of the clear conflict of testimony. Colonial Stores, Inc. v. F.T.C., 450 F.2d 733 (5th Cir. 1971); N.L.R.B. v. Penzel Constr. Co., 449 F.2d 148 (8th Cir. 1971).
We therefore do not reach the issue framed by the Chairman as to whether the Judge erred in concluding that an employee representative could assume the burden of sustaining a citation if the Secretary elects not to undertake the burden. [*16]
B. Ladder Clearance (Section 1910.27(c)(4))
Item 2 of the citation for non-serious violation (complaint paragraph V-b) alleged General Electric's violation of section 5(a)(2) for failure to comply with section 1910.27(c)(4). The uncontroverted evidence adduced at the hearing revealed that a 24-foot, 4-inch fixed-metal ladder had a 2-inch rung clearance at the 17-foot level because a pipe crossed behind the ladder at that point. The pipe prevented the safe positioning of the foot on the rung at the 17-foot level. It is undisputed that a substantial probability of death or serious physical harm exists from the danger of a 17-foot fall. The only issue before us is whether on the facts the Judge acted correctly in characterizing the citation as serious rather than non-serious. n18
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n18 At the outset of its argument before this Commission, General Electric alleges vagueness in section 1910.27(c)(4), which reads as follows:
§ 1910.27 Fixed ladders.
(c) Clearance.
(4) Clearance in back of ladder. The distance from the centerline of rungs, cleats, or steps to the nearest permanent object in back of the ladder shall not be less than 7 inches, except that when unavoidable obstructions are encountered, minimum clearances as shown in figure D-3 shall be provided (emphasis added).
[SEE ILLUSTRATION IN ORIGINAL]
Respondent contends that the term "unavoidable obstruction" is not defined anywhere in the standards and "Figure D-3" does not deal with the same topics as does section 1910.27(c)(4). In support of its contention on the question of the vagueness of the phrase "unavoidable obstruction," General Electric relies on the Commission's 2 to 1 decision in Santa Fe Trail Transportation Co., No. 331 (December 18, 1973).
Assuming arguendo any power to review the validity of a standard on the vagueness issue because of the absence of a judicial decision delineating the Commission's powers in this regard, General Electric's position is without merit. The standard establishes two requirements. It requires a minimum of 7 inches of clearance behind the rung. It also establishes minimum clearances for obstructions between rung's (Figure E-3).
The standard furthers the objectives of the Act. When applied to the facts of the case it is clear and unambiguous. The application of the "reasonable man" test requires the conclusion that the standard is not vague. Brennan v. Ryder Truck Lines, 497 F.2d 230, 233 (5th Cir. 1974); Brennan v. Santa Fe Trail Transportation, 505 F.2d 869 (No. 74-1049) (10th Cir. 1974). Secretary of Labor v. McLean Trucking Co., 503 F.2d 8 (4th Cir. 1974).
[*17]
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The record reveals that at the pre-hearing conference, General Electric made a continuing objection to any attempt by the Union to "expand the complaint as phrased to one with an increasing degree of severity." Judge Chaplin's actions at the hearing, however, were to allow the full and free introduction of evidence on all issues which the parties deemed relevant to individual alleged violations. Thus, the Secretary's compliance officer testified without objection that he believed that "serious physical harm and possibly death would result" from an accidental misstep at the 17-foot level. On cross-examination General Electric attacked the compliance officer's statement, and tried to discredit it. Judge Chaplin realizing there was a discrepancy between this testimony and the nature of the alleged violation, apparently attempted to clarify the record with the following colloquy:
Judge Chaplin: If you had to do it now, would that [the nature of alleged violation of section 1910.27(c)(4)] be a serious or non-serious?
Compliance Officer: I feel it should be, yes.
Judge Chaplin: Should be what? [*18]
Compliance Officer: Serious violation.
As the result of this colloquy the Union in its post-hearing brief contended that:
. . . [I]n view of the record evidence in this case, that this classification [of section 1910.27(c)(4) as non-serious] clearly was an inadvertent error; that in fact the violation should have been classified as 'serious' . . . (emphasis added).
Judge Chaplin sustained the position of the Union that the evidence established a serious violation. He thereafter "amended the pleadings to so charge and find."
The Chairman's direction for review asked whether the Judge's duty to conduct a "fair and impartial hearing" was compromised by this ruling.
The Judge's duty to conduct a "fair and impartial hearing" (29 CFR § 2200.22) was not "compromised" by his action. His action was well within the bounds of fairness. Cf. N.L.R.B. v. Phelps, 136 F.2d 562 (5th Cir. 1943). In response to a motion by the union, a party, the Judge simply amended the pleadings to conform to the evidence.
In his decision Judge Chaplin notes that he:
. . . agree[s] with the position of the Union that the evidence clearly establishes that his [violation of section [*19] 1910.27(c)(4)] is a serious violation . . . (emphasis added).
Moreover, the fact that General Electric objected to any attempt by the Union to "expand the complaint" is not controlling. Rule 15(b), Federal Rules of Civil Procedure, provides specifically for this contingency:
. . . If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sabserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits (emphasis added).
As noted above, General Electric was granted a full opportunity to cross-examine the Secretary's compliance officer on the issue of the gravity of injury resulting from a possible 17-foot fall. In addition, although respondent objected to the introduction of "complaint expanding" evidence, its basis for objection was not voiced. It may be concluded that General Electric failed to satisfy the Administrative Law Judge that the admission of such evidence would prejudice [*20] its defense. Cf. Brisk Waterproofing Co., Inc., No. 1046 (July 27, 1973).
Also, any hearing resulting from an employer filing of a notice of contest must follow the formal adjudication requirements of the Administrative Procedure Act. Section 554(b) of Title 5, United States Code, requires that the parties entitled to notice of the hearing are to be informed of those matters of fact and law asserted by the charging party. When the underlying facts are alleged in the complaint the agency may find that the conduct violates a different provision of law from that specified in the complaint. This principle is subject to the qualification that any shift in legal theory must not prejudice the party charged with the violation. 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).
The underlying facts of the instant alleged violation were charged in complaint paragraph V-b as follows:
b) Respondent corporation violated the standards at 29 CFR 1910.27(c)(4) in that the distance from the centerline of a two inch rung of a fixed metal ladder was [*21] less than 7 inches. This lack of clearance existed at the 17 foot level of the ladder which was located in building No. 52, Bay A-32.
The facts underlying the violation were fully set out in the complaint. This agency may find the employer conduct violative of section 17(k) (29 U.S.C. § 666(j)), so long as the shift in legal theory did not prejudice respondent.
As set out above, respondent had the opportunity to cross-examine complainant's witness on the main issue which distinguishes a serious from a non-serious violation for which identical penalties are proposed and assessed; i.e., the gravity of possible injury resulting from the violation. In addition, it is clear that respondent could not put on additonal proof to refute the gravity of injury resulting from a 17-foot fall. Further, if there were any lack of knowledge of the condition relevant in a defense to a serious violation, any possible prejudice seems most unlikely because of the contest of the proposed penalty and the fact that any evidence of "good faith," which could include any lack of knowledge, was admissible. n19 Therefore, the decision of Judge Chaplin on this issue is affirmed. n20
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n19 In the case of a "serious" violation, it is Commissioner Cleary's view that it is incumbent upon the employer to prove any lack of knowledge rather than upon the Secretary of Labor to prove knowledge of the violation. In so doing, he relies upon the fact that the "knowledge" provision is contained in the "unless" clause in section 17(h). This procedural point distinguishes a "serious" violation from a "willful" violation under section 17(a). Frank Irey, Jr., Inc. v. O.S.H.R.C. & Brennan, No. 73-1765 (3d Cir. November 4, 1974).
n20 In its brief to the Commission, General Electric discusses at some length the cases of Wetmore & Parman, Inc., No. 221 (January 22, 1973) and Dundas Pallet Co., No. 266 (February 14, 1973). We have reviewed respondent's contentions based on those cases and find them without merit. They are distinguishable on their facts. Amending pleadings upon motion of a party is clearly not engaging in any prosecutorial role.
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C. Fixed ladder with 12" rungs (section 1910.27(b)(1)(iii)) [*23]
Section 1910.27(b)(1)(iii) n21 requires rungs of fixed ladders to have a minimum clear length of 16 inches. The uncontroverted evidence of the alleged violation was that the ladder rungs cited had a clear length of only 12 inches. Further, an employee testified that he had slipped in oil-soaked shoes from the ladder rung, and sustained injury that might have been prevented if the ladder had been of proper width. It was his opinion that the extra 4 inches "would have made a difference."
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n21 The text of which is set out supra, note 5.
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In his decision, Judge Chaplin reviewed the state of ladder requirements noting that various length ladders, fixed or otherwise, were required to have minimum rung clearances of different widths. He then concluded that:
No logical explanation was advanced for nor am I aware of the reason for the difference between portable and fixed metal ladders. The testimony regarding an employee fall and the safety that an additional 4 inches of rung might have afforded is not credible. [*24] The only requirement that makes safety sense is that there be room for both feet. If 12 inches is safe on portable ladders it is just as safe on a fixed ladder. Accordingly I hold that compliance with 29 CFR 1910.27(b)(1)(iii) is not necessary or appropriate to provide a safe or healthful employment and place of employment as required of standards by section 3(8) of the Act. n22
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n22 Judge Chaplin noted that the Secretary had proposed revision of the walking and working surface standards including the instant standard. The proposed standard would require all fixed ladders to have minimum rung clearance of 12 inches. 38 F.R. 24314 (September 6, 1973). The proposed revision has not been acted upon and section 1910.27(b)(1)(iii) remains in full force and effect.
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This was error. The undisputed facts reveal that the ladder did not comply with the standard. Moreover, complainant offered proof of injury the nature of which was designed to be protected against by the standard. In the absence of any rebuttal [*25] evidence, we find that the Secretary has sustained his burden of proof. Florida Peach Growers Ass'n. v. Department of Labor, 489 F.2d 1120, 1124 (5th Cir. 1974). Brennan v. O.S.H.R.C. & Underhill Constr. Corp., No. 74-1568 & 74-1579 (2d Cir., March 10, 1975).
The Judge has questioned the wisdom of the standard. He has no power to do this. Nothing in the Act gives the Commission such power. The Budd Co., Nos. 199 & 215 (March 8, 1974), petition for review docketed, No. 74-1781 (3d Cir., April 10, 1974), and judicial authority cited therein. Cf. United States Steel, Nos. 2975 & 4349 (November 14, 1974) (Cleary, Commissioner, concurring). His decision on this issue is reversed.
D. Eye Protection; Repeat Violations
Section 1910.133(a)(1) n23 requires employers to make eye protection "conveniently available" where there is "reasonable probability" of eye injury. It clearly directs employers to require that employees use such protection, because under its express terms no person is knowingly to be subjected to a hazardous eye condition. General Electric was cited for a repeated serious violation of section 1910.133(a)(1) because at the time of inspection [*26] two employees were observed breaking-up concrete with a pneumatic hammer without proper eye protection. n24 It is undisputed that in December 1971 General Electric was cited for a violation of section 1910.133(a)(1) and that citation has become a final order by operation of law. In addition, Judge Chaplin compared the December 1971 violation with the instant violation and found them "almost identical."
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n23 The text of which is set out supra, note 6.
n24 The Secretary has clearly established a violation of section 1910.133(a)(1). His witnesses' uncontroverted testimony revealed that the two employees were breaking up concrete without the benefit of proper eye protection. They further testified that the hazard created by this activity could have been avoided by compliance with the standard. Moreover, the employees were working out in the open and with the exercise of reasonable diligence respondent could have known that they were not using proper eye protection.
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General Electric argues that it has [*27] done all that may be reasonably expected of a company of its size and diversity to insure the wearing of appropriate eye protection. Citing, Hansen Brothers Logging Co., No. 141 (October 13, 1972); Murphy Pacific Marine Salvage Co., No. 2082 (June 27, 1973) and Standard Glass Co., No. 259 (June 26, 1972) in support of its position, General Electric contends that to conclude that section 1910.133(a)(1) had been repeatedly violated herein would be to render the employer "an absolute guarantor" of its "employees" compliance.
We disagree. Final responsibility for compliance rests with the employer. n25 The cases relied upon by General Electric deal with violations that are isolated instances and not generally foreseeable. That is not the case here. The violations were preventable. The record supports the conclusion that, although General Electric is making an effort to promote the use of protective eye equipment, its efforts have not gone far enough. In fact, both employees and employer representatives testified that the failure to use protective eye equipment continues, albeit in rare instances, throughout Buildings 52 and 273. The decision of Judge Chaplin finding [*28] the repeated violation of section 1910.133(a)(1) is affirmed.
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n25 S. Rep. No. 91-1282, 91st Cong., 2d Sess. 11 (1970).
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This overrules the Commission's divided decision in Cam Industries, No. 258 (March 4, 1974) concerning section 1910.133(a)(1). Stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision when adherence involves collision with an approach that is intrinsically sounder and verified by experience. Helvering v. Hallock, 309 U.S. 106, 119 (1940).
General Electric has been cited for one repeated serious violation n26 and three repeated non-serious violations. Of these, the violations of section 1910.157(a)(2) n27 and section 1910.252(e)(2)(iii) were alleged to have been repeated on the basis of similar citations in other buildings within the Schenectady complex.
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n26 Section 1910.133(a)(1) discussed supra, pages 63-64.
n27 Section 1910.22(a)(1) the text of which is set out supra, note 13. Section 1910.157(a)(2) the text of which is set out supra, note 7. Section 1910.252(e)(2)(iii) the text of which is set out supra, note 8. The previous violation of section 1910.157(a)(3) was noted in a citation dated March 12, 1973. Respondent's Building No. 61 at the One River Road facility had been inspected at that time.
The previous violation of section 1910.252(e)(2)(iii) (Incorrectly cited as section 1910.252(e)(j)(iii)) was noted in a citation dated October 2, 1972. Respondent's Building No. 302 at the Nott Street facility had been inspected at that time.
[*29]
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The issue is thus presented as to the extent to which a violation that is previously cited, albeit at a different worksite, may become the basis for a later citation for the same violation. The Union contends that General Electric is a single national entity, and therefore any citation issued to it throughout the nation may be the basis for a repeated violation. The Secretary suggests geographical location in Schenectady is the proper locus on which to base repeated violations. General Electric would have its separate divisions within the Schenectady facility considered the proper locus. Judge Chaplin adopted the Secretary's "practical" approach to the question, and concluded that like activities in one geographical location are to be considered.
As a starting point, it should be observed that the size of a penalty that can be imposed for a "repeated" violation is ten times that for a singular "serious" violation. Hence, it is obvious that Congress intended to deal with a more flagrant type of conduct than just a single serious violation. Cf. Frank Irey, Jr., Inc. v. O.S.H.R.C. & Brennan, [*30] No. 73-1765 (3d Cir., November 4, 1974), petition for rehearing granted (December 20, 1974), which discusses "willful" violations of the Act. These are grouped with "repeated" violations as being the most severe in the hierarchy of civil penalties. The term "repeated" is therefore read to mean happening more than once in a manner which flaunts the requirements of the Act. With a test of whether the requirements of the Act are being flaunted it cannot be said abstractly just how many places of employment or conditions of employment should be considered. Each case must be decided upon its own merits and turn upon the nature and extent of the violations involved. In the case before us we are satisfied that the approach urged by the Secretary and adopted by the Judge for this employer in the Schenectady area is realistic.
The approach urged by the Union is categorical, and it may be unrealistic as to problems that are parochial rather than national in scope. The assertions of General Electric go to the opposite extreme, and would in effect require that the enforcement of the Act be tailored to suit General Electric's corporate structure. This is hardly consistent [*31] with the text of the Act or the Congressional purposes. Our experience teaches us that the Secretary's inspectors are generally experts in job safety or health, and know little about corporate structures. Requiring them to examine internal corporate organization before characterizing violations is hardly consistent with their effective enforcement of the Act.
Respondent's "divisional accountability" argument is not persuasive. Moreover, it asks this Commission to overlook certain economic "facts of corporate life" that refute its position. There are apparent benefits to be derived from maintaining one large facility rather than numerous smaller ones. Indeed, the record reveals that one corporate official testifying on behalf of respondent considered both the One River Road and Nott Street facilities to be the "main plant." In addition, the Schenectady Utility Operations Division has overall responsibility for a wide range of activities pursued at all of respondent's facilities. It is "the landlord of the plant." There exists a limited amount of employee exchange among the various buildings at the plant. Finally, one Union official has overall safety responsibility at Schenectady. [*32] He testified that he had long operated with the understanding that the company had one man as its safety director. This testimony was not refuted.
The General Electric facility at Schenectady for our purposes may be said to include the One River Road; Nott Street "main plant" and the additional support facilities in Saratoga County, West Milton and Castle Ring. The decision of Judge Chaplin affirming the citation for repeat non-serious violations is affirmed.
E. Fall Protection for Welders
Section 1910.252(e)(1)(i) n28 requires welders and their helpers to be protected against falling while working on platforms, scaffolds, or runways. Protection in this instance may take the form of railings, safety belts, life lines or other equally effective safeguards. Complaint paragraph VII(a) alleged General Electric's violation of 29 U.S.C. § 654(a)(2) for failure to comply with section 1910.252(e)(1)(i) in that:
[General Electric] failed to protect against falling two welders working on top of a stator frame 15 feet 3 inches above the surrounding surface in Bay A-2 of building No. 52 by railings, safety belts, life lines or other equally effective safeguards.
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n28 The text of which is set out supra, note 10.
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Judge Chaplin after hearing evidence on this issue made the following finding of fact:
4. Stator frames are large component parts of turbine generators that move through the plant on a wheeled frame with the capacity to be rotated to permit work to take place on all sides. The cited stator frame was in a horizonal position and in this position it was 15 feet 3 inches above the floor (Tr. 1-46). Two employees were welding on top of the frame (Tr. 1-46) and they were not wearing any safety device and there was no other protective device around the workplace (Tr. 1-48). Abatement was directed to be accomplished immediately and the workmen now wear safety belts tied off.
Judge Chaplin refused to affirm the alleged violation, however, noting that the "only issue to be resolved . . . is whether the area on top of the stator frame may be considered a platform or scaffold within the meaning of the standard." n29 He found the standard not to be applicable to the alleged violation [*34] and dismissed the citation.
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n29 Amending the complaint to allege a section 5(a)(1) (29 U.S.C. § 654(a)(1)) -- general duty clause -- violation was dismissed by the Judge as being, under these facts, prejudicial to General Electric.
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A "platform" is defined at 29 CFR 1910.21(a)(4) as a working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment. The definition applies as a matter of plain meaning.
In any event, the purpose of the Act is to protect the health and safety of workers. This purpose is not well served by reading a standard in a manner that detracts therefrom. Here, this purpose is best served by a broad construction of the word "platform" in the standard. Cf. Secretary of Labor v. American Smelting & Refining Co., 501 F.2d 504 (1974). The Court in Secretary of Labor v. Ryder Truck Lines, 497 F.2d 230, 233 (1974), noted that it:
. . . must consider the statute "not only in terms of the [*35] statute 'on its face' but also in light of the conduct to which it is applied." United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 600, 9 L.Ed. 2d 561 (1963). The regulation [29 CFR 1910.132(a)] appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury. Moreover, we think inherent in that standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries to dockmen, in a somewhat confined space, from falling freight and the rapid movement of heavy mechanical and motorized equipment, which would warrant protective footwear. So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster. United States v. Petrillo, 322 U.S. 1, 4, 67 S.Ct. 1538, 91 L.Ed 1877 (1947).
In the instant case the regulation appears "to have been drafted with as much exactitude as possible . . . ." Moreover, inherent in 1910.252(e)(1)(i) is the same external and objective test alluded to in Ryder [*36] Truck Lines: Would a reasonable person recognize a hazard to a welder wearing neither a safety belt nor protected by a lifeline, of falling from a height exceeding 15 feet from a stator frame which is not guarded by railings or other equally effective safeguards? We think so.
The hazard is clear and is one which compliance with section 1910.252(e)(1)(i) contemplates. In light of the above we conclude that Judge Chaplin erred when he dismissed complainant's citation for this alleged violation. We, therefore, reverse the decision of the Judge on this issue and affirm the citation.
F. Pneumatic Powered Tools -- Tool Container
Section 1910.243(b)(1) n30 requires a tool retainer on all pneumatic-powered equipment in use where, in the absence of such retainer, the possibility exists that the tool may be ejected. Complaint paragraph VII(f) alleged General Electric's violation of section 5(a)(2) for failure to comply with section 1910.243(b)(1) in that:
Respondent violated 29 CFR 1910.243(b)(1)(ii) in that it failed to provide a tool retainer on a portable hand held pneumatic chisel that was able to eject the tool.
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n30 The text of which is set out supra, note 11.
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Judge Chaplin concluded that "there is no argument that respondent was in violation of the standard requiring retainers on pneumatic powered hand tools." He continued, however, and noted "credible" and "persuasive" testimony which revealed "that under [ordinary] working conditions tools [chisels] would rarely eject from their holder and even if it happened the tool would only 'dribble' out. . . ." He concluded that "at most this is a de minimus (sic) violation."
Judge Chaplin has correctly characterized the evidence on this issue. It is clear that the instant pneumatic-powered hand-held chisel was not guarded. It is also clear that there existed the possibility that this chisel could be ejected and in a "test," a chisel was actually "shot" a distance of eight feet. This "test," however, did not reflect the characteristic use of the chisel. The chisel is used for chipping excess metal from an object being manufactured in the Schenectady plant. It is not positioned against a hard surface and "fired," as was the case [*38] in the test. The decision of the Judge is, therefore, affirmed.
In affirming the Judge, we note that section 9(a) (29 U.S.C. § 658(a)) authorizes the Secretary to issue a notice in lieu of a citation with respect to de minimis violations having no direct or immediate relationship to safety and health. The Act is facially silent, however, as to the authority of the Commission to find a de minimis violation where there is a direct relationship to safety and health, but that relationship is so remote as to be nearly negligible as is the case herein. We conclude that section 10(c) (29 U.S.C. § 659(c)) granting the Commission, after a hearing, the authority to "issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief . . ." (emphasis added), provides the requisite authority. Of course, when a violation may not be fairly characterized as de minimis, there may well be recourse to the Secretary of Labor's variance procedures. See 29 CFR Part 1905.
G. Housekeeping; Combustible Waste
Section 1910.106(e)(9)(iii) n31 requires combustible waste and residue in a [*39] work area to be kept to a minimum; stored in covered metal receptacles; and disposed of daily. Complaint paragraph V(d) alleged that:
Respondent . . . violated the standard [as amended] . . . in that [and] approved container was not used for combustible liquid. Specifically, in building No. 52, Bay A-18, an open 55 gallon drum was observed to be partially filled with combustible paint thinner.
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n31 The text of which is set out supra, note 12.
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Complainant's evidence sought to establish that the liquid in the container was "Rust-ban," a combustible material which was to be kept away from heat and open flame. General Electric, however, offered proof to establish that the liquid was ordinary water, the by-product of a nearby "shot-blast" operation.
The Judge found that the Secretary failed to meet his burden of proof with respect to the standard because the liquid in the drum was not tested to see if it was combustible. The record reveals that the Judge's decision is consonant with the weight of evidence. We [*40] do not adopt his dicta on this point of testing.
H. Welding Leads; Tripping Hazard
Section 1910.22(a)(1) requires "all places of employment, passageways, storerooms and service rooms [to] be kept clean and orderly and in sanitary condition." Complaint paragraph IX(a) alleged that:
Respondent . . . violated 29 CFR 1910.22(a)(1) [in that] Bay A-7, Building No. 52 was not kept in a clean and orderly fashion. Specifically welding leads and compressed air hoses, in use were scattered about the floor in the work area of the employees so as to be a tripping hazard. n32
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n32 The Secretary's exhibits 1 and 2 reveal that General Electric had been cited on two previous occasions for violating the same standard. These citations were not contested, and have since become final orders. Thus, there is no question that the alleged violation was properly characterized as "repeated" within the meaning of section 17(a) (29 U.S.C. § 666(a)).
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It is clear from the evidence that what is alleged and tried here is simply a tripping [*41] hazard created by scattered welding leads.
Judge Chaplin cogently observed that two specific standards seem relevant to this situation. They are the following:
§ 1910.252 Welding, cutting, and brazing.
(b) Application, installation, and operation of arc welding and cutting equipment.
(4) Operation and maintenance.
(ii) Machine hook up. Before starting operations all connections to the machine shall be checked to make certain they are properly made. The work lead shall be firmly attached to the work: magnetic work clamps shall be freed from adherent metal particles of spatter on contact surfaces. Coiled welding cable shall be spread out before use to avoid serious overheating and damage to insulation (emphasis added).
(e) Protection of personnel.
(1) General.
(ii) Welding cable. Welders shall place welding cable and other equipment so that it is clear of passageways, ladders, and stairways (emphasis added).
The Judge read the standards as suggesting that the welders must necessarily string out their welding leads impliedly to avoid overheating, and that it is a matter of degree as to whether the dispersion is excessive and may be characterized [*42] as a tripping hazard that should be avoided. n33 The Judge vacated the citation.
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n33 Section 1910.252(e)(1)(ii) also suggests that its specific requirements are controlling rather than the more general requirements of section 1910.22(a)(1). See section 1910.5 for the rule of construction indicating this. However, that a different standard was cited is not considered prejudicial. As indicated above, the essential issue was the tripping hazard, a factual issue, and this was plainly tried.
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Whether or not a tripping hazard is created through the disorderly scattering of welding leads and compressed air hoses is a matter which may and should be judged objectively. Secretary of Labor v. Ryder Truck Lines, supra. 28. The testimony and exhibits which relate to the instant violation clearly establish that many feet of hose, in excess of that which was required, were laying haphazardly on the floor in an area where employees were required to work. Moreover, the hoses were criss-crossed and coiled [*43] back upon themselves and other objects on the floor in such a manner as to create several little areas wherein an employee could catch his foot and trip.
The decision of the Judge on this issue was against the weight of evidence. His decision to vacate Secretary's citation for repeat violation on this issue is reversed.
I. Stator Frames and Powered Work Platforms
Section 1910.23(c)(1) n34 requires open-sided floors, platforms and runways 4 feet above the adjacent floor to be guarded by a standard rail or its equivalent. Complaint paragraph XIII alleged that:
. . . respondent . . . violated 29 CFR 1910.23(c)(1) in that it did not provide a standard railing or the equivalent as specified in 29 CFR 1910.23(c)(3) on open sided platforms or floor 4 feet or more above adjacent floors or ground level. Specifically, unguarded was a 14 foot high horizontal stator frame, building No. 273, Bay H-17; two work platforms six feet ten inches above the surrounding surface in building No. 273 in Bay K-8, and a powered work platform No. 15836 in building No. 273, Bay K-11 that could be elevated to a height of ten feet. n35
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n34 The text of which is set out supra, note 14.
n35 Judge Chaplin agreed with the Secretary that the allegedly violative conduct was willful in that it was "intentional, knowing or voluntary as distinguished from accidental." Indeed, the record clearly supports the willful allegation. Respondent had been previously cited for violation of the same standard. The violation had not been contested and was the final order of this Commission by operation of law. We agree with the Judge's conclusion as it applies to the powered work platform. We find a genuine conflict among the parties as to whether the standard applies to stator frames. See p. 36; cf. Secretary of Labor v. Frank Irey, Jr., Inc., No. 73-1765 (3rd Cir. November 4, 1974).
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At the time of the hearing, General Electric and the Union were at odds over a still unresolved grievance filed by a steward in the large generator division over the precise issue of guarding, with a standard railing or its equivalent, stator frames.
Judge Chaplin concluded that the only issue was, were the objects "platforms" [*45] within the meaning of the standard. He held that neither the stator frame nor the work platforms were "platforms." He held further that, although the powered work platform was within the standard, the alleged violation must still be vacated because complainant failed to prove employee exposure within six months of the alleged violation. Thereafter, he vacated the citation in its entirety.
The action of the Judge with respect to the stator frame and powered work platform was in error. We have already discussed the applicability of section 1910.252(e)(1)(i) to stator frames, and conclude that they are platforms for purposes of standard regulating work-surfaces. n35a Section 1910.252(e)(1)(i), however, is limited in applicability to welders. Complainant's exhibit 13, a photograph, clearly depicts a General Electric employee operating a drill press on an otherwise unguarded stator frame. On there facts, section 1910.23(c)(1) is the applicable standard and a violation is established. The record does not support a willful allegation of violation of section 1910.23(c)(1) in this instance, however, because General Electric disputed the applicability of this standard in good faith. [*46] As such, the nature of this violation must be reduced from willful to serious.
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n35a This holding is consistent with the definition of the term "platform" in section 1910.21(a)(4).
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Testimony regarding the powered work platform revealed that the platform could be raised to a height of ten feet. The platform lacked any type of railing.
The only issue was that of "employee exposure" during the period prescribed by section 9(c) (29 U.S.C. § 658(c)). Respondent attempted to establish that the platform was not to be used without guardrails. However, this testimony was directly refuted by the following testimony of the Union's safety director, who observed the platform in use at heights of six and eight feet:
Q. On the occasions where you saw the employees working on it, was it provided with the standard guardrails?
A. No. What it was, the employees had up there at the time that I saw it, and they had welded a piece of angle iron across to the shell that they were working on, and from the platform to [*47] the shell, to provide themselves with a temporary guard.
Q. Was there a standard guardrail around all open sides of this platform?
A. No. . . . (emphasis added).
The platform was "regularly in use," being used at least once a month.
Plainly whether "employee exposure" is an issue and if so, what type of exposure must be shown are questions that need not be resolved here because the evidence clearly demonstrates that there was exposure to the risk of falling because of the absence of any fall protection. In this regard, the case is similar to Chicago Bridge & Iron Co., No. 224 (December 26, 1974). Men were often required to work in the area of the powered platform at heights which would require use of a platform of some type. The decision of Judge Chaplin as it relates to vacation of the citation for willful violation of section 1910.23(c)(1) -- failure to properly guard a powered work platform -- is reversed and that part of the citation is hereby affirmed.
We add that our reluctance to face the "exposure" issue here is reinforced by the fact that the Second Circuit and the Fourth Circuit have expressed differing views on the "exposure" issue in Gilles & Cotting [*48] & O.S.H.R.C., 504 F.2d 1255 (4th Cir. 1974) and Brennan v. O.S.H.R.C. & Underhill Constr. Corp., Nos. 74-1568 & 74-1579 (2d Cir., March 10, 1975). Gilles & Cotting is before us on remand, and the briefing period has not expired as of this writing.
J. Bent Fixed Ladder
Section 1910.27(f) n36 requires all fixed ladders to be maintained in a safe condition. Complaint paragraph V(c) alleged that:
Respondent . . . violated the standards at 29 CFR 1910.27(f) in that . . . [it] failed to maintain a fixed metal ladder in a safe condition. Specifically the side rails of the fixed metal ladder were bent to the left near the bottom so as to affect the safety and stability of the ladder. This condition existed in building No. 52, Bay B-24.
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n36 The text of which is set out supra, note 16.
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In his decision Judge Chaplin concluded that:
Item No. 3 of this citation pertained to the stability of a bent ladder. The applicable standard requires ladders to be maintained in a safe condition. Safe meant [*49] different things to different people. To one CO it meant stable, to another it meant solid rungs and to the Union Safety Director it meant no fear of falling from missing a rung. The testimony was that the ladder seemed stable to grip, the rungs appeared to be solid. The evidence presented, including the picture of the ladder in question, does not support a determination that this is an unsafe ladder. The Secretary has failed to sustain his burden of proof.
The Judge's conclusion is in error. The standard does require ladders to be "maintained in a safe condition." A photograph, Secretary's exhibit-15, of the instant ladder revealed that the bottom two rungs were bent out of the vertical plane of the ladder. An employee climbing down such a ladder, relying on the ladder to be straight, could easily misstep and fall a distance of some three feet. Clearly, such a fall could result in injury to the employee. A non-serious violation has been established. The decision of the Judge on this issue is reversed.
K. Use of Mechanical Handling Equipment; Aisles and Passageways
General Electric was cited for using mechanical handling equipment in an area where permanent aisles and [*50] passageways were not appropriately marked and kept clear.
The pertinent standard reads as follows:
1910.176 -- Handling materials -- general
(a) Use of mechanical equipment. Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard. Permanent aisles and passageways shall be appropriately marked.
Testimony concerning this alleged violation revealed that one half of Bay C of Building 52 was used as a furnace room. In the remaining half of the bay numerous palletized boxes and bags of material were randomly sitting where they were dropped. The compliance officer did not see any actual mechanical handling equipment in use at the time of inspection, but drew a reasonable inference as to their use as the result of the stored pallets of material. n37 There were no aisles or passageways that were marked as such. This could impede egress in case of fire. Also, General Electric's employees were exposed to the resulting [*51] hazard because they had to pass through this area to tend the boilers. In addition, a hoist operator worked in that bay.
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n37 Later, during cross-examination, General Electric's superintendent, Weldments, Sub-section, Large Turbine Steam Department, Building 52, admitted that powered vehicles such as fork-lift trucks were used in Bay C.
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On cross-examination the issue of the amount of stored material was explored. Judge Chaplin interposed the following question:
The Court: . . . Was that half of the room more full than it was empty?
Compliance Officer: Yes.
Finally, a General Electric's witness admitted that at the time of inspection there were no aisle markings.
Judge Chaplin vacated the citation noting that the "crux of the issue," whether there was any need for permanent aisles in the storage room had not been resolved. In addition, he characterized the area as "a temporary storage situation, being utilized during alterations." Judge Chaplin's decision on this issue was in error.
The record clearly indicates [*52] that a storage area was entered by mechanical handling equipment, and it was, at the time of in spection, devoid of aisle and passageway markings. n38 The compliance officer neatly summed up the dilemma with his response to the following two questions asked during cross-examination.
Q. You say, Mr. Nead, that the aisles weren't marked? What aisles? What aisles are we talking about, sir?
A. That is what the problem is. There weren't any aisles in there. In any place of business where people work, or merchandise is stored, they must have a permanent aisleway which is to say that a minimum in the event of people just walking, 28 inches, and to give them access to get out of the building, and in the event of mechanical piece of equipment, and it must be as wide as the vehicle.
A. That is correct. They must be designated.
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n38 We note, however, that aisles and passageways in this area have, since the citation, been marked.
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Moreover, Judge Chaplin's characterization of the area as a temporary storage [*53] facility is not supported on the record. The Judge's characterization misses the point of the specified violation and the standard. There may be "permanent" aisles and passageways through even temporary storage facilities. In the sense of the standard, "permanent" obviously does not mean forever. It must be construed in light of the objective of the standard -- here provision for marked ways of egress in case of emergency. It suggests any duration other than transitory. The decision of the Judge vacating complainant's citation on this issue is reversed.
L. Other Issues
The Union has alleged error in Judge Chaplin's failure to reclassify certain citations as "willful" or "repeated" or as otherwise more serious than alleged by the Secretary. Citations for "willful" or "repeated" violations warrant the assessment of the most severe civil penalty that the Act provides. There would be clear prejudice to an employer if he had no notice thereof during the proceeding. Cf. N.L.R.B. v. United Aircraft Corp., Hamilton Standard Div., 34 Ad.L. 121 (2d Cir. 1973). We therefore are constrained to reject the contentions of the union.
With respect to raising non-serious violations [*54] to serious violations, we have affirmed the action of the Judge when he did so on the basis of the evidence pursuant to the motion of the Union and in the absence of prejudice to respondent. With respect to the remaining non-serious violations in this proceeding, review of the facts of each violation compels us to conclude that they were properly characterized by the Secretary.
The Union argues that it should share the enforcement role of the Secretary of Labor by bringing violations of the Secretary's standards to the attention of General Electric and that failure to act on the "alleged violations" would thereafter form the basis for the issuance of a citation for "repeated" violation by the Secretary.
Certainly, informing an employer of any failure to follow a standard is to be encouraged. But a notice to the employer that he is "in violation" of the Act from the employee(s) is not provided for in the Act.
The Union has urged that the decision in this case be "comprehensive." It seeks not only specific findings of fact and conclusions of law regarding the instant violations, but also asks that "due consideration be given to the responsibilities of the [Commission] [*55] contained in section 10(c) (29 U.S.C. § 659(c)) of the Act." Section 10(c) requires this Commission to:
. . . [I]ssue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief, . . . (emphasis added).
"Other appropriate relief" in this instance would include the issuance of an order directing General Electric to "cease and desist" from its policy of "unilaterally establishing health and safety programs without the advice, consent, and active participation of the Authorized Representative of Employees."
The key to the consultation issue is that the position of the Union not be undercut vis-a-vis its relationship with management on safety matters. In this regard, a decision to require consultation on matters of employee safety, which is limited to those covered in affirmed citations, is permissible under the Act, and will not detract from the scheme of the National Labor Relations Act and section 8(a)(5) in particular. Moreover, section 2(b)(2) (29 U.S.C. § 651(b)(2)) states as one Congressional purpose of our Act that employers and employees have separate but dependent responsibilities [*56] and rights with respect to achieving safe and healthful working conditions. Finally the Senate Report notes that:
It has been made clear to the committee that the most successful plant safety programs are those which emphasize employee participation in their formulation and administration; every effort should therefore be made to maximize such participation throughout industry. n39
Accordingly, we adopt the suggestion of the Union and under authority granted to this Commission to direct "other appropriate relief" we hereby require General Electric to consult with its authorized employee representative on matters affecting employee health and safety, but in the interest of practicality we limit our order to consultation on matters found in violation in this proceeding. Indeed, such an order may well be considered incidental to the abatement that is otherwise required. We add that the Commission encourages employers to consult with affected employees and their representatives on matters of safety and health. In appropriate cases such consultation will be considered in determining the good faith factor in the penalty computation.
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n39 S. Rep. No. 91-1282, 91st Cong., 2nd Sess. 10 (1970).
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The Union asks that General Electric be ordered to take affirmative action to correct like standards violations in all of its facilities nationwide. It asks that it be awarded costs. Finally, this Commission is asked to retain jurisdiction of this case by directing Judge Chaplin to be available to entertain any ad hoc applications for supplemental and summary relief.
Respondent's employees have the right to request an OSHA inspection when they believe that a violation of a safety or health standard exists that threatens physical harm or imminent danger. See section 8(f) (29 U.S.C. § 657(f)). In addition, this right is safeguarded by the further provision that upon receipt of an employee's request the Secretary must act upon it or notify the employee in writing of the reasons for his belief that there are no reasonable grounds to believe that a violation or danger exists. Moreover, as is the case herein, when a respondent has a history of violations of the Act which are now final orders [*58] of this Commission, the penalty provisions of the Act will provide additional inducement for the employer to remain in compliance with section 9(a) (29 U.S.C. § 654(a)). For these and the reasons set forth in Part D of this decision the holdings herein will be limited to the Schenectady facility.
As a general rule, attorney's fees are not recoverable in the absence of statute or an enforceable contract providing therefor. Fleischmann Distill. Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967). Also, there are no fees or charges required by the Commission in its proceedings.
The statutory scheme under which this Commission functions does not contemplate, at least generally, the retention of jurisdiction while at the same time ordering compliance and payment of assessed penalties. The Secretary of Labor has the duties of enforcing compliance and initiating penalty collection.
M. Penalties
Section 17(a) (29 U.S.C. § 666(a)) provides that any employer who willfully or repeatedly violates the requirements of section 5(a) (29 U.S.C. § 654(a)) may be assessed a civil penalty of not more than $10,000 for each violation. Section 17(b) and (c) (29 U.S.C. § 666(b) [*59] and (c)) provide that any employer who seriously violates the requirements of section 5(a) (29 U.S.C. § 654(a)) shall be assessed a civil penalty of up to $1,000 for each non-serious violation. Section 17(j) (29 U.S.C. § 666(i)) requires the Commission to assess all civil penalties giving due consideration to its appropriateness with respect to the size of the business of the employer, the gravity of the violation, the employer's good faith, and history of previous violations.
General Electric is an extremely large corporation, employing more than 27,000 people at its Schenectady facility. It has a history of both non-serious and serious violations which are final orders of this Commission spanning a fifteen-month period prior to the March 1973 inspection.
The "good faith" of General Electric has been put into issue by the Union. The transcript reveals that its contentions are well taken. The Secretary established a substantial number of repeated safety violations. The Union presented its safety director who testified at length concerning company-union safety regulations. He established there was no direct contact between management responsible for safety and the Union safety [*60] director. All such contact was instead channeled through Union relations personnel. Although all of the above was established, respondent did not call as rebuttal witnesses the two officials responsible for worker safety and health in Schenectady. The evidence further reveals that General Electric was aware of on-going violations, and applied little or no additional effort to see that they were eliminated.
General Electric has been found in non-serious violation of the following standards in Part 1910: (1) .252(b)(4)(ix)(c); (2) .27(f); (3) .176(a); and (4) .27(b)(1)(iii). The gravity of each of these violations was low. The chance of injury resulting from their violation was slight. The Secretary has recommended no penalty for any of them. We agree.
Respondent has been found in serious violation of section 1910.252(e)(1)(i) for failing to provide fall protection to welders working on stator frames. The gravity of this violation is high. A fall from a height of fifteen feet would clearly result in serious injury. Moreover, because the frames are nearly cylindrical in shape and covered with oil in some places, the probability of a fall is high. In light of this [*61] and the consideration of the other statutory factors already discussed, we assess a $900 penalty.
Respondent has been found in serious violation of section 1910.27(c)(4) for failing to maintain proper clearance behind the rung of a fixed metal ladder at the 17 foot level. The gravity of this violation is moderate. There is seven inches of space between the ladder and the fixed pipe that would allow an employee to partially control the placement of the foot on the rung, thereby reducing the chances of a "free" fall. The probability of a fall is low. In light of these and the other statutory factors already discussed the Judge's assessed $100 penalty is affirmed.
No penalty may or should be assessed for General Electric's de minimis violation of section 1910.243(b)(1)(ii).
General Electric has been found in "repeated" non-serious violation of the following standards in Part 1910: (1) .22(a)(1); (2) .157(a)(2); (3) .252(e)(2)(iii). The Secretary asserts that the very nature of "repeated" violations requires the imposition of some substantial penalty. He further asserts that the action of Judge Chaplin in reducing the amount of the proposed penalties for section 1910.252(e)(2)(iii) [*62] -- welding screens, and section 1910.133(a)(1) -- eye protection (alleged as a repeat serious violation) was subjective and inadequate, in contrast to the method used by the Secretary. We agree. We accept the advice of the Secretary, and affirm his proposed penalties of $500 for repeat non-serious violation of .22(a)(1); $1,000 for repeat non-serious violation of .252(e)(2)(iii); and $2,000 for repeat serious violation of .133(a)(1).
The citation for willful violation of section 1910.23(c)(1) is affirmed as it applied to the powered work platform. The gravity of the powered work platform violation is moderate in that the working height of the platform did not exceed 10 feet. A penalty of $2,000 is assessed. The alleged willful violation of section 1910.23(c)(1) applicable to stator frames has been reduced to a serious violation. The gravity of the stator frame violation is high. It is often partially covered with oil and men are very subject to fall from an oil covered rounded surface. Moreover, its height exceeds 15 feet. A penalty of $900 is assessed.
So ORDERED.
DISSENTBY: VAN NAMEE (In Part)
DISSENT:
VAN NAMEE, COMMISSIONER, dissenting in part. I respectfully dissent [*63] from my colleagues' decision, and particularly to:
1. Their conclusion that we have the broad authority to issue an order directing an employer to cease and desist from a policy of unilaterally establishing health and safety programs without the advice, consent, and active participation of the authorized representative of employees (slip opinion at p. 78).
2. Their action of increasing the nature of a violation from non-serious to serious upon the Union's late motion so as to effectively make the union a coprosecutor with the Secretary.
3. Their conclusion that a huge industrial complex wherein over 27,000 persons are employed by six diversified corporate divisions each headed by a vice president, general manager and other smaller, separate departmental operations all located in more than 50 buildings at different plant sites within the complex is a single business entity or establishment such that a repeat violation under 29 U.S.C. 666(a) may be predicated solely on the basis that the same standard has been previously violated at some location within the complex.
4. Their finding of a willful-serious violation as to a work platform predicated on evidence that cannot support [*64] the finding as a matter of law so as to avoid deciding the issue whether a violation exists if an employee is potentially exposed to a hazard.
5. Their conclusion that a product being manufactured is a platform within the meaning of 29 C.F.R. 1910.21(a)(4), such that 29 C.F.R. 1910.23(c)(1) requires guardrails on the product.
6. Their decision finding that Respondent was in repeated-serious violation of 29 C.F.R. 1910.133(a)(1) for not requiring its employees to use eye protection devices and to their express overruling of our decision in CAM Industries, Inc., 7 OSAHRC 30, BNA 1 OSHC 1564, CCH E.S.H.G. para. 17,373 (1974).
7. Their refusal to defer to the administrative law judge's subjective determinations predicated on the evidence of record regarding the bent ladder, welding leads, and the like.
The Cease and Desist Order n40
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n40 I note that Commissioner Cleary has recently taken the position that we do not have authority to issue a cease and desist order in a case where the question was whether a cease and desist order could issue to employees. Atlantic & Gulf Stevedores, Dkt. No. 2818 (April 11, 1975). There he said a cease and desist order would be contrary to the policy of the Norris-LaGuardia Act.
[*65]
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As to this issue it is important to note first that while my colleagues say we have broad authority to require management to consult (bargain ?) with labor on safety and health issues they issue a limited order directed only to the matters found in violation. I object principally to the statement of broad authority, and I have reservations concerning the limited order.
The majority order involves employees in areas usually reserved to management. Thus this Respondent is required by their decision to consult with the union on the question of erecting railings on stator frames, a product manufactured by Respondent. n41 The majority in calling the stator frames work platforms implies that they are of planar construction. Slip opinion at p. 28. The exhibits clearly show the frames to be cylindrical, and at least one employee testified they were round. They are clearly not suitable for guardrails. It therefore appears that the stator frames may have to be redesigned in order to effect compliance with the majority's decision. Under that decision employees will have to be consulted on the redesign. [*66] Surely, it is a novel proposition of law to have management consult on design matters. I suppose they will in the future require consultation on capital investments in equipment because of noise problems and the like.
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n41 My colleagues find Respondent in serious violation of 29 C.F.R. 1910.23(c)(1) and require statement according to the terms of the standard. See below under the subheading. "The Stator Frames."
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Moreover, the majority position is counter productive because consultation will necessarily prolong abatement. And conceivably an abatement period will expire during consultation such that an employer may become liable for daily penalties under 29 U.S.C. 659(b) and 666(d).
Finally, and contrary to the majority statement that their order "will not detract from the scheme of the National Labor Relations Act" (slip opinion at pg. 78), n42 I find that it may be in direct conflict with the N.L.R.A. and policy established thereunder. Under that Act employers and represented employees have a duty to [*67] bargain collectively over the terms and conditions of employment in negotiating contracts or with respect to questions arising under existing contracts, and a failure to bargain by either party is an unfair labor practice, 29 U.S.C. 158(a)(5), (b)(3), and (d), subject to the jurisdiction of the National Labor Relations Board (N.L.R.B.). And if the bargaining agreement includes issues which are subject to arbitration, the N.L.R.B. will defer to arbitration. Collyer Insulated Wire, 192 N.L.R.B. No. 150, 77 LRRM 1931.
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n42 No authority is given for the statement.
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In this case, by issuing a cease and desist order, the majority effectively finds that Respondent has failed to bargain, i.e., has committed an unfair labor practice. In so doing, they invade that that is within the exclusive province of the N.L.R.B. Secondly, they invade without even bothering to determine as fact that Respondent has refused to bargain. n43 Nor have they determined whether the Union before us is the appropriate bargaining agent for each [*68] of the safety matters determined by their decision. n44 And, last but by no means least, the bargaining agreements are not before us so I cannot say whether or not they have done violence to the N.L.R.B.'s policy to defer to arbitration. But certainly I do conclude that their decision "detracts" from the scheme of the N.L.R.A.
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n43 The record shows that some matters in issue here have been submitted to grievance procedures.
n44 On the record it is possible to infer that the Union in this case is the appropriate bargaining agent. But I also note that out of 64 departments located in Respondent's complex, the Union before us represents employees in only 16.
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The Union As Coprosecutor
The majority states that it does not here decide whether a Union may assume the Secretary's role of prosecutor (slip opinion at p. 57). Immediately after making the statement they amend the Secretary's citation for a non-serious violation of 29 C.F.R. 1910.27(c)(4) (ladder clearance) on what is characterized as the Union's motion [*69] to find a serious violation. n45 Surely, the Union has been allowed to coprosecute when it is permitted to rewrite the citation.
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n45 It should also be noted that my colleagues permit the Union to prosecute the penalty issues in this case (slip opinion at p. 81). They imply that Respondent has acted in bad faith in view of such prosecution. I would not make such a finding particularly because of labor-management relation overtones in this case. See note 42.
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I find no authority for their action, and, of course, they cite none. In this regard I will merely note that all of the Act's provisions relating to employee rights are directed towards the abatement of hazards. A more reasonable interpretative approach than that taken by my colleagues, therefore, would be to conclude that the employees' concern over the severity of a hazard is with the time it should take to abate a hazard rather than to the question of whether the violation is serious or non-serious for penalty purposes.
Aside from the foregoing, a more [*70] important reason exists for not increasing the nature of the violation in this case. Respondent was not given notice either prior to or during the hearing that it had to defend against anything other than a non-serious citation. Indeed, neither the Secretary nor the Union moved to amend the citation at any time prior to or during the hearing. The most that can be said is that the Union was concerned about the gravity of the violation. This is not enough to put Respondent on notice that it should be prepared to try issues under 29 U.S.C. 666(i).
On the record, I would conclude that Respondent was in non-serious violation of 29 C.F.R. 1910.27(c)(4).
The Repeated Violations
My colleagues conclude that a repeat violation is one that occurs more than once "in a manner which flaunts the requirements of the Act" (slip opinion at p. 65). I would agree with this characterization. Inconsistently, however, they go on to conclude that whenever a violation merely recurs in the same general geographical location, the employer is in repeated violation. That is, for the purpose of determining whether the second violation has occurred in the same general geographical location. They [*71] dismiss all factors bearing on the economic realities of the situation. n46
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n46 My colleagues do not even so much as discuss the economic factors involved. It is enough for them that the Secretary's compliance officers are unlearned regarding corporate structures and that Respondent requires a landlord to provide utility and maintenance services for its various facilities. As to the lack of training presumably even compliance officers are aware of the fact that this Respondent is one of the Nation's largest corporations and produces many different product lines. As for the landlord services, it hardly comes as a surprise that the provision of utility and maintenance services for all operating divisions and groups are performed by a separate organization. However, that does not mean that the landlord has responsibility for requiring compliance with safety regulations by the operating divisions. Cf. Buckley & Co., Inc. v. Brennan, 507 F.2d 78 (3d. Cir., 1975).
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I cannot lightly dismiss the realities of [*72] the situation. In my view an employer cannot be said to have flaunted the Act's requirements unless those having authority to require abatement of the original violation are also those who should have known of and prevented the occurrence of the repeated violation. The keys are prior notice and the authority to correct.
The fact of this case demonstrate the inappropriateness of my colleagues' test. Respondent employs more than 27,000 working people at its Schenectady operation. They are employed by 16 different divisions and over 64 departmental groups. The operations are diverse. For example, the product lines include steam turbines and generators, A.C. motors, microwave tubes, insulating wire, castings, and gas turbines. In addition research and development laboratories such as the Knowls Atomic Power Laboratory are located at Schenectady. In view of this diversity, large operations such as the steam turbine and generator operation are organized into divisions headed by a vice president-general manager. The One River Road facility includes over 50 buildings located on 130 acres of land. The Nott Street facility is much smaller, but it has at least four or five [*73] buildings. n47 My colleagues' test comes down to this: a prior violation of a standard occurring in, e.g., the Knowls Atomic Power Laboratory is sufficient to make a subsequent violation occurring in, e.g., the insulated wiring division repeated within the meaning of 29 U.S.C. 666(a). The statement of the test demonstrates its absurdity.
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n47 The Union's safety director testified that Building No. 273 involved herein contained 22 acres of floor space and Building No. 52 is as large as a football field.
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Turning now to the specific repeated allegations I note that the evidence does not preponderate in favor of a finding that a person or persons having authority to prevent repetitions from occurring was ever apprised or should have been apprised of the original citations. There is some evidence tending to show that some of the violative circumstances, both original and recurring, took place within the steam turbine and generator division. Too there is an indication that the same safety official for Respondent was present [*74] at some prior inspections and at the one which gave rise to the repeat allegations. But this is not enough in my view to establish a sufficient nexus to warrant the assessment of penalties of up to $10,000. I therefore dissent from finding Respondent in repeated violation.
Potential Exposure
My colleagues' statement concerning this issue arises in connection with the allegation that Respondent was in willfulserious violation of 29 C.F.R. 1910.23(c)(1) because it failed to provide guardrails on a stator frame and on a powered work platform. They conclude that Respondent was a willful-serious violation as to the work platform. As to the stator frame they find a serious violation because of a genuine conflict between the parties as to whether the standard applies. The administrative judge vacated as to the work platform because the evidence showed that it was not in use at the time of the inspection, and the Secretary failed to show that employees had used it for six months prior to the inspection. n48 He also concluded that the cited standard does not apply to the stator frame. n49 I would affirm his disposition.
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n48 He also concluded that the cited standard was inapplicable because the device referred to as a work platform was in fact a scaffold and not within the cited standard. His conclusion was correct for the reasons he assigned.
n49 This issue is deal with under the subheading "The Stator Frames" infra.
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In reaching their conclusion regarding the powered work platform my colleagues say that the record demonstrates actual (as opposed to potential) employee exposure to a hazardous condition. Therefore, they say, there is no need in this case to address the problem created by the conflicting court decisions on the exposure issue. Compare: Brennan v. OSHRC (Underhill Const. Co.), Nos. 74-1579, 74-1568 (2d Cir., March 10, 1975); Brennan v. OSHRC (Gilles & Cotting), 504 F.2d 1225 (4th Cir., 1974); Southeast Contractors, Inc., v. OSHRC, No. 74-2698 (5th Cir., March 19, 1975).
My colleagues rely on the Union Safety Director's testimony which they quote at page 73-74 of their opinion. Three conclusions may be drawn from the quoted testimony: (1) [*76] the safety director saw people on the platform; (2) his testimony is without reference to time, thus we do not know when he saw the people on the platform and therefore cannot conclude that his observation is within the period of limitations prescribed by 29 U.S.C. 658(c); and, (3) his testimony does not establish an operating height for the platform whereas the standard only requires guarding above four feet. Clearly, the majority errs in finding any violation much less a willful-serious violation on the Union official's testimony.
On the other hand, there is other evidence from which we might or might not be able to infer that employees were potentially exposed to an unguarded work platform or scaffold (see note 9). My colleagues err by not resolving the willful-serious citation on this evidence. As for my view, we should adopt a rule that exposure or accessibility may be established by evidence tending to show that an employee's assigned duties either have brought him into the area of risk presented by a hazard or reasonably will bring him into such area of risk. The evidence in this case should be considered in the light of such rule. In any event, the issue must [*77] be resolved because it is fundamental to all enforcement activity under the Act.
I turn now to the matter of the stator frames.
The Stator Frames
My colleagues conclude that Respondent violated 29 C.F.R. 1910.23(c)(1) in a serious manner because a stator frame was not provided with guardrails as required by the standard; a drill operator was exposed. They assess $900. They also conclude that 29 C.F.R. 1910.252(e)(1)(i) was violated in a serious manner because two welders were seen working on a stator frame and were not protected from falls by guardrails, tied-off safety belts, or other means. Again they assesss $900. n50 Their findings are predicated solely on their conclusion that stator frames are work platforms within the meaning of 29 C.F.R. 1910.21(a)(4). The administrative judge concluded to the contrary because he was of the view that the stator frame was a "work piece" rather than a platform as the term is used in 1910.252(e)(1)(i) and defined by 1910.21(a)(4).
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n50 The assessment appears to be punitive in view of the record. The Union's safety director testified that the hazard has been abated with safety belts.
[*78]
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Insofar as my colleagues would require that guardrails be erected on stator frames I must agree with the judge's rationale. The reason is rather simple. If this Respondent is required to provide standard railings on its product because it is of such size that employees must be on it to manufacture it, then any other employer similarly situated can also be required to erect guardrails on its product while its being manufactured. For example, their rule will require the erection of guardrails on the wings, tail assemblies and fuselages of large aircraft being manufactured. Other equally monstrous modifications of product design can be easily imagined. Nevertheless, this is the result my colleagues achieve by construing the term "platform" to include an item being manufactured so as to bring it within 29 C.F.R. 1910.23(c)(1).
Moreover their construction is unnecessary. The safety hazard involved with the alleged violation of 29 C.F.R. 1910.23(c)(1) is that the driller was working at a height and not provided with protection against a fall. I can only wonder why the Secretary and my colleagues [*79] insist on requiring that guardrails be erected on the stator frames when it appears that Respondent's real failure was in not providing a scaffold for the driller to work from (29 C.F.R. 1910.28(a)(1)). In short, there is a safety practice available which answers the problem I address. However, Respondent was not cited for failing to provide a scaffold for the drill operator and such issue was not tried.
A different situation and standard exists as to the two welders. 29 C.F.R. 1910.252(e)(1)(i) unlike 29 C.F.R. 1910.32(c)(1) allows alternative means for protecting welders from falls. Thus it lists railings, safety belts, or any other effective means. It is true that the standard provides that "A welder or helper working on platforms, scaffolds, or runways shall be protected against falling . . .", and therefore argueably is not applicable to products being manufactured. But it is also true that the standard can be interpreted so as to effectuate its purpose. Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir., 1974). This may be done simply by reading the terms "platforms, scaffolds, or runways" by way of example rather than as terms of limitation. When the [*80] terms are read in such fashion, the standard can be said to require fall protection for welders working on a product, i.e., it can be read as requiring fall protection on platforms scaffolds, runways, or products. I would so interpret the standard. The record shows that safety belts could have been used and that the hazard was in fact abated with safety belts. Accordingly, a violation was established as to the welders.
The Eye Protection Issue
Perhaps of all the actions taken by my colleagues in this case their action in finding a repeat violation of 29 C.F.R. 1910.133(a)(1) and assessing a penalty of $2,000 is the most punitive and the least warranted. The record simply does not support their treatment of this issue. It is uncontroverted that Respondent supplies eye protection, posts eye protective equipment use areas, and mandates that employees use the equipment.
As to Respondent's general program on this issue the following exchange took place between the administrative judge and counsel for the Union:
The Court: They see the inspector coming, and all they have to do is take their goggles off and they have got a violation.
Mr. Chertkov: At G.E. they are fired. [*81] I mean that is a greater fear . . . (Tr. 344-45).
With regard to the specific circumstances alleged as the basis of the repeat violation the Union's safety director testified as follows:
Q. You didn't observe, at any time, the use of that jack hammer during that inspection; is that correct?
A. No, because after we -- we went right on by, after that incident . . . and I don't know whether the employees went back and used the jack hammer or not.
Q. As you were approaching it, is what I am really talking about.
A. As we were approaching, I was aware that the employees were over the area.
Q. Is that all?
A. I don't know exactly what job they were doing, and I know that one had a jack hammer in his hand.
Q. You don't know whether the jack hammer was functioning?
A. No. I don't. There are several boring mills running at the same time in that area.
Q. . . . Now, it is your testimony, I take it, that it is clearly posted in [Building No.] 273 that safety glasses are to be worn; is that correct?
A. Yes, it is. It is posted on all the doors.
Q. This is a fairly rare occurrence, would you say, in 273, to see somebody without safety glasses on?
A. Without safety [*82] glasses?
Q. Yes.
A. Yes. (Tr. 453-455).
The witness also testified as follows:
Q. . . . would you say that the safety glass rule is generally observed in those two buildings [the buildings inspected]?
A. I would say that the safety glass rule is observed in those buildings.
In view of the foregoing there can be no doubt that even if a violation existed it was a rare and unusual circumstance. Respondent provided glasses; their use was required and enforced. It did all that was possible in the circumstances, and the citation should be vacated. Brennan v. OSHRC (Hendrix d/b/a Alsea Lumber Co.) No. 73-1938 (9th Cir., February 24, 1975).
Moreover, I see no need for the majority to overrule our decision in CAM Industries, Inc., 7 OSAHRC 30, BNA 1 OSHC 1564, CCH E.S.H.G. para. 17,373 (1974). There we said that 29 C.F.R. 1910.133(a)(1) does not impose a requirement that employers are responsible for making their employees use eye protection. If my colleagues fear that a use requirement will not be imposed by the standards absent an overruling of CAM, I would merely point out that the standard is redundant to section 1910.132. I am aware, of course, [*83] that the doctrine of stare decisis is one of policy. Nonetheless, it is poor policy to willy-nilly overturn precedents particularly where there is no need. All that is accomplished by such action is the creation of uncertainty in the minds of those who must obey the law.
Miscellaneous Matters
A. Welding Leads; Tripping Hazard
Respondent was cited for a repeated non-serious violation of the general housekeeping standard (29 C.F.R. 1910.22(a)(1)) because allegedly welding leads created a tripping hazard in Building No. 52. Although my colleagues find that the cited standard does not apply to the circumstances in view of 29 C.F.R. 1910.5 because a more appropriate standard (29 C.F.R. 1910.252(e)(1)(iii)) does apply, they nevertheless affirm the citation.
The administrative judge vacated. He observed that the welding standards recognize that cables must be spread out to avoid overheating and damage to insulation, i.e., the creation of other potentially serious hazards. He also noted that the cited standard is subjective in that it requires places of employment to be "kept clean and orderly and in a sanitary condition." On the evidence of record he determined Respondent had [*84] complied. I would defer to his evaluation of the matter.
B. Fixed Ladder With 12" Rungs
It is undisputed that Respondent's ladder was provided with 12 inch rungs as opposed to 16 inch rungs in violation of the terms of the cited standard (29 C.F.R. 1910.27(b)(1)(iii)). The judge noted that other standards permitted rungs of the size used by Respondent. On review, the Secretary agrees that the violation is de minimis. I would affirm the judge's disposition on that basis.
C. Bent Fixed Ladder
Respondent was cited for violating 29 C.F.R. 1910.27 because allegedly it did not maintain a fixed ladder "in a safe condition." The ladder was supposedly unsafe because the siderails were bent to the left near the bottom. Thus it was said the stability of the ladder was affected. The administrative judge determined as a matter of fact that the distortion was "minimal." He concluded that a violation had not been established; the ladder was safe. I agree.
In affirming my colleagues shift the issue to one that was not pleaded and was not tried. They predicate affirmance on the ground that two rungs were bent, and they conclude that an employee could miss his step. I dissent. [*85]
D. Mechanical Handling Equipment; Unmarked Aisles
Respondent was cited for violating 29 C.F.R. 1910.176(a) because permanent aisles and passageways in a furnace and temporary storage room were not appropriately marked. My colleagues affirm but do not mention that Respondent was abating the condition at the time it supposedly violated the standard. The judge vacated, and I would affirm. In this regard I note that the Act contemplates exposure to hazardous conditions for the purpose of eliminating them (29 U.S.C. 662(a)).
Conclusion
For the reasons given I dissent to so much of my colleagues' decision as I have discussed. As to those portions not discussed, I am in agreement with their disposition but not necessarily for their reasons. As should be evident from my discussion, they frequently say one thing but say their action is predicated on another.
[The Judge's decision referred to herein follows]
CHAPLIN, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter the Act), wherein Respondent contests each item listed in 5 Citations. All 5 Citations were dated April 13, 1973, and [*86] were issued by the Complainant under the authority of Section 9(a) of the Act. The alleged violations and applicable standards are as follows:
Citation for Serious Violation
Item number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected
1 -- 29 CFR 1910.252(e)(1)(i) Page 22308 -- Failure to protect against falling, two welders working on top of a stator frame 15 feet 3 inches above the surrounding surface in Bay A-2, by railings, safety belts, life lines or other equally effective safeguards. -- Immediately upon receipt of this citation
2 -- 29 CFR 1910.29(a)(3)(i) Page 22128 -- In Bldg. #52, Bay A-8, a manually propelled mobile scaffold exceeded the maximum work level height, in that the scaffold was 26 feet 10 inches in height and the base was only five feet two inches in its least base dimension, also, no provision was made to guy or brace the unit against tipping. -- Immediately upon receipt of this citation.
3 -- 29 CFR 1910.27(d)(2) Page 22121 -- In Bldg. #52, a fixed metal ladder 24 feet 4 inches in height, did not have the upper portion of the ladder offset from the platform and lower [*87] portion of the ladder. -- April 26, 1973
In Bldg. #52, Bay A-32, two fixed metal ladders 24 feet 4 inches and 35 feet six inches in height, did not have either a cage, landing platform well or ladder safety device.
In Bldg. #273, Bay K-1, a fixed metal ladder 25 feet 11 inches in height, did not have either a cage landing platform well or ladder safety device.
4 -- 29 CFR 1910.243(c)(1)(i) Page 22295 -- Failure to provide a safety guard for a portable abrasive wheel observed in use by employees grinding a turbine shell in Bay A-25. The diameter of the wheel was measured as being five inches. -- Immediately upon receipt of this citation.
5 -- 29 CFR 1910.179(f)(4)(vii) Page 22260 -- In Bldg. #52, Bay C. Furnace Room, the overhead crane was not equipped with a trolley brake to prevent overtravel of the load. -- May 16, 1973
6 -- 29 CFR 1910.243(b)(1)(ii) Page 22295 -- In Bldg. #52, Bay A-9, the employer failed to provide a tool retainer on a portable hand-held pneumatic chisel that was able to eject the tool. -- Immediately upon receipt of this citation.
Citation [Other than Serious Violations]
Item number -- Standard or regulation allegedly violated -- Description [*88] of alleged violation -- Date on which alleged violation must be corrected.
1 -- 29 CFR 1910.252(b)(4)(ix)(c) Page 22306 -- In Bldg. #52, Bay A-12, on an arc welding machine, lengths of electrode (ground) cables had exposed bare conductors. -- Immediately upon receipt of this citation.
2 -- 29 CFR 1910.27(c)(4) Page 22119 -- In Bldg. #52, Bay A-32, a fixed metal ladder which was measured at 24 feet 4 inches in height, only had a two inch rung clearance at the 17 foot level. -- May 1, 1973
3 -- 29 CFR 1910.27(f) Page 22121 -- In Bldg. #52, Bay B-24, the side rails of a fixed metal ladder were bent to the left near the bottom, so as to affect the safety and stability of said ladder. -- May 1, 1973
4 -- 29 CFR 1910.106(d)(2)(i) Page 22177 -- In Bldg. #52, Bay A-18, an open 55 gallon drum was observed to be partially filled with combustible paint thinner. -- Immediately upon receipt of this citation.
5 -- 29 CFR 1910.176(a) Page 22253 -- In Bldg. #52, Bay C, furnace room, permanent aisles and passageways were not appropriately marked and kept clear. -- May 1, 1973
6 -- 29 CFR 1910.27(b)(1)(iii) Page 22119 -- In Bldg. #273, Bay H-17, the horizontal drill presses, catalog #16181 and [*89] #16182 had fixed metal ladders with rungs that measured 12 inches (the minimum clear length of these rungs shall be 16 inches). -- May 1, 1973
Serious Repeated Violation
29 CFR 1910.133(a)(1) Page 22231 -- Failure to provide suitable eye protection for two employees, Bay K-13, using a jack hammer to break up concrete. -- Immediately upon receipt of this citation.
Repeated [Other than Serious] Violations
1 -- 29 CFR 1910.22(a)(1) Page 22108 -- Welding leads and compressed air hoses, in use Bay A-7, were scattered about the floor in the work area of the employees so as to be a tripping hazard. -- Immediately upon receipt of this citation.
2 -- 29 CFR 1910.157(a)(2) Page 22243 -- Hand held CO[2] fire extinguisher, Bay A-19, was not readily accessible for immediate availability because of its being obstructed and obscured by compressed air hoses. -- Immediately upon receipt of this citation.
3 -- 29 CFR 1910.252(e)(2)(iii) Page 22309 -- In Bldg. #52, Bay B-12, B-11 and A-9, welding screens, shields or goggles were not utilized or provided to protect the workers and other persons adjacent to these areas from the harmful rays of electric arc welding, while the welding operation [*90] was in progress. -- Immediately upon receipt of this citation
Willful Serious Violation
Item number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected
29 CFR 1910.23(c)(1) Page 22109 -- Failure to provide protection against falling to an employee working on a 14 foot high horizontal stator frame, Bay H-17, by means of a standard railing or equivalent. -- Immediately upon receipt of this citation.
Willful Serious Violation
Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected
Two work platforms six feet ten inches above the surrounding surface, Bay K-8, were not guarded on all sides by a standard railing.
Failure to provide a standard railing for a powered work platform #15836, Bay K-11, that can be elevated to a height of ten feet.
The penalties proposed for the above Citations were as follows:
|
Citation for Serious Violations |
|
|
|
|
|
Item |
Penalty |
|
1 |
$1,000.00 |
|
2 |
$1,000.00 |
|
3 |
$1,000.00 |
|
4 |
$1,000.00 |
|
5 |
$1,000.00 |
|
6 |
$1,000.00 |
|
|
|
|
Citation [Other than Serious Violations] |
|
|
|
|
|
1 |
$0 |
|
2 |
$100.00 |
|
3 |
$0 |
|
4 |
$100.00 |
|
5 |
$0 |
|
6 |
$0 |
|
|
|
|
Serious Repeated Violation |
|
|
|
|
|
|
$2,000.00 |
|
|
|
|
Repeated [Other than Serious] Violations |
|
|
|
|
|
1 |
$ 500.00 |
|
2 |
$ 100.00 |
|
3 |
$1000.00 |
|
|
|
|
Willful Serious Violation |
|
|
|
|
|
|
$5,000.00 |
[*91]
The standards applicable to each of the foregoing are as follows:
29 CFR 1910.252(e)(1)(i) A welder or helper working on platforms, scaffolds, or runways shall be protected against falling. This may be accomplished by the use of railings, safety belts, life lines, or some other equally effective safeguards.
29 CFR 1910.29(a)(3)(i) The maximum work level height shall not exceed four (4) times the minimum or least base dimension of any mobile ladder stand or scaffold. Where the basic mobile unit does not meet this requirement, suitable outrigger frames shall be employed to achieve this least base dimension, or provisions shall be made to guy or brace the unit against tipping.
29 CFR 1910.27(d)(2) Landing platforms. When ladders are used to ascent to heights exceeding 20' (except on chimneys), landing platforms shall be provided for each 30' of height or fraction thereof, except that, where no cage, well, or ladder safety device is provided, landing platforms shall be provided for each 20' of height or fraction thereof. Each ladder section shall be offset from adjacent sections. Where installation conditions (even for a short, unbroken length) require that [*92] adjacent sections be offset, landing platforms shall be provided at each offset.
29 CFR 1910.243(c)(1) General requirements. (i) All abrasive wheels shall be used only on machines provided with safety guards as defined in the following subparagraphs of the paragraph.
EXCEPTIONS: This requirement shall not apply to the following classes of wheels and conditions [There was no argument that any exception applied].
29 CFR 1910.179(f)(4)(vii) Brakes for stopping the motion of the trolley or bridge shall be of sufficient size to stop the trolley or bridge within a distance in feet equal to 10 percent of full load speed in feet per minute per minute when traveling at full speed with full load.
29 CFR 1910.243(b) Pneumatic powered tools and hose -- (1) Portable tools. (ii) A tool retainer shall be installed on each piece of utilization equipment which, without such a retainer, may eject the tool.
29 CFR 1910.252(b)(4)(ix)(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 [*93] intended for the purpose. The connecting means shall have insulation adequate for the service conditions.
29 CFR 1910.27(c)(4) Clearance in back of ladder. This distance from the centerline of rungs, cleats, or steps to the nearest permanent object in back of the ladder shall be not less than 7 inches, except that when unavoidable obstructions are encountered, minimum clearance as shown in figure D-3 shall be provided.
29 CFR 1910.27(f) Maintenance. All ladders shall be maintained in a safe condition. All ladders shall be inspected regularly, with the intervals between inspections being determined by use and exposure.
[SEE ILLUSTRATION IN ORIGINAL]
29 CFR 1910.106(d) Container and portable tank storage -- (1) Scope -- (i) General. This paragraph shall apply only to the storage of flammable or combustible liquids in drums. (2) Design, construction, and capacity of containers -- (i) General. Only approved containers and portable tanks shall be used. Metal containers and portable tanks meeting the requirements of and containing products authorized by Chapter I, Title 49 of the Code of Federal Regulations . . . shall be acceptable.
29 CFR 1910.176(a) Use of mechanical [*94] equipment. Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard. Permanent aisles and passageways shall be appropriately marked.
29 CFR 1910.27(b)(1)(iii) The minimum clear length of rungs or cleats shall be 16 inches.
29 CFR 1910.133(a)(1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.
29 CFR 1910.22(a)(1) All places of employment, passageways, storerooms, and service rooms shall be kept clean [*95] and orderly and in a sanitary condition.
29 CFR 1910.157(a)(2) Location. Extinguishers shall be conspicuously located where they will be readily accessible and immediately available in the event of fire. They shall be located along normal paths of travel.
29 CFR 1910.252(e)(2)(iii) Protection from arc welding rays. Where the work permits, the welder should be enclosed in an individual booth painted with a finish of low reflectivity such as zinc oxide . . . and lamp black, or shall be enclosed with noncombustible screens similarly painted. Booths and screens shall permit circulation of air at floor level. Workers or other persons adjacent to the welding areas shall be protected from the rays by noncombustible or flameproof screens or shields or shall be required to wear appropriate goggles.
29 CFR 1910.23(c) Protection of open-sided floors, platforms, and runways. (1) Every opensided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided [*96] with a toeboard wherever, beneath the open sides:
(i) Persons can pass,
(ii) There is moving machinery, or
(iii) There is equipment with which falling materials could create a hazard.
Local No. 301, International Union of Electrical Workers (hereafter the Union) requested an expedited proceeding which was granted under 29 CFR 2200.101.
Following a prehearing conference the Secretary moved to dismiss the charge respecting the alleged violation of 29 CFR 1910.29(a)(3)(i) and 29 CFR 1910.179(f)(4)(vii). The Union objected to the move to dismiss respecting 1910.29(a)(3)(i) and as a party to the action they were offered the opportunity of going ahead with the proof as to that item, over the Secretary's objection (Tr. 1-245). Final disposition of these motions was reserved until the submission of briefs on this point. Midway during the course of the trial the Secretary moved to withdraw its Motion to Dismiss respecting the alleged violation of 29 CFR 1910.29(a)(3)(i) and to amend the Citation to charge a violation of 5(a)(1) of the Act rather than a specific standard. A ruling on this motion was also reserved.
The Secretary also moved to amend the Citation respecting [*97] the standard at 29 CFR 1910.106(d)(2)(i), Item 4 of the Citation for other than serious violations, and substitute the standard at 29 CFR 1910.106(e)(9)(iii) which provides
1910.106 Flammable and combustible liquids. . . . (e)(9) Housekeeping: (iii) Waste and residue. Combustible waste material and residues in a building or unit operating areas shall be kept to a minimum, stored in covered metal receptacles and disposed of daily.
Respondent object to this motion and submitted a brief in opposition. Ruling on this motion was reserved and the Secretary permitted to proceed with his proof.
The Respondent moved for the exclusion of all evidence reflecting communications between Respondent and the Union wherein Respondent's management employees may have admitted certain facts or conceded safety and health violations may have existed for the purpose of achieving the health and safety goals of the parties. This motion was not granted with the right reserved to Respondent to object for this same reason to specific questions when asked. It is pertinent here to point out that in general such discussions as Respondent refers to would be admissible to establish good faith but admissions [*98] by its employees at some date not germane to the issues being tried would not, standing alone, sustain a finding of a violation. In my decision in the matters before me in this case all findings of violations were based upon the testimony presented in the course of the hearing.
Respondent renewed its motion for a postponement of the hearing at the conclusion of the Secretary's opening statement. [A prehearing motion for postponement of the entire hearing had been denied prior to the commencement of the hearing.] This motion was denied, however, Respondent was advised that:
. . . my ruling now should not preclude you from, at any stage of the proceedings, claiming surprise, and asking for a delay . . . (Tr. 1-28).
In its prehearing statement the Union argued that Respondent should have cited under Section 5(a)(1) of the Act and that the citation should be amended to reflect the ". . . serious, willful and repeated violations of the Act by Respondent." During the course of the hearing the Union reiterated its position that all of the alleged violations were more serious than as cited by Respondent (Tr. 132, 366, 463, 675).
The Evidence
The parties stipulated that the [*99] full and accurate name of Respondent is General Electric Co., Inc. of the state of New York, that it is engaged in business affecting interstate commerce, and that it is the owner of the equipment and machinery involved in the alleged violations. At its Schenectady worksite the Respondent operates an industrial plant with 64 separate departments. Some departments or divisions operate at the main plant at 1 River Road as well as at an extension of the main plant, some 2-1/2 miles away on Nott Street, considered to be an integral part of the main plant. It employs approximately 27,000 people at its Schenectady worksite. The Citations were properly served and posted. As to the alleged violation of 29 CFR 1910.252(e)(1)(i), the employees working on the stator frame were not wearing safety belts or lifelines and there was no guardrail on the stator frame, an item manufactured for interstate sale. There were previous Citations under this Act; i.e., December 2, 1971, February 29, 1972, October 2, 1972, and March 12, 1973, which were not contested and have become final orders (Exhibits C-1, 2, 3, and 4).
The inspection was accomplished by Compliance Officers John Nead and David Bernard [*100] (hereafter CO) following the complaint of the Union Safety Director Larry Rafferty. Mr. David Guilbault represented Respondent on the inspection and he was generally described as having overall area responsibility (Tr. 1-221, 236, 278, 543). He did not testify at the hearing. The several alleged violations will be treated under the applicable standard.
Serious Violations
29 CFR 1910.252(e)(1)
There is no dispute among the parties respecting the factual situation as it applies to the workmen on the stator frame (Ex. C-5). There had been previous instances of a similar nature called to Respondent's attention by the Union (Exhibit C-17). Since the inspection here in issue the employees are wearing safety belts with life line (Tr. 1-400). Mr. Robert Gidel, President of the Occupational Health and Safety Consulting Associates and former Program Operations Director of the Occupational Safety and Health Administration, described the administrative steps in promulgating standards under the Act and identified ANSI Z-49.1, 1967 [Safety in Welding and Cutting] as the source of 29 CFR 1910.252(e)(1). Further he testified that this standard had no application to the factual [*101] situation cited here (Tr. 2-228).
29 CFR 1910.29(a)(3)(i)
There was testimony that in Building 52, Bay A-8, the inspection party observed an electrically operated lift or powered platform (weldevator). A Compliance Officer, Mr. Bernard (hereinafter CO), rode the lift to the top and measured the height as 26 feet 10 inches. The base measurement of the lift was 5 feet 2 inches by 11 feet 5 inches, representing a cross (Tr. 1-254, 256, 605) and he estimated the unit weighed at least 3 tons (Tr. 1-256). This unit was not guyed or braced (Tr. 1-254, 437, 2-17) and had a swaying motion or lack of stability when elevated (Tr. 1-262, 436). For this demonstration 3 people rode it (Tr. 2-7). It had no wheels and rested on the floor, being moved about the plant by an overhead crane (Tr. 2-10). The lifting platform was open on the side parallel to the work (Tr. 1-437). No employees were observed using this lift but the CO was informed that two employees were affected by it (Tr. 1-255; 2-26).
At the time the Citation was drawn the CO was unaware of the definition of manually propelled mobile scaffold contained in 29 CFR 1910.21. n1 In light of present knowledge the COs now [*102] do not consider the cited standard applicable to these facts. The hazard represented by this platform was of the elevated lift tipping or being knocked over by a crane (Tr. 1-438; 2-12). Testimony was also presented that in the demonstration ride the platform, when elevated and stopped, was 1-2 feet away from the work area (Tr. 1-436, 439, 607). In support of the Motion to amend the Complaint to charge this factual situation as a 5(a)(1) violation, a CO, with 10 years' experience as a safety engineer, stated that this was a recognized hazard in the industry because:
It would be reaily discernible to the employers, and that since it was in such use, frequent use, that its obvious swaying, as it was elevated, would indicate a possibility of falling over, and I think that the fact that the -- it is recognized in the industry that the dimensions should be at least one-fourth of the width that it would be elevated. (Tr. 1-608)
Further, that the basis of the 5(a)(1) charge was the instability of the powered work platform, based on the 4 X 1 rule (Tr. 1-757).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 1910.21 Definitions
(g) As used in 1910.29, unless the context requires otherwise, manually propelled mobile ladder stand and scaffold (tower) terms shall have the meaning ascribed in this paragraph.
(11) Mobile scaffold (tower). A light, medium or heavy duty scaffold mounted on casters or wheels.
(12) Mobile. "Manually propelled."
(13) Mobile work platform. Generally a fixed work level one frame high on casters or wheels, with bracing diagonally from platform to vertical frames.
[*103]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Union Safety Director testified there are several Weldevators in this plant and he has observed them in use. Further, he has not noticed any outriggers or outrigger frames.
Mr. Gordon Richardson, Vice President of M.D. Knowlton Co., manufacturer of Weldevators, testified that he was a 1946 graduate of Cornell University, School of Civil Engineering, with a major in structural design and employment in engineering allied positions to date. His Company had manufactured 75-100 Weldevators to date and sold them to government and private industry (Tr. 2-113). He had ridden the units at Respondent's plant and at their upper limits (maximum elevation 31 feet), there was between 1/2 to 1 inch sway (Tr. 2-111). His Company had received no complaints of any of these units tipping (Tr. 2-113), he had never heard of one tipping (Tr. 2-114) but he was aware of one at General Electric Company, building 52, upsetting when hit by the hook of a crane or the load (Tr. 2-114). The unit weighed about 3,500 pounds and was portable to the extent of using capable overhead lifting devices (Tr. 2-117). The [*104] 31 foot capacity unit was not provided with wheels or casters.
These units met New York State requirements that 50 pounds of force in any direction would not render it unstable and engineering calculations (Ex. R-9) showed that the point of instability was reached with 450 pounds of thrust applied at the maximum height (Tr. 2-121) from front to back. The non-portable Weldevators are sold with stabilizers and stabilizing devices on them (Tr. 2-124) which extend from the sides (the ends of the long dimension (Tr. 2-129)). The stabilizers are jack screws in the end of the long dimension (Tr. 2-133, Ex. J-3) and he had never seen a Weldevator without stabilizers. Respondent's Building 52 superintendent stated that on the day of the inspection the jack screws were down to ground level (Tr. 2-145, 175).
29 CFR 1910.27(d)(2)
This standard involved fixed metal ladders and there were 4 instances of alleged violations cited. One ladder, 24 feet 4 inches in height, Bay A-10, Building 52 (Ex. C-6, Tr. 1-548) was not properly offset, two ladders in Bay A-32, Building 52, 24 feet 4 inches and 35 feet 6 inches in height respectively and one ladder 25 feet 11 inches in height in Bay K-1, [*105] Building 273 did not have either cage, landing platform or ladder safety device (Tr. 1-52, 53). All of these ladders were straight without offsets (Tr. 1-52, 53), and ended at catwalks (Tr. 1-703). They were used for access by overhead crane operators and maintenance personnel (Tr. 1-164, 327). The ladders shown in exhibit C-6 had a platform offset at the 8 foot 7 inch level. The Union Safety Director had previously called these ladders to the attention of Respondent (Tr. 1-328, Ex. C-17, C-18) and on December 2, 1971, Respondent was cited for a violation of 29 CFR 1910.27(d)(1)(ii) involving a 21 foot 2 inch ladder on a machine (Ex. C-1) which was corrected by an offset and landing platform. Two weeks was alloted to abate this violation.
29 CFR 1910.243(c)(1)(i)
In Bay A-25, Building 52, two employees were using a hand held, portable, abrasive grinding tool that was unguarded (Tr. 1-57; C-7). The employee shown in Exhibit C-7 is wearing goggles. The wheel was 5 inches in diameter and bonded and turned at 9,000 rpm. It was estimated by the Union Safety Director that several hundred employees used grinders of this type, some of them guarded (Tr. 1-401) and that [*106] Respondent was experiencing difficulty in getting these guards (Tr. 2-22). Respondent's shop foreman related that at the time of the OSHA inspection about 50% of the wheels in Building 52 were guarded and that they had a program to progressively guard all these grinders (Tr. 2-146). He was aware that the unguarded grinders were in violation of the standard. Part of the problem in guarding these grinders was that some of them were 25-30 years old and guards were not available (Tr. 2-183) and this raised the problem of additional cost for equipment to be removed for obsolescence. However there were approximately 200 grinders in inventory and only about 30 grinder employees per shift, so that Respondent felt it had enough guarded grinders.
29 CFR 1910.243(b)(1)(ii)
This alleged violation involved a hand held portable pneumatic chisel being utilized in Bay A-9, Building 52. At the time of the inspection an employee, at the request of the Union Safety Director, procured one of these tools from his work station and demonstrated that he could eject the chisel a distance of 5-9 feet and that there was nothing retaining the chisel in the tool (Tr. 1-61, 127). This type of chisel [*107] (or chipping-hammer) operates with 90 pounds of air pressure against a piston which strikes the chisel being pushed back against the piston. Thus the chisel only works when the chisel is meeting resistance or being held in the tool by the operator's hand (Tr. 1-337). Respondent does have retainers on peening hammers used by welders but not on this type of chipping hammer. Respondent has about 200 employees at its plant using this type of tool (Tr. 2-17).
The superintendent of Respondent's Building 273 related that he observes chipping hammers in use daily and has used them himself; that he has been employed by Respondent for 33 years, and that in the number of years he has observed this tool in use he has never seen a chisel eject. He described the method of inserting the chisel and working with the tool (Tr. 2-49). He attempted to duplicate the demonstration described by the Secretary's witnesses as well as actually work the tool and have the chisel eject and after several efforts he succeeded in having the chisel eject from a work situation and also just firing away with it (Tr. 2-52). The tools that were in use in his building had been manufactured by 3-4 different [*108] manufacturers but they were all basically the same in construction and operation.
Each of the above described alleged violations was classified as serious (Tr. 1-546, 553, 610, 614) in that Respondent, with reasonable dilligence, could have known of the violation and there was substantial probability that death or serious injury could result from such condition (Tr. 1-547, 551, 554, 555, 608, 614). In computing the penalties to be assessed Respondent for these alleged violations the Secretary gave no credit for good faith, size or history and determined each item charged should be abated immediately, except as to Item No. 3 respecting fixed metal ladders, respondent was given 9 working days to abate.
Other than Serious Violations
29 CFR 1910.252(b)(4)(ix)(c)
Testimony was elicited from the Secretary's witnesses that in Bay A-12, Building 52, there was an arc welding machine with lengths of lead and ground cable that were properly joined by bolting, however, the ground cable was exposed and uninsulated at the connection (Tr. 1-95). One employee was using this equipment. This unguarded connector created an electrical shock problem in that if the bare connector was grabbed by [*109] the welder he would experience a shock (Tr. 1-392). However if he was holding the insulated electrode lead he would not be shocked by touching the uninsulated ground lead (Tr. 1-478). This condition was considered to be of little gravity (Tr. 1-632) and no penalty was proposed. The alleged violation was to be abated immediately.
29 CFR 1910.27(c)(4)
The alleged violation of this standard involved a metal pipe running parallel to a fixed metal ladder rung at the 17 foot level and only 2 inches directly behind the rung and obstructing the foot. This ladder was in Building 52 (Tr. 1-209). This was considered a moderate hazard for which abatement credit was given. Abatement was to be accomplished in two weeks.
29 CFR 1910.27(f)
In Bay B-24, Building 52, there was a fixed metal ladder that had been bent to the side (Ex. C-15). Mr. Nead testified that the bent portion involved the bottom 4 rungs and was severe (Tr. 1-99). The danger inherent in this bending was a possibility that the ladder had lost some of its stability and could give way (Tr. 1-99). However he did not know if the ladder had been weakened (Tr. 1-99). He did not check its stability (Tr. 1-210) [*110] and it seemed pretty solid to hand grip. The Union Safety Director was of the opinion that the hazard created by a bent ladder was one of an employee falling. Mr. Bernard was of the opinion that the hazard was in weakening a rung where it was welded. However he did not push or pull it (Tr. 1-763) or otherwise test it (Tr. 1-771). There was no penalty proposed for this condition and abatement was to be accomplished in two weeks.
29 CFR 1910.106(d)(2)(i)
In Bay A-18, Building 52, the COs observed a partially filled, uncovered 55 gallon metal container sitting on the floor. It was estimated there was about 10 gallons of "Rust-Ban" liquid and some rags and paper in the bottom of the drum. The liquid was identified by employees as a paint thinner which was combustible (Tr. 1-213). This had been dumped in the container as waste. No test was performed on the liquid matter by the COs (Tr. 1-241). The determination that the contents of the container were combustible was based on a reading of the label of a can of "Rust-Ban" shown to the COs by employees of Respondent (Tr. 1-395, 763). The Union Safety Director testified that the drum ". . . seemed to be partially filled, [*111] down to the bottom, with the rags in there and apparently some papers and what appeared to be paint or oil base or something, and oily surface . . ." This situation was determined by Mr. Bernard to be of moderate gravity and the hazard involved was one of fire. Immediate abatement was felt to be reasonable. Mr. James Corcoran, Respondent's Superintendent of Building 52, testified that there was a drum, as described by the Secretary, and this drum was used to catch mud and water overflow from the sediment tank at the "shot blast" facility. Normally this drum sits under the "shot blast" machine but on the day of inspection it was 10-15 feet away (Tr. 2-147). However he placed the drum and "shot blast" machine as being in Bay B-18 although there also was such a machine in Bay A-18 (Tr. 2-170).
29 CFR 1910.176(a)
In Bay-C (furnace room), Building 52, the COs reported there were numerous loaded pallets scattered randomly all over the floor in a storage area where mechanical equipment was required to move said material and further that this material blocked personnel using aisles and tending the furnace (Tr. 1-100). However there were no aisle markings and thus, in the event of [*112] fire, the haphazard storage could impede employees egress (Tr. 1-102). Mr. Nead testified that permanent aisle markings should have gone from the entrance door to each fire exit (Tr. 1-116) based on the requirement to have permanent aisles and passageways in all places of storage or business where employees work. He was unable to remember how it was determined that mechanical material handling equipment was used in this area (Tr. 1-211). The Union Safety Director testified that this area was inspected at the request of the operator of an overhead crane (Tr. 1-397). Mr. Bernard determined this was of a low level of gravity and the hazard was that aisle markings are to separate employee walking areas from mechanical equipment moving areas to prevent the employee being struck and to delineate the storage areas (Tr. 1-642). Abatement was to be accomplished in two weeks with Respondent's resources (Tr. 1-653). Mr. Corcoran testified that forklift trucks were used in this area (Tr. 2-164), and that on the date of the inspection there were no aisle markings (Tr. 2-166).
29 CFR 1910.27(b)(1)(iii)
In Bay H-17, Building 273 the COs testified there were fixed metal ladders, [*113] attached to large machines, which had rungs 12 inches wide (Tr. 1-102, 399). One of Respondent's employees testified that he slipped off one of these rungs, sustaining a back injury, and that a wider rung might have helped him (Tr. 1-511). Since the inspection this condition has been abated. Mr. Bernard determined this was a hazard of very low level and it was a hazard because the 12 inch rung left insufficient room for an individual's feet (Tr. 1-644). No penalty was proposed for this violation and Respondent was granted two weeks to abate. For all of the nonserious violations Respondent received no credit for good faith, size or history but an abatement credit was given.
Repeated Serious Violations
29 CFR 1910.133(a)(1)
Mr. Nead observed two of Respondent's employees in Bay K-13, Building 52 operating a pneumatic hammer, to break up concrete, to the left of the aisle the inspection party was in and they were not wearing any eye protection (Tr. 1-72). These employees were clearly visible to the inspectors. As soon as the COs started talking to the employees about their lack of eye protection Respondent's representative advised them to cease their operation until they [*114] put on eye protection. Before entering and also inside this building they saw signs stating "Mandatory that you wear eye protection in the building at all times." They also observed two maintenance employees not wearing glasses in this building. One of them had his glasses in his pocket and the other in his tool box. The hazard from failing to wear protective glasses was of particles of concrete or dust entering the eye. This alleged violation was classified as a repeated violation because Respondent had been previously cited for violating the same standard.
The Union representative testified that he considered the safety glass rule as being observed in the two buildings inspected, although he had observed violations of the rule (Tr. 1-442), and that the rule about wearing safety glasses is posted on all doors (Tr. 1-454). The two employees using the pneumatic hammer were not directly supervised. One instance was cited of an employee being discharged for refusing to wear his protective glasses (Tr. 1-538).
Mr. Bernard testified Respondent had previously been cited for violations of this same standard in December 1971 (Ex. C-1) in Buildings 61 and 273 in that grinding [*115] and chipping employees were wearing safety glasses but they did not have side shields (Tr. 1-590). In assessing a penalty for the current alleged violation it was determined by a committee of the Secretary's employees that this situation presented the possibility of serious physical harm which carried a maximum penalty of $1,000.00 for which no reduction was warranted. Since this was the second citation under the same standard the $1,000.00 would be multiplied by two for a proposed penalty of $2,000.00. Respondent was accorded no credit for good faith since the Act had been in effect two years and it had received numerous citations (Tr. 1-601). They also received no credit for history because of their previous violations. Mr. Bernard had observed that Respondent's rule respecting the use of protective eye glasses was pretty well complied with and was prominently posted in all buildings (Tr. 1-694).
Respondent's employee, Mr. Bruce F. Henkel, one of the two employees involved in the eye protection citation, was called by Respondent. He testified that he was a heavy construction laborer employed in Utility Operations throughout the plant in Schenectady, that he had been employed [*116] for 7 months and he had experience using a pneumatic hammer antedating his employment. On the date in question he was wearing safety glasses without side shields but since that date he has been supplied with safety glasses with side shields. At the beginning of his employment he was informed of the rule respecting safety glasses and issued such glasses. There was a possibility that on the date in question he may have removed his glasses to clean them.
Repeat [Other than Serious] Violations
29 CFR 1910.22(a)(1)
The COs testified that in Bay A-7, Building 52 two welders were working and they had their welding leads and air compressor lines scattered all over (Exs. C-8 and 9). The leads could have been rolled up and wrapped on metal wall mounts on the wall behind the work. Other welders walking around the area were tripping. This situation created a slipping and tripping hazard (Tr. 1-62). The welding operation involved a cradled work piece about 3 feet off the ground. The scattered lines were in the welding work area and not in an aisle.
The Union Safety Director testified that the Union had struck over the issue of wrapping up leads and hoses. This situation [*117] was considered a perennial problem in Building 52 and had been called to Respondent's attention previously by the Union (Ex. C-17 and 21). This was not a problem in all buildings at Respondent's plant and management had recognized that it was a day to day problem in Building 52. He described the operating method of welders to uncoil all the lead and hose required to do the job at its furthermost extension and work back toward the outlet. He identifed the work in the area as that being performed by the welder shown in Exhibits C-8 and 9 and also that there were sub-arc welders on top of or inside a stator frame (Tr. 1-468).
Mr. Bernard testified that there was a hazardous accumulation of welding leads and compressed air hoses in Bay A-7, Building 52 which constituted a tripping hazard (Tr. 1-560). It was his opinion that the coils on the floor were excessive. On a previous occasion in December 1971 (Ex. C-1) Respondent was cited for 8 instances of violation of this same standard, and in February 1972 (Ex. C-2) one instance of an identical violation.
Mr. Corcoran testified that the employee, Mr. Campbell shown in Exhibits C-8 and 9, was working in the area to his right, 3 other [*118] welders were working in the area to his left and 4 chippers, using air lines, were to the right of Mr. Campbell (Tr. 2-140). Further, that all the lines shown in Exhibits C-8 and 9 were being utilized at the time the inspection party visited the cited area. He agreed with Mr. Rafferty that welders usually uncoil the maximum amount of lead and work back (Tr. 2-155). The area involved in Exhibits C-8 and 9 was a work area and not an aisle.
Mr. Gidel testified that the standard under which Respondent was cited was a sanitation standard adopted from ANSI Z4.1-1968 (Tr. 2-263).
29 CFR 1910.157(a)(2)
Mr. Nead described the situation that gave rise to the citation under this standard as a wall mounted fire extinguisher with air hoses wrapped around it so that it could not be seen and obstructing its use (Tr. 1-64; Ex. C-4). The pictured scene was after Respondent's representative had immediately removed the hose, in a matter of seconds, and dropped it to the floor. He also described a previous citation for an obstructed fire extinguisher reflected by Exhibit C-4. This was the only instance of an obstructed fire extinguisher noted on this inspection.
Mr. Rafferty testified [*119] that the depicted fire extinguisher was in Bay B-19, rather than A-19, and was the only obstructed extinguisher noted that day (Tr. 1-355). However, on other occasions he had called similar situations to Respondent's attention (Exhibits C-16, 17, 19, 21, and 23). Respondent had corrected most of the referred to instances (Tr. 1-358).
Mr. Bernard testified that he observed several coils of hose draped over the cited fire extinguisher, partly obscuring it from view, although it was visible from where he stood 20-25 feet away, and interfering with its use in an emergency. Further that there was a table in front of it and cans stored against the wall under it. When this situation was discussed Respondent's representative reached in an uncovered the extinguisher in a moment's time. This was the only observed instance of a fire extinguisher violation. Although the likelihood of injury was low a penalty of $100.00 was assessed because under a proposed revision of the Labor Department's Compliance Operations Manual repeated violations carry a minimum penalty of $100.00 (Tr. 1-749).
29 CFR 1910.252(e)(2)(iii)
Mr. Nead testified that while walking in an aisle in A and B [*120] Bays, Building 52, he observed employees arc welding alongside the aisle without using any protective screens for other employees in the area who were welding and chipping (Tr. 1-67, C-11 and 12). Exhibit C-12 shows an unutilized screen to the right of the picture. There were 6 other employees in the immediate area (within 50 feet) who were exposed to the welding rays and potential eye damage (flash burn). Some of the employees were wearing head shields and using them while welding and others had no protection from welding rays. Respondent had previously been cited for a violation of the same standard (Ex. C-3) at the Nott Street plant (Tr. 1-94).
Mr. Farrerty observed that he had previously brought this situation to Respondent's attention (Exhibits C-17, 19, 21, and 23).
Mr. Bernard testified that it was felt Respondent, with the resources at its command, could abate this violation immediately. No effort was made to ascertain what these resources were. The principal problem caused by inadequate screening was that persons passing by the welding area and in the adjacent work area were unprotected against the welding rays. On this inspection he saw 2 employees welding with [*121] one screen between them.
Mr. Corcoran testified that in the area in question there were 5 weld screens although none was being used. Generally there were about 4 people in that work area at any given time.
Willful Serious Violation
29 CFR 1910.23(c)(1)
Mr. Nead testified that in Building 273 he observed 3 work situations for which he cited Respondent. In one situation in Bay H-17 an employee was observed working about 12 feet above the floor on the upper side of a stator frame, without a railing, drilling holes. In addition the large industrial drill was leaking oil and creating a slippery surface (Ex. C-13). All the while Mr. Near watched this scene the employee was holding on to the drill frame. There was no indication of any other safety precaution taken for this employee. He considered the place where the employee was drilling, as a work surface because that was where he performed his work. He did not consider this to be serious at the time.
In Bay K-8 there were 3 welders on temporary structures 6 feet 8 inches above the floor without midrails on all sides of the work surface (Ex. C-14, Tr. 1-83, 156). Mr. Nead described a scaffold as a temporary structure [*122] put up for no more than one day (Tr. 159). The structure he observed on this inspection was a metal framework with wood plant flooring (Tr. 156). These structures were variously described as platforms and scaffolds. Mr. Rafferty described them as scaffolds (Tr. 378).
In Bay K-11 a powered work platform was sitting alongside the aisle, not in use, and without standard railings. It had 6 inch deep sockets or openings in the metal floor for a removable railing but no one knew where the railing was (Tr. 1-87). The platform used a scissors technique for elevating the lift over 10 feet. However Mr. Nead did not know how high it was elevated when in use.
Respondent had previously been cited under this same standard for no guardrails (Ex. C-4). The same representatives of Respondent, who accompanied the inspectors in March 1973, had also been present on the previous inspection that resulted in the citation in evidence as C-4.
Mr. Rafferty testified that he observed the employee on the stator frame in Bay H-17, without guard rails or a life line, the scaffolds in Bay K-8 with welders on them without midrails where there was an additional hazard of the welders working on very hot [*123] material where the welder might accidentally burn himself and back off the platform because of the lack of a midrail. Further he had seen the powered lift in Bay K-11 used at heights of 6, 8 and 10 feet and on occasion had used it himself. When working on the powered lift the welder would weld a piece of angle iron from the platform, which was up against the work, to the area being worked on (Tr. 1-377) to provide a temporary guard.
On previous occasions Mr. Rafferty had brought the issue of scaffold railings to management's attention (Tr. 1-379, Ex. C-16, 23) and on one occasion a grievance was filed respecting employees working on the top of a stator frame. He described the violation referred to in Ex. C-16 as a molten steel pouring operation where slag rolls off the back of a furnace and employees work around a floor hole without railings to prevent them falling into the hole through which the molten steel flows (Tr. 1-483).
Mr. Gary Kingsland, an employee of Respondent, testified that he was a horizontal radial drill press operator who worked on top of stator frames [as illustrated in Ex. C-13] as they came through the shop on an assembly line. He stated they varied [*124] in length from 19 to 38 feet and were about 15 feet in diameter. The frame sits on blocks so that the top, being worked on, is 15-18 feet above the floor. A single stator frame may remain in the work area for up to 200 drilling hours. Occasionally it is repositioned by rolling and other employees perform a variety of jobs on it. There is no flat surface to work on and underfoot is a lot of oil from the drill and cooling and tapping oils. On occasion he had complained to management about this and was permitted to wash the frame down to remove the oil. Sometimes, on request, he is provided a light, portable, aluminum scaffold butted up against the frame but only reaching half way up to his work area. Since the inspection a rope is provided as a means of quick escape.
Mr. Bernard testified that Respondent had been previously cited for a violation of this same standard (Ex. C-1, 4). While conducting the inspection, Mr. Rafferty called his attention to the employee working on the stator frame. Mr. Bernard climbed the drill press ladder and measured the top of the frame as being 14 feet above the floor. He did not see any scaffolding or railing around the stator frame and the [*125] employee was not wearing a life line, safety belt or other means of personal protection.
He determined that a fall from the stator frame would result in serious physical harm or death and that the employee so exposed was plainly visible to management officials. A fall from either of the platforms in Bay K-8 or the work platform in Bay K-11 would produce the same serious consequence. He determined that the alleged violation of this standard was willful because Respondent had been cited for a similar violation about March 12, 1973, and also on December 2, 1971, (Tr. 1-621, Exhibits C-1, 4). Further he knew that the Union and Respondent had discussed the same subject on occasions.
The penalty was arrived at by taking the unadjusted penalty of $1,000, without allowing any credit for good faith, history or size, and multiplying this by a factor of 5. The multiplier represented the consensus view of the Secretary's committee (Tr. 1-630). Immediate abatement was ordered because of the previous citations Respondent had received and the resources at its command.
Mr. Leland Weller, superintendent of Respondent's Building 273, testified the scaffolding in use on the day of [*126] inspection had angle-iron top and mid-rails on three sides and an angle-iron top and chain mid-rail on the fourth (front) side. He equated the angle iron with a 2 x 4. Eye bolts were welded into the uprights so that the chain could be snapped to the bolt (Tr. 2-44). A chain is used for ease of entry from a ladder onto the scaffold work space.
He described the powered work platform in Bay K-11 as being a special application, 4 x 6 foot platform with a fixed back and removable posts on the sides to which chain was hooked to form the top and mid-rails. The work or front side of the platform had a telescoping arrangement to permit the platform to be moved in against the work and this side was unguarded. The employees were instructed to use the rails. This platform was used about once a month. None of these scaffolds were affixed to the building.
Mr. Gidel testified that the standard here under consideration was derived from ANSI A12.1-1967 which pertained to real estate and had nothing to do with stator frames or work products. Any attempt to enlarge the applicability of the standard meant it was no longer a consensus standard which the Secretary was authorized to adopt. However, [*127] on cross-examination he conceded that this was his interpretation and ANSI A12.1-1967
2. It employs thousands of employees at its Schenectady, N.Y. plant where many types of manufacturing occur. The plant site is not under the administrative control of any centralized authority but is controlled be several segments of the Corporation from its corporate headquarters. Purely local matters such as plant maintenance are centralized locally.
3. The inspection of March 1973 was limited to Buildings 52 and 273 where turbine generators are manufactured (Tr. 1-268).
4. Stator frames are large component parts of turbine generators that move through the plant on a wheeled frame with the capacity to be rotated to permit work to take place on all sides. The cited stator frame was in a horizontal position and in this position it was 15 feet 3 inches above the floor (Tr. 1-46). Two employees were welding on top of the frame (Tr. 1-46) and they were not wearing any safety device and there was no other protective device around the workplace. (Tr. 1-48). Abatement was directed to be accomplished immediately and the workmen now wear safety belts tied off.
5. Weldevators are moveable [*128] elevators with working surfaces that rise to differing heights and the cited unit had a capacity of 31 feet. Its base was "T" shaped with the top of the "T" being a steel beam 11 feet 5 inches with leveling or stabilizing jacks at its ends and the body of the "T" consisted of a frame about 5 feet 2 inches square. It weighed in excess of 1 and 1/2 tons. Immediate abatement was ordered.
6. The unit was not guyed or braced and achieved its stability by virtue of its gross weight and base dimensions with stabilizing screw jacks.
7. The unit may be upset by being struck high up by moving overhead equipment.
8. Respondent had 4 fixed, metal ladders measuring from 24 feet 4 inches to 35 feet 6 inches which were straight, uncaged and uninterrupted. One of them had an offset platform. There were no ladder safety devices in use. Abatement was directed in less than 2 weeks.
9. Respondent had unguarded high speed portable grinders with grinder faces in excess of 2 inches. It also had a sufficient number of guarded grinders to equip the employees on each shift. On the day of inspection two employees were using grinders without guards. Immediate abatement was ordered. [*129]
10. Chipping hammers used in Respondent's buildings 52 and 273 were not equipped with tool retainers. Immediate abatement was ordered.
11. Respondent was aware of the factual situations set forth in Findings No. 4 thru 10.
12. Each of the described situations may produce serious injury.
13. The maximum penalty of $1,000 was recommended for each of these items.
14. An arc welding machine in building 52 had an uninsulated connection which created a minor shock hazard.
15. In Building 52 there was a fixed metal ladder with a foot obstruction 2 inches behind a rung at the 17 foot level.
16. In Building 52 there was a fixed metal ladder which had been bent to one side. The distortion was minimal, involving the bottom two rungs without evidence of weakening or instability.
17. There was a metal 55 gallon drum containing an unidentified liquid, rags and paper near the "shot blast" machine in Building 52.
18. There were no aisle markings in Bay C, Building 52, which was used for palletized storage of material by mechanical equipment.
19. Respondent had 2 large industrial machines which had metal ladders affixed to them and said ladders had rungs 12 inches wide.
20. [*130] Two of Respondent's employees were breaking up concrete with pneumatic hammers in a building where protective eye glasses were required and at the time of inspection they were not wearing any protective eye glasses.
21. There were welding leads and compressed air hoses on the floor in Bay A-7, Building 52. This was a work area and there were no aisles going through the area where the leads and hoses were scattered.
22. A hand held fire extinguisher in Bay B-19 of Building 52 had an air hose draped over it.
23. Employees in the vicinity of welding in Bays A & B, Building 52 were not protected against welding rays by welding screens or appropriate goggles.
24. In Bay H-17, Building 273, an employee was working 14 feet above the floor, on top of a work product, without any form of protection against falling.
25. In Bay K-8, Building 273, there were two scaffolds where the chain mid-rail was not correctly positioned. Welders were using these scaffolds.
26. In Bay K-11, Building 273, there was an unused elevator work platform without any guard of any type although its design permitted removeable posts at the corners. No one was using this platform on the day of [*131] inspection.
DISCUSSION
Before considering the individual standards charged to have been violated there are several general areas that it is pertinent to consider.
After having moved at the beginning of the trial to withdraw its charge that a manually propelled scaffold was in violation of 29 CFR 1910.29(a)(3)(i), to which the Union objected, the Secretary, midway through the trial, moved to withdraw its original motion to withdraw and substitute therefore a motion to amend the charge to a violation of Section 5(a)(1) of the Act. The first problem arose with the Union's objection to the Secretary withdrawing a citation. During the Union's cross-examination of Mr. Nead, the Union was permitted, over the objection of the Secretary, to elicit the facts surrounding the citation under 29 CFR 1910.29(a)(3)(i).
The Act provides that the Secretary or his authorized representative shall issue a citation to the employer and that the rules of procedure of the Review Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings authorized under Section 10(c) of the Act. n2 The rules of the Commission provide that [*132] affected employees may elect to participate as parties at any time before the commencement of the hearing before the Judge. n3
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n2 Section 9(a).
n3 29 CFR 2200.20.
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Thus it is clear from the provisions of the Act that only the Secretary may initiate a citation alleging a violation of the Act. There is no delegation of this authority to any other party or agency.
However, once a citation is issued, may the Secretary unilaterally withdraw it? In Secretary of Labor v. Gurney Industries, Inc., If the Secretary elects not to go forward with the proof as to any part of a citation any other party may elect to establish by exhibits or examination of witnesses such part of the citation. n3a Thus, where the Secretary [*133] moves to withdraw a citation, and there is reasonable objection by an affected employee or authorized employee representative, the motion must be denied.
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n3a Textile Workers Union of America, AFL-CIO Petitioner v. National Labor Relations Board, Respondent, 294 F.2d 738; Marine Engineers Beneficial Association No. 13 v. National Labor Relations Board, 202 F.2d 546.
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The question of the right to amend a citation was considered by the undersigned in Secretary of Labor v. Reserve Roofing and Sheet Metal, Inc.,
. . . the Review Commission will permit any amendment in the Complaint that is designed to correct typographical or ministerial errors or clarify a Citation without changing the basic factual allegations thereof provided in all instances that the Respondent is not mislead [sic] or prejudiced thereby.
Thus as to the proposed amendment of the citation respecting the 55 gallon drum from 29 CFR 1910.106(d)(2)(i) to 29 CFR 1910.106(e)(9)(iii), [*134] such an amendment was in the nature of clarification and did not change the basic factual allegation. Further such amendment did not prejudice Respondent's position. However, with respect to the move by both the Secretary and the Union to amend item number 3 of the citation for serious violation from 29 CFR 1910.29(a)(3)(i) to a General Duty violation under Section 5(a)(1) of the Act, for serious violation, the same may not be said. Respondent's defense of the standard charged was ready at the time of trial and was based on the position that the scaffold cited was not mobile. Violations of Section 5(a)(1) imply a recognized hazard within the meaning of the Act, i.e., a hazard known generally throughout the industry. It is obvious that the defense to a 5(a)(1) charge is different from the defense to a specific standard. While this issue may well be mooted by the Secretary's belated move in his reply brief to have this item of the citation dismissed for failure to carry his burden of proof it is felt necessary and proper to comment on such a proposed amendment. The rules of the Review Commission provide that the Secretary may amend the citation or proposed penalty by [*135] setting forth in the complaint the reasons for amendment and state with particularity the change sought. n4 Since the Secretary's proposed amendment came during the trial it is not covered by a specific Review Commission rule and thus the Federal Rules of Civil Procedures apply. n5
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n4 29 CFR 2200.33(a)(2).
n5 29 CFR 2200.2(b).
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Under the Federal Rules of Civil Procedure the granting or denying of an application to amend is within the discretion of the trial judge, whose ruling will not be disturbed on appeal [or administrative review] unless there has been an abuse of discretion n6 and leave to amend should be freely given. Only when there is some good reason therefor should a court refuse to permit an amendment to a complaint. n7 The fact that the Secretary's move to amend is late in coming or may be motivated by counsel's afterthought as to the best theory upon which to proceed is not, in this instance, sufficient reason to deny the amendment. n8 The only issue is, has Respondent been substantially prejudiced by [*136] the Secretary's move to amend the specific standard to a violation of Section 5(a)(1).
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n6 Witmayer et ux. v. United States, 118 F<2> 808.
n7 Green et al v. Wolf Corp., 50 F.R.D. 220.
n8 Green v. Wolf Corp., supra; Wright and Miller, Federal Practice and Procedure, Section 1943 and cases cited at footnote #86.
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Respondent's counsel avers that he would be put to a disadvantage in that he had proceeded with his defense to a specific standard on the basis that there was no standard applicable. Further he could proceed with counter proof that this scaffold meets proposed revised standards respecting a "moment tipping calculation" but he was uncertain if any employer could discern what a 5(a)(1) situation was in this instance. There was no offer to establish specific instances of serious prejudice n9; that a delay in the hearing would not cure any element of surprise or due process defect n10, or the unavailability of evidence or witnesses. Thus Respondent is not shown to have been [*137] prejudiced. [This should not be confused with Respondent's prehearing request for postponement of hearing in order to adequately prepare its defense].
n9 Deakyne v. Commission of Lewes, 416 F<2> 290.
n10 Watson v. Cannon Shoe Co., 165 F<2> 311.
In a recent Review Commission decision n11 it was held that even though Respondent had been cited for a Section 5(a)(1) violation, if the evidence presented, established a violation of Section 5(a)(2), i.e., a specific standard promulgated therunder, the citation would be considered amended to conform to the proof. However 3 days later n12 the majority members of the Review Commission affirmed a decision by Judge Oringer, holding, in part, that where a citation of a violation of a specific standard under Section 5(a)(2) of the Act failed he would not determine whether there had been a violation of Section 5(a)(1) of the Act since that question was not before him. Commissioner Cleary dissented, citing authorities and Rule 15(b) of the Federal Rules of Civil Procedure urging great liberality in permitting amendments to pleadings and resting on Secretary of Labor v. Brisk Waterproofing Co., Inc., supra. He concluded: [*138]
I believe it equally proper to amend a complaint in which a Section 5(a)(2) violation is alleged so as to allege a violation of Section 5(a)(1) . . .
While the foregoing is persuasive of the opinion in the Review Commission, they are not exactly analogous situations to the instant cast. Here we have a proposed amendment on the record. The purpose of the Act cannot be served by permitting the actions of the Secretary's agents to defeat the achievement of safe and healthful working conditions. So long as the Respondent is on notice of the charge, permitted adequate time to cure suprise and prepare its defense and the amendment flows from the same factual situation the Judge may grant a motion to amend at any stage of the proceeding or on his own initiative amend to conform to the evidence pursuant to Rule 15 of the Federal Rules of Civil Procedure within the limitations previously expressed.
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n11 Secretary of Labor v. Brisk Waterproofing Co., Inc.,
n12 Secretary of Labor v. B. Heckerman Iron Work, Inc.,
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The authority, among the parties, to initiate an amendment to the pleadings is vested solely in the Secretary respecting the citation and complaint and in the Respondent respecting the notice of contest and answer. While the Union is a party in all respects it may not on its own motion move to amend the pleadings. This position is not inconsistent with my earlier determination that the Union may assume the Secretary's burden of proof with respect to an item of the citation and go forward with evidence at the hearing to establish such violation, already cited by the Secretary. To thus take over and direct the Solicitor of Labor's effects as the Secretary's representative would be a divestiture of the right granted the Solicitor by Commission Rule 22(b) [29 CFR 2200.22] to control all matters respecting the interest of the Secretary.
The specific violations will be discussed in the order in which they were presented in the evidence beginning on page 100.
The only issue to be resolved respecting the alleged violation of 29 CFR 1910.252(e)(1)(i) is whether the area on top of the stator frame may be considered a platform [*140] or scaffold within the meaning of the standard. I am unaware of any other case that has come before this Commission where this particular standard has been involved. Mr. Gidell testified that the cited standard, which stemmed from ANSI Z-49.1 1967, Safety in Welding and Cutting, did not cover the factual situation involved here. There was argument by the Union that the stator frame workplace is one contemplated by the Act. Certainly there can be no argument with the position that a man working on top of a stator frame is covered under the Act. However that is not the issue here. The issue is as previously stated. The words of the standard must be interpreted in the light of their specialized meaning to the special group they affect but also they must be considered in their everyday sense. There is no credible evidence before me nor any common understanding that the surface of a work piece, some distance above the floor, may be construed as a platform, scaffold or runway. For this reason I find the standard at 29 CFR 1910.252(e)(1)(i) not applicable to the factual situation involved here.
However, having reached the conclusions that the Judge may, on his own motion, [*141] conform the pleadings to the proof and that there is no specific standard which covers this factual situation, should I amend this citation to one of a violation of Section 5(a)(1) of the Act rather than 5(a)(2). In a recent decision n13, Judge Oringer held that the Secretary's reliance upon specific standards in lieu of Section 5(a)(1) of the Act was fatal to his case despite the fact that the record evidence was such that it may well have resulted in a proven violation of Section 5(a)(1) of the Act. This case was directed for review by Commissioner Cleary and the issues included the question of whether the record would sustain a finding by the Commission that Respondent violated Section 5(a)(1) of the Act and then amend the pleadings under Rule 15(b) of the Federal Rules of Civil Procedure, assuming the Judge did not err in holding there was no violation of the specific standard. In the instant case I think an amendment by me would be improper. The Review Commission may, on its own initiative, amend the pleadings to conform to the proof as I specified in Secretary of Labor v. Reserve Roofing and Sheet Metal, Inc., supra but to take over the function of the Secretary [*142] and change his legal basis for proceeding would mean an abandonment of the Review Commission's adjudicatory role and the adoption of the role of a regulatory agency. n14 If the Secretary had sought such an amendment and Respondent had been granted due process I would have granted the motion. Absent such a request I will not amend the pleadings at this stage.
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n13 Secretary of Labor v. Granite-Seabro Corp.,
n14 Secretary of Labor v. Wetmore and Parman,
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In light of the testimony presented by Respondent, regarding item number 2 of Citation for Serious Violations, which was not controverted by any of the Secretary's witnesses, an unguyed or unbraced Weldevator is not recognized in heavy industry as a hazard. In fact, I question if this elevator type of equipment constitutes a hazard at any time. The only testimony regarding an accident was an instance in Respondent's plant where a crane moving through the plant struck a Weldevator. In his brief [*143] the Secretary conceded it had not sustained the 5(a)(1) burden of proof and moved the dismissal of this citation. With this I concur.
The alleged violation of 29 CFR 1910.27(d)(2) involved 4 instances of fixed metal ladders. Respecting paragraph 1 of that item the evidence establishes that the section of the standard requiring ladder sections to be offset was not complied with. I feel that the standard is poorly drawn [and not improved in the proposed revision thereof] and as pointed out in Respondent's brief there is an apparent conflict between subsections (d)(1)(ii) and (d)(2). However the apparent conflict does not render (d)(2) vague. While the standard is not specific that ladder sections end at a landing platform, the only logical conclusion to draw from the standard is that there must be sections to offset if a platform is required and a ladder section beginning at a landing platform must be offset from that below.
Paragraphs 2 and 3 of this item, pertaining to ladders 24 feet 4 inches, 35 feet 6 inches and 25 feet 11 inches respectively, alleged the ladders had no cage, landing platform well or ladder safety device and the evidence so established.
The ladders in question [*144] were utilized by a very small group of Respondent's employees and the probability of accident was remote. However injury due to falling from any of them would invariably be serious. Ladder violations may be considered to be an extensive problem (4 of 4 observed were cited). Certainly Respondent was on notice that this was a problem as reflected by the testimony of Mr. Rafferty. Considering Respondent's size, the gravity of the violation, its history under the Act and its good faith it is determined that the maximum penalty is appropriate. Considering the number of ladders in Respondent's plant the abatement date set is unrealistic. Abatement of all ladder violations under this standard should be accomplished by January 1, 1974.
With respect to Item 4 of the Citation for Serious Violations there is no dispute that two employees were using unguarded grinders on the day in question. While Respondent may consider this an isolated occurrence, the fact that it is conceded that not all grinders in use were guarded put Respondent on notice that it did have a hazard present and it had not effectively prevented this violation from occurring. If all unguarded tools were out [*145] of service until guarded and an employee had removed the guard for his own purpose I would look at the violation differently. While Respondent testified that only guarded tools were in use this testimony was hardly credible. Such was not the case here. Respondent had unguarded wheels in its inventory and knew that they were available for use. Respondent's argument that this tool is not the type of machine embraced by the standard does not stand scrutiny. The "machines" involved in the standard in issue are those using portable abrasive wheels. Obviously the machines in this instance are portable hand held grinding wheels.
Is this a serious violation of high gravity? Certainly the shattering of an unguarded wheel is always possible and when this occurs there is a substantial possibility that serious physical harm may flow from it. It is shown from the record that the employee using the unguarded grinding tool was wearing protective goggles and the wheel was of the bonded type decreasing the chance of it shattering. Considering the number of employees engaged in grinding operations on each shift and the number of grinders guarded, the incidence of exposure is low. Accordingly [*146] I conclude this violation is of a low gravity. Thus a penalty of $250.00 is more appropriate than $1,000.00.
With respect of Item 6 of the Citation for Serious Violation there is no argument that Respondent was in violation of the standard requiring retainers on penumatic powered hand tools. Respondent may argue that the requirement of a retainer is conditioned upon the pneumatic holder ejecting the tool while being utilized for the purpose for which it was intended. However the standard simply requires a retainer if the tool may be ejected. The testimony presented does not establish great likelihood of tools being ejected while being utilized as designed but the demonstration shows that under optimum demonstration conditions the tool may be ejected. Admittedly the CO's did not see this occur under work conditions but I consider this type of violation a static violation as discussed in an earlier decision n15 and the violation exists by virtue of the physical characteristics of the item in violation.
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n15 Secretary of Labor v. Armor Elevator Co.,
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Although as demonstrated the ejected chisel was capable of inflicting serious physical harm the designation of a violation as Serious is based on its potential for injury under working conditions. The testimony that under working conditions tools would rarely eject from their holder and even if it happened the tool would only "dribble" out is both credible and persuasive. It is my decision that at most this is a De Minimis violation.
With respect to the other than Serious Violations, Item No. 1 thereof pertained to an exposed welding conductor. There is no conflict in the evidence that while properly connected, the connection was not properly insulated. There does seem to be some confusion regarding the cables by virtue of the designation of one of them as the ground cable. Mr. Rafferty clarified that point. There is a ground wire which grounds the welding machine. This was not involved in the citation. The welding is done through electricity flowing out one cable (electrode) to the weld point where it meets resistance, makes the weld and returns to the welding machine through the other cable that [*148] is grounded to the work. This was the cable that was the subject of the citation. The testimony was that, under the proper circumstances, a shock would be received by anyone touching the uninsulated connection. Thus the violation exists. The nonassessment of a penalty is appropriate.
Item No. 2 of the citation pertained to lack of foot clearance behind the rung of a fixed metal ladder. The testimony established that there was an obstruction behind the ladder rung which prevented the safe positioning of a foot on that rung. Respondent made no effort to show a variance request for this violation. The standard exists to be complied with and Respondent's course of action is not to ignore it. I agree with the position of the Union that the evidence clearly establishes that this is a serious violation and in accord with my earlier discussion I am amending the pleadings to so charge and find. I do not consider the amending of a citation to increase the penalty or change the category thereof to be assuming a regulatory role but rather consider that role restricted to amendments that go to save a defective citation. In reaching this decision I am not unmindful of the Review [*149] Commission decision in Secretary v. Wetmore & Parman, Secretary v. Dundas Pallet Company, In the latter case the Commission, on its own motion, raised the issue of whether the non-serious violation alleged met the test of a serious violation and determined that under Wetmore & Parman, supra it was ". . . without authority, absent the consent of the Secretary, to find a violation of a degree higher than that charged by the Secretary." In Wetmore & Parman, supra, the Commission concluded:
. . . the Commission is without authority to find an employer in willful violation of the Act's requirements when the Secretary has not charged the employer with such violation, and the issue is not tried by the parties. (emphasis supplied).
In its reasoning the Commission pointed out at page 5 of its opinion that the Secretary had not consented to the amendment and for reasons listed believed it was without authority, absent the consent of the Secretary, to find a violation of a degree higher than that charged by the Secretary. It is patent from the foregoing that the [*150] cited and instant cases are distinguishable. The cited cases pertain to untried issues to which the Secretary had not consented. This is a far cry from the requirement for due process that I have referred to. In the instant case the Union consistently advanced the position, both before and during hearing, that the citation should be amended to reflect more serious citations than the Secretary had alleged and the facts respecting a serious violation were fully presented in open hearing. This Commission cannot present two faces to those who would seek to establish precedential value to its decisions by conforming citations to proof to correct ministerial or typographical errors or otherwise clarify a citation and refuse to do so where an issue was fully litigated without a denial of due process merely because it seeks to follow the traditional role of a court. The Review Commission is not a traditional court and enjoys that liberality in its proceedings that Congress desires administrative tribunals to have. However relatively few employees are exposed to this single ladder at the 17 foot rung and the incidence of exposure is low. The proposed penalty of $100.00 is [*151] appropriate.
Item No. 3 of this citation pertained to the stability of a bent ladder. The applicable standard requires ladders to be maintained in a safe condition. Safe meant different things to different people. To one CO it meant stable, to another it meant solid rungs and to the Union Safety Director it meant no fear of falling from missing a rung. The testimony was that the ladder seemed stable to grip, the rungs appeared to be solid. The evidence presented, including the picture of the ladder in question, does not support a determination that this is an unsafe ladder. The Secretary has failed to sustain his burden of proof.
Item No. 4 of this citation was amended to charge a violation of 29 CFR 1910.106(e)(9)(iii). This is a subsection pertaining to flammable and combustible liquids. The term in the standard referring to "Combustible waste material and residues . . ." refers to flammable and combustible liquid waste material and residues. Thus the only question before me is whether the liquid in the 55 gallon drum was combustible or flammable. The CO's did not test the liquid and determined it was combustible on the basis of what employees in the area said. Accordingly [*152] it is determined that the Secretary failed to meet its burden of proof that the drum in question contained a flammable or combustible liquid. n16
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n16 Secretary of Labor v. Cole, Division of Litton Industries,
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Item No. 5 pertained to aisle markings. Mr. Nead indicated he initiated this allegation of a violation because there were no aisle markings at all in this room and ". . . because individuals go in there and work, and the Federal Register says you will have permanent aisles and passageways in all places of storage or business." Mr. Bernard testified that if powered industrial trucks are used there must be marked aisles. However the standard cited only requires markings for permanent aisles. During the Government's cross examination of Respondent's Building 52 Superintendent the following exchange took place:
Q. The standard cited, 176(a) states that 'Aisles and passageways shall be kept clear and in good repair, with no obstruction across or [*153] in aisles that could create a hazard. Permanent aisles and passageways shall be appropriately marked.'
With respect to obstruction in the aisles, did you observe any at the time?
A. There weren't any aisles marked in that room at that time.
Q. So naturally the permanent aisles and passageways are not appropriately marked?
Mr. Cummings: Objection. I don't think that it has been determined that there are any permanent aisles.
This is the crux of the issue. There was no testimony presented by the Secretary that there were any permanent aisles in the storage room. The testimony was directed to the fact that there was no pattern or order to the palletized loads in the room. However it was not established that there was a requirement for aisles. Respondent had presented evidence that this was a temporary storage situation at best, being utilized during alterations. The violation is not established.
The final item of this citation involved the width of rungs on a fixed metal ladder attached to a large machine. The facts are not in dispute. A review of the standards discloses that portable single wooden ladders should have 14" rungs at 30 feet, extension wooden ladders 14-1/2 [*154] inch rungs up to 28 feet and 16 inches up to 40 feet, portable metal ladders require a minimum rung of 12 inches and fixed metal ladders were required to have 16 inch rungs.
No logical explanation was advanced for nor am I aware of the reason for the difference between portable and fixed metal ladders. The testimony regarding an employee fall and the safety that an additonal 4 inches of rung might have afforded is not credible. The only requirement that makes a safety sense is that there be room for both feet. If 12 inches is safe on portable ladders it is just as safe on a fixed ladder. Accordingly I hold that compliance with 29 CFR 1910.27(b)(1)(iii) is not necessary or appropriate to provide a safe or healthful employment and place of employment as required of standards by Section 3(8) of the Act. n17
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n17 The Secretary published in the Federal Register September 6, 1973, 38 F.R. 172 a proposed revision of 29 CFR 1910 including a revised Section 1910.27c(a)(3) that the minimum clear length of rungs [for fixed metal ladders] shall be 12 inches.
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The next citation also requires a general discussion prior to considering the specific standard. This is so because Respondent is charged with a repeated violation which raises the issue of whether Respondent is a single entity nationwide as contended by the Union; at its geographical location in Schenectady, New York as contended by the Secretary or within its separate Divisions within the Schenectady plant as contended by Respondent, for the purpose of determining if a violation is repeated. For an answer to this question we must look to the Act and Code of Federal Regulations, the legislative history being silent on this point. In the Act sectons 2(b)(1), 4(a), 5(a)(1), 8(a)(e), (g)(2) and 13(a) make reference to "places of employment," "a workplace," "a place of employment," and "any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed." 29 CFR 1903.2(a) and (b), 1904.2 and 1904.12(g)(1) refer to "each establishment" and define an establishment as:
. . . a single physical location where business is conducted or where services or industrial operations are performed . . . [*156] Where distinctly separate activities are performed at a single physical location . . . each activity shall be treated as a separate physical establishment.
In Appendix A to 29 CFR 1904 it is provided that:
Every employer is required to prepare a summary of the occupational injury and illness experience of the employees in each of his establishments.
Thus it is readily apparent that it was not contemplated that a legal entity should be treated as one employer, for all purposes of the Act, nationwide. To the contrary it is clear that one employer may have more than one establishment for the purpose of the Act. A practical approach to the question supports the position of the Secretary that like activities in one geographical location are one establishment. Thus all Respondent's activities considered by it to be its Schenectady industrial plant with cross utilization of personnel, whether on the same, continuous or separated parcels of land, are considered a single establishment. It does not matter that they are broken down for corporate purposes into separate divisions with a certain amount of autonomy and report directly from industrial division to a higher corporate [*157] level in another city. To thus fragmentize the workplace would permit employers to contrive artificial work units to defeat the long range purposes of the Act. The determination must be based on the facts shown, which in this case show that from a safety point of view Respondent's Schenectady industrial operation is a single establishment.
This is not to imply that Respondent does not have a valid position for its argument based on the regulatory proviso dealing with "separate activities . . . at a single physical location." However this does not apply to the same employer but rather covers the situation where several employers are supplied from a single source or work on the same workplace.
As to the specific violation alleged, the credible evidence establishes that there was noncompliance with the standard regarding protective eye glasses. The testimony of one of the employee's involved that he may have removed his glasses momentarily to talk to the CO is hardly credible. All members of the inspection party testified to the contrary. Respondent had previously been cited for an almost identical situation involving a chipping hammer. Since the same standard involving an almost [*158] identical factual situation was involved in the two violations there can be no question but that they are repeated. However in the earlier instance in December 1971 the violation was considered other than serious while in this instance it was considered serious because of the possibility of being struck in the eye by flying concerete. In computing the appropriateness of the penalty Respondent's size, history and good faith were not considered to warrant any reduction of the penalty. There can be no disagreement the Respondent's size precludes it receiving any penalty adjustment based thereon. However Respondent's history under the Act and good faith cannot be measured in the vacuum of pure mathematics, i.e., prior violations automatically mean a poor history and disagreement or poor communications between the employer and employees mean a lack of good faith. In evaluating the Respondent's history we must consider the scope of its plant and activities at its Schenectady industrial site and in considering its good faith we must consider its overall safety program. Thus we have an establishment where full time first aid facilities are present, there are employees who [*159] devote their full time to industrial safety and, with respect to the particular violation, the COs and the Union Safety Director considered Respondent's protective glasses program to be a good one. I also may not lose sight of the fact that although this does not come under the heading of an isolated occurrence as defined in a recent decision by Judge Burroughs and approved by the Review Commission August 13, 1973 n18 it is due in major part to employee lapse. The fact that the Union may have previously called this to the attention of Respondent is not a factor to be considered in determining the repeated status of the violation. Repeated refers only to items previously cited by the Secretary of Labor under this Act, that is, under the same standard and the same factual situation. Accordingly I find a penalty of $100.00 to be more appropriate.
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n18 Secretary of Labor v. The Verne-Woodrow Co.,
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The next citation pertained to repeated nonserious violations. Item No. 1 involved an alleged [*160] tripping hazard. The citation and the testimony pertain to hoses in a work area. The standard at 29 CFR 1910.252(e)(1)(ii) requires that:
Welders shall place welding cable and other equipment so that it is clear of passageways, ladders and stairways.
This is clear recognition that there is a different degree of care required to protect fellow employees walking in designated passageways from those working in familiar surroundings and that welders of necessity must have their welding leads strung out to some degree. n19 The testimony was that it is customary to take down enough lead to reach to the furthermost point of work and come back to the point requiring a weld, nearest to the outlet. The testimony and exhibits do not show that the hoses here cited were not kept in a clean, orderly and sanitary manner. At best this standard is subjective and its violation is virtually solely in the eye of the beholder. While there is argument that Respondent has left welding leads strewn around in the past the initial question I have is whether in the work situation depicted the leads were representative of a violation and I find they were not.
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n19 See 29 CFR 1910.252(b)(4)(ii) wherein it is provided that:
". . . Coiled welding cable shall be spread out before use to avoid serious overheating and damage to insulation."
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Item No. 2 of the repeated nonserious allegations pertains to a fire extinguisher that was not accessible. The citation is amended to conform the location of the extinguisher to that established by the proof. The testimony by all witnesses present during the inspection was that Respondent's representative removed the draped hose in a matter of seconds and the extinguisher was then immediately available. However in the case of fire extinguishers the word immediately has a special meaning that does not contemplate any delay in removing the extinguisher for use. A fire extinguisher is positioned for one purpose only and that purpose does not include serving as a clothing hook or any other type of material hook or support. Immediate abatement of this violation was reasonable and proper and was accomplished by Respondent before the CO had an opportunity to photograph it [*162] in its violative condition. A penalty of $100.00 is considered appropriate.
Item No. 3 pertained to welding protection for employees working nearby or walking in the aisle adjacent to the welding area. The fact of the violation is not disputed. While there was some testimony that safety glasses provided a measure of protection against welding rays, other testimony was that eye injury had been sustamed in the past even while wearing such glasses. In the preceding subsection (ii) of the standard detailing the specifications for protectors it is provided that lenses shall bear some permanent distinctive marking by which the source and shade may be readily identified. n20 Thus I determine that safety glasses were not shown to meet the goggle requirement for protection against welding glare. However again we are confronted with the situation where Respondent has supplied its employees with welding screens and its employees failed to properly position them to protect co-workers not actually doing the welding. For the reasons previously stated I find an appropriate penalty to be $100.00.
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n20 29 CFR 1910.252(c)(2)(ii)(h).
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The final citation to be considered pertains to a willful serious violation. The Review Commission has defined "willful" as conduct that is "intentional, knowing or voluntary as distinguished from accidental, and it may be characterized as conduct marked by careless disregard. n21 The Secretary's instructions to his employees is not in disharmony with this decision. n22 The violation alleged in Bay H-17 raises the same question respecting the work surface as was raised with respect to Item No. 1 of the citation for serious violation and fails for the same reason, i.e., the stator frame is not a platform.
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n21 Secretary of Labor v. Wetmore and Parman, Inc., (January 17, 1973) supra. Secretary of Labor v. Intercounty Construction Corp.,
n22 Compliance Operations Manual, Chap. VIII, B.4.a. (1) and (2).
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The alleged violations in Bay K-8 are [*164] clear. Much time and discussion was spent over one side of a platform that had a chain arrangement as a mid-rail and little time on the fact that two nonwork sides had no mid-rail of any kind, including chain. However this leaves unresolved the issue of whether the described structure is a platform or a scaffold. If the structure is a platform it must have a standard railing or equivalent where the platform is 4 feet or more above ground, n23 whereas if the structure is a scaffold, guardrails are required on open sides and ends of platforms more than 10 feet above the ground. n24
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n23 29 CFR 1910.23(c)(1).
n24 29 CFR 1910.28(a)(3).
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Since the structure in issue is more than 4 feet but less than 10 feet the standard applicable is critical. We must thus look to the definition of terms applicable to the standards in question.
29 CFR 1910.21 Definitions
(a) As used in § 1910.23 . . . terms shall have the meaning's ascribed in this paragraph.
(4) Platform. A working space for persons, elevated above [*165] the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.
(f) As used in § 1910.28, unless the context requires otherwise, scaffolding terms shall have the meaning ascribed in this paragraph.
(27) Scaffold. Any temporary elevated platform and its supporting structure used for supporting workmen or materials or both.
As pointed out by Respondent, application of the principle of ejusden generis, to the illustrations of what a platform is, coupled with a reading of section (a) of the standard at 1910.21, leaves me with the impression that this has reference to permanent type structures as distinguished from the obviously temporary nature of scaffolds. The structures used by Respondent vary in height and configuration depending on the particular workpiece they are built around or against. They are dismantled and rebuilt by a regular scaffold crew. A review of some 20 cases involving citations under the standard here in issue reveals that all but one involved runways, loading platforms, storage areas, platforms in slaughtering plants or the top of an existing structure within the plant.
The one exception is the case cited in [*166] support of the Secretary's postion n25 where Judge Harris stated:
The defintion of 'platform' conveys the meaning that a degree of permanence exists either in the method of construction thereof or the use to which it is put. This is contrasted with the specific reference to temporary erection which appears in the definition of 'scaffold.' The former applies to work platforms in a plant which are an integral part of fabrication, processing, assembling and similar work functions while the latter refers to any temporary structure made necessary in repair, alteration, construction and similar work operations, the need for which ends when the repair, construction or alteration is completed. The mere fact that a platform which is used as an integral part of production may be easily dismantled and re-assembled does not operate to render it 'temporary' within the meaning of 29 CFR 1910.21(f)(27). The platforms in Respondent's main assembly plant were regularly used as an integral part of its production of modular homes . . . The use to which these elevated structures were put, renders them platforms within the meaning of 29 CFR 1910.28(a)(3) and Respondent's failure to provide them with [*167] guardrails and toeboards was in violation of the standard at 29 CFR 1910.23(c)(1).
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n25 Secretary of Labor v. U.S. Homes, Inc.,
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I do not find myself in disagreement with Judge Harris regarding permanent and temporary structures. The question is how is the structure used? Judge Harris found in his case that although temporary in construction the structures were used permanently. In the instant case the structures were temporary in construction and temporary in use, being dismantled after each workpiece had been completed and reerected for another workpiece.
The final guardrail allegation pertains to a powered work platform in Bay K-11. This elevator was not seen in operation by the CO. It had sockets for the purpose of erecting demountable guardrails (or equivalent) and although these were not located at the time of inspection the credible testimony was that Respondent's instruction to its employees was that the elevator was not to be used without rails. I am thus confronted [*168] with the situation I addressed in Secretary of Labor v. Armor Elevator Co., Inc., supra, where the work situation is non-static in nature, i.e., it requires an affirmative act by the employee to create the violation. The unguarded powered work platform standing alone is insufficient to establish the violation. The Secretary has recognized this by providing in his Compliance Operations Manual n26 that "As a general rule working conditions that allegedly violate the OSHA safety and health standards . . . shall be cited only when actually observed by a CSHO during the course of an inspection . . ." This has added significance when we consider Section 9(a) of the Act providing:
No citation may be issued under this section after the expiration of six months following the occurrence of any violation. (Emphasis supplied)
Thus, the date of occurrence of a noncontinuing violation, such as the lack of guardrails, becomes important in determining the limit on the Secretary's authority to cite. While there was testimony that this elevator had been operated in the past without guardrails, the COs did not see it so operated and the record does not establish a violation within [*169] the citable period.
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n26 Chapter 12, C. 1. (page X-5).
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In concluding this decision I would be remiss if I did not note the cooperation of counsel for all parties in simplifying the issues both during the hearing proper and in their briefs, and thus being of immeasurable assistance to me in the preparation of this decision. I was favorably impressed by the knowledge of the Act and standards displayed by Mr. Rafferty and the enthusiasm with which he approaches safety and health in the workplace.
CONCLUSIONS OF LAW
1. Respondent was engaged in a business affecting interstate commerce.
2. The Review Commission has jurisdiction over the cause of action.
3. Only the Secretary of Labor may initiate a citation alleging a violation of the Act.
4. Once a citation is issued any party to the proceeding may present evidence in support of any part thereof.
5. The citation may be amended at any stage of the proceeding prior to the decision if the Respondent is afforded due process.
6. Respondent was not in [*170] violation of 29 CFR 1910.252(e)(1)(i) and thus has not violated Section 5(a)(2) of the Act.
7. The Weldevator cited as a violation of 29 CFR 1910.29(a)(3)(i) under Section 5(a)(2) of the Act [proposed to be amended to a violation of Section 5(a)(1) of the Act] was not in violation of any part of Section 5 of the Act.
8. Respondent was in violation of the standard found at 29 CFR 1910.27(d)(2) and thus has violated Section 5(a)(2) of the Act. This violation was serious with a high level of gravity. However considering the size of the Respondent's plant the abatement date was unrealistic and is more appropriately set at January 1, 1974.
9. Respondent was in violation of Section 5(a)(2) of the Act by failing to comply with the standard found at 29 CFR 1910.243(c)(1)(i). This violation was serious with a low level of gravity. The abatement date was reasonable.
10. Respondent was in violation of Section 5(a)(2) of the Act by failing to comply with the standard at 29 CFR 1910.243(b)(1)(ii). This violation was De Minimis.
11. Respondent was in violation of Section 5(a)(2) of the Act through its failure to comply with the standard at 29 CFR 1910.252(b)(4)(ix)(c). [*171]
12. Respondent was in violation of Section 5(a)(2) of the Act through its failure to comply with the standard at 29 CFR 1910.27(c)(4). This violation was serious but the penalty of $100.00 initially proposed is appropriate considering Respondent's good faith and the low level of gravity of this violation. The abatement date is reasonable.
13. Respondent was not in violation of Section 5(a)(2) of the Act respecting the standard at 29 CFR 1910.27(f) since the ladder in question, while bent, is not shown to be unsafe.
14. Respondent was not in violation of Section 5(a)(2) of the Act respecting the standard at 29 CFR 1910.106(e)(9)(iii) since the Secretary did not sustain its burden of proof.
15. Respondent was not in violation of the Act with respect to 29 CFR 1910.176(a) since the Secretary did not sustain its burden of proof.
16. Respondent was not in violation of Section 5(a)(2) of the Act with respect to 29 CFR 1910.27(b)(1)(iii) since that standard was not properly promulgated.
17. Respondent's industrial operations at 1 River Road and Nott Street represent a single establishment for citation purposes under the Act.
18. Respondent was in violation of Section 5(a)(2) [*172] of the Act through its repeated failure to comply with the standard at 29 CFR 1910.133(a)(1). This violation was serious because of the potential for eye injury due to being struck by a foreign object. The abatement date was reasonable.
19. Respondent was not in violation of Section 5(a)(2) of the Act with respect to 29 CFR 1910.22(a)(1) since it was not established that in a heavy industrial operation of the type here under consideration the welding leads were not clean and orderly in a sanitary condition.
20. Respondent was repeatedly in violation of Section 5(a)(2) of the Act with respect to 29 CFR 1910.157(a)(2) in that a fire extinguisher was not readily accessible and immediately available.
21. Respondent was repeatedly in violation of Section 5(a)(2) of the Act with respect to 29 CFR 1910.252(e)(2)(iii) in that employees were not protected against welding glare. This was an other than serious violation and immediate abatement is proper.
22. Respondent was not in violation of Section 5(a)(2) of the Act with respect to 29 CFR 1910.23(c)(1) in that the stator frame in Bay H-17 and the scaffolds in Bay K-8 are not platforms as contemplated by the standard, [*173] and the powered work platform in Bay K-11 was not operated in violation of the standard.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, now therefore it is ORDERED that:
1. The motion to amend the citation for other than serious violations by changing the standard cited in item number 4 from 29 CFR 1910.106(d)(2)(i) to 29 CFR 1910.106(e)(9)(iii) is granted.
2. The motion to amend the citation for serious violation by changing item number 2 from the standard cited, 29 CFR 1910.29(a)(3)(i), to a violation of Section 5(a)(1) of the Act is granted.
3. The motion to dismiss item number 5 of the citation for serious violation is granted.
4. Item number 2 of the citation for other than serious violations is amended, on my own motion, to cite this as a serious violation.
5. With respect to the citation for serious violations as amended, items numbered 3, 4 and 6 are affirmed. The penalty for item number 3 is affirmed. The penalty for item number 4 is reduced to $250.00. The penalty for item number 6 is reduced to $0. Item number 5 was dismissed on motion of the Secretary and items number 1 and 2 are vacated and the proposed penalties [*174] therefore are vacated. The abatement date for item number 3 is extended to January 1, 1974. Abatement proposed for items number 4 and 6 are affirmed.
6. With respect to the citation for other than serious violations as amended, items number 1 and 2 are affirmed in all respects. Items number 3, 4, 5 and 6 and the proposed penalty therefore are vacated.
7. With respect to the citation for a serious repeated violation and the proposed abatement therefore the citation is affirmed and the proposed penalty is reduced to $100.00.
8. With respect to the citation for other than serious repeated violations, items number 2 and 3 and the proposed abtement therefore are affirmed. The proposed penalty for item number 2 is affirmed and the penalty for item number 3 is reduced to $100.00. Item number 1 and the proposed penalty therefore is vacated.
9. With respect to the citation for willful violation it is vacated in all respects.