AMERICAN BAG CO., INC., A CORPORATION

OSHRC Docket No. 3288

Occupational Safety and Health Review Commission

April 6, 1976

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Morton Marks, U.S. Dept. of Labor

Mr. Albert K. Deitsch, AMERICAN BAG COMPANY, INC., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This matter involves a notification for failure to correct violations alleged by an uncontested citation for non-serious violations of 29 U.S.C. 654(a)(2).   It also involves two items alleging non-serious violations of posting and recordkeeping regulations.

Respondent, a very small Puerto Rican Company employing seventeen persons, was first inspected on January 29, 1973.   As a result thereof, it received a citation alleging fifteen non-serious violations of the Occupational Safety and Health Act ("the Act").   A penalty of $175 was proposed for most of the alleged violations.   The citation required abatement "immediately upon receipt." Respondent paid the penalty and did not contest the citation such that it became final by operation of law.   29 U.S.C. 659(a).

A reinspection took place on April 17, 1973, and respondent was notified pursuant to 29 U.S.C. 659(b) that it had failed to correct twelve of the violations previously cited.   The Secretary proposed a total penalty of $1380.   [*2]   Respondent was also cited for failing to post the original citation (29 C.F.R. 1903.16(a)) and for failing to maintain an injury log (29 C.F.R. 1904.2(a)).   Penalties of $500 and $100 respectively were proposed.

Respondent contested, and the matter dwent to hearing before Review Commission Judge Donald K. Duvall.   The evidence developed before the judge shows that one violation was in fact abated as of the reinspection, others were either being abated or had been partially abated, and the remainder had not been abated in any respect.   See: York Metal Finishing Company, 7 OSAHRC 549, BNA 1 OSHC 1654, CCH OSHD para. 17,552 (1974).   We adopt his finding to this effect as stated in his report.

He also made the following specific findings:

7.   Respondent employs 17 employees and for 1972 had gross sales of approximately $225,000, net worth of approximately $100,000, and a profit of $18,000, but without payment of any executive salaries (Pre-Hearing Conference Tr. 3-4, 7).   Albert Deitsch, Vice President of Respondent, is now the only active executive officer of the corporation.   Respondent suffered a flood in December, 1972, which deprived it of a substantial amount of business [*3]   during its busiest week (Pre-Hearing Conference Tr. 5-6).

8.   As soon as the Citation issued on March 23, 1973 was received Respondent's Vice President (Mr. Dietsch) instructed Superintendent Santana to make the corrections set forth in the Citation.   The next day Mr. Dietsch left Puerto Rico to be with his seriously ill Mother in the U.S. and except for one or two days (when he did obtain a progress report from Mr. Santana) he remained outside Puerto Rico until after service of the Notification of Failure to Correct Violation and of Proposed Additional Penalty and Citation number 2, dated May 31, 1973 (Tr. 51, 72-75).

9.   Respondent had no history of violations under the Act prior to the Citation issued on March 23, 1973.   Mr. Deitsch immediately contacted the OSHA office when he returned to his office after service of Citation number 2.   The cited violations were completely corrected sometime after April 17 and prior to November 17, 1973, the hearing date (Tr. 53).

These findings are supported by the record, and we adopt them.

By his report filed herein the judge would assess a total penalty of $450 for failure to abate and $50 for the posting and recordkeeping violations.    [*4]   Neither party petitioned for review.

Review, nevertheless, was directed by Commissioner Moran who by his direction specified the following issues for review:

(1) Whether complainant sustained his burden of proving that respondent failed to abate previously cited violations as alleged.

(2) Whether the Judge assessed penalties in conformance with requirements of the Act and prior Commission precedent.

(3) Whether an abatement date of "immediately upon receipt of this citation" is reasonable under the Act.

(4) Since an abatement date of "immediately upon receipt of the citation" would expire prior to the time allowed for the filing of a notice of contest, whether such an abatement period is proper.

(5).   What is the provision of law which gives effectiveness to such an abatement date?

Issues 3, 4 and 5 were not raised by either party, were not decided by the judge, and have not been briefed by respondent.   In the circumstances we do not find it necessary to decide them in this case. n1 As for the first issue raised by the direction we dispose of it by adopting the judge's findings as stated above.

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n1 Commissioner Cleary would add that he accepts the opinions of the Tenth and Eighth Circuits to be dispositive of these issues.   Brennan v. O.S.H.R.C. and Kesler & Sons Construction Co., 513 F.2d 553 (10th Cir. 1975); Dunlop v. Haybuster Mfg., Co., 524 F.2d 222 (8th Cir. 1975).

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We turn now to the question of a penalty assessment.   In making his assessment the judge gave overriding consideration to respondent's poor financial condition.   In this regard he acted correctly considering the circumstances.   Colonial Craft Reproductions, 1 OSAHRC 933, BNA 1 OSHC 1063, CCH OSHD para. 15,277 (1972).   Penn Central Transportation Company, Docket 5796, BNA 3 OSHC 1856, CCH OSHD para. 20,248 (December 22, 1975).   Nevertheless, we do think he should have accorded greater consideration to respondent's good faith.   We specifically note that respondent's only executive officer was unavoidably away from both the workplace and Puerto Rico during the period between inspections. Even then he tried to effect abatement, and he did in fact secure abatement within a short period after he returned to   [*6]   work.   On the other hand we think something more could have been done by the superintendent during the executive's absence.   On balance, we conclude that a total penalty of $325 for failure to abate and for the posting and recordkeeping violations is appropriate.

Accordingly, we adopt the judge's report as our decision to the extent that it is consistent herewith and assess a penalty of $325.   So ORDERED.  

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I concur in the Commission's disposition of the two items alleging nonserious violations of 29 U.S.C. §   654(a)(2) for failure to comply with the posting and recordkeeping standards codified at 29 C.F.R. §   1903.16(a) and §   1904.2(a), respectively.   I disagree, however, with the affirmance of the citation for failure to correct 12 previous violations n2 and with the Commission's continued refusal to settle the issue of whether or not an abatement time of "[i]mmediately upon receipt of this citation" is legally permissible under the Act.

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n2 Item 6s 6 and 7 of the original citation allege a failure to comply with the fire extinguisher standards codified at 29 C.F.R. § §   1910.157(a)(3) and (a)(5).   As I have previously indicated, all fire extinguisher standards under §   1910.157 were promulgated ultra vires of the statutory grant of power, and thus are not proper occupational safety and health standards under this Act.     Since these are not proper standards under this Act, I would vacate these two items on this jurisdictional issue rather than on the impropriety of the abatement date.

  [*7]  

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The original citation, dated March 23, 1973, specified the "immediate" abatement date for all the items at issue in this case.   Respondent did not contest this citation, and it therefore became a "final order" by operation of law.   Secretary v. American Airlines, Inc., 13 OSAHRC 99, 100 (1974); 29 U.S.C. §   659(a).   This proceeding is based on the assertion that the "immediate" abatement order was not observed, which raises the question whether such an abatement time is legally permissible under the Act. n3

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n3 Defects in the original uncontested citation may be examined in a failure to correct proceeding.   Secretary v. Franklin Lumber Co., 9 OSAHRC 922 (1974); Secretary v. York Metal Finishing Company, 7 OSAHRC 845 (1974).

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Congress has mandated in 29 U.S.C. §   658(a) that the citation:

". . . shall fix a reasonable time for the abatement of the violation." (Emphasis added.)

This Commission originally construed the meaning [*8]   of "reasonable time" in light of the 15 working day period which the statute grants a cited employer for contesting a citation following his receipt thereof.   We stated in Secretary v. Kesler and Sons Construction Company 9 OSAHRC 1033, 1034 (1974) that:

"[i]n order to preserve this statutory right to the 15 working-day period, no abatement may be required . . . during this period."

This position was reaffirmed in Secretary v. Matthews & Fritts, Inc., 10 OSAHRC 741, 742-743 (1974).

Subsequently, however, as stated in footnote 1, supra, decisions in two of the circuits indicated disapproval of this interpretation of §   658(a).   Commissioner Cleary indicates his preference for the circuit court's viewpoint.   I have previously stated my position to adhere to our earlier decisions.     Consistent with that position, I find that, since no abatement can be legally required during the 15 working days permitted for contesting a citation, the abatement time of "[i]mmediately upon receipt of this citation" is void.   Accordingly, the citation is deficient for   [*9]   failing to state a valid abatement time, and the citation for failure to correct previous violations is unenforceable and should be vacated.

  I will simply add here that three circuit courts have refused to adopt the Barnako theory that a respondent's failure to file a brief constitutes a waiver of appellate review.   Brennan v. Smoke-Craft, Inc., No. 74-2359 (9th Cir., February 13, 1976) at n. 6; Brennan v. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869, 871 (5th Cir. 1974); Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946, 948 (3rd Cir. 1974). Perhaps, someday, some respondent will specifically raise the issue so Chairman Barnako can unveil his long-awaited opinion on [*10]   the issue (or perhaps he will then find "no compelling public interest in its resolution" or state that he "intends to discuss it in the future"). n5 Until then, however, out trial courts will have to remain in limbo as to the official Commission position.

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n4 This issue was briefed by the Secretary of Labor.   Apparently, Mr. Barnako will only take a stand on issues when all parties submit full briefs thereon.   Since close to one-half of all cases before this Commission are handled by pro se respondents, this self-imposed "rule" considerably lessens his work load.   Of course, it doesn't give much guidance to the public, the parties, or our judges in those cases (like this one) where Mr. Cleary and I are on opposite sides.   And it treats pro se respondents like second-class citizens since Mr. Barnako will not give them his opinion unless they file a legal brief.   In the words of Marie Antoinette "Qu'ils mangent de le brioche."

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Since this decision does not discuss all the matters covered in Judge Duvall's decision, the same is attached hereto as Appendix A.

Appendix A

DECISION AND ORDER

Morton M. Marks, U.S. Dept. of Labor

Daniel M. Williams, U.S. Dept. of Labor

Alfonso Christian, U.S. Dept. of Labor, for Complainant

Mr. Albert Deitsch, Vice President of Respondent Company, Representing Respondent

Statement of Case

Duvall, D. K., Judge, OSHRC:

This is a proceeding pursuant to Sections 9 and 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called "the Act") contesting (1) a Notification of Failure to Correct Violation and of Proposed Additional Penalty in the amount of $1,380.00, covering 12 non-serious violations of OSHA standards respecting which an earlier citation was not contested and a proposed penalty in the amount of $175.00 was paid by Respondent; and (2) a Citation for non-serious violations of two OSHA standards (citation not posted and accident log not maintained) and related notification of proposed penalty in the amount of $600.00.   The Notifications and citation were [*12]   based on April 17, 1973 OSHA reinspection of Respondent's business (leather bag manufacturer) located at R.R. 142, Buzon 206, Caguas, Puerto Rico.

At a hearing in this matter, duly held at San Juan, Puerto Rico on November 13, 1973, Respondent's Vice President, appearing pro se, admitted that some of the cited violations were not fully corrected on the reinspection date, but contended that other violations were corrected on that date, raising factual issues as to which testimony was taken from the compliance officer who made the reinspection and Respondent's Superintendant.   Respondent's chief defense was the testimony of its Vice President (and sole top manager) that after the first inspection he had been absent from the plant in order to care for his ill mother in the U.S.; that he had delegated to the Superintendent the responsibility for making all required corrections which the latter had in good faith carried out to the best of his ability in the circumstances, including a severe flooding of the premises due to heavy rainfall and the weak financial status of the company.

Evaluation of Evidence

The evidentiary record pertaining to each item and proposed additional [*13]   penalty alleged in the Notification of Failure to Correct Violation and of Proposed Additional Penalty may be summarized as follows:

29 CFR 1910.22(a)(1) (housekeeping standard)

$100.00

 

Natividad Sanchez, a compliance officer with the U.S. Department of Labor, testified that on reinspection of Respondent's factory on April 17, 1973, he found conditions in the men's room to be the same as they were on his first inspection on January 29, 1973, to wit, washing facilities, floor, walls and toilets were dirty with toilet paper on the floor (Tr. 22).

Mr. Deitsch testified that Respondent's bathrooms are cleaned twice weekly and with 17 employees they have never had a cleanliness problem.   On cross examination, Mr. Sanchez indicated that the required frequency of cleaning depends on the use given the bathrooms, suggesting that more frequent cleaning was required here.   The alleged unclean conditions were not specifically denied (Tr. 41-42).

29 CFR 1910.22(b)(2) (marked aisles and passageways)

$100.00

 

Mr. Sanchez testified that the aisles of the plant were not clearly defined on his first inspection, but that on April 17, 1973 he observed a single line, about three   [*14]   inches wide and green in color, marking a passageway from the principal entrance through the approximate center of the plant to the back door.

Mr. Dietsch disagreed, stating that he had walked up and down two distinct aisles or passageways with Mr. Sanchez and that an aisle line had been marked. Mr. Sanchez also stated that more specific requirements on how the aisles are to be marked are contained in 29 CFR 1910.37, which was not itemized in the earlier citation or the failure to abate notification (Tr. 21, 39, 47-48, 54).

Since Respondent has not been cited for a violation of 29 CFR 1910.37, and it appears from the testimony of record that Respondent substantially complied with 29 CFR 1910.22(b)(2), failure to correct this violation has not been proved by a preponderance of the evidence and the proposed additional penalty therefor should be vacated.

29 CFR 1910.23(c)(1) (open-sided platform)

$100.00

 

Mr. Sanchez testified that during his first inspection he observed an eight foot high elevated platform with boxes stored on top of it and two unguarded open sides.   Mr. Sanchez stated that on his second inspection he observed that the upper part of a railing had been installed [*15]   on one side of the platform. The boxes were so stored that an employee on the platform would have to go around its edge to work (Tr. 22-23, 30).   Respondent's Superintendent, Mr. Santana, admitted that he did not complete installation of the railing on the elevated platform at the time of the second inspection because he did not know what procedure to follow (Tr. 51, 53, 55).   Mr. Santana stated that he worked to the best of his ability to make the necessary corrections and that he did not think they would have been made any faster if Mr. Deitsch had been there (Tr. 55).   The fact that part of the rail for one side of the elevated platform had been constructed at the time of the second inspection should be considered in assessing the civil penalty for this continuing violation, which I would find to be $50.00, instead of $100.00.

29 CFR 1910.37(q)(1) (no exit and directional sign)

$100.00

 

Mr. Sanchez testified that at both his first and second inspections the exits in Respondent's factory, being a large room approximately 160 feet long by 60 feet wide with partitions for the office and a smaller area and some columns which obstructed visibility, were not properly marked [*16]   (Tr. 21, 23, 45, 46).   Mr. Deitsch stated that there were only 4 columns about the foot in diameter which he did not consider a serious obstruction to viewing from about 85% of the factory area (Tr. 40).

Complainant has sustained his burden of proving that the exits were not marked by a readily visible sign.   The need for directional signs to mark access to exits has not been proved as it is not clear from the evidence of record that the way to reach the exit (once properly marked) is not immediately visible to the occupants.

29 CFR 1910.157(a)(3) (Fire extinguishers location not marked)

$100.00

 

Mr. Sanchez testified that the locations of fire extinguishers were not marked in Respondent's factory and that because of the size of the room and the presence of the columns such marking was necessary in order for workers to find the extinguishers immediately in case of fire (Tr. 23-24).   This testimony was not rebutted.

29 CFR 1910.57(a)(5) (Fire extinguisher not mounted)

$100.00

 

Mr. Sanchez testified that in both inspections he observed a carbon dioxide type extinguisher on the floor near the main entrance to the work area which was not placed on its hook, which   [*17]   was installed (Tr. 24).   The extinguisher was ready for use (Tr. 30) and this testimony was unrebutted.

29 CFR 1910.158(b)(5) (No hose valve on hose outlet)

$100.00

 

Mr. Sanchez testified that in both inspections he observed only one fire hose in the factory which was not connected to the fire hydrant because the connecting valve was missing (Tr. 24).   Mr. Santana explained that a replacement value had been ordered, it having been previously discovered upon removal to this plant from another that the hose valve was not adaptable to the new connection (Tr. 52).   Since the valve had been ordered I would modify the civil penalty to $50.00.

29 CFR 1910.212(a)(1) (unguarded point of operation)

$160.00

 

Mr. Sanchez testified he observed in use a "Fales Clicker" machine used to cut leather which was not guarded at the point of operation and thus posed a hazard to the machine operator (Tr. 25).   Mr. Santana stated that this machine was used on a seasonal basis and was in operation on April 17, 1973 (Tr. 77-79).   While Respondent did not dispute the record inference that the machine was operated between the first and second inspections, such steady use seems unlikely in   [*18]   view of Mr. Santana's testimony.   Because of the more limited exposure to this hazard I would modify the civil penalty to $100.00.

29 CFR 1910.212(a)(5) (unguarded fan blades)

$100.00

 

Mr. Sanchez testified that he observed an unguarded table fan operating on the floor in an aisle area, posing a hazard to workers who passed near the fan, and that this violation continued at the time of the second inspection (Tr. 25).   This testimony was not disputed (Tr. 43), although Mr. Santana did state that he had raised the fan to 7 feet (Tr. 55).   For the latter reason, I would modify the civil penalty to $50.00.

29 CFR 1910.309(a), Article 110-17(a) (uncovered
electrical line parts)	$100.00

 

Mr. Sanchez testified that on both inspections he observed an uncovered electrical connection box on a Thompson Press machine which constituted a hazard to employees since the machine was ready for operation (Tr. 27).

29 CFR 1910.309(a), Article 250-5(b)(1) (ungrounded AC system)

$160.00

 

Mr. Sanchez testified that on both inspections he observed that the electric system servicing the rivet, creasing and stamping machines was not properly grounded, as verified by a circuit tester [*19]   (Tr. 25-26).   This alleged hazard was not disputed.

29 CFR 1910.309(a), Article 250-42(a) (ungrounded machine)

$160.00

 

Mr. Sanchez testified that at both inspections the rivet machine, Tipe C-1, and the creasing machine were not grounded (Tr. 26, 30-31).   Mr. Dietsch asserted that while the electrical system is run as alleged, each machine is grounded (Tr. 26-27).   The record does not show any further proof of grounding aside from Mr. Santana's general statement that he had grounded some of the plugs (Tr. 54).

29 CFR 1903.16(a) (Failure to post citation)

$500.00

 

Mr. Sanchez testified that he issued a citation after the second inspection based on Respondent's failure to post the earlier citation issued on March 23, 1973 (Tr. 31-32).   The parties stipulated that the original citation was not posted until after April 17, 1973 (Tr. 36).

In view of Complainant counsel's testimony that adjustments for size of business and for history of previous violations erroneously were not allowed in computing the proposed penalty for this violation (Tr. 69-70), such adjustments should be made, reducing the proposed penalty to $350.00.

29 CFR 1904.2(a) (Failure to maintain log of recordable
occupational
injuries and illnesses)	$100.00

  [*20]  

Mr. Sanchez testified that on the second inspection he met with Respondent's bookkeeper, Mr. Julio Hernandez, who could not produce any record of injuries and illnesses other than a report of an accident to the State Insurance Fund (Tr. 31).

Similarly, in computing the proposed penalty, proper adjustments for size and history were erroneously not allowed (Tr. 69-70), which should be allowed, reducing the proposed penalty to $70.00.

Based on the foregoing modifications the proposed total additional penalties for the violations contained in Citation number one would amount to $1,070 and for the violations contained in Citation number two the total proposed penalties would be $420.00.

A further across the board modification of the total penalty to be assessed herein appears in order in further consideration of the size and related financial status of Respondent's business.   While for 1972 the firm had estimated gross sales of $225,000, net worth of $100,000 and a profit of $18,000, no executive salaries were paid (Mr. Dietsch has received none in the last one and one-half years) and in the month just before the first inspection the firm suffered a major flood which put continuance [*21]   of the business in doubt then and this unsound financial condition is a continuing problem (Pre-Trial Conference Tr. 3-7).

We are dealing here with additional penalties for failure to abate non-serious violations on the part of a small, struggling firm whose sole executive officer, required to be away with his mother during her terminal illness, delegated to the firm's superintendent the responsibility of correction of all violations.   While Respondent's Vice President alleges constant intent to comply, its Superintendent did not complete his responsibility, even as to one of the easiest to complete items (hanging fire extinguisher on its installed hook).   In these circumstances, it is doubtful that the assessment of severe penalties would advance the purposes of the Act any more than less severe penalties.   Complainant concedes that it is not the intention of the Act to take employers out of business (Tr. 58).   Indeed, the economic condition of a Respondent may be considered by the Commission in assessing penalties in appropriate cases under the Act.