Docket No. 511

ALBERT AND MAGUIRE SECURITIES COMPANY, INC.

OSHRC Docket No. 511

Occupational Safety and Health Review Commission

September 12, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: On December 7, 1972, Review Commission Judge Donald K. Duvall issued a decision in this case holding that respondent violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) because it did not provide adequate toilet facilities which are separate for each sex in accordance with the occupational safety and health standard set forth at 29 CFR 1910.141(c)(1)(i). No penalty was assessed. Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission.

The Commission has reviewed the entire record in this case, including the brief filed by complainant. On the basis of such review, the Commission finds that the Judge erred in holding respondent to be in violation of the Act.

Respondent is a corporation engaged in the stock brokerage business. It conducts its business in leased office space in a suburban shopping center. Respondent employs a staff of 12 to 15 persons there, consisting of approximately an equal number of men and women. The office is equipped with one toilet facility, ordinarily used by respondent's male employees. The women employees customarily use public facilities in a department store located some 50 feet from respondent's office in the same shopping center. Based on these facts, the Judge concluded that respondent had failed to comply with 29 CFR 1910.141(c)(1)(i) which provides, in pertinent part:

Every place of employment shall be provided with adequate toilet facilities which are separate for each sex. . . .

We do not agree. The cited standard must be read in conjunction with subsection (c)(1)(ii), which provides:

Toilet facilities shall be provided so as to be readily accessible to all employees. Toilet facilities so located that employees must use more than one floor-to-floor flight of stairs to or from them are not considered as readily accessible. As far as practicable, toilet facilities should be located within 200 feet of all locations as which workers are regularly employed.

The goal of the standard is to ensure the presence of toilet facilities within reasonable proximity to the workplace. Nothing therein requires that the facilities be at the workplace and under the control of the employer -- only that they be readily accessible. Indeed, in most office buildings, common toilet facilities under the control of the building owner are customarily used by employees of several different employers who lease space in the building. It is inconceivable that, in the name of occupational safety and health, the Secretary of Labor intends to require that each such office be equipped with separate toilet facilities.

In the case at bar, the toilet facility used by women employees was well within the 200-foot guideline established by the complainant, and since there was no evidence adduced at the hearing that respondent's women employees were required to work at a time when these facilities would not be readily accessible, we find that no violation of the Act existed. The Judge's decision is therefore reversed. The citation is dismissed.

[The Judge's decision referred to herein follows]

DUVALL, JUDGE, OSAHRC: 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 called the Act) contesting a citation issued by the Complainant against the Respondent under the provisions of Section 9(a) of the Act. The citation alleges that as the result of an inspection of a workplace under the ownership, operation or control of Respondent, located at 2383-D Cottman Avenue, Philadelphia, Pennsylvania 19152, and described as a stock, bonds, and mutual funds business, Respondent violated Section 5(a)(2) of the Act by failing to comply with an Occupational Safety & Health standard, namely, 29 CFR 1910.141(c)(1)(i), promulgated by the Secretary pursuant to Section 6 of the Act.

The citation for the alleged non-serious violation was issued on January 13, 1972, and no penalty was proposed by the Secretary. It described the alleged violation as follows: "Place of employment was not provided with adequate toilet facilities which are separate for each sex." The citation also set February 13, 1972 as the date by which the alleged violation must be corrected.

The cited standard, 29 CFR 1910.141(c)(1)(i), provides as follows:

Every place of employment shall be provided with adequate toilet facilities which are separate for each sex. The sewerage disposal method shall comply with requirements of the health or other authorities having jurisdiction.

Respondent filed its notice of contest in this matter with the Commission on February 1, 1972, and thereafter the parties filed their complaint and answer, respectively. On March 17, 1972, the Commission denied Complainant's motion to dismiss the notice of contest and affirm the citation for Respondent's alleged failure to comply with the service requirements of Commission Rule 2200.7(b)(1), as amplified by Rules 2200.7(i), 2200.5, and 2200.6. A hearing in this matter was duly held before me on June 7, 1972, at Philadelphia, Pennsylvania, with both parties represented by legal counsel. No affected employees or authorized representative thereof have asserted party status in this proceeding.

At the hearing the parties stipulated or affirmed that Respondent is engaged in the stock brokerage business at the cited workplace, that this business affects commerce and has employees as defined in Section 3(5) of the Act, that Respondent is subject to the Act and regulations and standards promulgated thereunder; that Respondent is approximately equal in size to other stock brokerage offices within the same general area and employed approximately 23 employees on or about December 16, 1971 (the date of inspection); that Respondent has no prior history of violations under the Act, properly posted the citation, complaint and notice of hearing at its workplace, and duly received service of same. At the hearing Respondent further affirmed that it was a Pennsylvania Corporation engaged in brokerage business across State lines which had a net capital position of $55,000 in 1970 (Tr. 8-11).

The issues to be resolved herein are whether Respondent violated the occupational safety and health standard 29 CFR 1910.141(c)(1) as alleged in the citation issued January 13, 1972, and whether the proposed no penalty is appropriate under Section 17 of the Act.

DISCUSSION

The factual situation presented by the evidence of record herein may be simply summarized. Respondent is one of 65 lessees of office or store space in the Roosevelt Mall Northeast Regional Shopping Center in Philadelphia, Pennsylvania. While considered an open mall, a lighted and heated overhang covers the outside sidewalks enabling one to walk the entire shopping center regardless of the weather. The offices and shops in the mall are principally of a retail or commercial nature, including stores selling jewelry, wigs, hosiery, men's and women's clothes, shoes, vitamins, leathercraft, tobacco, uniforms, stamps and coins, as well as a bank, beauty shop, dry cleaner, and travel center. These lessees, including Respondent, rent their space from the Shopping Center which, under the leases, retains some control over maintenance and upkeep of the building, acting through the Mall Merchants Association, membership in which is required of all lessees. Each building in the mall has the same street address, with each store or office in that building having a particular letter designation.

Except for S. Klein's Department Store and the bank, most of the stores and Offices have approximately two employees, with one toilet facility for both male and female employees within each leased space. A public toilet facility (men's room -- 7 stools, 10 urinals, women's room -- 10 seats; duplicate facilities on the second level) is maintained by Klein's, located some 15 feet inside its main entrance, about 50 feet northeast of Respondent's workplace by way of the covered walkway. There are also approximately 29 offices and stores with single toilet facilities within 200 feet of Respondent's workplace. If any of these lessees arbitrarily refused employees of another lessee permission to use its toilet facilities pressure could be exerted through the Mall Association to correct the situation. But as a matter of law under the lease, Respondent does not control the toilet facilities outside its own workplace, including the public facility maintained and controlled by Klein.

At its Roosevelt Mall office Respondent employed a staff of 8 persons (two males and six females) and 10-13 sales people, 4 to 7 of whom (including one female) would be in the office at any one time. In addition, as many as 5 or 6 customers may be in the office occasionally. Respondent has one toilet facility at this workplace which is customarily used by the male employees; the women employees customarily use the public toilet facilities at Klein's Department Store. One of Respondent's female employees expressed no dissatisfaction or problems with this arrangement.

Complainant alleges violation of the cited standard by reason of Respondent's apparent failure to provide its place of employment with adequate toilet facilities which are separate for each sex. In determining the adequacy of the toilet facilities both Complainant and Respondent evidently rely on the following additional subheadings under 29 CFR 1910.141 Sanitation, (c) Toilet facilities, (1) General:

(ii) Toilet facilities shall be provided so as to be readily accessible to all employees. Toilet facilities so located that employees must use more than one floor-to-floor flight of stairs to or from them are not considered as readily accessible. As far as practicable, toilet facilities should be located within 200 feet of all locations at which workers are regularly employed.

(iii) Water closets shall be provided for each sex according to the following table. The number to be provided for each sex shall in every case be based on the maximum number of persons of that sex employed at any one time at work on the premises for which the facilities are furnished. When persons other than employees are permitted the use of toilet facilities on the premises, a reasonable allowance shall be made for such other persons in estimating the minimum number of toilet facilities required.

Number of Persons	Minimum Number of Facilities
1 to 9	1
10 to 24	2
X X	X X

Where 10 or more are employed, urinals may be provided. One water closet less than the number specified in the foregoing may be provided for each urinal, except that the number of water closets in such cases may not be reduced to less than two-thirds of the number specified in the foregoing. . . .

(iv) An adequate supply of toilet paper with holder shall be provided for every water closet.

(v) Covered receptacles shall be kept in all toilet rooms used by women.

(vi) Adequate washing facilities shall be provided in every toilet room or be adjacent thereto.

In support of its position, Complainant asserts that for the number of its employees at its Roosevelt Mall office at any one time, Respondent should have at its place of employment (i.e., on its premises or under its control) a minimum of two toilets for the men (11-12 in number) and one for the women (2-3 in number) in order to meet the adequate and separate toilet facilities requirement of the cited standard. Respondent contends that under the cited standard, interpreted in the light of the succeeding subheading (ii), where it is not practicable to have adequate toilet facilities on the premises such facilities may be located off the premises so long as they are readily accessible and within 200 feet of the workplace.

In support of this position Respondent argues that the Roosevelt Mall is the suburban equivalent of an office building and should be treated as one building for the purpose of defining the place of employment as intended by the Act; that, following this analogy, just as toilet facilities on a public corridor in an office building are used by and deemed adequate for employees of adjacent offices on that floor, so the public toilet facilities of Klein's and the private toilet facilities of other offices and shops adjacent to Respondent's office may be used by and deemed adequate for Respondent's employees. Respondent also contends that by virtue of the required membership of all Mall tenants in the Mall Merchants Association, of which Respondent's Secretary-Treasurer and Comptroller was treasurer and on the Board of Directors, Respondent had sufficient control or voice in the maintenance and use of all toilet facilities within the Mall to assure adequate toilet facilities to its employees. Through testimony of its Secretary-Treasurer, Respondent sought to show that installing additional toilet facilities on its premises at the Mall was not practicable because of alleged excessive cost ($5,000 to $25,000) and possible zoning and building code restrictions.

Determination of adequate toilet facilities under 29 CFR 1910.141(c)(1), depends on "the maximum number of persons of that sex employed at any one time at work on the premises for which the facilities are furnished," plus a "reasonable allowance" for other persons normally present on the premises at any one time. Reliable testimony of Respondent's Comptroller (Mr. Burak) and sales manager (Mr. Browndorf) establishes that at its mall office Respondent employed 2 male and 6 female staff people who were normally present, and 10-13 sales people (one of whom is female), of whom 3 or 4 would normally be present, which number would increase to 5 or 6 when sales meetings were held, normally at 5 P.M. once a month, when the staff people normally left for the day. While the record is ambiguous as to the maximum number of customers who would normally be present at any one time, 3 to 4 may be a reasonable number based on the testimony of Messrs. Browndorf and Burak. Assuming the salespeople and customers present at any one time are male, Respondent has to provide adequate toilet facilities for a total of 6 female employees and 2 male employees. According to the table contained in 29 CFR 1910.141(c)(1), Respondent is required to provide a minimum of one toilet facility to its male employees and one separate toilet facility to its female employees, assuming that the monthly sales meetings are held after the staff has left the office and discounting the customers who normally come in.

Respecting the proper definition of place of employment as provided in the cited standard, it seems clear that this term, like the term workplace, was intended by Congress to be broadly and not narrowly construed. Legislative History of the Occupational Safety and Health Act of 1970, Senate Committee on Labor and Public Welfare, 92d Congress, 1st Session 348 (June, 1971) (Statement by Senator Saxbe); Secretary of Labor v. Allied Electric Company, (Truck owned, operated, and utilized by Respondent in its business held to be part of the workplace within intendment of the Act). However, it is a fundamental rule of statutory construction, applicable to the interpretation of regulations duly promulgated by an administrative agency acting within the scope of its statutory authority, that the general purpose and intent of the whole act shall control, with each part or section construed in connection with every other part or section so as to produce a harmonious whole. Horack, Sutherland Statutory Construction, Vol. 2, p. 336 (3d Ed. 1943). Thus, construing 29 CFR 1910.141(c)(1)(i) consistent or harmoniously with the language of (ii) and (iii) it appears clear that the toilet facilities must be readily accessile to Respondent's employees and must be sufficiently controlled by Respondent as to assure an adequate supply of toilet paper, covered receptacles, washing facilities, etc.

Even if Klein's public toilet facilities, currently used by Respondent's female employees by walking approximately 50 feet out of doors under a covered, lighted and partially heated walkway, were considered readily accessible, the evidence of record is not substantial or convincing that Respondent's alleged degree of control of Klein's public toilet facilities was sufficient to meet the adequate toilet facilities requirement of the cited standard. Indeed, Mr. Goldberg, Manager of the Mall, testified that no lease provisions could prevent a lessee, including Klein, from refusing access to its toilet facilities (Tr. 62-63).

Mr. Goldberg further testified that in such an eventuality Respondent could move through the Mall Association to have the toilet facilities made accessible so as to correct a situation possibly detrimental to the Mall as a whole (Tr. 64). Such possible corrective action by the Respondent, apparently dependent upon the collective will of the Association's Board of Directors, is too discretionary and indefinite to meet the mandatory requirement of the standard that "every place of employment shall be provided with adequate toilet facilities which are separate for each sex."

Respondent's reliance upon the "within 200 feet, as far as practicable" provision of subheading (ii) as authority for its position is also inconsistent with the context of 29 CFR 1910.141(c)(1) as a whole in that it tends, under the circumstances of this case and as noted above, to render subheading (iii) a nullity. A statute (regulation) should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant. Horack, Sutherland Statutory Construction, supra at 339.

The practice and interpretations followed by officers, department heads and others officially charged with the duty of administering and enforcing a statute is entitled to great weight in determining the operation of a statute. Horack, Sutherland Statutory Construction, supra at 516. Mr. Ullendorf Complainant's Assistant Area Director, testified that the place of employment as used in the cited standard means the area under the employer's direct control (Tr. 27). It is this element of control which distinguishes the office building corridor toilet facilities (normally locked to the public and used only by employees on the same floor) from the public toilet facilities in Klein's used by the public and Respondent's female employees in this case (Tr. 29-39). According to this Department of Labor official, even when it is not physically practicable to locate toilet facilities within 200 feet of where employees are regularly employed such facilities must still be located within the place of employment as defined, i.e., facilities under the employer's direct control. (Tr. 27, 110; see Secretary of Labor v. Justus Company, Inc.,

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n1 It should be noted that under the safety and health regulations for construction, 29 CFR 1518.51(c) requires toilets at construction job sites.

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Under this interpretation of the standard, Respondent's further allegations of financial impracticability of providing toilet facilities within its place of employment, which is considerably less than 200 feet in length and width, can have little or no probative value in determining the question of compliance with the cited standard. This is not to say that consideration of evidence of financial impracticability is any less proper or relevant than consideration of physical impracticability in appropriate cases. See Secretary of Labor v. Justus Company, Inc., Indeed, the evidence of record respecting both financial and physical limitations of Respondent's ability to comply with the cited standard might well be persuasive under other pertinent provisions of the Act, including Sec. 6(d).

Even if Respondent's contention of physical and financial impracticability are construed as a plea of impossibility of compliance with the cited standard as applied by Complainant, Respondent's bare allegation that provision of adequate and separate toilet facilities at its place of employment would cost between $5,000 and $25,000 and conflict with certain unspecified zoning or housing code restrictions is not sufficiently clear and convincing as proof on the present record to warrant vitiating the cited standard.

Complainant's determination that there should be no proposed penalty in this case cannot be deemed inappropriate given the evidence of record that such determination was based primarily on consideration of the gravity of the violation, and further taking into consideration the modest size of Respondent's business, its good faith, and record of no previous violations under the Act (Tr. 10, 25-26, Complainant's Exhibit C-1).

FINDINGS OF FACT

The record herein as a whole contains reliable, probative and substantial evidence to support the following findings of fact:

1. Since December, 1971 Respondent, a Pennsylvania Corporation engaged in the brokerage business, has leased, operated and controlled a place of employment (workplace) at 2383 - D Cottman Avenue, Philadelphia, Pennsylvania as a tenant of the Roosevelt Mall Regional Shopping Center (Stipulation, Complainant's Exhibit C-1; Tr. 108-109).

2. On or about December 16, 1971, Respondent employed approximately 23 employees, of whom eight staff persons (two males, six females) and 10 to 13 sales persons (including one female) worked in or out of its Mall place of employment, with a maximum of 12 employees (6 males, 6 females), plus five or six customers normally present at any one time (Stipulation, Complainant's Exhibit C-1; Tr. 76, 90, 93, 95, 99).

3. On or about December 16, 1971, Respondent provided one toilet facility at its Mall place of employment which was normally used by its male employees only. Respondent's women employees normally used the public toilet facilities located 15 feet inside the entrance to Klein's Department Store, another place of employment, which was about 50 feet northeast of Respondent's workplace and accessible from such workplace by walking out of doors under a covered walkway which is lighted and heated by Powergroove lights and extends along the entire perimeter of the shopping area (Tr. 47, 53, 76, 90, 93, 95-99).

4. The public toilet facilities used by Respondent's employees, consisting of 7 stools and 10 urinals in the men's room and 10 seats in the women's room, with duplicate facilities on the second level, are managed and controlled by S. Klein Department Store under its lease with the Roosevelt Mall Shopping Center (Tr. 50, 52-53).

5. Respondent and S. Klein Department Store, as two of approximately 65 tenants of the Mall, are required under their respective leases to be members of the Roosevelt Mall Merchants Association which, acting through its Board of Directors, of which Respondent's Secretary-Treasurer and Comptroller was an officer and director, can exert corrective pressure upon any lessee, including S. Klein's, which act detrimentally to the interest of the whole shopping center, such as by closing its toilet facilities to Respondent's employees arbitrarily or without sufficient reason as determined by the Association (Tr. 40, 60, 63-64, 81-82).

6. Respondent has no direct control over the public toilet facilities located in the S. Klein Department Store or over the toilet facilities located in the place of employment of any other tenant of the Roosevelt Mall Shopping Center (Tr. 46-48, 51-53, 59-63).

CONCLUSIONS OF LAW

1. Respondent is and at all times material hereto was an employer within the meaning of Section 3(5) of the Act, being engaged in a business affecting commerce who has employees.

2. Respondent is and at all times material hereto was subject to the requirements of the Act, including Section 5(a)(2), and the occupational safety and health standards duly promulgated thereunder, and the Commission has jurisdiction of the parties and the subject matter herein under Section 10(c) of the Act.

3. The occupational safety and health standard cited herein, 29 CFR 1910.141(c)(1)(i), was duly promulgated under Section 6 of the Act by publication in the Federal Register on May 29, 1971 (36 F.R. 10593) and became effective on August 29, 1971.

4. The citation for non-serious violation, notification of proposed penalty, notice of hearing, and all pleadings in this matter were properly served or posted in accordance with the notice and service requirements of the Act, including Section 9, and the pertinent regulations duly promulgated thereunder, including Section 2200.7 of the Commission's Rules of Procedure (29 CFR Part 2200; 36 F.R. 17409, 17410 (August 31, 1971).

5. On or about December 16, 1971, Respondent violated the occupational safety and health standard set forth at 29 CFR 1910.141(c)(1)(i) in that on that date Respondent's place of employment at the Roosevelt Mall Shopping Center was not provided with adequate toilet facilities which were separate for each sex. Accordingly, the citation for violation of said standard should be affirmed.

6. Considering the size of Respondent's business, the gravity of the violation, Respondent's good faith and history of previous violations, pursuant to Section 17 of the Act, the no penalty proposed for the cited violation is appropriate.

ORDER

Based on the foregoing findings of fact and conclusions of law and the record as a whole, good cause appearing, it is hereby ORDERED, that Complainant's citation for violation of 29 CFR 1910.141(c)(1)(i) and notification of proposed penalty both issued on January 13, 1972, are hereby affirmed.