UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 13067
B. F. GOODRICH TEXTILE PRODUCTS A DIVISION OF THE B.F. GOODRICH CO.,
Respondent.

DECISION AND ORDER

APPEARANCES:

Ken S. Welsch, Esquire, and W. T. Truett, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant.

Gregory L. Rutman, Esquire, Akron, Ohio, on behalf of respondent.

STATEMENT OF CASE

BURROUGHS, Judge:

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter ‘Act’). Respondent seeks review of a non-serious citation issued to it, pursuant to section 9(a) of the Act, on March 24, 1975. Review is also sought of the penalties proposed for two of the alleged violations.

The citation and notification of proposed penalty emanated from an inspection conducted on March 17, 1975, at respondent’s manufacturing plant located in Thomaston, Georgia. Respondent manufactures tire cord and related products at the Thomaston plant.

The citation issued to respondent on March 24, 1975, alleged that respondent violated section 5(a)(2) of the Act by failing to comply with five separate standards promulgated under section 6 of the Act. The respondent, by letter dated April 15, 1975, and received by complainant on April 17, 1975, timely advised complainant that it desired to contest all five items of the March 24, 1975, citation.

The March 24, 1975, citation alleged a violation of the following standards and described the alleged violations as follows:

Item One—29 C.F.R. 1910.219(d)(1)

Failure to provide guarding of all drive pulleys operated (7) seven feet or less above floor or working platform, including drive pulleys on cards, looms, forming twisters and spinning frames.

Item Two—29 C.F.R. 1910.219(f)(3)

Failure to provide guarding of all drive sprockets and chains operated (7) feet or less above floor or working platform, such as on looms.

Item Three—29 C.F.R. 1910.23(c)(1)(i)

Failure to provide standard railings with four (4) inch high toeboards on open sides of floors, platforms or runways high enough for persons to pass beneath the open sides.

Item Four—29 C.F.R. 1910.157(a)(6)

Failure to install all fire extinguishers having a gross weight not exceeding 40 pounds so that the tops of the extinguishers are not more than (5) five feet above floor level.

Item Five—29 C.F.R. 1910.179(j)

Failure to perform monthly inspections of overhead cranes, and to maintain signed inspection reports on same.

The notification of proposed penalty issued on March 24, 1975, proposed a penalty of $50 and $30 for the alleged violations of items one and two. No penalties were proposed for the remaining items.

On April 16, 1975, complainant issued an amended citation to respondent. The amended citation deleted item three and described the remaining violations as follows:

Item No.	Description
1	Failure to provide guarding of each drive pulley operated seven (7) feet or less above floor or working platform on the following machines in the areas indicated, as follows: (a) Spinning Frames—Unit A, Third Floor, Spinning Department and Unit B, Third Floor, Spinning Department. (b) Twisting Frames—Unit A, First Floor, Twist Department. (c) Cards—Unit A, Second Floor, Card Department.
2	Failure to provide guarding of each sprocket wheel and chain by enclosure, unless they are more than seven (7) feet above floor or working platform, on the following machines, in the areas indicated, as follows: Looms—Unit B, First Floor, Weave Room; Unit C, First Floor, Weave Room; and South Mill Weave Room.
4	Failure to install all portable fire extinguishers having a gross weight not exceeding 40 pounds so that the tops of the extinguishers are not more than five (5) feet above floor level, throughout the plant.
5	Failure to perform monthly inspections of overhead cranes, or others having the same fundamental characteristics, and to maintain signed inspection reports on same.

The standards allegedly violated and the proposed penalties remained the same.

The notice of contest was mailed one day prior to the amended citation being issued. The amended citation was received by respondent on April 18, 1975. Respondent, by letter dated April 22, 1975, and received by complainant on April 25, 1975, contested the four alleged violations set forth in the amended citation, but requested that the amended citation be stricken.

Respondent moved at the beginning of the hearing to vacate the amended citation. The notice of contest dated April 15, 1975, was directed to the original citation issued on March 24, 1975. The complaint was directed toward the March 24, 1975, citation, as amended. Item three of the March 24, 1975, citation was deleted in the complaint in accordance with the amended citation. The alleged violations were described in the complaint with the same specificity as set forth in the amended citation.

There is no dispute over the fact that the notice of contest dated April 15, 1975, was sent by registered mail on April 15, 1975.[5] Section 10(a) of the Act gives an employer fifteen working days within which to notify the complainant that he intends to contest the citation. The Act does not state whether the mailing or receipt date is to be used in computing the fifteen working days. Rule 7(c) of the Commission’s Rules of Procedure provides that service is deemed effected at the time of mailing. While this rule is not specifically directed to notices of contest, it is deemed applicable for invoking the jurisdiction of the Commission.[6]

Once jurisdiction of the Commission is invoked by the mailing of the notice of contest, the Area Director can not thereafter alter the import of the notice of contest by amending the citation. In the present case, respondent’s notice of contest was mailed on April 15, 1975. The Area Director could not thereafter change the issues by amending the citation. The amended citation of April 16, 1975, was therefore a nullity.

Once the notice of contest is mailed, the complaint is the proper vehicle for amending the citation. Rule 15(a) of the Federal Rules of Civil Procedure, incorporated by Rule 2(b) of the Commission’s Rules of Procedure, affords the complainant a right to amend once as a matter of course at any time before a responsive pleading is served.[7] The complaint filed by complainant was directed to the March 24, 1975, citation, as amended. Thus, only items one, two, four and five of the March 24, 1975, citation were pleaded and placed in issue. The complaint in effect conceded item three of the March 24, 1975, citation. The practical result was that the complaint amended the citation issued March 24, 1975, even though the amended citation of April 16, 1975, was a nullity. A motion to amend by complainant was granted to formally rule that the citation of March 24, 1975, was amended by the complaint in the same manner as though the amended citation had been properly issued (Tr. 11–12).

A motion was granted at the hearing to amend paragraph VI of the complaint to correct a typographical error with respect to the abatement dates for items one and two.

The amendment changed the abatement date from March 24, 1975, to March 24, 1976, to conform with the citation (Tr. 4).

The parties filed a stipulation at the commencement of the hearing. The stipulation has been incorporated as part of the record.

JURISDICTION AND ISSUES

Respondent concedes that, at all times material to this proceeding, it was engaged in a business affecting commerce within the meaning Commission has jurisdiction the amendment changed the of the parties and of the subject matter herein (Pars. I, II, Complaint and Answer; Stip., Pars. 1, 2).

The following issues are pertinent to a disposition of this case:

1. Did the citation fall to describe the alleged violations with particularity as required by section 9(a) of the Act?

2. Did respondent violate section 5(a)(2) of the Act by failing to comply with the standards published at 29 C.F.R. 1910.219(d)(1), 29 C.F.R. 1910.219(f)(3), 29 C.F.R. 1910.157(a)(6) and 29 C.F.R. 1910.179(j)?

3. What penalties, if any, should be assessed for any violations of the Act?

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues in this case:

1. Respondent, B. F. Goodrich Textile Products, Division of The B. F. Goodrich Company, is a corporation having a place of business and doing business at 325 Goodrich Avenue, Thomaston, Georgia, where it is engaged in the manufacture of tire cord and related products (Par. II, Complaint and Answer; Stip., Par. 2).

2. On March 17, 1975, complainant, through a duly authorized compliance officer, conducted an inspection of respondent’s Thomaston, Georgia, plant (Tr. 14). The plant contains 1,186,954 square feet of space (Tr. 47).

3. The compliance officer arrived at the plant at approximately 8:30 a.m. He commenced a walk-around inspection at approximately 9:00 a.m. A break of approximately forty five minutes was taken for lunch. The inspection was completed at 1:00 p.m. (Tr. 16, 45–46).

4. On March 18, 1975, the compliance officer returned to the plant for approximately thirty to forty-five minutes for the purpose of taking some photographs (Tr. 16, 36).

5. The compliance officer was accompanied on the walkaround by Larry Watts, safety supervisor for respondent, and John McGanghey, plant engineer for respondent (Tr. 14, 15, 45).

6. On March 17, 1975, respondent had 500 spinning frames in Units A and B of the Spinning Department located on the third floor. None of the spinning frames were guarded[8] (Tr. 16–17, 34–35).

7. The spinning frames contain one drive belt (Tr. 18, 37).

8. Respondent’s spinning frames are approximately fourteen feet long and approximately two and a half to four feet wide (Tr. 31).

9. Unit A, third floor Spinning Department, is divided into three sections. Spinning frames are located on the west end and east end. The compliance officer entered the west end of the spinning room on the walkaround inspection. He observed the belt drives on two or three spinning frames in the west end. He did not see any of the spinning frames in the east end of the Spinning Department (Tr. 32, 33, 49).

10. Unit B, third floor, Spinning Department is located in a different building but is connected to Unit A. On March 17, 1975, spinning frames in Unit B were not operating and had not operated since November 1974 (Tr. 33).

11. Unit A, third floor, Spinning Department is 1,071 feet long and 134 feet wide. Unit B of the Spinning Department is 335 feet long and 134 feet wide (Tr. 47).

12. During the walk-around the compliance officer did not point out which of the spinning frames needed guarding (Tr. 17). Respondent’s safety supervisor was aware of the guarding requirements as set forth in the promulgated standards (Tr. 18).

13. On March 17, 1975, respondent had approximately 384 twisting frames in Unit A, first floor, Twisting Department (Tr. 18–19). Approximately 180 of the twisting frames were guarded (Tr. 19, 35).

14. The twisting frames have one drive belt which turns the sheave that turns the drum of the twisting frame (Tr. 19, 37).

15. Respondent has two types of twisting frames. The two types involve different models and range in year of manufacture from 1918 up to 1952 (Tr. 34).

16. Unit A of the Twisting Department covers areas in the basement and first floor (Tr. 33–34). The compliance officer did not observe every individual machine in the department. The compliance officer observed some of the guards on the twisting frames but made no comment (Tr. 35).

17. Unit A of the Twisting Department is 1,071 feet long and 134 feet wide on the first floor level. The basement portion of the Twisting Department contains 10,720 square feet (Tr. 47).

18. On March 17, 1975, respondent had 364 card machines in Unit A second floor, Card Department (Tr. 19–20). Approximately half of the cards were guarded by side guards or safety bar guards (Tr. 20, 21, 35, 36).

19. The card machines contain drive pulleys that are primarily below seven feet (Tr. 21).

20. A card machine is approximately eight to nine feet long and five to six feet wide (Tr. 35).

21. Unit A of the Card Department located on the second floor is 1,071 feet long and 134 feet wide (Tr. 48).

22. On March 17, 1975, respondent had 68 looms in Unit B, first floor weave room; 183 looms in Unit C, first floor weave room; and 66 looms in the South Mill Weave Room (Tr. 21, 38).

23. The looms contain a sprocket wheel and chain that is located less than seven feet above the floor (Tr. 21).

24. Respondent has two different types of looms and a range of year models. The size of a loom varies between the year model and manufacturer (Tr. 37, 38).

25. The compliance officer did not observe each of the looms or the sprocket wheel and chain on each of the looms (Tr. 38).

26. Respondent has approximately 60 looms that, according to its interpretation of the guarding standards, do not need guarding. Each of the other looms require more than one guard. One loom could possibly have 15 to 20 guards (Tr. 21).

27. Unit B of the weave room located on the first floor contains 46,230 square feet of space; Unit C, first floor weave room contains 29,078 square feet of space; South Mill Weave Room contains 100,000 square feet of space (Tr. 48).

28. On March 17, 1975, respondent had approximately 550 to 600 fire extinguishers at its plant. Approximately 35-percent of the total were positioned at heights ranging from two inches to twelve inches above the five-foot level from the floor (Tr. 22).

29. The majority of the fire extinguishers in respondent’s plant weigh between five and ten pounds. None of them weigh in excess of forty pounds (Tr. 23).

30. Respondent is aware of all locations where it his fire extinguishers (Tr. 30).

31. At the time of inspection respondent had already commenced a program of guarding, testing and lowering all fire extinguishers to the proper height (Tr. 39).

32. Respondent had sixty-five overhead cranes at the time of inspection (Tr. 40, 65). It did not maintain signed inspection reports for the overhead cranes (Tr. 26).

33. Respondent has conducted inspections of the overhead cranes (Tr. 52).

34. The compliance officer held a closing conference with representatives of respondent after the inspection was conducted. The alleged violations set forth in the non-serious citation issued to respondent were discussed at the closing conference (Tr. 27).

35. Individual machines were not discussed at the closing conference (Tr. 28).

OPINION

Respondent submits that the alleged violations and proposed penalties should be vacated for the following reasons:

(1) The citation and complaint failed to describe with particularity and specificity the nature of the alleged violations.

(2) The compliance officer failed to observe the conditions which did not comply with the requirements of the standards.

(3) The complainant failed to sustain his burden of proof.

The first two arguments are in a sense related and are discussed separately from the merits of the alleged violations.

I. Particularity

Basically, problems surrounding the degree of particularity required can arise in two different and somewhat distinct ways. These are: (1) cases where the citation is contested before the Commission, and (2) cases where the citation was uncontested but the employer is later charged with failure to abate or with a repeat violation and the lack of particularity is alleged to have caused or contributed to the repeat violation or failure to abate. In the first instance, which is the situation presented by this case, particularity should be such as to apprise an employer of sufficient detail to protect him against surprise and to give notice of the real issues tendered. The issue must be viewed from the standpoint of whether the lack of specificity prejudiced the employer in his preparation and trial of the issues.[9]

Respondent’s argument as to particularity is primarily based on the descriptions of the alleged violations set forth in the citation of March 24, 1975. The descriptions are far from being a model of perfection. However, the fact that additional detail could have been furnished in the citation does not automatically imply a failure to meet the requirements of section 9(a). There must be a showing that the particularity furnished is insufficient to apprise the employer as to the issues in dispute. The burden to make such a showing rests upon the employer. Secretary v. Union Camp Corporation, 8 OSAHRC 31, 44 (1974).

Respondent’s plant contains 1,186,954 square feet of space. The departments containing the spinning and twisting frames, looms and the card machines occupy a large part of this space. The more fact that the plant is large does not per se require that specific locations of the machines be set forth in detail.

The citation issued March 24, 1975, alleged a failure to guard all drive pulleys and sprocket wheels and chains on the spinning and twisting frames, looms and cards. The cited standards, 29 C.F.R. 1910.219(d)(1) and (f)(3), are specific and unambiguous in their requirements. The standards inform an employer as to what must be guarded. The descriptions advised the respondent as to the machines allegedly in violation of the standards.

Respondent’s safety supervisor and plant engineer testified that they were familiar with the machinery allegedly in violation of the standards. It is a simple matter to observe the machines and formulate an opinion as to whether the drive pulleys and sprocket wheels and chains are in compliance with the standards. Where some looms, spinning and twisting frames and card machines are observed to have unguarded drive pulleys and sprocket wheels and chains, it is not necessary for the complainant to visually observe all of the machines and supply the respondent with their serial numbers and exact locations. An employer need not be treated as though he is totally ignorant of his own workplace. The fact that he has knowledge of actual or potential guarding problems within his plant can be taken into consideration. Secretary v. Union Camp Corporation, 8 OSAHRC 31, 44 (1974).

The complaint furnished additional detail to the respondent as to the locations of the spinning and twisting frames, looms and card machines. The record was clear as to the issues in dispute. Respondent makes no contention that the furnished information was insufficient for it to properly prepare its defense to the allegations. The argument that it did not know what needed to be abated is unpersuasive.[10]

The argument as to the lack of particularity for the fire extinguishers and overhead cranes is even less persuasive than that as to the spinning and twisting frames, looms and card machines. The standard pertaining to the overhead cranes, 29 C.F.R. 1910.179(j), is specific in its requirements. An employer should know whether it conducts inspections of its cranes and maintains signed reports of the inspections. Respondent is aware of the location of all of its fire extinguishers. It is a relatively easy procedure to measure their height with a ruler. Respondent was fully aware that some of the fire extinguishers did not comply with 29 C.F.R. 1910.157(a)(6). At the time of inspection it had already commenced a program of lowering all fire extinguishers to the proper height. An employer can not be judged as though he is totally ignorant of his own workplace.

Complainant relies on the test for particularity set out by Judge Duvall in Secretary v. York Metal Finishing Company, 7 OSAHRC 845, 876–877, wherein he states:

. . . Under the Section 9(a) requirement that each violation be described with ‘particularity’ in the citation, the degree of particularity reasonably necessary to satisfy this requirement may vary depending on the circumstances of each case. The test is whether the violation as cited in the citation is sufficiently particular or specific to reasonably inform a prudent employer of the condition or equipment which is to be corrected, taking into consideration all the relevant circumstances, including the statements made to the employer by the inspector at the opening and closing conferences and during the walk-around inspection, the nature and extent of the cited or similar conditions and equipment existing in the workplace, and the corrective action actually taken by the employer subsequent to the citation. (Emphasis added).

The emphasized language of Judge Duvall’s decision, in the opinion of this Judge, diminishes that part of section 9(a) which states:

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.

Section 9(a) clearly requires the complainant to describe with particularity the nature of the violation in writing in the citation issued to an employer. Oral communications by the compliance officer at the opening and closing conferences or the walk-around inspection do not obviate the congressional mandate that the violation be described in writing with particularity. The abandonment of written particularity for oral communications, in addition to being clearly against the congressional mandate, is fraught with other difficulties. Misunderstandings can occur as to what was intended by the compliance officer in his oral communications. See Secretary v. Hersman Construction Company, 4 OSAHRC 1356 (1973). In such situations, the Commission would be placed in the position of having to determine what was intended by the compliance officer. A written description of the alleged violation, as specified by section 9(a), avoids any such misunderstandings and removes the Commission from having to assist in delineating the nature of the violation. The proper writing of citations is an essential part of the enforcement process. It is not part of the adjudicatory functions of the Commission.

The Field Operations Manual published and adhered to by the Occupational Safety and Health Administration makes it clear that the inspecting compliance officer ‘shall make no statement which could be construed as committing the Department to issuing or not issuing a citation with respect to an apparent violation.’[11] The plain truth of the matter is that the inspecting compliance officer has no authority to commit OSHA to issuing a citation. The citations are authorized and signed by the Area Director or, in expedited situations,[12] are authorized by the Area Director and signed by the inspecting compliance officer. It is the view of the Area Director, as stated in the citation, which is paramount to the employer.

II. Alleged Violations

A. 29 C.F.R. 1910.219(d)(1)

Section 1910.219(d)(1) of 29 C.F.R. provides as follows:

Pulleys, any parts of which are seven (7) feet or less from the floor or working platform, shall be guarded in accordance with the standards specified in paragraphs (m) and (o) of this section. Pulleys serving as balance wheels (e.g., punch presses) on which the point of contact between belt and pulley is more than six feet six inches (6 ft. 6 in.) from the floor or platform may be guarded with a disk covering the spokes.

The citation issued on March 24, 1975, alleged that respondent failed to provide guarding of all drive pulleys operated seven feet or less above the floor, ‘including drive pulleys on cards, looms, forming twisters and spinning frames.’ The complaint amended the citation by dropping the reference to looms and by stating the location of the spinning frames, twisting frames and card machines.

Spinning Frames

On March 17, 1975, respondent had 500 spinning frames in Units A and B located on the third floor. The evidence reflects that the spinning frames have one drive belt. There is no evidence as to the location of the drive belt on the spinning frames. Respondent’s safety supervisor, Larry Watts, testified that none of the spinning frames were guarded at the time of the inspection (Tr. 17). Respondent’s plant engineer, John C. McGaughey, testified that 29 of the spinning frames in unit A were guarded (Tr. 49).

The standard requires that pulleys which are seven feet or less from the floor shall be guarded. There is no evidence to show that the location of the drive belt was less than seven feet above the floor. Complainant states that ‘it is clear from the record that the respondent is not contending that the violations cited by the compliance officer did not exist at the respondent’s plant.’ This is an erroneous interpretation of the record in this case. One of respondent’s specific arguments is that complainant failed to sustain his burden.

The burden of proving the violation is upon complainant. It is true that respondent did not specifically challenge the statement by Watts that spinning frames were unguarded. However, that statement in itself does not establish a violation. There is no concession by respondent or evidence to show the frames should be guarded. Complainant must establish the elements of the standard by facts in order to sustain the allegation.

Watts testified that he was aware of the guarding requirements of the safety standards and that none of the spinning frames were guarded (Tr. 17–18). He further testified that he was aware of the belt drive on the spinning wheel (Tr. 18). This is insufficient to establish a violation of the standard. Guarding is not required unless the pulleys are seven feet or less above the floor. This fact is not established by the evidence of record. Complainant has failed to meet his burden.

Twisting Frames

On March 17, 1975, respondent had approximately 384 twisting frames in Unit A, first floor. Respondent’s safety supervisor testified that 180 of the twisting frames were guarded[13] (Tr. 19, 35). As in the case of the spinning frames, the evidence fails to establish that the twisting frames contained unguarded pulleys which are seven feet or less above the floor. Complainant has failed to meet his burden on the issue.

Card Machines

On March 17, 1975, respondent had 364 card machines in Unit A, second floor, Card Department. Respondent’s safety director conceded that the card machines had drive pulleys which were seven feet or less above the floor (Tr. 21). He further testified that only half of the card machines were guarded. The violation has been established with respect to those card machines which have pulleys located seven feet or less above the floor. The standard requires that they be guarded. Respondent stipulated that employees work around the machines (Stip., Par. 3).

While the evidence does not specifically give the serial numbers or locations of the unguarded card machines, such is not deemed necessary to fully apprise respondent of which machines need guarding. Respondent’s safety supervisor, plant engineer and, undoubtedly other employees, are familiar with the machines. It is an easy task of determining which machines are in need of guarding.

B. 29 C.F.R. 1910.219(f)(3)

Section 1910.219(f)(3) of 29 C.F.R. provides:

All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive extends over other machine or working areas, protection against falling shall be provided. This subparagraph does not apply to manually operated sprockets.

Complaintant alleges that respondent violated the standard by failing to guard sprocket wheels located seven feet or less above the floor on looms located in Units B and C, first floor, weave room, and in the South Mill Weave Room. Respondent stipulated that employees work around the looms at various times.

On March 17, 1975, respondent had 68 looms in Unit B, first floor; 183 looms in Unit C, first floor; and 66 looms in the South Mill Weave Room. Respondent’s safety supervisor testified that he could identify the sprocket wheels and chains on the looms and that they were located less than seven feet above the floor (Tr. 21). He further conceded that while some of the looms need no guarding, according to his interpretation of the standard, the remaining looms require more than one guard.

The standard requires that all sprocket wheels and chains less than seven feet above the floor must be enclosed. Respondent’s safety supervisor concedes that he can identify the sprocket wheels and chains and that they are located less than seven feet above the floor. All sprocket wheels and chains less than seven feet above the floor must be enclosed. The violation has been established as to all looms containing sprocket wheels and chains less than seven feet above the floor.

If some of the looms have no unenclosed sprocket wheels and chains less than seven feet above the floor, as suggested by respondent’s safety supervisor, then the standard has no applicability to those specific looms. While respondent is not being informed as to the specific looms which need to be guarded, the facts are such that they are discernible with little effort on the part of respondent.

C. 29 C.F.R. 1910.157(a)(6)

Section 1910.157(a)(6) of 29 C.F.R. provides as follows:

Extinguishers having a gross weight not exceeding 40 pounds shall be installed so that the top of the extinguisher is not more than 5 feet above the floor. Extinguishers having a gross weight greater than 40 pounds (except wheeled types) shall be so installed that the top of the extinguisher is not more than 3–1/2 feet above the floor.

Complainant alleges that respondent failed to install all portable fire extinguishers having a gross weight of less than 40 pounds so that the top of the fire extinguisher is not more than five feet above the floor.

On March 17, 1975, respondent had approximately 550 to 600 fire extinguishers at its plant which weighed less than 40 pounds. Respondent’s safety supervisor testified that approximately 35 percent of the fire extinguishers were positioned at heights ranging from two inches to twelve inches in excess of five feet from the floor level.

Respondent argues that the complainant has failed to sustain his burden in demonstrating that all fire extinguishers were in violation. Respondent seems to conclude that the allegation should not be sustained since the proof failed to show a violation as to all fire extinguishers. This is illogical reasoning. Respondent’s safety supervisor conceded that approximately 35 percent of the fire extinguishers did not comply with the standard. Violations did exist and the allegation has been proven with respect to those fire extinguishers not meeting the standard.

Respondent further argues that the violation should not be sustained since the compliance officer failed to observe or identify all of the fire extinguishers not meeting the standard. The standard is unambiguous in its requirements. Respondent’s safety supervisor conceded that he was aware of all the locations of the fire extinguishers, and it is logical to assume that respondent’s employees are capable of measuring to a height of five feet. There should be no doubt as to which fire extinguishers comply with the standard. Under such circumstances, it would be absurd and a waste of time to have the compliance officer measure the height of 550 to 600 fire extinguishers and specifically identify those that were in excess of five feet. After all, the Act places the duty on the employer to comply with the standards.

D. 29 C.F.R. 1910.179(j)

Section 1910.179(j)(2)(iv) and (v) of 29 C.F.R. provide:

(iv) Hoist or load attachment chains, including end connections, for excessive wear, twist, distorted links interfering with proper function, or stretch beyond manufacturer’s recommendations. Visual inspection daily; monthly inspection with signed report.

(v) Rope slings, including end connections, for excessive wear, broken wires, stretch, kinking, or twisting. Visual inspection daily; monthly inspection with signed report.

Complainant alleges that respondent failed to perform monthly inspections of overhead cranes and failed to maintain signed inspection reports.

On March 17, 1975, respondent had 65 overhead cranes in its plant. Respondent conceded that it failed to maintain signed inspection reports for the cranes (Tr. 26). Respondent’s plant engineer testified that inspections of the cranes had been made by respondent (Tr. 52). The frequency or extent of those inspections is not disclosed by the record. This lack of disclosure must be construed against complainant since he has the burden of establishing that monthly inspections were not made. The violation has been established with respect to the lack of signed monthly inspection reports.

III. Penalty Determination

Complainant proposed a penalty of $50 for the violation of 29 C.F.R. 1910.219(d)(1) and a penalty of $30 for the violation of 29 C.F.R. 1910.219(f)(3). No penalties were proposed for the remaining two violations. The parties stipulated that the penalties were reasonable.

Several factors must be considered in determining penalties under section 17(j) of the Act. These include the size of the employer’s business, the gravity of the violation, the good faith of the employer, and the history of previous violations. The principal factor to be considered is the gravity of the offense. Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972). In determining the gravity of a violation, several elements must be considered, including, but not necessarily limited to, the following: (1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury. Secretary v. National Realty and Construction Company, Inc., 1 OSAHRC 731 (1972), reversed on another issue, 489 F.2d 1257 (D.C. Cir. 1973).

The penalty of $50 was proposed for lack of guarding on the spinning and twisting frames and the card machines. The alleged violation as to the spinning and twisting frames was not sustained. Respondent had 364 card machines in its plant at the time of inspection. Approximately half of those machines were unguarded. A penalty of $50 is fair and appropriate for the violation.

The exact number of looms in need of guarding is not fully established by the evidence. A penalty of $30 is deemed fair and appropriate for the violation of 29 C.F.R. 1910.219(f)(3).

CONCLUSIONS OF LAW

1. The respondent was, at all times material hereto, engaged in a business affecting commerce within the meaning of section 3 (5) of the Act. Act.

2. The respondent was, at all times material hereto, subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. On March 17, 1975, respondent had card machines in operation which did not conform with the requirements of 29 C.F.R. 1910.219(d)(1).

4. Complainant failed to sustain his burden that spinning and twisting frames in operation on March 17, 1975, had drive pulleys located less than seven feet above the floor in violation of 29 C.F.R. 1910.219(d)(1).

5. On March 17, 1975, respondent had looms in operation with unguarded sprocket wheels and chains in violation of 29 C.F.R. 1910.219(f)(3).

6. On March 17, 1975, respondent had fire extinguishers weighing less than 40 pounds installed at heights five feet above the floor in violation of 29 C.F.R. 1910.157(a)(6).

7. As of March 17, 1975, respondent conducted inspections of its overhead cranes but failed to maintain signed reports as required by 29 C.F.R. 1910.179(j).

8. A penalty of $50 is assessed for the violation of 29 C.F.R. 1910.219(d)(1). A penalty of $30 is assessed for the violation of 29 C.F.R. 1910.219(f)(3).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED:

(1) That item one of the citation issued respondent on March 24, 1975, as amended, is affirmed as to the card machines and vacated as to the spinning and twisting frames;

(2) That items two and four of the citation issued to respondent on March 24, 1975, as amended, are affirmed;

(3) That item five of the citation issued to respondent on March 24, 1975, as amended, is affirmed as to the lack of signed inspection reports and vacated as to the failure to perform inspections; and (4) That the penalties proposed for items one and two are affirmed.

Dated this 31st day of December, 1975.

JAMES D. BURROUGHS

Judge

[1] This item was also directed to the failure to guard drive pulleys on spinning frames and twisting frames. The Judge vacated the charge as to the spinning and twisting frames on the basis that the Secretary failed to establish that the pulleys were within seven feet of the floor level. His ruling as to these machines is not before us.

[2] Respondent was also cited for failing to perform monthly inspections of its overhead cranes and failing to maintain signed inspection reports of the inspections as required by 1910.179(j). The Judge affirmed only the second allegation. Respondent argues on review that the record does not show it failed to make the required inspections. Since the Judge vacated that portion of the item which alleged a failure to perform monthly inspections, and the Secretary has not taken exception to the Judge’s ruling we will not consider the argument.

[3] The Secretary did not petition for review of the judges’ decision insofar as the judge refused to affirm the citation.

[4] Respondent also contends that the Judge committed reversible error in allowing the Secretary to amend the citation in his complaint. The citation alleged violations as to certain classes of machines; the amendment in the complaint specified the rooms in which the cited classes of machines were located. In making the allegations more specific, the Secretary complied with the Commission rule at 29 C.F.R. 2200.33(a)(2)(ii); the amendment was therefore properly permitted.

[5] Exhibit A introduced at the hearing is a copy of the April 15, 1975, notice of contest with receipts showing date of mailing and date received by complainant. This notice of contest was not furnished to the Commission by the complainant.

[6] If the receipt date was deemed controlling, an employer’s rights under the Act would be dependent upon the efficiency of the postal service.

[7] Commission Rule 33(a)(3) anticipates such amendments by providing:

Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.

[8] The plant engineer testified that 29 of the spinning frames in Unit A were guarded (Tr. 49). There is no explanation for the discrepancy between the testimony of the safety supervisor and the plant engineer.

[9] Normally, such a situation should not arise. Rule 15(a) of the Federal Rules of Civil Procedure, which is incorporated by Rule 2(b) of the Commission’s Rules of Procedure, would allow the complainant to amend the citation to provide greater specificity in the complaint. Rule 12(e) of the Federal Rules of Civil Procedure would permit the employer to file a motion for a more definite statement if the complaint fails to provide the requisite specificity. In addition, Commission Rule 53 allows discovery depositions and interrogatories by special order of the Commission or Judge.

[10] Where a citation is contested, the argument that the citation does not fully advise as to what must be abated loses its impact. An employer does not have to abate in a contested situation until the violations are established by evidence of record. Obviously, the allegations will not be sustained unless specific facts are placed in evidence to show the condition in violation of the standard.

[11] See Chapter V, page 14 of the Field Operations Manual.

[12] See Chapter V, paragraph K, page 14, Field Operations Manual.

[13] The evidence does not indicate that the guards were for pulleys seven feet or less above the floor.