GELHAAR UNIFORM COMPANY
OSHRC Docket No. 1810
Occupational Safety and Health Review Commission
December 31, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: The issues in this case are as follows: (1) whether Respondent (hereinafter "Gelhaar") violated n1 29 C.F.R. 1910.36(b)(8) n2 by not having two means of egrees, remotely located from each other for emergency egress for 35 employees located on the second floor of its workplace; (2) whether Gelhaar violated 29 C.F.R. 1910.212(a)(3)(ii) n3 by not providing sewing machines with point of operation guards; and (3) whether an uncontested proposed penalty may be vacated for having been proposed in error.
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n1 Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) requires employers to comply with safety and health standards issued by the Secretary.
n2 The standard provides:
Every building or structure, section or area thereof of such size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, shall have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions.
n3 The standard provides in pertinent part:
The point of operation of machines whose operation exposes an employee to injury shall be guarded.
[*2]
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The matter went to hearing before Judge Alan M. Wienman who thereafter decided the issues as follows: (1) Complainant (hereinafter "Labor") failed to prove the egress violation in that his only evidence was an "expert's" opinion which was given purely on a subjective basis rather than on objective facts concerning the size, occupancy, and arrangement of Gelhaar's workplace; (2) point of operation guards are required on Gelhaar's sewing machines; and (3) the uncontested penalty must be vacated as a matter of fair play" and because it is not justified.
We have reviewed the record. Based on such review we affirm the judge's disposition as to the first two issues for the reasons given by him. In addition, as to the egress allegation, Labor's brief on review indicates uncertainty as to what area might require two remoted exits. Thus, he argues that the "building" was of such size, occupancy, and arrangement as to require at least two remoted exits. The facts show that the building had two such exits. As to the guarding violation, our decision in Gerry Division of Outdoor Sports Industries, [*3] Inc.,
Finally, as to the uncontested penalty we note that Labor's area director testified that the proposal had been a mistake (Gelhaar had committed a posting violation). In these circumstances we are inclined to agree with the judge's evaluation that the penalty was unjustified. Nevertheless, he was without jurisdiction to vacate the proposed penalty. Mississippi Valley Errection Company, The law gives us to other choice n4 but to reverse this portion of his decision.
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n4 29 U.S.C. 659(a).
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Accordingly, the judge's decision is reversed to the extent that it vacates a proposed penalty for violation of 29 C.F.R. 1903.2(a) (the penalty having been assessed by operation of law) and is affirmed in all other respects. It is so ORDERED.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, CHAIRMAN, concurring in part and dissenting in [*4] part: Affirmance of the Judge's disposition of the § § 1910.36(b)(8) and 1910.212(a)(3)(ii) charges is correct and I concur therewith. The reversal of the Judge's dismissal of the penalty, however, is wrong and I respectfully dissent therefrom.
Respondent was originally cited for failure to comply with the occupational safety and health standard codified at 29 C.F.R. § 1903.2(a). n5 $50.00 was the proposed penalty therefor. No notice of contest was filed as to this item.
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n5 It should also be noted that the abatement date for correction of this violation is "[i]mmediately upon receipt of citation." This violates the "reasonable time" for correction requirement set forth in 29 U.S.C. § 658(a). A citation, and the corresponding proposed penalty therefor, ar invalid in such circumstances. See Secretary v. Kesler & Sons Construction Co., 9 OSAHRC 1033 (1974).
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However, during trial complainant's compliance officer made the following admissions:
Q: Mr. Hansen, wasn't there a similar error in regard to [*5] the penalty proposed for Item 1?
A: That is correct.
Q: And the $50.00 appeared on the Citation but should not have?
A: That is correct.
Judge Wienman: I understand you intend to propose a penalty of zero dollars for Item 1, is that correct?
The Witness: That is correct.
The Judge granted respondent's motion to correct this mistake because the penalty was "not justified under the statute," and "the purposes of the Act will [not] be furthered by requiring the Respondent to pay a penalty where none was intended."
Even the lead opinion admits "the penalty was unjustified." Despite this, however, the Commission reverses the equitable ruling below because of their apparent belief that 29 U.S.C. § 659(a) precludes us from jurisdiction to correct this mistake. I disagree.
29 U.S.C. § 659(a) provides:
If, within fifteen working days from the receipt of the notice . . . the employer fails to notify the Secretary that he intends to contest . . . the citation and the assessment . . . shall be deemed a final order of the Commission and not subject to review by any court or agency.
This Commission has never considered this wording to be an absolute divestiture of our jurisdiction to [*6] overturn a final order.
In a motions case, Secretary v. Farr-Guarino Contracting Corporation, (Docket No. 6941, March 25, 1974), the Commission vacated a § 659(a) final order because complainant erroneously cited the wrong corporation.
In Secretary v. Phoenix, Inc., Legore Quarries Division, 1 OSAHRC 355 (1972), the Commission set aside an order that had become final because the employer was preempted from our jurisdiction pursuant to 29 U.S.C. § 653(b)(1).
Here we are confronted with a situation where complainant, the court below and this Commission believe that a mistake was committed in the proposed of a penalty.
Rule 60(b) of the Federal Rules of Civil Procedure n6 provides:
On motion and upon such terms as are just, the court may relieve a party . . . from a final . . . order . . . for . . . (1) mistake . . . .
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n6 Rule 2(b) of the Commission's Rules of Procedure requires the application of the Federal Rules in the absence of a specific Commission provision. 29 C.F.R. § 2200.2(b).
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That is [*7] the case here. A mistake has been made. Respondent has made a motion to correct the mistake. The action by this Commission in disregarding this provision of law creates a grave injustice in this case and does not further the objectives of this Act in any way.
[The Judge's decision referred to herein follows]
WIENMAN, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. hereinafter called the Act). Contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleged on the basis of an inspection of a work-place under the ownership, operation or control of the Respondent, that the Respondent violated the Act by failing to comply with certain Occupational Safety and Health Standards, promulgated by the Secretary of Labor, pursuant to Section 6 thereof.
The Citation, which was issued November 8, 1972, alleged and itemized 12 separate Non-serious Violations, numbered Items 1, 2a, 2b, 2c, 3, 4, 5, 6, 7, 8, 9, and 10. The Respondent elected not to contest Items 1, 2a, 2b, 2c, 4, 6, 9, and 10 but filed a Notice [*8] of Contest with respect to Items 3, 5, 7, and 8. However, at the hearing counsel for the Respondent represented that it was not longer contesting Item 7 and 8 and had abated the conditions with respect to those items within the time requested by the Complainant. Respondent was continuing to contest Items 3 and 5.
Item 3 alleged a violation of the standard codified in 29 CFR 1910.36(b)(8). As described on the Citation, Item 3 charges:
Two means of egress, remotely located from each other, are not provided for emergency egress from the second floor for approximately 35 employees. (General).
An abatement date of December 8, 1972, was fixed in the Citation. The standard promulgated as 29 CFR 1910.36(b)(8) provides:
(8) Every building or structure, section, or area thereof of such size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, shall have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions.
Item 5 of the Citation alleged a violation of the standard [*9] codified in 29 CFR 1910.212(a)(3)(ii). As described on the Citation, Item 5 charges:
Sewing machines (approximately 50), are not provided with needle guards to protect against point of operation hazard. (General).
An abatement date of December 8, 1972, was fixed in the Citation. The standard promulgated as 29 CFR 1910.212(a)(3)(ii) provides:
(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformit with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and contructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.
By letter dated November 8, 1972, Robert Borchardt, Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor, indicated that he proposed to assess penalties for the alleged violations as follows: Item 1, $50.00; Item 2a, $0.00; Item 2b, $0.00; Item 2c, $0.00; Item 3, $0.00; Item 4, $0.00; Item 5, $30.00; Item 6, $30.00; Item 7, $0.00; Item 8, $25.00; Item 9, $0.00; Item 10, $0.00.
After a Complaint and Answer had [*10] been filed by the parties, the case came on for a hearing at Kansas City, Missouri, February 27, 1973.
THE ISSUES
No jurisdictional questions are in issue, the parties having pleaded facts sufficient to establish that the Respondent is subject to the Act, and that the Commission has jurisdiction of the parties and the subject matter. The primary issue for resolution, therefore, is whether the Respondent violated the safety standards as alleged in Items 3 and 5 of the Citation, and, if so, what penalty or penalties are appropriate.
An ancillary issue relating to the penalties developed at the hearing. Testimony presented by Complainant revealed that the zero penalty proposed for Item 3 was a typographical error, and Complainant intended to propose a $50.00 penalty for said item. However, it was also revealed that the $50.00 penalty proposed for Item 1 was likewise a typographical error, and a zero penalty is the correct proposal for said item. Complainant moved to amend the pleadings by proposing a $50.00 penalty for Item 3, and Respondent moved that the penalty for Item 1 be stricken. Both motions were taken under advisement.
SUMMARY OF THE EVIDENCE AND DISCUSSION [*11]
Citation Item Number 3: 29 CFR 1910.36(b)(8)
Complainant presented one witness in support of the allegation the Respondent was in violation of the safety standard codified as 29 CFR 1910.36(b)(8). Marjorie L. Mohl, a Department of Labor Compliance Officer, whose background includes experience as a Quality Insurance and Safety Inspector with the Department of Army, inspected Respondent's factory on November 1, 1972 (T. 6-7). The Secretary's case rested on her judgment that approximately 35 employees who worked on the second floor of the two story structure were endangered by an alleged violation of 29 CFR 1910.36(b)(8).
Miss Mohl described the premises and identified a sketch which was admitted into evidence as Exhibit G-1. The exhibit portrayed a two story structure 110 X 48 feet, with a stairway and an elevator situated in the west end of the building. She estimated the distance between elevator and stairs at 35 to 40 feet (T. 10).
Miss Mohl's testimony stressed the circumstance that the workers on the second floor of Respondent's factory were not provided, in her view, with "two means of egress remote from each other." She testified that the elevator, subject to failure [*12] of its electrical system, was not an acceptable means of egress (T. 10). Little of Miss Mohl's testimony -- or any other Government proof -- was devoted to the question of whether the "building or structure, section or area thereof" was "of such size, occupancy and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress." This oversight was entirely consistent with the pleadings, however, since the Citation and the Complaint both omitted any reference to the first 39 words of the standard.
Miss Mohl did testify that the stairway was made of wood (T. 10); that employees using the stairway reached the nearest first floor exit door through a shipping room which contained combustible materials (T. 11); and this same exit door was also the exit closest to the elevator (T. 12) although there was another main exit at the opposite end of the building (T. 15).
The crucial question of how Miss Mohl arrived at a judgment that the reasonable safety of the second floor workers required two remote means of egress was not asked on direct examination. She later supplied this information on cross-examination:
Q. [*13] Now what is the rest of your answer in regard to your training that would enable you to have good judgment about the propriety of these exits or sufficiency?
A. Because even a layman, sir, in any building you are in you have got to have more than one way out.
All right. I'll tell you how I formed some of my opinions and my judgments. Would I want to be the employee myself up there and have one way out? I can't in my own mind justify an inspection where employees are in one section of the building and have only one way out. (T. 19).
It appeared to be the Compliance Officer's opinion that reasonable safety in all building areas requires two means of egress. This opinion was in no way qualified or made dependent on the arrangement of the area, the height of the floor, the number of occupants, or any other structural fact or condition. The Compliance Officer evidently interpreted the regulation as it was pleaded -- with scant regard for the fact that the two remote means of egress requirement is not an absolute mandate but arises only in circumstances dictated by the size, occupancy and arrangement of the affected area. The above quoted testimony also revealed a further [*14] flaw in the proof. Miss Mohl was tendered as a witness expert in the field of fire safety, but she rendered her opinion not as a reasoned induction from objective data but in the form of a subjective judgment. ("Would I want to be the employee myself up there and have one way out?" Despite her excellent qualifications as a safety professional, the witness did not testify as an expert with respect to this key element in the proof.
The deficiencies in Complainant's case alone preclude any finding that a violation of 29 CFR 1910.36(b)(8) has been established by "reliable, probative and substantial evidence." n1 Testimony by Respondent that the second floor had clear aisles (T. 26), and that the building is normally emptied in three minutes (T. 53) reinforces the conclusion that the Complainant has failed to prove the necessity for two means of egress. It is therefore unnecessary to consider the further question of whether the elevator and the stairs constituted two acceptable and remote means of egress.
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n1 We are mindful that the Commission ruling in Secretary of Labor v. The Ceco Corporation, The Commission decision noted that the Administrative Procedure Act requires only that a ruling be supported by "reliable, probative and substantial evidence" and criticized a judge's reference to the "preponderance of the evidence."
Commissioner Van Namee, wrote a concurring opinion in which he stated that the substantial evidence rule is primarily a rule of appellate review and that the evidentiary standard usually applied in administrative proceeding is that the proponent of an order must establish his case by a preponderance of the evidence. McCormick, Handbook on Evidence, S.355 at 853 (2nd ed, 1972).
It is unnecessary to choose between the two standards in the instant case, however, since the Secretary failed to prove a 29 CFR 1910.38(b)(8) violation by either the "substantial evidence" or preponderance of the evidence" rule.
[*15]
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Citation Item Number 5: 29 CFR 1910.212(a)(3)(ii)
The proof was undisputed that a number of Respondent's employees on November 1, 1972, were working on powered sewing machines not equipped with point of operation (needle) guards. According to Michael L. Blumenthal, Secretary of the Respondent Corporation, who accompanied Miss Mohl during the inspection, there are 50 power machines in the plant of which only 6 to 12 are equipped with built in guarding devices (T. 57, 62).
Respondent's employees have not incurred any recent needle puncture wounds and cannot recall the last time such accidents occurred (T. 33-34). Miss Mohl has conducted approximately one dozen inspections in the garment industries and has talked to many garment workers. The experience with needle puncture wounds in the industry varies with the experience of the operator, the material, the machine, and whether the employee is on piece work (T. 36-37). The majority of the workers in the industry take the position that guards would slow down the operation and cause them to do less work and earn less money (T. 37). However, [*16] the employees in Respondent's plant are not on piece work (T. 63).
Mr. Blumenthal admitted that needle guards are available for some of the unguarded machines, but does not know how many (T. 57, 63). Older employees have informed him that they once were supplied with guards -- during or shortly after World War II -- and they were instructed to use them. But the workers took them off within a week because they impeded the work (T. 64). Mr. Blumenthal purchased some sample needle guards recently and attempted to operate a machine himself. He believed the guard itself increased the danger of getting a finger under the needle because of the difficulty of threading the needle and in placing and removing material with the needle guard in position (T. 65).
Mr. Blumenthal also testified that none of Respondent's employees wanted to try a needle guard. He doubted that he could institute successful discipline measures to make employees use guards, adding: "I've got a feeling we would get a lot of static and we would have a lot of problems with them and we would probably have people quit over them" (T. 66).
It is manifest that a prima facie violation of 29 CFR 1910.212(a)(3)(ii) is established. [*17] The point of operation of a power sewing machine does expose an employee to injury if unguarded. Respondent's "defenses" in its Answer do not bear scrutiny when examined in the light of the testimony. It lies ill for the Respondent to allege that there are no appropriate needle guards available which do not destroy the effective use of the machine and have its managing official candidly testify that he does not know what guards are available (T. 57). Mr. Blumenthal's testimony relative to difficulties experienced while experimenting with the guard is less than convincing for the evident reason that he is not a trained machine operator. Such testimony is by no means persuasive that the use of the needle guard would increase the likelihood of needle puncture wounds (T. 65).
Nor is it a defense to state that the employees have always removed the guards in the past. The proof indicated guards were last supplied to employees in the 1940's but no attempt has been made in this respect during Mr. Blumenthal's tenure (T. 64). It is the employer's duty under the Act to supply a safe work environment, and failure to require employees to utilize protective equipment has [*18] been held a violation of the Act. Secretary of Labor v. Mack Trucks Inc., Moreover Section 5(b) of the Act requires employees to comply with the standards issued pursuant ot the Act.
Respondent's final defense -- that "the area of exposure between needle point machine is so miniscule that the possibility of injury is extremely remote" -- is inconsistent with the proof. In his letter of November 24, 1972, electing to contest the Citation, Mr. Blumenthal represented that the operative distance was "no more than one-eighth of an inch," but in his sworn testimony this distance increased to "close to a half inch, slightly under" (T. 58). A wound created by one-half inch of power driven steel needle bears an injury potential sufficiently great to warrant safety measures instituted in the face of employee resistance if need be.
The undersigned Judge is compelled to attach some significance to the fact that no employer in the garment industry, to Mr. Blumenthal's knowledge, has ever sought a variance from or modification to the standard in question (T. 65), although 29 CFR 1910.212(a)(3)(ii) has been enforced against other garment manufacturers. n2 Despite [*19] Respondent's history of no reported puncture wounds we are persuaded that operation of powered sewing machines without point of operation guards exposes employees to injuries, and violation of the safety regulation herein bears too direct and immediate a relationship to health and safety to be treated as a de minimis matter. The gravity is not great, but neither is it so slight that no penalty should be attached. We have reviewed the record, and find the proposed penalty of $30.00 appropriate considering the gravity of the violation, the employer's good faith, business size, and previous history.
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n2 One instance was the case of Secretary of Labor v. Schnadig Corporation, In the Schnadig case a citation for failure to provide eye protection to employees operating pneumatic tools was dismissed because there was no reasonable probability of eye injury. However, a second citation for failure to provide point of operation guards on sewing machines was affirmed. (Reported in CCH No. 15,408).
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The "Typographical Error" Motions
Complainant's Motion topropose a $50.00 penalty for violation of Citation Item Number 3 becomes moot in view of our finding that there has been no violation of 29 CFR 1910.36(b)(8) and that Citation Item Number 3 must be vacated. No purpose would be served by our discussing the legal questions raised by the Motion although the matter will no doubt receive Commission attention should the decision be reversed.
Respondent's Motion to vacate the $50.00 penalty proposed for Citation Item Number 1 must be granted as a matter of fair play despite the fact that Respondent had not initially elected to contest Citation Item Number 1 or the penalty proposed therefor. The crucial point is that the penalty is not justified under the statute and applicable regulations. The Respondent can agree to any proposed penalty, however, erroneous, but the Commission nevertheless retains jurisdiction to assess all penalties once any portion of a Citation or the proposed penalties are contested. We do not see how the purposes of the Act will be furthered by requiring the Respondent [*21] to pay a penalty where none was intended (See Secretary of Labor v. Crosby and Overton, Inc., Docket #93 and Secretary of Labor v. Selchow and Righter Co., Docket #1057).
FINDINGS OF FACT
1. Respondent, Gelhaar Uniform Company, a corporation with its principal office and place of business at 1608 Oak Street, Kansas City, Missouri, employs approximately 50 employees primarily in the manufacturing of police and military school uniforms.
2. Respondent receives and ships goods in interstate commerce.
3. On November 1, 1972, Miss Marjorie Mohl, a Compliance officer with the Occupational Safety and Health Administration, United States Department of Labor, conducted an inspection of Respondent's factory at 1608 Oak Street, Kansas City, Missouri. Mr. Mike Blumenthal, Secretary of the Respondent Corporation, accompanied her on the inspection.
4. On November 1, 1972, approximately 35 employees were working on the second floor of Respondent's factory, but the evidence failed to establish that their reasonable safety might be endangered by the blocking of any single means of egress.
5. On November 1, 1972, Respondent's employees were operating no fewer than 38 powered sewing [*22] machines without needle guards or other protection from point of operation hazard.
6. The absence of these needle guards exposed employees to the risk of receiving a puncture would since the needles rise as much as one-half inch above the working surface.
7. Respondent initially elected not to contest Items 1, 2a, 2b, 4, 6, 9 and 10 of the Citation or the penalties proposed therefor, and at the hearing Respondent orally indicated it also was electing not to contest Citation Items 7 and 8, and had abated the conditions relating to the uncontested items within the time requested by the Complainant.
8. Herschel Hansen, Assistant to the Area Director of the Kansas City Area Office, OSHA, proposed the penalties for the alleged violations set forth in the Citation based on information supplied to him by Miss Mohl. In relation to each violation, he considered the probability of injury, the severity of the probable type of injury and the extent of violation. In computing proposed penalties, he made certain reductions in consideration of Respondent's good faith, size and history.
9. Herschel Hansen determined that the proposed penalty for Citation Item 1 should be zero [*23] dollars, but due to a typographical error a proposed penalty of $50.00 was inserted for this Item on the Notice of Proposed Penalties issued by OSHA.
CONCLUSIONS OF LAW
1. At all times material hereto Respondent was and is an employer within the meaning of Section 3 of the Act. The Occupational Safety and Health Review Commission has jurisdiction over the parties and of the subject matter.
2. On November 1, 1972, Respondent violated Section 5(a)(2) of the Act by its non-compliance with the safety standards set forth in Item 1, 2a, 2b, 2c, 4, 5, 6, 7, 8, 9, and 10 of the Citation issued November 8, 1972. Appropriate penalties for said violations are as follow: Item Number 1, $0.00; Item Number 2a, $0.00; Item Number 2b, $0.00; Item Number 2c, $0.00; Item Number 4, $0.00; Item Number 5, $30.00; Item Number 6, $30.00; Item Number 7, $0.00; Item Number 8, $25.00; Item Number 9, $0.00; Item Number 10, $0.00.
3. On November 1, 1972, Respondent was not in violation of the safety regulation codified as 29 CFR 1910.36(b)(8) as alleged in Item 3 of the Citation issued November 8, 1972.
ORDER
Based on the above Findings of Fact and Conclusions of Law it is ORDERED that: [*24]
1. Items 1, 2a, 2b, 2c, 4, 5, 6, 7, 8, 9, and 10 of the Citation issued Respondent on November 8, 1972 are hereby affirmed, and a total penalty of $85.00 is hereby assessed for said violations.
2. Item 3 of the aforesaid Citation and the penalty proposed thereon is hereby vacated.