ADVANCE SPECIALTY COMPANY, INC.
OSHRC Docket No. 2279
Occupational Safety and Health Review Commission
March 5, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Marshall H. Harris, Regional Solicitor, USDOL
Fred B. Creamer, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
A decision of Judge David H. Harris, rendered on March 8, 1974, n1 has been directed for review and is before us pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., [hereinafter "the Act"].
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 This case was consolidated for hearing with Platers and Coaters, Inc., 7 OSAHRC 783, BNA 1 O.S.H.C. 3364, CCH E.S.H.G. para. 17,449 (1974). The Judge's decision in Platers and Coaters was not directed for review and has become a final order of the Commission by operation of law. Section 12(j) of the Act.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Advance Specialty, respondent, is engaged in fabricating wire parts to be integrated into the finished products of other manufacturers. The parts manufactured by Advance are plated by Platers and Coaters, Inc. The two operations are owned by the same person, occupy a common worksite, [*2] and are separated merely by an open aisle approximately 15 feet wide.
On December 26, 1972, one employee of Platers and Coaters and one employee of Advance were killed when they were overcome by lethal hydrogen cyanide gas. n2 The gas was produced when the employee of Platers and Coaters, an inexperienced laborer, inadvertently mixed acid salts, rather than oxydine salts, with sodium cyanide, an extremely dangerous chemical. Following the resulting accident, a compliance officer and an industrial hygienist, both employed by the Secretary of Labor, complainant, conducted an inspection of the common worksite.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 The parties stipulated to the lethal character of the hydrogen cyanide gas. The stipulation noted that in a concentration of 270 ppm, the gas is immediately fatal; a concentration of 181 ppm kills in 10 minutes; a concentration of 135 ppm kills in 30 minutes; and a concentration of 110 ppm kills in 60 minutes.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As a result of the inspection, the Secretary of Labor issued two citations in the name of Advance [*3] Specialty Company. One citation alleges that respondent violated the general duty clause of the Act, section 5(a)(1). n3 The other citation charges respondent with six violations of the Act for its alleged failure to comply with certain specific standards. In addition, complainant proposed that a penalty of $700 be assessed for respondent's alleged violation of section 5(a)(1) and that a total penalty of $220 be assessed for the six violations. Advance timely contested the citation alleging its violation of section 5(a)(1) and items 3, 4, and 6 n4 of the second citation as well as their corresponding proposed penalties.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 The section provides as follows:
Sec. 5(a) Each employer-
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
n4 Complainant alleges that respondent is in non-serious violation of the Act for its failure to comply with the standards at 29 CFR § 1910.23(c)(1) and (3) (items 3 & 4) as well as 29 CFR § 1910.212(a)(3)(ii) (item 6). The citation reads as follows:
Item 3: Storage platforms in the following locations, four feet or more above adjacent floors or ground level, were not guarded by standard railings and toeboards on the open sides.
(a) two platforms in the shipping and receiving departments
(b) one platform in the straightening, cutting and pre-fab department.
Item 4: The open-sided platform above and adjacent to the automatic welding machine in department "A" was not guarded by a standard railing and toeboard on the open side.
Item 6: The point of operation of twenty power presses in the following locations were not guarded to prevent the operators from having any part of their bodies in the danger zone during the operating cycles
a) five presses in the straightening, cutting and pre-fab department.
b) eight presses in department "C"
c) seven presses in department "B"
[*4]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
A hearing on the contested matters was held on September 5, 6, and 7, 1973, before Judge Harris. In his decision, n5 the Judge affirmed the citation alleging a violation of section 5(a)(1) of the Act as well as the allegations made with respect to items 3, 4, and 6 of complainant's second citation. As to the penalties, Judge Harris, after considering the statutory penalty factors, n6 assessed a $500 penalty for respondent's violation of the general duty clause and penalties of $50, $40 and $130 for the violations alleged in items 3, 4, and 6, respectively.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Judge Harris issued a consolidated decision wherein he also disposed of the matters at issue in Platers & Coaters, Inc., supra.
n6 Section 17(j) of the Act.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
On April 8, 1974, Chairman Moran directed review of this case on the sole issue of "[w]hether it was proper under the circumstances of this case to find the respondent in violation of [section 5(a)(1) of the Act]" [*5] (emphasis added). A careful examination of the entire record in this case leads us to conclude that the decision of the Judge should be affirmed for the reasons that he assigned. In addition, we specifically adopt his consideration and discussion of the statutory penalty factors in arriving at what we deem to be appropriate penalties.
A discussion of the relationship between the case and its companion case, Platers & Coaters, Inc., supra. (see 5 U.S.C. § 557 (Administrative Procedure Act)). n7 provides useful background to this decision. Presumably, the relationship prompted the use of the phrase "under the circumstances of this case" in the direction for review.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 Section 10(c) of the Act provides, in part, that "the Commission shall afford an opportunity for a hearing (in accordance with [the provisions of the Administrative Procedure Act]. . .)."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
At the outset, we noted that respondent, Advance Specialty, fabricates wire products for use in various finished items and that these wire products are [*6] plated by Platers and Coaters, Inc. Indeed, the great majority of the plating work done by Platers and Coaters comes from Advance Specialty. The two organizations share the same building, a common worksite, with no physical barriers separating the two operations. Advance Specialty and Platers and Coaters are owned by the same individual, Mr. Joseph D. Kevorkian. Mr. Kevorkian, who is the president of both companies, actively supervises their activities. It is not uncommon for employees of Advance Specialty to be "former employees" of Platers and Coaters, and vice versa. The management has placed no restriction on the movement of employees of either operation. Thus, the workers of both companies are free to travel into any area of the common worksite. In fact, certain of those employees who testified in the proceedings before Judge Harris referred to Platers and Coaters as "the plating department." The employees of both companies, in occupying this common worksite, were equally exposed or had access to the hazards presented by inadequate instructions to employees, poor management and control of potentially dangerous chemicals, various chemical fumes and, as was unfortunately [*7] the case, deadly gases. Indeed, the chemical fumes that required many an employee to go home early because of illness did not distinguish between the employees of the two companies. n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 In fact, it was an employee of Advance Specialty who, when asked about the frequently sickening effects of chemical fumes, replied, in part, as follows:
[T]he fumes were bothering us so bad that one of the girl's nose was bleeding and she was becoming very sick. Finally, I got ahold of Mr. Glass [vice president of Platers and Coaters] because I had gotten so sick I was laying on the bench and he had to send for me and I was explaining to him how this was something different because we always had trouble with fumes and I couldn't tell you one from the other, except how it makes you feel. It was burning of the throat and in the nose and cutting my breath.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
When the Secretary's compliance officer and industrial hygienist reported to respondent's plant in response to the reported accident, they found what would appear at first to [*8] be a single operation. Indeed, during his testimony, the industrial hygienist referred to Mr. Kevorkian as the president "of the whole Platers and Coaters." Later, after consulting his notes, the hygienist corrected this earlier characterization and referred to Mr. Kevorkian as "the president of both companies."
The compliance officer conducted what may best be described as a general safety inspection. His investigation resulted in the issuance of separate citations alleging a number of violations on the part of both companies. The nature of the violations was such as to permit the compliance officer to cite each company as a separate and individual entity.
The industrial hygienist had the more difficult task. He was charged with investigating the circumstances that led to the death of the two employees. The cause or hazardous situation he found is essentially comprised of three separate failures or inadequacies on the part of respondents. First, employees of both companies were permitted to work around a nickel stripping vat that was not properly ventilated. Speaking from his experience, the hygienist noted that he had never seen a metal-stripping operation conducted without [*9] the use of a "point of operation or local exhaust" system. Such systems provide the form of protection necessary to prevent hazardous gases or fumes from reaching the workers in the area. Second, employees were routinely recruited to mix the chemicals for the metal-stripping solution without first being given adequate instructions as to the nature of the chemicals to be used or the potential hazards involved. Respondents supplied no training with respect to the handling of dangerous chemicals, had posted no signs warning of the potential hazards and, while they had purchased a cyanide emergency kit, failed to make the kit's availability generally known or provide training in its use. Moreover, respondents' president testified that his foremen were never directed to instruct new employees about the potentially hazardous nature of the various chemicals used in the plant. Third, respondents failed to provide and maintain measures of control with respect to the chemicals used such that these dangerous substances were stored and handled in a haphazard and careless manner. Some of the chemical drums and cartons were labeled, others were not. Those chemical drums that were labeled [*10] were either not always legible due to spillage, not always placed so that their labels faced the worker, or, worst of all, mislabeled. The drums and cartons of chemicals were stored in a line along the plating vats in no particular order. The storage procedure resulted in the acid salts and sodium cyanide - a deadly combination - being placed in the same area.
After reviewing the situation, the industrial hygienist deemed it appropriate to cite the respondents for a violation of the "general duty" clause, section 5(a)(1) of the Act. n9 Realizing that employees of both companies were exposed to the same hazardous condition and that respondents were adamant in claiming their separate identities, he assumed a conservative stance and issued two citations, one to each company, wherein he essentially charged both organizations with the same section 5(a)(1) violation. Under these circumstances, we view his action in the nature of pleading in the alternative. n10
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 See note 3, supra.
n10 See Fed. R. Civ. P. 8(e)(2). The Federal Rules of Civil Procedure govern Commission proceedings. See section 12(g) of the Act and Rule 2(b) of the Commission's Rules of Procedure.
[*11]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The cases were consolidated for hearing before Judge Harris. In his consolidated opinion, the Judge affirmed the section 5(a)(1) violation as to Advance Specialty; vacated the section 5(a)(1) charge as to Platers and Coaters, citing the Commission decisions in Brisk Waterproofing Co., Inc., 3 OSAHRC 1132, BNA 1 O.S.H.C. 1263, CCH E.S.H.G. para. 16,345 (1973) and Sun Shipbuilding & Drydock Co., 4 OSAHRC 1020, BNA 1 O.S.H.C. 1381, CCH E.S.H.G. para. 16,725 (1973); and disposed of the violations as to each company.
While we believe the Judge erred in vacating the section 5(a)(1) charge as to Platers and Coaters, the error was harmless. n11 The Judge sought to keep the separate corporate identities of the organizations intact and, assuming this position, he correctly disposed of the section 5(a)(1) allegation as to Advance Specialty, which was, in effect, the same allegation as in Platers and Coaters. If the two companies had been treated as a single entity from the start of these proceedings, we would have reached essentially the same result. This would have been simpler, and therefore preferable. [*12]
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 Judge Harris found that the conditions giving rise to the section 5(a)(1) charge as to Platers and Coaters were adequately covered by the standards at 29 CFR § 1910.94(d) - Ventilation. Open surface tanks. Therefore, finding the cited Commission cases to stand for the rule that a violation of section 5(a)(1) will not lie where a specific standard is applicable to the cited condition, he vacated the citation. Briefly, we have three observations to make in regard to the Judge's decision. First, claiming that the ventilation standards cover the entire hazardous condition is to ignore completely the second and third specifications that were incorporated into the section 5(a)(1) allegation; that is, respondent's failure to instruct adequately employees and its failure to control adequately the chemical storage and handling. Second, in order to apply the ventilation standards at 29 CFR § 1910.94(d) one is referred back to Table G-1 of the standards at 29 CFR § 1910.93 - Air contaminants. This table contains permissible concentration levels for various substances. While hydrogen cyanide is listed, the table provides a permissible concentration level for skin contact only. Nothing is listed with respect to inhalation. Thus, while we need not decide the question here, it would seem that the lack of an acceptable concentration level would make inappropriate the application of the standards at 29 CFR § 1910.94(d). Third, even if the standards at 29 CFR § 1910.94(d) were to apply to the ventilation problem, and even if, as seems likely, respondent's failure to instruct properly is covered by the standard at 29 CFR § 1910.94(a)(9)(i) - Ventilation. Open surface tanks. Personal protection. Our examination of the lengthy and complete record in this case leads us to believe that an amendment of the pleadings to conform to the proof would be appropriate. See Fed. R. Civ. P. 15(b) applied pursuant to section 12(g) of the Act and Rule 2(b) of the Commission's Rules of Procedure; Godwin-Bevers Co., Inc., 14 OSAHRC 723, BNA 2 O.S.H.C. 1470, CCH E.S.H.G. para. 19,215 (1975) (dissenting opinion).
[*13]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It is well settled that corporate entities may be disregarded in order to effectuate a clear legislative purpose. Schenley Distillers Corp. v. United States, 326 U.S. 432 (1946); Bruhn's Freezer Meats of Chicago, Inc. v. United States Department of Agriculture, 438 F.2d 1332 (8th Cir. 1971); Joseph A. Kaplan & Sons, Inc. v. F.T.C., 347 F.2d 785 (D.C. Cir. 1965).
The National Labor Relations Board has consistently held that when two business entities have a combination of most or all of the following factors: a common worksite, a common president or management, a close interrelation and integration of operations, and a common labor policy, it will treat the two as one for the purposes of the National Labor Relations Act. n12 Bayside Enterprises, Inc., 216 N.L.R.B. No. 92, 88 L.R.R.M. 1478 (1975); Dee Knitting Mills, 214 N.L.R.B. No. 138, 88 L.R.R.M. 1273 (1974); R.L. Sweet Lumber Co., 207 N.L.R.B. No. 52, 85 L.R.R.M. 1073 (1973).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n12 29 U.S.C. § 151 et seq.
- - - - - - [*14] - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Furthermore, the Commission, in a similar situation found that three entities formed a single venture for purposes of the Act when they had adjacent, contemporaneous and integrated construction projects, shared both a common superintendent and common engineer, and routinely transferred employees between the projects. Home Supply Co., 7 OSAHRC 527, BNA 1 O.S.H.C. 1615, CCH E.S.H.G. para. 17,521 (1974).
We find, therefore, that when, as here, two companies share a common worksite such that the employees of both have access to the same hazardous conditions, have interrelated and integrated operations, and share a common president, management, supervision or ownership, the purposes of the Act are best effectuated by the two being treated as one. Thus, if Advance Specialty and Platers and Coaters had been treated in this manner, we would have held the resulting entity in violation of section 5(a)(1) of the Act or, where appropriate, certain specific standards. n13
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n13 See note 11, supra.
- - - - - - - - - - - - - - [*15] - - -End Footnotes- - - - - - - - - - - - - - - - -
Accordingly, it is ORDERED that the decision of Judge David H. Harris, affirming complainant's citation charging respondent with a violation of section 5(a)(1) and items 3, 4, and 6 of complainant's second citation as well as the assessment of certain appropriate penalties for these violations, be affirmed.
CONCURBY: BARNAKO
CONCUR:
BARNAKO, Chairman, concurring:
I agree with Commissioner Cleary's observations made in note 11 as to the lack of applicability of 29 C.F.R. 1910.94(d) and therefore concur for the reasons assigned by Judge Harris in affirming the citation for violation of 29 U.S.C. 654(a)(1) and the penalty assessment. Accordingly, I do not find it necessary to decide whether this respondent's business is so interrelated with Platers and Coaters as to make them a single business entity. It is enough that this respondent having knowledge of the conditions continued to expose its employees to the hazards presented. Brennan v. OSHRC (Vy Lactos Laboratories, Inc.,), 494 F.2d 460 (8th Cir. 1974).
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The only matter on which my colleagues agree in this case is that the respondent should be held in [*16] violation of 29 U.S.C. § 654(a)(1), the so-called general duty clause, because the Secretary of Labor did not mean what he said in prescribing the occupational safety and health regulation codified at 29 C.F.R. § 1910.94(d)(1)(i). n14 I submit that this is an improper reason for affirming the violation.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n14 Therefore, all of the remaining propositions of law in the lead opinion, including Commissioner Cleary's ideas about the applicability of, and requirements for, "piercing the corporate veil," as well as his thoughts about the requirements needed to permit an amendment of the pleadings, are not the Commission's positions. In other words, the lead opinion's use of the words "we" and "our" on these matters really means "I."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Messrs. Barnako and Cleary have found that the respondent violated the general duty clause because its employees were exposed to the hazard of an open surface tank that was not properly ventilated. They do so despite the fact that the Secretary has promulgated regulations governing open surface [*17] tanks which provide initially at 29 C.F.R. § 1910.94(d)(1)(i) that:
"This paragraph applies to all operations involving the immersion of materials in liquids, or in the vapors of such liquids, for the purpose of cleaning or altering the surface or adding to or imparting a finish thereto or changing the character of the materials, and their subsequent removal from the liquid or vapor, draining, and drying. These operations include washing, electroplating, anodizing, pickling, quenching, dying, dipping, tanning, dressing, bleaching, degreasing, alkaline cleaning, stripping, rinsing, digesting, and other similar operations." (Emphasis added.)
Apparently to insure that there would be no misunderstanding as to the applicability of these regulations, the Secretary reiterated this scope statement at 29 C.F.R. § 1910.94(d)(13)(i).
Consistent with their prior decisions where they have interpreted words to mean what they want them to mean, my colleagues now interpret the word "all" to mean "some." n15 Otherwise, they could not affirm a violation of the general duty clause without overruling a longstanding Commission precedent which holds that a violation of section 654(a)(1) cannot [*18] be affirmed where a specific standard is applicable to the condition for which an employer was cited. n16 They justify their action on the basis that Table G-1 in 29 C.F.R. § 1910.93 n17 "provided a permissible concentration level for skin contact only" with hydrogen cyanide and "[n]othing is listed with respect to inhalation." The fallacy of this justification is apparent on its face. If the Secretary intended to exempt the inhalation of hydrogen cyanide from his regulations on ventilating open surface tanks, he should be bound by that exemption and should not now be allowed to disavow that exemption by asserting that inadequate ventilation constitutes a violation of section 654(a)(1). If this were not the rule, an employer could not rely on any regulations promulgated by the Secretary. n18
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n16 Secretary v. W. B. Meredith, II, Inc., 10 OSAHRC 59, 71 (1974); Secretary v. Richmond Primoid, Inc., 4 OSAHRC 1182, 1186 (1973); Secretary v. Sun Shipbuilding and Drydock Company, 4 OSAHRC 1020, 1021 (1973); Secretary v. Brisk Waterproofing Company, Inc., 3 OSAHRC 1132, 1134-1135 (1973).
n17 Now codified at 29 C.F.R. § 1910.1000. 40 Fed. Reg. 23072 (1975).
n18 In this connection I note the logic contained in the Eighth Circuit's decision in the case of Brennan v. OSAHRC, 513 F.2d 713 (8th Cir., 1975):
". . . we decline to accept the Secretary's interpretation for reasons of due process. Where, as here, the interpretation derives little support from the language on the regulation, it would be fundamentally unfair to impose upon an employer civil penalties for its violation. To do so would subject him to liability without adequate warning that his conduct is prohibited . . . . If the Secretary desires by this regulation to achieve certain goals which he deems consistent with the Occupational Safety and Health Act but which the wording of the regulation . . . will not justify, he should amend or clarify it."
[*19]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Judge Harris correctly applied the aforementioned Commission precedent in vacating the alleged violation of section 654(a)(1) by Platers and Coaters. However, for reasons not explained in his decision, he disregarded that precedent in the instant case. I conclude that there is no sound reason for distinguishing the cases.
The citation issued to Platers and Coaters alleged a violation of section 654(a)(1) on the ground that the tank was "not properly ventilated to remove hazardous gaseous evolution." The citation in the instant case based the section 654(a)(1) violation on grounds that Advance Specialty "permitted its employees to work in close proximity to" the tank "with knowledge that [it was] improperly ventilated to remove hazardous, gaseous evolutions." Apparently, the Judge distinguished the cases because the former citation charged a failure to properly ventilate the tank whereas the latter citation charged an exposure of Advance Specialty's employees to the improperly ventilated tank. If so, he erred. Despite the slight difference of wording in the two citations, the substance of the two [*20] violations is the same. There is not one particle of difference between them. Accordingly, the Judge's ruling in Platers and Coaters is also applicable to Advance Specialty.
Regarding the implication in footnote 11 of the lead opinion that a violation of section 654(a)(1) could be based on charges which the complainant attempted to add to the citation by a motion to amend which alleged that the respondent failed to adequately instruct its employees on the hazards associated with cyanide salts and failed to properly control chemical storage and handling, the Judge did not address these charges and held that the "[t]he charge [was], in effect, that an open-surface tank . . . [was] not properly ventilated." Since Chairman Barnako agrees with Judge Harris' reasons for affirmance, the Commission has not affirmed the violation [*21] on the basis of the charges that the complainant attempted to add by amendment, and properly so. n19
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n19 The Act specifically requires that each citation "shall describe with particularity the nature of the [alleged] violation." 29 U.S.C. § 658(a). Allowance of an amendment which adds a violation not included within the original citation is contrary to this provision. A citation is a unique document which is peculiar to this Act because it has purposes other than to simply initiate a legal proceeding. I discussed this in more detail in Secretary v. Everhart Steel Construction Co., 16 OSAHRC 696, 699-700 (1975).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In view of the numerous references to Judge Harris' decision in the three opinions in this case, the same is attached hereto as Appendix A.
APPENDIX A
DECISION AND ORDER
William J. Kilberg, Solicitor of Labor, Louis Weiner, Regional Solicitor and Michael D. Shapiro, for Complainant
Fred B. Creamer and William L. West, for Platers and Coaters, Inc. and Advance Specialty Company, for Respondents [*22]
Francis P. Grimes, Staff Representative, Safety and Health Department, United Steelworkers of America, For Local 4993
Harris, Judge OSHRC
These matters were consolidated for trial on March 27, 1973 and were tried before me, pursuant to 29 U.S.C. 651(c) n1, in Philadelphia, Pennsylvania on September 5, 6 and 7, 1973.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Section 10(c) of the Occupational Safety and Health Act of 1970 (hereinafter the Act).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The citations, issued by the Secretary under authority of section 9(a) of the Act (29 U.S.C. 658(a)) and the Notices of Proposed Penalty, authorized by section 10(a) (29 U.S.C. 659(a)), are dated February 5, 1973, and were issued to both respondents following an inspection of their premises made of officials of the Occupational Safety and Health Administration, United States Department of Labor (hereafter OSHA), on December 27, 1972 (Tr. 251; 290).
Platers & Coaters, Inc. (Platers) and Advance Specialties Company (Advance) were each served with two citations. One, charges a serious violation of section 5(a)(1) [*23] of the Act (29 U.S.C. 654(a)(1)), referred to as the "duty clause." In Platers' case it is alleged that:
The employer did not furnish to each of his employees employment and a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees in that: the nickel stripping open-surface tank and the continuous plating line open-surface dip tanks, containing cyanide salts, were not properly ventilated to remove hazardous gaseous evolution under normal operating conditions and/or resulting from conditions where an acid may be added to the cyanide salt.
The second citation in Plater's case, alleges seven violations of specific standards, none of which are charged to be serious violations as are defined in 29 U.S.C. 666(k)(Sec. 17(k) of the Act).
Platers filed a timely Notice of Contest wherein it contested the serious violation and items 3, 4, 5, 6 and 7 alleged in the citation charging non-serious violations of specific standards.
In Platers' case the complainant has the burden of establishing that Platers was in violation of Section 5(a)(1) of the Act as alleged, supra, and that it was in violation [*24] of the following standards. 29 CFR 1910.23(c)(3), which provides:
Regardless of height, open-sided floors, walkways, platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard railing and toe board. (37 FR 22109, Oct. 18, 1972)
in that:
The three (3) open-sided runways above and adjacent to the dip tanks in the plating and coating department were not guarded by standard railings and toeboards. (Item 3);
29 CFR 1910.24(h), which provides:
Standard railings shall be provided on the open sides of all exposed stairways and stair platforms. Handrails shall be provided on at least one side of closed stairways, preferably on the right side descending. Stair railings and handrails shall be installed in accordance with the provisions of § 1910.23. (37 FR 22110, October 18, 1972)
in that:
The five (5) open-sided stairways leading to the above mentioned runways were not provided with standard stair railings on the open sides. (Item 4);
29 CFR 252(9)(2)(iv)(c), which provides:
Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially [*25] oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least one-half hour. (37 FR 22299, Oct. 18, 1972)
in that:
One acetylene cylinder and four oxygen cylinders, in storage in the maintenance area, were not separated by a minimum distance of 20 feet or by a noncombustible barrier. (Item 5);
29 CFR (d)(9)(vii), which provides:
Near each tank containing a liquid which may burn, irritate, or otherwise be harmful to the skin if splashed upon the worker's body, there shall be a supply of clean cold water. The water pipe (carrying a pressure not exceeding 25 pounds) shall be provided with a quick opening valve and at least 48 inches of hose not smaller than three-fourths inch, so that no time may be lost in washing off liquids from the skin or clothing. Alternatively, deluge showers and eye flushes shall be provided in cases where harmful chemicals may be splashed on parts of the body.
in that:
A supply of clean fresh water supplied by a 3/4 inch minimum diameter hose, at least 48 inches in length, with a quick opening valve or alternatively deluge showers and eye flushes were not provided near [*26] the open surface tanks in the plating areas and stripping section. (Item 6);
29 CFR 1910.134(a)(2), which provides:
Respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee. The employer shall provide the respirators which are applicable and suitable for the purpose intended. The employer shall be responsible for the establishment and maintenance of a respiratory protective program which shall include the requirements outlined in paragraph (b) of this section. (Item 7)
in that:
Respirators, applicable and suitable for hydrogen cyanide and other possible hazardous gases, were not provided to protect the health of the employees.
As to Advance, the first citation alleges a violation of the general duty clause, supra, in the following language:
The employer did not furnish to each of his employees employment and a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees in that: The employer permitted its employees to work in close proximity to a nickel stripping open surface tank and to continuous plating line open-surface dip [*27] tanks, owned and/or controlled by Platers and Coaters Company, Incorporated, with the knowledge that the said tanks were improperly ventilated to remove hazardous, gaseous evolutions under normal operating conditions, and/or resulting in conditions where an acid may be added to the cyanide salts contained therein.
The second citation directed to it, charges Advance with six violations of specific standards, which as in Plater's case, are not alleged to be serious violations of the Act. Advance, by timely Notice of Contest, took issue with the citation charging violation of the general duty clause and with Items 3, 4 and 6 in the said second citation.
Thus, in the case of Advance, complainant has the burden of establishing the charged violation of the general duty clause, supra, and of violation of the following standards.
29 CFR 23(c)(1), which provides:
Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard [*28] wherever, beneath the open sides.
(i) Persons can pass,
(ii) There is moving machinery, or
(iii) There is equipment with which falling materials could create a hazard. (37 FR 22109, Oct. 18, 1972)
in that:
Storage platforms in the following locations, four feet or more above adjacent floors or ground level, were not guarded by standard railings and toeboards on the open sides.
a) two platforms in the shipping and receiving departments
b) one platform in the straightening, cutting and pre-fab department. (Item 3);
29 CFR 1910.23(c)(3), supra, in that:
The open-sided platform above and adjacent to the automatic welding machine in department "A" was not guarded by a standard railing and toeboard on the open side. (Item 4);
29 CFR 1910.212(a)(3)(ii), which provides:
Special handtools for placing and removing material shall be such as to permit easy handling of material without the operator placing a hand in the danger zone. Such tools shall not be in lieu of other guarding required by this section, but can only be used to supplement protection provided. (37 FR 22273, Oct. 18, 1972)
in that:
The point of operation of twenty power presses in the following locations were [*29] not guarded to prevent the operators from having any part of their bodies in the danger zone during the operating cycles.
a) five presses in the straightening, cutting and pre-fab department.
b) eight presses in department "C".
c) seven presses in department "B" (Item 6).
In addition, the reasonableness of the penalties proposed in the Notice of Proposed Penalty served on each said respondent as well as the abatement period required in each citation for each contested item, must be established by complainant by substantial evidence on the record, considered as a whole (29 U.S.C. 660(a)). These are as follows: As against Platers, $650.00 for violation of the general duty clause, abatement to be immediate; $120.00 for violation of Item 3 of the second citation, abatement by February 21, 1973; $55.00 for violation of Item 4, abatement by February 21, 1973; $35.00 for violation of Item 5, abatement to be immediate; $55.00 for violation of Item 6, abatement by March 5, 1973 and $65.00 for violation of Item 7, abatement by February 21, 1973. Against Advance, $700.00 for violation of the general duty clause, abatement to be immediate; $50.00 for violation of Item 3 of the second citation, [*30] abatement by March 4, 1973; $40.00 for violation of Item 4, abatement by March 4, 1973; $130.00 for violation of Item 6, abatement by March 4, 1973.
The complaints filed against Platers and Advance on March 13, 1973, allege, among other things, that each respondent "permitted its employees to work in close proximity to a nickel stripping open surface tank and to continuous plating line open-surface dip tanks, with knowledge that these tanks were improperly ventilated to remove hazardous, gaseous emissions under conditions where Respondent could reasonably have been expected to have known that an acid might be added to the cyanide salts contained in the tanks." (para. VII). On May 30, 1973, pursuant to a motion served on April 11, 1973 and filed on April 16, 1973, paragraph VII of each said complaint was amended by adding the following language: "At the same time and place, respondent further violated 5(a)(1) by failing to maintain proper and adequate ventilation around the above described tanks, by failing to instruct its employees in the hazards associated with the cyanide salts contained in the tanks, and by failing to provide, maintain, and utilize control measures and equipment [*31] to reduce or eliminate the aforesaid hazards." No objection to said motion was interposed (letter dated May 23, 1973), and on June 7, 1973 respondents answered the said complaint as amended hereinabove.
It was stipulated that both Platers and Advance are incorporated under the laws of the State of Pennsylvania and both are domiciled in Lansdowne, Pennsylvania; that Plater's corporate style is Platers and Coaters, Inc.; that Advance's style is Advance Specialty Company (Tr. 9-10); that the stripping tank which is involved in the controversy herein, is owned by Platers while the presses referred to hereinafter, are the property of Advance (Tr. 12-13); that neither Platers nor Advance have a previous history of violations; that Advance employs approximately 150 persons per day; that Platers employs approximately 30 to 35 persons per day (Tr. 14-18) and that the citations herein were duly posted as required by regulation (Tr. 15).
It was also stipulated that Platers was organized in 1953, Advance in 1932 and that all of the capital stock of each is owned by Joseph D. Kevorkian, who is the president of both corporations (Tr. 21).
Advance is in the business of fabricating parts, about [*32] 200 different items, which become integral parts of products manufactured and assembled by others. Advance sales in 1972 were in excess of $2 million and it is not disputed that the company was and is engaged in interstate commerce (Tr. 11; 17-18).
Platers, however, contends that it is not "engaged in a business affecting commerce" within the meaning of section 3(5) of the Act (29 U.S.C. 652(5)). This contention is of no merit. Platers' sales, which consist entirely of plating parts supplied and owned by others, (§ 423,540 in 1972, Tr. 13) are in the main generated by work done for Advance. It has few customers other than Advance. For example, in 1970 there were 5 while in 1971 and 1972 it served 3.
Where the underlying statute, as here, does not require an employer to be engaged in commerce but includes employers engaged in a business affecting commerce, the power to regulate "-- extends to those activities intrastate which so affect interstate commerce -- as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce." U.S. v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942). [*33] It was the expressed purpose of the Congress that the Act "assure so far as possible every working man and woman in the Nation safe and healthful working conditions" (29 U.S.C. 651(b)) and for this purpose to exercise the full measure of its constitutional power under the commerce clause. Where as here, though the activity of Platers be strictly local in character, it may still, whatever its nature, be reached by Congress if it exerts an economic effect on interstate commerce by means of its dealings with Advance. This is so where the effects impinge at the production level before commencement of the interstate movement of a finished product and the issue of where interstate commerce begins or ends is of no consequence if there is an effect on interstate commerce.
Platers and Advance occupy the same premises. Advance's workplace, wherein it fabricates its parts, is separated only by an aisle from the workplace wherein Platers plates and treats parts supplied to it by Advance and others. The employees of both respondents move freely between the two areas (Tr. 44). Employees of Advance carried work across the aisle to Platers after which the work was carried to the shipping department which was on the Platers side of the plant (Tr. 74-75). Platers operation consisted of a series of plating tanks and an automated system which carried the parts from tank to tank (Tr. 443). The said plating tanks were ventilated by a series of fans and Venturi type ventilators, some of which extended upward through the ceiling of the plant. In October of 1972, as the result of employee complaints, a fume exhauster was installed over the hydrochloric acid tank (Tr. 448). About 15 [*35] feet from the plating vat area, Platers maintained a nickel stripping tank (Tr. 460). This tank, used to remove burnt nickel from plated parts, contained sodium cyanide (Tr. 473). Cartons containing chemicals for use in the plating vats were stored in a row along the plating line for some 20 years (Tr. 452; 441). These containers contained sodium cyanide, caustic soda, oxydine salts, muriatic acid and acid salts (Tr. 138-141; 212-214; 231). The acid salt drums were in the same line with the others and new drums would not always be placed in the same spot occupied by the empty carton (Tr. 215). The sodium cyanide, which had formerly been stored in an outside area, had, since June, 1972, been placed in the line along the vats with the other chemicals (Tr. 213). The number of drums in the line varied from time to time; the labels did not always face to the front; sometimes the label became difficult to read because of soaking and on occasion the contents of a carton would be transferred for the same reason to another carton which bore no label (Tr. 211-212). The mix maintained in the nickel-stripping vat contained sodium cyanide and oxydine salts (Tr. 208-209). This tank, which [*36] is used periodically, is emptied by syphoning and the residue drained off by a plug in the bottom. It must then be rinsed to clear any remaining residue (Tr. 209-210). The liquor used in this tank normally gives off no vapors (Tr. 209).
The mixing of solutions for these vats during the work week is done for the most part by Plater's chemist, a high school graduate, who holds a certificate of attendance at a course in electroplating chemistry at Temple University (Tr. 205-206). Mixing is also done on Saturdays by laborers in the plant under the supervision of a foreman who has been with Platers for 20 years but who has no formal background in chemistry or by another long-time employee with no educational background in chemistry (Tr. 206-208). The laborers, who do the actual mixing, are not instructed in the nature of the chemical they are handling, the chemicals are not identified by name to them nor are they warned as to the dangerous nature of sodium cyanide when mixed with an acid salt (Tr. 219-221; 230). On occasion, the solution for the nickle-stripping vat was prepared by other employees of Platers including the foreman on the second shift, who, as the others, had no education [*37] in chemistry. (Tr. 228-230). Platers added no labels or signs to the manufacturers' labels as they appeared on the chemical containers nor did it post warning signs or notices to its employees (Tr. 231-232). It was the chemist's custom to write out slips of instructions for use during the Saturday additions to the vat solution. These instructions were carried out by the laborers under the supervision of the senior employee. These instructions indicated how much of each chemical was to be taken from which drum and added to which vat (Tr. 235). No safety training was given by Platers nor did it conduct safety meetings for the instruction of its employees (Tr. 9; 118; 131). On December 26, 1972 the oxydine salts were in an unlabeled drum other than the original container (Tr. 211; 233).
There is evidence that the officers of both respondents were aware that employees had complained of inadequate ventilation and that some had been affected by fumes from the plating vats and required to leave work (Tr. 63; 76; 187-188).
During the morning of December 26, 1972 Platers' chemists issued instructions to an employee, who had been working for Platers for about two weeks (Tr. 100), to [*38] empty the nickle-stripping tank, to clean it and to call the chemist and to add two buckets of oxydine salts and two buckets of sodium cyanide and to mix the same. The chemist pointed out the unlabeled cartons which held the oxydine slats (Tr. 211). The chemist then went to lunch. Upon his return, he saw the said employee lying near the nickle-stripping vat and an employee of Advance lying near the lacquer tank, a short distance away (Tr. 223). The chemist looked into the nickle-stripping tank and recalled that the solution was bubbling where upon he lost consciousness and was hospitalized for four days (Tr. 224). The local fire department was summoned and set up fans to ventilate the premises. A reading taken at approximately 6 p.m. showed a concentration of 1 to 2 ttm. (parts per million) near the nickle-stripping tank (Tr. 148-149). It is undisputed that hydrogen cyanide gas had evolved from the nickle-stripping tank as the result of acid salt being introduced and mixed with sodium cyanide (Tr. 145-146). Both employees, that of Platers who received the instructions from the chemist, and the employee of Advance seen lying near the lacquer tank on Plater's side of the plant, [*39] were killed by hydrogen cyanide gas (Tr. 22). It is maintained by respondents, and no evidence appears to the contrary, that Plater's method of supervising the recharging of its plating vacs and the nickel-stripping tank and of storing the chemicals used therein, has been in use for a long period of time and that no one has been overcome by fumes prior to December 26, 1972 (Tr. 244; 452).
Dealing first with the citation issued to Platers wherein it is charged with a serious violation of section 5(a)(1) of the Act, supra. The citation and the complaint filed herein are both demurrable on their face. The charge is, in effect, that an open-surface tank and the continuous line of open-surface dip tanks were not properly ventilated to remove hazardous gaseous evolution. The ventilation of open surface tanks, such as those in use by Platers at the time of the inspection herein, is expressly covered and provided for by specific standards commencing at 29 CFR 1910.94(d)(1) and including 29 CFR 1910.94(d)(13)(i). These standards were promulgated on October 18, 1972, appear in 37 FR 22154-22157 and were in full force and effect on the date of the charged violation. 29 CFR 1910.94(d)(1)(i) [*40] provides:
This paragraph applies to all operations involving the immersion of materials in liquids, or in the vapors of such liquids, for the purpose of cleaning or altering the surface or adding to or imparting a finish thereto or changing the character of the materials, and their subsequent removal from the liquid or vapor, draining, and drying. These operations include washing, electroplating, anodizing, pickling, quenching, dying, dipping, tanning, dressing, bleaching, degreasing, alkaline cleaning, stripping, rinsing, digesting, and other similar operations.
29 CFR 1910.94(d)(13)(i) provides:
This paragraph (d) applies to all operations involving the immersion of materials in liquids, or in the vapors of such liquids, for the purpose of cleaning or altering their surfaces, or adding or imparting a finish thereto, or changing the character of the materials, and their subsequent removal from the liquids or vapors, draining, and drying. Such operations include washing, electroplating, anodizing, pickling, quenching, dyeing, dipping, tanning, dressing, bleaching, degreasing, alkaline cleaning, stripping, rinsing, digesting, and other similar operations, but do not include molten [*41] materials handling operations, or surface coating operations.
That these standards apply to Platers operations appears to be beyond question. Indeed in the citation issued to it alleging non-serious violation of specific standards (Exh. C-8) it is charged with a violation of the standard at 29 CFR 1910.94(d)(9)(vii) which governs the availability of a supply of fresh water (Item 6).
The said standards specifically provide methods of determining the hazard potential and rate of gas, vapor or mist evolution associated with the substance contained in the tank and fixes and prescribes appropriate control requirements to reduce the concentration of the air contaminant to the degree that a hazard to the worker does not exist.
- - - [*42] - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Occupational Safety and Health Review Commission.
n3 It should be noted that in Brisk the Commission entertained and acted favorably upon a motion to amend the citation and complaint to conform to the evidence urged by the complainant after the case was called for review. Cf.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As to the second citation issued to Platers (Exh. C-8), the evidence established that three catwalk runways above the dip tanks and a center walkway had neither railings or toeboards as is required by the standard at 29 CFR 1910.23(c)(2), supra (Tr. 294-295; 325; Item 3), and that five exposed stairways leading to walkways between the dip tanks were not provided with inside and outside rails as the standard at 29 CFR 1910.24(h) requires (Tr. 295-296; Item 4). No proof was offered that the cylinders chained together to a wall (Tr. 297) were in fact oxygen cylinders which were not separated, as the standard at 29 CFR 1910.252(a)(2)(i)(b) requires, from fuel-gas cylinders or combustible [*43] materials, and I find that this allegation has not been established (Item 5).
No evidence appears to have been offered to sustain the allegation of violation of the standard at 29 CFR 1910.94(d)(a)(vii) which requires a supply of clear cold water and I must perforce find that this allegation has not been proved. (Item 6).
Finally, as to Item 7, Platers is charged with a violation of the standard at 29 CFR 1910.134(a)(2). This standard is of general application. 29 CFR 1910.5(c) requires that the allegation against Platers should have been brought under the standard at 29 CFR 1910.94(d)(9)(vi), one of the standards particularly applicable to open surface tank operation.
The latter standard provides:
When during emergencies as described in subparagraph (11)(v) of this paragraph, workers must be in areas where concentrations of air contaminants are greater than the limit set by subparagraph (2)(ii) of this paragraph, or oxygen concentrations are less than 19.5 percent, they shall be required to wear respirators adequate [*44] to reduce their exposure to a level below these limits, or to provide adequate oxygen. Such respirators shall also be provided in marked, quickly accessible storage compartments built for the purpose, when there exists the possibility of accidental release of hazardous concentrations of air contaminants. Respirators shall be approved by the U.S. Bureau of Mines, U.S. Department of the Interior and shall be selected by a competent industrial hygienist or other technically qualified source. Respirators shall be used in accordance with § 1910.134, and persons who may require them shall be trained in their use. (37 FR 22156)
While the standard at 29 CFR 1910.94(d)(9)(vi), quoted above, speaks to respirators suitable for use in emergencies, I find that it is sufficiently analogous in terms to the standard at 29 CFR 1910.134(a)(2)) to have put Platers on notice that it was charged with not having provided respirators. The evidence adduced on this subject matter by the complainant and on the respondent's case (Cf. A & N Club v. Great America Ins. Co., 404 F. 2d 100, 6 Cir. 1968) established that no respirators of any kind were supplied by Platers in December of 1972 (Tr. 126; 459). [*45] I find therefore that Platers was in violation of the standard at 29 CFR 1910.94(d)(9)(vi) and that the citation should be amended to allege the applicable standard, National Realty and Construction Company, Inc. v. Sec. of Labor, et al., D.C. Cir., December 13, 1973, footnote 28.
Turning now to the evidence as it affects Advance. It is charged with not having furnished its employees with a place of employment which was free from recognized hazards that were causing or likely to cause death or serious physical harm to its employees in that it permitted its employees to work in close proximity to a nickel stripping open surface tank and to continuous plating line open-surface dip tanks, "owned and/or controlled by Platers and Coaters Company, Incorporated" with the knowledge that the said tanks were improperly ventilated to remove hazardous, gaseous evolutions under normal operating conditions, "and/or resulting in conditions where an acid may be added to the cyanide salts contained therein.", supra. While I do not find any evidence that hazardous gaseous evolutions could have evolved from any of the line of plating tanks, the evidence is undisputed that an acid salt added [*46] to the sodium cyanide liquor in the metal stripping tank produces hydrogen cyanide gas and the parties have stipulated that this gas is lethal to humans as follows: in a concentration of 2/0 ppm it is immediately fatal; a concentration of 101 ppm kills in 10 minutes; 135 ppm kills in 30 minutes and 110 ppm kills in 60 minutes (Tr. 248-249).
It is likewise undisputed that this tank was not provided with a point of operation exhaust system to remove any fumes or vapors which might have evolved in the tank. Instead, it was provided with a ceiling fan and a fan on an upright standard designed to circulate the air and thus disperse any such fumes or vapors.
Hydrogen cyanide gas, which may be instantly fatal, has but a slight bitter almond odor and evolves so rapidly that respirators would not be effective because they could not be donned quickly enough (Tr. 331-332). It is necessary that an apparatus be designed to remove the lethal gas in the event it is accidentally evolved (Tr. 330). There is testimony that parts, moving on a conveyor system after being dipped in the sodium cyanide solution in the stripping tank, may react with carbon dioxide in the atmosphere to form minute quantities [*47] of hydrogen cyanide which should be given consideration (Tr. 285).
There is credible evidence, offered by the complainant, that the acceptable solution for the control of this type of hazard is to install a point of operation exhaust system with slat-type or rear-type exhausts, to completely remove fumes, vapors or gases which are emanated (Tr. 267; 269-270; 330-331). n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 The overhead fan and the fan on a standard, provided as ventilation for the stripping tank, would have circulated any evolving gas and possibly expose even those not in the immediate vicinity (Tr. 271).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
There has been considerable testimony designed to establish the seemingly careless and unscientific methods employed by Platers in caring for, storing and using the chemicals it employed in its plating and stripping operations, particularly in the use of sodium cyanide salts and acid salts. As we have seen, these two chemicals in combination form the deadly hydrogen cyanide gas. The respondents point to the fact that the methods employed by Platers [*48] have not caused a single accident resulting in serious injury or where a person has been overcome, in about 24 years, and that the fatal occurrence of December 26, 1972 was the result of an act by an employee which was entirely unauthorized and could not have been anticipated by management. Unlike the National Realty case, supra, we are not here dealing with a hazard consisting of conduct by employees. Here, we are dealing with a hazard resulting from the possible evolution of a lethal gas for which, demonstrably feasible measures which would have prevented the hazard were not made available. This is so whether the gas was caused to evolve by accident or where it resulted from a willfully reckless, or a demented or even a suicidal act by an employee. Final responsibility for compliance with the requirements of the Act remains with the employer "qualified by the simple requirement that it be achievable and not be a mere vehicle for strict liability", National Realty, supra, fn. 36.
The safety precaution which would have eliminated the hazard in this case, i.e. the slat-type or rear-type point of operation exhaust system, is not novel in the industry (cf. National Realty, [*49] supra, fn. 37), and is recognized by safety experts as feasible (Tr. 156; 267; 330-331; see also, 29 CFR 1910.94(d)(1)-(d)(13)).
I find that Kevorkian, president and chief executive officer of both Platers and Advance since at least 1953, is chargeable with knowledge of conditions existing in the workplace shared by the employees of these corporations and that such knowledge is imputable to Advance as well as Platers. I find that, on this basis, both Platers and Advance knew of the existence of the hazard herein and its potential for harm and that the said hazard was a "recognized hazard" within the purview of section 5(a)(1) of the Act.
I find that Advance, with knowledge of the existence of the recognized hazard, aforesaid, required its employees to perform their duties in close proximity to said hazard and did thereby fail to furnish its said employees a place of employment which was free from said recognized hazard in violation of section 5(a)(1) of the Act (29 CFR 654(a)(1)).
Advance is also charged with the violation of specific standards, to wit, Items 3, 4 and 6 in the second citation served upon it, supra (Exh. C-9). As to Item 3, alleging a violation of the standard [*50] at 29 CFR 23(c)(1), supra, there is little dispute that no railings were provided for platforms in the shipping area and in the pre-fabrication area which were from 15 to 25 feet in height upon which materials were stored (Tr. 301; 317-318; 325). As to Item 4, alleging a violation of the standard at 29 CFR 1910.23(c)(3), supra, the evidence established that a standard railing was not provided for the walk-way over the welding machine (Tr. 302; 307-8; 311-314; 326-372). As to Item 6, alleging violation of the standard at 29 CFR 1910.212(a)(3)(ii), I am satisfied that a number of the presses alleged in the citation were not in fact provided with point of operation guarding devices as is required by the said standard (Tr. 303; 321; 323-324; 408).
Both Platers and Advance are relatively small in size (Tr. 13-14), have no previous history, on this record, of violation of the Act and have each evidenced good faith in complying with the abatement requirements of the respective citations which allege specific standard violations (Tr. 386). Although I find, for reasons expressed hereinabove, that the citation alleging that Platers was in violation of the general duty clause of the Act, [*51] must be vacated, I am cognizant of the fact that this company, promptly and at considerable expense, discontinued the use of sodium cyanide in the operation of the metal-stripping tank and substituted therefore an alkaline zinc plating bath (Tr. 386-383).
In considering the penalty to be assessed against Advance for its violation of the general duty clause, supra, I take into account the fact that inspections conducted by officials of the Pennsylvania State Department of Labor and Industry on five or six occasions between April and December, 1972 (Tr. 90-95) and by officials of the Pennsylvania State Department of Environmental Resources (Tr. 166), which resulted merely in requiring that Platers supply a "cyanide kit" (Tr. 373), may have had an effect upon any determination by company officials to provide against the hazard of evolution of hydrogen cyanide gas. Sight must not be lost however of the mortal danger to which a substantial number of Advance's 150 daily employees (Tr. 14) were subjected under the circumstances described hereinabove. That the said offense alleged has a potential for serious injury or death is indicated on the record "and, of course, by common sense", [*52] National Realty, supra, fn. 33.
How, therefore, good cause appearing, it is
ORDERED that:
1. The citation herein alleging that Platers did violate section 5(a)(1) of the Act be and the same is hereby vacated;
2. Platers be and it is hereby adjudged to have violated the standard at 29 CFR 1910.23(c)(3)(Item 3) and the standard at 29 CFR 1910.24(h)(Item 4), as alleged in the citation issued to it herein and that said Platers is assessed and required to pay penalties in the sum of $120.00, and $55.00, respectively, therefore;
3. So much of the citation issued to Platers herein as charges violation of the standard at 29 CFR 252(a)(2)(iv)(c), (Item 5) and the standard at 29 CFR 1910.94(d)(9)(vii), (Item 6), be and they are hereby vacated;
4. The citation issued to Platers and so much of the complaint herein as alleges violation of the standard at 29 CFR 1910.134(a)(2), (Item 7), be and they are hereby amended to delete reference to 29 CFR 1910.134(a)(2) and substitute therefore the standard at 29 CFR 1910.94(d)(9)(vi);
5. Platers be and it is hereby adjudged to have violated the standard at 29 CFR 1910.94(d)(9)(vi) as alleged in the citation and complaint herein, as amended [*53] hereinabove, and said Platers is assessed and required to pay a penalty in the sum of $65.00 therefore;
6. Advance be and it is hereby adjudged to have violated section 5(a)(1) of the Act as is alleged in the citation and complaint served upon it herein, and Advance be and it is hereby assessed and required to pay a penalty therefore in the sum of $500.00; and
7. Advance be and it is hereby adjudged to have violated the standards at 29 CFR 1910.23(c)(1), (Item 3), 29 CFR 1910.23(c)(3), (Item 4) and 29 CFR 1910.212(a)(3)(ii), (Item 6) as alleged in the citation issued to it herein and Advance be and it is hereby assessed and required to pay penalties thereon, respectively, in the sums of $50.00; $40.00, and $130.00.
DAVID H. HARRIS, Judge, OSHRC
Dated: MAR 8 1974
Washington, D.C.