Docket No. 2613

BADGER ALUMINUM EXTRUSION CORPORATION

OSHRC Docket No. 2613

Occupational Safety and Health Review Commission

January 27, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On August 22, 1973, Judge Ben D. Worcester issued a decision in this case affirming the Secretary of Labor's citation for a non-serious violation of section 5(a)(2) of the Act for respondent's failure to comply with 29 CFR § 1910.23(c)(3), but vacating the penalty proposed by the Secretary of $275. In so ruling, the Judge was obviously impressed by the prompt abatement of the hazard by the employer n1 and his overall good faith. He stated that "the violation was de minimis."

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n1 On March 6, 1972, approximately one week after the issuance of the citation, respondent wrote to the area Director: "We have eliminated the walkways on the acid and caustic tanks referred to in this citation. Furthermore, we have changed our work methods in the anodizing operation thereby eliminating the need for anyone to get up on the tanks."

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Review was directed pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 [*2] U.S.C. § 651 et seq., hereinafter "the Act") on the following issues: (1) Whether the finding of a de minimis violation was consistent with the Judge's affirmation of the citation and (2) whether the Judge properly vacated the Secretary's proposed penalty.

The standard appearing at 29 CFR § 1910.23(c)(3) reads as follows:

(3) 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.

During an inspection of respondent's workplace conducted by the Secretary on February 22, 1973, an employee was observed working on a platform above a tank containing a 15 percent sulfuric acid solution. The platform had no railing or protection of any kind, thus creating the hazard of a worker falling into the tank. The tank was approximately 36 feet long, four feet wide, and six feet deep. At the time of the inspection, the depth of the acid was about five feet.

The Judge took official notice of the possible harmful effects upon and employee of any exposure to the acid solution.

The Judge's reference [*3] to the violation as "de minimis" appeared in his discussion of the considerations for arriving at an appropriate penalty assessment. This makes it evident that he was using de minimis in the sense of "trifling" and not as a word of art. This conclusion is supported by his order in which he affirms the citation which alleges a non-serious violation of the Act.

We, therefore, do not believe that the Judge "found" a de minimis violation within the meaning of section 9(a). In affirming the citation but vacating the penalty, it is apparent that the Judge "found" respondent in non-serious violation of the Act for failure to comply with the standard at 29 CFR § 1910.23(c)(3) and found the violation to be of very low gravity.

Although the Judge speaks of a de minimis violation, the context of the decision suggests an essential concern with the application of the "good faith" factor under section 17(j) of the Act. In so doing, the Judge assigns very heavy, although not exclusive, weight to the prompt abatement of the hazard by the employer.

We are reluctant in this case to place such weight on this factor. Giving excessive weight to prompt or otherwise timely abatement in applying [*4] the "good faith" factor to penalty assessment would materially diminish the incentive for voluntary compliance. Moreover, we assign greater weight to the gravity of the violation than did the Judge.

In addition to respondent's good faith and the moderate gravity of the instant violation, section 17(j) of the Act requires consideration of respondent's past history and size. It has been stipulated between the parties that respondent has had no previous violations and that at the time of inspection employed approximately 65 people. The Secretary has proposed a penalty of $275. In light of the factors of section 17(j) considered above, we accept the Secretary's advice as to penalty assessment. Cf. Secretary of Labor v. O.S.H.R.C. & Interstate Glass Co., 487 F.2d 438 (8th Cir. October 26, 1973).

Accordingly, it is ORDERED that the Judge's decision affirming the citation for non-serious violation for failure to comply with the standard at 29 CFR § 1910.23(c)(3) be affirmed and a penalty of $275 be assessed.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This is another case where the disposition was delayed for a year and a half and the net result is merely an increase [*5] of $275.00 in the penalty assessed by the Judge. Although the reason for the different penalty appears to be that it would "materially diminish the incentive for voluntary compliance" if the Judge's disposition were allowed to stand, no explanation is offered as to why the incentive for voluntary compliance would improve by raising the penalty to $275.00.

Monetary penalties are widely used in both civil and criminal law, yet little empirical research has been done on those they are intended to deter. n2 I submit that the difference in the penalty between that ordered by the Judge and that assessed in this decision is virtually meaningless in deterrent effect, and in no event does it justify the delay in disposition of this case.

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n2 Cf. Note, Fining the Indigent, 71 Columbia Law Review 1281, 1286-87 (1971).

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[The Judge's decision referred to herein follows]

WORCESTER, JUDGE: This proceeding arises pursuant to a Notice of Contest filed by the Respondent pursuant to the provisions of Section 10 of the Occupational [*6] Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act). On February 22, 1973, the Secretary of Labor through his Occupational Safety and Health Administration (hereinafter referred to as OSHA) caused an inspection to be made at the Respondent's place of business at 950 Georgia Avenue, Brooklyn, New York, under the authority for such inspections delegated to him by Section 9 of the Act. Sections (2)(b)(9) and 6 of the Act delegated to the Secretary the power to promulgate regulations setting forth occupational safety and health standards. The Secretary has accordingly published and made effective Section 1910.23(c)(3), Title 29, Code of Federal Regulations, which requires an employer, where there are open-sided floors, walkways, platforms or runways "above or adjacent to . . . pickling or galvanizing tanks, . . ." to guard or protect his employees from falling into the tanks by erecting a standard railing and toe board.

The case came on to be heard in New York, N.Y. on July 23, 1973.

It was conceded by the Respondent that it is an employer engaged in a business enterprise in the State of New York whose business transactions transverse [*7] state lines so that it is established, and the Judge so finds, that this Commission has jurisdiction of the subject matter and of the Respondent.

The facts are not in dispute. The Respondent is engaged in the anodizing and extrusion of aluminum in Brooklyn, New York. This process requires the immersion of material in a compartmentalized tank 4 feet wide at the top. There were occasions when the Respondent's employees were required, in the course of their duties, to perform tasks on platforms across the tank above solution of dilute acid which resulted in an exposure to the hazard of physical harm if they should fall into the tank. An employee was observed working on one of these platforms on February 22, 1973. The platform had no railing or other protection of any kind. Employees were not required to be on this unprotected platform continually, but might have to perform tasks from this location several times a day. There is no evidence of previous violations by this Respondent nor is there any proof that any employee has ever been injured while working on the platform. The Respondent retains a full time advisor on safety for its 65 employees. The procedure followed on [*8] and prior to February 22, 1973, was in full compliance with his advice.

If a standard railing were to have been installed on the platform above the acid tank, employees would have been exposed to the hazard of contact with residue of the dulute acid solution. The Respondent, for that reason, as soon as possible after the OSHA inspection modified its procedure. The platforms were removed. All the necessary functions can not be performed without ascending to a position above the acid tank or coming into contact with spilled residue from the tank.

III

On the basis of the aforementioned undisputed facts it is established that, and the Judge so finds, the Respondent violated 29 CFR 1910.23(c)(3) on February 22, 1973, * but as a result of prompt, diligent, and effective action abated the violation in the shortest possible time. The question as to whether or not the manufacturing procedures as now utilized at this workplace comply with the standards is not in issue and is specifically excluded from this finding.

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* See Secretary of Labor v. Wilson Certified Foods, Inc., OSHRC No. 1516, April 9, 1973.

[*9]

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Under the methods imposed upon the OSHA employees by the Complainant, a penalty of $275.00 was proposed. The Respondent, in the person of its chief executive, Robert Katz, who appeared both as representative and as a witness, has demonstrated its concern for the health and welfare of its employees by carrying on a continuing safety program and by promptly abating the hazard. Mr. Katz was revealed to be a forthright, concientious employer who was genuinely interested in the welfare of his employees. The Secretary's compliance officer in proposing the minimum penalty he was authorized to suggest under OSHA policy recognized this fact. The violation was de minimis. Vacation of the proposed penalty of $275.00 is fully justified and it is so found.

ORDER

Upon consideration of the evidence of record it is hereby ORDERED that the Citation for Violation of 29 CFR 1910.23(c)(3) be affirmed and that the proposed penalty of $275.00 be VACATED.