Docket No. 583

BUHLS LAUNDRY AND DAY CLEANING, INC.

OSHRC Docket No. 583

Occupational Safety and Health Review Commission

May 1, 1973

Before MORAN. Chairman; VAN NAMEE. Commissioner

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: On September 11, 1972, Judge Vernon Riehl issued a decision and order affirming the Secretary's citation of 14 non-serious violations but vacating all penalties proposed therefor. On September 21, 1972, the Secretary petitioned for discretionary review and on September 26, 1972, review was directed by Commissioner Burch pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.; 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the entire record. We do adopt the Judge's decision to the extent it is consistent herewith.

On February 9, 1972, Respondent was cited for 15 non-serious violations of standards promulgated by the Secretary of Labor pursuant to section 6 of the Act. Following Respondent's timely filing of a notice of contest the issues were joined and a hearing was held. At that hearing the Secretary stipulated that item 4, alleging a violation of 29 C.F.R. 1910.24(h) for failure to provide a standard railing on the open side of a stairway leading to a workroom, was incorrectly cited and that this portion of the citation and accompanying penalty should be dismissed.

The Judge determined that while the remaining items of the citation should be affirmed, the imposition of penalties would not insure compliance with the Act and was not warranted in the circumstances of the case. The Commission finds that the Judge committed error by not assessing penalties for items 3 and 10 of the citation and by affirming a portion of item 2 and items 12 and 13 of the citation.

In Secretary of Labor v. J. E. Chilton Millwork and Lumber Company, Inc., However, that case was decided in the context of violations which were expressly determined to be of low gravity. In Secretary of Labor v. Hydroswift Corporation, In so ruling we stated, "failure to impose penalties relating to violations with higher levels of gravity serves only to restrain the Act's effective operation and hinder its function to reduce the hazards of the workplace for all employees."

In the instant case we find two violations having levels of gravity which mandates the assessment of monetary penalties. Item 3 of the citation charged a violation of 29 C.F.R. 1910.23(d) for failure to provide a standard handrail on an enclosed stairway. It is established on the record that the stairway leads to a basement having a concrete floor and that the stairway was unguarded by a handrail. On these facts an employee could trip and fall down the stairway and suffer injury. In the circumstances a penalty of $25 is appropriate.

Item 10 of the citation alleged a failure to guard energized electrical relay equipment, as required by 29 C.F.R. 1910.310(j). The Judge concluded correctly that Respondent was in violation of the standard. It is apparent on the record that an electric shock hazard existed and that Respondent's employees were affected thereby. That is, the probability n1 existed that Respondent's employees could suffer electrical shocks. Under the circumstances a penalty of $35 is appropriate.

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n1 The Commission has previously held that the degree of probability of the occurrence of injury is one of several elements which must be considered in the evaluation of the gravity of a violation. Secretary of Labor v. National Realty and Construction Company, Inc.,

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Item 2 alleged violations of 29 C.F.R. 1910.23(a) for failure to guard floor holes and for failure to guard a stairway opening. That is, item 2 alleges violations of 29 C.F.R. 1910.23(a)(8) and (a)(1). The former of the two requires that floor holes ". . . into which persons can accidentally walk. . ." be guarded by a standard railing or a floor hole cover. On the other hand the terms "floor hole" are defined by 29 C.F.R. 1910.21(a)(1) as being an opening measuring less than 12 inches but more than 1 inch in its least dimension in any floor, platform, pavement, or yard through which materials but not persons may fall. Clearly, if the definition is held to be controlling then floor holes covered by the standard range from holes having dimensions of 1X1 inches to holes having 12 inches as the least or smallest dimension. The standard, however, only covers floor holes that are of such size that persons can accidentally walk into them. The language of the standard controls, and the definition cannot be used to enlarge the standard so as to bring floor holes into which persons cannot accidentally walk within its scope.

The facts of the present case indicate that the floor holes in Respondent's workplace had dimensions of 3X7 inches. Such holes are not of a size that employees may accidentally walk into them. Accordingly, they are not covered by 29 C.F.R. 1910.23(a)(8) and that allegation of the citation must be vacated. If the Secretary intends the standard to be as broad as the definition prescribed by 29 C.F.R. 1910.21(a)(1), he should rewrite it so as to reflect that intention.

As regards the second portion of item 2 of the citation the evidence shows that Respondent provided a tubular metal guard around the opening (except at the entrance) to its basement steps. Such structure does not satisfy the requirements of 29 C.F.R. 1910.23(a)(1) and 1910.23(e). Accordingly, this portion of the citation must be affirmed. However, the gravity of the violation in the circumstances of the case approaches de minimis, and the Judge correctly determined that no penalty should be assessed.

By item 12 of the citation the Secretary alleged that Respondent used flexible electrical cords which were unsuitable for their use or location contrary to the requirements of 29 C.F.R. 1910.316(a). The Secretary's proofs did not establish that the cords used were unsuitable for their use or location.

For example, where he alleged unsuitability because nonwaterproof cords were used he did not show exposure of the cords to water or dampness. It does appear that persons standing in a damp location might contact the cords, but this is not enough to establish the unsuitability of the cords. In another instance the Secretary opinioned that a circuit was overloaded because too many cords were connected to the same junction. Even if the opinion is probative regarding a hazard (an overloaded circuit) it does not establish that the standard was violated because the cords used were unsuitable for use in such circuit. Finally, as to this alleged violation, the Secretary's proofs show that an appliance cord had some cracks in it but he did not show the presence of a electrical shock hazard. Accordingly, it cannot be concluded that this cord was unsuitable for its use. On these facts we conclude that the Secretary failed to prove a violation of the standard and we vacate item 12 of the citation. for its use. On these facts we conclude that the Secretary failed to prove a violation of the standard and we vacate item 12 of the citation.

We reach the same conclusion regarding item 13 of the citation which alleges a violation of 29 C.F.R. 1910.316(c). The standard prohibits the use of flexible wiring as a substitute for the fixed wiring of a structure. The evidence does not establish that Respondent's use of flexible wiring was as substitute for the fixed wiring in its workplace. Indeed, the evidence indicates that Respondent's flexible wiring was connected to and energized by fixed wiring rather than being used in lieu thereof. Respondent's system is hazardous, and it may be characterized as temporary wiring put to a permanent use. Nevertheless, it is not violative of the standard because it is not a substitute for the fixed wiring employed in the workplace. Accordingly, we vacate item 13 of the citation.

One final point deserves mention. The Judge correctly found that Respondent had violated 29 C.F.R. 315(n) by failing to provide covers for the electrical junction boxes. Furthermore, while the Judge correctly assessed no penalty for this violation, he did state as a finding of fact that a fire or shock hazard existed. The record, however, is not very revealing concerning the gravity of the violation. The Secretary's witness gave his opinion regarding the fire and electrical shock hazards presented. On the other hand, photographic evidence shows one junction wherein there are no exposed electrical circuits. All junctions appeared to be made with plastic (insulating) twist caps. Therefore, the records is such that gravity of the violation is very low and for this reason no penalty is assessed.

Accordingly, it is ORDERED that the decision of the Judge be modified as follows:

(1) that portion of item no. 2 of the citation alleging a failure to guard floor holes is vacated; (2) that portion of item no. 2 of the citation alleging a failure to provide a standard railing around a stairway opening is affirmed but no penalty is assessed; (3) items no. 3 and 10 of the citation are affirmed and penalties of $25 and $35 respectively are assessed; and (4) items no. 12 and 13 are vacated,

and the decision, as modified, be and the same is hereby affirmed.

[The Judge's decision referred to herein follows]

RIEHL, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereinafter referred to as the Act), to review non-serious citations issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act, and proposed assessment of penalties in the amount of $360.00 upon such alleged violations pursuant to Section 10(a) of the Act.

The Citations for non-serious violations were issued on February 9, 1972, alleging a violation of 6(a) of the Act. The Citations alleged that the Respondent was in violation of Subpart "D" 29 CFR 1910.22(a); Subpart "D" 29 CFR 1910.26(d); Subpart "D" 29 CFR 1910.24(h); Subpart "J" 29 CFR 1910.141(c); Subpart "L" 29 CFR 1910.157(a); Subpart "L" 29 CFR 1910.157(d); Subpart "R" 29 CFR 1910.264(c); Subpart "R" 29 CFR 1910.264(d); Subpart "S" 29 CFR 1910.310(j); Subpart "S" 29 CFR 1910.315(n); Subpart "S" 29 CFR 1910.316(a); the Notification of Proposed Penalty proposed total penalties in the amount of $360 for all of the alleged violations. The Respondent notified the Secretary that it wished to contest the penalties set forth in the violation and Respondent also pleaded that all the alleged violations had been corrected, even those that were in conformity with their state law.

The Secretary filed a complaint on March 6, 1972. The Answer filed by the Respondent denies each and every allegation of the Complaint and specifically alleges that there have been no previous alleged violations. The Respondent at the hearing chose to attack the penalties by also attacking the underlying violation (T.6).

Secretary at the hearing also stipulated that Item No. 4 and the $25.00 penalty proposed for that Item were incorrectly cited and that that part of the Citation and accompanying penalty should be dropped (T.7).

FINDINGS OF FACT

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

1. Respondent is engaged in a business affecting interstate commerce of the provisions of the Occupational Safety and Health Act so as to give coverage (T. 5).

2. As a result of an investigation, on January 26, 1972, a Citation was issued on February 9, 1972, and a Notice of Proposed Penalty was issued on the same day.

3. It was stipulated by Complainant and Respondent that abatement of the violations had been made by Respondent (T. 5).

4. A Complaint was issued on the third day of March, 1972, and was timely answered by the Respondent (T. 5).

5. It was stipulated that Item No. 4 and the $25.00 penalty proposed for that Item were incorrectly cited and that that part of the Citation and the accompanying penalty should be dropped (T. 7).

6. The Respondent violated housekeeping provisions of the standards as charged in Item 1 by having a tripping and stumbling hazard in the aisles of Respondent's establishment by having fabric softener, soap and bleaches, towel racks and aluminum ladder so placed that an employee could stumble over them (T. 27, 28, 29).

7. Also hampers were left in the aisles around the washers and dryers (T. 30).

8. Floor holes were found on the floor as charged in Item 2 (Exhibit G-8) (T. 76) (Exhibit G-9). These holes were in such position that an employee could accidently step into them and sprain and fracture his ankles or knees or sustain other injury (T. 31).

9. (Item 3) There was no handrail provided for the stairway leading to the basement storage (T. 40, 41) (Exhibit G-11).

10. (Item 5) The receptacle in the women's restroom was not covered as charged in Item 5 of the Citation (T. 42).

11. (Item 6) The fire extinguisher was sitting on the floor in violation of the regulations stating they should be mounted on hangers or set in enclosed boxes (T. 43).

12. (Item 7) Inspection tag on the fire extinguisher indicated it was last inspected on March 31, 1971 (T. 43, 44).

13. (Item 8) The drying tumblers on the date of inspection did not have interlocks which caused a hazard to employees reaching into rolling tumblers (T. 44). A steam pipe was not protectively covered giving rise to the possibility that employees could be burned by touching this pipe (T. 45).

14. (Item 9) Respondent's employees were not properly instructed in safe practices by printed rules or bulletins (T. 46).

15. (Item 10) The electrical relay equipment was not guarded against accidental contact at the No. 1 and 2 boilers of Respondent's plant (T. 72 and T. 47).

16. (Item 11) The outlet and junction boxes were not provided with covers at the No. 1 and 2 boilers and five other locations within the plant (T. 48). This situation created a primary hazard with a possibility of fire or shock to an employee (T. 49).

17. (Item 12) The flexible cords used in Respondent's plant were not suitable for use. There was broken down insulation on a quarter-inch Black and Decker drill (T. 52).

18. (Item 13) Flexible electric cords were attached to the building surface (T. 53).

19. (Item 14) The centerfold notice contained in the recordkeeping requirement booklet was not posted as required by the regulations (T. 55).

20. (Item 15) The log of Occupational Injuries and Illnesses, OSHA-100 Form, A Supplementary Record of Occupational Injuries and Illnesses, OSHA-101 Form were not maintained (T. 56, 57).

DISCUSSION

The purpose of the Occupational Safety and Health Act is to reduce the estimated 14,000 deaths a year and tens and thousands of crippling injuries caused by American industry. Any such reduction of deaths and injury means a better tenure in existence of the employee, his wife and dependents. Also it means further advancement in production of goods for the use of all because less deaths and maiming accidents permit the optimal use of our labor force.

The Occupational Safety and Health Act therefore has both humane and practical goals. The Review Commission Judges have therefore a grave and sobering responsibility. On the one hand to insure compliance with the Act. On the other hand to use good common sense and discretion in issuing orders to insure that safety standards to protect America's working men be upheld.

The aim of all concerned with the Act is to get such compliance as will reduce the number of deaths and crippling injuries in industry.

We have in the instant case found facts that indicate violations of a number of standards.

The testimony of Mr. Buhl, the Respondent's side of the case, indicates that he knows now, of course, that he has been in violation of standards. Our reaction to Mr. Buhl's total testimony is that he like many others in different industries have simply not been aware prior to being cited for violations, that some of his practices in the operation of his business were hazardous, hence he did nothing to correct them.

He impressed us as a sincere, forthright individual, who when he knew of the problem immediately did all he could to correct the hazards cited.

Buhl's Laundry is a small business employing less than 25 persons. It is to be noted that Mr. Buhl immediately called in a repair and installation man and at a cost of approximately $1300 made immediate repairs. His employees therefore are now provided with a work environment as safe as our present knowledge of work site requirements can envision.

Perhaps no environment is more important to the 80 million American job holders than the environment in which they work. In the instant case, Buhl's Laundry has promptly done all that was necessary to be in compliance to insure a safe workplace for its employees and has been most cooperative in such efforts. The total evidence in the case impels us to believe that the imposition of money penalties upon the Buhl establishment would not be in line with the stated aims of the Occupational Safety and Health Act.

The total situation as established in the testimony shows full compliance after knowledge of the defects by Mr. Buhl. In considering the foregoing, we feel no useful purpose will be served in further assessing penalties after such full compliance and cooperation. We accordingly will find there have been violations as set forth by the Citation of Items 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15. We will then order the penalties for the foregoing violations vacated.

CONCLUSIONS OF LAW

Jurisdiction of the action is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act, and the undersigned has been duly designated to hear and make determinations upon this proceeding and to report such determinations to the Commission pursuant to Section 12(j) of the Act.

At all times material hereto, the Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

At all times material hereto, the Respondent furnished employment to its employees at a workplace in Pierre, South Dakota, and the Act is applicable to such employment within the meaning of Section 4(a) of the Act.

On February 9, 1972, the Secretary, pursuant to the provisions of Section 9(a) and 10(a) of the Act, issued to Respondent a citation for non-serious violations containing 15 specific items and the proposed penalties.

On February 24, 1972, pursuant to Section 10(c) Respondent timely filed with the Secretary his notification of intent to contest the Citation and Proposed Penalties. The Secretary, therefore, transferred this case to the Commission, which pursuant to the provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.

Respondent violated section 5(a)(1) of the Act by failing to furnish its employees a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to its employees in that Respondent:

(1) Failed in his housekeeping to keep orderly conditions in that fabric softener, soap, bleach and cloth towel holders were stored in the aisles.

(2) Failed to cover floor holes into which persons could accidently walk and be seriously injured.

(3) Failed to provide standard hand rails on the descending side of the stairway leading to basement storage.

(4) Covered receptacles were not provided in the toilet used by the women on the workroom floor.

(5) Fire extinguisher was setting on the floor in violation of the regulations.

(6) Inspection tags on fire extinguishers indicated last inspection of March 31, 1971 in violation of the regulations.

(7) Drying tumblers were not provided with an interlock to prevent the inside cylinder from moving (running) with the outer door open and, the steam pipe was not covered with heat resisting materials --.

(8) Employees were not properly instructed in safe practices by printed rules or bulletins.

(9) An electrical relay equipment was not guarded against accidental contact at several locations.

(10) Outlets and junction boxes were not provided with covers at No. 1 and 2 boilers and other locations.

(11) Flexible cords were not suitable for use or conditions at various locations.

(13) The centerfolds notice contained in the record-keeping requirements booklet was not posted.

(14) The Log of Occupational Injuries and Illnesses, OSHA-100, and Supplementary Record of Occupational Injuries and Illnesses, OSHA-101 Form were not maintained.

The standards violated by Respondent are the following standards contained in part 1926 of Title 29 of the Code of Federal Regulations.

Subpart "D"	29 CFR 1910.22(a)
Subpart "D"	29 CFR 1910.23(a)
Subpart "D"	29 CFR 1910.23(d)
Subpart "J"	29 CFR 1910.141(c)
Subpart "L"	29 CFR 1910.157(a)
Subpart "L"	29 CFR 1910.157(d)
Subpart "R"	29 CFR 1910.264(c)
Subpart "R"	29 CFR 1910.264(d)
Subpart "S"	29 CFR 1910.310(j)

The proposed penalty for each item of the violation is not appropriate under the facts and circumstances of the action and should be vacated. Item No. 4 and the $25.00 penalty proposed for that Item were incorrectly cited and that part of the Citation and the accompanying penalty should and will be dropped.

ORDER

Based upon the findings of Fact and Conclusions of Law, it is hereby ordered:

(1) Item 4 and its proposed penalty is hereby vacated.

(2) The Citation with respect to Items No. 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 be and hereby is affirmed.

(3) The penalties proposed with respect to Item Nos. 2, 3, 8, 10, 11, 12, 13, and 15, are hereby vacated.

This order shall become the final order of the Occupational Safety and Health Review Commission within 30 days from this date unless within such period any member of the Commission directs that it be reviewed by the Commission.