Docket No. 881

COLONIAL CRAFT REPRODUCTIONS, INC.

OSHRC Docket No. 881

Occupational Safety and Health Review Commission

October 27, 1972

[*1]

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On August 29, 1972, Judge Joseph L. Chalk issued his recommended decision and order in which he affirmed the Secretary's citation for seven of nine other than serious violations. Judge Chalk vacated the citation for the remaining two other than serious violations and also vacated all proposed penalties.

Thereafter, on September 26, 1972, I directed that the Judge's report in this case be reviewed by the Commission in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as the "Act"). Review was directed for the purpose of determining whether vacating the proposed penalties comports with the Commission's decision in Secretary of Labor v. General Meat Company,

The Commission has reviewed the rulings of the Judge and finds no prejudicial error therein. The Commission has also reviewed the entire record in this case. We adopt the Judge's recommended decision and order to the extent that it is consistent with the following.

The citation contained nine non-serious [*2] violations, of which only four carried proposed penalties totaling $165. The four items were:

#3 $45.00 29 CFR 1910.107(c)(6). -- Electrical wiring and equipment located within twenty feet of spray booth does not conform to the provisions of the National Electric Code for Class 1, Division 2 Hazardous Locations (NFPA 70-1971, Article 501)

#4 $30.00 29 CFR 1910.37(q)(1). -- Exits throughout the plant were not marked by readily visible signs.

#8 $50.00 29 CFR 1910.219(e)(1). -- The mechanical power-transmission apparatus, v belts, on the following machines were not enclosed by guards: (a) mortising machine; (b) planer; (c) pattern saw; (d) two band saws; (e) two jointers; (f) table saw; (g) two lathes; (h) air compressor; (i) four belt sanders; (j) stroke sander.

#9 $40.00 29 CFR 1910.213(h)(3), and (h)(4). -- Two radial saws, located in the production area, were not provided with adjustable stops to prevent forward travel of blade beyond the point necessary to complete cut, nor were they installed in such a manner that the cutting head would return gently to the starting position when released by the operator.

Respondent, a manufacturer of "wooden gift ware items" is [*3] essentially a husband and wife operation. During the first six months of 1972, it employed six to seven part-time employees, including ". . . boys in the Vocational Cooperation Educational Program of Berks County." The record shows that in 1971 respondent had an operating loss in excess of $25,000 and that it is presently ". . . struggling to maintain shipments on several orders vital to the survival of its business." Evidence also shows that prior to the inspection, respondent made unsuccessful efforts to gain knowledge of the Act and the standards by writing to the Commonwealth of Pennsylvania Department of Labor, the United States Department of Labor, and the "superintendent of documents in Washington." The information sought by respondent was not acquired until it was produced by the compliance officer on the date of the inspection.

The Commission, while adopting the Judge's decision, disavows the Judge's conclusion that this case falls squarely within the rationale of the Commission's decision in Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc., Judge Chalk cited Chilton Millwork for the principle that ". . . [*4] relatively minor monetary penalties do little to effectuate . . . (the) objective (of the Act)." The penalties in this case, on the contrary, would normally be affirmed because of the high level of gravity of the violations.

In assessing appropriate penalties, the Commission is charged in section 17(j) of the Act with giving due consideration to the size of Respondent's business, the gravity of the violation, the good faith of Respondent, and its history of previous violations. We do not believe that these factors are necessarily to be accorded equal weight in a given case, nor do we believe that a particular factor must be given the same weight under different factual situations. Secretary of Labor v. National Realty and Construction Co., Inc.,

The Commission recognizes that gravity is usually of greater significance because it is relevant only to the violation under consideration, while the remaining factors are concerned with the employer generally, and are considered in modification of the penalty. We believe that in assessing civil penalties under section 17(j) of the Act, occasions will arise when, despite the high gravity [*5] of the violation, overriding consideration must be given to these modifying factors in order to best effectuate the purposes of the Act. The Commission views this case as an appropriate one in which to give the modifying factors such consideration.

The violations considered here increase the possibility of injury to Respondent's employees and, therefore, are not to be considered of a minor nature. There are circumstances presented here which require special consideration. Respondent's good faith is shown by its efforts to obtain information necessary for its compliance with the Act and by its uncontroverted evidence of safety instructions to its employees. It has successfully accomplished abatement and it has no previous history of other violations.

Size has a direct correlation to an employer's financial condition and to the number of employees. Respondent here is operating at a deficit and with less than 10 part-time employees. Adjustment of the penalty for the employer's size is primarily an attempt to avoid destructive penalties, and must be of major consideration here. The primary objective of the Act is to secure a safe and healthful work place, and we are [*6] convinced that in the circumstances of this case this objective would be better served by the non-assessment of penalties.

Accordingly, it is ORDERED that the Judge's decision be, and it is, hereby affirmed. n1

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n1 Judge Chalk vacated item Nos. 1 and 2 of the citation, "Despite the absence of a contest . . ." We approve his action but point out that these items were contested, but were not at issue at the hearing by virtue of a stipulation. Neither the Commission Judge nor the Commission is bound by stipulations of the parties where justice dictates otherwise.

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CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I agree with the disposition of this case but I disagree with the rationale contained in this decision of the Commission. I would affirm Judge Chalk's decision on the basis stated therein.

[The Judge's decision referred to herein follows]

CHALK, JUDGE, OSAHRC: At the hearing of this cause, Respondent admitted the violations and waived any defense thereto (Tr. 6; Ex C-1). The sole question on which the [*7] parties joined issue, therefore, was whether the proposed penalties "were proper and appropriate in the context of this case" (Ex C-1).

The Citation for alleged non-serious violations contains a total of nine items, all of which had been abated as of the date of the hearing (Tr. 6). Of these nine, penalties totalling $165.00 were proposed by the Secretary of Labor for only the following four:

#4 $30.00 29 CFR 1910.37(q)(1). -- Exits throughout the plant were not marked by readily visible signs.

#9 $40.00 29 CFR 1910.213(h)(3), and (h)(4). -- Two radial saws, located in the production area, were not provided with [*8] adjustible stops to prevent forward travel of blade beyond the point necessary to complete cut, nor were they installed in such a manner that the cutting head would return gently to the starting position when released by the operator.

In arriving at these proposed penalties, the Secretary gave Respondent allowance for the size of its business, its good faith, and its previous history of no violations (Tr. 22, 23, 24, 25, 26; Exs C-4, C-5, C-6).

Respondent's position regarding the penalties is best explained by the following remarks of its president at the hearing:

I guess the sum and substance of our case, Your Honor, is the fact that being a small business and being in the financial situation we are in we just do not have the finances available to accept proposed penalties here. The amount of them, this would be the equivalent of three of the people that I have working for me being laid off for a week. The alternative we would have would be to cut back on the payroll and not to pay our suppliers, and then we are out of business (Tr.33, 34).

In support of its position, Respondent, a small manufacturer of "wooden gift ware items" and essentially a husband and wife operation, [*9] adduced evidence that it employed approximately twelve part-time employees in the current year, including "boys in the Vocational Cooperation Educational Program of Berks County"; that for the year 1971 it had an operating loss in excess of $25,000.00; that it is presently "struggling to maintain shipments on several orders vital to the survival" of its business; and that even the completed abatement of the violations was hampered by a lack of funds (Ex. C-1; Record Exs. J-7, J-8). It was also established that prior to the inspection, Respondent made unsuccessful efforts to gain knowledge of the Act and the standards by writing the Pennsylvania Department of Labor, the United States Department of Labor, and the "superintendent of documents in Washington" (Tr. 34, 35; Record Ex. J-7). The information was not acquired until it was produced by the compliance officer on the date of the inspection (Tr. 34).

I have concluded that this case falls squarely within the rationale of this Commission's decision in Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc., OSHRC Docket Number 123, dated May 15, 1972, wherein it was stated:

The Commission is of the [*10] opinion that the principal purpose of the Act is to obtain compliance with its requirements in order to ensure a safe and healthful workplace. Relatively minor monetary penalties do little to effectuate this objective. We, therefore, will look carefully at cases involving such proposed penalties. This is a case where the proposed penalty adds nothing to the objectives of the Act.

Here, one of the primary objectives of the Act -- abatement -- has been accomplished and the assessment of penalties would only result in an additional financial burden upon Respondent. Under all the circumstances, therefore, a penalty is inappropriate.

Despite the absence of a contest, I am constrained to set aside the first two items in the Citation, for which no penalties were assessed. The first item alleges a violation of 29 CFR 1903.2 by failing to post notice of the Act for the information of employees, whereas the second item alleges a violation of 29 CFR 1904.2 and 1904.3 by failing to maintain a log of occupational injuries and illnesses.

Both the notice and log are forms furnished by the Occupational Safety and Health Administration of the Department of Labor, and both regulations, in my [*11] view, contemplate compliance by an employer only after the forms have been furnished, at least in situations where the employer has no prior knowledge of these two requirements. As there is an abundance of evidence in this record that Respondent was unaware of these requirements, that it had made genuine but fruitless efforts to obtain information about the Act, and that it was not in receipt of these forms until furnished by the compliance officer on the day of the inspection, it is difficult for me to perceive how Respondent can be held to be in violation of the two regulations in question. n1 Respondent's concession and its failure to defend itself at the hearing, therefore, were ill-advised.

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n1 There is yet another reason why the log violation cannot be sustained. Respondent had a history of no occupational injuries or illnesses ( Secretary of Labor v. Intermountain Block & Pipe Corporation, Docket No. 298, decided May 19, 1972) (Tr. 23).

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In resolving these two alleged violations, I have observed [*12] what appears to be inconsistencies in Chapter XI of the Department of Labor Compliance Operations Manual. This chapter, in discussing the failure to post notice of the Act, provides that the failure to so post shall be alleged as a violation but that no penalty shall be proposed unless a copy of the notice had been furnished the employer or the employer otherwise had knowledge of such notice (par. 9a(1)). Concerning a related posting requirement of a form entitled "Summary of Occupational Injuries and Illnesses," the same chapter directs that a violation for failure to post shall not be proposed unless a copy of the "Recordkeeping Requirements" pamphlet had been furnished the employer or the employer otherwise had knowledge of the requirement (par. 9a.(3)). However, another paragraph of the chapter provides that where this "summary" has not been maintained, a violation shall be alleged but no penalty shall be proposed unless the foregoing pamphlet had been furnished to the employer or the employer otherwise had knowledge of the requirement (par. 9b.(2)). Finally, the paragraph in the chapter dealing with the log of injuries and illnesses directs that a failure to maintain said [*13] log shall be listed as a violation and a proposed penalty of $100.00 "shall be assessed," presumably without regard to whether the forms or pamphlet have been furnished the employer or the employer otherwise had knowledge of the requirement (par. 9b.(1)). I shall not attempt to resolve these apparent inconsistencies.

On the basis of the foregoing and the entire record, including the posthearing submissions of Complainant, I reach the following:

FINDINGS OF FACT

That Respondent is and was at all times an employer operating a business affecting the commerce of the United States, and is thus subject to the provisions of the Act.

That on April 11, 1972, a compliance officer of the Occupational Safety and Health Administration conducted an inspection of Respondent's workplace at Oley, Pennsylvania, that resulted in the issuance on April 18, 1972, of the Citation and Notification of Proposed Penalty.

That Respondent timely filed a Notice of Contest.

That the alleged violations contained in items 1 and 2 of the Citation are not supported by substantial evidence.

That the proposed penalty in the aggregate amount of $165.00 is not appropriate under the circumstances of the [*14] case.

CONCLUSIONS OF LAW

That this Commission has jurisdiction over the cause.

That items 1 and 2 of the Citation should be vacated.

That the remaining portions of the Citation should be affirmed.

That the proposed penalties should be vacated.

Items 1 and 2 of the Citation are vacated. The remaining portions of the Citation are affirmed. The proposed penalty in the total amount of $165.00 is vacated.

It is so ORDERED.