UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4979
GEORGE T. GERHARDT COMPANY, INC.,
Respondent.

June 18, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

In this matter, Judge Harold A. Kennedy rendered a report finding that the Respondent had failed to correct violations of the safety standards prescribed by 29 C.F.R. 1910.219(e)(1)(i), 29 C.F.R. 1910.212(a)(1) and 29 C.F.R. 1910.309(a). He assessed penalties of $100 for each of the unabated violations for a total penalty of $300.

The facts reveal that the Respondent’s plant was first inspected on July 17, 1973. On August 13, 1973, as a result of that inspection, a citation was issued which among other things alleged violations of the three previously mentioned standards. Respondent received the citation on August 14, 1973. The citation prescribed an abatement period of ten days each for the alleged violations of 1910.219(e)(1)(i) and 1910.212(a)(1) and five days for the alleged violation of 1910.309(a).

Respondent did not contest the citation. Accordingly, it became final on September 5, 1973 by operation of law.[1]

The Respondent’s plant was reinspected on September 10, 1973. As a result of this inspection, the Secretary issued a notification of failure to correct violations of the aforementioned standards. Penalties totaling $2580 were proposed.

The Respondent filed a notice of contest; it was limited to the amount of the proposed penalties. Respondent did not take exception to the allegations that continuing violations existed in its plant. Instead, it argued that ‘extenuating circumstances’ had prevented it from knowing the amount of time available to it for abatement and that therefore a reduction of the proposed penalties was justified.

The ‘extenuating circumstances’ referred to by Respondent were stated to be:

1. The Respondent’s president was the Company’s only authorized representative and should have been contacted at the time of the original inspection;

2. An inadequate closing conference was held with the Company’s plant manager;

3. The issuance and mailing of the original citation was delayed by nearly a month after the date of inspection;

4. The original citation did not specify a date certain for the abatement of each item but instead specified five- and ten-day abatement periods for the items;

5. The Respondent’s president and its repairman best able to abate the violations were both on vacation when the original citation was received and

6. The unabated violations were of a low gravity.

As Judge Kennedy observed, the Respondent’s arguments were not advanced as defenses at law but rather as an appeal justifying reduction of the proposed penalties on equitable grounds. He therefore determined that continuing violations existed as alleged but he determined that lower penalties were warranted.

Neither party petitioned for review. The matter was directed for review by Commissioner Moran on his own motion. He stated the issue for review as follows:

Does the evidence of record demonstrate that respondent was under any obligation to complete abatement of previously-cited violations on September 10, 1973, the date of reinspection, in view of the fact that no final abatement order was possible at any date prior to September 5, 1973, and the terms of said final order (the uncontested August Citation) allowed respondent ten days to complete abatement of two of the items cited and five days to complete abatement of the other item cited?

It would appear that the issue for review is whether an employer is obligated to abate or begin abatement of an alleged violation within the period for contesting the allegation (29 U.S.C. 659(a)) when it does not contest the citation making the allegation.

We note first that neither party raised this issue in the case and that Respondent has in effect conceded the continuing violations. We would not normally, therefore, dispose of the case on the issue raised for review. See: Abbott-Sommer, Inc., Docket 9507, BNA 3 OSHC 2032, CCH OSHD para. 20,428 (February 17, 1976); John R. Davies & Son, Docket 5486, CCH OSHD 20,634 (April 19, 1976).

In any event, the issue has been decided by two U. S. Courts of Appeal, Dunlop v. Haybuster Manufacturing Co., 524 F.2d 222 (8th Cir. 1975) and Brennan v. OSHRC (Kesler & Sons Construction Co.), 513 F. 2d 553, 557–8, (10th Cir. 1975). As the Tenth Circuit said:

. . . if the employer does not contest a citation, the period of time permitted to correct the violation begins to run from the date of the citation . . .. If Congress intended to preclude reinspection for failure to correct a violation for a period of fifteen days after the issuance of the citation, it could have said so. But it did not and, in our view, clearly indicated a contrary intent.

Were we disposed to decide the case on the issue raised by the direction for review, we would concur with these court decisions. But in view of respondent’s concession that the violations were continuing it is unnecessary to decide the issue raised by the direction for review.

We have examined the entire record and conclude that the Judge’s assessment of a $300 penalty is appropriate in the circumstances for the reasons given by him. Accordingly, the Judge’s findings and conclusions are adopted as the decision of the Commission. It is so ORDERED.

BY THE COMMISSION:

WILLIAM S. McLAUGHLIN

Executive Secretary

DATE: JUN 18, 1976

MORAN, Commissioner, Dissenting:

In this decision my colleagues resort to an exercise in legal needlepointing in order to avoid deciding the case on the issue on which it was directed. Ultimately, they say that it is not necessary to decide the case on the directed issue because respondent conceded that the violations were not abated at the time of the second inspection. Before they dispose of the case on this basis, however, they backstitch into the fabric a reliance upon Secretary v. Abbott-Sommer, Inc., OSAHRC Docket No. 9507, February 17, 1976, and Secretary v. John R. Davies & Son, OSAHRC Docket No. 5486, April 19, 1976, for the proposition that they ‘would not normally .. . dispose of the case on the issue raised for review.’ Thus, although they first imply that they will digress from their normal procedure and address the directed issue, they ultimately admit that they do not do so (drop 2, purl 1). Of course, this admission cannot be avoided because the respondent’s concession has absolutely nothing to do with the directed issue. If this double-talk will not sufficiently confuse readers of this opinion, then the lead opinion’s reference to Abbott-Sommer and Davies will complete the job. Either my colleagues do not remember the rule they established in those cases, or they are forecasting an expansion of those decisions.

In both of those cases my colleagues refused to consider the issues directed because the parties had not briefed them, thereby supposedly indicating disinterest in the cases. In this case, both parties have filed briefs on the issue specified in the direction for review. Other cases also illustrate that Messrs. Barnako and Cleary continue to change their review rules whenever it suits their purpose. For instance, in Secretary v. Alfred S. Austin Construction Company, OSAHRC Docket No. 4809, April 28, 1976, my colleagues reversed the Judge in affirming a citation even though the case was a sua sponte direction for review by Commissioner Cleary which did not specify a particular issue. However, in vacating my direction for review in Secretary v. Francisco Tower Service, OSAHRC Docket No. 4845, February 6, 1976, my colleagues had previously stated that:

‘If there is some appropriate reason for directing review sua sponte, the reason should be stated so that the Commission may benefit from the parties’ briefs on the issue.’

In this case, the reason for directing review was stated and the Commission has the benefit of briefs from both parties on the directed issue. Therefore, it cannot be said that either party has shown disinterest in the issue or that the direction for review was too general.

Messrs. Barnako and Cleary are now apparently ready to embroider a new loophole into their review rule—that briefs will be disregarded if the parties did not raise—in advance—an issue that is specifically stated in a sua sponte direction for review.[2] As I stated in Secretary v. Singer Furniture Company, OSAHRC Docket No. 7134, March 5, 1976 (dissenting opinion), if review of an issue is contingent upon its being raised by one of the parties in a petition for review filed by one of the parties, there is no purpose in the statute’s authorizing discretionary review by the members of the Commission. Moreover, such requirements are especially onerous to the employer attempting to defend himself without the aid of legal counsel, as is true of the respondent in this case.

Though Messrs. Barnako and Cleary have incorrectly determined the outcome of this case on their belief that respondent has conceded liability, it is gratifying to see that at last[3] they have stated their opinion of the decision in Brennan v. OSAHRC and Kesler & Sons Construction Company, 513 F.2d 553 (10th Cir. 1975), albeit only in dictum. However, I cannot agree with their ready acceptance of the Circuit Court’s reversal of the Commission decision in Secretary v. Kesler and Sons Construction Company, 9 OSAHRC 1033 (1974). The Circuit Court premised its interpretation of 29 U.S.C. § 658(a) on its conclusion that it was required to accept the Secretary’s interpretation of the Act if it is reasonable, ‘even though there may be another interpretation of the statute which is itself equally reasonable.’[4] That premise is contrary to the express congressional purpose of establishing the Occupational Safety and Health Review Commission as an independent agency charged with impartial adjudication of cases brought by the Secretary against employers.[5] Even Commission Cleary has heretofore stated that the Commission should not accept the Secretary’s view of the law when erroneous.[6] Accordingly, rather than accepting without discussion the Circuit Court’s conclusions, the Commission should review its findings in Kesler, supra, and determine whether the original holding should be confirmed or rejected.

My own review of the issues raised in Kesler and in this case leads inescapably to the conclusion that this Commission should adhere to its original conclusions.[7] Allowing the Secretary to require abatement within the 15 working days during which the Act allows an employer to file a notice of contest effectively denies that employer its statutory right to use all of that time to consider the matters raised by the citation and determine whether or not to contest. I do not find that any of the policy arguments made by the Circuit Court warrant denying an employer his full 15 days to decide whether to contest a citation. More importantly, that decision is contrary to the congressional intent expressed in 29 U.S.C. § 659(b) that an abatement period fixed in a citation ‘shall not begin to run until the entry of a final order.’

Applying to this case the conclusions reached by the Commission in Kesler, I would find that no enforceable order of any kind—even one providing for ‘immediate’ abatement—was possible at any date prior to September 6, 1973. The provision for a 5-day abatement period in the citation which automatically became final on September 5th would allow respondent a period of time for abatement extending through September 10th. For the other two violations, this period was somewhat longer. Consequently, the September 10th reinspection was premature and illegal. The notification for failure to correct issued against respondent should therefore be vacated.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4979
GEORGE T. GERHARDT COMPANY, INC.,
Respondent.

FINAL ORDER DATE: July 5, 1974

DECISION AND ORDER

Appearances:

Victor S. Palacios, Esq., of San Francisco, California for the Secretary

Mr. James R. Hinson of Palo Alto, California for Respondent

Harold A. Kennedy, Judge, OSAHRC:

This case presents the question of what penalties, if any, should be assessed against the Respondent Employer George T. Gerhardt Co., Inc., a small family-owned California corporation engaged in the manufacture of sheet metal (Tr. 33, 79–82), for failing to abate three items of a final citation issued against it.

Respondent was first inspected under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) on July 17, 1973 by Department of Labor Compliance Officer Ronald I. Corby. He was referred by George T. Gerhardt, the firm’s 80 year old Chairman of the Board, to Michael J. Pattenaude, Plant Superintendent.

Mr. Corby made a walk-around inspection with Mr. Pattenaude and had a closing conference with him on that day before leaving the plant (Tr. 32, 47–51, 61, 71, 77–8, 107–8). Nearly a month later, on August 13, 1974, the Secretary issued a non-serious citation containing nine items or charges. Penalties were proposed only for Items 1 ($30), 2 ($65), 6 ($65) and 9 ($80) thereof. Items 2, 3 and 5 of that citation are relevant to this proceeding and alleged violations as follows:

Item No.	Standard Allegedly Violated	Abatement Date	Description
2	29 CFR 1910.219(e)(1)(i)	10 days	Failure to guard belts and pulleys. Equipment: 1) Gutter machine 2) feed to air shear.[8]
3	29 CFR 1910.212(a)(1)	10 days	Failure to guard machinery to protect the operator and other employees in the machine area from hazards such as those created by points of operation, in-going nip points, rotating parts. Equipment: top of gutter machine and rolls on Yoder roll former.
5	29 CFR 1910.309(a) NEC NFPA 70–1971 ANSI C1–1971 Article 400–5	5 days	Cord to Coke machine not in continuous length without splice.

The citation and the notification of the proposed penalty, likewise dated August 13, 1973, were received at Respondent’s place of business on August 14, 1974 (J5C–D, Tr. 81, 117).

Mr. George Gerhardt spent 54 years of his life building the business but is no longer the guiding official of the firm. He may spend a half a day at the firm’s office handling ‘some of the shipping’ and ‘a little of the outside sales’. Mr. George Gerhardt was at the office when the citation was received. President Roger Gerhardt was not as he was away on vacation between August 10 and September 4, 1973 (Tr. 87–90).

On his return to the office from vacation, President Roger Gerhardt went through the mail and ‘within a couple of days’ he had reviewed the citation and initiated corrective measures as ‘there was a lot to fix’ (Tr. 90). Proceeding on a ‘worst-first’ basis (Tr. 93), he assumed that he had sufficient time to make the necessary corrections, although the citation prescribed abatement of all items (except for Item No. 9, which was to be corrected ‘immediately’), from one to 15 days. He testified that he was not aware that the failure to correct might make Respondent ‘subject to a hundred dollar a day fine minimum’ under the Secretary’s rules (Tr. 92–3).

On September 10, 1973, four work days after President Gerhardt had returned from vacation, Compliance Officer Corby returned to Respondent’s place of business to make a re-inspection (Tr. 34, 91).

He found most of the items had been corrected,[9] but he recommended that Respondent be issued a Notification of Failure to Abate and of Proposed Additional Penalty based on a failure to correct said Items 2(1), 3 and 5. Such a notification did issue on September 26, 1973 proposing additional penalties as follows:

Item No.

No. of Days Unabated

Proposed Daily Additional Penalty

Proposed Total Daily Additional Penalty

Previously Allowed Abatement Credit

Proposed Total Additional Penalty

2(1)

170–50%

850.00

30.00

$880.00

850.00

........................................

Grand Total:

$2580.00

Under date of October 5, 1973 Respondent submitted a timely notice of contest, which recited that Respondent was ‘contesting only the proposed additional penalty’.

After complaint and answer were filed, the case came on for hearing in San Francisco, California on February 6, 1974. The Secretary was represented by counsel, and Respondent was represented by Mr. James R. Hinson, a consultant in occupational safety and health. Respondent’s employees are represented by Sheet Metal Production Workers Local 355, Oakland, California, but no one appeared or requested party status on their behalf. Compliance Officer Corby appeared and testified as did President Roger C. Gerhardt and Plant Superintendent Michael J. Pattenaude.

Respondent conceded at the hearing that the original citation and penalty assessment are final; also, that it was an ‘employer’ within the meaning of the Act and that the Commission had jurisdiction in the case. Respondent here in fact argues only that the penalties proposed are excessive and points to certain ‘extenuating circumstances’ as justifying a reduction. Counsel for the Secretary claims that the Secretary erred (in Respondent’s favor by giving an abatement credit) in computing the proposed penalties but that total penalties in the amount of $2580 are fully justified. See Tr. 18–30, 73–76. According to Respondent, the ‘extenuating circumstances’ prevented Respondent from knowing the amount of time available to it for abatement and, thus, justify reductions of the additional penalties proposed. The ‘extenuating circumstances’ relied on are these: (1) President Roger Gerhardt was the only ‘authorized representative’ of Respondent and he should have been the one contacted on the original inspection; (2) an inadequate closing conference was held with Plant Manager Pattenaude; (3) the delayed issuance and mailing of the original citation; (4) the failure to specify in the citation a date for abatement of each item; (5) the vacations of President Roger Gerhardt and Repairman John Brown; and (6) the low gravity of the unabated violations.

These arguments help explain why Respondent was unable to abate some of the items in a timely manner, but they do not really legally excuse it for not doing so. Of course, they are advanced not as legal defenses but as an appeal justifying reduction, on equitable grounds, of the additional penalties proposed.

If President Gerhardt were on hand on the day of the original inspection, it is entirely possible that this proceeding would not have been instituted. He would have understood what needed to be done, when it was to be done, and, even more important, he could have exercised the requisite authority to see to it that it was done.[10] On the other hand, the inspecting official cannot be faulted for carrying out an inspection with Respondent’s plant manager, especially after being introduced to him by the Respondent’s board chairman. See Hawkins Construction Co., Dockets 503 and 598, dated March 1, 1973 Also, the times specified for abatement set forth in the dated citation (i.e., in terms of days) appear to satisfy the specificity requirement of section 9(a) of the Act.

The delayed issuance and mailing of the original citation, however, resulted in a disadvantage, if not prejudice, to the Respondent. When it did arrive, Respondent’s most responsible officer, President Roger Gerhardt, and the employee best able to abate violations, Mr. John Brown, were gone on vacation. The inspecting officer also acknowledged that he was not as explicit as he might have been at the closing conference about correcting any violations (Tr. 50, 64).

As indicated, supra, the Secretary had originally assessed a penalty of $65 for Item 2 on the basis that two machines were involved. Compliance Officer Corby testified that had only the gutter machine been cited on the original inspection as on re-inspection Item 2 ‘would have been rated as a zero penalty’ (Tr. 55, 69). In computing penalties on the original inspection, the Secretary allowed Respondent 5% for size, 20% for history and at least 10% for good faith (Tr. 52–3).[11] In assessing additional penalties for the continuing violations, the Secretary gave no consideration to Respondent’s good faith, size, history or gravity, but simply applied a mathematical formula which ‘automatically’ assessed a minimum penalty of $100 a day.

The Commission, and the Act,[12] indicate that all civil penalties, including those for continuing violations, must take into account an employer’s good faith, size, history and the gravity of the violation. The Secretary’s proposed assessment did not duly consider these statutory factors. See Beall Construction Company, Docket No. 557, dated February 21, 1974; The Murphy Company, Docket No. 445, dated March 22, 1974.

Respondent had a gross volume of about $800,000 and approximately 19 employees last year and is, thus, a relatively small business (Tr. 128–9). Its good faith has not been impeached. The record indicates Respondent is a cooperative employer and ready to correct any violation once it knows that there is one. Respondent employed a safety consulting firm and has spent ‘thousands of dollars’ to make its workplace safe (Tr. 91). Its only ‘history of previous violations’ under the Act is the Secretary’s inspection and citation in July 1963 (Tr. 33). Finally, the gravity of the continuing violations, usually considered by the Commission as the most important factor in assessing penalties (see, for example, Nacirema Operating Company, Docket No. 4, dated February 2, 1972) was not high (Tr. 45–6, 51–7). Inspector Corby explicitly conceded that the unabated items were violations of low level gravity (Tr. 51, 56–7).

Having considered the statutory factors in the light of the record, it is determined that a penalty of $100 for each unabated violation or a total penalty of $300 is appropriate under the Act.

Based on the foregoing, and the whole record, the following conclusions of law are entered:

1. Respondent is now, and at all times material herein, an ‘employer’ within the meaning of Section 3 (5) of the Occupational Safety and Health of 1970, and the Commission has jurisdiction of the parties and the subject matter.

2. The citation and notice of proposed penalty issued by the Secretary against Respondent on August 13, 1973, were not contested and, thus, became final pursuant to the provisions of Section 10(a) of the Act.

3. Continuing violations of Item 2(1), 3 and 5 as alleged in the Notification of Failure to Correct Violation and of Proposed Additional Penalty dated September 26, 1973, were established as the allegations were not timely contested as provided in Section 10(b) of the Act.

4. The additional penalties proposed for said continuing violations of Items 2(1), 3 and 5 are excessive and a total additional penalty of $300 ($100 for each) is assessed in lieu thereof.

Based on the foregoing, it is ORDERED that the Notification of Failure to Correct Violation and of Proposed Additional Penalty dated September 26, 1973 insofar as it alleges a continuing violation of 29 C.F.R. 1910.219(e)(1)(i), 29 C.F.R. 1910.212(a)(1) and 29 C.F.R. 1910.309(a) are AFFIRMED; the additional penalties of $880, $850 and $850 proposed for such violations (Items 2(1), 3 and 5) respectively, are VACATED and in lieu thereof an additional penalty of $100 for each violation or a total of $300 is hereby

ASSESSED.

Harold A. Kennedy

Judge, OSAHRC

Dated: June 4, 1974

[1] Section 10(a), Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 661 et seq., hereinafter referred to as ‘the Act.’

[2] Compare Secretary v. Star Circle Wall Systems, Inc., OSAHRC Docket No. 3271, March 9, 1976; Secretary v. Electrical Contractors Associates, Inc., OSAHRC Docket No. 10108, February 24, 1976; Secretary v. Boring & Tunneling of America, Inc., OSAHRC Docket No. 5782, December 29, 1975.

[3] See Secretary v. American Bag Co., OSAHRC Docket No. 3288, April 6, 1976; Secretary v. Boring & Tunneling Company of America, Inc., supra.

[5] See Staff of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 155, 194, 200–202, 298, 392, 424–426, 462–477, 981–982, 991, 1014, 1050, 1058, 1070, 1143, 1206 (Comm. Print 1971).

[6] Secretary v. Queen City Sheet Metal & Roofing, Inc., OSAHRC Docket No. 4322, November 6, 1976 (dissenting opinion).

[7] I have previously expressed this view in Secretary v. American Bag Co., supra, note 3.

[8] The ‘feed to air shear’ is not included in this proceeding (Tr. 41–2).

[9] The feed to air shear had been corrected (Tr. 41). Mr. Pattenaude testified that the employee able to make all the corrections, Mr. John Brown, was on vacation August 17–28, 1973. There was about nine days work involved in constructing all of the necessary guards (Tr. 113–122).

[10] Mr. George Gerhardt apparently has continued to exercise some authority in areas other than shipping and sales, at least in the absence of his son Roger. (Tr. 109, 111–12, 123–4.)

[11] A penalty worksheet prepared after the second inspection indicates Respondent was given ‘0’ for good faith, 5% for ‘size’ and 10% for ‘history’ (SX 5).

[12] Section 17(j) of the Act provides that the Commission

shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations (emphasis added).

Section 17(d) provides that

any employer who fails to correct a violation for which a citation has been issued under section 9(a) within the period permitted for its correction (which period shall not begin to run until the date of the final order of the Commission in the case of any review proceeding under section 10 initiated by the employer in good faith and not solely for delay or avoidance of penalties), may be assessed a civil penalty of not more than $1,000 for each day during which such failure or violation continues.