UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-224
GLENDALE MILLs INC.,
Respondent.

February 15, 1978

DECISION

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo is before the Commission pursuant to a direction for review by former Commissioner Moran issued under § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. Judge Furcolo vacated one alleged violation of an occupational safety and health standard and affirmed three other alleged violations of standards. He assessed a total penalty of $75 for those violations that he affirmed, recharacterizing an alleged repeated-nonserious violation as nonserious and assessing a $35 penalty rather than the $85 penalty that had been proposed by complainant.

No party has taken issue with those parts of the decision in which the Judge vacated an alleged violation and reclassified a repeated-nonserious citation as nonserious, assessing a reduced penalty. Accordingly, the Commission will not review these actions. Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1977–78 CCH OSHD para. ___ (No. 14281, 1977); see Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976–77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 87/A2, 4 BNA OSHC 1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976).

With respect to the alleged violations that were affirmed, respondent did not petition for review of the Judge’s decision and the direction for review did not specify any issues. Inasmuch as on review respondent resubmitted its post-trial brief, asking in effect that the Commission reconsider its arguments made before the Judge, and the Judge correctly decided the issues before him, we adopt the Judge’s decision. Gulf Oil Co., supra; see Phillip E. Runyan, d/b/a Chief Metal Products, 77 OSAHRC 184/D4, 5 BNA OSHC 1980, 1977–78 CCH OSHD para. 22,251 (No. 14005, 1977).

It is ORDERED that the Judge’s decision be affirmed.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: FEB 15, 1978

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-224
GLENDALE MILLs INC.,
Respondent.

November 22, 1976

APPEARANCES

Barnett Silverstein, Esq. for Complainant

Mr. Irwin Luxenberg and Mr. Carl Ross for Respondent

DECISION AND ORDER

Furcolo, Judge

This is a proceeding pursuant to the Occupational Safety and Health Act of 1970, as amended (29 USC, sec. 651 et seq.) hereinafter called the Act. The Complainant alleges that the Respondent has violated sec. 5(a)(2) of the Act (sec. 654) by not complying with Occupational Safety and Health standards.

The Respondent is a corporation engaged in the business of manufacturing knitwear and clothing and its business affects the commerce of the United States.

The Respondent’s worksite at 5601 55th Avenue, Maspeth, New York, was inspected by the Occupational Safety and Health Administration (hereinafter called OSHA) on December 19, 1975.

On or about December 31, 1975, the following Citations, together with Notice of Proposed Penalty, were issued against the Respondent:

Citation #1,

Item #1, the nonserious violation of standard 29 CFR 1910.37(q)(2)..... Zero

Item #2, the nonserious violation of standard 29 CFR 1910.23(d)(1)(ii)..... $40

Citation #2,

Item #1, the repeated nonserious violation of standard 29 CFR 1903.2(a)..... $85

Citation #3,

Item #1, the repeated nonserious violation of Standard 29 CFR 1910.215(a)(1)..... $85

On or about January 14, 1976, the Respondent filed Notice of Contest to the Citations and the penalties proposed therefor.

The pertinent words of the standards involved are:

1910.37(q)(2): ‘Any door . . . which is neither an exit . . . and which is so located . . . as to be likely to be mistaken for an exit, shall be identified by a sign reading ‘Not an exit’ or similar designation . . ..’

1910.23(d)(1)(ii): ‘Every flight of stairs having four or more risers shall be equipped with standard stair railing . . .. On stairways less than 44 inches wide having one side open, at least one stair railing on open side.’

1903.2(a): No OSHA poster.

1910.215(a)(1): Abrasive wheel had no workrest on left side; and the angular exposure of the grinding wheel periphery on left side exceeded one-fourth of the periphery.

EVIDENCE

The Respondent normally employs about 80 persons and it buys and sells materials in other states. It had two prior Citations for nonserious violations . . . Tr. pp. 5, 19, 21.

Efraim Zoldan testified that he has been a Compliance Officer for OSHA for over three years. During that time he inspected about 20 knitting factories. He had inspected and cited the Respondent for violations in April, 1976 (hereinafter called the April or First Inspection). The present inspection (hereinafter called the December or Second Inspection) was a follow-up to that First Inspection . . . Tr. pp. 18–22, 70. The Respondent has 80 employees but he only saw about 30 working there . . . Tr. pp. 19, 50, 51. Concerning Citation #1, Item 1, Zoldan testified the two doors in question (one in the warehouse and one in the Shipping Department) were both locked, had spider webs and obviously were not being used but each had an exit sign which could be illuminated but was not. Neither had a ‘No exit’ sign or anything similar . . . Tr. pp. 22, 79. If mistaken for an exit, the hazard was that a person might go to it and be trapped in a fire . . . Tr. pp. 33, 34. There were no arrows or signs in the vicinity pointing to an exit away from these doors. He did not see anything that looked like a change since his April, 1975 Inspection . . . Tr. pp. 42, 48, 80. The people at the Respondent’s job-site were cooperative and courteous except for one employee who just walked away from him . . . Tr. pp. 48, 63, 68. After the April Inspection, the Respondent’s Vice-President Ross had said the two doors in question would be changed from ‘Exit’ doors, the ‘Exit’ signs would be removed, and two other doors would be so designated instead . . . Tr. pp. 23, 76, 77, 113.

Carl Ross testified that he has been the Respondent’s Vice-President for 10 years. After the April Inspection, the Respondent had arrows and signs pointing to exits away from the doors in question. The doors in question had cobwebs and obviously were not exits . . . Tr. pp. 84, 85. He cannot say if the doors had exit signs . . . Tr. pp. 85, 115, 117. After the April Inspection, the Respondent agreed that the two doors would not be used as exits and, in fact, they had not been so used, anyway . . . Tr. pp. 93–95.

Concerning Citation #1, Item #2, Zoldan testified there was no railing on the right side of the stairway with five risers that were less than 44 inches wide. The hazard was that a person who fell five steps could break a leg or sustain other injuries . . . Tr. pp. 25, 33.

Carl Ross testified that the stairway, which leads into a truck well, is used primarily by truckmen. During the April Inspection there was no indication that a banister was necessary . . . Tr. pg. 86.

Concerning Citation #2, Item #1, Zoldan testified that in April, 1975, he had furnished the Respondent with an OSHA poster but it was not up anyplace at the time of the December Inspection. There were other posters of various kinds up in different places. He observed nothing that indicated any recent painting . . . Tr. pp. 26, 27, 107. A previous Citation for violation of 1903.2(a) had become a final order against the Respondent before the present Citation . . . Tr. pg. 27.

Carl Ross testified that for 14 years the plant is cleaned and painted every December by the Respondent’s employees. During the process, various signs must be taken down. Apparently some employee had taken the OSHA poster down and not replaced it. As soon as the Respondent was aware of it, which was probably right after the first of the year, it was immediately re-posted. There may or may not have been other signs up but there would have been none up in the area being painted. In mid-December, the plant was practically closed for production during the clean-up period . . . Tr. pp. 82–84.

Irwin Luxenberg testified that the Respondent’s plant was closed for several days in mid-December for painting. As soon as it was noticed that the OSHA poster had not been re-posted, he immediately replaced it sometime shortly after December 19th . . . Tr. pp. 100, 102.

Concerning Citation #3, Zoldan testified that the exposure of the grinding wheel on the left side of the bench grinder was 180 degrees . . . Tr. pp. 34, 53. A previous Citation for the same violation by the same machine had become a final order before this inspection . . . Tr. pg. 29. If the wheel broke, pieces could fly out and injure an employee . . . Tr. pg. 34. A workrest is fixed to the machine and must be adjustable so the opening is not more than 1/8th of an inch. The wooden block here does not qualify as a workest. It cannot be adjusted and it is permanently fixed to the machine with nails and screws . . . Tr. pp. 27, 28, 62–66, 72, 75. Exhibit R1 shows the bench grinder with two differences from its appearance in the December Inspection: 1.) the exposure in Exhibit R1 is less than 90 degrees whereas in December it was 180 degrees; and 2.) the wooden block in December was one inch in height whereas in Exhibit R1 another block has been added to make it three or four inches in height . . . Tr. pp. 62, 73, 74. When the opening is more than 1/8th of an inch, a finger or hand could go into it and injure the employee . . . Tr. pp. 34, 65. The opening was at least one inch . . . Tr. pg. 28.

Ross testified that the Compliance Officer would not tell him, specifically why the bench grinder was not all right . . . Tr. pp. 87, 88. Exhibit R1 shows the machine with some changes from the date of the December Inspection . . . Tr. pg. 73. the wooden block is a workrest . . . Tr. pp. 64, 119. The periphery of the wheel has to be exposed as much as it was in order to permit the Respondent’s working tools to get in . . . Tr. pg. 87. It would be impracticable to have a much larger wheel so that sufficient exposure would not exceed 1/4th of the periphery . . . Tr. pg. 87.

THE INSPECTION

Concerning the inspection, Luxenberg testified that he has been the Respondent’s Office Manager for 15 years. He had accompanied Compliance Officer Zoldan during the April walk-around but was not present at the December Inspection. The Respondent paid a penalty for the April violations involving the abrasive wheel and poster . . . Tr. pp. 6, 9–11, 27. (He also testified at some length about the April Inspection but that is not an issue in this hearing . . . Tr. pp. 97–99). The Respondent has an excellent reputation and has always cooperated and tried to comply with regulations . . . Tr. pg. 101.

Compliance Officer Zoldan testified that he presented his credentials, was accompanied on the walk-around by the Respondent’s Vice-President Ross, and he went over the items in detail with Ross and even took him to the various locations concerned and explained the lack of compliance . . . Tr. pp. 108–110. He was not denied access to the plant and Luxenberg was not there on December 19th . . . Tr. pp. 109, 110.

DISCUSSION

As concerns the December 19th Inspection, I find that the Compliance Officer presented his credentials, was accompanied on the walk-around by the Respondent’s Vice-President, and the inspection was properly conducted.

As concerns Item 1 of Citation #1, both sides agreed the doors in question were not used as exits. The Compliance Officer was positive and emphatic in describing the ‘exit’ signs on the doors whereas the Respondent’s witness, Ross, was not certain whether they were still there but did acknowledge they had been on the doors at some time. In that state of the evidence, it seems that a reasonable conclusion would be that the doors bore exit signs, and I so find.

The testimony of the witnesses differed on the question of whether there were arrows and signs in the vicinity pointing to an exit away from these doors. On that point, while I believe the witnesses were all equally credible, it would seen that Mr. Ross’ memory would be more reliable solely because he obviously would have been on the premises more, and more recently, than the Compliance Officer. I find that there were exit markings in the vicinity of the doors pointing away from them. However, that would not change the finding that the doors in question themselves bore exit signs so that the doors were likely to be mistaken for exits, and I so find.

As concerns Item 2 of Citation #1, there was no contradiction of the Compliance Officer’s testimony about the stairway or its use. I find it did not comply with standard 1910.23(d)(1)(ii).

As concerns Citation #2, there is no question that the Respondent did not have an OSHA poster in view on the date of the inspection. However, the Respondent’s testimony about the plant being practically closed during the yearly painting and clean-up seemed very logical and credible; and it was indirectly corroborated (to some extent, at least) by the Compliance Officer’s testimony that he only saw 30 employees in the plant. The Respondent’s witnesses admitted there was no OSHA poster up on the date of the inspection but said it had always been up and had been removed only temporarily during the clean-up, that its absence was inadvertent, and it was replaced shortly after December 19th or shortly after the first of the year. I see no reason to disbelieve that testimony. I find that the Respondent had substantially complied with its duty to exhibit the OSHA posters.

As concerns Citation #3, the Respondent did not really contradict the Compliance Officer’s testimony but merely took the position that the conditions described had to exist for its type of production; and that the Compliance Officer would not specify why the bench grinder in question was not all right. I find that the exposure of the periphery of the grinding wheel in question exceeded 1/4th of the periphery; and that the condition was hazardous in that, if the wheel broke, pieces of it could fly out and injure employees.

I find that the ‘workrest’ used by the Respondent was not adjustable, had an opening greater than 1/8th of an inch, and was not the kind of workrest required by the standard. It was hazardous to an employee whose finger or hand might go into its opening.

While the evidence establishes a violation of 1910.215(a)(1), the evidence falls short of proving it was a ‘repeated’ violation. The Complainant has proven that the Respondent had not complied with the identical standard several months before. It was the identical machine, in fact. However, a repeated violation is something more than merely a second violation. The Review Commission decision in Secretary v. General Electric Co., 17 OSHRC 49, indicates that ‘repeated’ comprehends a violation occurring more than once in a manner which ‘flaunts’ the requirements of the act. The Third Circuit Court of Appeals case of Bethlehem Steel Corp. v. OSAHRC, Docket 75–2301, says: ‘The mere occurrence of a violation of a standard or regulation more than twice does not constitute that flaunting necessary to be found . . .’ for a repeated violation.

In the instant case, I find that there was no evidence of conduct by the Respondent that would constitute ‘flaunting’ (i.e. flouting) of the Act. In fact, the Respondent had tried to correct the condition by attaching a wooden block to the machine. Without subscribing completely to the reasoning expressed in either of the cases cited above, it is clear that the Complainant is required to show that the Respondent’s conduct is in such disregard of the requirements of the Act that it would constitute ‘flaunting’ of its provisions. In the instant case, that has not been shown. I find that the Respondent did not comply with 1910.215(a)(1) but I find that the Complainant has not established that the non-compliance was a ‘repeated’ one.

On the same point of ‘repeated’, I also find that the second violation (being identical to the first and involving the identical machine) was a failure to abate rather than a repeated violation. The Compliance Officer testified that the second inspection was a ‘follow-up’ to see if conditions had been corrected after the first inspection. He testified that on the second inspection the machine in question and the violation in question were identical with the first inspection. In those circumstances, the violation would be a failure to abate rather than a ‘repeated’ offense.

FINDINGS OF FACT

Having heard the testimony, observed the witnesses, and examined the exhibits, the following Findings of Fact are made:

1. At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across state lines.

2. As concerns Item #1 of Citation #1, the two doors in question were likely to be mistaken for exits and neither had any sign indicating it was not an exit.

3. As concerns Item #2 of Citation #1, the stairway in question had more than four risers, had one side open, was less than 44 inches wide, and had no railing on the open side.

4. As concerns Item #1 of Citation #2, there was no OSHA poster posted on the date of the inspection because it had been removed during the annual December painting; it was replaced by the Respondent as soon as its absence was noted not more than two weeks later. The Respondent had substantially complied with the requirement of posting it.

5. Concerns Item #1 of Citation #3, the machine in question did not have a proper workrest on the left side.

6. As concerns Item #1 of Citation #3, the machine in question had an angular exposure of the grinding wheel periphery in excess of 1/4th of the periphery.

7. The conditions described in Item #1 of Citation #1 exposed the Respondent’s employees to sustaining harm because of the hazard of going to the wrong exit in the event of fire.

8. The conditions described in Item #2 of Citation #1 exposed the Respondent’s employees to sustaining harm because of the hazard of falling from the stairway.

9. The conditions described in Item #1 of Citation #3 exposed the Respondent’s employees to sustaining harm because of the hazard of the wheel breaking and flying pieces of it injuring the employee; and a finger or hand going through the improper workrest and being cut.

10. Although there had been two prior nonserious violations, the Respondent’s conduct did not amount to ‘flaunting’ the requirements of the Act.

11. One or more officers or supervisory personnel of the Respondent knew of the hazardous conditions described herein and knew that employees were exposed to such hazards.

CONCLUSIONS OF LAW

1. At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety and Health Review Commission has jurisdiction over the subject matter and the parties.

2. At all times concerned, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violations

3. On the date in question, the Respondent was not in compliance with standards 29 CFR 1910.37(q)(2); 1910.23(d)(1)(ii); and 1910.215(a)(1) and the Complainant has sustained the burden of proving the Respondent violated sec. 5(a)(2) of the Act (Sec. 654).

4. The Complainant has not sustained the burden of proving the Respondent violated standard 1903.2(a) or committed a ‘repeated’ violation of standard 1910.215(a)(1).

ORDER

The whole record having been considered, and due consideration having been given to 29 U.S.C., sec. 666(j) it is ordered:

1. Items #1 and 2 of Citation #1 are affirmed and a penalty of $40 is assessed for Item #2.

2. Item #1 of Citation #3 is affirmed only as a nonserious violation but not as a ‘repeated’ one; and a penalty of $35 is assessed therefor.

3. Citation #2, and the penalty proposed therefor, are vacated.

So ORDERED.

FOSTER FURCOLO

Judge, OSHRC

Dated: November 22, 1976

Boston, Massachusetts