UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

October 2, 1974

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

CLEARY, COMMISSIONER:

On April 4, 1973, Judge Harold A. Kennedy issued his decision and order in this case, affirming the citations for one serious violation and seventeen non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as ‘the Act’). The penalties proposed for all non-serious violations were vacated and the proposed penalty of $500 for the serious violation was reduced to $100.

Pursuant to section 12(j) of the Act, Commissioner Van Namee directed that the decision and order be reviewed by the Commission. The issue on review is whether the citation is contested when the notice of contest, on its face, places only the proposed penalties in dispute.

The Commission has reviewed the entire record and finds no prejudicial error. The issue presented in this case is governed by the Commission decision in Florida East Coast Properties, Inc., No. 2354 (February 5, 1974). Where the notice of contest refers only to the proposed penalties, the citation and abatement period become a final order pursuant to section 10(a) of the Act. We, therefore, affirm the decision of the Judge in its entirety.

Accordingly, it is ORDERED that the decision of the Judge is affirmed.

VAN NAMEE, COMMISSIONER, dissenting:

I disagree with the majority’s conclusion that the propriety of a citation cannot be considered when the notice of contest refers only to the proposed penalties. I therefore dissent for the reasons set forth in my dissenting opinion in Florida East Coast Properties, Inc., OSHRC Docket No. 2354, BNA 1 OSHC 1532, CCH Employ. S. & H. Guide, para. 17,272 (Review Com’n., February, 1974).

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

April 4, 1973

KENNEDY, JUDGE:

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting two citations issued by the Complainant by Section 9(a) of that Act. One citation is designated Citation for Serious Violation No. 1 and the other is designated Citation No. 1, which contains 17 separate charges or ‘Items.’ Both citations allege that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at Main and Park Streets in St. Paul, Oregon, the Respondent violated the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.1

Both citations were issued on June 12, 1972. The citation for serious violation alleges that the violation results from a failure to comply with the standard promulgated by the Secretary and codified in 29 CFR 1910.219(e)(1). The description of the alleged violation contained in said Citation is as follows:

In the elevator a machine referred to as a ‘Grain Scalper’ had 4 belt drives located under 7 feet and unguarded. In the Clover Mill Area are 3 mills; each of these mills have about 4 drive belts which are exposed and unguarded. In the Feed Mill 4 mixer drive belts are exposed and not guarded. The drive belt on the bulk conveyor is exposed and not guarded. In the ‘Little Elevator’ is a clipper machine with about 4 belt drives exposed and not guarded. The ‘Seed Treater’ in the ‘Little Elevator’ has belt drives exposed and unguarded.

The standard promulgated by the Secretary provides:

(e) Belt, rope, and chain drives—(1) Horizontal belts and ropes. (i) Where both runs of horizontal belts are seven (7) feet or less from the floor level, the guard shall extend to at least fifteen (15) inches above the belt or to a standard height (see Table 0–12), except that where both runs of a horizontal belt are 42 inches or less from the floor, the belt shall be fully enclosed in accordance with paragraphs (m) and (o) of this section.

(ii) In powerplants or power-development rooms, a guardrail may be used in lieu of the guard required by subdivision (i) of this subparagraph.2

Respondent does not contest Items 1, 2, 3, 5, 6, 8, 10, 11 and 16 of the non-serious citation.3 Item No. 4 alleges violation of the standard appearing at 29 CFR 1910.25(d)(1)(x) in the following language:

(1) The 12 foot portable wooden ladder in the cleaning mill has broken rungs & the ladder was not tagged out of service.

(2) A portable wooden extension ladder located in the Middle Bay of the storage area had siderails split and rungs broken.

(3) The wooden ladder located in the ‘Little Elevator’ near the cleaner had broken rungs and was not tagged out of service.

The cited standard provides:

(d) Care and use of ladders—(1) Care. To insure safety and serviceability the following precautions on the care of ladders shall be observed:

(x) Ladders shall be inspected frequently and those which have developed defects shall be withdrawn from service for repair or destruction and tagged or marked as ‘Dangerous, Do Not Use.’

Said citation prescribes abatement of this alleged violation ‘immediately.’

  Item No. 7 alleges violation of the standard appearing at 29 CFR 1910.23(c)(i) in the following language:

(1) The storage area over the ‘Old Fumigator’ is about 6–1/2 feet above the ground level. This area is used for storage and does not have any type of rail protection. (2) The overhead platform near the stairs of the Cleaning Plant doesn’t have mid-rail protection, nor does it have toe board protection. (3) The storage level of the 3rd floor of the Feed Mill is about 12’ above the second floor, the rail protection varies between 30–1/2’ to 33–1/2’ and does not have either a mid-rail or toe boards. (4) The third level of the Feed Mill has a rail protection to guard an approximate 30 foot materials elevator shaft; the top rail protection is only 31 inches high and needs to be raised. The platform on the Fertilizer Leg is about 20 feet above the roof. The platform has no midrail.

The cited standard provides:

(c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

Said citation prescribes abatement of this alleged violation by July 5, 1972.

Item No. 9 alleges violation of the standard appearing at 29 CFR 1910.24(h) in the following language:

In the dock loading area the handrail protecting the stairs would not support 200 pounds and was in need of repair. The stairs to the cleaning plant were in need of mid-rail protection. The handrail on the stairs going to the third level of the Feed Mill was not able to sustain 200 pounds top rail pressure.

The cited standard provides:

(h) Railings and handrails. Standard railings shall be provided on the open sides of all exposed stairways and stair platforms. Handrails shall be provided on at least one side of closed stairways, preferably on the right side descending. Stair railings and handrails shall be installed in accordance with the provisions of § 1910.23.

Said citation directed abatement of this alleged violation by June 26, 1972.

Item No. 12 alleges violation of the standard appearing at 29 CFR 1910.157(c)(1)(i) in the following language:

In the Feed Mill, poison storage area, portable fire extinguishers are required. Class A1 extinguishers would be the minimum for this Type III storage area.

Nearest extinguisher is about 120 feet. The cited standard reads:

(c) Distribution of portable fire extinguishers—(1) General. (i) The number of fire extinguishers needed to protect a property shall be determined as prescribed herein, considering the area and arrangement of the building or occupancy, the severity of the hazard, the anticipated classes of fires, and the distances to be traveled to reach extinguishers.

Such citation directs abatement of this alleged violation by June 26, 1972.

Item No. 13 alleges violation of the standard appearing at 29 CFR 1910.157(a)(3) in the following language:

The portable extinguishers throughout the employer’s work place are covered over by heavy amounts of black dust and are very much obscured from view.

The cited standard reads:

(3) Marking of Location. Extinguishers shall not be obstructed or obscured from view. In large rooms, and in certain locations where visual obstruction cannot be completely avoided, means shall be provided to indicate the location and intended use of extinguishers conspicuously.

Such citation directs abatement of this alleged violation by June 26, 1973.

Item No. 14 alleges violation of the standard appearing at 29 CFR 1910.157(d)(3)(iv) in the following language:

The majority of portable fire extinguishers in the captioned employer’s work place did not have a tag attached to the extinguishers indicating the inspection date.

The cited standard reads:

(iv) Each extinguisher shall have a durable tag securely attached to show the maintenance or recharge date and the initials or signature of the person who performs this service.

Such citation directs abatement of this alleged violation by June 26, 1972.

Item No. 15 alleges violation of the standard appearing at 29 CFR 1910.157(d)(3)(i) in the following language:

A portable fire extinguisher in the Feed Mill did have an inspection tag attached to it. The tag reflected the last inspection was August 22, 1967. The extinguishers must be inspected within a year.

The cited standard provides:

(3) Maintenance. (i) At regular intervals, not more than 1 year apart, or when specifically indicated by an inspection, extinguishers shall be thoroughly examined and/or recharged or repaired to insure operability and safety; or replaced as needed.

Such citation directs abatement of this alleged violation by June 26, 1972.

Item No. 17 alleges violation of the standard appearing at 29 CFR 1910.179(m)(1)(ii) as follows:

A large number of broken wires in a concentrated area was observed. Too many to accurately count. The 3/8’ diameter wire needed replacement.

The cited standard provides:

(m) Rope inspection—(1) Running ropes. A thorough inspection of all ropes shall be made at least once a month and a full written, dated, and signed report of rope condition kept on file where readily available to appointed personnel. Any deterioration, resulting in appreciable loss of original strength, such as described below, shall be carefully noted and determination made as to whether further use of the rope would constitute a safety hazard:

(ii) A number of broken outside wires and the degree of distribution or concentration of such broken wires.

Such citation directs abatement of this alleged violation by June 26, 1972.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter from the Portland Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor, that the Secretary proposed to assess penalties for the violations alleged as follows:

After Respondent filed its notice of contest and the complaint and answer were filed, the case came on for hearing at Portland, Oregon on December 6, 1972. Respondent called George Bernards, one of the owners,5 and Michael W. Mahoney, an employee of Respondent who accompanied Mr. Thomas during the inspection. Proposed findings and a brief were filed on behalf of the Secretary. Respondent’s employees are not organized, and none sought to participate in the proceeding.

FINDINGS OF FACT

Jurisdiction—Respondent’s Business—Issues

The complaint alleges Respondent is a corporation maintaining a place of business and employment at Main and Park Streets in St. Paul, Oregon. It also alleges that Respondent prepares, sells and distributes feeds, seeds, fertilizers and other agricultural products received from outside of the State of Oregon. Respondent also allegedly receives and uses products and materials from outside of the State of Oregon and utilizes the mails, telephone and other interstate facilities. The complaint then concludes that Respondent was, and is, engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. These allegations are not denied, and it is therefore found that they are facts as alleged.

It is clear that there was no contest whatever as to non-serious Items 1, 2, 3, 5, 6, 8, 10, 11 and 16. As indicated (p. 8 supra), no penalty was proposed for any of these items. Counsel for the Secretary contends with respect to the other non-serious Items—Items 4, 7, 9, 12, 13, 14, 15 and 17—and the Citation for Serious Violation No. 1 that Respondent’s contest is limited to the issue of the propriety of the penalties proposed for the violations alleged therein. Respondent’s notice of contest of June 26, 1972 addressed to the Portland Area Director and signed by George Bernards reads (J3):

Dear Slr (sic):

This letter is to notify the Labor Department, that St. Paul Feed & Supply, Inc. wishes to contest the proposed assessment of penalties in the following citations before the Review Commission.

Yours Truly,

Section 10(a) of the Act provides:

Sec. 10(a) If, after an inspection or investigation, the Secretary issues a citation under section 9(a), he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 17 and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty. If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by an employee or representative of employees under subsection (c) within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

Section 10(c) provides in part:

(c) If any employer notifies the Secretary that he intends to contest a citation issued under section 9(a) or notification issued under subsection (a) or (b) of this section, or if, within fifteen working days of the issuance of a citation under section 9(a), any employee or representative of employees files a notice with the Secretary alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in accordance with section 554 of Title 5, United States Code, but without regard to subsection (a)(3) of such section. . . .

The Secretary points out that under the Act jurisdiction of the Review Commission can be invoked only by the parties. And when an employer invokes jurisdiction, his notice of contest may likewise limit the purposes for which Commission review is sought. Thus, it is said that a notice of contest may seek only to review the abatement time prescribed or, as here, the propriety of certain penalties proposed. It is true that the notice of contest filed herein is specific, unambiguous and clear; by its terms, it seeks review of only the penalties proposed for the Citation for Serious Violation No. 1 and non-serious Items 4, 7, 9, 12, 13, 14, 15 and 17. The Secretary’s Counsel is persuasive in arguing that under the provisions of the statute and the pleadings (including the notice of contest) filed herein, that it would have been prejudicial to the Secretary to have required him to establish at the trial more than the appropriateness of the penalties proposed for the serious citation and the contested non-serious items. While there may have been basis for a contrary view at one time (see Docket No. 93, Crosby & Overton, Inc., dated March 9, 1972 and Docket No. 689, Burik & Savko Lumber & Supply Co., Inc., dated January 2, 1973), the Commission’s recent amended decision of December 29, 1972, in Docket 1009, Brent Towing Company, Inc., indicates that the Secretary’s position is the correct one.6 Accordingly, it is held that as a matter of law Respondent violated 29 CFR 1910.219(e)(1) in a ‘serious’7 manner, and the standards appearing at 29 CFR 1910.25(d)(1)(x), 1910.23(c)(1), 1910.24(h), 1910.157(c)(1)(i), 1910.157(a)(3), 1910.157(d)(3)(iv), 1910.157(d)(3)(i) and 1910.179(m)(1)(ii) in a non-serious manner as alleged by failing to timely contest such charges. It is, therefore, necessary to determine only what penalties, if any, are appropriate for such violations.

THE PENALTIES

The determination of appropriate penalties under the Act must take into account the four factors set forth in Section 17(j) of the Act. That section reads:

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).

  Counsel for the Secretary undertook to establish the propriety of the penalties proposed for each of the contested items, primarily by seeking to show the hazards involved in each.

It is apparent that Respondent is a small business, although the record on this aspect shows little more than the fact that it employed eight to ten persons.8 It was on this basis that the Secretary gave Respondent 5% credit for ‘size’. The Secretary also acknowledged that Respondent had no ‘history’ under the Act and was entitled to full credit for that fact (20%) and for ‘good faith’ (20%). An additional 50% credit was given for promised abatement of the non-serious violations as provided in the Secretary’s Compliance Manual (Tr. 72–6). Respondent is, however, entitled to an independent evaluation of the four statutory penalty factors by the Review Commission. Docket No. 48, Dreher Pickle Company, dated February 13, 1972.

We begin such evaluation with the knowledge that Respondent is in fact a small business located in a relatively small community. According to the record, its two owners wait on the retail customers who telephone or call at the business (Tr. 127). Its owners are obviously conscientious businessmen who are concerned about the safety or their employees and safety record of their company. The gravity of the violations must be carefully considered as it is an important factor to be considered in determining the penalty to be assessed. See Docket No. 4, Nacirema Operating Co., Inc., dated February 7, 1972; Docket No. 85, National Realty and Construction Company, Inc., dated September 6, 1972 (appeal pending D.C. Cir.); Docket No. 91, Baltz Bros. Packing Company, Inc., dated February 8, 1972.

THE SERIOUS VIOLATION

According to the citation and complaint, belt drives in the (1) ‘Grain Scalper,’ (2) ‘Clover Mill,’ (3) ‘Feed Mill,’ (4) ‘bulk conveyor,’ (5) ‘clipper machine’ and (6) ‘Seed Treater’ were ‘unguarded.’ Respondent’s answer, filed by George Bernards as President of Respondent, alleges as follows in response to the allegations of the serious charge:

1. These belts were not unguarded. The guards were not up to the new standards, according to the inspector, but were changed before the Scalper was put in operation.

2. These three Mills were torn apart for repairs, and the guards were off at the time, but were installed before the Mills were put back into operation.

3. These belts were back behind the guard railing where employees never go.

4. This belt was also in a corner of the building unused by employees.

5. This Mill was also down for repairs, and guards were reinstalled before use.

6. These guards had also been removed, and the treater was apart between seasons.

A position statement filed with the Commission by Respondent’s attorney on November 12, 1972, reasserts that specific machines (1, 2, 5 and 6) were not in operation but concedes that existing guards did not meet the ‘new requirements’ (J 19).

Inspector Thomas, Employee Mahoney and Owner George Bernards testified on this charge (Tr. 45–53, 80, 84–8; 101–08, 119–25; 127–32, 149). Inspector Thomas testified that the drives referred to presented hazards to ‘hands, clothes and so forth’ which could result in possible death or serious injury unless properly enclosed (Tr. 45–6). Secretary’s Exhibit 1 is a photograph taken by Mr. Thomas on the day of his inspection to illustrate Respondent’s ‘guarding’ of its belt drives. The photograph shows two drives, one running in a vertical direction (behind a wooden shield) and one in a horizontal direction. The inspector thought the shield-guard over the vertical belt drive, estimated at ‘maybe a foot’ away from the wooden spout or ‘receptable . . . where you hang the sack on,’ was inadequate as ‘you can still get your hands in there’ Tr. 84). His recollection was vague as to the guarding of the other belt drives under challenge: he thought many were not guarded and ‘some of them could have been’ (Tr. 52; also 85). He did recall that many of the drives were ‘dormant’ as some of the machines were closed ‘down because it wasn’t the season’ (Tr. 52).

According to Mr. Mahoney, Inspector Thomas disregarded Respondent’s guarding efforts, choosing to say they each had ‘no guard’ (Tr. 104). Mr. Mahoney considered the guarding of the lower belt drive at the grain scalper (SX 1) as adequate. He also pointed out that the higher, horizontal belt drive in that area was not operating at the time of the inspection and that a plyboard guard had been removed for cleaning (Tr. 103–4). According to Mr. Mahoney, Respondent’s belt drives at a height below seven or eight feet were guarded when operating by a plywood guard, railing or chain gate. Further, employees would not be in the areas of the belt drives when running except for the clipper machine (which had to be adjusted while in operation).

Mr. Bernards testified that plyboard shield guards protected the lower belt in the scalper (which was ‘more like 18 inches away’ from the opening for the sack than one foot, Tr. 128), and the drives in the bulk conveyer, clover mill and the seed treater. Guard rails and plyboard shields protected the feed mill, and a chain gate ‘screened off’ the clipper machine. He added that these areas were inaccessible when the belts were operating. He also recalled that on the day of the inspection that the seed treater was broken down for oiling.

As has been indicated, the undersigned considers it beyond his power to find Respondent did not violate the cited standard as alleged in Citation for Serious Violation No. 1 because of the limited notice of contest filed. As a serious violation did exist as a matter of law, however, a ‘substantial probability that death or serious physical harm could result’ necessarily existed.9

Thus, the statutorily presumed violation necessarily carried with it a presumed degree of gravity. But for this presumption, however, the record would hardly justify any penalty; virtually all of Respondent’s machines were shut down on the day of the inspection and employee exposure was minimal.10

On the basis that a serious violation of 29 CFR 1910.219(e) existed as a matter of law, $100 is assessed. Respondent’s small size, good faith and favorable history cannot operate to further reduce a penalty for a serious violation.

Non-Serious Item No. 4

Item No. 4 and Paragraph V(1) of the complaint allege that three defective wooden ladders were in use in the (a) cleaning mill, (b) middle Bay storage area, and (c) ‘Little Elevator,’ contrary to the provisions of 29 CFR 1910.25(d)(1)(x). Respondent responded in its answer to this charge as follows:

1–A The ladder had one broken rung, and it was on the top part of the ladder, above the part that was used.

1–B The ladder did not belong to us, and was stored tied to the rafter of this building, to be out of the way.

1–C I am lost to find a ladder in this part of the building.

Respondent’s counsel reasserted Respondent’s position with respect to the storage area ladder (b), pointing out that it had been effectively ‘withdrawn from service’ by having been placed in the rafters overhead.

Inspector Thomas did not recall the first ladder referred to (a), much less which rung was broken. He conceded the second ladder (b) was in the rafters and not in use. He thought he remembered the third ladder (c) as it ‘was standing next to another ladder’ in the Little Elevator (Tr. 53–5, 82–3, 89–90).

According to Employee Mahoney the first ladder (a) had one missing rung at the top, but the ladder was hooked up into the beams so no one could have stepped on it. The second ladder (b) was, he said, stored away 10–12 feet above ground and never used to his knowledge. Neither Mr. Mahoney nor Mr. Bernards knew of any ladder in the area of the Little Elevator area that needed repair (Tr. 108–10; 132–5).

The evidence did not establish a violation, and of course the Secretary was not called upon to do so in the view of the notice of contest filed. But the Secretary’s vague evidence failed to show any real probability of injury. Thus, no penalty for Item No. 4 will be assessed.

Non-Serious Item N. 7

Item No. 4 and Paragraph V(2) of the complaint allege that railing and/or toeboard protection was deficient under 29 CFR 1910.23(c)(1) on the day of the inspection at these storage or platform locations: (a) 6–1/2’ over the ‘Old Fumigator’—no railings, (b) near the stairs of the Cleaning Plant—no midrail and no toeboard, (c) third floor of the Feed Mill 12’ above the second floor—no toe board, no midrail and too low (30–1/2’—33–1/2’) top rail, (d) third level of Feed Mill—30’ elevator shaft rail too low (31’) and (e) Fertilizer Leg 20 above roor—no midrail.

Respondent’s answer responded to this charge as follows:

2–A This area had not been used for years, except as a place to throw odds and ends, but we have installed a guard rail.

2–B We have installed midrails and toeboards.

2–C This has been replaced.

2–D This has been corrected.

2–E This platform was put there by the contractor who built the building, and not used by us, as you have to crawl over the roof of the building to get to it, but it has been fixed.

Using the citation as an aid, Inspector Thomas said he could recall some of the areas referred to. Specifically, he mentioned a missing railing on the old fumigator (a), missing midrails at the cleaning plant (b) and the fertilizer leg (e), the low (31’) top rail at the elevator shaft (d), and the ‘substandard’ top railing on the third floor of the feed mill (c) which operates ‘like a fulcrum type thing, where it can hit you lower and you have more possibility of falling. . . .’ Mr. Thomas pointed out that midrails provide ‘protection against sliding between the top rail and the area that you are walking on’ (Tr. 56–9).

Employee Mahoney described the old fumigator as a sealed room built inside of a building. There is no access (i.e., without a ladder) to the flat top, although discarded materials have been ‘tossed up there out of the way’ (Tr. 110–11, 118–19). Mr. Bernards pointed out that this was not a platform or work area at all (Tr. 135).

The area of the stairs in the cleaning plant (b) was a walkway, according to Mr. Mahoney. He said it had a top railing (only), but it was not a work platform (Tr. 111–12). He did acknowledge that there was only a top hand rail on the third floor of the feed mill (c) where feeds are mixed (Tr. 112). Mr. Bernards pointed out that this was an area where the flooring extended for a distance toward a sloping roof only to a point where it was usable. There is a handrail there, but he agreed that it was between 30’ and 33’ in height (Tr. 136).

Mr. Bernards described the area involved at the third level of the feed mill (d) as follows (Tr. 137):

That is a freight elevator and where you would unload off that freight elevator on the third floor, there is a portable gate that moves up and down with the elevator and the elevator goes fairly close to the roof, and so the gate was about as long as it could conveniently be, without making a folding gate, or something, and it was not 42 inches tall . . .

When the elevator gets within so many feet of the third floor, it picks that gate up and raises it with the elevator, yes; and then leaves it down and leaves it sitting at the entrance to the elevator shaft, on the way down.

In Mr. Bernards’ view there was no real danger there as usually there would be only one workman or so in the area and he would be on the elevator (Tr. 138; also Tr. 150, 112).

Finally, the fertilizer leg ‘platform’ (e) was installed by the contractor when building the elevator. It was not accessible (without a ladder) and not used in Respondent’s operations (Tr. 138–9).

The low railing at the elevator shaft in the feed mill (d) was really the only hazard presenting any real risk within the meaning of 29 CFR 1910.23(c)(1). Some protection was afforded there by the railing, even though the Secretary’s regulations called for it to be approximately 10’ higher.11 In any event, no penalty is appropriate in view of the nature of the violation and Respondent’s good faith, size and favorable history. See Docket No. 250, General Meat Company, Inc., dated June 20, 1972; Docket No. 123, J. E. Chilton Millwork & Lumber Co., dated May 15, 1972.

Non-Serious Item No. 9

Paragraph V(3) and Item No. 9 aver that stairway handrails would not support 200 pounds, (b) the cleaning plant—no midrail, and (c) the third level of the feed mill—would not support 200 pounds. Respondent answered with respect to this charge:

3–A These stairs only had three risers, and looking in your book did not require a hand rail, but we have put in new steps and hand rail.

3–B Midrail has been installed.

3–C The hand rail has been fixed.

It will be noted that Respondent’s answer and position statement of its counsel (J 19) sought to put in issue the application of the cited standard to its dock stairway (a). Subsection (d) of 29 CFR 1910.23, referred to in the cited standard, requires standard hand rails on stairs having ‘four or more risers.. .’

Respondent’s witnesses both testified that in using the dock stairway one would step on three steps or treads and then onto the platform (Tr. 113, 118; 139–40). Such testimony did not really contradict Mr. Thomas, who thought there were three stairs and four risers (Tr. 60). His recollection was that the feed mill rail was ‘really good’ but that one was ‘loose’ and another was ‘very wobbly’ (Tr. 60–1).

Again, the violation was not shown to be anything other than a low level one. In view of this and Respondent’s size, good faith and favorable history no penalty will be assessed. Docket No. 250, General Meat Company, supra.

Fire Extinguisher Violations

Non-Serious Items 12, 13, 14, and 15

Item No. 12 and Paragraph V(4) allege that portable (Class Al, Type III) fire extinguishers should have been in the poison area of the Feed Mill, and the nearest one was 120’ away. Item No. 13 and Paragraph V(5) assert that Respondent’s portable extinguishers were covered with black dust and ‘very much obscured from view.’ Item No. 14 and Paragraph V(6) allege that the ‘majority’ of Respondent’s extinguishers did not have dated inspection tags. And Item No. 15 and Paragraph V(7) assert that portable extinguishers in the Feed Mill had not been inspected since August 22, 1967. Such averments rely on the standards appearing at 29 CFR 1910.157(c)(1)(i), 157(a)(3), 157(d)(3)(iv) and 157(d)(3)(i), quoted under the Statement of the Case, supra.

Respondent’s answer pleads to these allegations as follows:

4. The fire extinguisher is exactly 60 feet away by tape measure.

5. The fire extinguishers were all covered with a piece of plastic, as we were in the process of sweeping down the walls and ceiling of the building, as we were between seasons at the time, and were giving the entire building a house cleaning and repairs.

6–7. All the fire extinguishers had been inspected by our local Fire Chief within the last year, and maybe he did not retag them.

The position statement of Respondent’s counsel (J 19) reasserted these contentions and added that Respondent’s ‘fire extinguishers had in fact been inspected in the winter of 1971–72.’

Inspector Thomas testified in a general way as to these charges. He acknowledged that Mr. Bernards had told him at the time of the inspection that the plant was ‘pretty well shut down because they were cleaning it’ (Tr. 80). Nevertheless, Mr. Thomas proceeded with the inspection and made critical note of the fact that ‘heavy, black, dark-colored material’ covered many of the fire extinguishers (Tr. 61). The closest fire extinguishers to the poison area of the feed mill he said he paced off at 120’ (Tr. 63). He said he saw a ‘relic’ of a fire extinguisher which he thought had not been recently serviced (Tr. 61–2). He agreed that he was told at the time of the inspection that the fire extinguishers had been recently checked by the fire chief; but he added they were not tagged, and this was a ‘technical violation’ (Tr. 81–2, 90–1).

Employee Mahoney and Owner Bernards testified that a fire extinguisher was stationed (on a 6 x 6 post) within 60′ of the poison area. It, as well as other fire extinguishers, was covered with black plastic because of the cleaning operation in process. According to Mr. Bernards, the feed mill building itself was only 120’ long, and an extinguisher so labeled was about ‘in the middle of it.’ There were others in the same building also. See Tr. 114–15, 117–18, 141–2, 151–3.

Mr. Bernards testified that Respondent’s fire extinguishers are checked out after each freezing season (‘I think it was in February’). They were not tagged and dated, he said, becuase he did not know the federal regulations required it (Tr. 143–4).

The evidence on these charges, again, does not establish any real probability of injury resulting from violation of the cited Standards. Having given due consideration to Section 17(j) of the Act as applied to the evidence, no penalty will be assessed for Items 12, 13, 14 and 15.

Non-Serious Item No. 17

Item No. 17 and Paragraph V(8) allege that a 3/8 inch (Truck hoist) cable or wire rope needed replacement as ‘a large number of broken wires in a concentrated area’ was observed at the time of the inspection. The complaint asserts that ‘approximately twenty wires out of thirty-two’ were broken.

Respondent’s answer asserted with respect to this charge:

8. We had a new cable and pulley ordered for this at the time, and there is a lot more than 32 wires in a 3/8 cable.

Mr. Thomas, the inspecting official, identified Secretary’s Exhibit 2 as a photograph he took of the cable in question at the time of his inspection. While testifying he drew an arrow on the picture to indicate the area of the frayed wires. He testified that there were numerous strands broken—too many to court accurately, ‘many more than . . . 10.’ On cross-examination he declined to estimate the number of strands in a 3/8 inch cable without being able to look at a cross-section of the cable. He denied being the source of the statement in the complaint to the effect that approximately 20 of the 32 strands were broken. He did recall that the ‘Employer told me at the time that they were contemplating repair of the cable’12 (Tr. 66–9, 77–9, 87, 91–2).

Employee Mahoney said he was familiar with the cable referred to in Item 17 and that it was one cable (on one side) of a motorized two-cable hoist device used in lifting the front wheels of a pick-up or other type of truck. The cable ‘would be taking a quarter of the load’ or the weight of one-half of the front-end of a vehicle. According to both defense witnesses, only a small fraction of the strands were frayed. In Mr. Bernards’ view the cable still had working strength necessary to raise ‘8 to 10,000 pounds.’ According to him, the cable was not worn but had been ‘cut a little.’ See Tr. 115–17; 144–7.

As previously noted, Respondent’s notice of contest filed herein precludes finding that the violation alleged in Item No. 17 did not occur. The evidence on this issue—which includes inconclusive testimony on the part of the inspecting official and positive defense evidence as to the condition and use of the wire cable—indicates that the gravity of the violation was one of low level. This fact and Respondent’s size, favorable history and good faith require that the penalty proposed for Item 17 be vacated.

Based on the foregoing, and the whole record, the following are entered as:

CONCLUSIONS OF LAW

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

2. Respondent violated the standard appearing at 29 CFR 1910.219(e)(1) in a ‘serious manner within the meaning of Section 17(k) of the Act as a matter of law as Respondent did not timely file a notice of contest as to Citation for Serious Violation No. 1, dated June 12, 1972, as provided in Section 10 of the Act.

3. Respondent violated in a non-serious manner the standards appearing at 29 CFR 1910.25(d)(1)(x), 1910.23(c)(1), 1910.24(h), 1910.157(c)(1)(i), 1910.157(a)(3), (1910.157(d)(3)(iv), 1910.157(d)(3)(1), and 1910.179(m)(1)(ii) as a matter of law as Respondent did not timely file a notice of contest as to Items 4, 7, 9, 12, 13, 14, 15 and 17 of Citation No. 1 dated June 12, 1972, as provided in Section 10 of the Act.13

ORDER

Based on the foregoing findings of fact, conclusions of law and the entire record, it is ORDERED:

1. Citation for Serious Violation No. 1 dated June 12, 1972 is AFFIRMED.

2. Non-Serious Items 4, 7, 9, 12, 13, 14, 15 and 17 of Citation No. 1 dated June 12, 1971 are AFFIRMED.

3. The $500 proposed penalty for Citation for Serious Violation No. 1 dated June 12, 1972 is vacated and a penalty of $100 in lieu thereof is assessed.

4. The penalties proposed for Items 4, 7, 9, 12, 13, 14, 15 and 17 of Citation No. 1 dated June 12, 1972 are vacated.

1 Section 5(a)(2) requires that each employer subject to the Act ‘shall comply with occupational safety and health standards promulgated under this Act.’

2 The cited standard is limited to horizontal belts and ropes. Other subparagraphs of 1910.219(e) are concerned with vertical belts, vertical and inclined belts, sprockets and chains, etc.

3 Such Items allege violation of standards appearing at 29 CFR 1910.27(d)(1)(ii)(#1), 1910.27(c)(4)(#2), 1910.27(d)(3)(#3), 1910.22(a)(1)(#5), 1910.23(a)(6)(#6), 1910.23(c)(2)(#8), 1910.219(f)(1)(i)(#10), 1910.22(d)(1)( #11) and 1910.179(b)(5)(#16), respectively.

4 Paragraph X of the complaint erroneously asserts that a total penalty of $710.00 was proposed by the Secretary (Tr. 25–6).

5 George Bernards and his brother, Albert Bernards, own the stock of Respondent (Tr. 126).

6 In Brent Towing, a Review Commission Judge undertook to vacate certain uncontested proposed penalties and items of a Citation. The Commission held that: ‘According to the terms of section 10(a) of the Act such items and proposed penalties became a final order of this Commission upon passage of 15 working days from Respondent’s receipt of the notification of proposed penalties.’ And in Docket No. 91, Baltz Bros. Packing Company, dated February 8, 1973, the Commission stated: ‘Finality may be achieved only according to either of two alternative courses available to a cited employer. The employer may consent to the proposed penalties by not filing a notice of contest. In such event the proposed penalties become a final order of the Commission by operation of law in accordance with the provisions of section 10(a) or 10(b). On the other hand, the employer may file his notice of contest to thereby submit the issue of the appropriateness of the proposed penalty for judicial determination by this Commission . . . See also Docket 435, The Ceco Corporation, dated September 27, 1972.

7 Section 17(k) provides that a ‘serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.’

8 Respondent did not deny the allegations of the complaint that as many as 10 employees were ‘affected’ by the contested violations. Employee Mahoney testified that there were five to seven employees at Respondent’s plant on the day of the inspection (Tr. 124). Respondent likewise did not deny that its business affected commerce.

9 See section 17(k) quoted, supra, p. 13.

10 If gravity were determined on the basis of the evidence as in the usual case, obviously there could have been no serious violation. There was (1) virtually no employees exposed to the risk of injury from the belt drives on the day of the inspection (2) for any period of time and (3) thus no real probability of injury. And while the guarding may have been inadequate under the standard, (4) Respondent had taken some precautions against injury. See Docket No. 85, National Realty and Construction Company, supra.

11 29 CFR 1910.23(e)(1) provides in part that a ‘standard railing consists of a top rail, intermediate rail, and posts, and shall have a vertical height of 42 inches . . .’

12 Respondent’s answer concludes with the statement that ‘all corrections have been made before the due dates.’

13 Non-serious items 1, 2, 3, 5, 6, 8, 10, 11 and 16 as well as the penalty proposed therefor (none) became final and are not before the Review Commission.