ADM Grain Co., Inc.

Plain-English summary

ADM Grain received 12 other-than-serious maritime and workplace citations involving flotation devices, rescue and first-aid equipment, grain-spout certification, barge access, ladders, wire-rope clips, machinery guarding, accident reporting, and waste containers. The first judge vacated the entire case because the notice of contest reached the Commission after the procedural deadline. The Commission set that order aside and remanded, holding that the extreme sanction required an opportunity for OSHA to explain the delay and for ADM to show prejudice. On remand, the judge found that OSHA mailed the notice one day after receiving it, that the postal service caused the delay, and that ADM suffered no prejudice. He affirmed all citation items and the proposed penalties except the $30 penalty for the wire-rope-clip item, which he vacated because the condition had minimal gravity and was promptly corrected.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1918.106(b), 1918.96(d), 1918.96(b), 1918.96(e), 1918.13(a)(1), 1918.13(a)(2), 1918.13(a)(3), 1918.7, 1918.23(b), 1918.25(d), 1918.63(c), 1918.53(a)(1), and 1910.141(g)(2)
• Outcome: All 12 citation items were affirmed, while the $30 penalty for the wire-rope-clip item was vacated.
• Key point: A notice mailed within the forwarding deadline was not grounds for vacating the enforcement case when postal delay caused its late arrival and the employer was not prejudiced.

Full text (OSHRC public release)

ADM Grain CO., Inc.,, Docket No.1767

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 1767

ADM GRAIN CO. , INC.,

Respondent.

February 20, 1973

ORDER OF REMAND

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

BURCH, COMMISSIONER:

On January 19, 1973, the Judge issued his recommended order in this case vacating the
Secretary’s citation and inferentially the notification of proposed penalty for the latter’s failure
to comply with Commission rule 2200.32 requiring the Secretary to forward notices of contest to
the Commission within seven days of their receipt.

Pursuant to 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’), I am herewith directing that the
Judge’s order be reviewed by the Commission.

The Commission has reviewed the record and notes that on October 12, 1972, respondent
was issued a citation for 12 other than serious violations of the Act together with a notification of
proposed penalty totaling $375. A timely notice of contest was filed with the Secretary’s Area
Director on November 9, which was subsequently transmitted to and received by the
Commission on November 24—an intervening period of 15 days. Issue was thereafter drawn
with the exchange of the Secretary’s complaint and respondent’s answer, neither of which
referenced what would appear to be the Secretary’s failure to comply with the applicable
Commission procedural rule for filing the notice of contest with the Commission.

Commission rule 2200.32, which served as the predicate for the Judge’s vacating the
Secretary’s citation, requires the Area Director to forward notices of contest to the Commission
within seven days of their receipt. By virtue of that rule the Area Director had until November
16 to forward the notice of contest to the Commission. The record is absent any evidence as to
when the Area Director forwarded the notice of contest other than its receipt by the Commission
on November 24. Nor is there any reason present therein for the delay in transmitting the notice
of contest, if there was, in fact, a tardy transmittal. We do note that between November 16 and
24, there was a Saturday, Sunday and a national holiday.

While the Commission has in the past vacated the Secretary’s enforcement actions for
flagrant failure to comply with the subject rule (See Secretary of Labor v. Lennox Industries,
Inc., OSHRC Docket No. 1106; Secretary of Labor v. Brent Towing Co., Inc., OSHRC Docket
No. 1003, Petition for Judicial Review, Docket No. 72–3511, filed November 21, 1972, 5th Cir.;
Secretary of Labor v. Pleasant Valley Packing Co., Inc., OSHRC Docket No. 464) we will not
resort to the imposition of such an extreme sanction under the circumstances of this case absent a
showing of prejudice to the respondent. In Secretary of Labor v. J. Dale Wilson, Builder,
OSHRC Docket No. 1625, we stated that in cases of this kind the Secretary should be afforded
the opportunity to explain the delay and respondent the right to show that it has been prejudiced
thereby. Such opportunity is appropriate here also.

Accordingly, it is ORDERED that Judge’s order is set aside and the case is remanded for
a determination not inconsistent with this order.

MORAN, CHAIRMAN, dissenting:

This is another case where the Commission now refuses to observe one of its own
procedural rules because to do so will bring about a result it doesn’t like. This occurred
previously with Commission Rule 73(a) concerning the burden of proof Secretary v. Wright-Schuchart-Harbor Contractors , OSAHRC No. 559, decided February 15, 1973.

There were similar decisions in Secretary v. Thorleif Larsen and Son, Inc. , OSAHRC No.
370, decided January 17, 1973, and Secretary v. Chicago Bridge & Iron Company, OSAHRC
No. 224, decided January 19, 1973, where the Commission refused to follow the plain
requirements of a statute because it didn’t like the way an individual case would be decided by
so doing.

It makes one wonder where all this is leading.

Among the reasons for granting this 3-member tribunal the authority to change decisions
rendered by an individual trial judge is to establish uniform precedent. This is particularly
important since there are presently 41 such judges and there are bound to be cases where some of
them will render different interpretations of the same legal requirement. The ultimate purpose for
the existence of this authority is to effect a single authoritative interpretation of the Act upon
which those bound by its requirements can rely.

Unfortunately, that purpose is frustrated when the Commission members act on a case-by-case basis, apparently oblivious to all statutes, rules, or prior decisions which would compel a
result different from that which the members want to see achieved in the individual case before
them.

Decisions such as this indicate to me that the Commission has lost sight of its purpose
and has opted for the role of readjudicator. In Other words, the Commission member’s role,
these decision say, is the same as the judge’s role—to decide cases as we think they should be
decided. The cases, therefore, get two ‘hearings’—one by the judge who decides it the way he
thinks it ought to be decided—the other by the members who decide it the way they think it
ought to be decided.

This leads inevitably to the question—why should there be both judges and Commission
members, both with the exact same role?

This case has one additional aspect conveniently overlooked in the effort to explain away
this deviation from Commission Rule 32 and the several decisions in which it has been applied.
The Act in Section 10(c) requires that when an employer sends the Secretary of Labor a notice of
contest,

. . . the Secretary shall immediately advise the Commission of such . . . [emphasis
supplied].

In this case, there was a notice of contest in the hands of the Secretary on November 9 of
which the Commission was first advised on November 24 when it received a copy thereof. In
other words ‘immediately’ means 15 days. An interpretation as far out as this deserves an
explanation. But, alas, not an exegetic word is spoken or written on the matter.

Nevertheless, there are ominous indications in this decision that even further expansion
of the word ‘immediately’ may loom on the horizon. What else could this mean?

. . . the Secretary should be afforded the opportunity to explain the delay and
respondent the right to show that it has been prejudiced thereby.

I hesitate to answer my own question until there are examples, but theoretically
‘immediately’ could mean a rather extended length of time if the Secretary could give a logical
explanation and the employer was in no hurry for a hearing.

This rule, of course, overlooks some people who might be exposed to a hazardous
condition during this period, as well as the clear intent of Congress in enacting this law: early
abatement of conditions which are potentially hazardous to working men and women.

[The Judge’s decision referred to herein follows]

HARRIS, JUDGE, OSAHRC:

The Respondent in this record filed its notice of contest on the 15th day after receipt of
the citation. The notice of contest was mailed to the Complainant on November 6, 1972, and not
received by the Occupational Safety and Health Review Commission until November 24, 1972.
Absent circumstances to explain or mitigate the delay, a period of 18 days neither complies with
29 CFR 2200.32 or meets the requirement of 29 USC 651 et seq., (Section 10(c)). It is ordered
that the said citation be and the same is hereby vacated.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 1767

ADM GRAIN CO. , INC.,

Respondent.

November 26, 1973

RIEHL, JUDGE, OSAHRC:

This case is before us upon a remand from the Commission.

On October 12, 1972, Respondent was issued a Citation for twelve Other Than Serious
Violations of the Act together with a Notification of Proposed Penalty totaling $375. The
Citation alleged that an inspection of a workplace under the ownership, operation, and control of
the Respondent reveals the existence of workplace conditions that violated Section 5(a)(2) of the
Act for the reason that these conditions fail to comply with certain Occupational Safety and
Health Standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation alleged that the violations result from a failure to comply with standards
promulgated by the Secretary by publication in the Federal Register. The description of the
alleged violations contained in said Citation states:

Standard or
Regulation Allegedly
Violated

Description of Alleged Violation

Date On Which
Alleged Violation
Must Be Corrected

1

29 CFR 1918.106(b)

Failure to protect employees by
U.S. Coast Guard approved vest
against drowning.

Corrected at time of
inspection

29 CFR 1918.96(d)

Failure to provide Stokes basket
stretcher or its equivalent.

October 19, 1972

29 CFR
1918.96(b)

First aid kit did not
include splints.

October 19, 1972

4

29 CFR 1918.96(e)

Failure to furnish a ladder which
will reach from the top of the
apron to the surface of the water.

October 24, 1972

5

29 CFR 1918.13(a) (1,
2 & 3)

Failure to provide certification of
grain sprout (sic).

November 13, 1972

6

29 CFR 1918.7

Failure to file notification of
accident within 48 hours resulting
in an employee’s admission to a
hospital as a bed patient.

Corrected at time of
inspection.

7

29 CFR 1918.23(b)

Failure to provide a safe walkway
meeting the requirements of
1918.21(d) for access to barges.
‘Upriver’ access needed repairs on
gangway.

October 27, 1972

8

29 CFR 1918.25(d)

Failure to have 4 inches clearance
in back of ladder rungs. Portable
ladder used for barge access.

October 17, 1972

9

29 CFR 1918.63(c)

Failure where ‘U’ bolts wire rope
clips are used to form eyes, the
number and spacing shall be
determined by Table G–6. On
sprout (sic) and gangway.

October 27, 1972

10

29 CFR 1918.23(b)

Failure to provide a safe access to
barge from dock meeting the
requirements of 1918.21(d).
Employees required to step more
than one foot from ladder to barge.

October 27, 1972

11

29 CFR 1918.53(a)(1)

Failure to guard moving parts of
wrenches when they present a
hazard.

October 19, 1972

12

29 CFR 1910.141(g)

Failure to cover waste containers
in the lunchroom.

Corrected at time of
inspection

A timely Notice of Contest was filed with the Secretary’s Area Director on November 9,
1972, which was subsequently transmitted to and received by the Occupational Safety and
Health Review Commission on November 24, 1972, (an intervening period of 15 days). Issue
was thereafter drawn with the exchange of the Secretary’s Complaint and Respondent’s Answer,
neither of which reference what would appear to be the Secretary’s failure to comply with the
applicable Commission Procedure Rule for filing the Notice of Contest with the Commission.

Commission Rule 2200.32, which served as the predicate for the Judges vacating the
Secretary’s Citation, requires the Area Director to forward Notice of Contest to the Commission
within seven days of receipt. By virtue of that rule the Area Director had until November 16,
1972, to forward the Notice of Contest to the Occupational Safety and Health Review
Commission.

On January 19, 1973, Judge David H. Harris issued his recommended Order in this case
vacating the Secretary’s Citation and inferentially the Notification of Proposed Penalty for the
latter’s failure to comply with Commission Rule 2200.32 requiring the Secretary to forward
notices of contest to the Commission within seven days of receipt.

On February 5, 1973, the Commission received a Petition for Discretionary Review and
Motion for Summary of Reversal. The Petition alleged that had Complainant had notice of this
proceeding and been permitted to present evidence on the timeliness of his transmittal of the
Notice of Contest, the evidence would have shown that the Notice of Contest was received by
the Secretary on November 9, 1972, and was transmitted (mailed) to the Commission on
November 10, 1972, a time lapse of one day, not 18, as held by Judge Harris.

The Commission remanded the case to this Judge in order to give the Complainant the
opportunity to explain the delay and the Respondent the opportunity to show prejudice.

On April 12, 1973, a hearing was held in St. Paul, Minnesota, at which time these issues
as ordered by the Commission were covered by testimony. Additionally, evidence was presented
as to the reasonableness of the penalties and, over Complainant’s continuing objection, as to the
validity of ten items of the Citation.

THE QUESTION OF DELAY IN FORWARDING RESPONDENT’S NOTICE OF CONTEST

`The substantial probative evidence of record indicates that the Notice of Contest was
transmitted to the Commission well within the seven day limit set by Rule 32.

Commission Rule 32 (29 CFR 2200.32) reads: ‘The Secretary shall, within seven days of
receipt of a notice of contest, transmit the original to the Commission, together with copies of all
relevant documents.’

The testimony of Mr. Vernon P. Fern, Area Director, Occupational Safety and Health
Administration, established that the Notice of Contest was transmitted by OSHA to the
Commission one day after received. There was no evidence offered by either party to the
contrary. The Decision of the Occupational Safety and Health Review Commission indicates that
it received the notice from the Occupational Safety and Health Administration on November 24,
1972. Exhibit G–3 is a return receipt by the Post Office. The date of receipt stamped on the
return receipt is November 27, 1972. Fern testified that he personally supervises the processing
of all contested actions that are received by his office (T. 10). The actual preparation and mailing
of documents is performed by his personal secretary under his supervision (T. 11). It was Fern’s
testimony that his secretary was very efficient (T. 21).

Testimony was further that the ADM Notice of Contest was handled according to normal
office procedure. At the time it was received by the office on November 9, 1972, it was file
stamped in (T. 11). The date of receipt was noted in the official transmittal sheet to the
Commission (T. 11–12, G–1). Also the evidence shows that an office log is also kept on a case-by-case basis showing the employer’s name, date sent to the Commission, and a notation of
transmittal to the Regional Solicitor (T. 13–15, G–2). The log shown in evidence indicates that
Number 9, ADM’s Notice of Contest, was the only one received by the Minneapolis OSHA
office on November 9, 1972, and it was sent to the Commission on November 10, 1972. The
transmittal was made to the Commission via certified mail, return receipt requested (T. 15, 16).
The receipts for certified mail to the Commission (G–3, G–4) indicate a mailing date of
November 10, 1972, and receipt by the Commission on November 27, 1972. G–3 contains a
notation ‘OSHRCADM.’ This notation identifies the receipt as a transmittal of the ADM Notice
of Contest to the Commission. The date of mailing is typed up by Fern’s secretary. Fern testified
that certified mail is always mailed on the date typed in and that mailing is double checked by
him or his secretary (T. 20, 21). It was his testimony that there was no possibility that the mail
could have been held in the office (T. 21). Additionally, the file to the Regional Solicitor was
mailed using the same procedures as above at the same time as the mailing to the Commission
(T. 20–24, 27). The receipts for that mail (G–5 and G–6) indicate mailing on November 10,
1972, and receipt by the Regional Solicitor on November 13. G–6 contains a type notation
indicating the subject of the mailing to be ‘ADM.’ The certified number is sequentially the
number after that used for mailing to the Commission. Additionally, the November 10, 1972,
letter of transmittal to the Regional Solicitor states that the file had been transmitted to the
Commission on November 10, 1972. (T. 25, G–7).

The substantial, credible, uncontradicted evidence of record established to our
satisfaction that the date of mailing of Notice of Contest to the Commission could only be
November 10, 1972.

Unfortunately, we feel that such a delay is entirely possible in the state of the present
mail system of the United States. We personally have had a number of incidents involving rather
lengthy delays in mail. We have also had personal knowledge of situations in which mail has
been delayed in the last several years that have absolutely staggered us insofar as the inefficiency
of this mail service is concerned. Therefore, we must take judicial notice that it is quite possible,
and in this case, it did actually happen, that mail was delayed for the period of time as indicated
in this instant case.

Having established to our satisfaction that the mail was actually sent forth by the
Complainant on the dates indicated, then we must turn to the question of whether or not the
Respondent was materially prejudiced by the delay in receipt by the Commission of the Notice
of Contest.

We hold that they were not so prejudiced.

Respondent’s attorney admitted that the delay itself did not prejudice the Respondent in
any way (T. 22–23). Additionally, Respondent made no showing whatsoever of prejudice.
Accordingly, we can see no reason to vacate the Citation on the grounds or prejudice.

DISCUSSION

The Compliance Officer, Mr. Memmott, used a ‘penalty assessment sheet’ to arrive at his
conclusions during his testimony (T. 82, G–18). He took into account the gravity of the violation
including the number of employees exposed to the condition, the likelihood of injury to
employees, and the possible seriousness of the injury. He also considered the good faith, size,
and history of previous violations of the company (T. 83). The method used by Memmott in
assessing good faith was that he reduced the unadjusted penalty (G–18, Col. 5) by twenty
percent for Respondent’s good faith. This reduction was the maximum allowed under the
Occupational Safety and Health Administration policy, under which he operates, and was made
because Respondent did have some activity in safety and was cooperative and helpful in
connection with the inspection (T. 83, 84).

Memmott also reduced the unadjusted penalty by twenty percent since the subject
inspection was the first of Respondent in the Minneapolis area and Respondent thus had no
previous history of violations to Memmott’s knowledge. This twenty percent reduction was the
maximum allowed by the Occupational Safety and Health Administration policy (T. 85).

There was no reduction made for size in the unadjusted penalty since ADM has 25
employees at the workplace in question and between two and three thousand Nation-wide.

Item 1

The evidence establishes that the gravity of violation of Item 1 was moderate and the
adjusted penalty of $45 was appropriate for the violation of letting employees work on barges
unprotected by approved life jackets. The probability was moderate since the company records
did not reflect a high frequency of employees falling into the river (T. 87). No employees
observed by Memmott working on the barges were protected by life jackets.

Item 2

The adjusted penalty of $45 for the violation of Item 2 was appropriate under the
circumstances. Evidence establishes that a Stokes basket as required by 29 CFR 1918.96(d),
(G–12), was not provided at the worksite. The probability of injury was moderate since an
injured man in the hole of a barge could sometimes not be safely removed without immobilizing
and hoisting or carrying him out in a device which would not allow him to fall out (T. 48, 88).
The probability of serious injury was moderate since an injured man must be carefully handled
and could be further injured if improperly moved from the accident scene (T. 48).

It is to be noted also that Respondent did not demonstrate provision of an alternative to a
Stokes basket.

Item 3

The adjusted penalty of $30 for Item 3 was appropriate under the circumstances. Item 3
charged violation of 29 CFR 1918.96(b), (G–12), which required provision of splints in the first-aid kit. The first-aid kit provided did not contain such splints (T. 50).

The probability of seriousness of injury was moderate since a broken bone can be injured
further and blood vessels can be injured if the bone is not properly immobilized (T. 51, 89). In
this case exposure was high—the same as in the items aforementioned.

item 4

The adjusted penalty of $45 is appropriate for the violation of Item 4(29 CFR
1918.96(e)), (G–12). Probability of injury occuring from the lack of a ladder was moderate.

Item 5

The adjusted penalty of $45 for the violation of Item 5 (29 CFR 1918.13(a) (1, 2 and 3)),
(G–13), was appropriate. Item 5 required certification of certain types of grain spouts. The spout
on the side was not certified (T. 56). Grain spouts have a record of falling down at the least
expected time and that just because the spout in question appeared to be in fairly good condition
did not mean that it could not also fall down (T. 134). Failure to inspect therefore created an
actual hazard (T. 135). Serious injury or death could result from a failure of ADM’s spout (T. 59,
91–92, 160). Exposure to the hazard involved all deck employees.

Item 6

Item 6 was of such low gravity as to not warrant a penalty.

Item 7

The gravity of the violation of Item 7 was moderate. The adjusted penalty of $30 was
appropriate under the circumstances. This violation of 29 CFR 1918.23(b), (G–14), requires a
safe walkway for barge access. The evidence establishes that the existing walkway was unsafe
(T. 64).

There was moderate probability that employees using this walkway would fall and be
injured since boards and nails protruded and the handrail was loose (T. 68, 93, 138). Exposure to
injury was greater during slippery winter conditions (T. 68). Such injury could be serious,
requiring doctor’s care or even resulting in death (T. 68, 69, 92). Employees positioning moving
barges would be exposed to the hazard (T. 68).

Item 8

The adjusted penalty was appropriate as established by the evidence. Item 8 charged
violation of 29 CFR 1918.25(d), (G–15), which requires ladders to have 4 inches of clearance
behind the rungs to be considered safe. A portable ladder at the jobsite does not have such
clearance (T. 71).

Item 9

Evidence establishes that the Respondent has violated Item 9 (29 CFR 1918.63(c)),
(G–16), which requires that a specific number of ‘U’ bolt wire clips be used when eyes are
formed. Under the circumstances we feel that there was a minimal problem of gravity. The two
‘U’ bolt clamps anchoring each eye was tight and in good condition. Under the circumstances
there was little likelihood of injury from the absence of specific required number of such bolts.
This condition has been promptly corrected and we accordingly feel that the penalty of $30
should be vacated for Item 9.

Item 10

The gravity of the violation of Item 10 was moderate. The adjusted penalty of $30
however is appropriate under the circumstances. Item 10, 29 CFR 1918.23(b), G–14), which
requires provisions for safe access to barges being marked. Such access was not provided in that
all employees stepped across a three foot gap to reach the barge. The probability of injury was
moderate. There was however a possibility of severe injury should there have been such a fall
and we feel that the $30 penalty is indicated.

Item 11

The adjusted penalty of $45 is appropriate in Item 11. Item 11 charges violation of 29
CFR 1918.53(a)(1), (G–17), requiring moving parts of winches or other machinery be guarded
when they present a hazard to employees. The evidence establishes that a winch was not so
guarded. The probability of injury was significant in that an employee sometimes worked on the
winch to repair it while it was in operation, and employees also reached over the unguarded belt
to guide the winch line on a cylinder by hand. In order to do this the employee had to stand in a
precarious position on a rail (T. 100, 150–155). There was a very real possibility of severe injury
since an employee could get clothing caught or otherwise be pulled into the moving belt and
possibly loose a finger or cripple a hand (T. 78, 99, 155).

Item 12

The gravity of Item 12 was not severe enough to warrant a penalty and is not an issue.

FINDINGS OF FACT

1. The Respondent, ADM Grain Company, at all times involved was a corporation
   having its principal office in Decatur, Illinois (Complaint and Answer).

2. Respondent had an office and place of business at St. Paul, Minnesota where it was
   engaged in interstate transportation of grain by barge and rail (Complaint and Answer).

3. Respondent is an employer employing approximately 25 employees in a business
   affecting commerce at said workplace (Complaint and Answer).

4. Respondent’s workplace was inspected on September 29, 1972, by a Compliance
   Officer.

5. Respondent, on October 12, 1972, was issued a Citation for violation of Section
   5(a)(2) of the Occupational Safety and Health Act and 12 Occupational Safety and Health
   Standards duly promulgated pursuant to Section 6 of the Act. Also on the same date Respondent
   was issued a Notification of Proposed Penalty, covering each of the alleged violations and
   proposing a penalty to be assessed for ten items of violation listed in the Citation (Complaint and
   Answer, Citation, Notification of Proposed Penalties).

6. On November 9, 1972, Respondent filed with the Secretary a notification to contest the
   proposed penalties. This notification of the contest was transmitted to the Occupational Safety
   and Health Review Commission by certified mail on November 10, 1972 (Complaint, T. 15, 16,
   G–2, G–7).

7. The receipt of the Notice of Contest from the Area Director by the Commission on
   November 24, 1972, was no indication of any act or omission or negligence to forward on the
   part of the Secretary of Labor.

8. The Respondent was not prejudiced by any delay in the delivery to the Commission of
   the Notice of Contest (T. 22–23), and the Respondent so conceives.

9. A penalty in the total adjusted amount of $375 was proposed by the Complainant as
   follows:

a.

Item Number

Proposed Penalty

1

45.00

2

45.00

3

30.00

4

45.00

5

45.00

6

-0-

7

30.00

8

30.00

9

30.00

10

30.00

11

45.00

12

-0-

TOTAL $375.00

b. The amount of each proposed penalty considered

(1) The Respondent’s good faith in that Respondent did have some activity in safety and
showed concern for safety in that its agents afforded the Department of Labor investigator
cooperation during his inspection (T. 83, 84). A sum of twenty percent was deducted from the
unadjusted penalty for each item of good faith (G–8).

(2) Respondent had no history of violations in the Minneapolis Area (T. 85). Twenty
percent for no previous history of violations was deducted from the unadjusted penalty for each
item (G–18).

(3) Respondent employed 25 employees at the Drake Street workplace and employed two
to three thousand Nation-wide (T. 85–86). No deduction was made from the unadjusted penalty
because of Respondent’s large size (G–18).

(4) The gravity of each violation including the number of employees exposed to the
condition, the likelihood of injury to such employees, and the possible seriousness of injury (T.
83).

(a) The gravity of Items 6 and 12 was low (G–18).

(b) The gravity of Items 1, 2, 4, 5 and 11 was middle moderate (G–18, T. 43–45, 48,
52–54, 59, 78, 87–88, 91–92, 99–100, 134–135, 153, 160).

(c) The gravity of Items 3, 7 and 10 was low moderate (G–18, T. 51, 68–69, 71, 75, 77,
89, 92–98, 138).

10. The evidence establishes that the Citation was correct in fact with respect to Item 1 in that:

a. Respondent failed to protect employees by using U.S. Coast Guard approved life
jackets in violation of 29 CFR 1918.106(b), (G–11, T. 40–41, G–8, G–9).

b. This condition affected the safety of Respondent’s employees in that they could fall
into the river and sink under the water and drown without life jackets (T. 43, 44).

11. Respondent was in violation of 29 CFR 1918.96(d), (G–12, T. 44–46), in that he failed to
    provide a Stokes basket stretcher or its equivalent. This condition affected the safety of
    Respondent’s employees in that the means of safe removal of an injured employee from the
    interior of the barge was not provided (T. 48).

12. Item 3. Respondent was in violation of 29 CFR 1918.96(b) for failure to provide a first-aid
    kit that contained splints (G–12, T. 50). This condition affected the safety of Respondent’s
    employees in that broken bones can be further injured and blood vessels damaged if a broken
    bone is not immobilized by a splint (T. 89, 51).

13. Item 4. Contray to Occupational Safety and Health Standards, Respondent failed to furnish a
    ladder which would reach from the top of the apron to the surface of the water (G–12, T. 51, 52).
    This condition affected the safety of Respondent’s employees in that an employee who fell into
    the river could be disabled and require instant aid and safe removal from the water (T. 52–54).

14. Item 5. Contrary to Occupational Safety and Health Standard, 29 CFR 1918.13(a) (1, 2, and
    3), Respondent failed to provide certification of a grain spout (G–13, T. 56).

15. Item 6. The penalty for Item 6 is appropriate.

16. Item 7. Contrary to Occupational Safety and Health Standard, 29 CFR 1918.23(b),
    Respondent failed to provide a safe walkway meeting the requirements of 29 CFR 1918.21(d),
    (G–14, T. 64–68). This failure affected the safety of Respondent’s employees in that they could
    slip and fall on the unsafe gangway, seriously injuring themselves (T. 68, 69, 92).

17. Item 8. Contrary to Occupational Safety and Health Standard 29 CFR 1918.25(d), the
    portable ladder on Respondent’s dock failed to have four inch clearance in back of ladder rungs,
    creating a safety hazard (G–15, T. 71).

18. Item 9. Contrary to Occupational Safety and Health Standard 29 CFR 1918.63(c),
    Respondent failed to provide the proper number, as determined by Table G–6 of the standard, of
    ‘U’ bolt wire rope clips where said clips were used to form an eye (G–16, T. 75, 96).

19. Item 10. Contrary to Occupational Safety and Health Standard 29 CFR 1918.23(b),
    Respondent failed to provide safe access from the dock to the barge within the meaning of
    1918.21(d), (G–14, T. 77, 98). This condition affected the safety of Respondent’s employees in
    that they could slip and fall into the gap between the dock and barge covers and be injured (T.
    77, 98).

20. Item 11. Contrary to Occupational Safety and Health Standard 29 CFR 1918.53(a)(1),
    Respondent failed to guard moving parts of winches when they present a hazard (G–17, T.
    99–100, 150–155). This condition affected the safety of Respondent’s employees in that an
    employee could catch clothing or could otherwise be pulled into the moving parts, injuring a
    finger or hand or other parts of the body (T. 78, 99, 155).

21. Abatement dates were orally stipulated to be not in issue (T. 103).

CONCLUSIONS OF LAW

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

2. Respondent is and at all material times was an employer within the meaning of Section
   3(5) of the Act.

3. Inspection of Respondent’s workplace was conducted under the authority granted in
   Section 8(a) of the Act.

4. Respondent has violated Section 5(a)(2) of the Act by violating the Occupational
   Safety and Health Standards 29 CFR 1918.106(b), 29 CFR 1918.96(d), 29 CFR 1918.96(b), 29
   CFR 1918.96(e), 29 CFR 1918.13(a) (1, 2 & 3), 29 CFR 1918.7, 29 CFR 1918.23(b), 29 CFR
   1918.25(d), 29 CFR 1918.63(c), 29 CFR 1918.23(b), 29 CFR 1918.53(a)(1) and 29 CFR
   1910.141(g)(2) in the manner alleged in paragraph IV of the Complaint.

5. The violations of the aforementioned standards are not serious violations within the
   meaning of the Act.

6. The penalties proposed for Items 1, 2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 are appropriate and
   should be affirmed.

7. The penalty proposed for Item 9 is inappropriate and should be vacated.

8. The Area Director of OSHA timely transmitted the Notice of Contest to the
   Commission. The transmission of the Notice of Contest to the Commission was made on
   November 10, 1972. The notice was delayed by the U.S. Postal Service and arrived at the
   Commission on November 24, 1972. This delay in transmittal did not prejudice the Respondert’s
   rights to due process and a fair hearing.

DECISION

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED
that:

1. Citations 1, 2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 and their proposed penalties are affirmed.

2. The penalty on Item 9 is hereby vacated.