Jeanette M. Gould, d/b/a Gould Publications (Commission decision, July 19, 1994)

Plain-English summary

Gould Publications operated a law-book publishing facility with a basement pressroom containing large quantities of paper, ink, and flammable cleaners. The Commission found that a locked door intended as an exit could delay employees escaping a fire even though other routes were available. It also found that both pressroom exit doors violated the rule requiring doors from a high-hazard room to swing in the direction of exit travel. The Commission affirmed the locked-exit item with a $420 penalty and completed affirmation of the door-swing item with a total $640 penalty. It vacated an OSHA-poster item because the Secretary did not prove that OSHA had furnished a poster to the employer.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.36(b)(4), 1910.37(f)(2), and 1903.2(a)(1).
• Outcome: Mixed. Two serious exit items were affirmed with combined penalties of $1,060, while the OSHA-poster item was vacated.
• Key point: Other available exits do not excuse a locked or inward-swinging exit when the cited condition can delay escape from a high-hazard work area.

Full text (OSHRC public release)

    OCCUPATIONAL          SAF#i’%~E%‘?li~cik”lEW                COMMISSION

One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

. zh (202) 6w-5050
FTS(202) 0o64050

.

SECRETARY OF L&3OR, ..

Complainant,
..
..

v. .. OSHRC Docket No. 89-2033
.

JEANETTE M. GOULD, d/b/a
GOULD PUBLICATIONS,
..

Respondent.
..

DECISION
BEFORE: WEISBERG, Chairman;\ FOULKE and MONTOYA, Commissioners. BY THE COMMISSION:
At issue in this case is whether Jeanette M. Gould, d/b/a Gould Publications
(“Gould”), which publishes law books at its facility in Binghamton, New York, failed to comply with two means of egress standards and an OSHA poster regulation promulgated by the Occupational Safety and Health Administration (“OSHA”), under the Occupational Safety and Health Act of 1970,29 U.S.C. $8 651-678 (“the Act”). Administrative Law Judge Richard W. Gordon vacated citation items involving the three conditions at issue. For the reasons that follow, we reverse the judge and affirm the means of egress items, and we affirm the judge’s vacating of the poster item.’

‘Both parties filed petitions for discretionary review, but review was directed, and briefs were requested, only as to the citation items that the judge vacated. E.g. Bay State l&J Co., 15 BNA OSHC 1471, 1476, 1992 CCH OSHD ll 29,579, p. 40,025 (No. 88-1731, 1992) (the Commission need not address issues not actually directed for review or specified in the briefing notice). This was reiterated in our July 20, 1993, order to the parties. 2

I. Alleged Setious Violationof 29 C.F.R § 1910.36(b)(4) In citation no. 1, item 1, OSHA charged that by locking an unmarked door along the
west wall of its basement pressroom during working hours Gould violated 29 C.F.R. 5 1910.36(b)(4): which sets out general requirements for means of egress. The cited door is an operable door that leads directly to the sidewalk outside. At the time of the inspection, the small knob on the door’s dead bolt lock had been turned to the locked position.
Under Commission precedent and the language of the standard, to prove that a locked door violates section 1910.36(b)(4), the Secretary must show that the locked door (1) is an “exit” and that it (2) deprives employees of unobstructed egress from the areas in which they work. See Spot-Bilt,Inc., 11 BNA OSHC 1998, 2000-01, 1984-85 CCH OSHD ll 26,944, p. 34,552 (No. 79-5328, 1984).
To be an “exit” a door must meet the definition at 29 C.F.R. 8 1910.35(c), which provides that an:
[e]xit is that portion of a means of egress which is separated from all other spaces of the building or structure by construction or equipment as required in this subpart [Subpart E--Means of Egress] to provide a protected way of travel to the exit discharge.
The evidence in this case indicates that the locked door is an exit within the meaning of section 1910.35(c) because it is separated from all other spaces of the building and provides a protected way of travel. The evidence also establishes that this door is intended to be an

2The standard provides:

1910.36 General requirements.
iI$ ‘Fundamental requirements.

(4) ‘In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel [are] continually on duty and effective provisions are made to remove occupants in case of fire or other emergency.
 3
exit. See generallyHa&my/Brighton Corp. (“Hacbzey”), 15 BNA OSHC 1884, 1886, 1991-93 CCH OSHD ll 29,815, p. 40,617 (No. 88-610, 1992) (door was a means of egress under 29 C.F.R. 8 1910.37(j) because it could be opened from inside and was intended to be a means of egress). Gould’s managers testified that this door is not an exit or a “fire door.” However, this case is unlike Spot-Bilt,11 BNA OSHC at 2001, 1984-85 CCH OSHD at p.
34,552, in which the Commission found no violations of 29 C.F.R. $0 1910.37(k)(2) and 1910.37(q), which concern maintenance and marking of exits, because the cited door’s identity as an exit was eliminated. Here the door was clearly intended to be an exit. Along with the other west wall door, it was unlocked at the start of every workday, locked at night, and left open in warm weather. Also, the door has a doorknob and can be opened from the inside when not locked. Access to the door is not blocked, and even Gould’s owner admitted that the door is “access[i]ble to everybody.” . We also find that the record shows that the locked door deprived Gould’s employees of free and unobstructed egress. We do not base our finding merely on the fact that the door was locked. Section 1910.36(b)(4)‘s requirement that free and unobstructed egress be provided does not require that all doors be unlocked so long as there is otherwise free and unobstructed egress from all parts of the building at all times when it is occupied. Spot-Bilt, 11 BNA OSHC at 2001, 1984-85 CCH OSHC at p. 34,552 (Secretary had not proven, and Commission could not envision, any type of emergency in which door cited there posed a hazard in light of the five other doors available).3 We base our finding on the evidence here, which shows that the approximately 60 feet by 60 feet room contained a large quantity of printing paper, ink, and several flammable

31n Commissioner Foulke’s view, the clear purpose of the standards found in section 1910.36(b)(4) is “to assure that workplaces have adequate exits in the event of a fire or other emergency.” Spot-Bib, 11 BNA OSHC at 2000, 1984-85 CCH OSHD at p. 34,55 1.
Therefore, to establish a violation of section 1910.36(b)(4) the Secretary must “prove that the locked door deprives employees of free and unobstructed egress from the areas of the building or structure in which they work.” Id. at 2001, 1984-85 CCH OSHD at p. 34,552.
He also emphasizes that, while the standard clearly “precludes an employer from locking all of the doors leading to the outside of a building, . it does not logically follow that the l l

standard precludes the locking a single door when other means of egress are readily available.” Id.
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cleaners. The evidence also indicates that in the event of a fire, the locked dead bolt on the cited door could prevent the quick escape of any of the four employees who regularly work in the room and would be accustomed to the door being unlocked. Although there were other routes to the outside (a west wall door about 30 feet away and, on the other side of the room, a stairway to the first floor), we find that the evidence does not estabhsh that their presence eliminated the hazard posed by the locked door. See Hackney, 15 BNA OSHC at 1886, 1991-93 CCH OSHD at p. 40,617 (29 C.F.R. 8 1910.37(j) violation despite presence of several other doors); see also Hamilton Fixture, 16 BNA OSHC 1073, 1094, 1993 CCH OSHD ll 30,034, p. 41,190 (No. 88-1720, 1993), afd on other ground&,No. 93-3615 (6th Cir. July 1, 1994) (not recommended for publication) (hazard of blocked fire door (29 C.F.R. 8 1910.37(k)(2) citation) not diminished by existence of other door).
We therefore conclude that the Secretary has established a violation of section 1910.36(b)(4)! We also find that the violation is serious, as alleged, under section 17(k) of the Act of 1970, 29 U.S.C. 5 666(k), based on the compliance
officer’s unrebutted testimony that death or serious physical harm could result from delays in exiting during an emergency due to the locked door.
Section 17(j) of the Act, 29 U.S.C. 8 666(j), provides that in assessing penalties the .
Commission should give due consideration to the size of the employer, the gravity of the violation, the good faith of the employer, and the “history of previous violations.” OSHA proposed a penalty of $420. Gould has less than 50 employees, and a good history. In determining the gravity of a violation, we consider the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the degree of probability that any injury would occur. E.g., J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214, 1991-93 CCH OSHD li 29,964, p. 41,033 (No. 87-2059, 1993). We conclude that the gravity in this case was low to moderate based on the facts that four employees were exposed to the hazard, other means of exit were present, and the probability of injury was not insignificant.

4Chairman Weisberg does not rely on Spot-Bib in agreeing with his colleagues that the standard was violated. 5

We extend some credit for good faith in light of Gould’s immediate
abatement of the
violation. Based on the factors above, we -assess a penalty of $420.
II. Alleged Serious violationof29 C.F.R fi 1910.370 (2) OSHA charged in citation no. 1, item 2, that the two west wall doors in the pressroom, one of which, as discussed above, was locked, while the other was unlocked, are in violation of 29 C.F.R. fj 1910.37(f)(2),5 because they do not swing in the direction of exit travel. It is undisputed that the doors swing inward, which is not the direction of exit travel.
Although the judge affirmed the item as to the unlocked door, he halved the penalty based on his finding that the locked door was not an “exit,” in effect vacating-that portion of the . item.
We find, however, that a violation was established as to the locked door. In deciding the section 1910.36(b)(4) item above,.we found that this same locked door, which provides a protected way of travel leading directly to the sidewalk on the outside of the building, is an “exit” under section 1910.35(c). Under the terms of section 1910.37(f)(2), we find that the locked door can also be considered a “door from a room to an exit.” Because it does
not swing in the direction of exit travel, we conclude that Gould violated section
1910.37(f)(2) as to the locked door, as well as the unlocked door.
Although review was directed only on the issue of whether the judge erred in reducing the penalty by half and thereby vacating the item as to the locked door, Gould argues that the room was not proven to be a “high hazard” area as required by the standard.
Having reviewed the record, we adopt the judge’s finding that the room was a “high hazard”

‘The standard provides:

1910.37 Means of egress, general.
...
0 Access to exits. iij ‘A d oor from a room to an exit or to a way of exit access shall be of the side-hinged, swinging type. It shall swing with exit travel when the room is occupied by more than 50 persons or used for a high hazard occupancy.
 6

area due to the presence of flammable liquids and large quantities of paper? We also find that the violation is serious, as alleged, in light of the compliance . officer’s testimony that the doors opening inward would pose an impediment to quick escape in the event of fire or other emergency and thus could cause serious injury.
The Secretary proposed a combined penalty of $640 for the two items. Based on the
penalty factors in section 17(j) of the Act noted above, especially the considerable gravity of the violation because the doors not swinging in the direction of travel could delay employees trying to escape in the event of fire or other emergency, and there being no evidence of good faith regarding this item, we assess a penalty of $320 for the violation at the locked door. Adding this to the judge’s assessment of $320 for the violation at the unlocked door (not on review) yields a combined penalty of $640 for this item.
III. Alleged Violationof 29 C.F.R § 1903.2(a)(l) In citation no. 2, item 1, OSHA alleged that Gould violated 29 C.F.R. 5 1903.2(a)(l), which requires:
Each employer shall post and keep posted a notice or notices, to befuntished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act. . . Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. . . .
(Emphasis added). OSHA characterized the violation as other-than-serious and proposed that no penalty be assessed.
The only evidence concerning this citation is the testimony of the compliance officer
that, when he asked Gould management if he could see the OSHA poster, which informs employees of their rights and obligations under the Act, he was taken to an employee bulletin board where there was no OSHA notice. Gould does not dispute that it did not post the OSHA notice, but it argued in its post-hearing brief, for the first time in this case,

61n its brief on review Gould argues that if the two doors were to swing outward, in the direction of travel, (1) an employee could fall while exiting through the door because of the immediate step outside the door, and (2) because the doors open over the sidewalk, people walking along the sidewalk would be in danger of being hit by an opening door. However, Gould did not establish by the evidence that these circumstances posed a greater hazard to its employees than a delay in exiting during a fire or other emergency. that no citation should have been issued because OSHA had not provided it with a copy of the OSHA notice. The judge agreed and vacated the item, citing Anderson Excavating and Wrecking Co., 11 BNA OSHC 1837, 1839,1983-84 CCH OSHD 7 26,806, p. 34,286 (No. 81. 1271,1984). On review, the Secretary concedes that he did not prove that OSHA furnished a poster to Gould. He contends that, contrary to the judge’s decision, such proof is not necessary in light of the presumption of regularity of administrative action, citing Clarence
M Jones, 11 BNA OSHC 1529,1532,1983-84
CCH OSHD ll26,516, p. 33,750 (No. 77-3676,
1983).
We conclude that the Secretary failed to prove a violation of section 1903.2(a)( 1).
Under the language of the standard, to prove a violation of section 1903.2(a)(l), the
..-
Secretary must prove that he “furnishes” OSHA posters to employers, but in this case he argues that such “furnishing” must be presumed. The Secretary has not introduced any evidence of an administrative procedure to provide posters to employers. We cannot presume the regularity of an administrative plan that we have no evidence exists. Therefore, we cannot find that the Secretary has established a prima facie case of a violation of this standard.’
IV. Order
For the reasons stated above, we affirm item 1 of serious citation no. 1 and assess a $420 penalty for that violation of section 1910.36(b)(4). We affirm the half of item 2 of serious citation no. 1 that alleges a serious violation of section 1910.37(f)(2) at the locked door, and assess a penalty of $320 therefor, resulting in a total penalty of $640 for item 2.

‘Chairman Weisberg observes that had the Secretary here asserted that by Yumish” he means making posters available and that he has a procedure for doing so, the Commission would consider deferring to that interpretation and adopting a rebuttable presumption of that procedure’s regularity. Similarly, had the Secretary contended that furnished means affirmatively provide and introduced evidence of a plan he follows for providing OSHA posters to employers, or asked the Commission to take administrative notice of such a plan, its regularity might be presumed. In the absence of such contentions, and even assuming that deferral is appropriate in this context, the Chairman would find that the Commission cannot defer to an interpretation of “furnish” which the Secretary has not articulated or presume the regularity of an administrative plan absent evidence of such a plan. Accordingly, he agrees with his colleagues that the Secretary has not established a prima facie case of a violation of this standard. 8

We vacate citation no. 2, item 1, which alleges a violation of the poster regulation at section 1903.2(a)( 1).
It is so ordered.

Stuart E. Weisberg
Chairman

Edwin G. Foulke, Jr.
Commissioner

Velma Montoya
Commissioner
. Dated: July 19, 1994