666 F.2d 315 (8th Cir. 1981), 80-1743, Donovan v. Anheuser-Busch, Inc.

Docket Nº:80-1743.
Citation:666 F.2d 315
Party Name:P 25,803 Raymond J. DONOVAN (Successor to Ray Marshall) Secretary of Labor, Petitioner, v. ANHEUSER-BUSCH, INC., and Occupational Safety and Health Review Commission, Respondents.
Case Date:December 03, 1981
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 315

666 F.2d 315 (8th Cir. 1981)

P 25,803

Raymond J. DONOVAN (Successor to Ray Marshall) Secretary of

Labor, Petitioner,

v.

ANHEUSER-BUSCH, INC., and Occupational Safety and Health

Review Commission, Respondents.

No. 80-1743.

United States Court of Appeals, Eighth Circuit

December 3, 1981

Submitted May 19, 1981.

Rehearing Denied Jan. 20, 1982.

Page 316

[Copyrighted Material Omitted]

Page 317

A. Graham Allen, argued, Freeman, Richardson, Watson, Kelly & Livermore, P. A., Jacksonville, Fla., for respondent Anheuser-Busch, Inc.

Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol., for Occupational Safety and Health, Allen H. Feldman, Counsel for Appellate Litigation, Charles I. Hadden, Asst. Counsel for Appellate Litigation, Emilie N. Junge, Atty., argued, U. S. Dept. of Labor, Washington, D. C., Bobbye D. Spears, Regional Sol., Atlanta, Ga., Tedrick A. Housh, Jr., Regional Sol., Kansas City, Mo., for Occupational Safety and Health Review Commission.

Before LAY, Chief Circuit Judge, ARNOLD, Circuit Judge, and BECKER, [*] Senior District Judge.

WILLIAM H. BECKER, Senior District Judge.

This is a petition by the Secretary of Labor (Secretary) for review of an order of an Administrative Law Judge (ALJ), which became a final order of the Occupational Safety and Health Review Commission (Commission) when the Commission denied discretionary review thereof. (Notice of Final Order dated June 24, 1980). The final order vacated a citation by the Secretary which charged Anheuser-Busch, Inc. (Busch) with a violation of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. §§ 651 et seq., in failing to provide guardrails or equivalent protection on the top surfaces of its "canline" beer pasteurizers in its Jacksonville, Florida brewery, in violation of 29 C.F.R. § 1910.23(c)(1), set forth hereinafter.

THE FACTS

Busch owns and operates a brewery in Jacksonville, Florida. (Transcript, (Tr.), 160, 169). The equipment in this brewery includes three "bottle-line" pasteurizers and four "can-line" pasteurizers. (Tr. 9, 20-21). Only the failure to provide guardrails or equivalent protection on the "can-line" pasteurizers is the subject of this petition for review. (Tr. 9, 10, 20-21, 27).

Each "can-line" pasteurizer is approximately six feet in height, 25 to 30 feet in width and about 100 feet in length. (Tr. 25, 39, 148). Cans of beer pass through the pasteurizer where they are sprayed with hot water. (Tr. 20). Aluminum "logs"

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(hollow oblong separators) eight to ten feet in length, three inches in width, three inches in height and six to eight pounds in weight are used to separate different lots of cans of beer. (Tr. 60-61, 68, 102).

The top surface of each pasteurizer consists of nine longitudinal rows of stainless steel lids with 18 to 19 lids in each row. (Tr. 29, 92, 148, 172, Exhibit 5). Each lid is two feet in width and five feet in length (Tr. 29, 130, 148, 172), and is equipped with two inverted "L" shaped upright lifting handles used to raise the lid to gain access to the inside and the water "sprayheaders" of the pasteurizer. (Tr. 29, 148). When in place and undamaged, the surface of the lids is flat except for the upright handles. (Tr. 29, Exhibit 4).

Busch employees gain access to the top surface of a pasteurizer by climbing a fixed ladder or a stairway with guardrails. (Tr. 39, 90, 129). The top surface of the pasteurizer does not have any guardrails or similar protection along any part of its outer edges. (Exhibits 1, 2, 3 and 4).

The duties performed by Busch employees on the top surface of each pasteurizer are inspection by laboratory personnel of the "sprayheaders" under each lid every two weeks (Tr. 34, 48, 89, 96, 113-114), periodic repair by maintenance personnel of the "sprayheaders" under the lids when necessary (Tr. 27, 73, 126), placement by production employees of aluminum logs between the lots of cans of beer and removal thereof from the discharge end of the pasteurizer to the opposite end every shift (Tr. 59-61, 101, 124), intermittent inspection by production employees of the progress of the aluminum bars two to four times a shift as they pass through the pasteurizer (Tr. 62) and weekly, and more often in the summer, cleaning, washing and scrubbing of the pasteurizer by production employees while walking on the top surface of the pasteurizer. (Tr. 58-59, 105, 122).

After an inspection of the Jacksonville brewery in May of 1979 by a Compliance Safety and Health Officer (Compliance Officer), of the Occupational Safety and Health Administration (OSHA), Department of Labor, the Secretary issued a citation on August 15, 1979 charging Busch with a violation of the Act, 29 U.S.C. § 654(a)(2), and implementing standard, 29 C.F.R. § 1910.23(c)(1), for failure to provide guardrailings on the top surfaces of the pastuerizers. (Tr. 140, 143, 150-152). The citation states:

The violations described in this citation are alleged to have occurred on or about the day the inspection was made unless otherwise indicated within the description given below.

29 CFR 1910.23(c)(1): Open sided floor(s) or platform(s) 4 feet or more above the adjacent floor or ground level were not guarded by standard railings (or the equivalent as specified in 29 CFR 1910.23(e)(3)), on all open sides:

Top of pasteurizers; units 10, 20, 30, 40, 50, 60, 70 in the production area on to which employer (sic) must enter for inspection purposes on a routine predictable and scheduled basis with approximately daily exposure of employees.

By letter dated September 5, 1979, Busch contested the citation with respect to the four "can-line" pasteurizers, units 10, 20, 50 and 70, and agreed to abate the violations described in the citation with respect to the three "bottle-line" pasteurizers, units 30, 40 and 60. Thereafter, the Secretary filed a complaint before the Commission to affirm the citation as it applies to the "can-line" pasteurizers. By answer Busch denied the violations charged in respect to the "can-line" pasteurizers.

A hearing was held on January 31, 1980 before an ALJ appointed by the Commission. (OSHRC Docket No. 79-5002).

The findings of fact of the ALJ are fully accepted as far as they extend and are considered with other uncontroverted material facts of record.

THE APPLICABLE STANDARDS

The applicable standard, 29 C.F.R. § 1910.23(c)(1), alleged in the contested part of the citation is as follows:

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(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.

The term "platform" is defined in 29 C.F.R. § 1910.21(a)(4) as follows:

A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment. (The phrase "open-sided floor" is not further defined.)

THE DECISION OF THE ALJ

The ALJ in his "Decision and Order", dated May 22, 1980, vacated the citation as it applies to the tops of the "can-line" pasteurizers. The findings and reasoning of the ALJ are as follows:

Statement Of The Case

This case involves the intermittent presence of laboratory technicians, maintenance, and production personnel on top of pasteurizers about six feet above the floor in the performance of certain duties assigned to them during the production of canned beer.

Inspections of respondent's Jacksonville, Florida, brewery on May 1, 1979 through May 7, 1979, by complainant pursuant to the Occupational Safety and Health Act of 1970, resulted in a citation for a § 5(a)(2) of the Act non-serious violation. Respondent contested a portion of that citation.

After a complaint and an answer were filed, the case was heard in Jacksonville, Florida, on January 31, 1980.

The Charge

That top of pasteurizers, units 10, 20, 50, and 70, were open-sided floors or platforms four feet or more above adjacent floor, upon which employees entered for inspection purposes on a routine predictable and scheduled basis with approximate daily exposure to those open sides (29 C.F.R. 1910.23(c)(1)).

The Standard

Provides that every open-sided floor or platform four feet or more above adjacent floor or ground level shall be guarded by a standard railing (or its equivalent).

Jurisdiction

Respondent by its answer to the complaint conceded it is engaged in a business affecting commerce.

Issues

Whether the tops of the pasteurizers in issue are platforms within the meaning of complainant's definition of a platform (29 C.F.R. 1910.21(a)(4))?

If the tops should be construed as platforms, whether the exposure is de minimis?

Reserved Ruling On Motion

Respondent objected to receiving evidence on any work related matters not directly connected with the inspection of spray headers as alleged in the citation. Ruling on that objection was reserved to this point in time. Respondent was not taken by surprise and was well aware of the expanded situation. Accordingly, the evidence objected to is allowed to stand of record in this case.

Findings Of Fact

The material facts are not disputed. Each can-line pasteurizer is approximately six feet in height, 100 feet in length, and 25 to 30 feet in width. The top is essentially flat and consists of stainless steel lids (plates). Each is five...

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