Spirit Homes, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Employees at Spirit Homes worked below mobile-home roofs and scaffolds without hardhats while other employees used tools and materials overhead. The Commission agreed that the company violated the protective-helmet standard but reversed the ALJ's willful characterization. After an earlier citation, Spirit Homes had installed toeboards and guardrails, issued tool belts, assigned housekeeping duties, and changed production methods to reduce unsecured materials, which showed an objectively reasonable good-faith effort even though the measures did not fully eliminate the hazard. The Commission affirmed the violation as serious and reduced the penalty from $50,000 to $5,000. Commissioner Rogers dissented and would have affirmed willfulness.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.135(a)(1)
• Outcome: The hardhat violation was reduced from willful to serious, and the penalty was reduced to $5,000.
• Key point: An employer's objectively reasonable, good-faith abatement efforts can defeat willfulness even when those efforts are incomplete and the underlying violation remains.

Full text (OSHRC public release)

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EN-US
X-NONE
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SECRETARY OF LABOR,

Complainant,

v.

OSHRC
Docket Nos. 00-1807 & 00-1808

SPIRIT HOMES, INC.,

Respondent.

DECISION

Before:
RAILTON, Chairman; STEPHENS and ROGERS, Commissioners.

BY
THE COMMISSION:

As
a result of an inspection of a mobile-home manufacturing facility operated by
Spirit Homes, Inc. (“Respondent”), the Occupational Safety and Health
Administration (“OSHA”) issued citations to Respondent alleging that it had
committed violations of the Occupational Safety and Health Act of 1970, 29
U.S.C. §§ 651-678 (“the Act”). Respondent contested the citations, and a
hearing was held by Administrative Law Judge Ken S. Welsch. The Commission
directed the judge’s decision for review pursuant to section 12(j) of the Act,
29 U.S.C. § 661(j). The only issue before the Commission is whether
Respondent’s violation of 29 C.F.R. § 1910.135(a)(1) was properly characterized
by the judge as willful. For the reasons that follow, we find that the
Secretary failed to prove that the violation was willful. We affirm the
violation as serious, and assess a penalty of $5,000.

Background

Respondent
manufactured mobile homes on an assembly line at its now-closed facility
located in Conway, Arkansas. At some of the work stations along the assembly
line, scaffolds were placed around the mobile home that was being constructed.
Employees worked from the scaffolds and also from the roofs of the mobile
homes. Employees working on the scaffolds and roofs used various materials and
tools such as plywood, roofing paper, shingles, hammers, saws, wrenches,
drills, scissors, pneumatic air guns, and staple guns. While these employees
were on the roof, other employees were working below, both in the interior and
on the exterior of the mobile homes.

On
May 12, 1999, about nine months prior to the subject inspection, OSHA issued
Respondent a citation for a violation of 29 C.F.R. § 1910.135(a)(1). That
standard provides: “The employer shall ensure that each affected employee wears
a protective helmet when working in areas where there is a potential for injury
to the head from falling objects.” Specifically, the citation alleged that
employees working below the scaffolds were exposed to objects falling from the
work platform. The record shows that after receiving the 1999 citation, which
was ultimately resolved pursuant to a settlement agreement, Respondent made
efforts to eliminate the hazard of falling objects. Respondent installed
several devices on the scaffolds, such as toeboards and guardrails. Respondent
also provided employees with tool belts and assigned an employee to the
scaffold to secure tools and materials. In addition, Respondent instituted
changes to its production process by requiring employees to cut materials to
size before taking them on the roofs.

On
February 28, 2000, OSHA began the subject inspection of Respondent’s facility.
During the inspection, the compliance officers observed employees working under
scaffolds and roofs of mobile homes without hardhats while other employees
worked above them with tools and materials. Based on these observations, OSHA
issued Respondent a citation alleging a violation of section 1910.135(a)(1).
The Secretary characterized the violation as willful based on Respondent’s
violation of the same standard a year earlier, and Respondent’s failure to
require its employees to wear protective helmets when exposed to overhead
hazards. The Secretary proposed a $70,000 penalty.

The
judge affirmed the hardhat violation as willful. He found that because
Respondent knew of the requirements of the standard, the violation was willful
“even if [Respondent] has a good faith belief that its own approach provides
protection at least equivalent to OSHA’s requirements.” He also concluded that
Respondent’s “attempts to reduce the overhead hazard without complying with the
standard were not shown to be adequate or effective.” The judge assessed a
penalty of $50,000 for the hardhat violation.

Discussion

We
find that the judge erred in characterizing the hardhat violation as willful.
The Commission has defined a willful violation as one committed “with
intentional, knowing or voluntary disregard for the requirements of the Act or
with plain indifference to employee safety.” Williams Enterp., Inc. , 13
BNA OSHC 1249, 1256, 1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987). See
also Am. Wrecking Corp. v. Secretary of Labor , 351 F.3d 1254, 1262 (D.C.
Cir. 2003); Western Waterproofing Co., Inc. v. Marshall , 576 F.2d 139,
142 (8th Cir. 1978). “The Secretary must show that the employer was actually
aware, at the time of the violative act, that the act was unlawful, or that it
possessed a state of mind such that if it were informed of the standard, it
would not care.” Propellex Corp. , 18 BNA OSHC 1677, 1684, 1999 CCH OSHD
¶ 31,792, p. 46,591 (No. 96-0265, 1999) (citations omitted). It is well
established that a willful charge is not justified if an employer has made an
objectively reasonable, good faith effort to comply with the standard or to
eliminate a hazard even though the employer’s efforts are not entirely
effective or complete. Keco Indus., Inc. , 13 BNA OSHC 1161, 1169,
1986-87 CCH OSHD ¶ 27,860, p. 36,478 (No. 81-263, 1987); Asbestos Textile
Co., Inc. , 12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD ¶ 27,101, p. 34,948
(No. 79-3831, 1984); Mobil Oil Corp. , 11 BNA OSHC 1700, 1701, 1983-84
CCH OSHD ¶ 26,699, pp. 34,124-25 (No. 79-4802, 1983) (“That the supervisor’s
measures were not as effective or complete as conceivable cannot be disputed,
but they do not show indifference to employee safety, particularly since there
was infrequent exposure and moderate risk.”).

Here,
there is no dispute that the Respondent was aware of the requirements of the
standard, and failed to comply with those requirements. But the Secretary
cannot rely on the mere existence of a violation to establish willfulness. Hartford
Roofing Co. , 17 BNA OSHC 1361, 1363, 1995-97 CCH OSHD ¶ 30,857, p. 42,933
(No. 92-3855, 1995) (“[T]he mere existence of prior violations do not establish
that a violation was willful….there must be other evidence to support a finding
of willfulness) (citation omitted); Wright & Lopez, Inc. , 8 BNA OSHC
1261, 1265, 1980 CCH OSHD ¶ 24,419, p. 29,777 (No. 76-3743, 1980) (citation
omitted) (knowledge of a standard and a subsequent violation do not in
themselves prove a willful violation). Based on the record, we find that the
Secretary has failed to establish that Respondent’s efforts to eliminate the
overhead hazard, while unsuccessful, were so unreasonable that the company’s
state of mind was one of conscious disregard or plain indifference. Beta
Constr. Co. , 16 BNA OSHC 1435, 1444-45, 1993-95 CCH OSHD ¶ 30,239, pp.
41,652-53 (No. 91-102, 1993), aff’d without published opinion , 52 F.3d
1122 (D.C. Cir. 1995) (citation omitted) (“An employer’s unsuccessful efforts
to prevent a violation are sufficient to demonstrate that the employer’s state
of mind was not one of disregard or indifference so long as the employer acted
in an objectively reasonable manner.”).

As
shown in photographs in the record of the assembly line at Respondent’s
facility – including those photographs cited by the dissent – Respondent
installed toeboards and guardrails on all the scaffolds to prevent any
unsecured tools and roofing materials from being knocked off the scaffold.
Respondent also reduced the presence of unsecured tools on the roofs by
providing and requiring all employees to wear tool belts to secure any tools
not being used. The photographs demonstrate that employees were in fact wearing
these tool belts and using them to secure tools. Respondent also assigned an
employee to the scaffold in a housekeeping effort to limit the number of
unsecured tools and materials on the roof. In addition, Respondent instituted
changes in the production process that eliminated the practice of taking large
rolls of roofing paper, sheets of decking, and rolls of electrical wire onto
the roof. Instead, roofing materials were cut to size before being taken onto
the roof to be installed. Finally, after the subject inspection, Respondent
also mounted “flip-out extensions” or “wings” on the guardrails of the
scaffolds which nearly eliminated the gap between the roof and the scaffold. See
Access Equip. Sys., Inc. , 18 BNA OSHC 1718, 1728, 1999 CCH OSHD ¶ 31,821,
pp. 46,783-84 (No. 95-1449, 1999) (employer’s good faith in response to
citation at issue can be additional factor to take into account in determining
willfulness).

We
find nothing in the record to even suggest that these numerous effective
measures were implemented by Respondent in a “half-hearted” manner so lacking
in good faith and reasonableness as to establish willfulness. See Mobil Oil , supra (significant measures to protect
employees shows lack of intentional disregard or plain indifference to employee
safety); Beta , supra (numerous measures to establish and
implement procedures for safety monitoring were objectively reasonable and not
so deficient as to constitute intentional disregard of standard’s requirements
or plain indifference to employee safety).

Our
dissenting colleague argues that this case is analogous to Morrison-Knudsen
Co./Yonkers Contracting Co. , 16 BNA OSHC 1105, 1993-95 CCH OSHD ¶ 30,048
(No. 88-572, 1993) (“ Morrison-Knudsen ”), in which the Commission held
that the employer’s efforts to eliminate the hazards associated with airborne
lead were so “unreasonably limited” as to not satisfy the good faith standard.
The stark deficiencies in the employer’s efforts in Morrison-Knudsen
were succinctly summarized in the intervening case of Branham Sign Co. ,
in which the Commission distinguished Morrison-Knudsen and found that
the Secretary failed to establish willfulness based on the steps taken by the
employer to eliminate the hazards:

Among other things, the
employer in Morrison-Knudsen did not have the proper facilities for
cleaning and storing respirators to protect the employees from day-to-day
accumulations of lead. Also, in disregard of its own safety program specifying
that only approved respirators should be used, the employer fitted together
components of two different respirator brands and could not establish that they
met the requirements for approved respirators. The safety program required
protective clothing, but the employer did not provide it.

Branham
Sign Co. , 18 BNA OSHC 2132, 2135 n.
10, 2000 CCH OSHD ¶ 32,106, pp. 48,264-65 n. 10 (No. 98-752, 2000) (citations
omitted). In contrast, Respondent’s efforts to eliminate the hazards of falling
objects were significantly more substantial relative to the risks to which the
employees were exposed. See Mobil Oil , 11 BNA OSHC at 1701, 1983-84 CCH
OSHD at pp. 34,124-25 .

Our
dissenting colleague additionally claims that Respondent’s willful conduct is
demonstrated by its “disregard” of its own fall protection plan. Similar to the
cited standard, Respondent’s protection plan states that the company will
ensure employees wear hardhats when exposed to falling objects. As previously
noted, Respondent’s failure to comply with the hardhat standard is not in
dispute here and without more, cannot be considered dispositive of willfulness.
Similarly, a company’s failure to comply with its own safety rule does not
automatically establish a willful disregard of an OSHA requirement. George
Campbell Painting Corp. , 18 BNA OSHC 1929, 1934, 1999 CCH OSHD ¶ 31,935, p.
47,390 (No. 94-3121, 1999). We see no basis to infer from Respondent’s fall
protection plan that the company held an unreasonable belief, lacking in good
faith, that the overhead hazard could be adequately eliminated by implementing
the numerous measures detailed above. As we have found, Respondent instituted
not only the measures listed in its fall protection plan – such as toeboards
and guardrails – but others not identified in the plan – such as tool belts,
changes to the production process, and flip-out extensions. Such conduct belies
the dissent’s claims that the Respondent demonstrated disregard sufficient to
prove willfulness.

We,
therefore, find that the Secretary has failed to establish the violation was
willful. We do, however, find the violation to be serious. Death or serious
physical harm could result in the event of an accident.

Penalty

The
Secretary proposed the maximum penalty of $70,000 for a willful violation which
the judge reduced to $50,000. The Commission, pursuant to section 17(j) of the
Act, 29 U.S.C. § 666(j), must give due consideration to four factors in
assessing penalties: (1) the size of the employer’s business, (2) the gravity
of the violation, (3) the employer’s good faith, and (4) the employer’s prior
history of OSHA violations. See J.A. Jones Constr. Co. , 15 BNA OSHC
2201, 2213-14, 1991-93 CCH OSHD ¶ 29,964, p. 41,033 (No. 87-2059, 1993).
Respondent was a large employer with approximately 425 employees and had a
prior history of OSHA violations. As to good faith, we believe that Respondent
is entitled to credit based on the numerous changes instituted after both
inspections.

The
gravity of the violation is generally the principal element in penalty
assessment. See, e.g. , Orion Constr. Inc. , 18 BNA OSHC 1867, 1999
CCH OSHD ¶ 31,896 (No. 98-2014, 1999), and cases cited therein. In evaluating
the gravity of the violation, consideration is also given to other factors such
as the number of employees exposed, duration of exposure, likelihood of injury,
and precautions taken against injury. J.A. Jones , 15 BNA OSHC at 2214,
1991-93 CCH OSHD at p. 41,033. The record is not clear as to how many employees
were exposed or for how long. Respondent did, however, take a number of
precautions that lowered
the likelihood of injury. Based on these factors, we conclude that a penalty of
$5,000 for this serious violation is appropriate.

Order

Accordingly,
the judge’s decision affirming the violation of 29 C.F.R. § 1910.135(a)(1) as
willful is reversed. The violation is affirmed as serious. A penalty of $5,000
is assessed.

SO
ORDERED.

/s/

W.
Scott Railton

Chairman

/s/

James
M. Stephens

Commissioner

Dated: March 1,
2004

ROGERS, Commissioner, dissenting:

I
respectfully dissent from my colleagues’ decision to reverse the judge and
affirm only a serious violation. Judge Welsch found that the violation of
section 1910.135(a)(1) at issue here, for failing to ensure that affected
employees wear head protection when exposed to potential head injuries, was willful.
I would affirm the judge’s finding.

The judge determined that Spirit Home
Inc.’s (“Spirit”) efforts to reduce or eliminate the overhead hazard “were not
shown to be adequate or effective.” I agree with Judge Welsch that Spirit’s
efforts to reduce the overhead hazard, after being cited previously, were
incomplete. Indeed, in contrast to my colleagues, I do not believe that
Spirit’s efforts were objectively reasonable or that Spirit could have even had
an objectively reasonable, good faith belief that its half-hearted efforts to
reduce the overhead hazard were effective.

This
case resembles Morrison-Knudsen Co./Yonkers Contracting Co. , 16 BNA OSHC
1105, 1123, 1993-95 CCH OSHD ¶ 30,048, p. 41,280 (No. 88-572, 1993) (“ Morrison-Knudsen ”),
where the Commission found an employer’s response to a hazard was “unreasonably
limited.” Id . at 1127, 1993-95 CCH OSHD at p. 41,284. In that case, the
Commission found the violations at issue willful based in part on the company
ignoring its own safety program while employees continued to fall ill from lead
poisoning. Id . at 1126-27, 1993-95 CCH OSHD at p. 41,284-85. Here, in
light of the previous citation less than ten months before for a violation of
the same standard, under circumstances presenting a hazard of a similar nature,
Spirit had a “heightened awareness” of its obligations under the standard. Its
pre-existing record of head injuries also served to heighten its awareness of
the danger of overhead hazards.

Of particular relevance here, as in Morrison-Knudsen ,
is Spirit’s own safety program, reflected in its fall protection plan. Spirit’s
fall protection plan notes that “[w]hen employees are exposed to falling
objects, we ensure they wear hard hats and also implement” a variety of hazard
reduction efforts such as toeboards, screens, canopies, or barricades. The
safety program shows Spirit’s recognition that its various hazard reduction
efforts, standing alone, were unlikely to adequately reduce or eliminate the
falling object hazard and that hard hats were also necessary. Yet Spirit
disregarded its own safety program – in the face of its prior citation - thus
differentiating its conduct from “[m]ere negligence or lack of diligence.” See
American Wrecking Corp. v. Secretary of Labor , 351 F.3d 1254, 1264 (DC
Cir. 2003).

My colleagues correctly note that “a
company’s failure to comply with its own safety rule does not automatically
establish a willful disregard of an OSHA requirement,” (emphasis added) citing
George Campbell Painting Corp. , 18 BNA OSHC 1929, 1934, 1999 CCH OSHD ¶
31,935, p. 47,390 (No. 94-3121, 1999) (“ Campbell ”). Of course, just as
with the mere existence of a prior citation, such failure does not automatically
establish willfulness, which depends on the total factual record. Campbell ,
however, is distinguishable based on lack of knowledge of the applicable
standard. At issue in Campbell was whether the actions of two line
supervisors, who may have disobeyed a company safety rule, were willful. If so,
their actions were imputable to their employer. The Commission noted that there
was no evidence that the supervisors involved were aware of the requirements of
the cited OSHA standard. Id. In light of that lack of knowledge of the
equivalence between the company safety rule and the OSHA standard, the
Commission then concluded that disregard of the company’s rule did not
automatically establish willful disregard of an OSHA standard. Id. In
addition, in Campbell , the safety rule at issue was broader than the
cited standard. Id. at 1930, 1931 n. 7, 1999 CCH OSHD at pp. 47,386,
47,387 n. 7. Here, by contrast, as the majority concedes, there is no question
that Spirit was aware of the requirements of the cited standard. In addition,
Spirit’s safety rule was similar to the cited standard.

The photographs in the record,
particularly exhibits C-62, C-65, C-66, and C-67, are especially compelling in
showing a continuing exposure of Spirit’s employees to falling objects, the
predicate in its safety program for requiring the wearing of hard hats. These
photographs clearly show the continued existence of an overhead hazard to
employees without hard hats working below the scaffolds and roofs of mobile
homes. The hazard is reflected in various unsecured tools and materials lying
on the roof, and various work processes taking place on the roof, above
employees without hard hats working immediately below. Indeed, the nature of
this hazard is markedly similar to the hazard for which Spirit was cited the
first time around – “the hazard of being struck by objects such as but not
limited to hand tools . . . .”

These photographs also belie any notion that
Spirit’s efforts were either objectively reasonable or that Spirit had a
reasonable, good faith belief that its efforts would adequately reduce or
eliminate the hazard. It is clear from the
photographs that, in the words of the cited standard, “a potential for injury
to the head from falling objects” remains, thus making hard hats mandatory. As
the Commission pointed out in Morrison-Knudsen , “an unreasonable belief
that abatement efforts were sufficient cannot constitute good faith.” Morrison-Knudsen ,
16 BNA OSHC 1127, 1993-95 CCH OSHD ¶ 30,048, p. 41,285. See also Caterpillar,
Inc. , 17 BNA OSHC 1731, 1733, 1995-97 CCH OSHD ¶ 31,134, pp. 43,483-84 (No.
93-373, 1996), aff’d 122 F.3d 437, 441-42 (7th Cir. 1997).

My colleagues point out that the record
here does not show any actual falling object injuries attributable to the lack
of hard hats between the date of the settlement of the earlier citation and the
beginning of the subject inspection. However, “the goal of the Act is to
prevent the first accident.” See Waldon Healthcare Center , 16 BNA
OSHC 1052, 1059, 1993-95 CCH OSHD ¶ 30,021, p. 41,152 (No. 89-2804, 1993)
(consolidated). While head injuries had previously occurred, the lack of any
further injuries in this short two-month period, in light of Spirit’s partial
efforts, was fortuitous. Even so, Spirit’s own safety program, along with the
visual evidence of continued potential for head injury and employee exposure,
put Spirit on notice that its efforts to reduce the hazard were simply not
enough and that, under both the cited standard and its own safety program, hard
hats were required. Yet, Spirit failed to do what it knew it had to do under
the circumstances to come into compliance with its own safety program and the
cited standard – ensure the use of hard hats.

Accordingly,
I must dissent.

/s/

Thomasina
V. Rogers

Commissioner

Dated: March 1, 2004

Secretary of Labor,

Complainant,

v.

OSHRC Docket Nos. 00-1807
& 00-1808

Spirit Homes, Inc.,

(Consolidated)

Respondent.

Appearances:

Raquel Tamez, Brian A. Duncan,
Christopher V. Grier, Esq., Office of the Solicitor, U. S. Department of Labor,
D allas, Texas

For Complainant

Oscar E. Davis, Jr., Daniel L.
Herrington, Esqs., Friday, Eldredge & Clark, Little Rock, Arkansas

For Respondent

Before: Administrative Law Judge Ken S. Welsch

DECISION
AND ORDER

Spirit
Homes, Inc. (SPI), manufactures mobile homes at a plant in Conway, Arkansas. On
February 28, 2000, the Occupational Safety and Health Administration (OSHA)
initiated safety and health inspections of the plant. After OSHA = s inspections, SPI received serious, willful, and A other @ than serious safety and health
citations on August 25, 2000. SPI timely contested the citations.

The safety
(No. 00-1808) and health (No. 00-1807) citations were consolidated for hearing.
The 17-day hearing in Little Rock, Arkansas, concluded in October, 2001. SPI
stipulated jurisdiction and coverage (Tr. 5).

At the
hearing, the Secretary withdrew from the safety citations, citation no. 1,
items 1, 2, 5, 6, 7, 10a, and 10b; citation no. 2, item 1, instance (f); and
citation no. 3, items 1 and 2. From the health citations, the Secretary
withdrew citation no. 1, item 1, and citation no. 3, item 1 (Tr. 21-23). The
Secretary = s withdrawal of citation items is approved and incorporated
as part of this decision.

The
following citation items remain in dispute:

The
safety serious citation no. 1 alleges violations of 29 C.F.R. ' 1910.24(b) (item 3) for not providing fixed stairs to
access the roofs of mobile homes; 29 C.F.R. ''
1910.147(c)(4)(i) and 1910.147(c)(6)(ii) (items 4a and 4b) for failing to
utilize lockout procedures and certify periodic inspections of energy control
procedures; 29 C.F.R. ' 1910.212(a)(1) (item 8) for not
guarding pinch points on two presses; 29 C.F.R. '
1910.212(a)(3)(ii) (item 9a) for not guarding the points of operation on 4
sheet rock slitters; 29 C.F.R. ' 1910.213(r)(4) (item 9b) for
not providing complete guards for the dado blades and crosscut blades; and 29
C.F.R. '' 1910.332(b)(1) and 1910.333(b)(2)(i) (items 11a and 11b)
for not adequately training employees on the risk of electric shock and not
maintaining complete written lockout procedures. The alleged serious violations
propose total penalties of $22,500.

The
safety willful citation no. 2 alleges violations of 29 C.F.R. ' 1910.23(c)(1) or, in the alternative, ' 5(a)(1) of the Occupational Safety and Health Act (Act)
(item 1) for failing to guard open-sided floors or platforms 4 feet or more
above the ground level; and 29 C.F.R. ' 1910.135(a)(1) (item 2) for
failing to ensure that employees wear protective helmets. Each alleged willful
violation proposes a penalty of $70,000.

The
health serious citation no. 1 alleges violations of 29 C.F.R. '' 1910.1200(f)(5)(i) and 1910.1200(f)(5)(ii) (items 2a and
2b) for not labeling a bucket containing an adhesive with the identity of the
hazardous chemicals and the appropriate hazard warnings; and 29 C.F.R. '  1910.1200(h)(1)(iii) (item 3) for not informing
employees as to the location and availability of the written hazard
communication program. The alleged serious violations propose total penalties
of $3,000.

The
health willful citation no. 2 alleges a violation of 29 C.F.R. ' 1910.1200(h)(3)(ii) (item 1) for failing to train employees in
the physical and health hazards of chemicals in the workplace. The alleged
willful citation proposes a penalty of $55,000.

SPI
denies the violations, classifications, and proposed penalties. Among other
arguments, SPI claims that it was attempting to comply with a December, 1999,
informal settlement agreement with OSHA when OSHA initiated the current
inspection in February, 2000.

For
the reasons discussed, safety citation no. 1 (items 3, 4b, 4c, 4d, 9b, and
11a), safety citation no. 2 (items 1 and 2), health citation no. 1 (items 2a
and 2b), and health citation no. 2 (item 1) are affirmed. Total penalties of
$89,000 are assessed. The remaining citation items are vacated or have been
withdrawn by the Secretary.

The
Inspection

SPI
manufactures single-wide and double-wide mobile homes at a plant in Conway,
Arkansas. The plant began full production in 1997. In 1998, SPI became a
division of Cavalier Enterprises, Addison, Alabama. SPI employs approximately
425 employees (Tr. 63, 321, 3614, 3863, 3981).

SPI = s facility is a large building, 400 feet by 550 feet, which
accommodates two assembly lines, referred to as Plant 3 and Plant 4. Plant 4,
on the right side of the building, manufactures double-wide homes. Plant 3, on
the left side of the building, primarily manufactures single-wide homes. The
mobile homes are 44 feet to 80 feet in length. The single-wide homes are
approximately 16 feet wide. The double-wide mobile homes are assembled in
halves, approximately 14 feet or 16 feet wide, before the halves are joined
near the end of the assembly line. The roofs on the mobile homes are pitched at
2 in 12 or 3 in 12. Cabinet shops and the warehouse area are located between
Plants 3 and 4. Across the street from the main building, the truss shop,
welding shop, and paint area are located (Exhs. C-4, C-7; Tr. 76-77, 387, 1275,
1361-1362, 3890).

SPI = s general hours of production are 7:00 a.m. to 3:45 p.m.,
five days a week. Each Plant produces approximately 8 mobile homes per day. SPI = s former director of manufacturing is Stan Daughtry. Tom
Gerard is the plant = s former safety manager (Tr.
194, 550, 1015, 1321, 3472, 3861).

The
production processes in Plants 3 and 4 are similar and involve moving wheeled
metal chassis through various stations until the mobile home is assembled.
After a metal chassis is moved into the plant, floor decking and carpeting are
installed in Stations 1 or 2. The metal chassis is then rolled to the A cab part station @ where interior wall partitions
and cabinets are installed. After the sidewalls are installed in the A sidewall @ station, the chassis is moved
through a number of roofing stations where the ceiling trusses are formed and
placed on top of the walls, insulation is blown in between the trusses,
fireplace vents are cut, and the roof deck is installed. While the roof decking
is installed, the electrical wiring, interior trim, vinyl siding, windows and
doors are installed in Stations 8, 9 and 10. In Stations 11 and 12, where both
sides of a double-wide home are worked on simultaneously, the roofing paper and
A shingles @ are installed. The shingling,
trim work, final finish and cleaning are completed in Stations 13 A/B, 14 A/B,
and 15 A/B. Station 16 A/B is the final station where the mobile home is given
a final inspection. The completed mobile home is then rolled outside to a
storage area (Exh. C-4; Tr. 78-83, 85-88, 90-93, 785-786, 3270-3274,
3276-3277).

Prior
to becoming a division of Cavalier Homes, SPI received OSHA citations alleging
12 serious, 1 willful, and 1 repeat violations on April 5, 1996. The citations
were settled by amending the willful classification to serious and reducing the
total penalties. The 1996 citations included a violation of ' 1910.1200(h)(3)(ii) (citation no. 2, item 1) for failing
to train employees on the specific hazards of chemicals used in the workplace
(Exh. C-39; Tr. 2100-2102).

On
May 12, 1999, SPI received OSHA citations alleging 2 serious, 1 willful, 1
repeat, and 4 A other @ than serious violations (Exh.
C-3; Tr. 2103). The alleged violations included failing to provide fall
protection, under ' 5(a)(1) of the Act, to
employees working on mobile home roofs (citation no. 1, item 1); failing to
provide protective helmets, in violation of '
1910.135(a)(1) (citation no. 1, item 2); failing to guard open-sided work
platforms 4 or more feet above the adjacent floor, in violation of ' 1910.23(c)(1) (citation no. 2, item 1); and failing to
train employees on chemicals used in the workplace, in violation of ' 1910.1200(h)(3)(ii) (citation no. 3, item 1). The
inspection was conducted by industrial hygienist (IH) Lisa Almond (Tr. 2102).
In December, 1999, the citations were settled. As part of the settlement
agreement, SPI stated that A the conditions described in
Citations 1, 2, 3, and 4 have been corrected. @ SPI also
agreed to:

[c]onduct monthly self-inspections of its
entire workplace for the next twelve months beginning January 2000 and ending
December 2000 and agrees to provide the OSHA Little Rock Area Office a report
detailing the hazards identified and the corrections made as a result of these
self-inspections (Exhs. C-3, R-16).

On
February 28, 2000, OSHA initiated wall-to-wall, programmed safety and health
inspections of the SPI plant. Safety compliance officer (CO) Gina Sims and IHs
William Cole and Lisa Almond performed the inspection over a 12-day period (Tr.
62, 65). After the inspection, the safety and health serious, willful, and A other @ than serious citations at issue
were issued to SPI in August, 2000.

Discussion

Preliminary
Matter

Reasonableness
of the Inspection

SPI
argues that OSHA = s inspection was unreasonable because it was based on an
improper motive, i.e . harassment. SPI claims that when OSHA initiated
the inspection in February, 2000, it A was in the process of affecting
compliance in accordance with agreed upon compliance procedures and time tables @ as provided in the December, 1999, settlement agreement
with OSHA.

Section
8(a) of the Act directs that an OSHA inspection be conducted in a reasonable
manner, at reasonable times, and within reasonable limits. 29 U.S.C. ' 657(a). To establish noncompliance with ' 8(a), the record must show that OSHA substantially failed
to comply with its provisions and the employer was substantially prejudiced. Gem
Industrial, Inc. , 17 BNA OSHC 1185 (No. 93-1122, 1995). Evidence that OSHA
conducted an inspection to harass an employer may be relevant to the defense. Quality
Stamping Products Co ., 7 BNA OSHC 1285, 1287, n. 6 (No. 78-235, 1979).
Section 8(a) does not apply, however, to an employer = s selection for inspection. Cody Zeigler, Inc. , 19
BNA OSHC 1410 (No. 99-0912, 2002) aff = d. , 19 BNA OSHC 1777 (D. C. Cir. 2002).

There
is no dispute that OSHA = s 2000 inspection of SPI = s plant was conducted during normal business hours, within
reasonable limits, and without requiring an inspection warrant. Also, SPI
participated in the walkaround inspection and was provided opening/closing
conferences to discuss the purpose and inspection findings.  

SPI = s harassment argument is rejected. OSHA has A broad prosecutorial discretion @ in deciding who to inspect and prosecute for violations of
the Act. DeKalb Forge Co. , 13 BNA OSHC 1146, 1153 (No. 83-299, 1987).
The selection of SPI for inspection and issuance of citations was not shown to
be motivated for harassment purposes or had an harassing effect.

According
to OSHA, SPI was selected for inspection based on neutral criteria under its
Site Specific Targeting Program (SST) (OSHA Directive Number 99-3, effective
from April 19 to December 31, 1999). The SST program required area offices to inspect
manufacturing establishments with a high Lost Workday Injury/Illness Rate (Tr.
16).

Also,
SPI represented in the 1999 settlement that the violations cited in June, 1999,
had been abated when it signed the settlement agreement (Exh. C-3). OSHA = s need to further inspect SPI = s plant is
demonstrated by the numerous alleged unsafe conditions cited in the 2000
inspection. SPI = s claim of A selective prosecution @ is denied. See Vergona Crane Co. , 15 BNA OSHC 1782,
1787-88 (No. 88-1745, 1992).

Alleged
Violations

The
Secretary has the burden of proving a violation.

In order to establish a violation of an
occupational safety or health standard, the Secretary has the burden of
proving: (a) the applicability of the cited standard, (b) the employer = s noncompliance with the standard = s terms, (c) employee access to the violative conditions,
and (d) the employer = s actual or constructive
knowledge of the violation ( i.e., the employer either knew or, with the
exercise of reasonable diligence could have known, of the violative
conditions).

Atlantic Battery
Co., 16 BNA OSHC 2131, 2138 (No. 90-1747,
1994).

Although
SPI = s plant builds mobile homes, the construction standards in
Part 1926 do not apply. The general industry standards in Part 1910 apply. The
SPI plant is a manufacturing facility. It builds mobile homes on an assembly
line for sale and use throughout the United States. See Brock v. Cardinal
Industries, Inc. , 828 F.2d 373 (6th Cir. 1987)(no nexus exists between work
done in factory in building modular housing units and construction site).

Docket No.
00-1808 (Safety citations)

Serious
Citation No. 1, Item 3 - Alleged violation of ' 1910.24(b)

The
citation alleges that fixed stairs were not provided from the catwalks and
mezzanines to the roofs of mobile homes in the roofing departments in Plants 3
and 4. Section 1910.24(b) provides in part:

Fixed stairs shall be provided for access from
one structure to another where operations necessitate regular travel between
levels, and for access to operating platforms at any equipment which requires
attention routinely during operations.

In
the roofing departments (Stations 7 through 11), roof trusses, vents and
decking are installed on the mobile homes. To make these installations,
employees cross from the elevated catwalks or mezzanines to the roofs. The
elevated mezzanines run along the outside of the first roofing station (Station
7) the length of a mobile home and then along the end wall of the building. The
elevated catwalks, also referred to as A raising platforms, @ are spaced equally apart from the mezzanine, the length of
a mobile home, to form roofing Stations 7 - 11. The catwalks, 49 inches wide,
are raised and lowered by overhead hoists to allow the mobile homes to move
through the roofing stations. When in position, the catwalks are approximately
40 inches lower than a mobile home = s roof. The height of a mobile
home = s roof to the plant = s cement floor is approximately
11 feet, 4 inches. Because the catwalks are suspended by overhead hoists, they
do not move left or right.

During
OSHA = s inspection, the catwalks had a guardrail system
consisting of permanent uprights (intermediate posts) and chain railings.
In the guardrail system, there was a
vertical ladder-like section, consisting of 4 steps, with the top step
approximately level with the top chain railing and the roof of the mobile home.
The ladder did not have handrails. The employees accessing the mobile home roof
were expected to climb the ladder section and step across any gap or space
between the catwalk and the roof (Exhs. C-4, C-40, C-43; Tr. 100-101, 103, 134,
793, 1725, 3891).

However,
CO Sims observed an employee exit a mobile home roof in Plant 3 by stepping across
an approximate 11-inch gap onto the top of an upright post and then down onto
the catwalk. The height of the post was 43 inches (Exh. C-42; Tr. 120, 124-125,
134). In another incident, IH Cole observed an employee stepping across a
19-inch gap onto the top step of the ladder section of the guardrail before
stepping onto the catwalk (Exhs. C-40, C-41; Tr. 1720-1721, 1726). Other
employees were observed on the roofs and catwalks with no means of access other
than stepping across the gaps (Tr. 127, 129-130). OSHA = s calculations of the space in Stations 7 - 11 in Plant 3,
if the mobile home was centered, show that the size of the gap or space between
the catwalks and roofs ranged from 6 2 inches to approximately 12
inches, and in Stations 7 - 10 in Plant 4, from 6 inches to 24 2 inches (Exh. C-7). Obviously, the gaps change if the homes
are not centered.

Gary
Lewis, former employee, testified that when working on the double-wide mobile
homes, he accessed the roofs at least twice a day. Lewis testified that roofers
regularly jumped on and off the roofs and catwalks. He described roofers
stepping on the uprights or chain railings to get off the roof and putting
their hands on the roof for support before hopping onto the roof. He said that
the ladder built into the guardrails was not always used by roofers. He
testified that the gaps between catwalks and roofs ranged from 24 to 36 inches
(Tr. 1247-1251, 1254-1255, 1257-1258, 1274, 1277).

Bobby
Hanson, assistant production manager in Plant 4 for Stations 8 through 15,
testified that employees regularly accessed the roofs by climbing the ladders
in the guardrails and then stepping onto the roofs. He denied seeing anyone
step on the upright posts or chain railings. Hanson testified that the mobile
homes are positioned in the stations so that the roof = s low side, used for access, was nearest the catwalk. He
acknowledged that the gaps between the roof and catwalk could be 18 inches.
However, he estimated that the normal gap was 10 to 13 inches. If the gap was
greater, it was caused by mis-aligning the home. Although employees were
trained to use the ladders in the guardrails, there was no work rule
prohibiting employees from stepping onto the upright post (Tr. 3366, 3368,
3376-3379, 3397, 3406, 3419-3420). SPI = s internal safety inspections
show a recurring problem with maintaining the gap at less than 12 inches (Exhs.
C-14, p. 01425, C-15, p. 01935, C-16, p. 3).

Roofing
supervisor Darren Davis denied that employees jumped from the roofs to the
catwalks. He said that the mobile homes are positioned so that an employee
could have one foot on the ladder and the other foot on the roof, although
there was nothing for an employee to hold onto while stepping across (Tr.
3207-3208, 3259, 3330).

Tom
Gerard, former safety manager, testified that it was common for employees to
step across the gaps between the catwalks and the roofs. He stated that SPI = s policy was to attempt to position the mobile homes so
that the gap was 12 inches or less from the catwalk used to access the roof
(Tr. 3478, 3485-3486).

SPI
does not dispute that fixed stairs did not provide access to the roofs of
mobile homes. SPI argues that the standard does not apply because mobile homes
are intended to be private residences. SPI cites ' 1910.24(a),
in limiting the application of ' 1910.24(b), which provides:

This section does not apply to stairs used for
fire exit purposes, to construction operations to private residences, or
to articulated stairs, such as may be installed on floating roof tanks or on
dock facilities, the angle of which changes with the rise and fall of the base
support. (Emphasis added).

This
argument is rejected. The mobile homes manufactured at the SPI plant are
products and not private residences. While in SPI = s plant, the
mobile homes are being erected as part of a manufacturing process. The work is
not construction but manufacturing. The mobile homes do not become private
residences until purchased by the ultimate consumer.

SPI
also argues that under ' 1910.24(b), a A structure @ or a A platform @ does not include the roofs of
mobile homes under construction. Section 1910.24(a) describes the fixed stair
requirement to include stairs around A machinery, tanks, and other
equipment, and stairs leading to or from floors, platforms or pits. @ SPI claims that the roofs are not floors, platforms, pits,
machinery, tanks, or other equipment (SPI Brief, p. 182).

SPI = s second argument is also rejected. The standard applies to
structures which would include roofs under construction. In determining the
application of a standard, the wording of the standard must be interpreted in a
reasonable manner, consistent with common sense understanding. Globe
Industries , 10 BNA OSHC 1596 (No. 77-4313, 1982). The words in a standard
are to be viewed in context, not in isolation, and judged in light of its
application to the facts of the case.

The
dictionary defines A structure @ as A the action of building @ or A something constructed. @ Webster = s Seventh New Collegiate
Dictionary . Within this meaning, mobile
homes are structures requiring means of access to the roofs. SPI = s roofing operations necessitate regular, daily travel by
employees to the roofs. The catwalks do not provide sufficient access to the
roofs. The catwalks are approximately 40 inches below the roofs, and gaps in
excess of 12 inches may exist to the roofs. Employees are not provided a
continuous and uninterrupted means of access to the roofs. Fixed stairs are
required to access one structure level to another.

Finally,
SPI asserts that it is impossible to erect fixed stairs (SPI Brief, p. 186).
SPI argues that (1) stairs cannot be fastened to a mobile home roof, and (2)
fixed stairs cannot be constructed to comply with the standard = s requirement for angle of rise and the stairway platform
(Tr. 3916).

To
establish a defense of infeasibility, an employer must show that (1) the means
of compliance prescribed by the standard are infeasible, in that (a) its
implementation is technologically or economically infeasible, or (b) necessary
work operations are technologically infeasible after its implementation, and
(2) there are no feasible alternative means of protection. Beaver Plant
Operations, Inc. , 18 BNA OSHC 1972, 1977 (No. 97-0152, 1999). The fact that
compliance is difficult or expensive is not sufficient to excuse compliance
with the standard = s requirements. State Sheet Metal Co., 16 BNA OSHC
1155, 1160 (No. 90-1620, 1993). An employer is expected to exercise some
creativity in seeking to achieve compliance and engage in limited compliance
even if exact compliance is not possible. Pitt Des Moines, Inc., 16 BNA
OSHC 1429 (No. 90-1349, 1993), Cleveland Consolidated, Inc. v. OSHRC ,
649 F.2d 1160, 1167 (5th Cir, 1981).

SPI
fails to show either that implementing fixed stairs was technologically or
economically infeasible or that necessary work operations would be affected
after implementation. The standard requires fixed stairs, not permanent stairs.
CO Sims described several abatement methods, including the use of mobile stairs
or fixed stairs with some type of ramp which could be installed at the balcony
end of the work areas (Tr. 159-160). The mobile stairs are on rollers which
could be rolled in and out like a mobile scaffold. She described the fixed
stairs with a type of ramp that extends and retracts onto the roof to
accommodate the different heights and lengths (Tr. 162).

Also,
although not necessarily in compliance with the standard = s requirements, it is noted that SPI modified the ladders
in the guardrails and reduced the fall hazard after OSHA = s inspection. SPI installed handrails to the ladder and
extended a ramp to the mobile home roof. The handrails allowed employees to
hold onto something while climbing the ladder and crossing the ramp
(Tr. 3916-3917).

The
lack of fixed stairs to access the roofs is a serious violation. A serious
violation under ' 17(k) of the Act, 29 U.S.C. ' 666(k), is
found if the condition creates a substantial probability of death or serious
physical harm and the employer knew or should have known, with the exercise of
reasonable diligence, of the violative condition.

The
gaps between the catwalks and roofs over which employees had to cross were as
much as 19 inches, exposing employees to fall hazards in excess of 11 feet to
the plant = s cement floor. Such falls could cause serious injury. SPI
knew of the condition, which was in plain view. SPI had been cited in 1999 for
employees stepping across a gap of 30 inches from the mezzanine to the roof of
a mobile home (Exh. C-3; Tr. 3956-3958).

Serious
Citation No. 1, Items 4a, 4b, 4c and 4d - Alleged violations

of
'' 1910.147(c)(4)(i), (c)(4)(ii), (c)(6)(i)(A), and
(c)(6)(ii)

The
citation alleges that lockout procedures were not consistently utilized during
maintenance activities performed on weekends and evenings (item 4a); energy
control procedures were not available for all equipment (item 4b); periodic
inspections of energy control procedures were not conducted by an authorized
employee (item 4c); and periodic inspections of energy control procedures were
not certified (item 4d).

The
pertinent provisions of ' 1910.147(c) provide, as part of
the energy control program:

(c)(4)(i) - Procedures shall be developed,
documented and utilized for the control of potentially hazardous energy when
employees are engaged in the activities covered by this section.

(c)(4)(ii) - The procedures shall clearly and
specifically outline the scope, purpose, authorization, rules, and techniques
to be utilized for the control of hazardous energy and the means to enforce
compliance.

(c)(6)(i)(A) - The periodic inspection shall
be performed by an authorized employee other than the ones(s) utilizing the
energy control procedure being inspected.

(c)(6)(ii) - The employer shall certify that
the periodic inspections have been performed. The certification shall identify
the machine or equipment on which the energy control procedure was being
utilized, the date for the inspection, the employees included in the
inspection, and the person performing the inspection.

SPI = s lockout/tagout (LOTO) policy is written (Exh. C-5). Under
SPI = s policy, all work requiring LOTO is performed by the
maintenance department. At the time of OSHA = s inspection,
the maintenance department consisted of approximately 5 employees, including
maintenance supervisor Bobby Cole, and leadman Robert Jackson. Leadman Jackson,
a licensed master electrician, worked directly under maintenance supervisor
Cole. On the weekends and after normal work hours, stockroom employees,
including Ruby Kersten, assisted the maintenance employees (Tr. 2534-2535,
2539, 2744-2745, 2768).

SPI
claims that other employees are prohibited from performing LOTO. Operators of
machinery are not authorized to perform maintenance or repair work. The
operators are expected to call a supervisor and maintenance (Tr. 837, 2543,
2885-2586, 3939-3940).

SPI = s argument that the alleged LOTO violations are barred by
the 6-month statute of limitations is rejected. OSHA initiated the inspection
on February 28, 2000, and issued the citations on August 25, 2000. The 6 months
does not begin to run until OSHA discovers or reasonably should have discovered
a violation. Kasper Wire Works, Inc. , 13 BNA OSHC 1261 (1987).

In
this case, the alleged LOTO violations occurred during the relevant period. The
record shows that maintenance employees worked overtime in the evenings and
weekends on equipment from January, 2000, through March, 2000 (Exhs. C-5, R-33;
Tr. 172, 175-176, 2594, 2633). Also, a violation is not time barred if it is
considered a continuing violation until abatement or until employees are no
longer exposed. Johnson Controls, Inc. , 15 BNA OSHC 2132, 2136 (No.
89-2614, 1993). The conditions warranting the use of LOTO procedures as cited
by OSHA are continuing in nature. If found to be violations, the violations are
not time barred.

Item
4a (alleged failure to consistently
utilize LOTO on weekends and evenings) CO Sims did not observe any work
requiring LOTO (Tr. 204). The alleged violation is based on statements by Ruby
Kersten and James Rinehart, both of whom testified (Tr. 172).

Ruby
Kersten, stockroom employee, testified that she assisted maintenance employees
on the weekends and after hours. She helped run conduit, replaced fuses and
lights, built and wired panel boxes, installed fans and fluorescent lights, and
rewired an insulation blowing machine. Kersten attended LOTO training in March,
2000, and is identified by SPI as an authorized employee (Exh. R-32). When
assisting maintenance employees, Kersten testified that LOTO was not always
performed (Tr. 1006-1007, 1016, 1022-1023, 1082-1083, 1086-1087).

James
Rinehart, maintenance employee, testified that he performed service and
maintenance on various tools, machines, and equipment, including the Myteck
Mark 5, Ultra Press 16, Dado Saw, and an insulation blowing machine (Tr.
2389-2390). He regularly worked on the Dado Saw and insulation blowing machine
(Tr. 2390-2391). Rinehart told OSHA that LOTO was not always performed (Tr.
172, 175-176).

Supervisor
Cole described Kersten = s work as driving a forklift,
painting, and wiring circuit boards on her bench. He testified that her work
did not require LOTO (Tr. 2778). Maintenance leadman Jackson testified that
while Kersten helped to install a panel box on an insulation machine, she was
not exposed to energization because it was not hooked up (Tr. 2590-2591). Jackson
testified that he and the other maintenance employees he observed performed
LOTO every time when repairing equipment (Tr. 2586-2588, 2600-2601, 2604-2605,
2633-2634).

The
record fails to show, by a preponderance of the evidence, that Kersten or
Rinehart were performing work requiring LOTO or were exposed to the hazard of
electric shock from the failure to LOTO at the time of the OSHA inspection.
Kersten = s wiring of panel boxes on the insulation machine was not
shown to require LOTO. Her wiring work was at her work bench and the panel
boxes were not shown to be energized (Tr. 1079-1080). She testified that she
did not know if it needed to be locked out (Tr. 1082-1083). Her other work did
not expose her to energization. It did not require her to hook anything into
building or machine wiring that had to be LOTO (Tr. 1081-1082, 2590-2591). She
worked with wires, but her work did not bring her into contact with energized
wires. She did not repair machinery or equipment. She assisted the maintenance
employee. It was not shown that she knew whether the work being performed by
maintenance required LOTO. For example, Kersten saw Jackson working on a saw
that was not locked out, but Jackson said it was unplugged (Tr. 196, 1021).

In
clarifying his statement to OSHA, Rinehart testified that the only time he did
not LOTO was when he was troubleshooting a machine. In such a situation, one
employee was at the panel box and another employee was at the machine. The
employees used radios when testing the machine. Otherwise, Rinehart testified
that when working on the machine, he performed LOTO (Tr. 2424, 2458-2460). In
fact, when Rinehart was observed by maintenance supervisor Cole in approximately
1996 not locked out, he was instructed to lockout and that he would A get in trouble @ if he was not locked out next
time (Tr. 2460-2461). Rinehart testified that the maintenance crew only failed
to LOTO when Cole or Jackson was not around and that stopped after the 1999
LOTO training (Tr. 2462).

Item
4b (alleged failure to have energy
control procedures for all machinery) CO Sims testified that there were no
machine specific LOTO procedures for two presses, Myteck and Ultra 16, used to
make wooden roof trusses (Tr. 180, 198, 839). The presses have multiple sources
of energy, including electric, pneumatic, and hydraulic. Air pressure holds the
wood in the template and a hydraulic ram presses in the nail plates (Tr. 206,
2791-2792). During OSHA = s inspection, both presses had
been in operation for 3 years (Tr. 210). The Myteck and Ultra 16 operate
essentially the same (Tr. 1518-1519, 2554). The presses are operated daily and
require regular servicing (Tr. 1495, 2401-2402, 2633).

Section
1910.147(c)(4)(ii) requires that an employer = s written
LOTO procedures include (A) a statement of the procedure = s intended use; (B) the procedural steps for shutting down,
isolating, blocking, and securing the machine to control hazardous energy; (C)
the procedural steps for placing, removing, and transferring LOTO devices and
the responsibility for them; and (D) the requirements for testing the machine
to determine and verify the effectiveness of LOTO devices and other energy
control measures.

SPI = s written LOTO policy includes LOTO procedures and the
methods for locking out various machines, including table saws, band saws,
slitters, welders, metal shears, carpet cutters, and air compressors. The
policy does not specifically identify the Myteck and Ultra 16 presses (Exh.
C-5; Tr. 205-206).

Although
not listed, SPI argues that its LOTO policy complies because it contains LOTO
procedures for similar types of machines and addresses the same types of
energy. Also, SPI claims that the maintenance and repair manuals written by
manufacturers of the presses satisfy the LOTO requirement (Exh. R-36; Tr.
2855).

There
is no showing that during OSHA = s inspection maintenance
employees failed to properly perform LOTO on the Myteck and Ultra 16 presses or
did not know the proper LOTO procedures (Tr. 2555). Supervisor Cole and leadman
Jackson testified that before anyone worked on a machine for the first time,
the employee was shown how to perform LOTO (Tr. 2772-2775, 2843-2844,
2584-2586, 2595, 2604). Also, SPI had LOTO training in July, 1999, which was
not machine specific (Tr. 2395-2397, 2399-2400, 2539, 2555, 3488, 3493).

Despite
the employees = apparent understanding of proper LOTO procedures, SPI = s written policy fails to describe those proper procedures
applicable to the Myteck and Ultra 16 presses as required by the standard. The
presses and their specific LOTO procedures are not identified in SPI = s policy. Section 1910.147(c)(4)(ii) requires written,
specific procedures. The manufacturer = s maintenance manuals are inadequate.
Such manuals do not identify the locations of the Plant = s energy sources, which is necessary to properly perform
LOTO.

Items
4c (alleged failure to conduct
periodic LOTO inspections) The standard requires that the periodic inspections
be performed by an authorized employee other than the ones utilizing the energy
control procedure being inspected. The Secretary argues that SPI = s inspections, if conducted, were after the maintenance
employee locked out a machine and had already begun service work
(Tr. 2557-2558, 2560).

During
OSHA = s inspection, former safety manager Gerard stated that he
was the authorized person to perform periodic inspections. However, Gerard as
part of his job duties did not perform maintenance work, including LOTO (Tr.
211-213). Gerard testified that he has never performed LOTO (Tr. 213,
3493-3494). Section 1910.147 defines authorized employee as a person who
performs LOTO on machines. Gerard does not qualify as an authorized employee.

During
the hearing, maintenance supervisor Bobby Cole testified that he and leadman
Robert Jackson were responsible for assuring maintenance employees complied
with the LOTO policy. They watched employees perform LOTO (Tr. 2749, 2757,
2764-2765). Jackson, however, denied performing LOTO inspections (Tr. 2559).

SPI
argues that since Cole made sure employees performed LOTO correctly, he did the
inspections required by the standard. SPI claims that the LOTO procedures for
every machine were reviewed at one time or another. Cole and Jackson randomly
walked around and observed employees performing LOTO (Tr. 217-218, 2469,
2557-2559, 2633).

The
record fails to show that Cole and Jackson = s observations constituted
periodic inspections as contemplated by the standard. Their observations and
reviews were random and sporadic without any assurance that all LOTO procedures
were inspected at least annually. Cole and Jackson testified that the only time
LOTO was observed was when a machine actually required servicing (Tr. 2633,
2757). The periodic inspections under the standard envisions a review of each
written procedure and its utilization. Cole considered Jackson more qualified
to review the written LOTO policy with employees (Tr. 2748-2749). Jackson,
however, denied reviewing the policy with employees (Tr. 2551). Also, it is
noted that Arkansas OSH = s consultation in 1999 advised
SPI of its failure to conduct periodic LOTO inspections at least annually (Exh.
C-98, p. 26 of 29).

Item
4d (alleged failure to have written
certifications of periodic inspections) As discussed, SPI failed to conduct
periodic inspections and therefore failed to have written certifications. SPI
lacked certification that inspections had been conducted. CO Sims requested the
certifications, but none was provided.

SPI
failed to comply, not only with the standard, but also its own LOTO policy
(Exh. C-5). SPI = s written LOTO policy requires the maintenance manager to A perform documented periodic inspections at least annually
and certify the inspection report @ (Exh. C-5, para E; Tr. 222-223).
The certification required by the standard must include A the machine or equipment locked or tagged out, the date of
inspection, the employees included in the inspection and the person performing
the inspection. @

SPI = s argument that the Arkansas OSH = s consultation in June, 1999, constituted an inspection and
certification is rejected (Exhs. C-98, R-24). It was less than a year of the
OSHA 2000 inspection. Such surveys of the plant by other entities do not
satisfy the standard = s requirement for the employer
to certify periodic inspections of its LOTO procedures. Also, as stated, the
consultation advised SPI to conduct periodic inspections at least annually.

Serious
Classification of Item 4b, 4c, and 4d

SPI = s argument that violations identified in items 4b, 4c, and
4d should be classified as A other @ than serious is rejected. Although there is no evidence
that employees improperly performed LOTO on any machine, SPI = s failure to have written specific procedures for the
presses and periodic inspection of all LOTO procedures could have resulted in
serious injury to employees. The violations were not only as to the standard
but SPI = s failure to follow its own written procedures and policy.
SPI should have known of the its failure to comply. The violations are serious.

Serious
Citation 1, Item 8 - Alleged violation of ' 1910.212(a)(1)

The
citation alleges that the Myteck Mark 5 press and the Ultra 16 press in the
truss shop were not fully guarded to prevent employees = exposure to the pinch point between the ram and press bed.
Section 1910.212(a)(1) provides:

One or more methods of machine guarding shall
be provided to protect the operator and other employees in the machine area
from hazards such as those created by point of operation, ingoing nip points,
rotating parts, flying chips and sparks. Examples of guarding methods
are--barrier guards, two-hand tripping devices, electronic safety devices, etc.

The
Myteck Mark 5 and the Ultra 16 presses are used to form the wooden trusses used
in mobile home roofs. Both presses operate similarly. When wooden truss members
are placed into set guides on the press table, the table moves under the press,
which presses a metal piece used to connect the wooden members into the wood to
form the truss. The presses require two operators. Myteck Mark 5

The
two operators stand in front of the Myteck Mark 5 press, which is operated
daily (Exh.-C-44; Tr. 239). While working in front of the press, the operators
are not exposed to the point of operation (Exh. C-45; Tr. 235). Operator Gary
Marshall testified that he could not reach into the point of operation while
operating the press (Tr. 1492, 1520-1521). Although protected during normal
operation, CO Sims considered the areas on the east side and on the back side
of the press as not sufficiently guarded to prevent employee access to the
point of operation (Tr. 721-722).

On
the east side, an approximate 10-inch opening existed between a storage rack
and a standing yellow metal guard. If inside this opening, the point of
operation was 17.5 inches (Exhs. C-45, C-87; Tr. 237-239). CO Sims did not
see an employee inside the opening (Tr. 241-242). Operator Marshall testified
that the yellow guard prevented an operator from reaching into the point of
operation (Tr. 1523-1524). The record shows no reason for an employee to reach
into the point of operation on the east side (Tr. 1524).

On
the back of the press, CO Sims testified that it was unguarded (Exh. C-88; Tr.
243). She speculated that employees went in the back to clean or clear jams.
Also, operators regularly went to the back of the press to get nails and
materials (Tr. 1493). There were stacks of boxes and movable storage carts containing
lumber and nails. Because of boxes and carts, operator Marshall testified that
he was unable to reach into the press (Tr. 1525-1526). There is no showing that
the boxes or storage racks were ever moved. CO Sims agreed that the carts and
boxes blocked the press = s point of operation (Tr. 266,
725, 850).

Ultra 16

The
Ultra 16 press performs the same function as the Myteck but is newer and the
operators stand in front and in the back of the press. The press is operated
daily (Exhs. C-47, C-47a, C-89, C-90, Tr. 251, 1495). Blue storage racks for
lumber used in making trusses are between the operator = s work area and the press = s point of
operation (Tr. 247). When operating the press, CO Sims testified that operators
are not exposed to the point of operation because of the storage racks (Tr.
258, 727-728). However, on the east and west ends, CO Sims considered an open
area between the ends of the blue storage racks and a yellow mesh guard on the
ends of the press as unguarded (Tr. 246-247, 249). The unguarded opening on the
west end was 17 2 inches wide. From the opening at the end of the press, it
was 35 inches horizontally and approximately 6 2 inches
downward to the point of operation (Tr. 249,1532-1533). Although she did not
observe the east end, CO Sims believed that it was the same as the west end
(Tr. 858).

CO
Sims speculated that the operators were exposed by the unguarded openings when
cleaning or clearing jams from the press (Tr. 263-264). She was also concerned
about the exposure to other employees in the area (Tr. 253-255). However, CO
Sims testified that an employee had to deliberately reach into the point of
operation from the unguarded openings (Tr. 763). However, she did not observe
the press in operation or employees in the area of the unguarded openings (Tr.
263, 858). Also, a dumpster was located in front of the west end, which allowed
only enough space for one person to pass between the dumpster and the end (Tr.
760, 762).

Operator
Marshall testified that to start the press, the button was located on the east
end. He also occasionally took his break at the east end (Tr. 1498-1499, 1527).
He stated that the dumpster was always on the west end (Tr. 1496). He also
testified that the yellow guard on the east end was not in place until the day
OSHA inspected the truss shop. It had been off the press for several months
(Tr. 1500, 1507-1509, 1510).

Plant
manager Stan Daughtry, who conducted daily walkaround inspections of the truss
shop, testified that he had not seen any guards missing from the press (Tr.
3926-3927). Maintenance supervisor Cole also denied that the guard was off the
press or that the guard was replaced before OSHA inspected the area (Tr. 2818).

Maintenance
leadman Jackson testified that he had removed the guards in the past but had
never failed to replace them before the press was next used (Tr. 2612-2613).
Jackson denied that any guards were replaced during OSHA = s inspection (Tr. 2614-2615). Maintenance employee Rinehart
also denied that the guard was replaced during OSHA = s inspection (Tr. 2483-2484). He stated that the guard had
never been off more than one day (Tr. 2484).

Discussion

As an
element of the Secretary = s burden of proof, the record
must show that employees were exposed or had access to the violative condition.
Walker Towing Corp ., 14 BNA OSHC 2072 (No. 87-1359, 1991.).
Employees = exposure means that employees have been, are, or will be
in the A zone of danger @ either during their assigned
working duties, their personal comfort activities while on the jobsite, or
their movement along normal routes of ingress to or egress from their assigned
workplaces. Kaspar Electroplating Corp., 16 BNA OSHC 1517 (No. 90-2866,
1993). In machine guarding cases, A the mere fact that it was not
impossible for an employee to insert his hands under the ram of a machine does
not itself prove that the point of operation exposes him to injury. Whether the
point of operation exposes an employee to injury must be determined based on
the manner in which the machine functions and how it is operated by the
employees. @ Rockwell Int = l. Corp. , 9 BNA OSHC 1092, 1097-1098 (No. 12470, 1980). The inquiry
is not whether exposure is theoretically possible but whether an employee = s entry into the danger zone is reasonably predictable A by operational necessity or otherwise (including
inadvertence). @ Fabricated Metal Products , 18 BNA OSHC 1072, 1074
(No. 93-1853, 1997).

In
this case, OSHA failed to establish employees = exposure to
the zone of danger was reasonably predictable, either by the operation of the
press or inadvertence. CO Sims = s speculation of exposure is not
supported by the record. CO Sims concedes that an employee would have to
deliberately reach into the point of operation. The purported inadequately
guarded areas were far from where operators normally operated the presses. CO
Sims did not observe, nor does the record reflect, that employees were in the
areas of the unguarded openings; and, if in the areas, that employees would
deliberately reach into the point of operation.

On
the east side of the Myteck press, the opening was only 10 inches and the point
of operation was 17 2 inches from the edge of the
press. There was no showing that employees had been or expected to be inside
the opening for any operational reason or personal convenience. Also, the point
of operation was sufficiently remote from the unguarded opening that even inadvertent
exposure is unforeseeable. With regard to the back of the Myteck press,
employees traveled there to obtain nails from stored boxes. However, the boxes
prevented employees = access to the point of
operation. It was not shown that the boxes were ever removed from the back or
that operators performed any work on the press from the back.  

Similarly,
the Ultra 16 press was not shown to be inadequately guarded. Although the
openings on the east and west ends of the press were 17 2 inches, employees = exposure required a reach of 35
inches horizontally and 6 2 inches downward. It was not
shown that such a reach was reasonably predictable based on operational
necessity or inadvertence. Theoretical possibility is insufficient. Also, at
least on the west end, there was a dumpster always present additionally
inhibiting employees = exposure. Guarding by location
means not only the placing of a machine in the plant but also the machine = s elements or parts are installed so that no person can
normally reach through, over, under, or around the hazard area. Insulation
Manufacturing Co ., 1 BNA OSHC 3122 (1973).

The
failure to guard the Myteck and Ultra presses = points of
operation is vacated.

Serious
Citation 1, Item 9a - Alleged violation of ' 1910.212(a)(3)(ii)

The
citation alleges that the sheet rock slitters in the sidewall and partition
departments were not fully guarded to prevent employees = exposure to the point of operation. Section
1910.212(a)(3)(ii) provides:

The point of operation of machines whose
operation exposes an employee to injury shall be guarded. The guarding device
shall be in conformity with any appropriate standards therefor, or, in the
absence of applicable specific standards shall be so designed and constructed
as to prevent the operator from having any part of his body in the danger zone
during the operating cycle.

The 4
slitter machines cut large boards of sheet rock to the desired size. Although
she did not see all of the machines, CO Sims testified that they were operated
the same. The 3/8-inch sheet rock board is placed on the slitter = s table and guided through upper and lower cutting blades
which cut the paper covering the sheet rock. The slitter operator holds the
sheet rock against the guide along the right side of the machine as the
circular blades pull the board through the cutting area. After the paper is
cut, the operator walks to the back side of the machine and snaps the sheet
rock apart. There are approximately 8 slitter machine operators. The machines
are operated daily (Exh. C-48; Tr. 267-268, 270-271, 274, 277, 859-860,
865, 3768, 3792).

The
slitter machine = s point of operation is between the two blades which do not
retract or elevate. The top blade is 6 1/4 inches in diameter. In observing the
operation of the slitter machine, CO Sims concluded that the blades on the left
side were not fully guarded. The guard adequately protected the point of
operation along the front, right side and rear of the blades. The front guard
was approximately 4 inches wide and the blades = inserts were
within the guard. The partially exposed portion on the left side of the blades
was 4 inches. However, a nut and bolt assembly partially blocked the left side
(Tr. 272-273, 275, 433, 435, 866-867).

CO Sims
testified that the operator = s hands are kept apart
approximately shoulder width as the sheet rock passes through the blades. She
estimated that the operator = s hands came within inches of
the blades when parallel to the blades. She did not take a measurement. She
testified that the operator = s right hand was not exposed,
just the left hand (Tr. 276-277, 412, 427-429). After OSHA = s inspection, SPI redesigned the guarding and a full guard
was placed around the cutting blades (Exhs. R-37, C-94, C-95; Tr. 949-950,
3778-3779, 3930).

The
record in this case fails to show that employees = exposure in
the zone of danger was reasonably predictable. A board of sheet rock is 6 - 8
feet long, and the operator stands behind the board as it feeds through the
cutting blades. The operator uses both hands to hold and guide the sheet rock
through the blades. CO Sims testified that there is no opening between the
existing partial guard and the sheet rock when being fed into the blades. The
operator = s left hand is not exposed to the point of operation while
the sheet rock is fed into the machine (Tr. 440, 863, 870, 953-954).

Operator
Walter Wyatt testified that the operator feeds the sheet rock into the two
blades which pulls it through, A pinching it. @ He holds the sheet rock against the left side guide to
avoid a curved cut. The blades are located 16 inches from the front of the
table, which is the closest his body comes to the blades. Wyatt said that he
stops his hands at the point where the table begins because the blades pull the
material through. When the sheet rock reaches the edge of the table, he walks
around the table to the other end, where he retrieves the sheet rock. He does
not need to keep his hands on the sheet rock until they are even with the
blades. Wyatt testified that the closest his hands get to the blades is
approximately 16 inches (Tr. 3768-3771, 3774-3776, 3794, 3797-3798). Director
of manufacturing Daughtry testified that during OSHA = s inspection, he did not see the operator = s hands in the vicinity of blades (Tr. 3931-3932).

With
adequate guarding in the front, right side, and back of the slitter and the nut
and screw assembly on the left side, the operator = s left hand
was not shown to be exposed to the point of operation by operational necessity
or inadvertence. The violation is vacated.

Serious
Citation 1, Item 9b - Alleged violation of ' 1910.213(r)(4)

The
citation alleges that the points of operation on the Idaco Pet dado saw in the
truss shop were not effectively guarded to prevent the operator = s exposure. Section 1910.213(r)(4) provides:

The mention of specific machines in paragraphs
(a) through (q) and paragraph (r) of this section, inclusive, is not intended
to exclude other wood working machines from the requirement that suitable
guards and exhaust hoods be provided to reduce to a minimum the hazard due to
the point of operation of such machines.

The
Idaco PET dado saw cuts notches and cross cuts in wooden boards used for
trusses. The saw has separate blades for the notches and cross cuts. After the
wooden board is placed on a conveyor at the saw = s infeed
side, the board automatically proceeds through the cross cut blade, which cuts
the board to a specific length and then through the dado blades, which notches
the board before it exits the saw in the back at the outfeed side. The dado
blades are actually 3 or 4 blades stacked together. The saw runs continuously
and is automatic with one operator infeeding the boards and another operator
removing the boards from the outfeed side. The saw has operated daily for two
years (Exhs. C-49, C-50, C-51, C-91, C-92, C-93; Tr. 284, 288, 292-294, 299,
306-307, 872-873, 3997).

The
citation alleges employees = exposure on both the infeed and
outfeed sides of the Idaco saw (Tr. 873-874). CO Sims testified that the infeed
operator was A about 3 feet @ from dado blades. However, the
control panel, she estimated was approximately 15 inches from the cross cut
blade. She did not see the cross cut blade in operation (Tr. 350, 875-876,
982-983).

CO
Sims considered, however, the greatest potential exposure was to the outfeed
operator (Tr. 291). As the cut boards exit the saw, the operator reaches inside
a thin plastic shield, installed to reduce dust and flying chips, and lifts the
boards off a conveyor. The boards are removed from the conveyor and placed on a
storage rack near the saw (Exh. R-39B; Tr. 292, 3933-3934, 4005-4006). The
operator, standing at the edge of the saw, is 12 inches from the point of
operation (Tr. 292-293, 877). The plastic shield is approximately 1 2 feet from the saw blades (Tr. 3934). CO Sims did not
consider the plastic shield a guard because the operator placed his hands
through it (Exh. C-51; Tr. 297). She is concerned about the dado serrated blades
below and to the left of the conveyor where the cut boards are retrieved (Exh.
C-93; Tr. 987). She opined that the operator could stick his hands into the
blades to clear a jam (Tr. 284, 491-492).

The
record fails to establish infeed operator = s exposure. CO Sims did not see
or take measurements of the operator while the cross cut blades were in
operation. She did not see the operator at the control panel. There was no
showing that the operator = s hands were in the zone of
danger because of operational necessity or inadvertence (Tr. 2732-2733,
3939-3940).

The
record, however, does establish the operator = s exposure to
the dado blades on the outfeed side of the saw. The plastic shield does not
prevent an employee = s hands from inadvertently
missing the cut board or coming in low towards the dado blades. The operator
has approximately 15 seconds to catch the cut board, turn around, and stack it
before another board is ready (Tr. 4007). The operator = s access to the zone of danger is reasonably predictable during
the course of normal work duties or inadvertence. The operator stands within 12
inches of the point of operation. Dover Elevator Co., 16 BNA OSHC 1281,
1285 (No. 91-862, 1993). After OSHA = s inspection, SPI installed
additional guarding (Tr. 750-751).

The
violation is serious. The condition was visible and the subject of SPI = s own safety inspection. Although the record does not
reflect any injuries, the lack of guarding could cause serious injury,
including amputation of the hand.

Serious
Citation 1, Item 11a - Alleged violation of ' 1910.332(b)(1)

The
citation alleges that employees who were at risk of electric shock were not
trained in and familiar with safety-related work practices. Section
1910.332(b)(1) provides:

Employees shall be trained in and familiar
with the safety-related work practices required by 1910.331 through 1910.335
that pertain to their respective job assignments.

The
scope of the safety-related work practices requirements at ' 1910.331(a) provides:

The provisions of '' 1910.331 through 1910.335 cover electrical safety-related
work practices for both qualified persons (those who have training in avoiding
the electrical hazards of working on or near exposed energized parts) and
unqualified persons (those with little or no such training) working on, near,
or with the following installations:

The
installations within the standard = s scope include premises wiring,
wiring for connection to supply, other wiring, and optical fiber cable. The
excluded work involves generation, transmission and distribution installations,
communications installations, installations in vehicles, and railway
installations.

The
safety-related work practice standards establish safety requirements covering
work performed on or near exposed energized and de-energized parts of electric
equipment, the use of personal protective equipment by employees exposed to
potential electrical hazards, the safe use of portable electric equipment,
electric power and lighting circuits, and testing instruments and equipment.
The training required under ' 1910.332(c) may be classroom or
on-the-job training. The extent of the training depends on the job assignment
and risk to the employee. The need for training is dictated by the hazard.

Although
large electrical projects are performed by outside contractors, SPI = s maintenance employees regularly perform electrical work
throughout the plant (Tr. 2474, 2798-2799). Such electrical work includes
replacing circuit breakers and fuses, installing and replacing electrical
outlets and junction boxes, rewiring, troubleshooting, and installing fans and
fluorescent lights (Tr. 1007, 1022, 1082, 1084, 1086, 1088-1089, 2390,
2413, 2561-2564, 2566-2571).

The
Secretary asserts that maintenance employees received little or no training on
electrical safety-related work practices (Tr. 309). CO Sims was informed that
SPI had not provided safety-related work practice training to its maintenance
employees. SPI did not have written safety and work practice policies or programs
(Tr. 309, 315-316). There is no allegation of employees = exposure to energized parts. CO Sims did not observe any
maintenance employee fail to correctly perform LOTO or improperly use a tester
(Tr. 665-666).

SPI
argues that the maintenance employees received LOTO training and worked with
de-energized circuits only (Tr. 2396, 2762, 3673). Properly locking out the
power source avoids the electric hazard (Tr. 656, 2602-2603). CO Sims testified
that, if an employee correctly performed LOTO, there is no hazard of serious
injury (Tr. 659-661). Therefore, SPI asserts that the LOTO training received by
the employees was all that was required.

The
record establishes a violation. Safety manager Gerard stated that training on
electrical safety-related work practices had not been provided to the
maintenance employees (Tr. 309, 315-316). There is no showing that employees
were trained as required by the safety-related work practices standards on how
to distinguish exposed live parts from other parts, instructions to follow when
performing work on or near electrical circuits, how to determine the nominal
voltage of live parts and how to replace/change outlets and receptacles, the
types of electrical hazards which may be encountered, and OSHA = s standards on electrical safety-related work practices
(Tr. 2419-2420, 2422-2423, 2572, 2574-2575). Such requirements are in addition
to LOTO training. The hazard of working on de-energized circuits is that it may
become energized, if not properly de-energized (Tr. 655). LOTO training
differs from training on safety-related work practices. There is no dispute
that SPI = s 1999 LOTO training did not include electrical
safety-related work practices (Tr. 3298-3299).

Maintenance
employee Rinehart told OSHA that he received no instructions on procedures to
follow when performing work on electrical circuits or on distinguishing between
exposed live parts from other parts. His knowledge was based on 30 years of
experience (Tr. 2419-2420, 2422-2423). Leadman Jackson, a certified electrician,
also said that SPI did not train him on determining nominal voltage of live
parts, electrical hazards, or safety-related work practices like installing
panel boxes, outlets, junctions boxes, or replacing breakers (Tr. 2572,
2574-2575). Despite the certification and years of experience, SPI remains
responsible under the standard to provide training on safety-related work
practices on the machines and equipment at its plant.

The
violation was serious. SPI should have known of the inadequate training, and
employees were exposed to electrical hazards without the training.

Serious
Citation 1, Item 11b - Alleged violation of ' 1910.333(b)(2)(i)

The
citation alleges that SPI did not maintain a written copy of lockout procedures
to be utilized during electrical work by maintenance employees. Section
1910.333(b)(2)(i) provides:

The employer shall maintain a written copy of
the procedures outlined in paragraph (b)(2) and shall make it available for
inspection by employees and by the Assistant Secretary of Labor or his or her
authorized representatives.

Paragraph
(b)(2), under the safety-related work practices standards, involves the locking
out or tagging out of energized parts while an employee is exposed to parts of
fixed electric equipment or circuits which have been de-energized. According to
the note following paragraph (b)(2), the LOTO procedures that comply with ' 1910.147 comply with this section. The note following '  1910.333(b)(2)(i) provides that the A written procedures may be in the form of a copy of
paragraph (b) of this section. @

Safety
manager Gerard stated to OSHA that SPI did not have a written electrical
safety-related work practices program (Tr. 309, 315-316).

SPI
has a written LOTO policy (Exh. C-5). Maintenance supervisor Cole stated that
SPI relied on its written LOTO policy and common sense (Tr. 2754). As
discussed, SPI = s LOTO policy was adequate except for the lack of
procedures for the Myteck and Ultra 16 presses.

The
record fails to show that SPI = s employees did not have access
for inspection to a copy of ' 1910.333(b) in lieu of a copy
of its own written work practices. CO Sims testified that she did not know if
SPI had a copy of the standards or if it was available to employees. However,
she assumed that a copy of the standards was at SPI (Tr. 646). Supervisor Cole
testified that SPI had copies of the standards and employees knew where they
were located (Tr. 2800). The alleged violation is vacated.

Willful
Citation 2, Item 1 - Alleged violation of

' 1910.23(c)(1) or, in the alternative, ' 5(a)(1) of the Act

The
citation alleges that employees working on the roofs and on step ladders
adjacent to the open-sided floors of mobile homes were not provided with means
of fall protection.

Section
1910.23(c)(1) provides:

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.

OSHA alleges, in the
alternative, a violation of ' 5(a)(1) of the Act, which
provides that each employer:

shall furnish to each of his employees
employment and a place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious physical harm to his
employees.

OSHA
inspectors observed employees on the roofs of mobile homes and on step ladders
on the floors of mobile homes. There is no dispute that the employees were not
wearing personal fall arrest systems. Also, the mobile home roofs and floors
did not have guardrails. The citation identifies 5 instances remaining in
dispute.

Instance
(a). IH Cole observed employee Samuel
Sanchez without fall protection at the edge of the roof near a gap of 17 inches
between the roof and catwalk, in Station 10, Plant 4. The employee was
performing deck work and cutting vent holes. He was wearing a safety harness,
but it was not tied off (Exh. C-52; Tr. 1730-1731). He was also observed by CO
Almond close to the roof = s edge (Tr. 2128-2129).

Instance
(b). IHs Cole and Almond observed
employees Juan Alvarez and Juan Lopez without fall protection while installing
a fireplace vent on a mobile home roof in Station 10, Plant 4. The height of
the roof at the peak from the plant = s floor was 14 feet. The employees
were 36.5 inches from the roof = s edge. The edge of the roof was
approximately 30 inches from the catwalk. On the roof = s low side, the gap was 19 inches to the catwalk. The
employees were next to the ridge beam, which was approximately 2 feet 8 inches
high (Exh. C-53; Tr. 1733-1735, 1739, 2008-2009, 2130, 2133-2135, 2137).

Instance
(c). CO Almond and IH Cole observed line
leader Dawn Davis and employee Frank Snyder without fall protection while
installing an air vent and cutting vent holes at the roof = s peak in Station 10 of Plant 4. The gap between the
catwalk nearest the employees and roof was 19 inches. The height of the roof = s eves to the plant floor was 13.5 feet (Exhs. C-41, C-43,
C-54; Tr. 1738-1739, 1746, 2125-2129, 2139-2141).

Instance
(d). CO Sims observed Jesus Guardia inside
a mobile home on a two-step ladder next to the open-sided floor, sawing off the
top of a partition. The floor of the mobile home was 41 inches above the plant = s cement floor. The step ladder was 23 inches high and less
than 1 foot from the floor = s edge. The employee was working
from the step ladder for approximately 30 minutes (Exh. C-59, Tr. 332-333,
344-345).

Instance
(e). CO Almond observed employee Jacob
Lopez inside a mobile home installing interior trim from a step ladder, 32 2 inches high, in the Plant 4 roofing department. The step
ladder was 8 inches from the open-sided edge of the floor. The employee was
straddling the top of the ladder. The floor was 41 inches above the plant = s concrete floor (Exh. C-56; Tr. 2144-2146).

CO
Almond also observed employee Juan Alvarez inside a mobile home standing atop a
step ladder within 8 inches of the open-sided floor. The employee was working
around the fireplace. The height of the step ladder was 32 2 inches. The floor of the mobile home was 41 inches above
the plant = s floor (Exhs. C-57, C-58; Tr. 2148-2150).

Additionally,
former employee June Boerner testified that she regularly cleaned trim and
removed putty inside mobile homes from a 3-foot step ladder. She said that she
occasionally placed the ladder within 1 foot of the open-sided floor. She
testified that all employees in the final finish department used step ladders
in the same manner (Tr. 1362-1364, 1369).

Discussion          

Roofs of Mobile
Homes

Instances
(a), (b), and (c) involve employees working on the roofs installing trusses,
decking, and vents in Station 10, Plant 4. Initially, the issue is whether a
roof under construction on a mobile home is a A floor or
platform @ within the meaning of '
1910.23(c)(1). There is no dispute that a roof is not a floor. A A platform, @ on the other hand, is broadly
defined as A a working space for persons, elevated above the surrounding
floor or ground level, such as a balcony or platform for the operation of
machinery and equipment. @ See ' 1910.21(a)(4).

Whether
the cited surface (erecting roofs for mobile homes) is a A platform @ within the meaning of the
standard is a question of fact. Unarco Commercial Products , 16 BNA OSHC
1499, 1502 (No. 89-1555, 1993) (rails and pipes located above chemical tanks
are not platforms). Although broadly defined, the definition of a platform is
sufficiently clear in its application. Id. at 1503. The roofs in
Stations 7 - 10 are being erected on the mobile homes by installing the
trusses, decking, and vents. The homes move through the stations at a rate of
approximately 1 every hour. As the roofs are constructed and move through the
stations, the surfaces upon which the employees are working is temporary and
changing. The roofs under construction are temporary surfaces.

As a
temporary surface, the ' 1910.21(a)(4) definition of A platform @ does not apply. The standard
applies to permanent platforms. In Fleetwood Homes of Texas, Inc. , 8 BNA
OSHC 2125, 2128 (No. 79-5642, 1980), the Commission, in a case involving planks
cited as platforms under '  1910.23(c)(1) placed
between working decks to create work bays around mobile homes on an assembly
line, noted that A the Secretary = s standards differentiate
platforms and scaffolds based on whether they are permanent or temporary
working surfaces, respectively. @ The Commission, in vacating the
violation, concluded that the planks were scaffolds, not platforms, on the basis
that the A permanent-temporary distinction relates to the construction
and placement of the device, not to the frequency or regularity of its use in
the employer = s operation. @ Id at 2128. Although
Commission and court precedent indicates that similar guardrail requirements
for platforms under the construction standards at ' 1926.500 apply to temporary surfaces, the interpretations
under construction are not applicable in this case because SPI = s facility is general industry. A. J. McNulty & Co.,
Inc ., 19 BNA OSHC 1121, 1133 (No. 94-1758, 2000), aff = d. 19 BNA OSHC 1769
(D.C. Cir. 2002). 

Also,
it is noted that the mobile homes are products manufactured by SPI. The
Commission noted in an early case that A the surface of a product while
it is being manufactured, assembled, and tested is not a platform as defined in
Sec. 1910.21(a)(4). @ Allis-Chalmers Corporation ,
4 BNA OSHC 1227, 1228 (No. 5210, 1976). To require guardrails, the Commission
noted that it could produce absurd results such as to A require the erection of guardrails on the wings and tail
assemblies of large aircraft being manufactured. @

Therefore,
' 1910.23(c)(1) does not apply. The roofs are not A floors or platforms @ as required by the standard.

In
the alternative, the Secretary alleges a violation of the general duty clause
at ' 5(a)(1) of the Act. A general duty violation exists if the
Secretary establishes that (1) a condition or activity in the employer = s workplace presents a hazard to employees, (2) the
employer or its industry recognizes that the condition or activity is
hazardous, (3) the hazard is causing or likely to cause death or serious
physical harm, and (4) a feasible means exists to eliminate or materially
reduce the hazard. Waldon Healthcare Ctr ., 16 BNA OSHC 1052, 1058 (No.
89-2804, 1993).

The
record shows that a fall hazard existed when SPI employees worked on the roofs
installing trusses, vents, and decking in Stations 7 - 10, Plant 4, where the
double wide homes were manufactured. CO Sims testified that fall protection such
as guardrails is required when a 14-foot (half of double wide) home is in the roofing stations because of the
increased space to the catwalks (Tr. 496-497). There is no dispute that the
roofs in Stations 7 - 10 were not guarded by guardrails, nor employees
protected by fall arrest systems. The employees = work
required them to be at or near the edge.

The
gaps between the roofs and adjacent catwalks, if the home is centered, ranged
from 6 inches to 24 2 inches (Exh. C-7). For example,
CO Sims = measured the width of Station 10 as 213 inches and,
depending upon the width of the mobile home, the total gap could be 49 inches
(24 2 inches on either side) (Exh. C-7; Tr. 2012-2015). The
homes, however, were not necessarily centered. If not centered, the gap, on at
least one side, could be larger. As observed by OSHA, the employees worked at
or near gaps of 17 and 19 inches without fall protection. Assistant production
managers Hanson and Jackson agreed that an employee could fall through gaps of
18 inches (Tr. 2674, 3380). The fall to the plant = s cement floor was approximately 11 feet.

The
fall hazard was recognized. A hazard is deemed A recognized @ when the potential danger of a condition or activity is
either actually known to the particular employer or generally known in the
industry Pepperidge Farm, Inc ., 17 BNA OSHC 1993 (No. 89-0265, 1997). A A recognized hazard @ is defined in terms of
conditions or practices over which the employer can reasonably be expected to
exercise control. Morrison-Knudsen Co./Yonkers Contracting Co., a Joint
Venture , 16 BNA OSHC 1105, 1121-22 (No. 88-572, 1993).

Although
there is no evidence of an employee falling from the roof in Stations 7 - 10,
the hazard, not any specific incident that resulted in injury, is relevant in
determining the existence of a recognized hazard. Brennan v. OSHRC , 494
F2d. 460, 463 (8th Cir. 1974). SPI = s fall protection plan states
that A our employees must be protected when they are exposed to
falls from unprotected sides and edges of walking-working surfaces (horizontal
and vertical surfaces) which are 6 feet or more above the lower levels @ (Exh. C-6, p. 01240). SPI = s director of
manufacturing Daughtry, who had worked in the mobile home industry for 30
years, testified that there was a 12-inch industry standard for gaps between
mobile homes and catwalks (Tr. 3909). SPI = s corporate safety officer Davis
also referenced a 12-inch standard in his safety audits of the plant (Exhs.
C-13, p. 01421, C-15, p. 01935; Tr. 2918, 2934). Also, the Secretary defines a A floor opening @ for fall protection purposes as
12 inches or more, which is considered sufficient space through which an
employee may fall. See ' 1910.21(a)(2).

As
another element of a ' 5(a)(1) violation, the
Secretary must show, not that an identified abatement measure would prevent the
hazard, but, rather, that the abatement measure would reduce the risk of severe
injury from the hazard. The courts require that the proposed abatement either A eliminate or materially reduce the hazard. @

The
Secretary = s proposed abatement measures include a guardrail system
that comes down from the roof or the use of overhead cables to which a fall
arrest system could be tied off similar to the overhead cables in Stations 11 -
15 in Plant 4 (Tr. 509). CO Sims testified that she had seen other mobile home
manufacturers install guardrail systems that came down from the roof (Tr. 509).
Also, it is noted that SPI, after OSHA = s inspection, added A wings @ which fold down from the
catwalks to narrow or eliminate the gaps between the catwalks and roofs (Tr.
3097). SPI made no showing that abatement of the fall hazard was not feasible
or that the measures proposed by the Secretary would not at least reduce the
risk of a fall hazard. A ' 5(a)(1) violation is established.

Step Ladder

Although
the step ladders are on a floor as defined by the Secretary, ' 1910.23(c)(1) does not apply to the employees as described
in instances (d) and (e). Mobile home floors are 41 inches above the plant = s cement floor and not 4 feet or more as required by the
standard (Tr. 333). Section 1910.23 applies when the floor is 4 feet or more,
not whether an employee is more than 4 feet. Further, guardrails would provide
little or no protection to an employee standing on a 23-inch high ladder next
to a guardrail.

With
regard to a ' 5(a)(1) violation, the Secretary failed to show an
industry recognized hazard. There is no showing that the step ladders were not
stable or that employees had received injuries from falling off the ladders.
The use of the ladders near the open side were for short durations. Employee
Boerner considered the ladders safe (Tr. 1440). Guardrails would not prevent an
employee on a ladder from falling (Tr. 1441). It would not provide protection.
Other abatement methods were not proposed by the Secretary.

Willful
Classification

The ' 5(a)(1) violation with regard to fall protection for
employees on the roof is classified as willful. A willful violation is A one committed with intentional, knowing or voluntary
disregard for the requirements of the Act, or with plain indifference to
employee safety. @ A. P. O = Horo Co., 14 BNA OSHC 2004, 2012 (No. 85-0369, 1991). An employer = s intentional disregard or plain indifference to its safety
obligations can be established in various ways, including proof of prior
citations or showing that an employer = s state of mind was such that,
if it was informed of the applicable standard, it would not care. Morrison-Knudsen
Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1123 (No. 88-572, 1993). A
violation is not willful, however, if the employer has a good faith belief that
it was not in violation. The test of good faith is objective--whether the
employer = s belief concerning a factual matter, or the interpretation
of a rule, was reasonable under the circumstances. General Motors Corp. ,
Electro-Motive Div. , 14 BNA OSHC 1064, 1068 (No. 82-630, et al.,
1991).

The ' 5(a)(1) violation by SPI was not willful. The Secretary
relied in the alternative on the general duty clause because a specific
standard did not apply. Also, although there was a 1999 fall protection
citation, IH Almond stated that SPI was not cited for failing to have
guardrails around the roof (Exh. C-3; Tr. 2234). She advised SPI that
guardrails are not required if the mobile home was close enough to the catwalks
and the catwalks extend all the way to the end of the home so that employees
could not fall through (Tr. 2236). There is no showing that employees had been
injured from falls from mobile home roofs. Based on the record and OSHA = s observations, only Station 10 in Plant 4 presented a
potential fall hazard to employees working on the roofs.

Willful
Citation 2, Item 2 - Alleged violation ' 1910.135(a)(1)

The
citation alleges that employees were not required to wear protective helmets
when walking or working under the catwalks, mezzanines, and roofs of mobile
homes. Section 1910.135(a)(1) provides:

The employer shall ensure that each affected
employee wears a protective helmet when working in areas where there is a
potential for injury to the head from falling objects.

Section
1910.135, like ' 1910.132, must be viewed in context of the workplace and
the reasonable existence of a hazard. Cotter & Co ., 598 F.2d 911
(5th Cir. 1979). Compliance with the standard requires protective helmets (hard
hats) when an employer has knowledge of a hazard requiring the use of helmets
or a reasonable person familiar with the situation, including any facts unique
to the particular industry, would recognize a hazard warranting the use of
helmets. Armour Food Co ., 14 BNA OSHC 1817 (No. 86-247, 1990). An
employees = exposure to overhead hazards and the potential for injury
that could be prevented by wearing protective helmets must be reasonable. ConAgra
Flour Milling Co. , 16 BNA OSHC 1137 (No. 88-1250, 1993).

There
is no dispute that SPI = s employees work on the roofs of
mobile homes in Plants 3 and 4 installing vents, decking and shingles. The
employees work with roofing materials such as wooden decking, roofing paper and
shingles, and use tools such as hammers, saws, pneumatic air guns, knives,
staple guns, and drills. Some of the tools weigh in excess of 10 pounds, and a
roll of roofing paper weighs approximately 40 pounds (Tr. 360-363, 375-376,
3229, 3233).

Bobby
Hanson, assistant production manager, testified that he has observed a half a
roll of roofing paper fall off a roof (Tr. 3385-3388). He testified that after
the incident, a new work rule was initiated which required employees to cut the
paper to size on the ground before taking it onto the roof (Tr. 3389, 3395).

Darren
Davis, roofing supervisor, testified that the hazards on the roof include boxes
of staples and vents with sharp edges (Tr. 3236). In the past, he has dropped
his utility knife and other things off of a roof. Also, his wife has dropped an
unplugged saw which scratched an employee = s face (Tr. 3228, 3230). Davis
knew of other instances where metal retractable measuring tapes had been
dropped (Tr. 3232).

Dawn
Davis, line leader and wife of Darren Davis, testified that employees entering
or exiting the marriage-side of the mobile home were exposed to falling
pieces of wooden overhang, which weigh as much as 15 pounds, being cut off at
the roof = s edge (Exh. C-63; Tr. 3825-3826, 3838). She said that the
only warning to employees was the sound of the router cutting the wood (Tr.
3829).

While
the employees worked overhead on the roofs and catwalks, CO Sims observed
employees working on the outside of the mobile homes or coming in and out of
the mobile homes. The employees were not wearing protective helmets. OSHA
estimated that approximately 147 employees on a daily basis work in the
immediate proximity of the roofing stations and are potentially exposed to the
hazard of falling objects (Exhs C-65, C-66, C-67; Tr. 361-363, 375, 1758-1760).

SPI = s accident and injury reports show that employees have been
struck by falling objects (Exh. C-8). At least 29 head injuries were reported
from April, 1997, through March, 2000. For example:

Gary
Lewis, a former vinyl hanger, testified that he had been struck in the head on
two occasions in June, 1999, and April, 2000 (Tr. 1236-1238). In 1999, he was
struck by a pair of steel snips, measuring 15 inches long and weighing
approximately 1 pound, which had accidentally been dropped by another employee
on scaffolding. He received a mild concussion (Tr. 1238-1239, 1242). In the
second incident, Lewis stated that he was struck in the head by a sheet of 8
feet by 4 feet, three-quarter inch plywood decking. His neck injury required
him to wear a neck brace (Tr. 1240-1242).

June
Boerner, a former line leader in final finish in Plant 3, testified that she
had been struck in the head at least twice. In October, 1998, she was hit by a
35 pound roll of roofing paper that fell off the roof. She was taken to the
emergency room and lost two days = work (Exh. C-8, p. 00768; Tr.
1352-1353, 1357, 1396-1397). On the same day, she said that another woman was
also struck in the head by a heavy roll of insulation (Tr. 1357). In another
incident in 1995, Boerner testified that she was struck in the head by a nail
gun (Tr. 1353-1354, 1421-1422). Boerner = s work was generally inside the
mobile homes and her injuries occurred when entering or exiting the homes.
Although she did not consider SPI a safe place to work, Boerner testified that
she did not want to wear a hard hat because they were hot and inconvenient when
working inside cabinets (Tr. 1369-1370, 1401).

Karen
Cratty, former cabinet shop and rework employee, testified that she was almost
struck in the head by a piece of shingle being thrown off the roof. She was not
aware that hard hats were available until after the OSHA 2000 inspection. Also,
she never saw any signs regarding hard hats or received any training or
instruction on precautions (Tr. 1161-1163, 1194, 1211-1212).

Terry
Williams, current production electrician, testified that she had been struck on
the head by a disconnected air hose that fell from a catwalk in December, 1999.
Williams received a concussion and lost two days of work (Tr. 2309-2310). SPI
nurse Kelly Hertenstein testified that Williams sustained a second head injury
when a piece of plywood decking fell off a mobile home roof in 1999 (Tr. 3718).
Williams stated that her safety instruction was to A keep your eyes open @ (Tr. 2307, 2309). Williams
also testified that another employee, Richard Smith, had been struck in the
head by a sheet of plywood in November, 1999 (Tr. 2315, 2320). Smith, in a
statement, stated that he had been struck twice, once by a hammer and once by
wood decking (Exh. C-78).

SPI
claims that hard hats are not required in its industry (SPI Brief p. 59).
Director of manufacturing Daughtry, who has 30 years of industry experience,
testified that hard hats are not mandatory in the mobile home industry (Tr.
3909-3910). SPI has a voluntary program with 60 hard hats available for
employees (Exhs. R-43, R-45, R-46; Tr. 3896, 3902). SPI notes that employees
such as Boerner refuse to wear hard hats because of the heat and other problems
(Tr. 1400-1401). SPI also posted warning signs in English and Spanish, such as A Caution - Overhead Work, @ throughout
the plant, which advised employees working in the area (Exh. C-60; Tr. 364,
3282-3283).   Additionally, SPI asserts that it initiated several
changes after the 1999 citations for hard hats which reduced the overhead
hazards. These changes included (1) centering the mobile homes in the stations
to reduce the gaps, (2) instructing employees on the ground to avoid overhead
hazards, (3) eliminating rolls of roofing paper on the roofs by cutting
them to length on the ground, and (4) using two employees to cut off the
excess roof decking so that it will not fall to the ground (Tr. 3284, 3295-3296, 3306, 3356,
3824-3825, 3828). Also, roofing supervisor Darren Davis initiated a verbal work
rule prohibiting employees in his crew from laying tools down on the roof when
not in use, unless the tools are secured (Exhs. C-96; Tr. 3237-3238, 3240). An
employee was also stationed on the catwalk to take material and tools from
employees on the roof (Tr. 3282). Based on these changes, SPI asserts that its
injury rates declined steadily during 1996 to 2000, with no head injuries in
2001 (Exh. R-17; Tr. 3648).

Despite
SPI = s attempts to reduce the overhead hazards, the Secretary
has established a violation. Instead of complying with the standard, SPI has
attempted to reduce the hazard. However, as long as employees with tools and
materials are working over the heads of employees on the ground and there are
openings, the overhead hazards remain. Even if the mobile homes are centered,
there are still openings through which tools or materials could fall (Exh.
C-99; Tr. 2127, 2137, 3153-3154). The verbal rule by one supervisor regarding
tools on the roofs was not shown to be enforced by SPI. No employee has been
disciplined (Tr. 3242). It was not an SPI work rule (Tr. 3506). Safety manager
Gerard testified that it was not unusual to leave tools and equipment on top of
roofs (Tr. 3509). Although there may have been a decline in reported head
injuries, it is not shown that the overhead hazards did not continue to exist.

In a
letter dated October 19, 1999, OSHA specifically rejected SPI = s voluntary hard hat proposal (Exh. C-10). Both Tom Gerard
and Daughtry admitted that neither of them discussed with OSHA the propriety of
a voluntary hard hat program (Tr. 3699, 3979).

SPI = s Fall Protection Plan states A [w]hen employees are exposed to falling objects, we ensure
they wear hart hats, @ and also requires additional
measures such as toeboards, screens, canopies, or barricades (Exh. C-6, p.
01243). SPI failed to comply with its own plan.

Kelly
Hertenstein, industrial nurse and assistant safety director, stated that she
was aware that employees (Gary Lewis, Terry Williams) were struck by falling
objects while working under the roofs, catwalks, and mezzanines. She testified
that she tried to A get them to wear hard hats in
that area. I talked to management about it but it = s still not
mandatory @ (Tr. 3715, 3717-3718).

Willful
Classification for Citation No. 2

As
stated, a willful violation differs from other classifications of violations
under the Act by a heightened awareness of the illegality of the conduct or
conditions and by a state of mind showing conscious disregard or plain
indifference. Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC
1105, 1123 (No. 88-572, 1993).

SPI
violation of ' 1910.135(a)(1) for failing to require protective helmets
is willful. On May 5, 1999, SPI received a citation for violation of ' 1910.135(a)(1) (Exh. C-3). SPI certified that it had
corrected the violation (Exh. C-3; Tr. 3967). SPI was even told by OSHA that it
specifically rejected SPI = s voluntary hard hat proposal
(Exh. C-10).

SPI
attempts to reduce the overhead hazard without complying with the standard were
not shown to be adequate or effective. An employer who knows the requirements
of the standard but decides not to comply, even if it has a good faith belief
that its own approach provides protection at least equivalent to OSHA = s requirements, is still in willful violation. Reich v.
Trinity Industries, Inc., 16 F.3d 1149, 1152 (11th Cir. 1994).

Although
eliminating all overhead hazards is better than requiring personal protective
equipment (PPE), the standard requires hard hats as long as a reasonable
probability of injury exists. See Keco Industries, Inc ., 13 BNA OSHC
1161 (No. 81-263, 1982). Prior head injuries show the existence of the ongoing
hazards which were not eliminated by any changes by SPI. The employees who
incurred the injuries testified regarding the overhead hazards. Tools and
materials are still on the roofs, and employees continue to walk or work below.

Docket No. 00-1807
(Health citations)

Serious
Citation 1, Items 2a and 2b - Alleged

violations
of '' 1910.1200(f)(5)(i) and 1910.1200(f)(5)(ii)

The
citation alleges that a 5 gallon plastic bucket containing adhesive in the
cabinet shop in Plant 3 was not labeled, tagged, or marked with the identity of
the hazardous chemicals and appropriate hazard warnings. Section
1910.1200(f)(5) provides in part:

Except as provided in paragraphs (f)(6) and
(f)(7) of this section, the employer shall ensure that each container of
hazardous chemicals in the workplace is labeled, tagged or marked with the
following information:

(i) Identity of the hazardous chemical(s)
contained therein; and

(ii) Appropriate hazard warnings, or
alternatively, words, pictures, symbols, or combinations thereof, which provide
at least general information regarding the hazards of the chemicals, and which,
in conjunction with the other information immediately available to employees
under the hazard communication program, will provide employees with the
specific information regarding the physical and health hazards of the hazardous
chemical.

There
is no dispute that a 5-gallon bucket of an adhesive was observed sitting on the
floor of the cabinet shop. The bucket was not labeled. The adhesive, also known
as formica glue, is manufactured as Lokweld 500 adhesive and is used by SPI to
attach the laminated counter tops. It is applied by paint rollers and used on a
daily basis (Exhs. C-34, pp. 01029, 00547, C-71; Tr. 1201, 1563-1564,
1568-1569, 1584, 2706, 2739, 3541-3543).

The
adhesive is a hazardous chemical as defined in '
1910.1200(c). SPI = s Hazard Assessment and PPE
Selection Worksheet identifies it as a A flammable adhesive @ with a A high risk level @ and a A high injury potential @ (Exh. C-30, p. 01329; Tr. 3548-3549). The material safety
data sheet (MSDS) describes the adhesive as extremely flammable, containing
acetone, hexane isomers, n-hexamine, and toluene, which have permissible
exposure limits. The potential health concerns include irritation and
inflammation of the eyes and skin, and at high levels, narcosis. It is toxic to
blood, lungs, kidneys, liver, and the nervous system (Exh. C-34; Tr.
1575-1576).  

In
the cabinet shop, employee Raul Zendejas was observed applying the adhesive
from the bucket. At least 3 other employees also used the adhesive from the
bucket and as many as 15 employees were in the cabinet shop on a regular basis
(Tr. 1201, 1582-1584, 2704-2705). Karen Cratty regularly refilled the bucket
from a 55-gallon drum, located approximately 25 feet from the cabinet shop,
which was labeled with appropriate flammable and health hazard warnings. Cratty
testified that the 5-gallon bucket was never labeled (Tr. 1155-1156, 2701,
2703, 2713). The bucket was generally placed behind where the employees using
an electric sander sanded the cabinets. OSHA observed that sanding caused
sparks to fall in the area of the bucket when the sander struck nails (Tr.
1589-1590, 2707-2709).

Safety
manager Gerard knew that the adhesive was used in the cabinet shop (Tr.
3541-3542). The bucket was in plain view (Tr. 1585). Eric Davis identified the
unlabeled bucket of adhesive as a problem in a safety inspection on June 20,
2000 (Exh. C-21, p. 5; Tr. 3119).

SPI
argues that the bucket did not have to be labeled because it was used by
employees who refill the adhesive from its original container. See ' 1910.1200(f)(7). SPI claims that the employees knew the
hazards of the adhesive and could read the hazards listed on the 55-gallon
drum. Also, SPI claims that the absence of a label on the 5-gallon bucket, even
if a technical violation, could not expose employees to serious injury or
death. The sparks from the sander did not fly directly towards the bucket (Tr.
1820-1821).

SPI = s arguments are rejected. Sections (f)(6) and (f)(7) of ' 1910.1200 do not apply in this case and therefore do not
except SPI from complying with the labeling requirements. SPI does not assert,
and the record does not show, that signs, placards, or other written materials
were used in lieu of labeling, as required by '
1910.1200(f)(6). The exception at ' 1910.1200(f)(7) for portable
containers does not apply because it is limited to the immediate use of the
employee who performs the transfer. In this case, other employees also used the
adhesive from the bucket. The accumulation of dried glue on the bucket indicates
repeated and prolonged use (Exh. C-71). Corporate safety director Eric Davis
told OSHA that such a bucket would last a week (Tr. 1586-1587).

The
record establishes serious violations of '' 1910.1200(f)(5)(i) and
1910.1200(f)(5)(ii). The unlabeled bucket contained a flammable adhesive and
was located near the sanding operations, which produced sparks. SPI should have
known of the unlabeled bucket. It was in plain view. See American Airlines,
Inc ., 17 BNA OSHC 1552, 1555 (No. 93-1817, 1996) (chemical not being used
but in area accessible by employees must be labeled); Aero Tec Laboratories,
Inc ., 17 BNA OSHC 2179, 2183 (No. 94-0055, 1996)(ALJ) (even when large 55
gallon drum was labeled, a small one gallon bucket dispensed but not immediately
used by employees requires labeling).

Serious
Citation 1, Item 3 - Alleged violation of ' 1910.1200(h)(2)(iii) The citation alleges that employees in
maintenance, final finish, and frame shops were not provided with information
as to the location and availability of the written hazard communication
program. Section 1910.1200(h)(2)(iii) provides that employees be informed of:

The location and availability of the written
hazard communication program, including the required list(s) of hazardous
chemicals, and material safety data sheets required by this section.

There
is no dispute that SPI used hazardous chemicals requiring SPI to develop a
written hazard communication program. SPI = s written hazard program
consisted of MSDSs, chemical inventory, chemical risks, and a hazard
communication program (Exhs. C-34, C-35, C-36, C-37). The chemicals used on a
daily basis included foam seal cleaner, propane, gasoline, brake fluid, DAP,
seam fill, solvent, acetone, paint, paint thinner, and adhesives (Tr.
1255-1256, 1616, 1633-1634). There was also wood dust and welding fumes present
in the plant (Exh. C-76; Tr. 1617, 1622, 1635). Although not in significant
amounts, IH Cole = s air monitoring detected formaldehyde, iron oxide,
chromium, beryllium, and heavy metal components (Tr. 1622, 1635-1636).

The
citation was based on statements from James Rinehart, Michael Suitt, Michael
Severs and Sergio Manriquez (Tr. 1614). They told OSHA that they were never
informed of SPI = s hazard communication program (Tr. 1614).

However,
the record does not support their allegations. SPI = s MSDSs and written hazard communication program were in a
book kept in the employees = breakroom. Employees could not
clock in, get a drink of water, or go to the bathroom without seeing the big
blue signs identifying the program (Exh. R-7; Tr. 2439-2440, 2505, 3637).

Despite
his statement to OSHA, maintenance leadman Rinehart testified that SPI = s written program and MSDSs had been in the breakroom since
1997 (Tr. 2433-2434). In his statement to OSHA, Suitt, when asked if he had
been informed about the location/availability of the MSDS, answered A Yes @ (Tr. 1945). Even in Severs = statement, he stated he knew the MSDSs were in a drawer in
the maintenance shop, but he did not know which drawer. Severs testified that
he knew where the information was in the breakroom, but he just forgot to tell
OSHA (Tr. 2505, 2507-2508).     Other employees also stated
that they had been informed of the location and availability of SPI = s hazard communication program. IH Cole testified that a
number of employees stated that they knew where the hazard communication and
MSDSs were located (Tr. 1889, 1991). Employee Karen Cratty testified that she
knew the book was in the breakroom, although she never looked at it and did not
know what an MSDS looked like (Tr. 1205). She was told of the location in the
breakroom when she started work (Tr. 1151, 1153, 1205). June Boerner also knew
that the information was located in the breakroom (Tr. 1383-1384).

In
addition to the breakroom, copies were in the manager = s office, frame shop, and chassis shop across the street
(Tr. 3875). Supervisor M. Jackson said also it was in the stockroom (Tr.
2688-2690).

The
record shows that SPI = s hazard communication program
was placed in locations available to employees. A violation is not necessarily
established because employees did not remember the location or testified that
they were not familiar with the program. The program was in the employees = breakroom. IH Cole agreed. See National Envelope
Corporation , 18 BNA OSHC 1562 (Nos. 94-2968, 94-3547, 1998) (MSDS station
conspicuous by printed signs where employees must pass at least twice daily to
punch in is compliance).

The
violation is not established.

Willful
Citation 2, Item 1 - Alleged violation of ' 1910.1200(h)(3)(ii)

The
citation alleges that employees working with hazardous chemicals/substances,
such as cellulose insulation, welding fumes, wood dust, foam seal cleaner,
bleach, paint thinner, and adhesive were not trained on the health hazards.
Section 1910.1200(h)(3)(ii) requires that employees receive training on A the physical and health hazards of the chemicals in the
work area. @

Employee
training is a A critical part @ of an employer = s hazardous communication program. The importance of training
is to ensure A that the employees are aware that they are exposed to
hazardous chemicals, that they know how to read and use labels and material
safety data sheets, and that, as a consequence of learning this information,
they are following the appropriate protective measures of the employer. @ See ' 1910.1200, Appendix E (4)(c).

Section
1910.1200(h)(3)(ii) is a performance oriented standard designed A to allow . . . employers maximum flexibility in meeting the
intent of the standard in developing programs to their own individual
workplaces. @ OSHA Letter of Interpretation (October 15, 1990). The
standard permits training on categories of hazards (flammability,
carcinogenicity) or specific chemicals. However, chemical specific information
must always be available. See ' 1910.1200(h)(1). Also, it is
recognized that supervisors are A frequently responsible for on
the job training sessions. @ See ' 1910.1200, Appendix E(4)(c). However, the employer remains
ultimately responsible. In providing training, an employer = s mere words of caution and general statement about health
hazards are not sufficient. Training must include an explanation A of both the change in body function and the signs and
symptoms that may occur to signal that change. @ See ' 1910.1200, Appendix A.

SPI
employed approximately 425 employees during the relevant period (Tr. 3614). SPI = s training program involved training production managers,
supervisors and line leaders, who in turn were supposed to train the employees
in their departments. The training of supervisors included how to read and
understand applicable MSDSs (Tr. 3580, 3611, 3615). Also, vendors, including
representatives from Foam Seal, Thermogas, and welding products, conducted
training on their products (Tr. 2807-2808, 3581-3582, 3622). According to SPI,
it chose its training methods because employees often moved around in the plant
after they were hired (Tr. 3878-3879).

The
record reflects that, for the most part, SPI did not document its training of
employees. Appendix E to ' 1910.1200 explains that the
standard does not require employers to create or maintain records of employees = training. Also, OSHA Directive CPL 2-2.38D, p. 14 (1998),
states that A [i]t cannot be expected that employees will recall all
information provided in the training and be able to repeat it. @

There
is no showing that employees mishandled chemicals or failed to wear proper
personal protective equipment (PPE) (Tr. 1832). Monitoring results did not show
that employees were exposed to air contaminants above the PEL or chemical
substances (Exhs. C-38, R-18). Prior to OSHA = s inspection,
SPI made certain changes, including replacing fiberglass with cellulose
insulation, because it was less dusty, and replacing the use of paint thinner
in final finish with orange cleaner (Exh. C-12, p. 01393; Tr. 3894).

Discussion

The
OSHA citation alleges 12 instances of lack of training based on employees = statements (Tr. 1858).

Instance
(a). Employees who were spraying
insulation into roofs are allegedly not trained. The cellulose insulation is
sprayed by 5 employees into the roofs while other employees are working inside
the mobile homes (Tr. 3207, 3215-3216, 3332). The insulation is purchased by
the semi-truck trailer load (Tr. 3701-3702).

The
cellulose insulation used by SPI is manufactured under the product name A Cocoon Insulation. @ The MSDS states that A Cocoon Insulation is not considered hazardous under the
criteria of the Federal OSHA Hazard Communication standard 29 C.F.R. 1910.1200. @ However, the insulation contains not more than 10% by
weight of boric acid and nuisance dust. The MSDS identifies boric acid as
hazardous under OSHA = s hazardous communication
standard and states that boric acid presents a hazard of emission from extreme
heat or open flame (Exh. C-34, p. 01048). Also, under occupation exposure
limits, the MSDS states that A Cocoon Insulation is
listed/regulated by OSHA, CalOSHA, and ACGIH as > Particulates
not otherwise classified = or > nuisance dust = . @

Roofer
Jerry Carter told OSHA that when he was hired, he was instructed that the
insulation could cause sneezing and eye irritation (Tr. 1887-1889). IH Cole
testified that Carter could not name the chemicals in the insulation or recite
the health affects of boric acid (Tr. 1886-1887). Carter told him that he was
not specifically trained (Tr. 1654-1655). Carter did not testify at the
hearing.

Roofing
supervisor Davis testified he has worked with the insulation for 8 months (Tr.
3221). He told OSHA that he was not trained on the insulation = s health affects and was not given the MSDS (Tr. 3220).
Davis testified, however, that the manufacturer = s
representative told him about the insulation, ate some of it, and put a lighted
cigarette into it. No A health aspects @ were discussed (Tr. 3210-3211, 3213). Based on the
representative, Davis believed that the insulation was harmless and could only
cause an irritation (Tr. 3212, 3313-3314). Therefore, Davis never discussed any
hazards with employees (Tr. 3217). Davis testified that he was given the MSDS
but was not aware of the presence of boric acid (Tr. 3219, 3319-3320).

The
record shows that SPI failed to adequately train employees exposed to the
insulation = s health affects from boric acid and nuisance dust. The
MSDS describes the health affects.

Instance
(b). Employees in the maintenance shop
welding and using foam seal cleaner are allegedly not trained. The instance is
based on the statement of maintenance leadman Robert Jackson. Jackson stated to
OSHA that he could not remember if he was trained on the health affects of
breathing welding fumes. He also stated that his training on foam seal cleaner
was from a manufacturer = s representative (Tr. 1659,
1890, 1892-1893). He used the cleaner one day a week (Tr. 1660).

The
MSDS for welding rods used by SPI states that the health hazards include
affects on the pulmonary function. The PEL for the metal compounds is 10 mg/m ; (Exh. C-34, p. 01067; Tr. 1661). Safety manager
Gerard considered the welding fumes in the plant as hazardous (Tr. 3544).

Leadman
Robert Jackson testified that he received specific training that included a
welding safety class in 1999 given by a vendor. The training involved a video
and instruction on welding safety (Exh. R-15; Tr. 2807-2808). Although he could
not remember the discussion on fumes, Jackson testified that he knew the
hazards of welding fumes and was sure welding was also covered in SPI = s Right to Know training (Tr. 2619-2620).

With
regard to the foam seal cleaner, it is used by maintenance employees to clean
the foam seal guns (Tr. 2802). The record does not include the MSDS for foam
seal cleaner. Leadman Jackson testified that the
representative = s training on foam seal and cleaner included the health and
physical hazards (Tr. 2620-2621). He also stated that he received OJT
instruction for appropriate PPE (Tr. 2621). There is no showing that Jackson
handled the cleaner contrary to the precautions in the MSDS (Tr. 1901).

Maintenance
supervisor Cole testified that maintenance employees who used foam seal cleaner
were trained prior to the OSHA inspection (Tr. 2801-2802, 2858-2859). Employees
received foam seal safety training on June 10, 1999, by a manufacturer = s representative (Exh. R-15, item 3; Tr. 3581-3582). The
training included a video that discussed the hazards (Tr. 2859, 3581-3582).
Cole told employees that the cleaner could blister their skin because it is
caustic. He also said that employees were instructed to wear rubber gloves and
safety glasses (Tr. 2804). Supervisor Cole testified that he has not seen
employees mishandle the cleaner or not using gloves (Tr. 2809). According to
Cole, the only employee not trained by the manufacturer = s representative was Mike Severs, who had not worked with
foam seal guns or cleaner at the time (Tr. 2858).

The
record fails to substantiate that maintenance employees were not trained in the
health affects of the cleaner, if any, and welding fumes.

Instance
(c). The instance alleges that employees
exposed to wood dust at the dado saw were not trained in the health and
physical hazards. It was based on the statements of Tommy Manning and Greg Banks,
who did not testify (Tr. 1662-1663, 1666-1667, 1903).

Wood
dust is hazardous (Exh. C-34, p. 00329; Tr. 1665-1667). According to the MSDS, the
health hazards of wood dust include eye and nasal irritation, coughing, and
wheezing. Also, depending on the species, wood dust may cause dermatitis and
respiratory sensitization or irritation on prolonged repetitive contact. The
wood used in the truss shop is spruce (Tr. 1901). The MSDS notes that the
International Agency for Research on Cancer (IARC) classifies wood dust as a
carcinogen to humans.

In
reviewing the statements, IH Cole conceded that Manning, in response to the
training question, actually said A No, I don = t think I have @ (Tr. 1909). He had heard, but
not from SPI, that wood dust was a possible nasal carcinogen, and he did not
wear a respirator (Tr. 1909-1910).

When
asked about training, Banks responded that he was told to keep the wood dust
cleaned up (Exh. C-72; Tr. 1905). He was not told that wood dust was a possible
nasal carcinogen. He did not wear a respirator.

Assistant
production manager Jackson testified that employees were trained on the
allergic affects of wood dust (Tr. 2735). However, he was not aware that OSHA
considered wood dust a potential cancer hazard (Tr. 2735). According to IH
Cole, no SPI manager knew that the dust was a possible carcinogen (Tr.
1837-1838, 1844).

SPI
argues that there is no evidence that the spruce used in the truss shop was a
potential nasal carcinogen. SPI notes that other MSDSs for wood used at SPI did
not indicate a risk for nasal cancer. Also, air monitoring results show minimal
exposure levels (Exh. R-55). Manning = s exposure level was 3.2 mg/m ; and rip saw operator Maldanado = s exposure was .64 mg/m ; (Exh. R-55,
p. 00864, 00866; Tr. 1785-1787). The PEL for total dust is 15 mg/m ; (Tr. 1785).

SPI = s argument is rejected. The MSDS for the wood used in the
truss shop states that it is a possible carcinogen. SPI = s training should have included the health information
contained on the MSDS. There is no dispute that all health information,
including possible carcinogens, was not provided.

Instance
(d). The instance involves employees
dispensing chemicals such as industrial strength bleach, paint thinner, and
formica adhesive from bulk containers in the stockroom. The employee was Ruby
Kersten (Tr. 1668).

Industrial
strength bleach stored in the stockroom is hazardous (Exh. C-83; Tr. 1118,
1669). The MSDS indicates that the health hazards include possible burning,
watering and loss of sight; inflammation and blistering on the skin;
irritation, nausea and difficulty of breathing from inhalation; and internal
irritation, cramps and vomiting from ingestion.

Although
the MSDS for paint thinner is not part of the record, it is commonly known that
it is highly flammable (Tr. 1340). Also, final finish employee Boerner
testified that she experienced some dizziness and nausea from the use of paint
thinner (Tr. 1344-1345). However, at the time of OSHA = s inspection, the record shows that paint thinner had to be
sneaked in by employees as a cleaner because it was against SPI rules. SPI had
replaced the paint thinner with an orange cleaner (Tr. 1310, 1451, 1472, 3817).

As
discussed, the formica adhesive (glue), under the trade name Lokweld 500
Contact Adhesive, is a hazardous chemical. According to the MSDS, it contains
acetone and toluene (Exh. C-34, p. 00547). The adhesive is used to attach
the laminates to the counter tops (Tr. 1669). The potential acute health
affects include skin and eye contact irritation with inflammation, itching and
redness. The potential chronic health affects include toxicity to the blood,
kidneys, lungs, liver, and nervous system.

Former
stockroom employee Kersten = s duties included maintaining
large containers of chemicals, dispensing chemicals to other employees, and
washing used rags containing chemicals (Tr. 997, 1002-1003, 1009). She reviewed
the MSDSs and used them to label the containers with safety ratings for health,
flammability, and reactivity (Tr. 1065-1066, 1075). Kersten testified that she
dispensed paint thinner every day (Tr. 1003, 1046). Also, she diluted the
bleach and used it to clean dirty rags daily which contained various chemicals
from all over the plant (Tr. 1045, 1048-1049). Kersten = s prior work experience included reading and maintaining
MSDSs at an aluminum plant (Exh. R-58; Tr. 1054, 1061-1062, 2812).

Kersten
testified that she had not received any training from SPI on the health
problems associated with the chemicals in the stockroom (Tr. 1039-1040). She
described the chemicals at her prior employment as different from those used by
SPI (Tr. 1041, 1058). She testified that she trained herself and learned about
the chemicals by looking at the MSDSs (Tr. 1041). She understood the ratings on
the MSDSs and followed the recommendations regarding the hazards posed by each
chemical she labeled or dispensed (Tr. 1075).

Supervisor
Bobby Cole hired Kersten to review, dispense, and label the chemicals in the
stockroom because of her background (Tr. 1052, 1061, 2812). Cole testified that
stockroom employees were trained on the hazards and appropriate PPE by the
vendor of industrial strength bleach (Tr. 2813-2814). He also instructed
Kersten to wear gloves when using bleach to wash shop rags (Tr. 2814-2815).

Although
Kersten was knowledgeable, based on her experience, the record shows that SPI
failed to ensure that she was trained on the hazards of the chemicals used at
its plant. Reliance on past employment is not sufficient. SPI is ultimately
responsible to ensure that each employee is properly trained. There is no
showing that the chemicals used by Kersten = s prior employer were the same
as at SPI. However, there is no showing that Kersten was injured or became ill
because of any exposure to chemicals at SPI (Tr. 1074-1076).

Instance
(e). The instance involves employees in
the tops department who sprayed foam adhesive (sealer) on roof units. The
allegation was based on a statement by Nick Walker, who did not testify (Tr.
1670).

The
MSDS for the foam adhesive includes two components which are mixed when passing
through the spray gun (Exh. C-34, p. 01041, 01044; Tr. 1672). The MSDS advises
employees to avoid breathing vapor or mist and contact with their eyes and
skin. SPI identified the foam seal in its hazard assessment and PPE selection
worksheet (Exh. C-30, p. 01337). The assessment required safety glasses and
protective clothing.

Walker = s interview statement of March 23, 2000, does not establish
a violation (Exh. C-82; Tr. 1912-1915). Walker stated that he had used foam
seal for approximately 1 year. In response to questions on training, Walker
stated that he received training during OSHA = s inspection
and watched a video approximately 4 months earlier from the manufacturer = s representative (Tr. 3581-3582). When asked if the earlier
training included health affects of chemicals, Walker stated that A I think so. I don = t really remember, but I think
so. @ When asked if the video contained specific information on
the health and physical affects of the chemicals he worked with, Walker stated A I really don = t remember. @ Walker knew that foam seal could irritate the eyes, skin
and lungs (Exh. C-82). He stated that he has had no allergic reactions or
breathing difficulties from using the sealant. He wore safety glasses, a foam
seal suit, latex gloves, boots, and a face shield when spraying the sealant.
Prior to the video training, Walker stated that he had not received any
training.

The
record fails to establish that Walker was not trained on the sealant at the
time of OSHA = s inspection. His statement is vague and inconsistent. Any
failure to train Walker prior to the video and instruction by the manufacturer = s representative is barred by the 6-months = statute of limitations.
             Instance
(f) . This instance involves employees exposed to wood dust while sawing and
sanding in the cabinet department. The allegation is based on a statement from
Sybal Paul, who said that she was not trained on the health and physical
hazards of wood dust (Tr. 1674-1675).

The
MSDS for the wood used by Paul identifies the health hazards to include eye
irritation, possible allergic contact dermatitis, obstruction in nasal
passages, and aggravation of pre-existing respiratory conditions or allergies
(Exh. C-34, p. 01093). Depending on the species of wood, the MSDS also advises
that the chronic health hazards include dermatitis, respiratory sensitization,
and alleged nasal/paranasal sinus cancer.

Paul
was hired by SPI on January 3, 2000, approximately one month prior to OSHA = s inspection. She received training in March, 2000, after
OSHA initiated its inspection in late February. Paul told OSHA that she knew
where the MSDSs were located. She also stated that she had not been injured or
sick from her job. Although not asked the type of wood or how often she was
exposed, Paul indicated that her job included cutting wood (Tr. 1918-1919).

Milton
Jackson, cabinet supervisor, testified that he informed employees of possible
allergies caused by breathing wood dust (Tr. 2735). He did not tell employees
that wood dust could cause nasal cancer (Tr. 2735).

Karen
Cratty, who cut boards in the cabinet shop, testified that by the end of the
day, there would be a large box of wood dust (Tr. 1147, 1155, 1187-1188). She
did not remember Jackson telling her of the potential for allergies (Tr. 1179,
2735). She knew that copies of the MSDSs were in the breakroom (Tr. 1180).

The
record establishes that Paul did not receive training on the hazards of wood
dust until OSHA = s inspection.

Instance
(g). The instance involves employees using
formica glue, seam seal solvent and paint thinner while attaching counter tops
in the cabinet department. The employees allegedly not trained were Floyd
Smuthers, Karen Cratty, and supervisor Milton Jackson (Tr. 1676, 1921).
Smuthers, who did not testify, provided a written statement.

Formica
glue (adhesive), as discussed, is a hazardous chemical (Exh. 34, pp. 00547,
01029; Tr. 1677-1678). Also, paint thinner, a known flammable, is hazardous
(Tr. 1340). The MSDS for seam seal solvent was not identified by the Secretary.

Supervisor
M. Jackson testified that he was not in the cabinet shop for an extended period
while employees were gluing laminate (Tr. 2659-2660). He had been given the
MSDS for formica glue and had seen the MSDS for paint thinner (Tr. 2679-2681).
In the statement to OSHA, M. Jackson stated that he could not remember if the
health affects were discussed (Tr. 2683).

Jackson
testified that he was responsible for training other employees, which was done
on their first day on the job (Tr. 2684-2686, 2698-2699). He stated that he
reviewed the MSDSs and showed the employees the labels. He showed the employees
who used the glue the label advising that it was flammable (Tr. 2695-2696,
2703). Jackson testified that he followed the same practice with the other
chemicals (Tr. 2685-2686, 2736). There is no evidence that cabinet shop
employees failed to use appropriate PPE or were overexposed to the chemicals
(Tr. 2727).

IH
Cole testified that based on his written statement, Smuthers, who worked with
the adhesive daily, had not been trained until March 15, 2000 (Tr. 1679).
However, in his statement, Smuthers said that he received A some papers on it (training) @ and that he
had attended training in the conference room A a couple of
times, @ the last time about a week ago (Tr. 1922). He was not
asked about the first time. Also, he was not questioned to see if anyone had
discussed the hazards in general or showed him the MSDS. Smuthers knew the
location of the MSDSs (Tr. 1922-1923). Also, when asked if he had been trained
on the physical and health hazards of formica glue, Smuthers stated A yes @ (Tr. 2085).

Karen
Cratty testified that plant nurse Kelly Hertenstein went over the A different chemicals and general rules and regs @ when she was hired in July, 1999. It included where she A could find more information, safety @ (Tr. 1168, 1171-1172). Cratty stated that she did not
remember talking to manager Jackson about the chemicals, but she knew not to
get chemicals in her eyes or ingest them. She also knew that glue was flammable
(Tr. 1179, 1197).

The
record fails to establish a violation.

Instance
(h). The instance alleges that employees
taping and spraying in the tops department were exposed to nuisance dust
contained in the sheetrock joint compound. The allegation is based on Mike
DeSalvo = s statement (Tr. 1682). IH Cole observed DeSalvo working
with the compound, which was used daily (Tr. 1683-1684). According to Cole,
DeSalvo stated that he was not trained on the health hazards associated with
the compound until March, 2000 (Tr. 1685). DeSalvo was hired on February 21,
2000, approximately one week prior to OSHA initiating the inspection
(Tr. 1685). DeSalvo did not testify.

The
MSDS for the sheetrock joint compound shows that the nuisance dust is
hazardous. It provides that the inhalation of dust irritates the nose, throat,
lungs, and upper respiratory tract (Exh. C-34, p. 01056). The MSDS also
lists lung cancer as a potential from chronic overexposure. The nuisance dust
was caused by sanding dried sheet rock joint compound.

SPI
argues that DeSalvo used a labeled container which provided the /span> = s air monitoring never showed levels close to the TLV or
PEL (Exh. R-55). Therefore, SPI argues that it was reasonable to instruct on
the dust = s general health hazards.

Training
is SPI = s responsibility. During OSHA = s inspection,
DeSalvo was using the compound and the record fails to show that he was trained
in the health hazards, even the general health hazards.

Instance
(i). The instance alleges that employees
stick welding in the welding shop were exposed to welding fumes and particles.
The allegation is based on the statement of Michael Suitt, who did not testify
(Tr. 1688-1689). Suitt started work in September, 1998 (Tr. 2060).

The
MSDS for welding materials used by Suitt indicates that the health affects from
short-term overexposure include dizziness, nausea, and irritation of the nose,
throat or eyes (Exh. C-34, pp. 01067, 01069). Long-term overexposure may lead
to iron deposits in the lungs and affects on pulmonary function. The physical
hazards include potential blindness and electric shock from the welding arc.

According
to IH Cole, Suitt stated that he received no training on welding = s physical and health hazards (Tr. 1689). Also, he was not
trained in hazard communication (Tr. 2059-2060). However, Suitt = s statement indicates that he had attended safety meetings
where welding safety was covered (Tr. 1944-1945). He could not remember if the meeting
covered the hazards of welding fumes (Tr. 1945). He thought that someone had
explained how to read and understand an MSDS.      The
record reflects that welding training was provided in 1999 by a welding
supplier (Exh. R-15; Tr. 2807-2808). Training was also provided by safety
manager Gerard after the 1996 citation (Exh. R-1; Tr. 3618). Air monitoring
results show that Suitt = s exposure to hazardous
chemicals from welding was insignificant (Exh. R-55, p. 00868; Tr. 1790-1796).

The
record fails to establish the lack of training.

Instance
(j). The instance alleges that employees
were not trained who used substances such as gasoline, formica adhesive, paint
thinner, propane, and brake fluid in the maintenance department. The allegation
was based on statements by James Rinehart and Mike Severs, who testified
(Tr. 1690). Rinehart had stated that he was not trained on the health
hazards associated with paint thinner, propane, formica adhesives, gasoline,
and brake fluid (Tr. 1691-1692). Severs had stated that he used gasoline and
brake fluid and was also not trained on the health affects (Tr. 1692-1693).

It is
undisputed that gasoline, formica adhesive, paint thinner, propane, and brake
fluid are hazardous chemicals as defined by OSHA.

Rinehart
testified that in response to his questioning by OSHA, he understood training
to mean classroom training (Tr. 2454-2455). He testified that he had received
training on propane from a vendor (Tr. 2444-2445). He described the safety
precautions (Tr. 1948, 2442-2443). Although Rinehart testified that he reviewed
the MSDS for formica glue, he testified that he was not trained on how to read
an MSDS (Tr. 2427-2428). He taught himself (Tr. 2428). Rinehart testified that
his exposure to the formica glue occurred when he occasionally cleaned out the
clogged spigot (Tr. 2447-2448). He always wore gloves. Rinehart also
occasionally used paint thinner, which he had used for 30 years and was aware
of the dangers (Tr. 2454). He knew where the MSDS was located (Tr. 2451).

IH
Cole said that Severs A indicated @ that he had not been trained on gasoline and brake fluid
(Tr. 1692-1693). Severs had previously worked at a gas station and admittedly
knew the hazards. SPI knew of Sever = s past employment when he was
hired (Tr. 2501-2502, 2809).

Maintenance
supervisor Cole testified that he reminded employees of the dangers of the
chemicals in the workplace (Tr. 2860). Severs apparently only used brake fluid
one time, and it was in a labeled container (Tr. 2502-2503). IH Cole conceded
that everyone knew that gasoline was flammable and not ingestible (Tr.
1946-1947). The record fails to support a violation.

Instance
(k). The instance alleges that employees
in final finish were exposed to formaldehyde, wood dust, and drywall dust. The
allegation is based on statements by Angelique Scroggins and Sergio Manriquez,
who did not testify (Exh. C-76; Tr. 1693, 1959).

Formaldehyde
is an off-gas from wood materials such as floor decking, doors, and cabinet
doors (Exh. C-34, p. 01073, 01099; Tr. 1694). The MSDSs provide that
formaldehyde and/or wood dust may cause eye, nose, throat, and skin irritation.
It notes that formaldehyde may be released in small quantities and in gaseous
form. The MSDS notes that A OSHA regulates formaldehyde as a
potential carcinogen for exposures exceeding 0.5 ppm @ (Exh. C-34, p. 01073, 01076). It further provides that A wood products are not hazardous under the criteria of the
Federal OSHA Hazard Communication standard 29 C.F.R. 1910.1200. However,
formaldehyde emissions from this product and wood dust generated by sawing,
sanding and machining this product may be hazardous. @  OSHA asserts that wood dust and possible
formaldehyde were present when employees cleaned inside the mobile homes (Tr.
1696). Scroggins stated that she cleaned cabinets, hung drapes, and did the
finish work in the mobile homes (Tr. 1694). However, IH Cole fails to indicate
that Scroggins actually told him she had not been trained.

Manriquez
installed hardware and other things in preparing a mobile home for shipment. He
did not sand or saw wood or drywall (Tr. 1963-1964). Manriquez stated that he
was A kind of @ trained on wood and drywall
dust (Exh. C-76; Tr. 1697, 1961). He had no training on formaldehyde. He stated
that he had no problems with skin and eye irritations or any feeling of
sickness.

Air
monitoring at the SPI plant fails to show exposure levels to any of the
substances at or near the PEL (Exhs. R-18, R-55; Tr. 1798-1803). The employees
in final finish were not involved in cutting or sawing the wood and the record
fails to show lack of training.

Instance
(l). The instance alleges employees in the
roof building area sprayed foam adhesive, which contained harmful substances
such as isocyanate. The alleged lack of training is based on a statement by William
Stover, who did not testify (Tr. 1698). Stover told OSHA that he had not
received any training on the physical and health hazards associated with foam
seal prior to OSHA = s inspection (Tr. 1699,
2070-2071). Stover had worked in the roofing department for a year and had
sprayed foam seal for approximately 7 months (Tr. 1986, 2072).

Foam
seal adhesive, according to the MSDS, is hazardous (Exh. C-34, p. 01041,
01044). SPI identified foam seal in its hazardous assessment and PPE Selection
Worksheet (Exh. C-30, p. 01337). Air monitoring did not show detectable traces
to the ingredients of foam seal (Exhs. R-22, R-55; Tr. 1850, 1854-1855).

The
standard requires training if employees are exposed under normal conditions of
use or in a foreseeable emergency. See '
1910.1200(b)(2). Stover had sprayed the foam adhesive for approximately 7
months and the record establishes that he was not trained.

Willful
Classification For Citation No. 2, Item 1

Instances
a, c, d, f, h, and l establish a violation of '
1910.1200(h)(2)(iii) for lack of training. SPI = s failure to
train employees was willful. SPI had been cited twice for the lack of training
under ' 1910.1200(h)(2)(iii) in 1996 and 1999 (Exhs. C-3, C-39;
Tr. 3534). The 1996 citation was alleged as willful and the 1999 citation was
alleged as repeat. Although reclassified by the parties = settlement agreements, SPI agreed that the conditions had
been abated. However, OSHA = s 2000 inspection showed
continued lack of training.

SPI = s written hazard communication program dated December 7,
1998, provides for training for present and new employees, as well as whenever
a new hazard is introduced into their work area. Its training program is to
include A a description and specific information of the chemicals in
the work area, @ the specific hazards, the proper use of the hazardous
materials, PPE, and emergency procedures. Also, employees were to sign-off
sheets detailing the training received (Exh. R-13). SPI failed to comply with
its own written program.

SPI = s reliance on department managers to conduct the training
was not shown to be overseen by SPI to ensure compliance. SPI failed to accept
responsibility for compliance. Without verification of content and
qualifications, SPI attempted to delegate the training to vendors and line
supervisors.

A
1998 hazard survey by its insurance carrier noted that SPI = s training program was inadequate. The survey recommended
initiating health and safety training, first of supervisors, followed by employees
(Exhs. C-25, C-26; Tr. 3573).

SPI
employed 425 employees. It has a high turnover of employees (Tr. 1010, 3328,
3684, 3972). Of the 30 employees interviewed by OSHA, 17 indicated inadequate
training (Tr. 1648-1649).

Penalty
Consideration For Safety and Health Citations

Section
11(j) of the Act requires the Commission to give A due
consideration @ to the size of the employer = s business,
the gravity of the violation, the good faith of the employer, and the history
of previous violations in determining the appropriate penalty. These factors
are not necessarily accorded equal weight. The gravity of the violation is the
primary element in the penalty assessment. Trinity Indus., 15 BNA
OSHC 1481, 1483 (No. 88-691, 1992).

SPI
is a large employer with approximately 425 employees (Tr. 3614). SPI received
an OSHA citation in 1999 and other citations within three years of the 2000
OSHA inspection. Based on these factors, SPI is not entitled to credit for size
and history. However, SPI is entitled to credit for good faith. The record
shows that after SPI became a division of Cavalier Homes, Inc., and after the
1999 OSHA citation, changes were made at the plant, including installing
lifelines for the roofers, maintaining an MSDS book in the employees = break room, installing guardrails on the catwalks, and
posting overhead warning signs. As a result of the 2000 inspection, SPI has
made additional changes.

A
penalty of $5,000 is reasonable for serious safety citation no. 1, item 3, violation
of '  1910.24(b). In excess of 20 employees regularly moved
back and forth from the mobile home roofs and catwalks. The gaps between the
roofs and catwalks over which employees had to step exceeded 12 inches. The
potential fall was 11 feet 4 inches to the cement floor.

A
grouped penalty of $3,000 is reasonable for serious safety citation no. 1,
items 4b, 4c, and 4d, violations of ' 1910.147. The 5 maintenance
department employees were exposed to the failure to have written procedures for
LOTO on the presses and the failure to perform and certify periodic inspections
of its LOTO procedures.  

A
penalty of $2,500 is reasonable for serious safety citation no. 1, item 9b,
violation of '  1910.213(r)(4). The dado saw is operated daily and
the operator on the outfeed side is continually exposed by reaching his hands
through the plexiglass curtain and into the zone of danger.

A
penalty of $2,500 is reasonable for serious safety citation no. 1, item 11a,
violation of '  1910.332(b)(1). The lack of training on electrical
safety-related work practices affected 5 employees who regularly worked on
electrical equipment.

A
penalty of $5,000 is reasonable for serious violation of ' 5(a)(1) of the Act. Employees working on roofs of mobile
homes installing trusses, decking, and vents were exposed to fall hazards of
approximately 11 feet to the cement floor. The openings around the roofs could
exceed 12 inches in Plant 4.

A
penalty of $50,000 is reasonable for willful safety citation no. 2, item 2,
violation of '  1910.135(a)(1). SPI failed to initiate a hard hat
program, despite employees receiving head injuries and a prior citation from
OSHA. Although hard hats were provided on a voluntary basis, SPI chose not to
require the use of hard hats. Also, SPI = s attempts to change its work
procedures have not eliminated the overhead hazards.

A
grouped penalty of $1,000 is reasonable for serious health citation no. 1,
items 2a and 2b, violations of ' 1910.1200(f)(5)(i) and ' 1910.1200(f)(5)(ii). There was only one unlabeled 5-gallon
bucket observed by OSHA. The drum where the adhesive was obtained by employees
was within 25 feet and properly labeled. Four employees were exposed to the
unlabeled bucket.

A
penalty of $20,000 is reasonable for willful violation of health citation no.
2, item 1, violation of ' 1910.1200(h)(3)(ii). SPI = s reliance on department supervisors to conduct the
training without verification by SPI was misplaced. Six instances of inadequate
training were established.

FINDINGS
OF FACT AND

CONCLUSIONS
OF LAW

The
foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based
upon the foregoing decision, it is ORDERED that:

Safety Citations
(Docket No. 00-1808)

Citation No. 1

Item
1, alleged serious violation of ' 5(a)(1) of the Act, is
withdrawn by the Secretary.

Item
2, alleged serious violation of ' 5(a)(1) of the Act, is
withdrawn by the Secretary.

Item
3, alleged serious violation of ' 1910.24(b), is affirmed and a penalty
of $5,000 is assessed.

Items
4a, alleged serious violation of ' 1910.147(c)(4)(i), is vacated.

Items
4b, 4c, and 4d, alleged serious violations of '
1910.147(c)(4)(i), ' 1910.147(c)(4)(ii), ' 1910.147(c)(6)(i)(a), and ' 1910.147(c)(6)(ii),
are affirmed and a grouped penalty of $3,000 is assessed.

Item
5, alleged serious violation of ' 1910.178(m)(2), is withdrawn by
the Secretary.

Item
6, alleged serious violation of ' 1910.178(o)(1), is withdrawn by
the Secretary.

Item
7, alleged serious violation of ' 1910.178(p)(1), is withdrawn by
the Secretary.

Item
8, alleged serious violation of ' 1910.212(a)(1), is vacated and
no penalty is assessed.

Item
9a, alleged serious violation of ' 1910.212(a)(3)(ii), is vacated
and no penalty is assessed.

Item
9b, alleged serious violation of ' 1910.213(r)(4), is affirmed and
a penalty of $2,500 is assessed.

Items
10a and 10b, alleged serious violations of '
1910.219(d)(1) and ' 1910.219(f)(3), are withdrawn
by the Secretary.

Item
11a, alleged serious violation of ' 1910.332(b)(1), is affirmed and
a penalty of $2,500 is assessed.

Item
11b, alleged serious violation of ' 1910.333(b)(2)(i), is vacated
and no penalty is assessed.

Citation No. 2

Item
1, alleged willful violation of ' 5(a)(1) of the Act, is affirmed
as serious and a penalty of $5,000 is assessed.

Item
2, alleged willful violation of ' 1910.135(a)(1), is affirmed as
willful and a penalty of $50,000 is assessed.

Citation No. 3  

Item
1, alleged A other @ than serious violation of ' 1910.178(a)(6), is withdrawn by the Secretary.

Item
2, alleged A other @ than serious violation of ' 1910.305(g)(2)(iii), is withdrawn by the Secretary.

Health Citations
(Docket No. 00-1807)

Citation No. 1

Item
1, alleged serious violation of ' 1910.1030(g)(2)(i), is
withdrawn by the Secretary.

Items
2a and 2b, alleged serious violations of ' 1910.1200(f)(5)(i) and ' 1910.1200(f)(5)(ii), are affirmed and a grouped penalty of
$1,000 is assessed.

Item
3, alleged serious violation of ' 1910.1200(h)(2)(iii), is
vacated and no penalty is assessed.

Citation No. 2

Item
1, alleged willful violation of ' 1910.1200(h)(3)(ii), is
affirmed and a penalty of $20,000 is assessed.

Citation No. 3  

Item
1, alleged A other @ than serious violation of ' 1910.133(b), is withdrawn by the Secretary.

/s/

KEN S. WELSCH

Date: August 16,
2002                                   Judge