Duro-Last, Inc.

Plain-English summary

OSHA cited three conditions at Duro-Last's roofing-material plant. The judge vacated the eyewash item because employees merely connected forklift batteries for charging and the Secretary did not prove exposure to corrosive electrolyte. He also vacated the machine-shaft guarding item because operator entry into the shaft's danger zone was speculative rather than reasonably predictable. The judge affirmed the bloodborne-pathogen item because supervisors routinely ate and drank in the same office where employees with bleeding cuts obtained first aid. A $1,000 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.151(c), 1910.219(c)(4)(i), and 1910.1030(d)(2)(ix)
• Outcome: Eyewash and machine-guarding items vacated; first-aid-room eating item affirmed with a $1,000 penalty.
• Key point: A room used for treating bleeding injuries is not an appropriate routine eating area when occupational contact with blood is reasonably likely.

Full text (OSHRC public release)

                                         United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1924 Building - Room 2R90, 100 Alabama Street, SW
                                       Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 02-0285
Duro-Last, Inc., EZ
Respondent.

Appearances:

Kathleen G. Henderson, Esq., Office of the Solicitor, U. S. Department of Labor, Birmingham, Alabama
For Complainant

Ellen E. Crane, Esq., Braun, Kendrick, Finkbeiner, P.L.C., Saginaw, Michigan
For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                     DECISION AND ORDER
       Duro-Last, Inc. (Duro-Last), manufactures customized vinyl-like roofing sections at its plant

in Jackson, Mississippi. Occupational Safety and Health Administration (OSHA) industrial
hygienist (IH) Priscilla Jordan began an inspection of Duro-Last’s Jackson facility on January 9,
2000, based on OSHA’s Site Specific Targeting list, which targets employers with high injury and
illness rates. On January 25, 2002, the Secretary issued a citation alleging three serious violations
of the Occupational Safety and Health Act of 1970 (Act).
Item 1 of the citation alleges a serious violation of § 1910.151(c) for failure to have an eye
wash for quick drenching or flushing within the work area for immediate emergency use. Item 2
alleges a serious violation of § 1910.219(c)(4)(i) for failing to guard two rotating shafts measuring
3¾ and 1½ inches on the parapet machine. Item 3 alleges a serious violation of
§ 1910.1030(d)(2)(ix) for allowing employees to eat and drink in a room where first aid was
administered. The Secretary proposes penalties totaling $4,125.00.
The Review Commission designated this case as an E-Z proceeding pursuant to Commission
Rule 200, et seq. A hearing was held in this matter on April 29 and 30, 2002, in Jackson,
Mississippi. The parties stipulated jurisdiction and coverage. They have filed post-hearing written
statements of their positions.
Duro-Last denies that it violated the terms of the cited standards. For the reasons discussed
below, it is determined that items 1 and 2 are vacated, and item 3 is affirmed.
Background
Duro-Last owns and operates eleven facilities in four states, with its corporate offices located
in Saginaw, Michigan. Duro-Last employs approximately 750 employees corporate-wide. At the
Jackson, Mississippi, facility that is at issue here, Duro-Last cuts, welds and folds the roofing
material to its customers’ specifications. Before cutting, the roofing material is stored on 500-pound
rolls that are shipped from Saginaw, Michigan (Tr. 8, 14-15, 64).
IH Jordan conducted a one-day inspection of Duro-Last’s facility on January 9, 2002. She
initiated the inspection based on Duro-Last’s high Lost Work Day Injury and Illness (LWDII) rate
(Exh. C-12; Tr. 304-306). During the inspection, she inspected the eye wash machine, the parapet
machine and the first aid station. As a result of IH Jordan’s inspection, the Secretary issued the
citation that gave rise to the present case.
The Jackson, Mississippi, facility has a battery charging station near the loading dock, where
the company’s four forklifts are left overnight to recharge their batteries (Tr. 309-310). A wall-
mounted Pureflow 1000 eye wash machine is located approximately 50 feet from the battery
charging station (Exh. C-6; Tr. 51).
Duro-Last has one parapet machine located in the welding area, which is used to hot-air weld
smaller sheets of roofing material together. The operator of the parapet machine sits in a chair and
uses her hands to move the material through the machine (Exhs. C-1 and R-3; Tr. 28).
Duro-Last maintains a medical supply cabinet on a wall in the office of the two production
supervisors, both of whom eat lunch in the room (Exh. C-8; Tr. 70). A sign is posted above the
office door with the words “FIRST AID” on it (Exh. C-8).
Citation No. 1
The Secretary has the burden of proving her case by a preponderance of the evidence.

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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).
Item 1: Alleged Serious Violation of § 1910.151(c)
The Secretary alleges that Duro-Last committed a serious violation of § 1910.151(c), which
provides:
Where the eyes or body of any person may be exposed to injurious corrosive
materials, suitable facilities for quick drenching or flushing of the eyes and body shall
be provided within the work area for immediate emergency use.

    The citation states that for Duro-Last’s battery charging station, the “eye wash was located

more than 25 feet away, [and] the unit did not contain enough water to provide for 15 minutes of
continuous use.”
The first element the Secretary must establish is that the cited standard applies to the cited
conditions, i.e, that the battery charging area creates exposure “to injurious corrosive materials” such
that “suitable facilities” would be required.
Duro-Last uses its four forklifts on a daily basis. After the facility shuts down for the
evening, the employees connect the forklift batteries to the battery charger and charge them overnight
(Tr. 42). Duro-Last employees are not otherwise required to work with the forklift batteries,
although there is evidence that they may occasionally add water to the batteries (Tr. 104-105). Duro-
Last has a contract with Briggs Equipment, who periodically comes to the facility to service the
forklifts. Briggs Equipment’s responsibilities include maintenance of the forklift batteries (Exh. R-1;
Tr. 43-44). A Pureflow 1000 eye wash station is mounted on the wall in the corner of the plant next
to the loading docks, approximately 50 feet from the battery charging area (Exhs. C-2, C-5, C-6, C-
16, C-17; Tr. 51).
Section 1910.151(c) requires “suitable facilities” where “the eyes or body of any person may
be exposed to injurious corrosive material.” The Commission addressed this standard in Atlantic
Battery Co., 16 BNA OSHC at 2167-2168:

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Under Commission precedent, whether an employer has complied with its obligation
to provide “suitable facilities” within the meaning of section 1910.151(c) depends on
the “totality” of the relevant “circumstances,” including the nature, strength, and
amounts of the corrosive material or materials that its employees are exposed to; the
configuration of the work area; and the distance between the area where the corrosive
chemicals are used and the washing facilities.

    The Commission also held in ConAgra Flour Milling Co., 16 BNA OSHC 1137, 1142

(No. 88-1250, 1993), that the Secretary must prove that a hazard exists before § 1910.151(c) is
applicable to the cited conditions: “[T]his standard by its plain terms requires the Secretary to prove
the existence of a hazard requiring the use of the protective measures specified, here quick-drenching
or flushing facilities.”
The Commission in ConAgra reversed the ALJ’s decision finding that a violation can be
based solely on a potential hazard. In that case, employees added water to forklift batteries on a
weekly basis. The Secretary cited the employer under § 1910.151(c) for failing to have an eye wash
located within 25 feet of the battery charging area. The Commission vacated the cited item, stating:
The purpose of section 1910.151(c) is to protect employees who are exposed to
corrosive chemicals by giving them a means to wash such chemicals from their eyes
or body before they suffer injury. . . . The standard applies generally to all situations
in which corrosive materials are used and does not specifically address battery
charging. Accordingly, the Secretary must demonstrate that the employer is on notice
of a need for a washing or flushing facility in the circumstances in question. . . . [T]he
mere possibility that battery electrolyte might splash onto an employee’s body or into
his eyes does not establish that a sufficient hazard existed to require a facility for
washing or flushing the eyes or body.

    There is even less of a potential hazard to employees in the present case. In ConAgra,

employees added water to forklift batteries on a weekly basis as part of their duties. Here, there is
no reason for Duro-Last’s employees to have any contact with the batteries, other than connecting
them to the battery charger, which does not expose them to corrosive materials. Production
supervisor Freddie Roberts speculated that Duro-Last employees may add water to the batteries from
time to time. Under the Secretary’s own interpretation, this activity would not create the need for
drenching facilities.
Industrial hygienist Jordan testified that one of the documents on which she relied in
recommending the instant citation was an OSHA Standard Interpretation and Compliance Letter

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addressing “Quick drenching or flushing facilities in battery charging areas,” issued by the Secretary
on August 16, 1976. Paragraph 1 of the letter states (Exh. C-14, emphasis added):
Battery charging areas are not specifically mentioned in CFR 1910.151(c) but are
considered to be covered if the battery caps are removed and if electrolyte acid is
added, removed, or spilled. If the battery is simply undergoing charge, it is not
necessary to have quick drenching or flushing facilities for the eyes or skin.

    There was no evidence that anyone added electrolyte acid to the batteries. The Secretary’s

Standard Interpretation undercuts her case.
The Secretary attempted at the hearing to assert that the employees of Briggs Equipment were
exposed to the corrosive materials in the batteries when they serviced the forklifts. This argument
is rejected. The Secretary was not aware that the forklifts were maintained by a subcontractor until
the hearing. The potential exposure to the employees of Briggs Equipment formed no part of the
basis for issuing the citation. No evidence of the activities of the Briggs Equipment employees was
adduced (Tr. 321-322).
The Secretary has failed to establish that any employees were “exposed to injurious corrosive
material,” and has thus failed to establish that the cited standard is applicable to the battery charging
area. Item 1 is vacated.
Item 2: Alleged Serious Violation of § 1910.219(c)(4)(i)
Section 1910.219(c)(4)(i) provides:
Projecting shaft ends shall present a smooth edge and end and shall not project more
than one-half the diameter of the shaft unless guarded by nonrotating caps or safety
sleeves.

    The citation states that Duro-Last’s parapet machine contained “two unguarded shafts

measuring 3¾ inches and 1.5 inches in length.”
It is undisputed that the shafts in question projected more than ½ inch the diameter of the
shaft and that they were not guarded by nonrotating caps or safety sleeves. Duro-Last contends that
the Secretary failed to prove that its employees had access to the exposed shafts.
When operating the parapet machine, the operator sits in a chair behind a table and moves
the material through a hot air welder on a movable arm. The movable arm is attached to a stationary
upright and a horizontal arm where the control panel is located. On the stationary upright near the

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bottom above the table are two rotating shafts. The shaft closest to the operator is 3¾ inches long
and ¾ inch in diameter. The other rotating shaft is 1½ inches long and ½ inch in diameter. The
shafts rotate at 54 rpm. There are ½ inch grooves running the length of the shafts. The machine at
one time was a drip welder, with wheels mounted on the shafts. When the drip welder was
converted to a parapet machine, the wheels were removed, leaving the shafts exposed. The shafts
are not guarded (Exhs. C-1, R-3; Tr. 249, 284-285).
Sandra White, a parapet machine operator, testified that her right hand is 2 to 3 feet from the
rotating shafts when she holds the material as it moves through the welder. When pushing buttons
on the control panel, her hands are approximately 18 inches from the shafts. When reaching under
the horizontal arm and control panel, her hand is approximately 8 or 9 inches from the 3¾ inch shaft
(Tr. 286-288).
Generally, the question of whether employees have access to a violative condition is
determined by looking at the employees’ exposure to the zone of danger.
The Secretary may prove employee exposure to a hazard by showing that, during the
course of their assigned working duties, their personal comfort activities on the job,
or their normal ingress-egress to and from their assigned workplaces, employees have
been in a zone of danger or that it is reasonably predictable that they will be in the
zone of danger. . . . The zone of danger is determined by the hazard presented by the
violative condition, and is normally that area surrounding the violative condition that
presents the danger to employees which the standard is intended to prevent.

RGM Construction Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995) (citations omitted).
The starting point for an analysis of whether there was employee exposure in a machine
guarding case is Rockwell Intl. Corp., 9 BNA OSHC 1092 (No. 12470, 1980). In Rockwell, the
Commission held :
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.

Id. at 1097-1098.
The employer is not required to protect against every conceivable injury that could possibly
occur during the use of a machine. The Commission has stated:

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[I]n order for the Secretary to establish employee exposure to a hazard she must show
that it is reasonably predictable either by operational necessity or otherwise
(including inadvertence), that employees have been, are, or will be in the zone of
danger. We emphasize that, as we stated in Rockwell, the inquiry is not simply
whether exposure is theoretically possible. Rather, the question is whether employee
entry into the zone of danger is reasonably predictable.

Fabricated Metal Products, Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (citations and
footnotes omitted).
There is no operational necessity that would require the parapet machine operator to place
her hands in the zone of danger of the unguarded shafts. The shafts are located on the opposite side
of where the operator sits. White testified that the rollers and welders must be shut down before she
can place her hands near the opposite side of the machine (Tr. 279-281).
The Secretary claims that an employee could inadvertently reach into the zone of danger
while the machine was on. Industrial hygienist Jordan stated her reasons for believing that the
unguarded shafts created a hazard for the parapet machine operators (Tr. 330-331):
Any time that employees are working around unguarded shafts, sometimes they
forget to turn the machine off or they don’t even see the shaft after a while, especially
if they have worked on the machine for a number of years, and that they can be
distracted by other employees or by what they’re doing or something that went on last
night.

   And, if they get their sleeve caught or any part of their clothing caught in a rotating
   shaft, after it turns a couple of times, you’re going to need somebody to turn the
   machine off because you cannot pull your clothing out.

   Jordan’s testimony regarding the hazard posed by the exposed shafts is highly speculative.

White, who actually operates the machine, was adamant that she would never reach through the
machine, placing her hands near the shafts, unless the machine was off and the shafts were not
rotating. “Generally speaking, where employees testify from their own knowledge and experience
on matters that pertain to their specific work activities, their testimony should be given greater
weight than that of witnesses who do not have first-hand experience with the operation in question.”
ConAgra, 16 BNA at 1141.
The Secretary has failed to establish that employees were exposed to a hazard created by the
unguarded shafts. Item 2 is vacated.

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Item 3: Alleged Serious Violation of § 1910.1030(d)(2)(ix)
Section 1910.1030(d)(2)(ix) provides:
Eating, drinking, smoking, applying cosmetics or lip balm, and handling contact
lenses are prohibited in work areas where there is a reasonable likelihood of
occupational exposure.

   “Occupational exposure” is, according to § 1910.1030(b), “reasonably anticipated skin, eye,

mucous membrane, or parenteral contact with blood or other potentially infectious material that may
result from the performance of an employee’s duties.”
The citation states that in the “[f]irst aid room, employees eat and drink where first aid was
administered.”
Production supervisor Roberts testified that he and another production supervisor routinely
ate lunch and drank beverages in the supervisors’ office. The office is located next to the shipping
area of the facility. There is only one entrance to the office, which also contains the company’s
medical supply cabinet. Roberts stated that employees occasionally came to the office for bandages
when they had bleeding cuts or lacerations. A sign posted over the office door reads “FIRST AID,”
in letters bigger than those in the word “Supervisor” that appears on the office door (Exh. C-8;
Tr. 67-71). If an employee sustained a more serious injury, he or she would be taken to Minor Med,
a clinic located approximately 10 minutes from Duro-Last’s facility, where Duro-Last’s doctor
works. Roberts recalled several occasions within the past year when employees came to the
supervisor’s office with bleeding cuts (Tr. 79-80).
Industrial hygienist Jordan explained the hazard created by performing first aid treatment in
the same room where employees ate lunch (Tr. 339-340):
[A]ny time you have a likelihood of transmitting a blood borne pathogen, such as
hepatitis, which is easily transmitted and in small quantities, that you should not eat,
drink or apply cosmetics or smoke in that area because you can transfer so easily
from touching the doorknob. And, you can transmit the virus from the doorknob to
your mouth which presents a route of entry for that particular virus or any other virus
that would be in the blood.
...
You may not know a transmission has been made, but when you also eat or drink in
that area or that office, then you have increased the likelihood of transmission. You
can transmit whatever is on the doorknob to your bag of chips or to the french fries
or whatever, or cup of coffee or whatever you’re drinking.

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The Secretary has established that two of Duro-Last’s employees routinely ate and drank in
a work area where there was a reasonable likelihood that they could come into contact with the blood
of employees injured on the job. Item 3 is affirmed.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity
is the principal factor to be considered.
Duro-Last employs approximately 750 employees corporate-wide, with approximately 50
employees at the Jackson, Mississippi, facility. There is no evidence that the Secretary had
previously cited Duro-Last for any violations. Duro-Last is entitled to credit for good faith. It has
a written safety program and a safety committee at its facility (Tr. 18-19).
The gravity of item 3 is moderate. Only two employees regularly ate their lunch in the office.
If an employee had a bleeding cut that could be treated with a Band-Aid, he or she often went to the
bathroom first to wash it off, minimizing the risk of bleeding in the office. Employees with serious
bleeding cuts were taken to the clinic. A penalty of $1,000 is deemed appropriate.
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
1. Item 1, alleging a serious violation of § 1910.151(c), is vacated and no penalty is
assessed;
2. Item 2, alleging a serious violation of § 1910.219(c)(4)(i), is vacated and no penalty
is assessed; and
3. Item 3, alleging a serious violation of § 1910.1030(d)(2)(ix), is affirmed and a penalty
of $1,000 is assessed.
/s/
KEN S. WELSCH
Date: June 12, 2002 Judge

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