Eshbach Brothers, LP

Plain-English summary

About 20 Eshbach masonry employees handled portland cement at a construction project. Workers used a hose and water barrel to wash cement from their skin, but OSHA requires clean water, non-alkaline soap, and clean towels because wet cement can cause severe burns. Eshbach argued that a bathroom in a project trailer was available, but the judge found no evidence that employees had permission or were instructed to use it for washing. The foreman knew employees worked with cement and used the hose, so his knowledge was imputed to the company. The judge affirmed the violation as serious and assessed a $1,125 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.51(f)(1)
• Outcome: Serious washing-facilities violation affirmed with a $1,125 penalty.
• Key point: A washroom somewhere onsite is not an adequate facility unless exposed employees can and know to use clean water, suitable soap, and clean towels.

Full text (OSHRC public release)

                                    United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                               1120 20th Street, N.W ., Ninth Floor
                                  W ashington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 09-1148
ESHBACH BROTHERS, LP,
Respondent.

Appearances: Michael P. Doyle, Esquire James F. Sassaman, President
U.S. Department of Labor Sassaman, LLC
Philadelphia, Pennsylvania Conshohocken, Pennsylvania
For the Complainant. For the Respondent.

Before: Covette Rooney
Administrative Law Judge

                               DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §
651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) inspected
a work site of Respondent, located in Graterford, Pennsylvania, on July 20, 2009. As a result, OSHA
issued to Respondent a serious citation alleging a violation of 29 C.F.R. 1926.51(f)(1), which
requires the employer to provide adequate washing facilities where employees are engaged in
operations involving contaminants that may be harmful to them. Respondent contested the citation,
and this case was designated for the Commission’s Simplified Proceedings. The hearing in this
matter was held on November 23 and 25, 2009, in Philadelphia, Pennsylvania. Both parties have
filed post-hearing briefs.

                                  The OSHA Inspection

Kevin Chambers, a compliance officer (“CO”) with OSHA, arrived at the work site on July
20, 2009. The site was a construction project that involved building a maintenance facility for the
Pennsylvania Army National Guard. The CO held an opening conference with John Yeich, the
superintendent for Dolan Construction (“Dolan”), the general contractor. He then walked around the
job site with Mr. Yeich. The main work being done at the site was masonry. The CO learned that
Eshbach Brothers (“Eshbach”) was responsible for that work and had about 20 employees on the job.
He observed the masonry work taking place and an area where there were cement mixers as well as
materials such as sand and bags of portland cement; he took photographs of what he saw. He also
observed an employee who was mixing sand, portland cement and water to make concrete. CO
Chambers met with the employee, Timothy O’Brien, and asked him what he used for washing up.
Mr. O’Brien told him he used a water hose and a 55-gallon drum. CO Chambers next met with
Eshbach’s job site foreman, John Gechter. The CO explained his concerns about the portland
cement, i.e., that it can cause severe burns to skin or eyes when wet. When the CO asked what
employees used to wash up, Mr. Gechter said they used a water hose. The CO told Mr. Gechter that
soap and clean towels were also required. He then held a closing conference with Mr. Yeich in
Dolan’s job site trailer. He discussed the hazards of portland cement and the fact that clean water,
soap and clean towels were required for proper sanitation. Mr. Yeich indicated that he would assist
Eshbach to ensure the condition was corrected. Before departing, CO Chambers left pamphlets for
Eshbach in Dolan’s trailer. The pamphlets explained the sanitation measures that were needed when
working with portland cement. (Tr. 10-30, 35, 38-39).
Later that day, the CO phoned Wilson Eshbach at Eshbach’s corporate office, as that was
suggested during the inspection. The CO explained what had happened during the inspection, the
hazards of portland cement, and the fact that while water was available, soap and clean towels were
not available to the employees. Mr. Eshbach indicated the situation would be resolved. (Tr. 30-31).
Jurisdiction
The parties have stipulated that Eshbach is engaged in interstate commerce and that the
Commission has jurisdiction over this matter. See Joint Pre-hearing Statement, p. 3. I find, therefore,
that the Commission has jurisdiction over the parties and the subject matter in this case.
The Cited Standard and the Secretary’s Burden of Proof

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The cited standard, 29 C.F.R. 1926.51(f)(1), provides as follows:
The employer shall provide adequate washing facilities for employees engaged in the
application of paints, coating, herbicides, or insecticides, or in other operations where
contaminants may be harmful to the employees. Such facilities shall be in near
proximity to the worksite and shall be so equipped as to enable employees to remove
such substances.
To establish a violation of an OSHA standard, the Secretary has the burden of proving that
(1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees
had access to the violative condition, and (4) the employer either knew or could have known with
the exercise of reasonable diligence of the violative condition. Astra Pharmaceutical Prod., 9 BNA
OSHC 2126, 2129 (No. 78-6247, 1981).
The Secretary contends that she has met all of the required elements to establish the alleged
violation. Respondent contends it did not violate the standard and that Messrs. O’Brien, Gechter and
Yeich all testified that an adequate washing facility was available to employees at the site.
Whether the Cited Standard Applies
As the Secretary notes, the cited standard applies to conditions in which (1) employees are
engaged in construction work, and (2) they are exposed to harmful contaminants. S. Brief, p. 8. The
record shows Eshbach’s employees were performing construction work at the site. The CO described
the site as a “construction project,” i.e., a maintenance facility, for the Pennsylvania Army National
Guard. (Tr. 12). Mr. O’Brien testified that he was working at an Eshbach “construction site” in
Graterford in July 2009. (Tr. 42). And, the parties have stipulated that Mr. O’Brien “was engaged
in masonry operations at a construction worksite at RT. 113, Graterford, PA.” See Joint Pre-Hearing
Statement, p. 2. Eshbach’s employees were clearly engaged in construction work at the site.
The record also shows Eshbach’s employees were exposed to portland cement. Mr. O’Brien
testified that he was mixing portland cement with water on the day of the inspection, that he was
getting the cement on his bare arms, and that on July 20, 2009, he had been working at the site for
about three weeks. (Tr. 49-50). Mr. Gechter, Eschbach’s foreman on the project, testified that about
20 Eshbach employees were handling portland cement at the job site on the day of the inspection and
that it was possible they had gotten it on their hands and arms. (Tr. 63).

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The record shows, in addition, that portland cement is a harmful contaminant. The Secretary
presented G-3, a publicly-available OSHA guidance document entitled “Preventing Skin Problems
from Working with Portland Cement.” G-3 states, on page 6, that employers must “take steps to
protect employees from the hazards associated with exposure to portland cement,” as follows:
Construction employers must make washing facilities available for employees
exposed to portland cement. Washing facilities must provide clean water, non-
alkaline soap, and clean towels.
The Secretary also presented G-4, OSHA Directive CPL 02-02-074, another publicly-
available document, entitled “Inspection Procedures for the Chromium (VI) Standards.” In the
section relating to portland cement,1 G-4 states, on page C-2, that:
In order to effectively remove portland cement, employers must provide washing
facilities with clean water, non-alkaline soap and clean towels.
The Material Safety Data Sheet (“MSDS”) for the portland cement used at the site, prepared
by Lehigh Heidelberg Cement Group (“Lehigh”), is further evidence that portland cement is a
harmful contaminant. See G-5. G-5 states, on page 1, as follows:
When in contact with moisture in eyes or on skin, or when mixed with water,
portland cement becomes highly caustic (pH > 12) and will damage or burn (as
severely as third-degree) the eyes or skin.
The CO testified that he took G-7a, which shows an open bag of the Lehigh portland cement
at the site. G-7b and G-8, closeups of the back of the bag, show a “DANGER” heading and give a
warning similar to the one set out in G-5 above. (Tr. 22-24). G-7b and G-8 additionally show a
“PROTECTION” heading, appearing underneath the “DANGER” heading, which states that:
Immediately after working with cement or cement-containing materials, wash with
soap and water. Precautions must be taken. A cement burn occurs with very little
warning as little heat is sensed by the skin.
In light of all of the foregoing, the Secretary has shown that the cited standard applied to
Eshbach’s work site in Graterford, Pennsylvania.

   1
    A discussion of portland cement is apparently included in G-4 because hexavalent

chromium, or Cr(VI), is a trace constituent of the cement. G-4 notes, however, that the Cr(VI)
standards do not apply to portland cement as OSHA has determined that complying with pre­
existing OSHA general standards (such as the cited standard) provides adequate protection for
employees exposed to the trace amounts of Cr(VI) found in portland cement. G-4, pp. C-2-3.

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Whether Eshbach Failed to Comply with the Standard
As the Secretary points out, the cited standard does not define “adequate washing facilities,”
except to require that they be in near proximity to the work site and be equipped such that employees
can remove the contaminants. S. Brief, p. 11. The Commission has held that 29 C.F.R. 1926.51(f)(1)
is a “performance standard,” which means that it allows employers some leeway in developing the
specific methods to protect against the hazard. See Thomas Indus. Coatings, Inc., 21 BNA OSHC
2283, 2287 (No. 97-1073, 2007). The discussion above shows the Secretary has already established
the parameters for “adequate washing facilities” when employees are exposed to portland cement.
In particular, OSHA describes what is required in G-3 and G-4. Lehigh’s MSDS, G-5, and the
warnings on the portland cement bag at the site, shown in G-7b and G-8, are consistent with the
Secretary’s determination of the sanitation means required for employees working with the cement.
The Secretary’s interpretation is entitled to deference as long as it is reasonable. See Martin v.
OSHRC, 499 U.S. 144, 150-51 (1991). I find the Secretary’s interpretation to be reasonable in this
case. Respondent was, therefore, required to provide clean water, non-alkaline soap and clean towels
to its employees at the site who were exposed to the portland cement.2
The CO’s testimony is summarized on page 2. It establishes that no one the CO spoke to at
the site told him that clean water, soap and clean towels were available to Eshbach’s employees.
Messrs. O’Brien and Gechter told him that a water hose was used for washing up, and Mr. Yeich
indicated only that he would help Eshbach correct the condition. The CO spoke later with Wilson
Eshbach, a senior Eshbach manager with safety oversight, who also indicated the situation would
be corrected. (Tr. 24-31, 35, 38-39). Thus, no one at the site, and not even the Eshbach manager who
oversaw safety, indicated that a washing facility that met what OSHA requires was available to
Eshbach’s employees.3 This is so even though the CO specifically discussed the hazards of portland
cement and what was required with Messrs. Gechter, Yeich and Eshbach. (Tr. 30-31, 35-39).

   2
    Eshbach’s arguments in regard to the Secretary’s interpretation of the standard have been

considered and rejected. See R. Brief, pp. 3-4.
3
The CO testified he saw no area at the site where employees might wash up using soap
and towels. He did see “port-a-johns” at the site that contained alcohol-based hand sanitizer. He
said that the sanitizer would not effectively remove the cement from skin. (Tr. 25-26).

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Eshbach asserts that the testimony of three witnesses shows that an adequate washing facility
was available at the site. R. Brief, pp. 2-3. Mr. O’Brien testified that when the CO asked him where
his wash station was, he pointed to the hose in the water barrel. He also testified that there was a
hand-washing facility, i.e., a bathroom, inside Dolan’s trailer. He knew about the bathroom as
Eshbach had safety meetings in that trailer. He had access to that trailer, as did other employees, and
he knew one who went in the trailer for breaks and lunch because it had air conditioning. Mr.
O’Brien said he never used the bathroom in the trailer and that Mr. Gechter never told him to wash
up with soap and water. He also said he used the hose to clean off the cement, that he used soap and
water to wash off at home, and that in his three years of working for Eshbach he had never had any
burns. Mr. O’Brien stated that he had been nervous when speaking to the CO. (Tr. 43-51).
Mr. Gechter testified that he had worked for Eshbach for 25 years, that he had been a foreman
for a number of years, and that he was the “competent person” at the job site with responsibility for
employee safety.4 He further testified that there were two trailers right next to each other, one of
which was Mr. Yeich’s, and that Eshbach had its safety meetings in the other trailer. That trailer had
air conditioning and a bathroom, and it was open to anybody, including his employees, some of
whom would go in it to get out of the heat. Mr. Gechter said he was not aware of the hand-washing
facility requirement when the CO spoke to him. He also said that the CO “kept going on” about the
hazards of the cement and that he was “floored” by how adamant the CO was about the “hand­
washing thing.” According to Mr. Gechter, it had not occurred to him to tell the CO about the
bathroom in the trailer. He had not inspected that bathroom and did not know if it had soap, but he
thought it had towels. Mr. Gechter noted that in the 25 years he had been in masonry and worked
with cement he had never known employees using cement to have skin rashes or burns. (Tr. 52-67).
Mr. Yeich testified that he had rented two trailers for the job, one for his use and the other
for the Department of General Services (“DGS”). The DGS trailer had a bathroom, while his did not,
and the DGS trailer also had a water cooler and air conditioning. Mr. Yeich further testified that
employees had access to both trailers, that they used the DGS trailer for the water cooler and the air
conditioning, and that he was aware of Eshbach employees using the DGS trailer “several times.”

   4
       Mr. Gechter has also been a limited partner of Eshbach for about a year. (Tr. 60).

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He said Eshbach had its safety meetings in the DGS trailer, and he indicated that some employees
had lunch there. Mr. Yeich recalled the OSHA inspection, and he said the CO never asked him if
there were any lavatory facilities. He also recalled talking to the CO in his trailer and the CO telling
him that Eshbach’s employees were not washing off with soap and water. He did not remember
telling the CO that he would help Eshbach to correct the situation. (Tr. 74-89).
I agree with the Secretary that Eshbach’s argument appears to be that because a bathroom was
available in a trailer at the site, it complied with the standard. S. Brief, pp. 13-15. While Messrs.
O’Brien, Gechter and Yeich testified to this effect, it is noteworthy that not one of them stated that
any employee ever actually used the bathroom. Mr. O’Brien specifically testified that he never used
that bathroom and that Mr. Gechter never told him to wash up with soap and water. (Tr. 51). Mr.
Gechter testified that he was not aware of the hand-washing facility requirement when he talked to
the CO.5 (Tr. 58, 62-63). In light of this testimony, and particularly the lack of evidence that any
employees had ever used the bathroom in the trailer for any purpose, it is reasonable to infer that
Eshbach’s employees did not in fact use that bathroom for washing up. That they did not is supported
by Mr. Gechter’s testimony that he had to ask permission in advance to hold safety meetings in that
trailer.(Tr. 54-55). There was no evidence that employees were ever given permission to use the
bathroom in the trailer. A conclusion that employees did not have such permission is supported by
the fact that there were “port-a-johns” at the site. (Tr. 25-26).
It is even more noteworthy that no one at the site, and not even Wilson Eshbach, a senior
company manager with responsibility for safety oversight, ever told the CO that there was a facility
for washing up at the site. (Tr. 25, 28-31, 35-37). Messrs. O’Brien and Gechter did, however, tell the
CO that a water hose and drum were used for washing up. (Tr. 25, 28, 35, 44, 58). Respondent
suggests that the CO should have specifically asked if there was such a facility. It also suggests that
Mr. O’Brien’s nervousness upon being questioned by the CO, and Mr. Gechter’s being “floored” by
the CO’s adamance about the “hand-washing thing,” explain why they did not mention the bathroom
in the trailer. R. Brief, pp. 2-3. I disagree. As the Secretary points out, “Common law traditionally
has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in

   5
    Mr. Gechter also admitted that he did not know if the bathroom in the trailer had soap,

although he thought it had towels. (Tr. 63-64).

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which that fact naturally would have been asserted.” Jenkins v. Anderson, 447 U.S. 231, 239 (1980).
S. Brief, p. 15. I find that no one mentioned the bathroom in the trailer as being available as a hand-
washing facility because it was not in fact available to employees for such use. I further find that
Respondent Eshbach did not provide adequate washing facilities to employees as required. The
Secretary has established that Eshbach failed to comply with the cited standard.
Whether Employees had Access to the Cited Condition
The record plainly shows that Eshbach’s employees were exposed to the portland cement at
the site. The CO testified that July 20, 2009 was a warm day and that Mr. O’Brien was perspiring
as he used the portland cement to make concrete. (Tr. 22). Mr. O’Brien, who had been at the site for
about three weeks, testified that he was perspiring the day of the inspection, that the work was messy
and he was getting cement on his arms, and that he had on a short-sleeved shirt. (Tr. 49-50). Mr.
Gechter testified that about 20 Eshbach employees were handling portland cement at the site on July
20, 2009, and that it was possible that they had gotten it on their hands and arms. (Tr. 63). The
Secretary has demonstrated employee access to the cited condition.
Whether Eshbach had Knowledge of the Cited Condition
To establish knowledge, the Secretary must show the employer either knew or could have
known with the exercise of reasonable diligence of the violative condition. As the Secretary notes,
“Employer knowledge is established by a showing of employer awareness of the physical conditions
constituting the violation. It need not ... be shown that the employer understood or acknowledged
that the physical conditions were actually hazardous.” Phoenix Roofing, Inc., 17 BNA OSHC 1076,
1079 (No. 90-2148, 1995). S. Brief, p. 15. Mr. Gechter, the foreman, testified that he was not aware
of the hand-washing facility requirement at the time of the inspection. (Tr. 58, 62-63). It is clear,
however, that Mr. Gechter knew what Mr. O’Brien and the other employees were doing at the time
of the inspection, i.e., they were working with the portland cement. He also knew that it was possible
the employees were getting the cement on their hands and arms. (Tr. 62-63). Finally, he knew the
employees were using “the hose or the water barrel” to wash up. (Tr. 58). Under these conditions,
Mr. Gechter had at least constructive knowledge that employees were not washing up as required,

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that is, with clean water, soap and clean towels.6 Mr. Gechter was a foreman and a limited partner
of Eshbach on July 20, 2009. (Tr. 52-53, 60). His knowledge may thus be imputed to Eshbach.
Rawson Contractors, Inc., 20 BNA OSHC 1078, 1080 (No. 99-0018, 2003). The Secretary has
demonstrated the knowledge element. Respondent was, therefore, in violation of the cited standard.
Whether the Violation was Serious
A violation is serious when “there is a substantial probability that death or serious physical
harm could result” from the hazardous condition or practice at issue. See section 17(k) of the Act.
Exhibits G-3, G-4 and G-5, discussed on page 4 of this decision, establish that when in contact with
moisture in eyes or on skin, or when mixed with water, portland cement becomes highly caustic.
Such contact can damage or burn the eyes or skin, and burns can be as severe as third-degree. G-3
also states, on page 4, that:
Wet portland cement can cause caustic burns, sometimes referred to as cement burns.
Cement burns may result in blisters, dead or hardened skin, or black or green skin.
In severe cases, these burns may extend to the bone and cause disfiguring scars or
disability.
The record shows that Mr. O’Brien was mixing portland cement with water and other
materials on the day of the inspection, that he was perspiring due to the warm temperatures that day,
and that he was getting the cement on his bare arms. (Tr. 22, 50). Mr. O’Brien had worked at the site
for about three weeks, and he testified that his “habit” was to wash off with the hose and to wash off
with soap only when he got home after work. (Tr. 48-49). Mr. Gechter testified, in addition, that he
did not know that washing facilities were required. (Tr. 58, 62-63). On these facts, it is reasonable
to infer that Mr. O’Brien was exposed to the hazard of cement burns for the three weeks preceding
the inspection. This evidence, along with the above statement from G-3, demonstrates the serious
nature of the violation in this case. The violation is affirmed as serious.
Penalty Determination
The Secretary has proposed a penalty of $1,125.00 for this citation item. In assessing
penalties, the Commission is required to give due consideration to the gravity of the violation, and
to the size, history and good faith of the employer. See section 17(j) of the Act. The CO testified the

    6
     Mr. Gechter also should have known that employees were not washing up as required in

light of the information on the bags of portland cement at the site. See G-7b, G-8.

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violation had low severity, because most of the time employees recover from cement burns without
any permanent disfigurement or disability, but greater probability, due to the amount of cement he
saw on Mr. O’Brien and the fact that all it takes to activate the cement is contact with water. The
resulting gravity-based penalty was $2,500.00. The CO further testified that that Eshbach received
a 40 percent credit for size, based on the corporate size of the company, and a 15 percent credit for
good faith, based upon his determination that the company had a sufficient safety and health
management system. No credit for history was given, in that Eshbach had had a prior citation within
the past three years. The resulting proposed penalty was $1,125.00. (Tr. 32-33; G-2). I find the
proposed penalty to be appropriate. The proposed penalty of $1,125.00 is assessed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes my findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing findings of fact and conclusions of law, it is ordered that:
1. Item 1 of Serious Citation 1, alleging a violation of 29 C.F.R. 1926.51(f)(1), is affirmed,
and a penalty of $1,125.00 is assessed.

                                                  /s/
                                                  Covette Rooney
                                                  Judge, OSHRC

Dated: February 16, 2010
Washington, D.C.

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