Loomis Cabinet Company

Read the official release (oshrc.gov)

Plain-English summary

Loomis Cabinet Company manufactured wooden cabinets and was cited after a follow-up inspection for repeat, other-than-serious, and failure-to-abate violations. Loomis stipulated to the violations but argued that its former employees had become partners in Eastview Cabinet Company, leaving Loomis without employees covered by the OSH Act. The Commission found that Loomis still controlled the workshop, equipment, customer and supplier dealings, production terms, finances, and important hiring and firing decisions. It therefore held that the workers were Loomis employees under either the Commission's economic-realities analysis or the common-law control factors discussed by the Supreme Court. The Commission also found no good-faith basis to reduce the penalties because Loomis had not reasonably believed that the partnership arrangement excused compliance. It affirmed the citations and failures to abate and assessed the full proposed penalty of $43,900.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1903.2(a)(1), 1903.16(a), 1904.2(a), 1910.22(a)(1), 1910.37(k)(2), 1910.37(q)(1), 1910.94(c)(2), 1910.133(a)(1), 1910.141(a)(3)(i), 1910.213(b)(3), 1910.213(d)(1), 1910.213(h)(1), 1910.213(h)(4), 1910.213(p)(4), 1910.242(b), 1910.305(b)(2), 1910.1200(e)(1), 1910.1200(g)(1), and 1910.1200(h).
• Outcome: All citations and failures to abate affirmed; total penalty of $43,900 assessed.
• Key point: A business remains an employer when it retains practical control over the workers and workplace despite labeling the workers as partners in another entity.

Full text (OSHRC public release)

Docket No. 88-2012

SECRETARY OF LABOR.

Complaint,

v.

LOOMIS CABINET COMPANY,

Respondent.

OSHRC Docket

No. 88-2012

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:   

The Secretary of Labor ("the Secretary") through the
Occupational safety and Health Administration ("OSHA:) issued to Loomis Cabinet
Company ("Loomis") a notification of failure to abate numerous violations of the
Occupational Safety and Health Act, 29 U.S.C. �� 651-678 ("the Act"), as well
as citations for repeat and other-than-serious violations of the Act.[[1]]  The
Secretary proposed penalties amounting to $43,900.  Loomis stipulated to the
existence of the violations.  However, Loomis contended that it was improperly cited
because it was not an employer within the meaning of section 3(5) of the Act.[[2]]  
At the hearing, Loomis claimed that the persons exposed to the violations were former
employees of Loomis who had become partners in the Eastview Cabinet Company
("Eastview"), with which Loomis had a contractual relationship.[[3]]  
Review Commission Administrative Law Judge Irving Sommer found that no partnership existed
and that the alleged partners were Loomis employees and affirmed both the citations and
the proposed penalty.  On review, Loomis renews the argument that the workers at
issue were not employees of Loomis, and that the penalty assessed by the judge was not
appropriate.  We conclude that an employment relationship did in fact exist between
Loomis and the workers at issue, and we affirm the assessed penalty.

I. Background

On January 5, 1988, OSHA inspected the Loomis Cabinet
workshop located in North Highlands, California.[[4]]  On March 1, 1988, OSHA issued
one citation alleging nine serious violations, and a second citation alleging nine
other-than-serious violations, with abatement dates ranging from March 3 through March 31,
1988.  These citations were not contested.

Loomis represents that on March 1, the day the citation
was issued, its employees stopped working for Loomis by forming the Eastview Cabinet
Company partnership, which later entered into a contract to manufacture cabinets
exclusively for Loomis.[[5]]  Michael Loomis, the sole owner of the Loomis Cabinet
Company, testified that the  partnership was formed so that Loomis and the workers
"could make more money" and "wouldn't have to be held hostage by the
[workmen's compensation insurance] and the other restraints of government agencies.[[6]]
  The partnership contract, which was not formalized until September 1, 1988,
provided that the members of Eastview would manufacture wood cabinets under the direction
of Loomis Cabinet in exchange for 75 percent of the net profit from the cabinets'
sale.[[7]]

On or about July 1, 1988, OSHA attempted a second inspection at
Loomis' place of business.  At first Loomis objected and refused entry on the grounds
that it had no employees and was therefore not subject to OSHA jurisdiction. 
However, it later consented to the inspection.  Following the inspection, OSHA issued
a Notification of Failure to Abate Alleged Violations, a citation for repeat violations,
and a citation for an other-than-serious violation.  Loomis contested the citations
by letter, dated August 24, 1988, alleging that it was not an employer.

On October 1, 1988, Loomis and Eastview further refined their
agreement in a "Management Services Contract and Contract to Provide Manufacturing
Services."  According to this agreement, Loomis conducts all contract
negotiations with suppliers and customer, provides the designs and specifications for the
cabinets, schedules the work with the customers, assists the Eastview Management Committee
in supervision, manufacture, installation, and quality control, and performs all
accounting, administrative, and financial services.  Loomis also provides Eastview
with tools, tool maintenance, the shop itself, and all materials and supplies. In return,
75 percent of Loomis' profits go to Eastview, while the remaining 25 percent stays with
Loomis.  The profits destined for Eastview are then divided again among the partners,
based according to the partners' respective skill level, as determined by the Eastview
Management Committee.[[8]]

II Judge's Decision

On August 16, 1989, the judge issued a decision
affirming the citations in this case.  Judge Sommer applied the "economic
realities test," first articulated and applied by the Commission in Griffin &
Brand of McAllen, Inc ., 6 BNA OSHC 1702, 1703, 1978 CCH OSHD

22,829, pp. 27,600-01 (No. 14801, 1978), and more recently in Van Buren-Madawaska
Corp., 13 BNA OSHC 2157, 2158, 1989  CCH OSHD

28,504, P. 37,780 (No. 87-214, CONSOLIDATED, 1989).  The judge
found that the record establishes that "there is no partnership among Eastview
'partners' nor between Loomis Cabinet Company and its employees," and that
"there existed an employer-employee relationship between Eastview and Loomis despite
its partnership form."  Accordingly, the judge held that OSHA did have
jurisdiction over Loomis' workplace.  The judge noted that Loomis had
"essentially put all its eggs in one basket in arguing that OSHA was without
jurisdiction" because "Loomis otherwise made minimal attempt[s] to demonstrate
that it should prevail on the basis of any affirmative defenses."  Judge Sommer
also noted that "[s]ince Loomis submitted little or no evidence, many of the
violations must be affirmed on the basis of Loomis' own admissions as outlined in the
[s]tipulation...and the record evidence."  The judge held that the record
established that Loomis violated all the cited standards "by a preponderance of the
evidence."

III Discussion 

A. Whether the workers are employees of Loomis

i.

To determine whether an employment relationship exists,
the Commission has applied an "economic realities test."  The test
emphasizes the substance over the form of the relationship between the alleged employer
and the workers.  The Commission has considered a number of factors when making such
a determination, including the following:

1) Whom do the workers consider their employer?

2) Who pays the workers' wages?

3) Who has the responsibility to control the workers?

4) Does the alleged employer have the power to control the workers?

5) Does the alleged employer have the power to fire, hire, or modify
the employment condition of the workers:

6) Does the workers' ability to increase their income depend on
efficiency rather than initiative, judgment, and foresight?

7) How are the workers' wages established?

Van Buren-Madawaska, 13 BNA OSHC at 2158, 1989 CCH OSHD at
p. 37,780 (quoting Griffin & Brand, BNA OSHC at 1703, 1978 CCH OSHD at pp.
27,600-01).

The Secretary has directed our attention to Nationwide Mutual Insurance Co. v. Darden,
60 U.S.L.W. 4242, 4243 (U.S. March 24, 1992).  In Darden, the Supreme Court
held that the term "employee," in a federal statute, should be interpreted under
common law principles unless Congress clearly indicated otherwise.  The Court quoted
the following language from Community for Creative Non-Violence v. Reid, 490 U.S. 730
(1989), discussing the common law interpretation of what constitutes an
"employee" where the meaning of the term under the Copyright Act was issue:

In determining whether a hired party is an employee under the
general common law of agency, we consider the hiring party's right to control the manner
and means by which the product is accomplished.  Among the other factors relevant to
this inquiry are the skill required; the source of the instrumentalities and tools; the
location of the work; the duration of the relationship between the parties; whether the
hiring party has the right to assign additional projects to the hired party; the extent of
the hired party's discretion over when and how long to work; the method of payment; the
hired party's role in hiring and paying assistants; whether the work is part of the
regular business of the hiring party; whether the hiring party is in business; the
provision of employee benefits; and the tax treatment of the hired party.

490 U.S. at 751-752 (footnotes omitted).

We note that many of the factors in the Commission's economic
realities test appear in the Darden test as well.  In deterring whether
there is an employment relationship for purposes of the Act, the Commission has primarily
relied upon its determination of "who has control over the work environment such that
abatement of hazards can be obtained." Van Buren-Madawaska, 13 BNA OSHC at
2159, 1989 CCH OSHD at p. 37,781 (quoting MLB Indus ., 12 BNA OSHC 1525, 1527,
1984-85 CCH OSHD

27,408 at p. 35,510 (No. 83-231, 1985). In Darden, the Supreme Court primarily
relies upon "the hiring party's right to control the manner and means by which the
product is accomplished."  Darden, 60 U.S.L.W. at 4243 (quoting Reid ,
490 U.S. at 751 ) .  Thus, the inquiry central to both tests is the question
of whether the alleged employer controls the workplace.[[9]]

Loomis argues that the responsibility of controlling the workers
had passed to the workers themselves or to Mr. Do, the chief partner.  However, as
noted above, Loomis conducts all contract negotiations with suppliers and customers,
provides the designs and specifications for the cabinets, and schedules the work with the
customers.  Loomis also controls pricing, choice of materials, and marketing.  
In addition, it provides accounting, administrative, and financial services.   In
contrast, the workers provided only their labor.  Eastview did no advertising or
soliciting, and made minimal effort to gain outside contracts. The Eastview partners
worked exclusively for Loomis and were not allowed to work for other cabinet shops.

Moreover, Loomis exerted considerable control over the workshop
with regard to abatement of hazardous conditions.  Loomis owned all the equipment in
the shop.  Abatement of almost all the violations alleged in the citations would have
involved either an adjustment to a machine owned by Loomis, the wearing of personal
protective equipment to avoid a hazard on a machine owned by Loomis, or the modification
of some other condition within Loomis' control.

The evidence further demonstrated the involvement of Mr. Loomis
in hiring and firing the workers.  The testimony established that "nine times
out of ten," the partnership gets new people when the current workers bring in
acquaintances.  However, if the workers do not know anybody to fill a particular job
position, they ask Mr. Loomis to put an ad in the paper.  Mr. LOOMIS handles the
phone calls and conducts "a screening interview and...narrow[s] it down for
them."  After Mr. Loomis' screening, the partners interview the potential
workers themselves.  Mr. Do testified that Mr. Loomis sometimes told him when to hire
new people to complete a job.  Mr. Loomis testified that he would tell Mr. Do. if
something happened that warranted firing an employee.

Loomis retained the power to unilaterally change conditions in
the workshop.  Mr. Loomis testified that he purchased a new lacquer spray machine for
the workers to use.  Although the workers did not like using the machine because it
slowed them down, Mr. Loomis stated that he told the workers that they had to use the
machine to make their product more competitive.  Mr. Loomis also purchased a wide
belt sander.  He testified that the employees did not argue over its use because
"it made everybody more one."  In addition, Mr. Loomis recommended
workloads and encouraged the workers to work more hours in order to meet production goals.

Also relevant in determining whether an employment relationship
exists is the way in which the workers' wages were established.  Mr. Loomis devised
the partner level system of payment, which was "administered by his mother who is the
bookkeeper for both Loomis and Eastview."[[10]]  Mr. Loomis "deducts all
rent, insurance payments and then issues Eastview their allotment" for distribution
to the partners according to the partner level plan.  Although it could be argued
that Mr. Loomis merely administered a pay scheme set up by the partnership, the only
change in the way the workers are paid under the partnership is that they now vote on each
other's increases.

ii.

Based on our consideration of these factors, we conclude that the
workers in question were employees of Loomis, and not merely partners in a separate
business entity that has an independent contractual relationship with Loomis.  Loomis
argues that it ceded to the partners of Eastview all the powers and responsibilities that
made them employees of Loomis.  However, we conclude that the record shows that
Loomis controlled the cited workplace and the workers there.  It is Loomis that
conducted contract negotiations with suppliers and customer, provided the designs and
specifications of the cabinets, scheduled the work with the customers, and controlled the
pricing, choice of materials, and marketing.  Loomis owned the workshop and all the
equipment, and made unilateral decisions about the purchase of new equipment.  Mr.
Loomis participated in hiring and firing workers and drafted the partnership agreement.
  Loomis was also responsible for all accounting, administrative, and financial
services.  All of these factors, taken together, support our finding that the Loomis
Cabinet Company was an employer within the meaning of the Act.

B. Penalty

i.

In determining an appropriate penalty, in accordance with section
17(j) of the Act, 29 U.S.C. � 666(j), we consider the size of the business, the gravity
of the violation, the good faith of the employer, and the history of previous
violations.  Loomis' size, the gravity of the violations, and its history of previous
violations are not in dispute.  Loomis is a small company, but it has been cited for
repeated violations of the Act.  Loomis failed to abate its violations of 15
standards, ( see note 1, supra ), including the failure to guard
such equipment as power saws and belt sanders, and the workers' failure to wear protective
eye equipment.  Its failure to abate these violations could result in serious bodily
harm to the workers.  At issue is whether Loomis exhibited good faith.

Loomis argues that it believed in good faith that it was no longer
subject to OSHA jurisdiction.  Loomis also claims that OSHA's penalty criteria does
"not take into account the legal, economic, and practical realities of [Loomis']
business."  Loomis argues that the penalties themselves were not appropriate
because the worker's "own experience, common sense, desire to avoid injury, and
business judgment allowed them to determine 'reasonably necessary or appropriate' safety
standards for themselves, as such are contemplated by... the Act."  Loomis
claims that it was improperly cited because its workers have "15 years experience in
the cabinet manufacture business" and that "Complainant's inspectors had no such
experience nor any appreciation or understanding of the economic and practical realities
of the cabinet manufacture business" and that the inspectors "had no experience
with the tools and equipment used in the business."  Loomis further argues that
its workers" "freedom of choice in these matters should be respected by
OSHA."

Loomis also argues that "Complainant's standards are not
necessarily correct and fair just because they are Complainant's standards are not
necessarily correct and fair just because they are Complainant's; Respondent and other
reasonable experts can differ as to reasonable and proper standards for workplace safety
in a production cabinet shop."  Loomis claims that its 'contempt' was not for
true workplace safety, but for the paternalistic, arrogant, and self-righteous approach
which Complainant has taken in imposing its standards in this matter...."

The Secretary challenges Loomis' good faith argument.  The
Secretary argues that "[t]here is an obvious difference between a good faith belief
that your operations are safe and a good faith belief that you have cleverly avoided the
reach of the law by forming paper business entities."  The Secretary further
argues that Mr. Loomis did not exhibit good faith because he "was very candid in
expressing his contempt for the requirements for safety devices."  The Secretary
relies on Mr. Loomis' testimony that if the employees wanted safety improvements made to
the radial arm saw, he would make the employees pay for it.  In addition, she notes
that when Mr. Loomis was asked whether the workers have safety meetings, he replied,
"No, it's dumb...."  The Secretary also points to Mr. Loomis' testimony of
safety practices among cabinet makers, which he described as follows:

A. All the shops are set up exactly like mine.  They hear the
OSHA guy comes in, what happens, they stall the guy in the office and the foreman goes out
there and tells everybody, put all of the guards on.  And the guy comes out and
inspects, he leaves, everybody rips everything off and sticks in a safe place so the next
time he comes in.  See, it's a joke.

Q. Is this primarily for the table saws?

A. Yeah.  Basically, the table saws.  That's the biggest
thing.  Maybe the safeties on the nail GU, but --

Q. Okay.

A. And they probably all reach for the bin where there's, you know,
underneath this dusty table somewhere where the safety glasses are.  Everybody's
walking around with all this dust all over their lenses.

ii.

The test of good faith is an objective one. i.e. was the
employer's belief concerning a factual matter or concerning the interpretation of a
standard reasonable under the circumstances.  Mel Jarvis Constr. Co., Inc 10
BNA OSHC 1052, 1053 (No. 77-2100, 1981).  Under these circumstances, we cannot say
that Loomis' beliefs regarding its duty to comply with the Act were reasonable.  Its
argument, that it did not need to comply with the standards because its workers were
experienced, has no merit.  "[E]mployers are required to provide to all their
employees, experienced and inexperienced alike, the protection that occupational safety
and health standards are designed to accord to them."  C. Kaufman Inc., 6
BNA OSHC 1295, 1299, 1977-78 CCH OSHD

22,481, p. 27,101 (No. 14249, 1978).  Nor can Loomis choose not to follow the
Secretary's standards because it "differ[s] as to reasonable and proper standards for
workplace safety in a production cabinet shop."  This contention only challenges
the wisdom of the standards.  It is well settled that the Commission lacks the power
to invalidate a standard on such a ground.  Van Raalte Co., Inc.,  4 BNA OSHC
1151, 1152, 1975-76 CCH OSHD

20,633, p. 24,698 (No. 5007, 1976).  As long as a standard is within the
Secretary's granted power, issued pursuant to proper procedure, and reasonable, we cannot
question it except for unenforceable vagueness.  E.g., The Budd Co., 1 BNA
OSHC 1548, 1551, 1973-74 CCH OSHD

17,387, p. 21,916 (Nos. 199 & 215, 1974), aff'd on other grounds, 513 F.2d
201 (3d Cir. 1975).  Loomis' failure to abate the violations cited in March 1987 in
the belief that the partnership agreement put it out of the reach of the Act also
demonstrates something less than good faith.  Our impression of Loomis' attitude is
reinforced by its arguments, criticizing, inter alia, the "paternalistic, arrogant,
and self-righteous approach which Complainant has taken in imposing its standards in this
matter...."

We therefore conclude that Loomis' size, its history of previous
violations, the gravity of the violations and failures to abate at issue here, and its
lack of good faith do not warrant any reduction in the $43,900 penalty proposed by the
Secretary.

IV. Order

Accordingly, we find that
the workers in question  were employees of Loomis under the Act.  We assess a
penalty of $43,900 for the citations and instances of failure to abate set forth in note

1. supra .

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated:  May 20, 1992

IN THE MATTER OF:

ELIZABETH DOLE

SECRETARY OF LABOR,

Complainant,

v.

LOOMIS CABINET COMPANY,

Respondent.

Docket No. 88-2012

APPEARANCES:

LESLIE M. CAMPBELL, ESQUIRE

U.S. Department of Labor

Office of the Solicitor

P.O. Box 3495

San Francisco, California  94119-3495

For the Complainant,

DECISION AND ORDER

SOMMER, JUDGE

PROCEDURAL BACKGROUND

This is a proceeding under Section 10(c) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. section 651, et seq., :the
Act") to review citations issued by the Secretary of Labor pursuant to section 9(a)
of the Act, and the proposed assessment of penalties therein issued, pursuant to section
10(a) of the Act.

This case involves citations resulting from a follow-up inspection
of the Loomis Cabinet Company's (hereinafter "Loomis") business.  Mr. Angel
Diaz, an Occupational Safety and Health Administration Compliance Officer (hereinafter
"OSHCO") conducted the original inspection on January 6, 1988.  Another
OSHCO, Ms. Donna Karr, attempted to conduct a follow-up inspection in June, 1988, but was
denied entrance on the basis of lack of jurisdiction.

Loomis believed that OSHA was without jurisdiction because it had no
employees due to a reorganization of its business.  Before March, 1988 (the abatement
date) Mr. Loomis, the sole proprietor of Loomis Cabinet Company had entered into a
partnership agreement with his employees.  The agreement was dated March 1, 1988, and
formed a partnership, known as Eastview Cabinet Company (hereinafter
"Eastview").  Thus, under this agreement , all prior Loomis employees
became Eastview partners.  (Ex. J-12, Stipulation No. 4).  The U.S. Bankruptcy
Court of the Eastern District of California confirmed the contractual agreement between
Mr. Loomis and Eastview on August 8, 1988.  (R-2, pg. 6).  Before that
confirmation however, on July 6, 1988, Ms. Karr returned with Mr.  Diaz and a search
warrant to conduct the follow-up inspection.  (Testimony of Ms. Karr, Tr. 36).

As a result of that follow-up inspection, Loomis was issued one
citation for repeat violations and a Notification for Failure to Abate (hereinafter FTA),
and a second citation for other than serious violations.

REPEAT VIOLATIONS  

The complaint alleges concerning Citation No. 1, Item 1 that Loomis
violated 29 CFR section 1910.22 (a) (1) in that places of employment were not kept clean,
orderly, or in a sanitary condition.  The secretary alleged that Loomis violated
1910.22 (a) (1) because the work area outside the back door of the shop in the Holz Trim
Saw Area was cluttered with pieces of lumber, piles of excess lumber and saw dust, and
loose electrical cords.  A proposed penalty of $1,000 was assessed.

The complaint alleges concerning Citation Number 1, Item 2(a) that
Loomis violated 29 CFR 1910.305 (b) (2) in that pull boxes, junction boxes and fittings
were not provided with covers approved for the purpose.  The employees were allegedly
exposed to a hazard of burns or smoke inhalation.  A proposed penalty of $400 was
assessed.

OTHER THAN SERIOUS VIOLATION

The complaint alleges concerning Citation Number 2, Item 1 that
Loomis violated 29 CFR 1903.16(a) in that Loomis did not immediately post citations, or
unedited copies thereof at the worksite in place readily observable by all affected
employees.  A proposed penalty of $500 was assessed.

FAILURE TO ABATE

As a result of the original inspection on January 5, 1988, Loomis was
issued two citations.  Loomis did not contest these citations and thus they became
final orders of the Commission.  (Tr. 50; Ex. J-12, No. 3).  The complaint
alleged that Loomis failed to abate these citations by July 6, 1988, the date of the
re-inspection.   The previous citations contained 9 items each and alleged numerous
violations as listed in the addendum of this decision.  A total proposed additional
penalty for these items of $42,000 was assessed.

Loomis filed a timely notice of contest placing in issue the above
noted citations.  Pleadings were filed and there was some discovery.  Respondent
then filed a Motion for Dismissal of the Complaint or Severance of Jurisdictional Issue,
and Change of Venue of  hearing; both were denied as without legal justification and
untimely, respectively.  Respondent later filed a Petition for Discretionary Review,
which the Commission construed as a Petition for Interlocutory Review and denied.  A
hearing was held on April 24, 1989, in San Francisco, California.  Post-hearing
briefs have been filed and considered.

DECISION

Loomis was engaged in the manufacture of wooden cabinets.  
Loomis maintains its principal place of business at 6915 30th Street, North Highlands,
California 95660.  The complaint alleged that Loomis employed approximately 13
employees in its business activities.  Loomis admits that it utilizes goods,
equipment and materials shipped from outside the State of California and is engaged in a
business affecting commerce.  However, Loomis challenges OSHA jurisdiction over its
workplace because it claims to have no employees.

In large part, Loomis does not contest the violations but objects to
the amount of penalties and questions OSHA's jurisdiction over its establishment.  
Loomis contends that OSHA is without jurisdiction because it formed a partnership
agreement with its prior employees.  The Secretary, on the other hand, argues that
OSHA does have jurisdiction because Loomis is not really a partnership, but rather there
exists an employer-employee relationship.

In order to analyze the relationship which exists between Loomis and
it's employees it is necessary to look at the substance over the form of the relationship.
  In so doing, the Commission has created a test for determining the nature of the
relationship between the employee and employer.

Early on, the Commission applied the "economic realities
test" to determine whether an employment relationship exists.  Griffin &
Brand of McAllen, Inc., 6 BNA OSHC 1702 (No. 14801, 1978).  There is no single
criterion that determines the existence of an employment relationship, rather the
Commission pointed to seven factors which should be considered as a whole.  Griffin,
6 BNA OSHC at 1703.  The seven factors are as follows:

(1) Whom do the workers consider their employer?

(2) Who pays the workers' wages?

(3) Who has the responsibility to control the workers?

(4) Does the alleged employer have the power to control the workers?

(5) Does the alleged employer have the power to fire, hire or modify
the employment condition of the workers?

(6) Does the workers' ability to increase their income depend on
efficiency rather than initiative, judgment, and
            foresight?

(7) How are the workers' wages established?

Recently, the Commission again applied the
economic realities test in Van Buren-Madawaska Corp., 13 BNA OSHC 2157 (Docket Nos.
87-214, 87-217, 87-450 through 459, 1989).  The Van Buren-Madawaska decision
offers further insight in applying the economic realities test.

(1)      Whom do the workers consider their employer?

Mr. Han Do, a "general partner" with Eastview, was the only worker deposed
before the hearing.  Mr. Do stated at the deposition that Mr. Loomis was his
supervisor before the partnership.  This would indicate that Mr. Do no longer
believed Mr. Loomis was his employer.  Nevertheless, although there was some evidence
that Mr. Do had increased supervisory duties after the formation of Eastview, his position
essentially remained the same and more in the nature of an employee.

The depositions of both Mr. Loomis and Mr. Do indicate that the
Eastview partners still look to Mr. Loomis as their employer.  For example, Mr. Do
does not have the authority to actually fire an employee although he could recommend a
firing.  Mr. Do does not take any orders from customers, and only negotiates a price
on small orders.  (Depo. of Mr. Loomis, Ex. J-2(a), p. 36).  Mr. Do and the
other partners have set hours each day.  The "partners" do not purchase any
supplies, nor do they create their own designs.  Even more telling is the exclusive
nature of the relationship with Loomis.  Eastview does not advertise for business;
  it's sole customer is Loomis.  )Depo. of Mr. Loomis, Ex. J-2(a) p. 38; Depo.
of Mr. Do, Ex. J-2(b) p. 19).  Both Mr. Do's and Mr. Loomis' depositions offer a
clear picture of the relationship between Eastview and Loomis.  Despite the
employees' new titles, and employer-employee relationship continue to exist between
Eastview partner's and Loomis.

(2)  Who pays the workers' wages?

The nature of the wage distribution
indicates that Mr. Loomis continues to fulfill the role of employer.  Eastview does
not have its own secretary or bookkeeper; rather, the Eastview partners are paid by
Loomis' secretary and bookkeeper on an hourly basis.  (Depo. of Mr. Loomis, Ex.
J-2(a) P. 40).  Although the partners are given a percentage of the profits, Mr.
Loomis noted that if a partner is absent his wages will be reduced.  (Depo. of Mr.
Loomis, Ex. J-2(a) P. 35).  Thus, Loomis continues to pay the worker's wages.

(3)  Who has the responsibility to control the workers?

The record evidence further indicates that Mr. Loomis continues to exercise control over
the workers.  Mr. Do     cannot decide when the work will be
completed.  Mr. Loomis controls all bookkeeping, wages, profit making, and managerial
decisions.  (Depo. of Mr. Loomis, Ex. J-2(a) P. 18).  Mr. Loomis controls the
workload and has required the employees to work more hours to meet the production goals.
  (Depo. of Mr. Loomis, Ex. J-2(a) P. 31).  Loomis selects the tools, equipment,
and materials the employees are to be using.  Mr. Loomis controls all lease
negotiations and expansion decisions.  (Depo. of Mr. Loomis, Ex. J-2(a) Pp. 54-55,
66).  Eastview uses Loomis' designs exclusively.  Despite the new partnership,
Loomis continues to exercise considerable control over the partners.

(4)  Does
the alleged employer have the power to control the workers?

Mr. Loomis plays a significant role in the hiring and firing of workers.  Mr. Do did
point out that he recommended a friend and brother to join the partnership which was
brought before the partners.  However, Mr. Loomis does all initial screening of
applicants and determines whether or not a new worker is needed.  (Depo. of Mr.
Loomis, Ex. J-2(a) P. 47).  Although Mr. Do has some supervisory duties, Mr. Loomis
continues to exercise significant control over the workers.

(5) Does the
Alleged employer have the power to hire, fire or modify the employment condition of the
workers?

On the basis of the
evidence, this inquiry must be answered in the affirmative.  Mr. Loomis can dock
worker;s wages.  (Depo. of Mr. Loomis, Ex. J-2(a) Pp. 35, 57).  Mr. Loomis
determines when new employees will be hired and conducts screening interviews.  
(Depo. of Mr. Do, Ex. J-2(b) P. 23).  Mr. Loomis will also recommend firing when
necessary.  (Depo. of Mr. Loomis, Ex. J-29a0 P. 20).  Although Mr. Loomis
appears to have delegated these duties to the "management committee," he
continues to play a powerful role in final decisions of  Eastview.

(6)  Does
the workers' ability to increase their income depend on efficiency rather than initiative,
judgment, and                    
foresight?

In the case at hand,
the workers are required to be efficient during their working hours, otherwise a
supervisor will issue warnings.  Although naturally the workers' increased
productivity will result in increased profits, the record evidence indicates that the
partners show little initiative and exercise little or no business judgement.  
Additionally, Eastviews' sole means of support is through its contract with Loomis.  
Eastview is financially dependent on Loomis.  Eastview does no advertising,
soliciting and makes minimal effort to gain outside contracts.  Eastview works
exclusively for Loomis and is not allowed to work for other cabinet shops.  (Depo. of
Mr. Loomis, Ex. J-2(a) P. 36).  Under these circumstances, an employment relationship
rather than an independent contractor relationship exists.

(7)  How are
the workers' wages established?

The workers' wages
are established by Mr. Loomis.  Mr. Loomis determines how much the Eastview partners
will receive.  He deducts all rent, insurance payments and then issues Eastview their
allotment.  The partner level system of payment was devised by Loomis and Eastview.
  (dep. of Mr. Loomis, Ex. J-2(a) Pp. 45-46).  This extensive control over the
workers' wages is further evidence of an employer-employee relationship.

Under the Occupational Safety and Health Act, an employer who
exercises that control also has a corresponding responsibility to control the work
environment to assure the safety and health of the employees.  Van
Buren-Madasawka, 13 NBA OSHC at 2159.  Ultimately, Mr. Loomis has control over
the workers.  Since Mr. Loomis exercises a significant degree of control over the
workers it is incumbent that he also ensure a safe and healthful work environment. 

In this case the separate identity of Eastview and Loomis should be
disregarded because Mr. Loomis exercises control over the partners of Eastview and thus
over their work environment.  The commission stressed that "Formal
technicalities are not determinative, however, if they present a false image of the
employment relationship."  Griffin, 6 BNA OSHC at 1703-1704.  So it
is in this case, equity should look to the substance and not the form of the partnership
in determining whether an employment relationship existed.  On the basis of the above
noted facts, If find there existed an employer-employee relationship between Eastview and
Loomis despite its partnership form.  Accordingly, OSHA has jurisdiction over Loomis'
workplace.

ALLEGED VIOLATIONS

Loomis essentially put all its eggs in one basket in arguing that
OSHA was without jurisdiction.  Loomis otherwise made minimal attempt to demonstrate
that it should prevail on the basis of any affirmative defenses.  Since Loomis
submitted little or no evidence, many of the violations must be affirmed on the basis of
Loomis' own admissions as outlined in the Stipulation at exhibit J-12 and the record
evidence.

DISCUSSION

REPEAT VIOLATIONS

Citation NO. 1, Item 1 Alleged Repeat Violation of 29
CFR 1910.-22(a) (1).

The Secretary cited Loomis for a repeat violation of section
1910.22(a) (1) because the work area outside the back door of the shop in the Holz Trim
Saw area was cluttered with pieces of lumber, piles of excess lumber and saw dust and
loose electrical cords.  A proposed penalty of $1,000 was assessed.  Loomis does
not contest that it's employees were exposed to the cited condition, but objects to the
seriousness of the hazard and the amount of the penalty.  (Ex. J-12, Stipulation, No.
25).

The compliance officer testified that the hazard in this citation is
that of a worker falling off the pile of wood, possibly tripping, going into the planer or
hitting his head on the metal table.  (Testimony of Ms. Karr, Tr. 33-34).  This
violation is depicted in a photograph taken by the compliance officer.  (Ex. J-11(b).
  This condition does present a serious hazard.  Loomis offered no evidence to
the contrary.  Accordingly, the violation is established and the $1,000 penalty is
affirmed.

Citation NO. 1, Item 1(a) Alleged Repeat Violation of 29 CFR
1910.305(b) (2).

It is alleged that Loomis did not have approved covers for pull
boxes, junction boxes and fittings and thereby exposing its employees to a hazard of burns
or smoke inhalation.  A proposed penalty of $400 was assessed.  Again, Loomis
does not contest the violation, but disputes the appropriateness of the penalty.  
(Ex. J-12, Stipulation, No. 26).  Because Loomis admits there was a violation and it
is a repeat and the compliance officer followed the guidelines in the Federal Operations
Manual correctly, the violation and $400 penalty must be affirmed.   (Testimony of
Ms. Karr, Tr. 34-35).

OTHER THAN SERIOUS VIOLATIONS

Citation NO. 2, Item 1 Alleged Other Than Serious Violation of 29
CFR 1903.16(a).

Citation Number 2, Item 1 alleges that Loomis violated 29 CFR
1903.16(a) in that Loomis did not post the prior inspection's citations, or unedited
copies thereof at the worksite in places readily observable by all affected employees at
the time of the follow-up inspection.  (Ex. J-12, Stipulation NO. 27).  A
proposed penalty of $500 was assessed.  Loomis contends that the poster had been
previously posted after the original inspection.

Under 29 CFR 1903.16(b) each citation, or a copy thereof, shall
remain posted until the violation has been abated or for 3 working days, whichever is
later.  Loomis readily admits that certain violations were not abated.  Further,
Mr. Loomis stated that he thought only some of the "senior people" were aware of
the penalties.  (Depo. of Mr. Loomis, Ex. J-12 (a) P. 10).

Under 1903.16(a), the citation shall be posted, unedited, in a
prominent place where it will be readily observable by all affected employees.  
Since, Loomis did not comply with the posting requirements, the violation is
affirmed.  Additionally, because the compliance officer calculated the penalty on the
basis of the Federal Operations Manual which provides that posting citations are $500, the
penalty is reasonable.  (Testimony of Ms. Karr, Tr. 35).

FAILURE TO ABATE VIOLATIONS

Item Nos. 1-2(a) and 1-2(b) Alleged FTA Violation of 29 CFR
1910.37(k) (2) and 1910.37(q) (a).

Loomis stipulated that it was aware the door
was blocked in the condition as depicted in Exhibit Numbers 11 (a) through (e), and that
the condition had not been corrected as required by the prior inspection.  A proposed
penalty of $6,000 was assessed for these two grouped items.  Loomis contends that the
six large bay doors are always open during business hours.  Loomis questions whether
unmarked exit doors and the condition depicted in Exhibit Numbers J-11 (a) through (e)
poses "blocked exits" so as to cause a serious hazard and whether the penalty is
appropriate.  (J-12, Stipulation Nos. 10, 11).

Ms. Karr testified that one door was blocked with tires and cans.
  (Tr. 20; Ex. J-11 (a).  Another door was blocked by wood in front of the door
and beside the door.  (Testimony of Ms. Karr, Tr. 21; Ex. J-11 (b).   Yet
another door was blocked by poles and frames.  (Testimony of Ms. Karr, Tr. 21; Ex.
J-11(b)).  Yet another door was blocked by poles and frames.  (Testimony of Ms.
Karr, Tr. 21; Ex. J-11(b)).  Loomis' argues that (1) the doors are always open during
business hours, (2) the doors are wide enough to provide clear access, and (3) because
they no longer operate in the same manner, the situation of poles and frames in front of
the doors no longer exists.  (testimony of Mr. Loomis, Tr. 70-71).

Loomis' arguments are not convincing.  The photography's
clearly show that the exits were blocked.  Although Loomis may have changed its
operating procedures to eliminate blocked exits, it is undisputed that poles and frames
were barring clear access to the exits on the day of the re-inspection.  This
situation limited employee egress which presented hazardous condition sin an emergency.
  Also, because of the number of blocked exits which were all unmarked the condition
is serious.  Accordingly, the Secretary has established a violation of this standard.
  This situation can be easily abated, yet Loomis continued to remain in open
defiance of the Act.  Given the gravity of the violations and Loomis' lack of good
faith the $6,000 penalty is appropriate.

Item No. 1-3 Alleged FTA, Violation of 29 CFR 1910.94 (c) (2).

Loomis stipulated to the fact that the spray
finishing operation was not in compliance with �� 201 through 206 of the "Standard
for Spray Finishing Using Flammable and Combustible Materials," NFPA No. 33-1969.
  Loomis further admitted that there was nonmechanical ventilation in the
spray-finishing operation and the cords in use were not explosion proof and that the
workers were using flammable materials in the spray finishing area.  Loomis contends
that the ventilation provided by 3 of the bay doors which are open at all times during
business hours is sufficient.  Again, Loomis contends that the condition is not
serious and questions the appropriateness of the penalty.  Loomis also asserted the
affirmative defense of feasibility.  (ex. J-12, Stipulation No. 12).

Ms. Karr observed that the spray finishing operation was open to the
whole shop while the surrounding machinery was in use which could provide an ignition
source for the fumes.  (Tr. 23; Ex. C-1 through C-3).  Mr. Loomis testified that
the natural ventilation of the building is sufficient to prevent fumes from spreading.
  (Tr. 75-78, Ex. R-3.  Loomis' evidence is not convincing.  Additionally,
Loomis submitted no evidence to support its affirmative defense of feasibility.  The
Secretary has established a violation of the standard.  Under these circumstances,
the $6,000 penalty is appropriated.

Item NO. 1-5 Alleged FTA, Violation of 29 CFR 1910.133(a) (1)

Loomis does not dispute the fact that he did not require his workers
to use protective eye equipment while working around wood working equipment and operating
staple/nail guns.  Loomis contends that this is not a serious hazard and questions
the appropriateness of the penalty.  (Ex. J-12, Stipulation No. 13).  This is a
serious violation because there exists the possibility of eye injury or damage to the
face.  (Testimony of Ms. Karr, Tr. 27).  Loomis submitted no convincing evidence
to the contrary.  Thus, the Secretary has established a violation of the standard and
the corresponding $5,000 penalty is appropriate.

Item No. 1-6 Alleged FTA, Violation of 29 CFR 1910.213(b) (3)

Loomis does not dispute that the cited machines, the horizontal belt
sander, the Sterling band saw, the Dewalt radial saw, the Delta Chop saw, and the Makita
chop saw did not have magnetic switches to prevent them from automatically restarting upon
restoration of power after a power failure.  Loomis contends that the Delta Chop saw
and the Makita Chop saw have trigger switches and that the Rockwell table saw in fact had
a magnetic switch.  Loomis argues that the condition does not pose a serious hazard,
and questions the appropriateness of the penalty.  Ex. J-12, Stipulation No. 14).

During the original inspection, Mr. Diaz tested all the machines for
magnetic switches.  He determined that the cited machines did not have magnetic
switches.  At the re-inspection, Mr. Diaz only tested a few of the machines to
determine whether Loomis had abated the hazard.  The machines still did not have
magnetic switches.  According to Mr. Diaz, he did not complete the testing because
Mr. Loomis had told him that he had not abated the hazard.  (Tr. 52-53).  
According to Mr. Loomis the Rockwell table saw was already equipped with a magnetic
switch.  (Tr. 83).

The testimony of Mr. Diaz is credited.  Mr. Diaz conducted
testing of each machine at the original inspection and determined that none of them had
magnetic switches.  Given Mr. Loomis' failure to abate any of the hazardous
conditions at his workplace and the lack of evidence submitted at the hearing regarding
the Rockwell Table saw, I find that the Rockwell Table saw did not have a magnetic switch.
  Accordingly, the Secretary has established a violation of the standard.  The
lack of proper switches poses the hazard of a serious laceration when dealing with saws of
this power.  Under these circumstances, I find the $5,000 penalty is appropriate.

Item NO. 1-7 Alleged FTA, Violation of 29 CFR 1910.213 (d) (1)

Loomis admits that the table saws were not guarded as required by
the standard.  Loomis asserts the greater hazard defense, questions the seriousness
of the hazard, and whether the penalty is appropriate.  (Ex. J-12, Stipulation NO.
15).  The Secretary submitted three pages of guards which could be used with Loomis'
equipment.  (Ex. C-4).  Mr. Diaz pointed out that unguarded saws create a
hazardous condition in that fingers could be lacerated or amputated.  (Tr. 58).

Mr. Loomis stated that its safer to not use a guard because the
"guys just don't like them on there" as it creates a false sense of security and
it impairs your vision of the blade.  (Tr. 84-85).  Mr. Loomis further pointed
out that in a previous job at a mobile home factory guards were required and used
regularly.  (tr. 84).  Mr. Loomis' testimony is not convincing; indeed he has
discredited his own testimony by pointing to the safety program of another workshop which
requires that guards be used regularly.  Accordingly, the Secretary has established a
serious violation of the standard.  Under the circumstances, the $6,000 penalty is
appropriate.

Item NO. 1-8(a) Alleged FTA, Violation of 29 CFR 1910.213(h) (1)

Loomis admits that the radial saws in question did not have the
sides of the lower exposed portion of the blade guarded to the full diameter of the blade
by a device that automatically adjusted itself to the thickness of the stock and remained
in contact with the material being cut.  Loomis argues that the abatement of this
hazard creates a greater hazard, questions the seriousness of the hazard, and whether the
penalty is appropriate.  (Ex. J-12, Stipulation No. 16).

Loomis submitted no additional evidence to support its arguments
under this item.  For the reasons stated above in FTA Item 1-7, the violation and
penalty must be affirmed.

Item NO. 1-8(b) Alleged FTA, Violation of 29 CFR 1910.213(h) (4)

Loomis stipulated that the Dewalt radial cutting head did not return
to the starting position automatically when released by the operation.  Loomis merely
questions the seriousness of the hazard, whether the abatement creates a greater hazard
and whether the penalty is appropriate.  (Ex. J-12, Stipulation No. 17).  Mr.
Diaz pointed out that this hazard is easily abated by installing a safety device on the
saw.  Loomis submitted no evidence to support its position.  Accordingly, the
Secretary has established a violation of the standard.  Since this condition is
serious and is easily abated, the $6,000 penalty for the grouped items 8(a) and 8(b) are
appropriate.

Item NO. 2-1 Alleged FTA, Violation of 29 CFR 1903.2(a)(1)

Loomis admitted that the OSHA notice was not posted at the
workplace,  Loomis contends that the poster had been previously posted after the
original inspection.  Loomis questions the appropriateness of the penalty.  (Ex.
J-12, Stipulation NO. 18).

Loomis' arguments are without merit.  Under 29 CR 1903.2(a) (1)
each employer shall post and keep posted a notice...informing employees of the protections
and obligations provided for in the Act.  Even though Loomis may have had a poster
previously posted, he did not have one posted on the day of the re-inspection in
contravention of the standard.  Accordingly, the Secretary has established a
violation of the standard.  Loomis was not assessed a penalty previously and Ms. Karr
noted that Loomis had been assessed the lowest possible penalty in this situation.  
Since this is an other than serious violation and Loomis was already assessed the lowest
possible penalty, the penalty of $1,000 is appropriate.

Item NO. 2-2 Alleged FTA, Violation of 29 CFR 1904.2(a)

Loomis admits that the OSHA-200 log was not kept at the workplace
for the years 1985-1987.  The parties agree that this is an other than serious
violation.  Loomis merely questions the validity of the penalty.  (Ex. J-12,
Stipulation NO. 19).  For the same reasons as previously noted in the FTA 2-1 other
than serious violation, the penalty of $1,000 is appropriate.

Item No. 2-3 Alleged FTA, Violation of 29 CFR 1910.141(a) (3) (i)

Loomis admits that the men toilet facility was not clean and had not
been kept clean as required by the prior inspection, Citation NO. 1, Item 3 issued March
1, 1988 and that it is an other than serious hazard.  Loomis disputes the amount of
the penalty.  (Ex. J-12, Stipulation No. 20).  Again, for the same reasons as
previously noted in the FTA 2-1 other than serious violation, the penalty of $1,000 is
appropriate.

Item No. 2-4 Alleged FTA, violation of 29 CFR 1910.213 (p) (4)

The Secretary alleged that a horizontal belt sander did not have a
guard provided at each nip point where a sanding belt ran onto a pulley to prevent the
operator's hands or fingers from coming into contact with nip points.  Mr. Loomis
admitted in his deposition that the belt sander did not have a guard.  (Exhibit J-12,
Pp. 90-91).  The Secretary has established a violation of the standard and the $1,000
penalty is reasonable.

Item No. 2-5 Alleged FTA, Violation of 29 CFR 1910.242(b)

Loomis admits that compressed air used for cleaning purposes was not
reduced to less than 30 p.s.i.. Loomis contends that abatement is not feasible and that
the penalty is not appropriate.  (Ex. J-12, Stipulation No. 21).  Mr. Loomis
admitted that his air hose operates at a minimum pressure of 90 p.s.i.. Loomis offered no
evidence in support of its feasibility argument.  Mr. Diaz recommended a
"reducer" which could be applied to the hose in order to lower the pressure.
  This situation poses a threat of eye injuries or embolism where the skin might rip
with the pressure of the air hose.  (Testimony of Mr. Diaz, Tr. 63).  The
Secretary has established a violation not the standard.  Under these circumstances,
the $1,000 penalty is appropriate.

Item No. 2-7 Alleged FTA, Violation of 29 CFR 1910.1200(f). (g)
and (h).  

Loomis admits that it did not develop or implement a written hazard
communication program which at least describes how the criteria in 29 CFR 1910.1200(f) (g)
and (h) would be met.  Loomis admits that its workers were using chemicals such as
Weldwood Contact Adhesive, and that there were the manufacturer's warning labels on the
containers.  Loomis merely questions the appropriateness of the penalty.  By its
own admission, Loomis has violated the standard.  The $1,000 penalty is appropriate
under these circumstances.

Item No. Alleged FTA, Violation of 29 CFR 1910.1200(g) (1)

Loomis admits that it did not have a material safety data sheet
(MSDS) for each hazardous chemical which was used in the workplace and that the workers
were using chemicals such as Weldwood Contact Adhesive.  Loomis merely questions the
amount of the penalty.  (J-12, Stipulation NO. 23).  This violation can easily
be abated, yet Loomis continued to defy the requirements of the Act.  Accordingly,
the $1,000 penalty is reasonable.

Item No. 2-9 Alleged FTA, Violation of 29 CFR 1910.1200(h) (1)
and (2).

Loomis admits that it did not provide information and training as
specified under the standard on hazardous chemicals in their work area at the time of
their initial assignment and whenever a new hazard is introduced in their work area.
  The parties agree that the workers were using chemicals such as Weldwood Contact
Adhesive.  Loomis merely questions the appropriateness of the penalty.  (J-12,
Stipulation No. 24).  The Secretary has established a violation of the standard.
  Under these circumstances, the penalty of $1,000 is reasonable.

In sum, I note that Mr. Loomis has taken a cavalier attitude toward
the safety of his workers on the job.  This is evidenced by his unwillingness to
abate the violations and his "common sense" approach to safety on the job.
  For example, Mr. Loomis stated "there isn't really any safety guy, you know.
  They would laugh at him and tell him to leave me alone."  Further,
"It's not for me to tell him how he should run his saw....And it's not my duty to go
out there and tell them."  (Depo. of Mr. Loomis, Ex. J-29a), Pp. 64-65, 83).
  Loomis' overall lack of concern for the safety of its employees and the
requirements of the Act supports a strong showing of lack of good faith.

FINDINGS OF FACT

All findings of fact relevant and necessary to a determination of
the contested issues have been found specifically and appear herein.  See Rule 52(a)
of the Federal Rules of Civil Procedure.  Proposed Findings of Fact or Conclusions of
Law inconsistent with this decision are denied.

CONCLUSIONS OF LAW

1.  The record establishes by a prepondance of the evidence
that there is no partnership among Eastview "partners" nor between Loomis
Cabinet Company and its employees, and that the relationship is one of employer (Loomis)
and employees (Eastview), and that Loomis is subject to the jurisdiction of the
Occupational Safety and Health Act of 1970 as an employer.

2.  The record establishes by a prepondance of the evidence
that Loomis Cabinet Company violated the following sections of the regulations:

1.  29 CFR � 1910.22(a) (1)

2.  29 CFR � 1910.305(b) (2)

3.  29 CFR � 1903.16(a)

Additionally, the respondent failed to abate violations of the following sections:

4.   29 CFR � 1910.37(k) (2) and 29 CFR � 1910-37(q) (1)

5.   29 CFR � 1910.94(c) (2)

6.  29 CFR � 1910.133(a) (1)

7.  29 CFR � 1910.213(b) (3)

8.  29 CFR � 1910.213(d) (1)

9.  29 CFR � 1910.213(h) (1) and 29 CFR � 1910.213(h) (4)

10. 29 CFR � 1903.2(a) (1)

11. 29 CFR � 1904.2(a)

12. 29 CFR � 1910.141(a)(3)(i)

13. 29 CFR � 1910.213(p) (4)

14. 29 CFR � 1910.242(b)

15. 29 CFR � 1910.1200(f), (g) and (h)

16. 29 CFR � 1910.1200(g) (1)

17. 29 CFR � 1910.1200(h) (1) and (2)

ORDER

Based upon the Findings of Facts, Conclusions of Law, and the entire record, it is
hereby ordered:

1.  Citation 1, item 1 is affirmed as a repeat violation of 29
CFR � 1910.22 (a) (1) with a penalty of $1,000.

2.  Citation 1, item 2(a) is affirmed as a repeat violation of
29 CFR � 1910.305(b) (2) with a penalty of $400.

3.  Citation 2, item 1 is affirmed as an other than serious
violation of 29 CFR � 1903.16(a) with a penalty of $500.

4.  FTA items 1-2(a) and 1-2(b) are affirmed as a violation of
29 CFR � 1910.37(k) (2) and � 1910.37(q) (1) with a penalty of $6,000.

5.  FTA item 1-3 is affirmed as a violation of 29 CFR �
1910.-94(c) (2) with a penalty of $6,000.

6.  FTA item 1-5 is affirmed as a violation of 29 CFR �
1910.-133(a) (1) with a penalty of $5,000.

7.  FTA item 1-6 is affirmed as a violation of 29 CFR �
1910.-213(b) (3) with a penalty of $5,000.

8.  FTA item 1-7 is affirmed as a violation of 29 CFR �
1910.-213(d) (1) with a penalty of $6,000.

9.  FTA items 1-8(a) and 1-8(b) are affirmed as a violation of
29 CFR � 1910.213(h) (1) and � 1910.213(h) (4) with a penalty or $6,000.

10. FTA item 2-1 is affirmed as a violation of 29 CFR �
1903.-2(a)(1) with a penalty of $1,000.

11. FTA item 2-2 is affirmed as a violation of 29 CFR � 1904.-2(a)
with a penalty of $1,000.

12. FTA item 2-3 is affirmed as a violation of 29 CFR �
1910.-141(a) (3) (i) with a penalty of $1,000.

13. FTA item 2-4 is affirmed as a violation of 29 CFR �
1910.-213(p)(4) with a penalty of $1,000.

14. FTA item 2-5 is affirmed as a violation of 29 CFR �
1910.-242(b) with a penalty of $1,000.

15. FTA item 2-7 is affirmed as a violation of 29 CFR �
1910.-1200(f), (g) and (h) with a penalty of $1,000.

16. FTA item 2-8 is affirmed as a violation of 29 CFR �
1910.-1200(g) (1) with a penalty of $1,000.

17. FTA item 2-9 is affirmed as a violation of 29 CFR �
1610.-1200(h) (1) and (2) with a penalty of $1,000.

Irving Sommer

Judge, OSHRC

DATED: Sep 5, 1989

Washington, D.C.

ADDENDUM

FAILURE TO ABATE:  CITATION ONE

ITEM ALLEGED VIOLATION

2(a)    29 CFR 1910.37(k) (2) in that means of egress were not
continuously maintained free of obstructions or impediments to allow instant use in case
of fire or other emergency.  Four exit doors remained blocked by materials impeding
egress.

2(b)    29 CFR 1910.37(q) 91) in that four exit doors were not marked by
readily visible exit signs.  Items 2(a) and 2(b) were grouped and a proposed
additional penalty of $6,000 was assessed for both.

3    29 CFR 1910.94(c) (2) in that spray finishing operations were still
not located as provided in �� 201 through 206 of the "Standard for Spray Finishing
Using Flammable and Combustible Materials, NFPA No. 33-1969.  Thus, creating the
hazard of lack of adequate ventilation and the presence of non-explosive proof wiring.
  A proposed additional penalty of $6,000 was assessed.

5    29 CFR 1910.133(a) (1) in that protective eye equipment was not
required where there was a reasonable probability of injury.  Employees were not
wearing eye protection while working around woodworking machinery and operating
staple-nail gun.  A proposed additional penalty of $5,000 was assessed.

6    29 CFR 1910.213(b) (3) in that provisions were not made to prevent
woodworking machines from automatically restarting upon restoration of power after a power
failure.  The complaint alleged that the following 6 woodworking machines did not
have magnetic switches:

(1)    One Horizontal Belt Sander;

(2)    One Sterling Band Saw;

(3)    One Rockwell Table Saw;

(4)    One DeWalt Radial Saw;

(5)    One Delta Chop Saw; and

(6)    One Makita Chop Saw.

A proposed additional penalty of $5,000 was assessed.

7    29 CFR 1910.213(d) (1) in that circular hand-fed cross cut table
saws were not guarded by an automatically adjusting hood which completely enclosed that
portion of the saw above the table and the material being cut.  The complaint alleged
that the following 3 cutting blades were not guarded:

(1)    One Delta Unisaw;

(2)    One Powermatic Saw; and

(3)    One Rockwell Saw.

A proposed additional penalty of $6,000 was assessed.

ITEM      ALLEGED VIOLATION

8(a)    29 CFR 1910.213(h) (1) in that the sides of the lower exposed
portion of the blade of radial saws were not guarded to the full diameter of the blade by
a device that automatically adjusts itself to the stock and remains in contact with the
material being out.  The complaint alleged that the following 3 woodworking saws had
unguarded lower blades:

(1)    One DeWalt Radial Saw;

(2)    One Delta Chop Saw; and

(3)    One Makita Chop Saw.

8(b)    29 CFR 1910.213(h) (4) in that the DeWalt Radial Saw were not
installed so as to cause the cutting head to return gently to the starting station when
released by the operator.  Items 8(a) and 8(b) were grouped and a proposed additional
penalty of $6,000 was assessed.

FAILURE TO ABATE: CITATION NUMBER TWO

1    29 CFR 1903.2(a)(1) in that there was yet no OSHA poster posted to
inform employees of the rights and obligations provided for in the Act.  A proposed
additional penalty of $1,000 was assessed.

2    29 CFR 1904.2(a) in that a log of all recordable occupational
injuries and illnesses (OSHA form No. 200 or equivalent), was not maintained for the years
1985 through the present.  A proposed additional penalty of $1,000 was assessed.

3    29 CFR 1910.141(a) (3) (i) in that places of employment were not
kept clean to the extent the nature of the work allowed. The men's toilet facility was not
clean or sanitary, and hand not been kept clean.  A proposed additional penalty of
$1,000 was assessed.

4    29 CFR 1910.213(p) (4) in that a horizontal belt sander did not
have a guard provided at each nip point where a sanding belt ran onto a pulley to prevent
the operators hands or fingers from coming into contact with nip points.  A proposed
additional penalty of $1,000 was assessed.

5    29 CFR 1910.242(b) in that compressed air used for cleaning
purposes was not reduced to less than 30 p.s.i. and employees were using these hoses to
clean off their clothes.  A proposed additional penalty of $1,000 was assessed.

7    29 CFR 1910.1200(e) (1) in that the employer had not developed or
implemented a written hazard communication program which at least described how the
criteria in 29 CFR 1910.-1200(f), (g), and (h) would be met.  A proposed additional
penalty of $1,000 was assessed.

ITEM    ALLEGED VIOLATION

8    29 CFR 1910.1200(g) (1) in that the employer still did not have a
material safety data sheet (MSDA) for each hazardous chemical used including, but not
limited to Weldwood Contact Adhesive.  A proposed additional penalty of $1,000 was
assessed.

9    29 CFR 1910.1200(h) in that the employees were still not being
provided information and training as specified in 29 CFR 1910.1200(h) (1) and (2) on
hazardous chemicals in their work area at the time of their initial assignment and
whenever a new hazard is introduced into their work area.  A proposed additional
penalty of $1,000 was assessed.

FOOTNOTES:

[[1]] The notification of failure to abate involved 15 standards: 1.) 29 C.F.R. �
1910.379k)(2) (obstructed exists); 2.) 29 C.F.R. � 1910.37(q)(1) (unmarked exits);3.)
C.F.R. � 1910.94(c)(2) (failure to meet spray-finishing area requirements); 4.) 29 C.F.R.
� 1910.133(a)(1) (failure to wear protective eye equipment); 5.) 29 C.F.R. � 213(b)(3)
(six power woodworking machines not provided with switches to prevent restarts upon
restoration of power after power failure); 6.) 29 C.F.R. � 1910.213(d)(1) and (h)(1)
(unguarded power saw); 7.) 29 C.F.R. � 1910.213(h)(4)(power saw not provided with
automatic return);8.)29 C.F.R. � 1903.2(a)(1) (failure to post OSHA notice); 9.) 29
C.F.R. � 1904.2(a) (failure to maintain a log of injuries/illnesses); 10.) 29 C.F.R. �
1910.141(a)(3)9i) (unclean toilet facility); 11.) 29 C.F.R. � 1910.213(p)(4) (unguarded
belt sander); 12.) 29 C.F.R. � 1910.242(b) (compressed air in excess of 30 psi); 13.) 29
C.F.R. � 1910.1200(e)(1) (no hazard communication program); 14.) 29 C.F.R. �
1910.1200(g)(1) (no Material Data Sheet for adhesive); 15.) 29 C.F.R. � 1910.1200(h)
(training and information on hazardous chemicals not provided).

The repeat citation alleged violations of 1.) 29 C.F.R. � 1910.22(a)(1) (working area
of trim saw cluttered with debris) and 2.) 29 C.F.R. � 1910.305(b)(2) (no cover for
electrical receptacle box).  The other-than-serious citation alleged a violation of
29 C.F.R. � 1903.16(a) (failure to post citations of violations).

[[2]] Section 3(5) of the Act defines "employer" as "a person engaged in
a business affecting commerce who has employees."  Section 3(6) of the Act
defines "employee" as "an employee of an employer who is employed in a
business of his employer which affects commerce."

[[3]] In its brief, Loomis states that in August, 1989, the Eastview entity was
replaced by an entity known as the "Empire Cabinet Company."  Loomis claims
that its business relationship with Empire is essentially the same as the Eastview
relationship for purposes of this case.

[[4]] This case arose during the period from 1987 to 1989 when California's
Occupational Safety and Health Administration (CAL-OSHA) was not in operation. Future
enforcement of the Act at Loomis would be left to CAL-OSHA.

[[5]] Mr. Loomis testified that some of the workers, but not the partnership, do
"a little business on the side," but that the work could not be done on business
hours because Loomis has an exclusive contract with the partnership.

[[6]] When Mr. Loomis was questioned about whether the partnership was formed to
"get out from under federal OSHA", he responded that it "didn't even enter
into any reason why we did it," although he did admit that the members were aware of
the first OSHA inspection and that some of the senior people knew that penalties had been
assessed.

[[7]] There is no documentary evidence detailing the nature of Eastview as it existed
before September 1, 1988, the date an "Amended Partnership Agreement for Eastview
Cabinet Company A California Partnership" was executed.

[[8]] The Amended Partnership Agreement reflects the cash contribution each partner
made in an amount proportional to his ownership interest. The total capital contribution
collected from all the partners amounted to $1000.

[[9]] Although the Secretary brought Darden to our attention, neither party
has briefed its applicability to the facts of this case.  Without expressly finding Darden
applicable, we conclude that the result would be the same under either test.

[[10]] When questioned on how raises are given, Mr. Loomis testified as follows:

Well, the contract's up at the end of the year.  See, if you, I
know they're going to try to dig into my 25 percent.  So I'm going to have to guard
against that.  But the guys, you know, they probably will have to negotiate with me,
which I.m not going to budge on.    

But then they can negotiate with the rest of them about, because
basically, what happens is that if there's a guy that's level two and he wants to be level
three, the guys in four, five, six and seven got to give him some of their money.  
And basically, they, they don't know this, I'm not going to let them know, is that levels
one through four could really, they could gang up on the five's, six's and seven's and out
quote them and take a bunch of their money.