Unarco Commercial Products

Plain-English summary

Unarco manufactured shopping carts on an automated electroplating line in Wagoner, Oklahoma. Employees sometimes stood on narrow PVC pipes, copper anode rails, or carry arms to retrieve parts that had fallen into chemical tanks, and one employee had suffered serious burns after falling into a tank. OSHA alleged a willful violation of the guardrail standard for open-sided platforms and proposed an $8,000 penalty. The Commission nevertheless affirmed vacation of the citation because the cited objects, only a few inches wide and not built or rigged as working spaces, were not “platforms” under the standard's definition. It also rejected OSHA's alternative theory that the provision required Unarco to construct new platforms, explaining that the cited rule only required guardrails on existing platforms.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.23(c)(3).
• Outcome: Vacated. The Commission affirmed the ALJ's vacation of the alleged willful violation and its proposed $8,000 penalty.
• Key point: An unsafe foothold does not become a platform merely because employees use it while working, and a rule requiring existing platforms to be guarded does not itself require an employer to build a platform.

Full text (OSHRC public release)

      OCCUPATIONAL SAF~N~~~E~~~~~c~~“,EW                        COMMISSION
                                 One Lafayette Centfe
                           1120 20th Street, N.W. - 9th Floor
                              Washington, DC 20036-3419

                                                                                FAX
                                                                                COM (202) 6os5050
                                                                                FTS (202) 606-5050

~ ~~
.
.
SECRETARY OF LABOR, ..
.0
Complainant, ..
0.
v. .. OSHRC Docket No. 89-1555

UNARCO COMMERCIAL PRODUCTS,

                    Respondent.



                                      DECISION

BEFORE: FOULKE, Chairman, and MONTOYA, ,Commissioner.
BY THE COMMISSION:
Unarco Commercial Products (“Unarco”) manufactures shopping carts in Wagoner,
Oklahoma. The carts are electroplated with a nickel-chrome finish on an automated
electroplating line. As the result of a complaint that employees were exposed to the hazard
of falling into a tank filled with hot water and chemicals, the Secretary of
. Labor, acting
through a compliance officer of the Occupational Safety and Health Administration
(“OSHA”), inspected Unarco’s plant. As a result of this inspection, the Secretary issued
citations alleging, among other things, a willful violation of the safety standard found at 29
C.F.R. 0 191023(c)(3), which requires employers to guard open-sided floors, walkways,
 2

platforms, and. runways with a standard guardrail.’ The Secretary proposed an $sooo
penalty for this violation.
Unarco timely contested the citation and a hearing was held before an administrative
law judge of the Occupational Safety and Health Review Commission (“the Commission”).
The judge found that the surfaces on which Unarco’s employees stood were not “platforms”
within the definition of that term found at. 29 C.F.R. 8 1910.21(a)(4).2 He therefore
concluded that section 1910.23(c)(3) did not cover the situation cited and vacated the
citation. The Secretary petitioned the Commission to review the judge’s decision, and review
was directed pursuant to section 12(j) of the Occupational Safety and Health Act of 1970
(“the Act”), 29 U.S.C. 0 661(j). Having reviewed the entire record in this case, we find that
the judge did not err in vacating the citation. We therefore affirm his disposition.
BACKGROUND
Unarco employs approximately 500 employees at its Wagoner plant and has a number
of electroplating operations, including two nickel-chrome-plating lines and a zinc-plating
operation. The automated line at issue contains thirty-two different tanks, 6-8 feet deep and
6-7 feet wide, which are arranged in a “U” shape. Walkways or catwalks located on each
side of the line approximately 42 inches below the-tops of the tanks extend the length of the
line. A safety cord to stop the machinery runs the length of the walkway.

1 That standard provides:

    9 1910.23 -Guarding floor and wall openings and holes.
    ....
    0C                  Protection of open-sidedfloors, plafoms,    and mnways.

    & kegazdks of height, open-sided floors, walkways,platforms, or runways above or adjacent
    to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards
    shall be guarded with a standard railing and toe board.
                                                                                             .

2 29 C.F.R. 5 1910.21(a)(4) provides:

    5 1910.21 Definitions.
    0a       As used in 5 1910.23, unless the context requires otherwise, floor and wall opening,
    railing and toe board terms shall have the meanings ascribed in this paragraph.
    .     .   .   l




    (4)
            Plafom.    A working space for persons, elevated above the surrounding floor or
    ground; such as a balcony or platform for the operation of machinery and equipment.

3
A nm& of the chemicals used in the plating process can cause bums or skin
irritation. Because various chemical reactions must occur or must be prevented from
occurring in order for the plating process to be effective, the contents of some of the tanks
must be kept at or near a particular temperature. The temperatures in some of the tanks
range from 140-1600 F. To protect its employees from the hot water and the chemicals used
in the plating process, Unarco provides them with personal protective equipment, including
rubber boots, protective aprons, gloves, and safety goggles. There are also drench showers
and eyewash fountains located on the catwalks.
A part is cleaned and rinsed several times to prepare it to be plated. In fact, the first
sixteen tanks in the automated line are all devoted to the cleaning process, including a soap
cleaning tank, two acid cleaning tanks, two electro-cleaning tanks, a cyclex cleaning tank, and
a number of rinse tanks. After a part has been cleaned, it is plated, first with nickel, then
with chrome.
Most of the tanks in the automated line have a capacity of approximately 26,000
gallons, but the nickel-plating tank, which is the seventeenth tank in the line, comprises
about 40 percent of the entire line and is by far the largest tank in the automated line.
While a part may be in other tanks only briefly, it spends seventeen minutes in the nickel-
plating tank. After a part comes out of the nickel-plating tank, it goes through two rinse
tanks, then into the chrome-plating tank, which is followed by at least three additional rinse
tanks. Some of the tanks, including the nickel tank, have PVC pipes extending over the side
of the tank to the bottom of the tank. Air is forced through these pipes so that it will
“bubble up” and agitate the chemicals in the tank. In the plating tanks there are 3 copper
bars, called anode rails, whose purpose is to carry the electric current necessary for the
plating procew to occur. The anode rails run parallel to each other approximately 24-28
inches apart, with one rail running along each side of the tank and one running down the
center of the tank.
Parts to be plated are placed on “carry arms” at the beginning of the line and
transported on a conveyor system which lowers the parts into each tank, lifts them out,
transports them to the next tank, and continues this procedure until the plating process is
completed.
 4

      On occasion, parts fall off the carry arms into the tanks and have to be retrieved by

Unarco’s employees. Sometimes employees retrieve the parts by standing on the catwalk
and leaning over the edge of the tank to fish the part out of the tank with a “J-hook,” a 6-8-
foot pole with a hook on the end. At other times, however, the employees cannot reach the
fallen part from the catwalk. On those occasions. thev climb up onto the tanks and stand
I I J A

on the anode rails, the PVC air pipes, or the carry arms. These surfaces are often wet and
can be slippery. Consequently, Unarco’s employees occasionally slip, and it is not
uncommon for an employee’s foot to slip into a tank. On one occasion, an employee
actually fell into the chrome-plating tank and had his legs badly burned, requiring skin grafts
that caused him to miss two and a half months’ work.
On these facts, the Secretary concluded that the surfaces on which Unarco’s
employees stood during the retrieval process, that is, the PVC pipes, the copper anode rails,
and the carry arms on which the items to be plated are hung, were “platforms” within the
contemplation of the standard and must be equipped with standard guardrails, which, under
the requirements of 29 C.F.R. 9 1910.23(e), include a top rail 42 inches high, and an
intermediate rail, and be capable of withstanding at least 200 pounds of pressure.

                          THE ELEMENTS OF A VIOLATION
      In order to prove that an employer violated an OSHA standard, the Secretary must

prove that: (1) the standard applies to the working conditions cited, (2) the terms of the
standard were not complied with, (3) employees had access to the violative conditions, and
(4) the employer knew of the violative conditions or could have known with the exercise of
reasonable diligence. Ki&a Constr. Mgt. Cop., 15 BNA OSHC 1870, 1992 CCH OSHD
li 29,829 (No. 884167, 1992); Astra Phamaceutical prods., Inc., 9 BNA OSHC 2126, 1981
CCH OSHD ll 25,578 (No. 78-6247, 1981), afd, 681 F.2d 69 (1st Cir. 1982). The first
question we must decide, therefore, is whether the standard applies to the working
conditions cited.
 5

                                       ARGUMENTS
   The Secretary contends that the standard does apply, asserting that “the various

surfaces employees were forced to stand on while retrieving fallen parts -- including carry
arms, pipes, and railings” should be considered platforms. He claims, “that [tlhere can be
no question that each of these precarious vantage points was being used as a surface from
which employees were either required or allowed to perform the parts retrieval task.” The
Secretary notes recent Supreme Court precedent that “clearly establishes that the Secretary’s
constructions of the statute are controlling if reasonable,” citing Martin v. OSHRC (CF&I
Steel Cop.), 499 U.S. 144 (1991) (“CFM”). He points to OSHA Instruction STD l-1.13 as
the most specific articulation of his interpretation of a platform as:
1 Any elevated surface designed or used primarily as a walking or
working’surface, and any other elevated surfaces upon which employees are
required or allowed to walk or work while performing assigned tasks on a
predictable and regular basis.

           2      Predictable and regular basis means employee functions such as,
               l
    but not limited to, inspections, service, repair and maintenance which are
    performed:
           a.     At least once every 2 weeks, or
           b      For a total of 4 man-hours or more during any sequential 4-
    week period (e.g., 2 employees once every 4 weeks for 2 hours = 4 man-hours
    per 4-week period).

OSHA Instruction STD l-1.13, Fall Protectionin General Indushy, 8 F, (April 16,1984). The
Secretary asserts that he has reasonably determined that employee safety is better assured
by requiring that employees who must routinely retrieve parts from the tanks be provided
with a properly guarded platform from which to work. He contends that this determination
is based on a longstanding construction of the applicability of the fall standard to working
surfaces. The Secretary claims that to narrowly interpret the term platform would be to
place the very worst of the conditions the standard was intended to correct outside the
standard’s scope. He points to Donovan v. Anheuser-Busch, Inc., 666 F.2d 315 (8th Cir.
1981) a “factually similar case” in which the Eighth Circuit adopted the Secretary’s broad **
interpretation, noting that cmplovee
I protection would be little served by a narrow
interpretation.
 6

      The w            argues that while his interpretation     has been longstanding       and

consistent, the Commission has been inconsistent. Citing the Commission’s decisions in
General EZec. CO.,10 BNA OSHC 1144,1145-46,198l CCH OSHD Yl25,736, p. 32,100 (No.
76-2879, 1981)(“’mcongruous to characterize a narrow ledge less than two feet wide” as a
platform) and Globe Iizdzu.,10 BNA OSHC 1596,1982 CCH OSHD ll 26,048 (No. 77-4313,
1982)(conveyor not a platform), the Secretary laments that there is “[vlery little if any
conceptual framework under[lying] the Commission’s alterations in its views.” He also
claims that reliance on these cases is no longer tenable in light of CF&I Steel.
In his reply brief, however, the Secretary has changed his position; putting forth a new
argument, that the cited standard requires Unarco to establish proper platforms, complete
with guardrails, from which the employees could perform parts retrieval. He submits that
this explanation reflects a longstanding and carefully elucidated interpretation of the term
platform. He claims that the necessity for such an interpretation is established by the long
history of Unarco’s employees’ slipping, and the resultant partial immersion, which exposes
them to the hazard of both thermal and chemical bums. The ‘Secretary asserts that parts
retrieval is an integral, predictable, and unavoidable part of the plating process which
Unarco’s supervisors not only know about but also assist in. The Secretary agrees with
Unarco that the PVC pipes and “greasy struts” are “far removed from the ordinary
conception of a working surface,” but asserts that this merely emphasizes the need to apply
the standard here, because it would be ludicrous and contrary to the intent of the Act to
construe the standard so as not to reach the worst violations, where protection is needed
most. The Secretary argues that the standard is not vague, that it gives the exact
requirements for guarding platforms, and that any vagueness was cured by Instruction STD
l-1.13.
The Secretary quotes the Fifth Circuit’s remarks in Corbesco, Inc. v. Dole, 926 F.2d
422 (5th Cir. 1991), that sources of information outside the standard may clarify the
requirements and applicability of a standard, including a Commission interpretation, industry
practice, the injury rate, and the obviousness of the hazard, asserting that the Secretary’s
litigation positions in the past should have put Unarco on notice of this interpretation.
 7
A~~LI~~ILIT~ OF 29 C.F.R. 6 1910.23(c)(3)
Whether the cited surfaces are platforms within the meaning of the standard is a
question of fact. See Superior Elec. Co., No. 91-1597, slip op. at 5 (Dec. 8, 1993). Section
1910,23(c)(3) clearly requires that if employees are working from a platform over a
galvanizing tank, the platform must be equipped with a standard railing or the equivalent.
The term “platform” is defined in section 1910.21(a)(4) as “[a] working space for persons,
elevated above the surrounding floor or ground; such as a balcony or platform . . . .” From
our review of the language and structure of section 1910.23(c)(3), we cannot discern how the
standard can be read to apply to these “slick and greasy” anode rails, PVC pipes and carry
arms, none of which are more than a few inches in diameter or width. These objects clearly
cannot be considered platforms. They were neither built nor rigged to serve that purpose.
They merely served on occasion as convenient footholds from which Unarco’s employees
were able to retrieve objects from the tanks. While Unarco’s reliance on this practice to
keep its plating process running smoothly may be ill-advised, particularly in light of the
injuries received by employees who engaged in the practice, Unarco’s indifference to the
safety of its employees does not render these footholds platforms. The Secretary’s citation
here appears to be an attempt to push Unarco into halting a clearly unsafe practice by
whatever means were available, but we see no likelihood that any of these objects could be
fitted-with guardrails or that the automated line could operate with guardrails in place. It
is well established that a statute or, in, this case, a standard must be construed so as to avoid
an absurd result. E.g., Grifln v. Oceanic Contractors,Inc., 458 U.S. 564 (1982). Although we
appreciate that the Secretary would like to use the widest possible net to expand the
protection required by this standard, 66[a]n elevated flat surface does not automatically
become a “working space” and a “platform” merely because employees occasionally set foot
on it while working.” General Elec. Co. v. OSHRC, 583 F.2d 61, 64, (2d Cir. 1978). We
believe the Secretary would have been better advised to proceed under some other standard
or provision of the Act, for example 29 C.F.R. 8 1910.28 might provide a more appropriate
remedy.
It is well settled that the test for the applicability of any statutory or regulatory
provision looks first to the text and structure of the statute or regulations whose applicability
 8

is questioned. If no determination can be reached, courts may then refer to
contemporaneous legislative histories of that text. If this inquiry into the meaning of the tea
does not settle the question, the courts then defer to a reasonable interpretation developed
by the agency charged with administering the challenged statute or regulation. Secutities
Indus. Ass’n v. Federal Reserve Sys., 847 F.26 890 (D.C. Cir. 1988), citing Chevron U.S.A., Inc.
v. NRDC, 467 U.S. 837, 842 (1984). Here, we believe that the language of the standard is
sufficiently clear that it is unnecessary to look outside the standard itself.
The Secretary apparently recognized that there were substantial difficulties with his
argument that the cited surfaces were platforms, because he put forth an alternative
interpretation of the standard in his opening brief and relied solely on that second
interpretation in his reply brief. In his reply brief, the Secretary states, “The essential
dispute between Unarco and the Secretary is whether the company was required to erect
platforms over its chemical plating tanks to protect workers from the fall hazard involved
in retrieving fallen parts.” Although the Secretary’s second interpretation avoids the
logistical absurdity of requiring that a guardrail be attached to a short section of plastic pipe,
it finds no support in the language of the cited standard. Nowhere in section 1910.23(c)(3)
do we find. a requirement for employers to construct a platform; the standard merely
requires that existing platforms be guarded. The Secretary’s switch in interpretations is all
the more remarkable because it is made in the same case in which he claims that the
Commission’s lack of a conceptual, framework has resulted in inconsistent Commission
decisions about the meaning of the term “platform.” While the Secretary contends that the
Commission’s reliance on previous cases, in which for example, the Commission held that -
a conveyor belt was not a platform, is no longer tenable in light of CF&Z,his contention fails
to consider the words of the Supreme Court:
In situations in which “the meaning of [regulatory] language is not free from
doubt,” the reviewing court should give effect to the agency’s interpretation
so long as it is reasonable. Ehlert v. United States, 402 U.S. 99, 105 (1971).
CF&I, 499 U.S. 150-51. Here, we do not harbor any doubt that the surfaces the Secretary
cited do not come within the term “platform.” This determination and those we have made
in other cases rely on the conceptual framework provided by the language of the cited
 9
standard and thit definitions of the standard’s terms. The Commission has always looked to
the language of the standard in determining whether a standard applies to the facts of a
case. see Superior EZect?icCo., (3.foot-wide catwalk is a platform); Clement Food Co., 11
BNA OSHC 2120, 1984-85 CCH OSHD lf 26,972 (No. 80-607, 1984)(deck from which
employees added materials to tanks was a platform); wr”lliams
Entep, 11 BNA OSHC 1410,
1983-84 CCH OSHD lf 26,542 (No. 79-843, 1983)(temporary metal decking that employees
use to install next piece of decking not a platform), afd, 744 F.2d 170 (D.C. Cir. 1984);
Brown& Root, Power Plant Div., 10 BNA OSHC 1837, 1982 CCH OSHD ll 26,159 (No.
77-2553, 1982)(flat surface of air duct under construction is a floor or platform); Globe
Indus. (conveyor belt not a platform); General Electric Co. (ledge on turbine shell is not a
platform).
Anheuser-Busch, relied on by the Secretary, does not require a different result. There,
the Eighth Circuit stated that the broad remedial purposes of the Act would not be achieved
by a restrictive interpretation of the term “platform” and that the protection required by the
.
standard should be extended to “those elevated surfaces where employees work and which
in the reasonable judgment of the Secretary need protection from injury by guardrails.”
666 F.2d at 327. The court also stated that standards should be given “a reasonable,
commonsense interpretation.” Id. at 326. The surfaces cited in that case, which were
basically flat and which could have been equipped with guard rails, were clearly surfaces
covered by the definition of “platform.” Here, as we have already noted, Unarco is
ill-advised to require its employees to continue to reach into the tanks by standing on these
pipes, carry arms and anode rails. However, that fact does not make section 1910.23(c)(3) .
the applicable standard to protect those employees. Moreover, even if it were necessary to
carry our analy& further, we would have no reluctance in holding that to call these objects
platforms is not a ‘freasonable commonsense interpretation” of the term platform. Based
on its text and structure, we can only conclude that section 1926.23(c)(l) does not apply to
the cited rails, pipes and carry arms at Unarco’s plant.3

3 The record yields no legislative history so we will omit the second part of the inquiry. In view of our
holding, we also need not consider the Secretary’s deference argument. See, e.g., Howe v. Smith, 452 U.S. 473,
                                                                                                 (continued...)

10

                                         CONCLUSION
     For the reasons given above, the decision of the administrative law judge vacating the

Secretary’s citation alleging a willful violation of 29 C.F.R. 0 1910.23(c)(3) is affirmed!

                                                               Edwin G. Foulke, Jr.
                                                               Chairman



                                                                Velma Montoya

Dated.. December 16, 1993 Commissioner

3(...conti.nued)
483 (198l)(when a stgtute is unambiguous, the inquiry goes no further). However, we conclude that even if
we were to assume mguendo that the regulation was ambiguous, our holding would not change. The standard
of review for arguments invoking deference is whether the Secretary’s interpretation is reasonable, Le.,whether
it “sensibly conforms to the purpose and the wording of the regulation.” CF&f at M-51. We also consider
whether the Secretary has consistently applied the interpretation. Id at 157. It is axiomatic that the
Secretary’s interpretation need not be the best or most natural one by grammatical or other standards. It need
only be reasonable to warrant deference. Pauley v. BethenergyM&es, Inc., 111 S.Ct. 2524 (1991). As we have
seen the Secretary’s interpretation is not reasonable. The plain and natural meaning of the word platform or
working surface does not include plastic piping and copper electrical conductors. The Secretary’s reliance on
two different interpretations in this case also detracts from the reasonableness of the interpretation.

4 In view of our disposition of this case, we need not address whether Unarco had fair notice or whether
Unarco has properly raised and proven the affirmative defense of .infeasibility.
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

                                                                            FAX:

PHONE:
COM (202) 606-5050
COM(202) 6064100
Frs (202) 6o6-4050
Frs (202) 606400

                                             ..

SECRETARY OF LABOR, ..

                 Complainant,

         v.                                         Docket No. 894555

UNARCO COMMERCIAL
PRODUCTS,

                 Respondent.                 ..




                                NOTICE OF COMMISSION             DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
December 16,1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL VVITEITHE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 PAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 0 660.

                                                    FOR THE COMMISSION

December 16, 1993
Date
Executive Secretary
Docket No. 89-1555

NOTICE IS GIVEN TO & FOLLOWING:

Daniel J. Mick, w.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 501
525 S. Griffin Street
Dallas, TX 75202

David M. Curtis, Esquire
Shawn A. Orme, Esquire
Gardere & Wynne
3000 Thanksgiving Tower
1601 Elm Street
Dallas, TX 75201-4761

Stanley M. Schwartz
Administrative Law Judge
Occupational Safety and Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242-0791
 UNITED SLATES &AMERICA
MXUPATIONAL SAFEl-y AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON DC. 20006-l 246

                                                                            FAX:
                                                                            c0$32&02&74000

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 894555
UNARCO COMMERCIAL PRODUCTS
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on MarcE 18, 1992. The decision of the Judge
will become a final order of the Commission on April 17, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secret on or before
April 7, 1B92 in order to ermit sufficient time for its review.Y ee
Commwion Rule 91, 29 E .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revlew Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 634-7950.

Date: March 18, 1992 Ray H.‘Darling, Jr.
Executive Secretary
 DOCKET NO. 89-1555
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re l onal Trial Liti ation
Office of the So%l
                 citor, U.S. DO5

. Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Re l onal Solicitor
O&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘&ite SO1
Griffin & Youn Streets
Dallas, TX 752db



David M. Curtis, Es .
Godwin, Carlton & 41azwell
3300 NCNB Plaza
901 Main Street
Dallas, TX 75202 3714



Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an d Health
 Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dab, TX 75242 0791




00102248549:06

UNITED STATES OF AMERICA

       OCCUPATIONAL              SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, ..

      Complainant,

             v.                              ..     OSHRC DOCKET NO. -89-1555

UNARCO COMMERCIAL
PRODUCTS,

      Respondent.

Appearances:

      Brian L. Pudenz, Esquire                      David M. Curtis, Esquire
      Dallas, Texas                                 Dallas, Texas
      For the Complainant.                          For the Reswndent.

Before: Administrative Law Judge E. Carter Botkin

                                    DECISION AND ORDER

      This is a proceeding       brought before the Occupational     Safety and Health Review

Commission (“the Commission”) pursuant to 0 10 of the Occupational Safety and Health
Act of 1970, 29 U.S.C. 0 65 1 et seq. (“the Act”).
On March 29-30, 1989, the Occupational Safety and Health Administration
(“OSHA”) conducted an inspection of Respondent’s facility located in Wagoner, Oklahoma,
pursuant to a complaint that employees were exposed to falling into tanks used in the
facility’s electroplating process. The inspection resulted in the issuance of three citations:
one serious, one “other” and one willful. The parties settled all items of the serious and the
“other” citation. Subsequently, a partial settlement agreement was filed which meets the
requirements of the Commisision. It is approved and incorporated by rmnce.
, A hearing
was held January 30-31, 1990, in regard to the willful citation. This citi&~, which alleges
a violation of 29 C.F.R. 8 1910.23(c)(3), is discussed below.
 The Evidence b

         The record shows that since early 1987, Respondent’s             facility has had an automated

electroplating line which plates parts such as shopping cart handles and frames with nickel
and chrome. The line has 32 separate tanks, arranged in a U-shape, which are six to eight
feet deep and six to seven feet wide. They sit on the floor, and there is a railed walkway
adjacent to them which goes all the way around the operation. The-walkway is about 42
inches below the tank tops, and there are eyewash and shower facilities cm the walkway on
both sides of the operation. (Tr. 23-26; 33; 39-43; 48; 100; 138; 142; 161; 182; 217; 261-64;
. C-1-3; R-4).
The line operates by means of carry arms, designated “A” in C-2, which convey the
parts to be plated through each of the tanks on the line. Employees hang the parts on racks
on the arms at the beginning of the line, and the arms lower and raise the parts in and out
of the solutions in the tanks as they proceed along the line. The parts go through cleaning,
acid and rinse tanks, then through the nickel tank, through more rinse tanks and the chrome
tank, and then through the final rinse tanks.’ The operation can be shut down at any time
by pulling the emergency stop cable that runs the entire length of the line. (Tr. 27-32; 63-66;
71-72; 76; 94-95; 100-03; 131; 139-42; 18890; 214-20; 236-37; C-2; R-4).
Some of the tanks on the line are kept at temperatures between 140 and 160 degrees
fahrenheit. The nickel tank, as shown in C-3, is a large U-shaped tank making up about
40% of the line.2 It is kept between 140 and 156 degrees and contains, per each gallon of
water, 35 ounces of nickel sulfate, ten ounces each of nickel and nickel chloride, six ounces
of boric acid, one ounce of anti-brighteners and less than one ounce of sulfuric acid. (Tr.
26-27; 51-52; 168-69; 176-78; 192; 241-43; 261-67; 303; 312-13; 320).
C-l-2 depict a portion of the nickel tank, and C-2 shows a part, designated “E,”
hanging from one of the arms coming out of the nickel solution. C-2 also shows three green
anode rails3 with hooks on them running the length of the tank; two are on the sides, and

     ‘The rinse tanks contain clear water. (Tr. 139-41).

     2Parts are in the nickel solution for approximately 17 minutes. (Tr. 100).

     ?he anode rails carry the electrical current necessaryto the electroplating proms. ’frr. 103; 145; 313-

14).
 3

the other, designated “B,” is in the center. The rails are copper and are 24 to 28 inches
apart where they appear in C-2; they.are somewhat farther apart at the curved part of the
tank. The pipe marked “C” in C-2 is a discharge line, and those marked “C-prime” are
PVC pipes which provide air agitation. (Tr. 73-77; 101-03; 107-10; 122-23; 182; 236-41; 271.

72) .
The record further shows that since the inception of the line’s option, parts have
fallen from the arms into the tanks; when this happens, employees retrieve the parts. (Tr.
61-69; 99; 104; 107-08; 112-13; 162-66; -183-86; 245-47). Four employees who have worked
on the line testified in this regard, as set out below.
Albert Gutierrez has worked as a racker and hoist operator on the line since June,
1988. He testified that parts can fall into tanks from zero
. to four or five times during an
eight-hour shift. He also testified that while it can take less than four minutes to get one
part out, it can take up to 30 minutes to retrieve all of the parts that have fallen into a tank.
Gutierrez said he climbs up the metal grill or the PVC pipe shown in C-2 to retrieve parts;
a ladder is not provided, and climbing is difficult because the cable is in the way and there
is nothing on which he can balance himself. He then steps from the side of the tank to the
anode rails or the carry arms, from which he uses a’long hook to retrieve the part; again,
there is nothing on which he can balance himself, and the arms have grease on them and
may be moving. Gutierrez noted retrieval can be difficult, especially if several parts are
tangled up together, and that a supervisor or another employee always helps him. (Tr. 57;
61-80; 93-95).
Gutierrez said he had never fallen into a tank when retrieving parts, but that he had
slipped many times and had gotten both feet into the chrome tank. He noted employees
were told to get to a shower and wash off if this occurred, that the hazards of the chemicals
had been explained, and that protective equipment and instructions in its use were provided.
He also noted he had never been told how to retrieve parts other than being told to get a
hook, climb up on the tank and get the part out. Gutierrez said that while the machine was
sometimes stopped for retrieval, he had been told by supervisors to get parts out when it was
moving. He indicated there were boards provided for retrieval, but that M.had never used
them because the supervisors wanted the parts gotten out quickly and using the boards took
 4

too long. He also indicated there was a platform, but that it was only used when the nickel
tank was drained for maintenance. Gutierrez related that his duties had not changed since
the inspection, that he had never been disciplined because of the way he retrieved parts, and
that supervisors such as Craig Jewitt, Dino Vann and David Johnson had seen him perform
this work. (Tr. 69; 80-97).
Dennis Korte is a maintenance technician at the facility; he has been assigned to the
plating department since early 1987. He testified that he performs maintenance on the line4
when the arms get hung up, and that he retrieves parts by crawling up the tank, stepping on
the side, straddling the anode rails and fishing the parts out with a six to eight-foot J-hook.
Korte said the side and rails are wet and slippery, that the rails and arms can have grease
on them, and that the footing on the tanks is not good. He also said getting a part out can
be quite a struggle if it has hooked onto the mat at the bottom of the tank. Korte said parts
have fallen into all of the tanks, and indicated retrieval occurs more or less daily. (Tr. 98-99;
104-09; 112-13; 117-18; 146).
Korte further testified that he had retrieved parts while the machine was moving,
particularly when the supervisor was concerned about production, and that he had seen
employees trying to do so on the nickel tank the evening before in the presence of Craig
Jew&t. He said his duties had not changed since the inspection, that he had never been
disciplined for the way he retrieved parts, and that supervisors such as Jewitt, Ernie Barnes,
David Johnson and Dino Vann had both seen and helped him retrieve parts. He also said
he knew employees had complained about the condition, but that there was usually no other
way to retrieve parts. Korte noted he and other employees used two-by-twelve boards on *
occasion to retrieve parts, but that the hooks on the rails did not provide a level surface and
using the boards was not always possible. He also noted a large railed platform was built
after the inspection but was not feasible; it was only good for the nickel tank and was so
heavy that four employees, two of which had to be on top of the tank, were required to lift
it. (Tr. 99; 118-27; 131-33; 146-48).
Korte said he had seen an employee get his leg into the nickel tank up to his knee

4Kortereferred to the line as both a nickel plating and nickel-chrome plating opwaticm. (Tr. 100; 135).
 5

shortly after the line began operating. He observed that although he did not view any
injuries that might have resulted from that incident, he had seen rashes or redness caused
by splashes from tanks on the line. He also observed that while he attended weekly safety
meetings as a member of the facility’s hazardous material team, he had never been trained
about climbing up on top of the tanks other than being told to be careful. Korte knew
employees working on the line were provided protective gear and s&ety instruction,
including instructions about using the wash stations, but did not know if they were told parts
retrieval was a two-person operation. (Tr. 111-12; 123-24; 127-30; 146-50).
Nugene Warren has worked at the facility since August 1, 1989; he is currently a
laborer. He testified that on November 2, 1989, after having worked in the plating area for
about a month, he was injured in Tank T-4. He explained that he was retrieving parts from
the tank while standing on the anode rails when he fell in. His supervisor helped him out
and he got under a shower within two to three minutes, but he was burned from the waist
down; he required skin grafts and was off work until January 15,199O. Warren did not know
the specific chemicals in the tank, but he thought it was a cleaning tank; he knew its contents
were kept at about 151 degrees because part of his job involved taking the temperatures of
the tank solutions. (Tr. 159-70; 174-75).
Warren further testified that although Tank T-4 is at the beginning of the line, he
worked the entire line and retrieved parts from any tanks into which they fell. He said this
occurred about once per shift, when a regular employee was loading,’ and that he retrieved
parts by climbing up the tank as best he could and standing on the carry arms or anode rails,
which could have grease on them. He also said that no ladder was provided, and that he
had never used or been aware of any boards to retrieve parts. Warren noted that when he
retrieved parts, he was assisted by the employee loading parts or his supervisor, Reginald
Vann. (Tr. 160-67; 171-74).
Lewis Hawley is currently a material handler in the facility’s warehouse;
. he worked
on the line6 as a racker, hoist operator and lead person from about March 30, 1989, to

51fa new number employee was loading, it would average once every 30 minutes RI 2 Bours, (Tr. 163).

6Hawleyreferred to the line as a nickel-chrome plating operation. (Tr. 181-82; 187-89; 193).
 6

October 23, 1989. Hawley testified he was never instructed about how to get up on the
tanks, but that he was told that pulling parts out was part of his job. He said he retrieved
parts with a long hook from the anode rails, and that when he did so he was assisted by
another employee or his supervisor, Craig Jewitt. Hawley noted that personal protective
equipment was provided, but that its use was never enforced and he was not aware of it for
his first several months on the line. He also noted he had attended a safety class which
included a “right-to-know” video when he was first hired, but that he had attended no safety
classes since then. (Tr. 181-85; 194-96).
Hawley further testified that one of his legs was injured when his legs slipped into
Tank T-5, the second cleaning tank on the line; his foot also slipped into the nickel tank, but
he stuck it into’ a rinse tank and it was not burned. Hawley was aware of no one else
slipping into or being injured in the nickel tank. He said on one occasion, he and other
employees spent almost three hours over the tank after a part hooked onto the mat and
pulled it and the air lines up; the operation was shut down, but the nickel solution’s
temperature was maintained. (Tr. 186-87; 190-94).
Ronald Watkins is an OSHA compliance officer (“CO”); he participated in the
inspection and the closing conference, at which David Curtis, Ben Smith and Terry
Crawford, the facility manager, were present. Watkins testified that OSHA’s position during
the conference was that some type -of platform with guard rails was needed, and that in
discussing the hazard OSHA was addressing the whole process and not just one tank.
Watkins said OSHA referred to the line as a nickel plating process during the conference,
and that it was clear OSHA meant the entire process. (Tr. 151-55).
Gerald Durham has 20 years of experience in the metal finishing industry; his
experience includes the design, manufacture, sales, installation and operation of
electroplating equipment. He has a chemical engineering degree, and he has seen many
plating operations throughout the United States. (Tr. 223-34).
Durham testified that he was familiar with Unarco’s line, and that he had seen it in
other facilities. , He considers the line one machine, and said it could be called a nickel
plating machine. He noted that Baker Brothers was the manufacturer;tit the company
had been in business for over 20 years, and that he had never known- it to construct a
 7

walkway or platform above a nickel plating tank. He also noted that he had never seen any
electroplating operation with walkways, runways or platforms above the tanks. Durham said
this was mainly for economic reasons, but that it had never created any safety problems. He
described Unarco’s line as very industry-typical.     (Tr. 234-36; 241-45; 253; 261; 264.65;278-

79).
        Durham further testified that parts falling into tanks is inevitable.    file said parts could
be clamped on the arms so they would not fall off, but that he had not seen this and doing

. so would interfere with production. He also said he was not aware of any operations using
safety harnesses or belts. Durham observed that retrieval is typically done with a hooking
mechanism from the adjacent catwalk, if possible, or from a portable catwalk over the tank.
Durham knew Unarco provided employees with two-by-twelve boards, and noted he had
seen small support platforms of various dimensions used for retrieval. (Tr. 245-48; 255-57).
Durham said he has never seen a platform with railings and toe boards used, and that
installing a permanent platform above the nickel tank would keep it from functioning. His
opinion was that it would not be possible to devise a mechanism to prevent falls during
retrieval that would not interfere with the line’s operation, and that a swing-out type
platform with guard rails would interfere with material flow. However, Durham noted the
operation should be shut down during retrieval. (Tr. 248; 254; 271-72; 279-80).
Durham stated he has never installed nickel plating operations with the subject
standard in mind. He observed that there are no open-sided floors, walkways, platforms, or
runways above the nickel tank, and that it is not a galvanizing tank. He also observed that
a platform is something an employee would work or stand on, and that the arms and rails
are not designed for that purpose. Durham said he has not seen employees working above
tanks on a regular basis, and that the only reasons to be there would be for maintenance or
retrieval. Durham has retrieved parts; he does not consider it life-threatening, but said it
could possibly result in a fall into a tank and an injury. (Tr. 248-54; 257-60; 269-70).
Durham was familiar with the chemical makeup of the nickel solution, but did not
know what the effects of ingestion would be other than a possible thermal bnm. His opinion
was that the solution itself is not hazardous, and that an employee could F-3 hand in it and
rinse it off without any effect. Durham related that the buddy system is the most prominent
 8

safety measure to protect employees, in that if an employee falls into a tank he can be
gotten out immediately. He was not aware of Unarco’s safety record or of employees falling
into tanks, other than an occasional foot splash. Durham said he would be very surprised
if employees were falling into the tanks on a regular basis and sustaining injuries, but that
he would be concerned if there was a chronic problem with such instances. (Tr. 253-54; 265.
68; 275-78).
Alan Segnar has 20 years of experience in occupational safety and health; he has an.
MS in environmental engineering, an undergraduate minor in chemistry and biology, and is
a board-certified safety professional and industrial hygienist. He has been a safety consultant
to Unarco for nine years. (Tr. 290-92; 303-04; 319).
Segnar identified R-1 as Unarco’s procedure for removing parts from the plating
tanks. He testified he recommended the procedure, that it has been in effect for about
three years, and that it requires the operation to be stopped as well as the use of the buddy
system and two-by-twelve walkways. Segnar said the arms and rails on the line are not
designed as walkways, and that he could not recommend they be used as such. He also said
the buddy system requires at least one other person in the area, and that while it would not
prevent a fall it would allow an employee who had fallen in to be pulled out. (Tr. 295-99;
301; 316-17).
Segnar further testified he observes Unarco’s nickel-plating operation about once a
month for two to three hours at a time. Based on what he has seen, an average of five
minutes per hour is spent in retrieval; in his opinion, retrieval is infrequent and not a regular
part of the operation. Segnar said that while he and Unarco are familiar with the standard,
he has never recommended compliance with it in regard to the nickel tank because he does
not believe it applies to plating. He noted he has not seen the standard applied in any of
the plating operations he has visited, and that he has not recommended that Unarco install
a platform or walkway with toe boards or side rails because such a device would render the
machine useless. (Tr. 299-302; 3 10-l 1; 3 18-20).
Segnar said he has observed the use of the wood platforms Unarm built after the
inspection. In his opinion, they are functional but not feasl”ble; t&y me heavy and
cumbersome, and using them reduces maneuverability over the tanks and could cause back
 9

injuries. Segnar noted the platforms could be made of aluminum, as long as they had a
rubber bottom to prevent disturbing the plating process, and that they would be lighter than
the wood platforms if not made of solid aluminum. (Tr. 308-09; 313-16).
Segnar related that Unarco conducts weekly meetings regarding hazardous materials,
and that he himself had conducted “right-to-know” training before the line began operation;
all employees received 16 hours of training, and those working in the plating area were given
24 additional hours of instruction. Segnar said the training had to do with the hazards of
the plating process and the chemicals used, and the use of personal protective equipment,
the buddy system and the showers and eyewashes. Segnar noted that Unarco requested the
services of the Oklahoma (occupational safety and health) voluntary compliance program
in approximately February, 1989, but that those services did not commence until after the
inspection. (Tr. 292-94; 300-01).
Segnar observed that the primary hazard of contact with the nickel fluid would be
thermal burns, but that the solution itself would be toxic if ingested. He noted that falling
into the tank could cause third degree bums, and that even if the employee was not in the
tank for long and got to a shower the solution trapped in his clothing could worsen the injury
and create a much greater chance of absorption of the chemicals, which Segnar described
as “not nice.” Segnar was aware of one case in which an employee named Frank Whithers
allegedly suffered thermal bums in the nickel tank. He did not talk to Whithers, but
understood the bums to be second or third degree; he reviewed the doctor’s report, which
showed bums on the lower ankle or upper foot and injury to the fourth and fifth toes.
Segnar indicated there was some question about the cause of the injury since the rest of
Whithers’ foot was not injured. (Tr. 302-08; 311-12; 320-25).

                                         DISCUSSION

 ’ The      Secretary   has the burden       of proving      each element    of her case by a

preponderance of the evidence. Astro Pharmaceutical Products. Inc., 9 BNA OSHC 2126,

1981 CCH OSHD ll 25,578 (No. 78-6247, 1981), aff’d in Pert hart, 681 F.ZZd69 (1st. Cir,
 10

1982).’ In this case, there is a failure of proof by the Secretary to establish that the cited

. standard applies to the factual situation. In pertinent part, the citation’ alleges a willful

violation of 29 C.F.R. 6 1910.23(c)(3)g as follows:

                 Plant, department 1200; employees were exposed to the-hazard
                 of falling into the nickel plating tank(s) during operations where
                 parts that had fallen from the conveyor were retrieved from the
                 tanks.

        The entire thrust of the Secretary’s case is that employees were required to work on

unguarded “platforms”         adjacent to and above dangerous equipment.”                    A “platform”     is

defined in 29 C.F.R. 0 1910.21(a)(4) as:

                 A working space for persons, elevated above the surrounding
                 floor or ground; such as a balcony or platform for the operation
                 of machinery and equipment.

        The Secretary argues that the controlling definition of a platform is “an elevated

surface used on a regular and predictable basis for a work central to the processes of the

employer.”     (Secretary’s Brief, pg. 2). In so doing, the Secretary relies on the holding of the

Second Circuit in the case of General Electric Co. v. OSHRC, 583 F.2d 61(2d Cir. 1978)?



   ‘Those elements are that (i) the cited standard applies to the factual situation, (ii) there was a failure to
comply with that standard, (iii) there was employee access to the violative condition, and (iv) the cited
employer either knew or could have known of the violative condition with the exercise of reasonable diligence.

    81n essence, the same charge is made in paragraph XXII of the complaint.             ,

    Prhe standard reads as follows:
        Regardless of height, open-sided floors, walkways, platforms, or runways above or adjacent to
dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with
a standard railing and toe board.

    “See Secretary’s Brief, pgs. 2-3.

    llIn that case, the object being considered was the top of an oven where two motors were located which
required occasional maintenance. The top was L-shaped and flat, with approximate -ions          of 10’8” in
height, 20 feet long and 12 feet wide.

11

mile     it is true that the Court emphasized that occasional maintenance       functions were an

insufficient   basis for holding such a surface to be a platform, more importantly,     it stressed

.
one should not strain the natural meaning of words for the purpose of eliminating perceived

safety hazards. l2 There was an expressed concern about employers receiving fair warning

of conduct required OI prohibited by a standard.

         In recent years, the Review Commission has expressed exactly the same concern. In

General Electric Co., 10 BNA OSHC 1144, 1981 CCH OSHD ll 25,736 (No. 76-2879,

1981),13 the Commission held that, despite employee exposure to a fall hazard, it would

be “incongruous” to find that a narrow ledge, less than two feet wide, on a turbine shell was

a “platform.”      Thereafter,   the Commission looked to the “common          understanding”    or

toward a “commonsense        interpretation”    of what constituted a platform when rejecting such

status for the tops of conveyor belts from which employees performed            a weekly cleaning

process. See Globe Industries, Inc., 10 BNA OSHC 1596, 1982 CCH OSHD ll 26,048 (No.

77-4313, 1982).14

         The Secretary    contends that the credible evidence shows the actual method             of

retrieving fallen parts from the tanks required that employers gain access by either climbing

up and onto the outside edge of a tank or onto pipes (PVC or discharge) and stepping onto

and/or straddling anode rails (rods) or carry arms of the machine in order to fish the fallen




   121nso holding, the Court cited the language employed by the Fifth Circuit in the case of Diamond
Roofing Co. v. OSHRC and Usery, 528 F.2d 645.

    ‘%is case inv0 lves the companion standard of 29 C.F.R. 8 1910.23(c)(l).

    1429C.F.R. 0 1910.23(c)(l) was also involved in this case.

12

parts out of a tank with hooks. (Secretary’s Brief, pgs. 2-5)? l6 The Secretary’s reliance

on the agreement by Durham that employees standing on rails and arms transformed them

into platforms is misplaced. (Secretary’s Brief, pg.2). A close reading thereof reflects that

he qualified that statement, apparently realizing its syllogistic nature. (Tr. 259-60).

Moreover, it would not matter who testified that the rails, arms, pipes and edge of tank were

so transformed; one look at the photographic evidence in this case is more than adequate

to overwhelmingly support a finding to the contrary. Any other holding would deprive

Respondent of the required “fair notice.”

    Accordingly, for the above-stated reasons, I conclude that Respondent                 did not violate

the subject standard.”

                                       FINDINGS OF FACT

    All findings of fact relevant and necessary to a determination              of the contested issues

have been found specially and appear above. See Rule 52(a) of the Federal Rules of Civil

Procedure. Proposed findings of fact or conclusions of law that are inconsistent with this

decision are DENIED.

“To the extent that the Secretary’s brief refers to violative conditions involving maintenance, it has not

been considered as a determinative factor regarding the violation as cited. Nether the citation nor the
complaint contain any charge related to maintenance. (Secretary’s Brief, pgs. 2,s). Also see paragraph 1 of
the Secretary’s response to the prehearing order.

16Moreover,it has not been overlooked that the Secretary has shied away from the subject of “boards”

for use in parts retrieval. Undoubtedly, this results from their nature as “scaffolds” under applicable
Commission decisions. See Fleetwood Homes of Texas, Inc., 8 BNA OSHC 2125,198O CCH OSHD 7 24,837
(No. 76-2332, 1980); Cardinal Industries, 12 BNA OSHC 1008, 1989 CCH OSHD ll28,SlO (No. 82-0427,
1989).

“Due   to this decision, it is unneceassary to rule on other issues presented by this c8se.

13

                              CONCLUSIONS OF LAW

   1. At all time material thereto, Respondent was an employer within the meaning of

5 3(5) of the Act, engaged in a business affecting commerce, and having employees.

   2.   The Commission    has jurisdiction    over the parties and subject matter of the

proceedings.

   3. Respondent    was not in violation of 29 CFR 5 1910.23(c)(3).



                                       ORDER

   Upon the basis of the foregoing findings of fact, conclusions of law, and the entire

record, it is ORDERED that:

   1. To the extent that the parties’ proposed findings of fact and conclusions of law are

inconsistent with this decision, they are DENIED.

   2. Item 1 of citation 3, alleging a willful violation of 29 CFR 0 1910.23(c)(3) is

VACATED.

   3. The partial settlement agreement is approved and incorporated        by reference.




                                                              Administrative   Law Judge

Date:MAR10 1947