Kaspar Electroplating Corp.
Commission affirms three machine-guarding violations and vacates drill-press items
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
OSHA cited Kaspar Electroplating after inspecting its Shiner, Texas facility. On review, the Commission rejected Kaspar's argument that the citation was untimely, finding that OSHA issued it within six months of discovering the uncorrected conditions. It also held that a compliance officer may offer non-expert opinions rationally based on personal observations when those opinions help resolve a material issue. Applying that rule, the Commission affirmed serious violations involving an exposed bandsaw blade and a bench grinder with an improperly positioned work rest and missing peripheral guard. It vacated two drill-press guarding subitems because the compliance officer's theory of employee access to internal nip points was speculative. The Commission assessed $120 for each of the three affirmed items, for a total penalty of $360.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.212(a)(3)(ii); 29 C.F.R. § 1910.215(a)(4); 29 C.F.R. § 1910.215(b)(9); 29 C.F.R. § 1910.219(d)(1); 29 C.F.R. § 1910.219(e)(1)(i).
- Outcome: Mixed. The Commission affirmed Items 3, 4, and 5 as serious and assessed $120 for each, while vacating Item 7(a) and (b).
- Key point: A compliance officer's lay opinion may be admitted when it is grounded in personal observation, but unsupported speculation cannot establish reasonably predictable employee access to a hazard.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM (202)6OG5050
Frs (202)606-5050
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC DOCKET NO. 90-2866
KASPAR ELECTROPLATING CORP.,
Respondent. ..
DECISION
BEFORE: FOULKE, Chairman; and MONTOYA, Commissioner.
BY THE COMMISSION:
At issue in this case is whether a Commission Administrative Law Judge erred in
affirming four citation items issued to Kaspar Electroplating Corporation (“I&spar”) for
alleged serious violations of machine-guarding standards promulgated by the Secretary of
Labor under the Occupational Safety and Health Act of 1970 (“the Act”), 24 U.S.C. $5 65 l-
- Kaspar petitioned the Review Commission for review of these four alleged violations.
It argues that: (1) the citation for those violations is barred by the statute of limitations set
forth in section 9(c) of the Act, 29 U.S.C. 0 658(c);’ (2) the judge erred in relying on
opinion testimony by the Secretary’s compliance officer; and (3) no violations were shown
on the merits. For the reasons detailed below, we affirm three serious violations (Item 3,
4, and 5) and the judge’s penalty assessments for those items, and vacate the other alleged
violation (Item 7).
‘That section provides that “[n]o citation may be issued under this section after the expiration of six months
following the occurrence of any violation.”
2
1 l
m&ez t&mjudge e& in ruling that issuance of the citation was not barred by the
imitations provision at 29 U.S.C. 8 658(c)?
On March 19 or 20, 1990, compliance officer Nicke Antonio of the Secretary’s
Occupational Safety and Health Administration (“OSHA”) arrived at Kaspar’s facility in
Shiner, Texas, pursuant to a warrant, which Kaspar had demanded. The warrant was based
on OSHA’s general administrative inspection plan. OSHA’s actual workplace inspection,
however, took place from March 21-23, 1990, due to time spent on legal questions. The
citation was issued on September 20, 1990.
Kaspar argues that the citation is barred because it was issued more than six months
after the alleged violations last occurred. It notes that Antonio did not see any of the cited
machines in operation on the day of his inspection and cites testimony that several of them
had last been used a month or two before the inspection.
The judge held that the limitation period set out at 29 U.S.C. 6 658(c) does not begin
to run until OSHA discovers, or reasonably should have discovered, a violation. He cited,
among other cases, Kaspar Wire Works, Inc., 13 BNA OSHC 1261, 1987 CCH OSHD
II 27,882 (No. 851060, 1987).
The Commission recently reaffirmed that an uncorrected violation may be cited six
months from the time the Secretary discovers, or reasonably should have discovered, the
facts necessary to issue a citation. Johnson Controls,Inc., 15 BNA OSHC 2132,2136, 1993
CCH OSHD ll 29,953, p. 40,965 (No. 89-2614, 1993). See General Dynamics Cop., Electric
Boat Div., 15 BNA OSHC 2122, 2128, 1993 CCH OSHD ll 29,952, pp. 40,9X57 (No.
874195, 1993):
%aspar cites Bravo Corp., 3 BNA OSHC 1085, 1974-75 CCH OSHD li 19,543 (No. 1487, 1975). There, a
citation for failure to comply with spray painting requirements was vacated on the ground that the Secretary
failed to prove that the employer was engaged in spraying the specific paint within &months before the
citation was issued. To the extent that Dravo held that materials not actually used within six months of the
citation are not citable, that case is inconsistent with more recent cases such as K;aspar WiikeWorksand Johnson
Controls. Thus, to that extent it effectivelvd has been overruled. The Secretary need not affirmatively plead or
prove compliance with the six-month limitation, although noncompliancewith that limitation may be raised
as a defense. See, e.g,, General Dynamics, 15 BNA OSHC at 2127 n.lO, 1993 CCH OSHD at p. 40,956 n.10
(29 U.S.C. 5 658(c) is not absolute jurisdictional bar to issuance of citation more than six months after
occurrence of violation, but rather is statutory limitation provision).
3
Here, there is no evidence that the Secretary had any prior notice of the existence
of the alleged violations. As the judge found, the record indicates that the Secretary’s first
opportunity to discover them was when the actual workplace inspection began and that he
issued the citation within six months of that date. As discussed below, the violations we find
in this case (Items 3, 4 and 5) existed at the time of that workplace inspection. Thus, we
find the issuance of the citation timely under 29 U.S.C. 8 658(c) as to those items. Also as
discussed below, we vacate the other item (Item 7) because there is insufficient evidence that
employees had the requisite access to the alleged hazards at any time.3
20 Whether the judge erred in affkming the serious violations on the ground that he
erroneously relied on opinion testimony by the Secretary% compliance officer
The judge relied on testimony by Antonio regarding the cited conditions, including
certain of Antonio’s opinions regarding the hazards presented by those conditions. Kaspar
argues that the judge should not have allowed that opinion testimony because the Secretary
informed Kaspar, in answer to one of its interrogatories, that he did not intend to call an
expert to testify.
Under Commission precedent, opinion testimony by an OSHA compliance officer
may be admissible as non-expert testimony if it is “helpful in the resolution of a material
issue and is based on his personal knowledge.”
s Hamkgton Constz Corp., 4 BNA OSHC
1471, 1472, 1976-77 CCH OSHD ll 20,913, p. 25,109 (No. 9809, 1976). In Hatington, the
Commission ruled admissible an OSHA compliance officer’s opinion testimony as to the
texture of the soil in a trench, including his inferences as to its stability, because that
3Kaspar suggests that there is no affirmative evidence in the record that the citation was actually served on
it within the 6-month citation period. If Kaspar is seeking now to raise that claim as a separate issue, it is
untimely. Kaspar has not presented, and we have not found, any indication that the Secretary was aware
previously that Kaspar was raising that particular issue. The issue is a factual one and may not be raised for
the first time after the hearing. E.g., Amour Food Co., 14 BNA OSHC 1817, 1823-24, 1987-90 CCH OSHD
7 29,088, p. 38,885 (No. 86-247, 1990) (amendment of pleadings after hearing is proper only if parties
“squarely recognized” that they were trying unpleaded issue).
4
testimony was bastd on his observation and handling of the soil. The Commission relied on
Rule 701 of the Federal Rules of Evidence.4
Based on our analysis of Antonio’s opinion testimony, we find that the judge did not
err in admitting those opinions into evidence and relying on them regarding Items 3,4, and
- Each of those opinions, we find, was rationally based on Antonio’s observation of the
cited conditions and is of some help in determining a fact in issue.’
As to Item 7, certain of the compliance officer’s opinions crossed into areas that only
experts may testify about (for example, his testimony as to why an employee might contact
the nip points, quoted injkan.17). A compliance officer does not qualify as an expert witness
merely because of the number of previous inspections he or she has done. Commission
judges should not admit opinion testimony by a compliance officer on a subject about which
only an expert may testify, unless the compliance officer has been shown qualified as an
?hat rule states:
If the witness is not testifying as an expert, the witness’ testimony in the form of
opinions or inferences is limited to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.
See also Ed Jackman Pontiac-O&, Inc., 8 BNA OSHC 1211,1215,1980 CCH OSHD ll24,351, pa 29,681 (No.
76.20,198O) (OSHA compliance officer’s non-expert testimony to effect that there were dangerous quantities
of flammable paint vapors and of combustible paint deposits, thus making employer’s automobile body shop
a “spraying area” subje& to cited standard, was admissible because that testimony was probative and based
on his observations).
‘As to item 3, Kaspar complains that the judge relied on Antonio’s opinion regarding the alleged hazard
created by a bent guard on the bandsaw. As to Items 4 and 5, Kaspar complains that the judge considered
Antonio’s testimony regarding the hazards of the exposed wheel of a bench-mounted grinding machine.
However, all that testimony was rationally based on Antonio’s observations of the conditions. The other
opinion testimony of which Kaspar complains regarding those items (discussed below) also was based on his
observations of Kaspar’s machines and of comparable machines, so far as the record shows.
5
expert in that area? However, Antonio’s opinion testimony on which the judge rehed in
affirming Items 3,. 4, and 5 is admissible in this context as non-expert testimony7
aspar argues that an OSm compliance officer’s testimony that is based on exper&
ence as a compliance officer or on-the-job training prior to becoming a compliance officer
necessarily constitutes expert testimony. That is incorrect. Of course, Antonio’s experience
and training might have qualified him to give expert testimony on certain subjects.’
However, to say that such a person may testify as an expert is not to say that the person may
on& testify as an expert. As discussed above, under Fed. R. Evid. 701, a witness also may
give a non-expert opinion in court, where it is rationally based on the witness’s perceptions.
Kaspar has failed to show that Antonio’s opinion testimony on the items we affirm here was
expert testimony. Although it claims unfair surprise, it could have anticipated from
Commission precedent and the Federal Rules of Evidence that the judge would receive non-
expert opinion testimony from Antonio on the nature of the alleged hazards.g
6Further, we note that the Secretary could eliminate certain misunderstandings by stating, in response to
interrogatories such as Kaspar’s, that the OSHA compliance officer is expected to give non-expert opinion
testimony regarding the alleged hazards.
‘Kaspar’s reliance on Northem Heel Corp. v. Compo Z&us., 851 F.2d 456 (1st Cir. 1988), is misplaced. That
decision upheld the trial court’s ruling that certain expert testimony would not be admitted because the party
offering the expert had not fairly disclosed, during discovery, the substance of what the expert testimony would
be. Zd at 468 n. 5. Here, Antonio’s opinion testimony regarding the items we are affirming was admissible
as non-expert testimony.
81nFederal Crop Ins. Corp. v. Hester, 765 F.2d 723,728 (8th Cir. 1985), on which Kaspar relies, the court held,
“[a] witness may test@ as an expert ‘if his knowledge of the subject matter qualifies him to offer an opinion
that will most likely assist the trier of fact in arriving at the truth.“’ Id. at 728 (quoting Sweet v. UnitedStates,
687 F.2d 246, 249 (8th Cir. 1982)). The court in Hester held that under Fed. R. Evid. 702, “[a] witness’s
practical experience can be the basis of qualification as an expert.” Id.
‘I&spar argues that testimony as to probability of an event is, by its very nature, expert testimony. That
proposition is unfounded. Kaspar relies on Berkovich v. Hicks, 922 F.2d 1018, 1025 (2d Cir. 1991). In
Berkovich, the plaintiff in a civil rights action against police officers for false arrest and related claims appealed
an adverse jury verdict. One of his many assertions was that the judge erred in excluding proffered rebuttal
testimony concerning the probability that “no standing” signs were in the area of the arrest, as the officers had
testified. The appeals court rejected that argument on the ground that the proffered witness was not an expert
in statistics relating to the number of different types of parking signs in the area. However, implicit in its
ruling was that the witness’ testimony would not be based on relevant personal observations of the area. By
contrast, the testimony to which Kaspar objects was based on Antonio’s personal observations. We therefore
conclude that Berkovich does not provide any support for Kaspar’s argument.
b
30 Itern 3 - bent blade guard on bandsaw
me Secretary alleged a violation of the machine-guarding standard at 29 C.F.R.
8 1910.212(a)(3>(ii),10 b ase d on the compliance officer’s observation that a blade guard on
a bandsaw in the maintenance area had been bent up, exposing about 1% inches of blade.
Because of this, the Secretary contends, if an employee’s hand, or the stock, were to slip
during operation of the saw, it could contact the blade, resulting in severe lacerations.
In order to prove a violation, the Secretary must show that the standard applied to
the cited conditions, that the employer failed to comply with the terms of the standard, that
employees had access to the cited conditions and that the employer knew or, with the
exercise of reasonable diligence, could have known of those conditions. E.g., Gmy Concrete
Prod., Inc., 15 BNA OSHC 1051, 1052, 1991 CCH OSHD lI 29,344, p. 39,449 (No. 86-1087,
1991).
Kaspar does not take issue with the judge’s findings that the standard applied, that
there was noncompliance, and that Kaspar knew or reasonably could have known of the
violative condition. Kaspar contends, however, that no violation was shown because the
Secretary failed to prove that employees had access to the hazard. This is the only issue
directed for review.
The Secretary may prove that employees had access to a hazard by showing “that
employees either while in the course of their assigned working duties, their personal comfort
activities while on the job, or their normal means of ingress-egress to their assigned
workplaces, will be, are, or have been in a zone of danger.” Amour Food Co., 14 BNA
OSHC 1817, 1824, 1987-90 CCH OSHD ll29,088, p. 38,886 (No. 86247, 1990) (quoting
Gilles & Catting, Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ll 20,448, p. 24,425 *
(No. 504,1976). Thus, the question is whether it is reasonably predictable that an employee
will be in the zone of danger. Gilles & Catting.
‘%at standa rd p rovides in pertinent part:
The point of operation of machines whose operation exposes an employee to injury, shall be
guarded. The guarding device shall be in conformity with any appropriate standards therefor,
or, in the absence of applicable specific standards, shall be so designed and constructed as to
prevent the operator from having any part of his body in the danger zone during the
operating cycle.
7
aspar argues that the judge erroneously put the burden of disproving access on it
and that the evidence does not show that the saw was accessible. Based on the evidence of
record, however, we find that the Secretary presented sufficient affirmative evidence that the
bandsaw was accessible. We further find that that evidence was not adequately rebutted.
- Antonio testified that he determined that the bandsaw was available for use because
it had shavings indicating prior use and it had no tag to indicate it was not in service. Gerard
Novosad, a maintenance employee for Kaspar at the time of the inspection, testified that he
had used the saw about two weeks before the inspection. His testimony further indicated
that other maintenance employees had access to the saw? He recalled that machinery
had been tagged before at the plant, although he could not remember a specific instance.
The testimony of Antonio and Novosad mentioned above is barely sufficient to
establish, prima facie, that the machine was accessible to employees at the time of the
inspection. Kaspar relies on Novosad’s testimony that the bandsaw was up on a pallet and
unplugged at that time. However, those facts, without amplification, fall short of rebutting
the evidence of access. There was no evidence that the employees knew not to plug in such
a machine and use it. Since the bandsaw was used only periodically, for specific projects as
needed, it was foreseeable that the saw would be accessible to employees even though
unplugged.
Kaspar further relies on Novosad’s testimony that the bandsaw was not available for
use because the guard “was flapped up.” That fact alone provides no basis for vacating this
item. The evidence did not show that the employees who had access to the machine had
llNovosad testified specifically:
Q: Besides yourself, who else would have used that particular saw? 1
A: Other people in our maintenance crew.
Q: Okay. So you may not have used it, but other people could have used it?
A: Yes, sir. On our maintenance crew, yes.
a:’ bkay. Would the maintenance crew have come through there at different times
during the day?
A: Basically, yes. You know, we usually work up and down. And so they probably
would, you know, come by there and maybe work, you know, with it or -- you know.
8
been instructed never to operate it with a guard in that condition.‘2 Thus, the testimony
on which Kaspax relies does not rebut the evidence that the unguarded saw blade was
accessible to employees at the time of the inspection.13
Lastly, Kaspar questions the credibility of Antonio’s testimony on this item. It notes
that Antonio first testified that he did not recollect whether the bandsaw was plugged in, but
later testified that “all the equipment I saw was attached, plugged in.” Kaspar argues that
the change in Antonio’s testimony is significant. However, the judge did not rely on
Antonio’s testimony regarding the plug. Nor do we. Antonio’s other factual testimony on
this item is not disputed.
We therefore conclude that the Secretary has established by a bare preponderance
of the evidence that the bandsaw was accessible to employees at the time of the inspection,
regardless whether it was plugged in to an outlet. Thus, the Secretary has established all the
elements of a violation. Based on Antonio’s unrebutted testimony that severe lacerations
would be a likely result if an employee’s hand contacted the saw blade while it was in
operation, we also conclude that the judge’s finding that the violation was serious is correct.
66
[A] serious violation is established if an accident is possible and there is a substantial
probability that death or serious physical harm could result from the accident.” E.g., Consol.
FreightwaysCop, 15 BNA OSHC 1317, 1324, 1991 CCH OSHD ll29,500, p. 39,813 (No.
86-351, 1991). We therefore affirm the judge’s finding of a serious violation as to Item 3.
12Kaspar’s safety officer, Paul Morkovsky, testified that the fact that the bandsaw was on a pallet and
unplugged, with the bent guard, supported Novosad’s testimony that it was out of service. However, that
testimony merely establishes that there was some indication that the saw was intended to be sent for repairs.
Again, there was no testimony that Kaspar employees were told not to use a machine with a bent guard.
Morkovsky’s testimony that he would have “dead-lined” the saw (taken it out of service) if he had seen it
suggests that he would have done more to prevent its use than was done. (Kaspar gave Morkovsky the title
“compliance officer,” but we will refer to him as “safety officer,” to distinguish him from OSHA’s compliance
officer, Antonio.)
%aspar relies on the fact that the Secretary did not show that the cord on the saw could reach an available
electrical outlet. However, neither did Kaspar offer evidence that the cord could notreach such an outlet.
It is clear from Antonio’s testimony that he did not see that the bandsaw was unplugged Thus, there is no
evidence that he should have looked for an available outlet at that time. By contrast, Kaspar had every
opportunity to present rebuttal evidence that the saw was effectively removed from power sources. It
presented none. Kaspar notes that it was not cited for a lockout/tagout violation (under section 1910.147),
but that fact is irrelevant because the Secretary does not claim that the bandsaw was intended to be out of
service.
9
4 l Items 4 and 5 -- grinding machine
The Secretary alleged that the left grinding wheel of a bench-mounted grinding
machine located in the maintenance area was hazardous because: (1) the work rest was
pulled completely down and away from the wheel and (2) the wheel had no peripheral
guard. The judge agreed and found violations of 29 C.F.R. 8 1910.215(a)(4) and (b)(9).14
Supporting its contention that the judge erred in affirming these violations, Kaspar
argues that the Secretary failed to show that the cited standards were applicable to its
abrasive wheel machine. Kaspar argues that it was exempt from the standard’s coverage,
but it presented no evidence in support of that claim.
The Commission recently reaffirmed that the party claiming the benefit of an
exception to the requirements of a standard has the burden of proof of its claim. E.g., Con
Agra Flour Milling Co., 15 BNA OSHC 1817, 1823, 1992 CCH OSHD ll 29,808, p. 40,593
(No. 88-2572, 1992). Further, the Commission has specifically rejected an employer’s claim
that the Secretarv bears the burden of showing that a bench grinder regulated under section
4
‘?hose standards provide:
Subpart O--Machinery and Machine Guarding
~‘l&I.215 Abrasive wheel machinery.
(a) General requirements-
(i) *I%&rests. On offhand grinding machines, work rests shall be used to support the work.
They shall be of rigid construction and designed to be adjustable to compensate for wheel
wear. Work rests shall be kept adjusted closelyto the wheel with a maximum opening of one-
eighth inch to prevent the work from being jammed between the wheel and the rest, which
may cause wheel breakage. . . .
‘oji ‘Guarding of abrasive wheel machinery , . . .
(9) Enposure adjustment. Safety guards of the types described in subparagraphs (3) and (4)
of this paragraph [including safety guards for bench-mounted grinding wheels], where the
operator stands in front of the opening, shall be constructed so that the peripheral protecting
member can be adjusted to the constantly decreasing diameter of the wheel. The maximum
angular exposure above the horizontal plane of the wheel spindle as specified in paragraphs
(b)(3) and (4) of this section shall never be exceeded, and the distance between the wheel
periphery and the adjustable tongue or the end of the peripheral member at the top shall
never exceed one-fourth inch. . . .
(Emphasis added.)
10
1910.215 is not subject to the exemptions in the standard. StephensonEnterp., 4 BNA OSHC
1702,1705,1976-77 CCH OSHD If 21,120, p. 25,429 (NO. 5873,1976), afd on othergroun&,
578 F.2d 1021 (5th Cir. 1978). Thus, we reject Kaspar’s inapplicability argument.
Issues relating solely to Item 4
. Antonio testified that the work rest “was pulled completely down and away from the
wheel” and was not even close to the wheel. He added that the grinder was plugged in at
the time and that the area “was covered with metallic fragments, or dust, from grinding
operations.” Antonio gave the opinion that without a proper rest, parts could be pulled into
the wheel and ejected out at high speed at the employee, or the employee’s hand could get
caught in the wheel, causing serious lacerations.
Kaspar argues that the Secretary failed to prove that a hazard existed. However, the
Secretary points out that the standard presumes a hazard, because it provides that “[wlork
rests shall be kept adjusted closely to the wheel with a maximum opening of one-eighth
inch[.]” Under Commission and judicial precedent, including that of the Fifth Circuit where
this case arises, the Secretary bears no burden of proving that failure to comply with such
a specific standard creates a hazard. E.g., Bunge Cop. v. Secretary of Labor, 638 F.2d 831,
834 (5th Cir. 1981) (“[ u ]n 1ess the general standard incorporates a hazard as a violative
element, the proscribed condition or practice is all that the Secretary must show; hazard is
presumed and is relevant only to whether the violation constitutes a ‘serious’ one”); @I.WTZ~~
Masonry Constr, 16 BNA OSHC 1461, 1464, 1993 CCH OSHD ll 30,255, p. 41,674 (No.
91-600,1993) (if standard presumes that hazard exists when its terms are not met, Secretary
need not prove existence of hazard).”
‘kaspar relies on a Commission case on this issue, Weatherhead Co., 4 BNA OSHC 1296, 1976-77 CCH
OSHD ll20,784 (No. 8862, 1976). However, the portion on which it relies is an unreviewed judge’s decision.
76 OSAHRC 6l/F4. Such a decision lacks precedential value. Leone Constr, Co., 3 BNA OSHC 1979,1981,
1975-76 CCH OSHD ll20,387, p. 24,322 (No. 4090, 1976). Furthermore, Kaspar relies on the summary of
Weatherhead in the BNA volume, which differs from the judge’s actual decision on the issue. The actual
decision does not help Kaspar here. To the extent that the judge in Weatherhead placed a burden of proof
on the Secretary to prove the existence of a hazard under section 1910215(a)(4), that ruling is inconsistent
with the consistent Commission precedent cited above, and is erroneous.
(continued...)
11
~aspar did not show that the wheel was free from hazard with the work rest away
from the wheel. It notes that Antonio testified that if the piece being ground is large
enough, “this machine could be used in a safe manner[.]” However, there is no evidence
that Kaspar prohibited grinding of smaller parts, for which the work rest could be adjusted
to within one-eighth inch of the wheel. In fact, Kaspar assumes on brief that such an object
would be the next item ground on the wheel. (Novosad testified that the machine was used
basically to sharpen punches.) Thus, Antonio’s testimony does not support Kaspar’s
contention. To the contrary, as noted above, Antonio testified that the failure to adjust the
work rest exposed the employees to injury.
Kaspar argues that the Secretary did not show that the work rest was not adjusted
to within one-eighth inch before small items were ground. However, the Secretary need not
prove that fact. The Secretary showed noncompliance with the literal terms of the standard
because the standard specifically requires that work rests be “kept adjusted” within one-
eighth inch of the wheel. The wheel was not so adjusted at the time of the inspection. To
rebut that prima facie. evidence, Kaspar had the responsibility to present evidence that the
machine wa.s adjusted properly for small pieces. It presented no such evidence. We
therefore conclude that Kaspar failed to rebut the evidence of noncompliance.
In any event, the Secretary established by a bare preponderance of the evidence that
the work rest was not properly adjusted before small pieces were ground. Antonio
concluded that the work rest was not properly adjusted when small pieces were ground,
because he did not see marks on the side of the wheel or guard indicating such adjustments.
Kaspar argues that Antonio’s observations do not show noncompliance because he only
testified that such marks would appear “normally.” Thus, it argues, their absence proves
nothing.
15(...continued)
In Weatherhead, the judge vacated the alleged violation because “by a preponderance of the evidence,
respondent proved that due to the nature of the work being performed on the grinder in question there was
no foreseeable danger of it becoming jammed.” 76 OSAHRC 61/F13. Here, Kaspar failed to prove that there
was no foreseeable danger of the wheel becoming jammed. Kaspar also argues that the judge held in
Weatherheadthat where the compliance officer does not observe the grinder in use, and where the probability
of injury is “slight,” the citation should be dismissed. Again, that proposition is not supported by the actual
judge’s decision, and, in any event, it would be contrary to the Commission precedent we have applied above.
I
12
Although Antonio’s conclusion is based on circumstantial evidence, he was in a
position to draw that conclusion because of his experience with grinding machines. Kaspar
elicited testimony that Antonio had been an aircraft mechanic for 12 years, had used
grinding wheels in that job, had seen injuries on such machines, and had seen parts go into
and back out of such machines. Antonio also had 2% years of experience as a safety
specialist for the Department of the Air Force, and another 2?4 years experience as an
OSHA compliance officer. Based on his experience with grinding machines, Antonio’s
testimony is minimally sufficient to establish that the machine was not adjusted properly
when small pieces were ground. Kaspar presented no contrary evidence.
Kaspar also suggests that the judge should not have relied on Antonio’s testimony
regarding marks normally left when a work rest is adjusted, because it was expert testimony.
However, Kaspar’s counsel himself elicited that testimony and I&spar did not establish that
Antonio’s opinion was based on anything other than his personal observations of comparable
machines.
We affirm the judge’s finding of a serious violation as to Item 4. The Secretary’s
evidence of noncompliance was sufficient, although minimally so, and was not rebutted.
There is no question that employees had access to the conditions and that they were in plain
sight. The judge properly found the violation serious, because Antonio’s testimony that
serious lacerations could result from employee contact with the wheel was unrebutted.
Issues relating solely to Item 5
Antonio testified that because the grinder lacked the required peripheral guard, the
wheel might throw out small metal parts that get into it or even broken pieces of the wheel
itself. Antonio further testified that such objects might strike the operator and cause
puncture wounds, lacerations, or other injuries. He testified that the hazards could be
abated by installing the kind of peripheral guard depicted in the standard.
Kaspar argues that the metal shell around the wheel, along with the bolt and the
housing below the work rest, provided peripheral protection. The evidence it cites is
Antonio’s testimony that “the shell of metal around the wheel provides peripheral protection
for the portion that it covers[.]” (Emphasis added). However, Antonio testified that
.+
13
employees were exposed to injury due to lack of guarding around the rest of the periphery.
His testimony does not provide support for Kaspar’s argument.
The standard cited here presumes the existence of a hazard, just like the standard
cited in Item 4. Thus, Kaspar bore the burden of proof on its claim that no hazards resulted
from noncompliance. We conclude that it failed to meet that burden. Although there was
testimony that no injuries had occurred involving the grinder in its 32-year history, that in
itself does not disprove the existence of a hazard. E.g., RockwellIntl. Cop., 9 BNA OSHC
1092, 1098, 1980 CCH OSHD ll 24,979, p. 30,846 (No. 12470, 1980) (“the occurrence of an
injury is not a necessary predicate for establishing a violation”)?
We therefore affirm the judge’s finding of a serious violation as to Item 5. The
testimony established that: (1) the wheel lacked the required peripheral guard; (2) the
wheel was available for employee use and was used from time to time; and (3) the violative
conditions were in plain sight. Further, based on Antonio’s unrebutted testimony that a part
thrown out by the wheel could cause lacerations requiring sutures, we find a substantially
probability that serious injury could result in the event of an accident.
5 l Item 7(a) and (b) -- belts and pulleys of drill presses
The Secretary alleged that two drill presses had inadequate guards for belts and
pulleys, in violation of 29 C.F.R. 5 1910.219(d)(l) and (e)(l)(i).” Antonio testified that
%aspar relies on Rockwell in arguing that the Secretary was required to prove a hazard. However, the
standard in Rockwell, unlike the standard involved in Items 4 and 5, requires proof of a hazard. In Rockwell,
although the Commission found the lack of injuries relevant to whether the machine presented a hazard, it
based its finding of lack of proof of a hazard on other factors as well. (Those factors were the slow operation I
of the unguarded machine part and the fact that no employee would have any reason to be near enough to
be injured during operation.)
“The cited standards provide:
9 1910.219 Mechanical power-transmission apparatus
idj ‘pulleys--(l) Guarding. Pulleys, any parts of which are seven (7) feet or less born the
floor or working platform, shall be guarded in accordance with the standards specified in
paragraphs (m) and (0) of this section. . . .
& *Belt, rope, and chain drives--( 1) Horizontal belts and ropes. (i) Where both runs of
horizontal belts are seven (7) feet or less from the floor level, the guard shall extend to at
(continued...)
14
as a result,
both presses had inmmning nip points near the top that an employee could
contact by reaching up and over the metal front. He also testified that the older machine
had similar nip points about 4 inches in from its side, due to the lack of guarding. Antonio
testified that an employee’s hand could be injured if it contacted the nip points.
We find, however, that the Secretary failed to prove the necessary employee access
to the hazards. Antonio testified to ways in which he believed an employee might contact
the nip points. For example, he testified on cross-examination that before the employee
“turned the machine on, he may have set something on top of the machine . . a tool, or l
something -- a rag up on top. If it fell in there when he turned the machine on, he could
reach up there, and try to grab it, before he turned it off.” However, Antonio did not
indicate any basis in his personal experience for making those conc1usions.l’ Furthermore,
he agreed that in order to contact a nip point, the employee would have to reach over the
top of the machine, then move his or her hand several inches laterally and several inches
down into the inner workings of the machine.
We find that Antonio’s non-expert testimony on employee access to the nip points
was unduly speculative. The nip points were removed fkom where the employee worked.
Antonio’s testimony apparently was not based on his personal knowledge and, under his
theory, any contact with the nip points would require a series of very unusual movements
by the employee. Thus, we find Antonio’s testimony on. this issue unconvincing and
insufficient.
l’(...continued)
least fifteen (15) inches above thebelt or to a standard height (see Table O-12), except that
where both runs of a horizontal belt are 42 inches or less Tom thefloor, thebeltshall be
fully enclosed in accordance with paragraphs (m) and (0) of this section.
‘SThe judge stated thaiktonio testified that he had known employees to place tools and rags on top of
presses. However, the judge did not cite, and we have not found, actual support for that statement. The only
relevant testimony that the judge cited is Antonio’s statement that “we find this happens occasionally [an
employee reaching inside a press] where they have put a rag, or something, on top of the machine, or
something of that nature.” (Emphasis added) That testimony, however, does not indicate personal knowledge
of such a practice by Antonio -- it apparently reflects OSHA’s opinion of the hazards of the machine. As a
non-expert witness, Antonio was permitted to testify only to matters that were rationally based on his own
observations (see supra pp. 3-5). Thus, it would be inappropriate to consider the testimony by Antonio just
quoted.
15
We also note that Kaspar’s experienced safety officer, Paul MorkovsQ, testified that
he could not conceive of a way of operating the machine that would suggest to an employee
to stick his hand in the top. lg We therefore find that the Secretary failed to establish that
it was reasonably predictable that an employee would contact the nip points inside either
of the power presses. See, e.g., Amour (citation under specific standard requiring enclosure
of sprocket wheels and chains was vacated where evidence did not show that access was
more than theoretically possible -- hazards were quite attenuated and were not where
employees worked).20
60 Penalties
The Secretary proposed penalties of $240 each for Items 3,4 and 5, and a combined
penalty of $160 for Items 7(a) and (b). The judge reduced each penalty by 50 percent,
assessing $120 each for Items 3, 4, and 5, and a combined $80 for Items 7(a) and (b). He
noted Antonio’s testimony regarding the four penalty factors set forth in 29 U.S.C. 8 666(j)
-- the gravity of the violation, the employer’s size, good faith and history of violations.
The chief factor in penalty assessment generally is gravity. E.g., Nacirema Operating
co., 1 BNA OSHC 1001, 1971-73 CCH OSHD ll 15,032 (No. 4, 1972). As to the bench-
mounted grinding machine involved in Items 4 and 5, the judge found that “the cited wheel
was used about once a month and had apparently caused no injuries.” Thus, he found that
the gravity of both those violations was low, and that finding is not disputed. We find the
gravity of Item 3 to be low as well. The testimony indicated that although the bandsaw was
accessible to employees, it was unplugged and on a pallet, which showed Kaspar’s intention
to have it removed for repairs. The Secretary does not argue that any of the penalties that
lgAntonio testified that both presses could be operated with one hand if the work was clamped down. He
noted that there was a clamping device on the Clausing press. Morkovsky acknowledged that once the black
button on the Clausing press was pushed to start it operating, it would run without the employee’s hand on
it. However, he testified that to his knowledge operators had to hold the part being worked on. He added
that the vise on that press was used to cradle parts being worked on, and was not bolted to the press.
2oKaspar makes other arguments, including the claim that the older press was not cited with %asonable
promptness,” as required under section 9(a) of the Act. In view of our disposition of this item, we need not
and do not address Kaspar’s other arguments.
,
16
the judge assessed should be raised. We therefore affirm the judge’s penalty assessments
for Items 3, 4, and 5.
7a Conclusion
Accordingly, we affirm the judge’s findings of serious violations as to Items 3, 4, and
5, and we also affirm his penalty assessments of $120 for each of those items. We vacate
Item 7(a) and (b).
$%+a
Edwin G. Foulke, Jr.
Chairman
Velma Montoya
Commissioner
Dated: December 16, 1993
UNITED STATES OF AMERICA
OCCUPATIONA; SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE: FAX:
C0M(202)606-5100 C0M(202)606-5050
FTs(202)60+5100 ns(202)606-5050
SECRETARY OF LABOR, ..
.
Complainant, ..
..
..
v. Docket No. 90-2866
..
KASPAR ELECTROPLATING :
CORP., ..
.
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 VVEIOWISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF TEIE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 8 660.
FOR THE COMMISSION
December 16, 1993
Date
Docket No., 90-2866
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Es+
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
Vie Houston Henry, Esquire
Storey Armstrong Steger & Martin
4600 First Interstate Bank Tower
1445 Ross Avenue
Dallas, TX 75202 = 2733
Stanley M. Schwartz
Administrative Law Judge .
Occupational Safety and Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242-0791
.
Secretary of Labor,
Complainant, :
.
V. . Docket No. 90-2866
Kaspar Electroplating Corporation, :
Respondent. :
NOTICE OF DOCKETING
The Administrative Law Judge’s Report in the above referenced case was docketed with the
Commission on December 5, 1991. The decision of the Judge will become a final order of the
Commission on January 6, 1992 unless a Commission member directs review of the decision on
or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such petition
should be received by the Executive Secretary on or before December 26, 1991 in order to
permit sufficient time for its review. See Commission Rule 91, 29 C.F.R. Q 2200.91.
All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St., N.W., Room 401
Washington, 0. C. 20006-l 246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, DC. 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 having questions about review rights
may contact the Commission’s Executive Secretary or call (202) 634-7950.
FOR THE COMMISSION
December 5, 1991
Date
fly @.@*
Ray H. Darling, Jr.
$y&
Executive Secretary
Docket No. 90-2866
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, ESQ.
Counsel for Regional Trial Litigation
Office of the Solicitor, US. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
.
James E. White, Esq.
Regional Solicitor
Office of the Solicitor, US. DOL
Suite 501
525 S. Griffin Street
Dallas, TX 75202
Vie Houston Henry, Esq.
Storey, Armstrong, Steger
& Martin
4600 First Interstate Bank Tower
1445 Ross Avenue
Dallas, TX 75202-2733
Stanley M. Schwartz
Administrative Law Judge
Occupational Safety and Health
Review Commission
Federal Building, Room 7611
1100 Commerce Street
Dallas, TX 75242-0791
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
l
-ARY OF LABOR, l
l
l
Complainant, :
l
l
l
v. l
l
l OSHRC DOCKET NO. 90-2866
KASPAR ELECTROPLATING l
l
CORPORATION, l
l
l
l
Resnondent. l
l
APPEARANCES: Ee Jeffery Stow, Esquire
Dallas, Texas
For the Complainante
Vie Houston Henry, Esquire
Dallas, Texas
For the Respondent,
DECISION AND ORDER
SCHWARTZ, Judge:
This is a proceeding brought before the Occupational Safety
and Health Review Commission ("the Commission")pursuant to 5 10 of
the Occupational Safety and Health Act of 1970, 29 UeSeCe 5 651 et
seqe (Vhe Act").
On March 21, 1990, the Occupational Safety and Health
Administration (t*OSHA1g)conducted an inspection of Respondent's
plant located north of Shiner, Texas; as a result, one citation
alleging nine serious violations was issued. Respondent contested
all nine items of the citation, and a hearing was held on April 23,
- Respondent's preliminary challenges to the issuance of the
citation are discussed infra, as are the nine citation items,
2
Timeliness of Citation
Respondent contends that the issuance of the citation was in
contravention of !j9(a) of the Act, which provides as follows:
If, upon inspection or investigation, the Secretary or
his authorized representative believes that an employer
has violated a standard, .ee he shall with reasonable
l ee
promptness issue a citation to the employer,
Respondent notes that the inspection was completed on March
21, 1990, and that within two weeks of that date OSHA had the
necessary information in regard to all nine of the citation items,
(Tr. 12.15; 81.84). Respondent maintains that because the citation
was not issued until September 20, 1990, it did not meet the
reasonable promptness requirement of 5 9(a),
The Commission recently addressed this issue in Bland Constr,
co l t 15 BNA OSHC 1031, 1991 CCH OSHD 1 29,325 (No. 87-992, 1991),
and held that a citation issued within the six month limitation
period of 5 9(c) meets the reasonable promptness requirement of 5
9(a) unless the employer is able to demonstrate prejudice to the
defense of its case. Id. at 1040-41. The citation in this case
was issued within six months of the inspection date, and Respondent
does not claim prejudice to the defense of its casee Accordingly,
the citation was not issued in contravention of 5 9(a) of the ACte
Respondent further contends that the citation contravenes 5
9(c) of the Act-,which provides as follows:
No citation may be issued under this section after the
expiration of six months following the occurrence of any
violation.
Respondent asserts that because some of the alleged violations
occurred before the date of the inspection, the citation is barred
3
by § 9(c) l
However, Commission precedent is well settled that the
limitation period set out at § 9(c) does not begin to run until
OSHA discovers, or reasonably should have discovered, a violation.
Kasx>ar Wire Works. Inc., 13 BNA OSHC 1261, 1987 CCH OSHD 3 27,882
(No l 85-1060, 1987); Sun ShiD. Inc., 12 BNA OSHC 1185, 1985 CCH
OSHD 9 27,175 (NO. 80-3192, 1985); Yelvington Welding Serve, 6 BNA
OSHC 2013, 1978 CCH OSHD 3 23,092 (No. 15958, 1978). The
inspection in this case was a planned inspection conducted pursuant
to a warrante (Tr l 10-13). It is concluded that OSHA could not
reasonably have discovered the cited conditions before the
inspect ion, and that the citation is not barred by 5 9(c),
Item 1 - 29 CeFeRe 5 191Oe151(C)
Nicke Antonio is the compliance officer (VOgv) who conducted
the subject inspection; he was accompanied by Douglas Kaspar, the
company vice-president, and Paul Morkovsky. Antonio testified that
there were 58 employees and five electroplating lines at the plant,
One of the lines was a manual hoist line, where-a power chain hoist
was used to lower parts into tanks containing chemicals: employees
worked on the floor at the end of the line most of the time, Tank
U-12 had a label showing it contained nickel acid with a pH factor
Of 4eO; other tanks contained acids such as sulfuric acid and
sodium hydroxide. There was an eyewash station on either side of
the line of tanks, and Antonio tested both of them, The eyewash
near tank U-12 had only about a half-inch flow of water from the
left sprayhead and none at all from the right, and the eyewash near
tank H-18 did not operate at all when he turned its flag valve.
Kaspar indicated the valve was defective, and showed him an in-line
valve, similar to a spigot a hose would be attached to, underneath
the flag valve. The station operated after the in-line valve was
turned on. Antonio determined the in-line valve was used to
operate the station, and that it had been shut off to keep water
from flowing continuously. (Tr. 6-16; 26-29; 87-88; 117-18).
Antonio concluded the condition was hazardous because of the
chemicals in the tanks and the employee he saw working in the area,
who wore no goggles or other eye protection; a part dropping from
the hoist could have caused chemicals to splash into the employee's
eyes and resulted in chemical burns if the employee was unable to
flush his eyes with water.' He noted that while the H-18 station
could be operated by turning on the in-line valve, that valve was
14 to 16 inches away from the flag valve and could only be turned
on by getting down on one's knees. He said an employee familiar
with the station could find the valve, but that this would cause a
delay. His opinion was that an eyewash should be available within
a few seconds of contact with corrosive materials. He recalled
several garden-type hoses in the facility, but was not sure how far
they were from the tanks. (Tr. 31-33; 90-91: 103-16).
lRespondentobjected to the CO testifying about the hazards of
any of the alleged violations based on the Secretary% response to
its third intefrogatory that she planned to call no experts. The
objection was sustained in regard to the CO testifying about the
significance of a pH factor of 4.0, but was overruled in regard to
the CO testifying about why he considered the cited conditions
hazardous. (Tr. 15-33; 37-38; R-l). Commission precedent is well
settled that opinions may be given by lay persons to assist the
trier of fact. See Connecticut Natural Gas CorD., 6 BNA OSHC 1796,
1800, 1978 CCH OXD 1 22,874 (No. 13964, 1978).
Antonio identified the green hose in R-5 as a five or six-foot
drench hose or safety shower, used to drench the body in case of a
chemical splash. He was not sure if R-5 depicted the U-12 eyewash,
but said that R-6-7 appeared to show it and a shower operating in
compliance with the standard. He also said that R-8-10 appeared to
show the H-18 eyewash with an operating shower attached to it; he
noted an employee would have to reach way down to turn on the valve
in R-8. Antonio did not remember a shower attached to either
eyewash. His opinion was that it is harder to drench the eyes with
a shower, but that a shower might suffice with another person
assisting. Antonio said R-11 appeared to be a plating tank holding
approximately 800 gallons. He indicated that if the tank was
filled with clean, cold water it would assist an employee exposed
to corrosive materials. He did not recall how many of the tanks on
the line contained water, and did not determine if any injuries had
occurred on the line. (Tr. 87-89; 103-05; 112: 116-17; 125-32).
Clarence Berger has worked for Kaspar Electroplating for seven
years. He testified that he works on the hoist line, and that he
remembered the CO's inspection of the eyewash stations. He said
that R-5-7 showed the U-12 eyewash and safety shower; both were
working on the day of the inspection, but the eyewash had very
little flow because it had gravel in it and the head on the shower,
which was at least two or three inches, was lower than it should
have been. Berger noted that the bottom of R-5 depicted a water
faucet protruding from under a catwalk; he said the faucet was
operational and about three feet off the ground. (Tr. 238-44).
E
6
. Berger further testified that R-8-10 depicted the H-18 eyewash
and shower as they looked at the time of the inspection, and that
both were working that day. He recalled the CO turning the valve
below SO the water flow would increase, and that the flow from the
eyewash spigots was 2.5 to three inches high. Berger did not know
why the CO said the eyewash was not working. He noted he turned
the water on earlier that day, that it was working, and that it
stayed on as far as he knew. He also noted that the valve stays
0% and that it can be operated by bending over a little. (Trl
239-42; 262).
Berger stated he was familiar with how to operate both of the
eyewashes, and that he tested them every morning when making his
rounds. He also stated that if he put the shower spray in his
face, it would cover his whole face. Berger noted that if a splash
occurred and the eyewashes and showers were not working he would
yell for help, use the water hose located at the end of the line or
dunk his head in the nearest rinse tank. He said some of the rinse
tanks, like the one in R-11, contain clean water and that he knows
which ones do; they are six to eight feet long, six to seven feet
deep and hold 1200 gallons or more. (Tr. 244-48).
Berger related that Ervin Flowers, his immediate supervisor,
and other supervisors, including Oscar Weber, had told him that if
he got anything on him, no matter what it was, to wash it off
immediately with water or to yell for help if he could not do it
himself. (Tr. 251-52).
.
7
Oscar Weber is the assistant plant manager of Kaspar
Electroplating; he has worked for the company for 35 years. He
testified that the hoist line has existed since 1959, and that no
injuries have occurred from splashes from the tanks. Weber said
the only injury was in the mid-70% to 80% when Ervin Flowers,
presently a shift supervisor, got caustic soda on his face and eyes
when a tank pipe he was working on broke; Flowers immediately went
to a rinse tank to rinse his head and face, and then rinsed his
face with a water hose. Weber noted the incident had caused only
irritation and had had no permanent effect. He also noted the
stations were put in because of the incident, on Paul Morkovsky%
recommendation, and because the company knew the chemicals could be
hazardous. Weber did not know the concentrations of the chemicals,
or whether they could be corrosive to eyes or skin. (Tr. 263-72).
Paul Morkovsky has been the company's compliance officer for
over six years. He testified he was present during the inspection,
that both eyewash shower attachments were working, and that R-7 and
R-10, respectively, accurately depicted the operation of the shower
attachments to the U-12 and H-18 eyewashes that day. Morkovsky
said R-6 showed the U-12 eyewash, and that it was not working when
the CO was there because gravel or rock from minerals in the water
had gotten into its flow restrictor; the eyewash was disassembled,
the rock was removed and filters were installed. below both
eyewashes to ensure the condition would not recur. (Tr. 273-76).
Morkovsky further testified he had operated the quarter-turn
valve on the H-18 eyewash, and ,that he did not have to get down on
8
his knees to do SO0 He said the eyewash worked when the valve was
open, and that to his knowledge it was working on the day of the
inspection. He also said the valve Was supposed to stay open, and
that he did not recall it ever being closed when he made his weekly
walk-throughs of the plant. Morkovsky noted there were 18 tanks on
the hoist line, and that about 13 of them were rinse tanks holding
over 800 gallons each. He also noted the safety shower hoses were
around five feet long and about an inch thick, and that the flow
from the hoses was gentle. (Tr. 276-79).
The subject standard provides as follows:
Where the eyes or body of any person may be exposed to
injurious corrosive materials, suitable facilities for
quick drenching or flushing of the eyes and body shall be
provided within the work area for immediate emergency
use.
Respondent contends the Secretary failed to establish that the
substances in the tanks were injurious corrosive materials? For
purposes of this decision, it is assumed arsuendo that the
substances were corrosive,. Regardless, the Secretary has failed to
establish a second crucial element of the charge. The evidence of
record demonstrates there were suitable eye-flushing facilities in
the hoist line area within the meaning of the standard.
The evidence is somewhat conflicting with respect to the
question of suitable eye-flushing facilities. There is no question
that the CO recommended this citation item because he believed the
2The CO testified that a substance% corrosiveness depends on
its concentration, and that he did not test the strengths of any of
the chemicals in the tanks. He also testified he was not an expert
in the corrosiveness of chemicals. (Tr. 86-87; 90).
*
*
Y
eyewash stations were not operating properly. However, his recall
of the facts supporting this particular recommendation is somewhat
flawed. He could not remember how many of the hoist line tanks
contained only water, was not sure how far the water hoses he
observed were from the tanks, and did not recall the shower
attachments described by Berger and Morkovsky and shown in R-5-7
and R-8-10. Moreover, his testimony that an employee would have to
get down on his knees to operate the in-valve is not supported by
R-8, which shows the in-valve to be directly below the flag valve
and apparently easily accessible.
The testimony of Berger and Morkovsky was that both of the
shower attachments and the H-18 eyewash were working on the day of
the inspection. Although Berger said the U-12 shower was lower
than it should have been, he noted it had at least a two to three-
inch head on it that day. I observed the demeanor of Berger and
Morkovsky and found their testimony believable in regard to this
citation item. Their testimony is therefore credited over that of
the CO, and it is found that both stations met the requirements of
the standard. Although the CO's opinion was that a shower was not
as suitable as an eyewash, the Commission has held that a standard
shower may be a suitable eyewash facility. E.I. du Pont de Nemours
& Co., Inc., 10 BNA OSHC 1320, 1324-26, 1982 CCH OSHD 3 25,883 (No.
76-2400, 1982). The Commission has also held that water facilities
within a reasonable distance of the work area comply with the
standard. Gibson Discount Center, 6 BNA OSHC 1526, 1978 CCH OSHD .
fi 22,669 (No. 14657, 1978). In this case, the hoist line had two
.
10
eyewash stations., a water hose at the end of the line, a water
faucet near tank U-12 and rinse tanks containing clean water. This
citation item is accordingly vacated.
Items 2 and 6 - 29 C.F.R. !S§ 1910.212(a) (1) and 219(c) (2)(i)
l
Nicke Antonio testified that an automated electroplating line
called the M-T line had a linkage, or arms, that raised racks of
parts into tanks and created a nip point when the arms lowered into
the mounting bracing where the gear box was located. He said the
two employees he saw working in the area were exposed to the hazard
of being caught in the linkage, which could cause broken bones or
crushing injuries. Antonio further testified the horizontal drive
shaft which drove the gear box was also hazardous: loose clothing
could have become entangled in the shaft and pulled an employee
into it, resulting in broken bones. Antonio noted there had been
barrier guards in front of the line that had corroded away, and
that Kaspar indicated the line was to be taken out of service in
the next few weeks and overhauled, at which time the guards would
be replaced. He identified C-l-2 as photos of the line. He said
the shaft could have been guarded separately, but that the area
would have been protected against both hazards if guarded as in R-
12 0 (Tr. 33-39; 53-56; 140-41).
Antonio said the employee in C-l was six feet or more from the
hazard. His concern was when employees picked up the baskets in C-
l-2, which he estimated to be two to three feet from the hazard, or
if they picked up parts falling to the floor past the pieces of
wood in C-1-2. Antonio noted employees could trip on the wood,
.
which added to the hazard, andthatwhile the two employees working
in the area were not wearing loose clothing he saw others wearing
aprons. He saw no fallen parts in the area when he was there, and
had no personal knowledge this occurrede He also had no knowledge
of any accidents involving the shaft or the arms. He said there
would be no hazard if employees never went into the area or got
close enough to trip over the boards. (Tr. 54-55; 132-41).
Gerard Novosad testified he worked for Kaspar Electroplating
from September, 1987, until April, 1990. His said his duties were
in maintenance, and that he had performed maintenance on the M-T
line. He noted he had replaced the guard in front of the machinery
in C-l because the old one had rusted out. (Tr. 223-27).
Chris Berger testified he worked for Kaspar Electroplating for
three years, and that he had left the plant in December, 1990. He
identified the employee in C-l as Jesse Arriaga and noted he had
had the same job, which involved hanging parts on racks and taking
them off after they were plated. Berger said the guard in R-12 was
in place when he worked there, and that the period the drea was not
guarded, which was about a week, coincided with OSH.Ags inspection.
He estimated the shaft and arms were about two feet from the.guard
in R-12, and that when he worked around the M-T line when it was
unguarded he was four to five feet from the shaft and arms. Berger
said the employee% location in R-12 was the typical place he stood
and racked parts: he did not work around the arms or recall ever
sticking his hands or arms into that area. He also said he never
had any reason to be around the shaft, and that he never wore
12
clothing that could have gotten tangled in it due to the company
rule prohibiting the wearing of loose clothes. Berger observed
neither he nor Arriaga had ever fallen or tripped in the area. He
could not conceive of any way of falling such that the arms could
have hit him unless he was reaching for a part, and noted that he
could not recall a part ever falling into that area. (Tr. 253-60).
Oscar Weber testified he was aware of no injuries caused by
the unguarded arms or shaft on the M-T line. Paul Morkovsky
testified that Berger's recollection about the length of time the
M-T line was unguarded was correct. He noted the guard was removed
shortly before the inspection for repairs, after which it was put
back on. He had observed employees performing maintenance in the
area of the arms and shaft when the line was shut down, but had
never seen Berger or Arriaga in that area. (Tr. 266; 280-82).
1910.212(a)(l) and 1910.219(c)@)(i) provide, respectively, as
follows:
One of more methods of machine guarding shall be provided
to protect the operator and other employees in the
machine area from hazards such as those created by point
of operation, ingoing nip points, rotating parts, flying
chips and sparks.
All exposed parts of horizontal shafting seven (7) feet
or less from floor or working platform, 000 shall be
protected by a stationary casing enclosing shafting
completely or by a trough enclosing sides and top or
sides and bottom of shafting as location requires.
The record shows the M-T line was unguarded for at least a
week, and that it was inadequately guarded prior to that time due
to the corroded condition of the old guard. (Tr. 137-38; C-l-2). .
However, to establish a violation the Secretary must demonstrate
13
employee access to the condition. See, e.a., Walker Towina COG.,
14 BNA OSHC 2072, 2074, 1991 CCH OSHD 3 29,223 (No. 87-1359, 1991).
This requires the Secretary to '*showthat employees either while in
the course of their assigned working duties, their personal comfort
activities while on the job, or their normal means of ingess-egress
to their assigned workplaces, will be, are, or have been in a zone
of danger.'* Gilles & Cottins, Inc., 3 BNA OSHC 2002, 2003, 1976
CCH OSHD 9 20,448 (No. 504, 1976). Although the CO believed the
employees I duties exposed them to contact with the arms and shaft,
the testimony of Berger, which the Secretary did not rebut, shows
that employees worked four to five feet from the arms and shaft and
that their job duties at no time caused them to be any closer. His
testimony also shows that a company rule prohibited the wearing of
loose clothing. It is found that the Secretary has failed to
demonstrate employee access to the cited conditions: therefore,
both of these citation items are vacated.
Item 3 - 29 C.F.R. § 1910.212(a) (3) (ii)
Nicke Antonio testified, that the blade guard on a bandsaw in
the maintenance area had been bent up, exposing employees to the
hazard of contacting the blade if their hands or stock were to slip
during operation of the saw. He said C-3 depicted the condition,
which exposed about 1.5 inches of blade and could have resulted in
severe lacerations. He did not know when the condition occurred,
but observed it could have been abated in minutes by bending the
guard back into place. (Tr. 40-45; 149-50).
?
14
Antonio said there were two employees in the maintenance area
when he was there, one of whom was Gerard Novosad. He did not see
the saw used or know when it was last used, but noted C-3 showed
metal shavings from previous use. He thought it was plugged in,
and determined it was available for use since it was not tagged to
indicate it was not. He also thought it was affixed to the floor,
but said it could have been on a shipping pallet. Antonio noted
the guard was adjustable, but that it was not made to be bent out
of the way: if the saw had been guarded as it was in R-13, he would
have considered the condition abated. (Tr. 42; 146-54; 218-20).
Gerard Novosad testified he had used the saw in C-3 about two
weeks before the inspection. He said it was not available for use
on the day of the inspection because the guard was bent up; he also
said it was up on a pallet and unplugged at that time. He did not
recall if the saw was tagged to indicate it was not to be used. He
recalled machinery being tagged before, but then said he could not
specifically remember any such instances. Novosad indicated he did
not use the saw when the guard was bent, but that other employees
in the mainte,nance crew could have. (Tr. 227-30; 233-34).
Paul Morkovsky testified that the bandsaw was on a pallet the
day of the inspection, that he did not see it operated and that to
his knowledge it was not plugged in. He said the company policy is
to not violate guards, and that if he had seen the saw in C-3 he
would have dead-lined it until it was repaired; he noted the new
guard shown in R-13 completely enclosed the blade. Morkovsky had
never seen the saw operated with the guard bent up. He had no
15
knowledge to dispute Novosad's testimony that the saw was out of
service, and said his testimony was supported by the fact the saw
was unplugged and on a pallet. (Tr. 282-83).
The subject standard provides as follows:
The point of operation of machines whose operation
exposes an employee to injury, shall be guarded. ..[and] l
shall be so designed and constructed as to prevent the
operator from having any part of his body in the danger
zone during the operating cycle.
Respondent contends there was no violation of the standard
because the bandsaw was not available for use. Commission
precedent is well settled that an employer is not liable under the
Act if defective equipment is effectively removed from employee
access. See Gilles & Cottins. Inc,, supra, at 2003.04. See also
--
Pennsvlvania Steel Foundry 6rMachine Co., 12 BNA OSHC 2017, 20300
31, 1986 CCH OSHD I[ 27,671 (NO. 78-638, 1986). The issue in this
case, therefore, is whether the bandsaw was effectively removed
from employee access.
Respondent asserts that
- defective equipment was removed from
service until repaired, and that Novosad specifically recalled his
supervisor advising him the bandsaw was not available for use. The
record reveals that Novosad's actual testimony was that he recalled
machinery being tagged to indicate it should not be used, but that
he could not specifically remember any such instances. (Tr. 230).
Moreover, there is no persuasive evidence the saw was effectively
-1.
removed from employee access. That it was unplugged and on a
pallet does
. not demonstrate such was the case, particularly since
Novosad indicated other employees in the maintenance crew could
have used it, and it was not tagged to advise employees it was not
to be used. This citation item is affirmed as a serious violation.
A penalty of $240.00 was proposed for this item. The CO
testified that in proposing the penalties in this case, no credit
was given for good faith or history due to the resistance to the
inspection, the number of accidents and injuries, and history of
prior inspections. He acknowledged, however, that the plant was
making an effort to protect against hazards, that the overall plant
was clean and organized and that it had no history of prior
violations. (Tr 0 119-25) 0 The record also shows all but one of
the cited conditions were abated.3 The Commission is the final
arbiter of penalties in contested cases. Brennan v. OSAHRC and
Interstate Glass Co., 487 F.2d 438, 442 (8th Cir. 1973). Pursuant
to the Act, the Commission is required to give due consideration to
the employer% size, good faith, history of previous violations and
gravity of the violation. Upon consideration of these factors, 1
conclude that a penalty of $120.00 is appropriate for this item.
Items 4 and 5 - 29 C.F.R. !S§1910.215(a)(4) and (b)(9)
Nicke Antonio testified the tool rest on the left wheel of a
bench-mounted grinding machine located in the maintenance area was
pulled completely down and away from the wheel; the condition was
hazardous because an operator's hand could slip and contact or get
caught in the wheel, which could result in serious lacerations. It
3Although there is nothing to show the condition cited in it
8 was abated, that item was not found to be a violation. Moreov
while there is no evidence the ground prong condition cited in *
9(a) was abated, that item was presumably corrected along wit)
other electrical repairs made to the plant. (Tr. 267).
was also hazardous because parts could be pulled into the wheel,
which did not have a peripheral guard. Antonio explained that the
purpose of a peripheral guard, which is adjusted as the wheel's
diameter decreases, is to prevent parts that may get into the wheel
or broken fragments of the wheel from being ejected towards the
operator at high speed, which can cause eye injuries, lacerations
or puncture wounds. (Tr. 45-51; 160-62; 166; 172-73; 217).
Antonio did not see employees use the wheel, but noted it was
plugged in and operated when he turned it on, and that the area was
covered with metallic fragments or dust from grinding operations.
His opinion was that the wheel had been used for a long time with
the rest moved away because he saw no marks on the side of the unit
to indicate it had been positioned and tightened. He did not
measure the distance between the wheel and the rest, but said there
was no need to do so since the rest was in a fold-down position and
not even close to the wheel. Antonio noted the condition could be
abated by keeping the rest properly adjusted as the wheel wore
away. He also noted that the machine had a mounting pole available
to install a peripheral guard on top of it, and that the standard
itself, at figures O-18 and 19, depicted the type of device
required. (Tr. 47-48; 51-53; 158-60; 164; 169; 216-17).
Antonio said C-4 showed the grinding wheel l He did not know
what type or size of parts were ground on it, and indicated
. the
wheel could have been operated safely if a part was large enough
that it would not have gone into the area between the wheel and '
rest. He also indicated that wheels can be defective or damaged
18
during shipmmt or grinding, which can cause them to break when
used. He noted that defective wheels usually break soon after
installation, and that since the wheel in C-4 looked like it had
been there some time it was not likely to break for that reason.
He also noted the wheel appeared evenly worn. Antonio stated there
was a pair of dirty safety glasses near the machine, shown in C-4,
and that there were other glasses in a locker in the area. He did
not know if employees wore the glasses when operating the wheel.
He said wearing them would protect the eyes, but not the- rest of
the face. (Tr 0 46; 49; 160-67; 217; 221).
Antonio was aware of no injuries caused by the grinding wheel.
He noted his machine guarding background was based on training and
on-the-job experience with both OSHA and the Department of the Air
Force, where he had been a safety specialist and a mechanic and had
operated much of the same equipment cited in this case, including
grinding wheels. Antonio said he had seen injuries as a mechanic
caused by hands getting into grinding wheels: he also recalled an
instance of a part entering and exiting a grinding wheel, which
did not result in an injury. He observed that R-14 appeared to
show the cited wheel with a properly-adjusted peripheral guard and
the tool rest closely adjusted to the wheel. (Tr. 71-72; 168-72).
Gerard Novosad testified he had used the grinder about a month
before the inspection. He said it was used about once a month,
mostly to sharpen punches. (Tr. 228-29).
OscarWeber and Paul Morkovsky testified they were unaware of
any injuries caused by grinders at the plant. Morkovsky further
19
testified he had never known of a grinding wheel breaking at the
plant or a part getting into a grinder and coming back out. He
said the company policy was for employees to wear safety glasses
when using the grinder. He noted the policy was communicated to
employees by their supervisors, and indicated there was a sign in
this regard near the cited grinder. Morkovsky observed that he had
seen pipes too large to get into the wheel being ground on the
grinder, and that the work rest and guard were adjusted within a
day or two of the inspection. (Tr. 266; 283-85).
1910.215(a) (4) and 1910.215(b)(9) provide, respectively, as
follows:
On offhand grinding machines, work rests shall be used to
support the work. They shall be of rigid construction
and designed to be adjustable to compensate for wheel
wear. Work rests shall be kept adjusted closely to the
wheel with a maximum opening of one-eighth inch to
prevent the work from being jammed between the wheel and
the rest, which may cause wheel breakage. The work rest
shall be securely clamped after each adjustment. The
adjustment shall not be made with the wheel in motion.
Safety guards of the types described in subparagraphs (3)
and (4) of this paragraph, where the operator stands in
front of the opening, shall be constructed so that the
peripheral protecting member can be adjusted to the
constantly decreasing diameter of the wheel. The maximum
angular exposure above the horizontal plane of the wheel
spindle as specified in paragraphs (b) (3) and (4) of this
section shall never be exceeded, and the distance between
the wheel periphery and the adjustable tongue or the end
of the peripheral member at the top shall never exceed
one-fourth inch.
Respondent contends the Secretary has not demonstrated the
applicability of 1910.215(a)(4), based on 1910.215(a)(5), which
excludes certain types of wheels from coverage. According to *
established Commission precedent, it is the employer's burden to
20
show an exception applies. Since Respondent presented no evidence
in this regar& the cited wheel is not excluded from coverage.
Respondent asserts there is no proof of a violation of
1910.21S(a) (4) because the CO did not measure the distance between
the work rest and the wheel. However, it is obvious from C-4 and
the CO's testimony that the work rest was not adjusted to the wheel
with a maximum opening of one-eighth inch as required. Respondent
also asserts there was no hazard because there was no evidence that
anything other than parts too large to get into the opening were
ground on the wheel. The record does not support this assertion.
Although Morkovsky testified he had seen pipes too large to get
into the opening ground on the wheel, he did not discuss the
punches, which, according to Novosad, were the parts generally
ground on the wheel. Since it is clear the work rest was not
adjusted as required by the standard, a serious violation has been
established. While safety glasses, if used, could have prevented
eye injuries, they could not have prevented the other injuries
described by the CO.
In regard to 1910215(b)(9), Respondent admits the condition
but asserts there was no hazard because of the CO% testimony that
the metal shell around the wheel, and the bolt and housing below
the work rest, provided some peripheral protection. (Tr. 170-71).
However, the fact that some protection was provided does not excuse
noncompliance with the specific language of the standard, which
mandates the finding of a violation when its requirements are not
met, A serious violation of 1910.215(b)(9) has been shown.
21
Turning to the assessment of an appropriate penalty, the
record shows that the cited wheel was used about once a month and
had apparently caused no injuries. The Secretary proposed a
penalty of $240.00 for each of these citation items. Although the
violations are properly classified as serious, the gravity of both
conditions was low due to the infrequent use of the wheel. Upon
consideration of this factor and the other factors noted sux>ra, a
penalty of $120.00 is assessed for each of these items.
Items 7(a) and lb) - 29 C.F.R. 44 1910.219(d) (1) and (e) (1) (i)
Nicke Antonio testified there were two inadequately guarded
drill presses at the plant. One was an older press of undetermined
manufacture, as shown in the foreground of C-5, and the other was
a Clausing press, as shown in the background of C-5. The tops of
both presses, where there were nip points created by belts and
pulleys coming together, were unguarded.4 Antonio's opinion was
that employees could get caught in the nip points and sustain
broken bones, lacerations or amputations. He said the sides of the
Clausing were adequately guarded, but that the sides of the older
press were not, exposing employees to the same hazard. Antonio did
not see the presses operate, but determined they were available for
use because they were plugged in and not tagged to indicate they
were out of service. He noted that both conditions could have been
abated by completely enclosing the belts and pulleys. He also
noted that because it is the belt and pulley combination which
4Antonio testified that the unguarded belts on the older press
were easily visible, and that he reached up and felt those on the
top of the Clausing. (Tr. 175).
22
creates the hazard, 0SHPs policy is to cite both 1910.219(d)(l)
and (e) (l)(i). (Tr. 57-60; 176-77; 218-19).
Antonio explained that an employee could have been exposed to
the nip point of the older press by sticking his hand about four
inches into its side or by reaching a hand over its top and down an
inch or so, where the belt and pulley were located. He said that
exposure to the nip point of the Clausing could have resulted in
the same way; he could not recall how far down the belt and pulley
were on the Clausing, but said it could have been several inches.
Antonio noted that the operation of the presses would not require
employees to put their hands on top, but that he had known workers
to place tools and rags on top of presses; if an object were to
fall into a press during operation an employee could instinctively
grab for it and get caught in the machinery. He also noted that
although the Clausing could be operated as shown in R-16, both
presses could be operated with one hand if the work was clamped
down. Antonio observed that the Clausing's clamping device was
shown in C-5m He also observed that R-15 appeared to show the
Clausing press properly guarded. (Tr. 58-59: 174-88).
Gerard Novosad testified that the presses in C-5 were used
only by maintenance workers. He said he had used the Clausing, and
indicated he had used the older press at an earlier time when it
was in better condition. Novosad could not recall if other workers
used the older press, but noted that they probably had before.
l
(Tr. 230-31).
23
Oscar Weber and Paul Morkovsky testified they were unaware of
any injuries relating to the pulleys or belts on top of the drill
presses. Morkovsky indicated the older press was not used after
the Clausing was installed because it was worn out. He said it was
essentially out of service at the time of the inspection, although
it was not tagged, and that it was removed from the plant shortly
thereafter. (Tr. 267: 285-86; 296-98).
Morkovsky further testified that R-16 showed Jimmy Hymen, the
maintenance supervisor, correctly operating the Clausing except for
the fact he was not wearing safety glasses. Morkovsky noted the
black button on the press was the on button, and that after pushing
it the press would run without the operator's hand remaining on the
button. He also noted that although there was a vise on the press
it was used to cradle parts and was never bolted to the table. He
did not recall if the vise could be bolted down, and said that to
his knowledge operators had to hold the part being worked on.
Morkovsky said there was no operation which would require an
employee to stick his hands.into the top of the press, and that he
could conceive of no way of operating the press that would suggest
such an action to an employee. (Tr0 287-88; 297-99) a (
1910.219(d) (1) and 1910.219(e)(l)(i) provide, respectively, as
follows:
Pulleys, any parts of which are seven (7) feet or less
from the floor or working platform, shall be guarded in
accordance with the standards specified in paragraphs (m)
and (0) of this section.
Where both runs of horizontal belts are seven (7) feet or
less from the floor level, the guard shall extend to at
least fifteen (15) inches above the belt or to a standard
24
height (see Table O-12), except that where both runs of
a horizontal belt are 42 inches or less from the floor,
the belt shall be fully enclosed in accordance with
paragraphs (m) and (0) of this section.
Respondent contends the Secretary has not shown that the
standards apply, based on 1910.219 (a) (1)1 which excepts certain
types of belts operating at 250 feet per minute or less. As noted
suDra, the employer bears the burden of proving the applicability
of an exception. Since Respondent presented no such proof, the
cited presses are not excepted from coverage.
It is clear from the record that the standards apply and that
the belts and pulleys on the presses were inadequately guarded.
Respondent contends, however, that the Secretary has failed to
demonstrate employee exposure to the cited hazards, and that only
an intentional act on the part of an employee could have caused an
injury. I disagree. The CO, whose machine guarding background is
noted supra, testified convincingly about how employees could have
inadvertently been caught in the machinery of the presses. The
CO's testimony is supported by R-16, which shows thetop of the
Clausing to be well within the operator% reach, and by C-5, which
shows the presses to be about the same height. Although Respondent
presented the testimony of Morkovsky in an attempt to rebut that of
the CO, his testimony was not persuasive because of his lack of
knowledge in regard to the vise on the Clausing. These citation
items are affirmed as serious violations.*
'In affirming the violations, Respondent's assertion that the
older press was out of service is rejected. The older press was
plugged in, not tagged and not removed until after the inspection;
therefore, it was not effectively removed from employee access.
25
In regard to the penalty assessment, items 7(a) and (b) were
grouped and d penalty of $160.00 was proposed for both items. Upon
consideration of the factors noted suxa, I conclude that a penalty
of $80.00 for these two items is appropriate.
Item 8 - 29 C.F.R. § 1910.242(b)
Nicke Antonio testified he saw a nozzle in the maintenance
area of the type used to blow compressed air to clean dust or metal
fragments from drilled or ground parts. He used a standard air
pressure gauge to test the nozzle, and found it produced 70 p.s.i.
rather than under 30 p.s.i. as required. Antonio said the nozzle
was hazardous; it could cause metal fragments to be blown into eyes
if protective equipment was not used, or it could inject air into
skin and cause an embolism if used to blow dust from clothing,
particularly if there were cuts on skin. Antonio had no personal
knowledge of how the nozzle was used, and did not know if employees
used compressed air to clean themselves. (Tr. 61-64: 188-93; 218).
Paul Morkovsky testified that the cited hose was used in the
maintenance area to blow air into steam coils to check for leaks
and to blow out the radiator core; it was also used to blow out
tank lines on the production line. He said the hose was not used
for cleaning up, and that he had never seen anyone injured from air
blowing through skin. (Tr. 288-90).
Respondent's assertion that the violations were not shown to be
serious because the CO did not know the belts' speed or tightness
is likewise rejected. (Tr. 184-88). The CO's opinion in regard to
the serious nature of the hazard was persuasive, in light of his
background, and the violations are properly classified as serious.
26
The subject standard provides as follows:
Compressle& air shall not be used for cleaning purposes
except where reduced to less than 30 p.s.i. and then only
with effective chip guarding and personal protective
equipment.
As Respondent points out, the Commission has held that
1910.242(b) applies only to compressed air used for cleaning
purposesa AnoPlate Cor~.# 12 BNA OSHC 1678, 1691, 1986 CCH OSHD 1
27,519 (No. 80-4109, 1986). The CO recommended this item because
he believed the nozzle was used for cleaning purposes; however, he
had no personal knowledge such was the case. Morkovsky, on the
other hand, testified the hose was used to check for leaks and to
blow out the radiator core and tank lines, and that it was not used
for cleaning. Since the Secretary presented no evidence to rebut
Morkovsky% testimony, she has failed to demonstrate a violation of
the standard. This citation item is vacated.
Items 9(a) and lb) - 29 C.F.R. 5 1910.304(f) (4)
Nicke Antonio testified that a portable pipe-threading machine
in the maintenance area, as shown in C-6, did not have a ground
prong on its attachment cord. He said the machine was hazardous
because if a fault occurred the employee using it could suffer an
electrical shock. The machine was not plugged in or used when he
was there, but Antonio determined it was available for use because
it was not tagged to indicate it was out of service; he also
determined it was recently used because of the metal chips and
cutting oils on it. (Tr. 64-65; 193-95; 218-20).
Antonio further testified that he used an Ecos tester on a
number of receptacles in the plant. Six of them measured between
27
four and Six Ohs, and two had machines plugged into them: one was
a buffing machine, and the other was the grinder in C-4. Antonio
determined the impedance of the receptacles was high based on a
chart on the tester stating that a 120-volt, 300amp circuit should
not test higher than 1.3 ohms. He indicated his determination was
also based on his electrical training with OSHA and the Department
of the Air Force, the language of the standard and the National
Electric Code ("NEP), but noted that none of these specifically
provided that four to six ohms was a high impedance. He also noted
that the chart was not part of the regulations or his training.
Antonio said the company would not have known that four to six ohms
was high without the Ecos or a similar tester unless a qualified
electrician had so advised it. He did not recall the cost of the
tester. (Tr. 65-69; 195-97; 200-07).
Antonio stated that if machinery was plugged into one of the
receptacles and a ground fault occurred the high impedance could
prevent a sufficient amount of current from flowing back to the
circuit breaker and keep it from tripping, which could cause an
electrical shock? He explained that when a fault occurs current
flows through the path of least resistance, which in this case
could be an employee contacting a machine. Antonio said that human
skin has at least 1,000 ohms of resistance. Although his opinion
was that a receptacle with an impedance of four to s.ix ohms was
high enough to cause electricity to flow through and injure an
6Antonio noted the receptacles could also cause equipment to
overheat, which could result in a fire.
28
employee, he was unable to conceive of a scenario in which this
would be likely to occur. (Tr. 66-69; 197-201; 206-08).
Gerard Novosad testified he had used the pipe threader a month
or two before the inspection, and that not much threading was done
at the plant. He said it was not available for use at the time of
the inspection because the ground plug was off, and that Jimmy
Hmen, his supervisor, told him not to use it. Novosad did not
know whether Hymen told the other two maintenance workers who had
access to the machine to not use it, and did not believe it was
tagged. (Tr. 232-33).
Oscar Weber testified that after the inspection, the plant
spent between $9,000 and $10,000 to install safety switches and
outlets and to replace all the wiring needing repair. (Tr. 267),
Paul Morkovsky testified he had no personal knowledge of
whether the threader was out of service; as it was near a plug, he
assumed it would have been plugged in if it was in service. He
said company policy prohibited the use of defective equipment, and
that all of the plant's outlets had three prongs. (Tr. 291-92).
Morkovsky further testified he had some undergraduate training
in physics, and avocational and on-the-job experience in electronic
equipment assembly and automotive and machinery electricity. He
was unaware of any recognized authority stating that a ground plug
with six ohms of resistance did not meet OSHA or NEC requirements,
and his opinion was that resistance that low provided continuity.
He also opined that dry skin has a resistance of 50,000 ohms, and
that if an employee was operating a machine plugged into an outlet
*
29
with five ohms of resistance the electricity would be 10,000 times
more likely to go into the outlet than the employee. Morkovsky
said no one at the plant knew the plugs measured six ohms, or that
that measurement did not satisfy the standard. He also said the
plant electricians were familiar with the NEC and instructed to
comply with it, and that he had no reason to believe the plant was
not in compliance at the time of the inspection. He recalled that
the CO told him the Ecos meter cost about $5,000. (Tr. 290-96).
The subject standard provides as follows:
The path to ground from circuits, equipment, and
enclosures shall be permanent and continuous.
In regard to the pipe-threading machine, Respondent asserts it
was not available for use. However, the machine was not tagged,
and while Novosad was told to not use it there was no evidence the
other two maintenance employees were so instructed. Respondent
also asserts the company policy prohibited the use of defective
equipment. This assertion is unpersuasive, particularly in light
of the fact that other defective equipment was in use at the plant.
Based on the record, the machine was in violation of the standard.
Although this item was cited as a serious violation, it is
concluded the violation is more properly classified as nonserious.
The record shows the machine was infrequently used, and that it was
apparently not used for at least a month prior to the inspection.
Moreover, while the CO testified that the machine could cause an
electrical shock, he did not testify about the likelihood of such
an occurrence. This citation item is accordingly affirmed as a
nonserious violation, and no penalty is assessed.
30
In regar& to the receptacles, it is found that the Secretary
has not met her burden of showing a violation. Although the ~0’s
opinion was that the receptacles had a high impedance, he is not an
electrician and was unable to identify any source in support of his
opinion other than the chart on the ECOS tester. Moreover, the
Ecos is an apparently expensive device which Respondent did not
possess, and the CO himself acknowledged the company would not have
known that four to six ohms was a high impedance without it or a
similar tester, or the determination of a qualified electrician.
Finally, while the CO believed the receptacles could cause
injuries, he admitted he was unable to envision a scenario in which
this would be likely to occur. This citation item is vacated.
Conclusions of Law
1 l Respondent, Kaspar Electroplating Corporation, is engaged
in a business affecting commerce and has employees within the
meaning of 5 3(5) of the Act. The Commission has jurisdiction of
the parties and of the subject matter of the proceeding.
2 l On March 21, 1990, Respondent was not in violation of 29
C.F.R. §!$ 1910.151(c), 1910.212(a)(l), 1910.219(c)(2)(i), and
1910.242(b).
3 0 On March 21, 1990, Respondent was in serious violation of
29 C.F.R. 5s 1910.212(a)(3)(ii), 1910.215(a)(4), 1910.215(b)(9),
1910.219(d)(l) and 1910.219(e)(l)(i).
4 l On March 21, 1990, Respondent was in nonserious violation
of 29 C.F.R. 5 1910.304(f)(4).
31
Order
On the basis of the foregoing Findings of Fact and Conclusions
of Law, it is ORDERED that:
1 l Items 1, 2, 6, 8 and 9(b) are VACATED.
2. Items 3, 4 and 5 are AFFIRMED, and a penalty of $120.00 is
assessed for each item.
30 Item 7 is AFFIRMED, and a penalty of $80.00 is assessed.
4 l Item 9(a) is AFFIRMED as a nonserious violation, and no
penalty is assessed.
Administrative Law Jude
DATE: November 21, 1991
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