Quick-Cast Limited
Seven serious citation items settled for $675
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 Quick-Cast Limited, an aluminum casting and engraving business, for safety conditions involving portable fire extinguishers, bench grinders, oxygen and acetylene cylinder storage, flexible electrical wiring, and its written hazard communication program. An ALJ had affirmed most of the contested items, modified one to other-than-serious, vacated one, and assessed $1,350 in penalties. While Commission review was pending, the parties settled the case. Quick-Cast withdrew its contest to seven serious citation items, agreed that the violations had been abated, and agreed to pay $675. The Commission incorporated the settlement into its final order and set aside the ALJ decision to the extent it conflicted with the agreement.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1910.157(c)(1), 1910.157(e)(3), 1910.215(a)(4), 1910.215(b)(1), 1910.253(b)(4)(iii), 1910.305(g)(1)(iii), and 1910.1200(e)(1)
- Outcome: Seven serious citation items were settled as affirmed and abated for a total penalty of $675.
- Key point: A Commission settlement may replace an ALJ's item-by-item disposition and penalty assessment before that decision becomes final.
Full text (OSHRC public release)
/Y&FC~ UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
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SECRETARY OF LABOR,
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Complainanty
v. Docket No, 91-0902
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QUICK-CAST LIMITED) 4
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Respondent. .
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ORDER .
This matter is before the Commission on a direction for review entered by
Chairman Edwin G. Foulke, Jr. on March 1) 1993. The parties have now filed a
stipulation and settlement agreement.
Having reviewed the record, and based upon the representations appearing
in the stipulation and settlement agreement, we conclude that this case raises no
matters warranting further review by the Commission. The terms of the stipulation
and settlement agreement do not appear to be contrary to the Occupational Safety
and Health Act and are in compliance with the Commission’s Rules of Procedure*
Accordingly, we -incorporate the terms of the stipulation and settlement
agreement into this order, and we set aside the Administrative Law Judge% decision
and order to the extent that it is inconsistent with the stipulation and settlement
agreement. This is the final order of the Commission in this case. See 29 U SoC e l
§§ 659(c), 660(a), and (b).
Edwin G. Foul
Chairman
Commissioner
Dated June 151993
NOTICE OF ORDER
The attached Order by the Occupational Safety and Health Review Commission
was issued and semed on the following on June 15, 1993.
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210
Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014
Lloyd A. Archer, President
Quick-Cast Limited
31 Charlotte Street
Post Office Box 1055
Plattsburgh, NY 12901
Richard Gordon
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501
FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary
UNITED STATES OF AMERICA.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
ROBERT B. REICH SECRETARY OF LABOR,:
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Complainant, :
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v.
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0 OSHRC Docket
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l No. 91-0902
:
QUICK-CAST LIMITED, 0
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Respondent. 0
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In full
. settlement and disposition of the issues in this
proceeding, it is hereby stipulated and agreed by and between the
Complainant, Secretary of Labor, and the Respondent, Quick-Cast
Limited, that:
1. This case is before the Commission upon the granting of
the Secretary's Petition for Discretionary Review seeking review
of the judge's decision in order that the case did not become a
final order prior to the parties executing a settlement agreement
disposing of all matters raised by respondent's notice of
contest.
2. Respondent hereby withdraws its Notice of Contest to
Serious Citation 1, Items 1, 2, 3, 4, 5, 7 and 8 and to the
notification of proposed penalties thereto and agrees that the
violations have been abated.
3. Respondent agrees to pay the sum of $675.00 in full
settlement of Serious Citation 1, Items 1, 2,. 3, 4, 5, 7 and 8 by
forwarding said amount to the OSHA Area Office in Albany, New
York, 401 New Karner Road, Suite 300, Albany, New York, 12205.
4. Respondent certifies that a copy of this Stipulation and
Settlement Agreement was posted at the workplace on the J/d day
of z;- 1993, in accordance with Rules 7 and 100 of the
Commission*s Rules of Procedure. There are no authorized
representatives of affected employees and no employee has elected
party status.
5. Complainant and Respondent will bear their own litigatio-
costs and expenses.
FOR THE SECRETARY: FOR RESPONDENT:
Lloya A: Archer (Date)
Attorney for the Presi'dent, for Respondent
Secretary of Labor (Quick-Cast Limited)
U.S. Department of Labor Quick-Cast Limited
Office of the Solicitor 31 Charlotte Street
200 Constitution Ave., N.W. Plattsburgh, New York
Room S-4004 (518)563-2340
Washington, D.C. 20210
(202)219-9454
.
.
UNITED STATES OF AMERICA
6CCUPATiONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-1246
‘,
FAX :
COM (202) 634-4008
f% (202) 634-4008
SECRETARY OF LABOR
Complainant,
V. OSHRC DOCJSEX
NO. 91-0902
QUICK CAST LTD.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION ’
The Administrative Law Judge’s Report in the above referenced case was a
docketed with the Commission on January 29, 1993. The decision of the Judge
will become a final order of the Commission on March 1, 1993 unless a .
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Commission member directs review of the decision on or’ before that date. ANY -2’
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVlEW.
Any such petition should be received by the Executive Secretary on or .before
February 18, 1993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C.F. 2 . 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, D.C. 20006-1246
Petitioning parties shall dso mail a copy to:
Daniel J. Mid, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4003
700 Conctitution Avenue, N.W.
kshi n&n, D.C. 20210
If a Direction for Review is issued bv the Commission, then the Counsel for
Regional Trial Litigation All represint the Department of Labor. Any paw
having questions about reviw rights may contact the Commission’s Executiv>
Secretary or call (202)I K+7~~50.
FOR THE COMi&j,ION b
Date: January 29, 1993
DOCKET NO. 91-0902 ’
NOTICE IS GIVEN TO THE’FOLLOWING:
Daniel J. Mick, Esq. v
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOEi,
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Patricia Rodenhausen, Esq.
Re ional Solicitor
Ofice of the Solicitor U.S. DOL
201 Varick, Room 70?
New York, NY 10014
Lloyd A. Archer, President
Quick-cast Limited
Post Office Box 1055
Plattsburgh, NY 12901
Richard W. Gordon.
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501
00113928766:02
UNmO STATESof AMERICA
occu PATIONAL SAFETY AND HEALTH REVIEW COMM ISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM420
BOSTON, MASSACHUStS 0210Q-4501
(617) 223-9746
SECRETARY OF LABOR,
Complainant,
OSHRC Docket No. 91ao2
v.
QUICK-CAST LIMITED,
Respondent.
Appearances:
Luis kicheli, Esq. Lloyd A Archer, Pro Se
Office of the Solicitor Quick-Cast Limited
U.S. Department of Labor Plattsburgh, New York
For Complainant For Respondent
Before: Administrative Law Judge Richard W. Gordon
.
DECISION AND ORDER
This proceeding arises under 5 10(c) of the Occupational Safety and Health Act of
1970,29 U.S.C. 5 651, et seq., (“Act”) to review citations issued by the Secretary for serious
and other than serious violations pursuant to 5 9(a) of the Act and proposed assessments
of penalties thereon issued pursuant to 3 10(a) of the Act.
SUMMARY AND EVALUATION OF THE EVIDENCE
Respondent is engaged in aluminum casting and engraving at its place of business in
Plattsburgh, New York. As a result of an inspection by a Compliance Officer (“CO”) of the
Occupational Safety and Health Administration (“OSHA”) at Respondent’s work site on
February 27, 1991, OSHA issued one serious and one other than serious citation alleging a
total of twelve violations of the Act, with a total proposed penalty of $3,230.
Respondent f’iled a timely notice of contest thereby instituting this proceeding before
the Occupationi. Safety and Health Review Commission (“Commission”). The hearing in
this matter wan held on August 11, 1992 in Plattsburgh, New York. The parties have
submitted their briefs and this matter is now ready for decision.’
At the commencement of the hearing
. the Secretary stated that Serious Citation No.
1, item nos. 2a, 6 and 9 had been withdrawn and item nos. 2b and 2c had been combined.*
The Secretary also withdrew Other Than Serious Citation No. 2, item no. 1. What follows
is a discussion of the contested items:
A. Serious Citation No. 1, item no. 1 (5 1910.157(c)(l))
This item alleges that a portable fire extinguisher at the west wall of the shipping-
receiving room was mounted above stored containers of oxygen and acetylene thereby
subjecting employees to possible injury. This item assesses a penalty of $640.
During the walk around inspection, CO Ronald Carbery observed a fire extinguisheb -
mounted at a 4% to 5 feet height on the west wall of the shipping-receiving room. The fire
extinguisher was mounted to the left of the loading door that Respondent’s employees
frequently used to bring in and take out materials. (Tr. 19,29, 38). CO Carbery stated that
the fire extinguisher was not readily accessible to employees because there was a full oxygen
cylinder and a full acetylene cylinder stored beneath the fire extinguisher. (Tr. 20, 27;
Exhibit C-1). The cylinders were not secured to prevent them from being knocked over.
(Tr. 27, 28).
Respondent stated that it had 29 fire extinguisher in the shop, with fire extinguishers
located on both sides of all doorways. Respondent further stated that an employee would
not reach across a burning fire to get ;t fire extinguisher when there is another one less than
6 feet away.
Respondent feels that it is tvin~ penalized for having extra t’ire extinguishers. CO
Carbery explained that in the GM of ;1.t‘ire localized in the vicinity of a fire extinguisher, an
’ On October 1, 1992, RespondcSnt submitted photographs and a videotape to the undersigned in an
attempt to illustrate the working conditions ;tt Quick-Cast Limited. The Secretary objected to this post
hearing submission of evidence. I hxc not rcL*icwcd any of the material forwarded by Rqxmdcnt and base
my decision solely on the evidence entered into the record at the hearing.
* However, the proposed penaltt d br- wr~hined item nos. 2b and 2~:remains SXYO.,ncwiOwaxling the
withdrawal of item no. 2a.
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employee’s logic&t move would be to use the fire extinguisher closest to the source of the
fire. (Tr. 54)~:.[ Co Carbery opined that there was a strong probability that the person
running to g&.-t& the fire extinguisher could knock over one or both of the unsecured
cylinders. If either of the cylinders ruptured, it would be devastating to the situation. (Tr.
27) .
Although I believe that the Secretary has proved a serious violation, the extent of the
hazard is based, in substantial part, on speculation. CO Carbery states that in the case of
a localized fire an employee’s logical move would be to use a fire extinguisher closest to the
source of the fire. In this case the fire extinguisher above the cylinders. However,
Respondent’s argument that an employee would not reach across a burning fire to get an
extinguisher when there is another one less than 6 feet away is just as plausible. While I will
affirm this item, I am reducing the penalty to $300.
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B. Serious Citation No. 1, item no. 2 (5 1910.157(e’)(3)) ? .
This item comprises
* combined item nos. 2b and 2c and alleges that Respondent did
not subject portable fire extinguishers on the west wall of the shipping-receiving room to an
annual maintenance check. The item further alleges that Respondent did not record the
date of the annual maintenance check for any of the portable fire extinguisher on the job
site. This item assesses a combined penalty of $700.
Respondent admitted the factual allegations but contests the penalty of $700. The
hazard here is that if fire extinguishers are not regularly inspected they may not operate
properly in an emergency. If the date of the annual maintenance inspection is not recorded
one has no way of knowing if or when an inspection took place. Respondent stated that he
always visually checks the fire extinguisher to make sure that the needle is in the operating
range and, in fact, ail of the fire ttxtineuisher had their needles in the green operating range
on the day of the inspection. Sothing in the record contradicts this statement. Respondent
has abated this problem and now makes and records regular maintenance inspections.
Based on a fair review of this itcrny I ;lrn reducing the degree of this violation from serious
to other than serious and reducing the penalty to $200.
C. Serious Citation No. 1, item no. 3 (5 1910.215(a)(41)
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This item alleges that the work rest on the grinder room bench grinder, Packwood
Precision Model #BCMR, was adjusted one inch from the wheel. The standard requires
that the work rest be adjusted closely to the wheel with a maximum opening of one-eighth
.
inch. This item assesses a penalty of $200.
Respondent admitted the factual allegations but contests the penalty of $200. The
hazard here is grinder wheel breakage or explosion and its resultant injury to employees.
Respondent asserts that there is no hazard because if a piece jams between the wheel and
the rest the motor will come to a complete stop, with no injury to the operator. Respondent
also asserts that some jobs cannot be sharpened with the removable guard as close as
required by the standard, but that after these “special jobs”, the employees are returning the
rests to one eighth inch maximum. Since there is no legally sufficient reason to reduce this
penalty assessment, Serious Citation No. 1, item no. 3 is affirmed and a penalty of $200. is
assessed
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D. Serious Citation No. 1, item no. 4 (5 1910.215(b)(l)\
This ‘item alleges that a bench grinder in the tool room had no. guarding. It
specifically alleges that the cup wheel of the grinder was not protected by a guard. This item
assesses a penalty of $300.
CO Carbery testified that he has received training on grinding machines and grinding
wheels. (Tr. 52). He observed a grinder on the work table in the machine area whose .
abrasive wheel had no guarding. (Tr. 23, 32; Exhibit C-3). The grinder which was
approximately 20 years old. It was occasionally used to grind five inch electrode tips by
Respondent’s employee Stephen Brunelle. (Tr. 34, 96). CO Carbery estimated that 270
degrees of the grinder wheel were unguarded. (Tr. 33, 57). He further stated that the
hazards posed by the unguarded grinder wheel were that the operator’s clothing or hair
could get wrapped around thtz Ethel (Tr. 33) or that if the operator tried to grind a tool,
the tool could readily tip up and get iaught and possibly cause the grinder wheel to explode.
(Tr. 34, 60).
Respondent stated that r!~t: rn:ichine in question does not have a cup wheel, but
instead has a resin bonded wheel. Respondent’s employee, Stephen Brunelle, testified that
he had worked for Respondent t‘L)r-approximately 10 years as a CAD operator and
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machinist. He testified that the grinder in the welding department had a slow moving wheel
and was only used. to grind electrodes that are used in welding. (Tr. 73, 74). Mr. Brunelle
stated that the ckctrodes are the size of the lead in a pencil. The electrodes are sharpened
by placing the tips on the side of the grinding wheel with a very slight touch. (Tr. 74). Mr.
Brunelle opined that there was no way that an operator could get his arm or tie caught in
the grinding wheel. He further stated that if someone tried to grind a tool and put pressure
on the wheel, the wheel would stop before it would blow up. (Tr. 75, 76).
The Secretary has not met her burden of proof on this item. First, there is the issue
of whether the grinding wheel is a cup wheel. The CO who has limited experience in this
area says that it is. Respondent’s employee, Mr. Stephen Brunelle, says that it is not a cup
wheel .3 If the grinding wheel is not a cup wheel the cited regulation does not apply.
However, I need not decide that issue since I find that the Secretary has not established a
substantial probability that death or serious physical harm could result from Respondentb
use of the tool room bench grinder. Accordingly, Serious Citation No. 1, item no. 4 is
vacated.
E. Serious Citation No. 1, item no. 5 (s 1910.253(b)(4)(iiij)
This item alleges that a cylinder of acetylene was stored next to a cylinder of oxygen
in the shipping-receiving room. This item assesses a penalty of $640.
CO Carbery testified that he observed cylinders of oxygen and acetylene standing next
to each other with the oxygen tank directly under a fire extinguisher. The cylinders were full
but not in use. Storage caps were on both tanks and there was no metering, gauging or
hosing attached. (Tr. 36,37; Exhibits C-l and C-4). CO Carbery stated that a fire hazard
was the main problem. He testified that should the cylinders be knocked over accidently
’ Mr. Brunelle has training and significant experience in the area of grinding machines. While Mr.
Brunelle has not been qualified as an expert witness, I am considering his testimony as opinion testimony by
a kiy witness since it is helpful to me in the resolution of a material issue. See Fed. R. Evid. 701.
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and they should rupture or leak the acetylene and oxygen could mix resulting in a fire with
explosive consequences. (Tr. 37).
The standard expressly requires that oxygen cylinders in storage be separated from
fuel-gas cylinders or combustible materials a minimum distance of 20 feet or by a non-
combustible barrier at least 5 feet high having a fire resistance rating of at least one-half
hour. Respondent does not contest the factual basis of this violation, but instead believes
that the cited regulation “makes absolutely no sense” because cylinders are transported side
by side with protective caps over the valves. However, Respondent’s personal belief. as to
the reasonableness of a regulation is not a defense. The regulation is reasonable on its face
as it seeks to prevent serious physical harm or death that could result from the violation. l
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Accordingly, Serious Citation No. 1, item no. 5 is affirmed. However, I am reducing
the penalty assessment for this item to $100. because the factual basis for this violation is
so intertwined with the factual basis for Serious Citation No. 1, item no. 1 for which I have
already assessed a penalty of $300.
F. Serious Citation No. 1, item no. 7 (5 1910.305(.g)(l)(iii)~ .
This item alleges that Respondent improperly used flexible cords and cables creating
an electric shock hazard. This item assesses a penalty of $250.
CO Carbery testified that he observed at the South wall of the production room,
directly above the work bench, an outlet strip permanently affixed to the wall which was
improperly wired with a flexible cord ;IS a substitute for the fixed wiring of the building. (Tr.
39; Exhibit C-5). Adjacent to the outlet strip was a tool rack with various tools such as a
hammer and a pry bar. (Tr. 6567; Exhibit C-5). CO Carbery further testified that the
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hazard involved here was the potential of falling tool s damaging the flexible cord and causing
an electricti shock or fire. Upon my questioning, RIespondent admitted the presence of the
hazard. (Tr. 67-68). It is clear that serious injury could result from fire or electric shock and
Respondent knew or should have known of the condition. Accordingly, Serious Citation No.
1, item no. 7 is affirmed and a penalty of $250. is assessed.
G. Serious Citation No. 1, item no. 8 (5 1910.1200(e)(l)~
The fina 1 contested.item alleges that Respondent had not deve 1oped or implemented
an appropriate written hazard communication program. This item assesses a penalty of
$300.
The record reveals that Respondent’s operations include the use of Nalco 2560 acid
cleaner (20-40%
* HCL), NA Clear 7766 flocculent (ethoxylated octylphenol l-5% CAS 90020
93-l), oxygen and acetylene, and that Respondent has no written hazard communication
program. Respondent sates that it does have a written hazard communication program now,
but admits the factual allegations of this item, contesting only the assessment of a penalty.
The Secretary has proposed a penalty in the amount of $300. and I believe that this amount
is appropriate. Serious Citation No. 1, item no. 8 is affirmed.
Section 17(j) of the Act requires the Commission to give “due consideration” to the
size of the employer’s business, the gravity of the violation, . the good faith of the employer,
and the history of previous violations in determining the assessment of an appropriate
penalty. Upon consideration of these factors, particularly Respondent’s good faith, I have
determined that a total penalty of $1,350. is appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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Findmgs of f&t: and conclusions of law relevant and necessary to a determination of
the contested isslrtes have been made above. Fed. R. Civ. P. 52(a). All proposed findings
of fact and conclusions of law inconsistent with this decision are hereby denied.
ORDER
1. Serious Citation No. 1, item no. 1 is AFFIRMED and a penalty of $300. is
ASSESSED.
2. Serious Citation No. 1, item no. 2 is REDUCED to Other Than Serious and a
penalty of $200. is ASSESSED.
3. Serious Citation No. 1, item no. 3 is AFFIRMED and a penalty of $200. is
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ASSESSED. ?
4. Serious Citation No. 1, item no. 4 is VACATED.
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5. Serious Citation No. 1, item no. 5 is AFFIRMED and a penalty of $100. is
ASSESSED.
6. Serious Citation No. 1, item no. 7 is AFFIRMED and a penalty of $250. is
ASSESSED.
7. Serious Citation No. 1, item no. 8 is AFFIRMED and a penalty of $300. is
ASSESSED.
Judge
Dated: January 11, 1993
Boston, Massachusetts
UNITED SATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST’OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501.
PHONE: FAX:
COM (617) 223-9746 COM (617) 223-4004
f=l’S223-9746 NOTICE OF DECISION FTS 223-4004
IN REFERENCE TO:
Secretary of Labor v. QUICK-CASTLIiYIITED
OSHRC DOCKET NO. 91-3302
1 Enclosed is a copy of my decision. It will be submitted to the Commission’s Executive
&r&q on January 11 ) 1993
The decision will become the final order df the Commission at the expiration of thirty (30)
days -from the date of docketing by the Executive Secretary, unless within that time a
Member of the Commission directs that it be reviewed. All parties will be notified by the
Executive Secretary of the date of docketing. l
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2 Any party adversely affected or aggrieved by the decision may file a petition for
discretionary review by the Review Commission. A petition mav be filed with this JudE
within twentv (201 davs from the date of this notice. Thereafter, anv Detition must be filed
with the Review Commission’s Executive Secretarv within twentv (201 davs from the date of
the Executive Secretarv’s notice of docketing. See paragraph No. 1. The Executive
Secretary’s address is as follows:
Executive Secretary
Occupational Safety and Health Review Commission
1825 K Street, N.W., Room 401
Washington, D.C. 20006 .
3 The full text of the rule governing the filing of a petition for discretionary review is
2b C.F.R. 6 2200.91. (Part of Rule 91 is attached hereto).
- a
Judge, OSHRC
3ecmkr 18, 1332
Dated:
Boston, Massachusetts
A
Employer
Llyod A. Archer, President
Quick-Cast Limited
PO Box 1055
Plattsburgh, NY 12901
FOR THE EMPLOYEES
I hereby certify that a copy of the decision in this
case has been served by First Class Government Mail
to the parties whose names and addresses appear on
this notice.
Boston, Linda M. Quinn
December lf, 1992 (date)
Regional Solicitor
Patricia M. Rode n hxlsen, Esq.
Regional Solicitor
U.S. Department of Labor
201 Varick Street, Room 707
New York, Xx! Y(N-I; 10014
Attn: Luis M id~li, Esq.
Daniel J. Alick. Esq.
Counsel for I~c(~imwI Litigation
Office of the ~h+m- - 6s. Dept. of Labor
200 Const it t !tl,~:~ Awnue, N.W., Room S. 4014
Washingto!?. !>.C. 32 10
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