TRW, Inc.

Plain-English summary

TRW manufactured valves and valve-train parts at an eighteen-acre Cleveland plant. OSHA found coolant or grinding lubricant pooled around two machines and oil leaking onto the floor of a locker room used by employees and cleaning staff. The ALJ found that TRW permitted the locker-room inspection because its safety supervisor did not clearly deny permission and accompanied the inspector without objection. She held that both areas were workroom floors that were not kept clean and dry, and that TRW knew or could have known of the conditions. Prior final orders for substantially similar violations supported a repeated classification, and the ALJ assessed a $3,400 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.157(g)(4); 29 C.F.R. § 1910.22(a)(2).
• Outcome: Affirmed. The housekeeping item was affirmed as repeated with a $3,400 penalty; a separate fire-extinguisher-training item had settled before hearing.
• Key point: Silence and accompaniment can establish permission for an inspection, and a locker room is a workroom when employees perform cleaning and maintenance work there.

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

PHONE: FAX:
COM (202) 6064100 COM (202) 6064050
FTS (202) 606400 FTS (202) 6064050

SECRETARY OF LABOR
Complainant, OSHRC DOCKET
V. NO. 92-3102

TRW, INC.,
Respondent,
UAW, LOCAL 2400,
Authorized Employee
Representative.

NOTICE OF DOCKETING
OF ADMINISTRATIVE MW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on Otto iiier 7, 1993. The decision of the Judge
will become a final order of the Commission on November 8, 1993 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 etition should be received b the Executive Secretary on or before
October 27 , 1993 in order to ermit su rficient time for its review. See
Commission Rule 91, 29 C.F. Ii . 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
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, D.C. 20210

DOCKET NO. 92-3102

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) 606-5400.
FOR THE COMMISSION

/ii+4B+/%h~d
Date: October 7, 1993 Ray H. Darling, Jr.
Executive Secretary

DOCKET NO. 92-3102
NOTICE IS GIVEN TO THE FOLLOWING:

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

William S. Kloepfer
Assoc. Re ional Solicitor
Office of t%e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Robert M. Walter, Esq.
TRW, Inc.
Office of Counsel, Exec Offices
1900 Richmond Road
Cleveland, OH 44124

John L. Reichbaum, President
UAW, Local 2400
2500 Euclid Place, Suite 405
Euclid, OH 44117

Nancy J. Spies
Administrative Law Jud e
Occupational Safety an tf Health
Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

0010882747805

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119

PHONE: FAX:
COM (404) 3476197 COM (404) 347-0113
Frs (404) 347-4197 FTS (404) 347-0113

SECRETARY OF LABOR,
Complainant, .
.
v. .. OSHRC Docket No.: 92-3102
..
..
TRW, INC.,
..
Respondent,
..
.
and .
..

UAW, LOCAL 2400, .

Authorized Employee .
Representative. .

Appearances:

Betty Klaric, Esquire Robert M. Walter, Esquire
Office of the Solicitor Cleveland, Ohio
U. S. Department of Labor For Respondent
Cleveland, Ohio
For Complainant

John Reichbaum
For Authorized Employee
Representative

Before: Administrative Law Judge Nancy J. Spies

DECISION AND ORDER
On August 26,1992, the Secretary issued two citations to TRW, Inc. (TRW), alleging
violations of the Occupational Safety and Health Act of 1970 (Act).
. The citations resulted
from an inspection conducted on July 28, 1992, by Occupational Safety and Health
Administration (OSHA) industrial hygienist Sharon Danann. Prior to the hearing, the
parties settled item 1 of the Citation No. 1, which alleged a serious violation of

0 1910,157(g)(4) (Exhibit J-1; Tr. 6). Still at issue is item 1 of Citation No. 2, which alleges
a repeated violation of 5 191022(a)(2).
THE STANDARD
Section 1910.22(a)(2) provides:
The floor of every workroom shall be maintained in a clean and, so far
as possible, a dry condition. Where wet processes are used, drainage shall be
maintained, and false floors, platforms, mats, or other dry standing places
should be provided where practicable.
THE ALLEGED VIOLATION
Item 1 of Citation No. 2 alleges that TIRWviolated this standard in two instances:
(a) On July 28,1992, cutting oil formed puddles on the floor near adjacent
machines #34548 and #29808, Dept. 406, Bay G-8.
(b) On July 28, 1992, oil was dripping through the ceiling of the locker
room and accumulating on the floor.
BACKGROUND: INSTANCE la
Danann inspected TRWs manufacturing plant located at 1455 East 185th Street in
Cleveland, Ohio, in response to two employee complaints (Tr. 11-12). TRW manufactures
valves and valve train assembly parts. The 185th Street plant consists of a single building
covering approximately 18 acres (Tr. 108). After holding an opening conference, Danann
conducted a walk-around inspection of the plant accompanied by several of TRWs
representatives, as well as two union representatives (Tr. 13.14).
During the walk-around, Danann “saw puddles of coolant from two machines that
were adjacent to each other, and . . . a puddle of oil on the locker room floor” (Tr. 14).
TRWs maintenance welder, Timothy Mason, later referred to the liquid as grinding
lubricant (Tr. 71). Exhibit C-l is a photograph which shows a 4-fmt-by4fmt puddle of
liquid around the base of the steps leading to the operating area of the Cincinnati machine,
which grinds valves. An aisleway is about 1 to 1% feet away to the right of the puddle
(Tr. 1516,69). Exhibit C-2 shows liquid spilling out from an overflow pan around the base
of a Gardener machine, which also grinds valves. The liquid is 2 to 3 feet long and is near
a walkway between the machines (Tr. 16, 71). Danann testified that the operator of the
machine was exposed to the hazard of slipping and falling in the liquid (Tr. 17-18).

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THE VALIDITY OF THE INSPECTION OF INSTANCE lb
Danann inspected the men’s locker room #2 after being told by employees that there
was oil on the floor in there (Tr. 18). At the hearing, TRW attempted to show that it had
denied Danann permission to inspect the locker room, and that her inspection was thus
invalid. Ken Hawley, supervisor of health and safety for TRW, accompanied Danann on the
walk-around inspection (Tr. 13-14). He recounted what happened when Danann asked to
inspect the locker room (Tr. 129):
We stopped at the steps of the locker room, and she turned and said,
“Can I go up there and look and see what they want to show me?”
And, I said, “You’re the investigator, and you know the law.”
She said, “If you don’t give me permission, I won’t go.” And, I turned
around and walked away fYom her.
Hawley testified that he intended his actions to indicate that he denied Danann
permission to inspect the locker room (Tr. 129). Danann’s recollection of the exchange is
similar to Hawley’s, except that she recalls Hawley shrugging and turning away, not walking
away (Tr. 215-216). Danann interpreted Hawley’s silence to mean that he granted her
permission to inspect the locker room (Tr. 215-217).
Hawlev later testified in more detail regarding the incident (Tr. 163-164):
Hawley 00 And, I turned around and walked away.
.
Q *a Okay.
Hawley: Walked toward our destination. When I looked back, she was
going up the steps.
a
Q 00 What did you do?
Hawley: I ran up the stairs after her at that point.
a
Q em And, did you say, “I don’t want you to go in there”?
Hawley: No, I did not.
Q l
l * And, you accompanied her while she was there, didn’t you? As
she said, you saw her take photographs, et cetera. So, you were
there all the time during the inspection of that area, weren’t
3
YOU l

Hawley: Yes, I was.

Danann interpreted Hawley’s silence and his turning away in a manner different from
what Hawley says he intended. Hawley’s silence and his actions were ambiguous. When
Danann proceeded with her inspection, however, Hawley failed to tell her that he was
denying her permission to enter the locker room.
In Hawley’s version of the incident, Danann explicitly said, “If you don’t give me
permission, I won’t go.” Not only did Hawley not tell Danann that she did not have his
permission, he accompanied her on her inspection of the locker room without objection.
A reasonable person in Hawley’s position would have simply said at the outset that
he was denying the compliance officer permission to enter the locker room. And, if the
compliance officer misunderstood or ignored the denial and proceeded with the inspection,
a reasonable person would have stopped her and reiterated the denial. A reasonable person
in Danann’s position would have interpreted Hawley’s accompaniment into the locker room
without objection as evidence that its inspection was permitted. Based upon Hawley’s own
version of the incident, it is concluded that Hawley granted Danann permission to inspect
the locker room.
BACKGROUND: INSTANCE lb
Exhibit C-3 is a photograph of a tile floor at the doorway of the shower room. A
patch of oil is visible on the floor (Tr. 19). Exhl’bit C-4 shows the area of the ceiling above
the floor area depicted in C-3 from which the oil was leaking. Danann was informed that
the leak was an ongoing problem, which occurred on a day-to-day basis (Tr. 20). Mason
testified that the oil leak had been a problem for the fourteen years he had worked at the
plant (Tr. 56). The leak originated from a fan room located above the ceiling (Tr. 21-Z).
During the day shift, 50 to 75 employees would use the locker room (Tr. 72).
INSTANCE la
To establish a violation of a standard, the Secretary must show by a
preponderance of the evidence that: (1) the cited standard applies, (2) its
terms were not met, (3) employees had access to the violative condition, and
(4) the employer knew or could have known of it with the exercise of
reasonable diligence.

Seibel Modem Munufactwi#g & Welding Cop., 15 BNA OSHC 1218, 1991 CCH OSHD
Q 29,442, p. 39,678 (No. 88-821, 1991).

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There is no dispute that 5 1910.22(a)(2) applies to the circumstances cited in
instance la. The Secretary has established that the floor in the area of the Gardener and
Cincinnati machines was not maintained in a clean and dry condition. Danann testimony,
as well as E&bits C-1 and C-2 demonstrate that puddles of liquid were spilled onto the
floor around the two machines.
Larry Rush, TRW’s maintenance supervisor testified that “[t]he operators are
responsrble for cleaning around their machinery, around their equipment, and it gets out of
hand where it’s a bigger spill than what they can handle with just a mop, then the
maintenance people will go back with tanks and everything to help clean it up” (Tr. 179).
TRW contends that only the Gardener machine was operating on the day of Danann’s
inspection (Tr. 112-113, 152). Hawley attempted to establish that the two large puddles of
liquid pooled around the two adjacent machines both resulted from the Gardener machine.
His explanation, however, was labored and unconvincing (Tr. 114-115, 149-153). Visual
observation of Exhibits C-l and C-2 leads to the conclusion that the two puddles of liquid
are the result of two separate spills.
Furthermore, contending that it was the operator’s duty to clean up the spill does
nothing to relieve TRW of its duty to comply with 6 191022(a)(2). TRW is not asserting
an unpreventable employee misconduct defense, so the failure of the machine’s operator to
clean up the spill is imputed to TRW. The Secretary has established that the terms of
8 1910.22(a)(2) were not met.
The Secretary also established employee access to the spills. The operator of the
Gardener machine was exposed to the hazard, as well as anyone who happened to walk in
the area of the machines. Exhibit C-1 shows a yellow line to the right of the photograph
which marks a main aisleway (Tr. 1546).
Mason commented on the frequency of use of the aisleway: “It’s just a main aisle.
It’s a thorough fare where they’re going to and from their work stations or whatever
business, wherever they’re going to. It’s the main aisle” (Tr. 69-70). This testimony is
sufficient to establish employee access to the hazard. Access to the cited hazard exists when
employees are in the zone of danger while taking “their normal means of ingress-egress to

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their assigned workplaces.” Amour Food Co., 14 BNA OSHC 1817, 1824, 198790 CCH
OSHD 129,088, p. 38,886 (No. 86-247, 1990).
The Secretary has also established that TRW could have known of the spills with the
exercise of reasonable diligence. The spills were in an open area and were highly visible.
The secretary has proved the violation of 5 1910.22(a)(2) with regard to instance la.
INSTANCE lb
TRW argues that g 1910.22(a)(2) does not apply to the locker room cited in
instance lb. The standard refers to floors of “every workroom.‘* TRW contends that the
locker room was not a workroom within the meaning of the standard.
“Workroom” is not defined in the standards. The word is unambiguous, however,
and is commonly understood as a room where work is done. TRW conceded that work was
done in the locker room. Tyrone Drummer, supervisor of the maintenance department,
testified (Tr. 198):
A person on third shift, who we referred to as the matron, came up to
each locker room and changed the paper towels and toiletries up there and
also soap, and would mop the floor down.
We also had a second shift, an outside firm, who also cleaned -- did the
same things as the matron.
Hawley also conceded that the locker room was a work room (Tr. 161):
Q mm
l
And [the matron and the outside firm] were workers, weren’t

Hawley: Yes, they were.
Q l
mm And that was their work room, wasn’t it?
Hawley: That was their room to -- the whole plant is their work room.
They’re janitorial workers.
Q l
me But that was part of their work room, wasn’t it?
Hawley: Yes, I would assume so.
A l
l And, it was part of the work room of the maintenance people
who were sent up their to mop up, wasn’t it?
Hawley: Sure.

6

The Secretary has established that the locker room at issue was a workroom within
the meaning of 0 1910.22(a)(2). The standard applied to the locker room.’
The Secretary also established that the terms of the standard were not met. Danann
observed and photographed the oil leak on the locker room floor. Timothy Mason and
UAW, Local 2400, president John L. Reichbaum testified that the oil leak was an ongoing
problem in the locker room, and the subject of numerous employee complaints
(Tr. 5657,81).
TRW attempted to minimize the hazard, stating that the oil did not present any
significant risk. This argument is without merit. Reichbaum testified that employees
complained to him “and they would tell me about how many times people have slipped
there and how they always slipped . . .” (Tr. 81). An oil spill does not have to be
voluminous in order to pose a serious hazard to people. If a person inadvertently slips on
a patch of oil, even if it is a small amount, he or she has a likelihood of falling and injuring
himself or herself The oil on the locker floor was in noncompliance with 5 1910.22(a)(2).
The Secretary demonstrated that TRW’s employees had access to the hazardous
condition (Tr. 721.2
TRW also knew of the oil leak problem. During several of the monthly labor council
meetings held between the UAW, Local 2400, representatives andTRW representatives, the
problem was raised by the union (Tr. 57). Exhibit C-12 is a copy of the labor council’s
minutes for July 8, 1992. Page 2 of the minutes contains the following report:
B. Harkness reported that locker room #2 is on a regular maintenance
program of every two weeks to solve the oil leaking from the ceiling. Te
Mason stated that some employees are still complaining about the situation.
B. Harness to follow up.
The Secretary has established that TRW violated 0 1910.22(a)(2) with regard to
instance lb.
REPEAT CLASSIFICATION

t In his post-hearingbrief, the Secretary moved to amend instance lb of the citation to allege in the
alternativea violation of 0 191022(a)(l) (Secretary’s brief, p. 9). That motion is denied.

2 Subsequentto the inspection, the locker room was converted into a storage room (Tr. 201).

7

The Secretary alleged that item 1 of Citation No. 2 was a repeat violation of
0 1910.22(a)(2). “A violation is repeated under section 17(a) of the Act if, at the time of
the alleged repeated violation, there was a Commission final order against the same
employer for a substantially similar violation.” Potlatch Cop., 7 BNA OSHC 1061,
1979 CCH OSHD fl 23,294, p. 28,171 (No. 16183, 1979).
The Secretary introduced Exhibits C-6 through C-11, which documented various
previous violations of 8 1910.22(a)(2), and the fact that Commission final orders were
entered against TRW for the violations. TRW’s violation of 6 1910.22(a)(2) is classified as
a repeat violation.
PENALTY DETERMINATION
The Commission is the final arbiter of penalties in all contested cases. Secretary v.
OSAHIRCand Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the
Act, in determining the appropriate penalty the Commission is required to find and give
“due consideration” to (1) the size of the employer’s business, (2) the gravity of the
violation, (3) the good faith of the employer, and (4) the history of previous violations. The
gravity of the violation is the principal factor to be considered.
Based upon the relevant factors, a penalty of $3,400.00 is appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF MW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is
ORDERED: That the violation of 0 1910.22(a)(2) is affirmed as a repeat violation
with a penalty of $3,400.00 assessed.

/s/ Nancy J. Spies .
NANCY J. SPIES
Judge
Date: September 29, 1993

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