Bermudez & Longo, S.E.

Plain-English summary

OSHA inspected Bermudez & Longo's construction site in Guaynabo, Puerto Rico. The judge affirmed two serious grinder violations because an accessible bench grinder used by employees lacked a work rest and a safety guard, assessing $375 for each item. He vacated a third grinder item because the Secretary did not overcome evidence that grinding wheels were inspected and ring-tested at the company's warehouse before being sent to jobsites. The judge also affirmed a serious electrical-enclosure violation involving a junction box kept outdoors without adequate weather protection and assessed $1,125. An uncovered opening in a circuit-breaker panel was affirmed as other-than-serious with no penalty. Total penalties were $1,875.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.303(c)(2), 1926.303(c)(5), 1926.303(c)(7), 1926.405(e)(1), and 1926.405(b)(1).
• Outcome: Mixed. Four items were affirmed, one grinder-testing item was vacated, and $1,875 was assessed.
• Key point: Equipment need not be operating during an inspection when it remains available for employee use, but the Secretary still bears the burden on each distinct requirement.

Full text (OSHRC public release)

                        UNITED STATES OF AMERICA

OCCUPATIONAL‘SAFETY AND HEALTH REVIEW COMMISSION
One LafayetteCentfe
1120 20th Street, N.\N. - 9th Floor
Washington, DC 200364419

SECRETARY OF LABOR
Complainant, *
v. OSHRC DOCKET
NO. 92-3132
BERMUDEZ & LONGO, S. E.
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINKIRATIVE MW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on November 19, 1993. The decision of the Judge
will become a final order of the Commission on December 20, 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 petition should be received by the Executive Secretary on or before
December 9 1993 in order to ermit sufficient time for its review. See
Commission’Rule 91, 29 C.F.Ef: 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 Liti ation
Oflice of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE CO

Date: November 19, 1993
DOCKET NO. 92-3132
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re '01181Trial Liti ation
Office of the So
%lcitor, U.S. DOc
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Robert Letianc Romero, Esquire
Martinez-Alvarez, Femandez, Paoli
Menendez,. Monroig
Suite 407
Centro De Seguros Building
Santurce,, PR 00907

Irvin Sommer
Chie f Administrative Law Jud e
Occupational Safety and Healt!I
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00017983263:02
 OCCUPAJ-~ONAL
SA~~N~~~‘~“c~E”,EW Commission
One Lafayette Cents
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

SECRETARY OF LABOR, .
.

 Complainant,                 .
                              .
      v.                      .
                              .      Docket No.          92-3132
                              .

BERMUDEZ & LONGO, S.E., .
.
.

 Respondent.

Appearances:

VJane S. Brunner, Esq. Roberto Lefranc-Romero, Esq.
U.S. Department of Labor Santurce, Puerto Rico
New York, New York

For the Complainant For the Respondent

Before: Administrative Law Judge Irving Sommer

      This is a proceeding under Section 10(c) of the Occupa-

tional Safety and Health Act of 1970, 29 U.S.C. section 651 &
sea. J ("the Act"), to review citations issued by the Secretary
of Labor pursuant to section 9(a) of the Act, and the proposed
assessment 'of penalties therein issued J pursuant to section 10(a)
of the Act.
 - 2-

         Respondent     is    a    corporationwhich was   engaged  in

construction contracting and related activities. On May 12-15,
1992 f Bermudez & Longo's worksite at Road 165 and Road 28 Amelia
Ward, Guaynabo, Puerto Rico was inspected by an OSHA compliance
officer. Subsequently, on August 25, 1992, the company received
two citations resulting from this inspection. Respondent filed a
timely notice of contest to the citations
and penalties. A
hearing was held on May 20, 1993, in Hato Rey, Puerto Rico. Both
parties were represented at the hearing and both parties have
filed post-hearing briefs. No jurisdictional issues are in
dispute. The matter is now before the undersigned for a decision
on the merits.

Serious Citation 1, item la alleges:
Floor or bench-mounted grinder(s) were not provided with
work rests.

         The Secretary alleges that Respondent failed to provide

work rests on a grinding machine. At the hearing on May 20,
1993, the compliance officer, Hipolito Maldonado, testified that
he observed a grinding wheel at Respondent’s construction site
that was not provided with work rests. The compliance officer
was accompanied during his inspection by Respondent’s electrical
supervisor, Mr. Collazo, Respondent's engineer and electrical
foreman, Mr. Nater, and Respondent's safety engineer, Mr. Diaz.
The compliance officer noted that at the time of the inspection
the grinding wheel was not in use. However, Respondent’s
management officials ostensibly acknowledged to Mr. Maldonado)
although there was some apparent disagreement, that the grinding
wheel was used by Respondent's employees at least once a day to
sharpen screw drivers and chisels.
 The compliance officer further testified that
Respondent's employees would come "within a few inches"
when using the grinding wheel since the screw drivers and chisels
being sharpened were only a few inches long.
The employees using
the wheel could be exposed to the hazard that the wheel of the
grinder could "grab" the screw driver or chisel being sharpened
and pull it into the wheel, resulting in lacerations and possibly
an employee's hand being caught in the wheel, or resulting in the
wheel breaking, which could lead to the employee's body being
pierced with pieces of the grinding wheel (transcript, p. 7-13,
P* 37-41). The compliance officer's testimony was also supported
by photographic evidence (exhibit C-l).

            Respondent acknowledges that                        there was a bench           grinding

wheel at the worksite which was not provided with a work rest.
However, Respondent argues that the compliance officer did not
see the grinding wheel being used by any of Respondent's
employees. Furthermore, Respondent's safety engineer, Mr. Diaz,
testif ied at the hearing that he had ordered that the bench
grinding machine be removed from use at the project and taken
back to the warehouse to Put it in compliance with safety
regulations. However, Mr. Collazo, Respondent's electrical
supervisor, testified that though Mr. Diaz had indeed ordered the
machine not to be used further, Respondent's foreman, Mr. Nater,
apparently kept it there for further use (transcript, p. 760 85,
Respondent's brief, p. 2-4). In addition, Respondent argues that
even if the standard was violated, none of Respondent's employees
were exposed to the hazard. Further, the
Respondent contends
that since the compliance officer did not see any of Respondent's
employees using the grinding wheel, the hazard to which the
employees were allegedly exposed was only speculative
(Respondent's brief, p. 3-4).
 - 4-

           The totality of the                evidence concerning this                   citation

item establishes a violation of the standard as cited. Although
the compliance officer did not see the grinding machine being
used by Respondent's employees during his inspection, nonetheless
case law merely requires a finding that a machine is in a
violative condition and is accessible and available for use by
the Respondent's employees.See Bechtel&m&uny, 7 BNA
OSHC 1361 (NO. 13832, 1979), wesmrne . .
Dru. Inc. a 5 BNA OSHC
1457 (No. 15631, 1977). The Secretary has proposed an $1,125
total amended penalty for citation items Ia, lb, and lc. A
review the hearing
of all the relevant factors, transcript, and
the official case record fully establishes that a penalty of $375
is appropriate for citation item la.

                       .    .                    .
                       lolatlgn of 29 C.F.R. sect,lgn 1926.303(~)(s)

Serious Citation 1, item lb alleges:
Abrasive wheels were not provided with safety guards to
retain fragments of the wheel in case of accidental
breakage.

      The Secretary alleges that Respondent failed to provide

safety guards on a grinding machine. At the hearing, Mr.
Maldonado testified that he observed that the same bench grinding
wheel as cited in citation item la was not
provided with safety
guards to retain fragments of the wheel in the case of accidental
breakage. The compliance officer noted that if the grinding
wheel broke while being used by one of Respondent's employees,
the employee's body could be pierced with pieces of the wheel
since the safety guards were missing. Mr. Maldonado testif ied
that the pieces from the wheel could"fragment like a rocket"
as the grinding wheel revolved at 3,500 rpm (transcript, p. 130
16, P- 420 46). The Secretary further notes in his brief to
prevent confusion that ” there were references by various
witnesses throughout the hearing to "tongue guards’ ’,
"retaining guards”, and *‘safety guards". As the compliance
officer testified, these are simply different names for the same
thing" (Secretary’s brief, footnote 3 at page 8). The
compliance officer's testimony was also supported by photographic
evidence (exhibit C-l).

         Respondent counters that the                        bench grinding wheel                    did

have the required safety guard. Respondent maintains that its
assertion is supported by the Secretary’s exhibit C-l
(Respondent’s brief, p. 4). However, Respondent's witness, Mr.
Diaz, testified at the hearing that the tongue guard was missing
from the machine (transcript, p. 81).

         A       preponderance             of     the credible          evidence           upholds         a

finding of a violation of the standard as cited. Under all the
existing facts and circumstances herein, a penalty of $375 for
citation item lb is consistent with the criteria set forth in
section 17(j) of the Act.

                        .      .                       .
                        lol&lon       gf 29 C.F.R. section 1926.303(c)(7)

Serious Citation 1, item lc alleges:
Abrasive wheels were not inspected and ring-tested to ensure
that they are free from cracks or defects before mounting on
grinding machines.

          The Secretary alleges that Respondent failed to perform

an inspection and ring testing on a grinding machine. Mr.
Maldonado testified at the hearing that he cited Respondent for a
violation of the standard as cited on the same bench grinding
wheel as cited in citation items la and lb. This standard
requires that abrasive wheels be inspected and ring tested before
mounting on grinding machines to ensure that they are free from
cracks or defects.
 The compliance officer noted that the
inspection
required is a visual inspection. He described ring testing as a
test where the wheel is hung by a piece of string and then hit
with the plastic handle of a screw driver in four different
places at 45 degree angles from each other to ascertain that the
wheel does not have any internal cracks. Mr. Maldonado further
testified that he questioned Respondent’s electrical supervisor,
Mr. Collazo, and Respondent’s engineer and electrical foreman,
Mr I Nater, on the inspection
the day of whether or not the
grinding wheel had been inspected and ring tested. They answered
that the wheel had not been inspected or ring tested. They
further indicated that they did not even know how to perform a
ring test. The compliance officer also noted that Respondent’s
employees were exposed to the hazard that the wheel could break
while being used and the fragments of the wheel could pierce an
employee’s body and seriously injure him (transcript, p. 1648,
Secretary’s brief, p. S-10).

            Respondent argues that the standard cited only requires

that a grinding wheel be inspected and ring tested to ensure that
it is free from cracks and defects prior to being mounted on a
grinding machine. Respondent’s safety engineer,Diaz, Mr.
testified at the hearing that he had inspected the grinding wheel
but had not ring tested it. Furthermore, though he could not
specifically verify who ring tested this particular grinding
wheel or when, as no records were kept or required to be kept
regarding this, the company's regular procedure was to have all
grinding wheels purchased, inspected and ring tested at the
storage warehouse area prior to being sent out to be utilized
(transcript, p. 78-82, Respondent’s brief, p- 4-5).

            Taking          into consideration all                  the record evidence and

credible testimony presented regarding this citation item, the
 L -
7

Secretary has failed to establish the existence of the recognized
hazard as cited. Accordingly, since the Secretary has failed to
prove a violation of the standard by a preponderance of the
evidence, this citation item and proposed penalty are hereby
vacated.

                                                          SectIon.
          .        .         .
        rloqs vlolatmn           of 29 C.F.R.                         192&4Os(~)(l)

Serious Citation 1, item 2 alleges:
Cabinets, cutout boxes, boxes, and panel-board
fittings,
enclosures in damp or wet locations were not installed so as
to prevent moisture or water from entering and accumulating
within the enclosures.

        The      Secretary        alleges             that Respondent        violated    the

standard that requires that electric junction boxes that are
placed in damp or wet
locations shall be insulated so as to
prevent moisture or water from entering within the enclosure.
The compliance officer testified at the hearing that during
his inspection he had observed a junction box, which was lying on
top of a tire on a truck, partially on the tire and partially off
the tire to the outside of the truck.
Mr. Maldonado also noted
that the junction box contained electrical wiring and was located
outside where rain could get into the box. The junction box was
not properly weather-proofed as there were holes in the box which
were not covered, and there was no insulation.
The compliance
officer further added that the junction box powered an ice-making
machine which Respondent’s employees utilized daily.
Responden t’s employees were the exposed
hazard of to
electrocution because of the alleged violation of the standard as
cited (transcript, p. 52-64, Secretary’s brief, p. 1143).
The
compliance officer’s testimony was also supported by photographic
evidence (exhibits C-2, C-3, and joint exhibit 1).
 - 8-

            The Secretary                 also addressed in his brief Respondent’s

argument that if a violation of the standard is determined to
exist, the violation was caused by the compliance officer’s
action box in order to take pictures of
of moving the junction
the alleged violation. The Secretary contends that this
allegation was emphatically denied by the compliance officer at
the hearing. In addition, even if the compliance officer had
moved the junction box, the fact remains that the junction box
was in an outside location with no roof over the truck and there
still was a violation of the standard as cited (Secretary’s
brief, p. 12-13).

            Respondent                contends that              the standard             cited         was       not

violated. The electric junction box in question had been located
over the interior tire of the double set of tires at the rear
part of the trailer. This interior tire was about 8-10 inches
inside the border of the body of the trailer, making it almost
impossible for water to get
the box. intoIn addition,
Respondent argues that the rubber tire on which the junction box
was placed served as an insulator. Further, the placement of the
ice-maker in front of the junction box also protected it from
getting wet (transcript, p. 55-64, Respondent’s brief, p. 6-7).

            The        Respondent               also      strongly        asserted            that          if          a

violation was found to exist, the compliance officer created the
violative condition. Respondent contends that the junction box
had been resting on the tire completely under the truck until Mr.
Maldonado’s inspection. During the inspection, the compliance
officer moved the .junction box from its original position over
the interior tire to the exterior edge of the outside tire. At
this point, the compliance officer took pictures of the alleged
. ‘violation’ ’ (exhibits C-2 and C-3), which in no way reflected
the actual existing condition or placement of the junction box
prior to Mr. Maldonado's action of moving the junction box in
order to take pictures of the
alleged violation (transcript, p.
55-64, p. 71-76, Respondent's brief, pa 6-7).

      As to this citation item, I find that the Secretary has

established a violation of the standard by a preponderance of the
evidence presented. The evidence further reflects that the
Respondent knew or should have known of the hazard. The
violative condition was readily visible and obvious.
Accordingly, the citation and proposed penalty as amended are
affirmed.

                                                            sect,lon.
                     .           .
              r    vl~1-n              pf    29   caFaRm                      19~     40Fi(b)(ll

Other Citation 2, item 1 alleges:
Unused openings in cabinets, boxes, and fittings were not
effectively closed.

            The     Secretary alleges that
                                   Respondent failed to cover

an unused opening in a circuit breaker panel. At the hearing
Mr . Maldonado testified that at the time of the inspection he
observed the circuit breaker panel with an unused opening not
covered. The compliance officer learned during the
inspection
from Mr. Nater and Mr. Collazo that the unused opening had been
there for several days. In addition, Respondent's supervisory
officials informed the compliance officer that the employees
normally set the circuit breakers each morning to turn on the
power for the worksite when they arrived and also turned off the
power at the end of each workday as they left (transcript, p. 310
36 9 Secretary’s brief, p.
13-15). The compliance officer's
testimony was also supported by photographic evidence (exhibit C-
4) .
 Respondent argues that the standard cited was not
violated. Further, the opening in question, i.e.
the unused
opening in the circuit breaker panel, "is a hole so small that
even intentionally, your small finger will not go through it and
even if it did go through, there is no electric power behind it”
(Respondent's brief, p. 7). The Respondent also asserts that the
Secretary cited Respondent for a violation of an inapplicable
standard,, as the standard cited is in the electrical section and
does not apply to the oocurrence of cuts or bruises to employees.
In addition, Respondent contends that even if a violation was
found to exist, Respondent's employees were not exposed to it
(transcript, p. 6506Sj Respondent's brief, p. 7-8).

        The      record evidence       testimony relating
                                       and                                    to        this

citation fully demonstrate a violation of the standard as cited.
The violation was obvious and discernible by mere observation.
Consequently, an other violation has been established.

        All     findings     of fact     and conclusions of            law    relevant

and necessary to a determination of the contested issues have
been found specifically and appear herein. See Rule 52(a) of the
Federal Rules of Civil Procedure. Proposed Findings of Fact or
Conclusions of Law inconsistent with this decision are denied.
BE3ed upon the Findings of Fact, Conclusions of Law, and the
entire record, it is hereby ordered:

1 Citation 1, item la, alleging a serious violation of 29
C1F.R. section 1926.303(c)(Z), i.saffirmed and a penalty of $375
is assessed.

2 Citation 1, item lb, alleging a serious violation of 29
C1F.R. section 1926.303(c)(5), is affirmed and a penalty of $375
is assessed.

3. Citation 1, item lc, alleging a serious violation of 29
   C.F.R. section 1926.303(c)(7), is vacated.

4 Citation 1, item 2, alleging a serious violation of 29
C:F.R. section 1926.405(e)(l), is affirmed and a penalty of
$1,125 is assessed.

5 Citation 2, item 1, alleging an other violation of 29 C.F.R.
section 1926.405(b)(l), is affirmed and a penalty of $0 is
assessed.

                                    IRVING SaMMER
                                    Judge, OSHRC

DATED: uov i 9 1393
Washington, D.C.