Bionetics Corp.

Plain-English summary

Bionetics employees retrieved film from camera boxes on a mobile launch platform at Kennedy Space Center after space shuttle launches. During two launches, blast-hole and perimeter guardrails had been removed, the deck was wet and windy, and employees approached cameras within a few feet of potential 95-foot interior falls and 45-foot perimeter falls before they could tie off. Employees also crossed a ramp with a three-foot gap in its guardrail. Although NASA created and controlled the launch-platform conditions, the judge rejected Bionetics' multi-employer defense because it could have requested a weather delay, explored retractable lifelines earlier, or asked NASA to correct the ramp gap. The judge affirmed three serious fall-hazard items and assessed penalties totaling $2,750. A hazard-communication item was vacated because the evidence supported that employees had received site training and could locate the program, while the employee who could not recall its location kept his own safety data sheets.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.22(c), 1910.23(c)(1), 1910.23(c)(2), and 1910.1200(h)(1).
• Outcome: Mixed. Three serious fall-hazard items were affirmed for $2,750 total, and one other-than-serious hazard-communication item was vacated.
• Key point: A contractor must take realistic measures to protect its employees from hazards controlled by another entity, even where the controlling entity is NASA and the work follows a tightly managed launch sequence.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0056
BIONETICS CORPORATTION
Respondent.

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

docketed with the Commission on December 8, 1994. The decision of the Judge
will become a final order of the Commission on January 9, 1995 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 28, 1994 in order to permit sufficient time for its review. See
Commission Rule 91,29 C.F.R. 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. 2003603419

Petitioning parties shah also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
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
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: December 8, 1994
DOCKET NO. 93-0056
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Jaylynn Fortney
Re ‘onal Solicitor
O&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

Charles H. Burr, Esquire
The Bionetics Corporation
Tenth Floor, Suite 1000
Harbour Centre Building
2 Eaton Street
Hampton, VA 23669

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

00106491590:04
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, NE., SUITE 240
ATLANTA. GEORGiA 30309-3119

PHONE. FAX.
COM (404) 3474197 COM (404) 347-01:3
Frs (404) 3474197 ns (404) 347-01:3

SECRETARY OF LABOR,
Complainant,

              v.                                               OSHRC Docket No. 93-56

THE BIONETICS CORPORATION,
Respondent.

APPEARANCES: .

    Stanley E Keen, Esquire                                    Charles H. Btur, Esquire
            Office of the Solicitor                                    The Bionetik Corp.
            U. S. Department of Labor                                  Hampton, Virginia
            Atlanta, Georgia                                                   For Respondent
                     For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                   DECISION AND OROER

    Bionetics Corp. (Bionetics) contests separate serious and nonserious citations issued

to it by the Occupational Safety and Health Administration (OSHA) on December 9,1992,
under the Occupational Safety and Health Act of 1970 (Act).’ The citations followed an
August 31 through October 29, 1992 inspection by OSHA Compliance Officer Keven
Yarbrough. The alleged serious violations occurred while Bionetics employees worked on
the Mobile Launch Platform (MLJ?) at the Kennedy Space Center (KSC), Florida, and
participated in the nation’s space shuttle launch.

’ At the hearing, the Secretary withdrew items 4 and 5 of the serious citation p. 7).
 +- r’Q-
.,-
. . - ..,, .:,: -... --- _
.

      Specifically,OSHA charges that Bionetics violated 0 1910.22(c) by failing to guard

interior blast holes, 8 1910.23(c)(l) by failing to guard the exterior perimeter of the MLP
workstation, and 8 1910.23(c)(Z)by failing to guard the access ramp to the MLP. Identical
violations were alleged for other contractors as well as for NA%L2 The nonserious citation
alleges that Bionetics failed to inform its employees of the existence, location and contents
of its hazard communication program in violation of 6 1910.1200(h)(1).
Bionetics is a diverse defense-related company, with its corporate headquarters in
Hampton, Virginia. In January 1992, Bionetics entered into a contract with the United
States Air Force requiring it to take and process photographs at various government
installations. This included photographing the space shuttle launches at KSC (Tr. 269).
Bionetics denies that its employees were exposed to the hazards OSHA alleges and asserts
affirmative defenses.

                       Background-The Mobile Launch Plafform

      During an earlier stage of the launch process, one of the space shuttles was mounted

onto the MU? at the Vehicle Assembly Building. When fully prepared, the MLP with the
shuttle in place was driven to the launch pad. The Fixed Service Structure, a work staging
area, was also mobile and was moved to or from the MLP depending upon the stage of the
shuttle launch (ML C-2; Tr. 53,88, 100).
The Mobile Launch Platform itself is a large rectangular structure made of reinforced
steel rising 45 feet above ground level (Tr. 26)3 The M has interior levels but the top
of the MLP, the “zero deck level,” was the work location at issue. Fall protection on the
MLP consisted of “removable guardrails.” The guardrails were designed to be removable
because they were not “survivable,” Le., they could not survive the fire and force of a shuttle
launch.

2 Decisions issued in the consolidated case, Rockwell Intemutiortaf Cizp, U.S.B.I Co, h4dih M&m Mimed
Space hems and lXcM Cotp., Docket Nos. 93.54,93-228,93-233 and 93-234, respectively; and completer
Sciences Rapheon, Docket No, 93-232, also involved these asserted violations. Each decision was based on
a separate rexord.

3 In the early 1970s NASA built three mobile launch platiorms to launch its spacecraft including more
recently, the space shuttle. NASA variously uses three launch platforms. For purposesof this decision, the
three are without significant differences fir. 32,37,70, 168).
 .
: ._
I t. 4’ .
..a.
.l,
*
w
i-. .
. . -* a

    During the shuttle launches of June 25 and July 31, 1992, removable guardrails

protected three large interior openings in the MLP. These guardrails were removed to
accommodate the shuttle’s main engine (positioned over the largest opening) and two solid
rocket boosters (SRBs) (sitting over the two smaller, parallel openings). These three blast
holes descended through the MLP into the trough of a “flame trench.” The flame trench
minimized damage from the rocket blasts. The distance from the zero level deck to the base
of the flame trench measured 95 feet (Tr. 99, 103).
Removable gmmhii also protected the fdur sides of the perimeter of the MU until
the shuttle was readied for launch. The perimeter distance from the zero level deck to the
ground level was 45 feet (Tr. 26).
Functioning much as a drawbridge, a portion of a ramp 6 to 8 feet long and 5 feet
wide was lowered between the Fixed Service Structure and the MLP to allow access (Tr. 25).
Prior to the September 12 launch, there was a gap in the ramp guardrails of approximately
3 feet. The distance from the ramp to the ground was 45 feet (Tr. 26).

                                   CITATION NO. 1

       Items 1 and 2: Alleged Violations of 5 1910.22(c) and §1910.23(c)(l)

      After the shuttle had lifted off and the site had been cleared by NASA safety

personnel, the Fixed Surface Structure was moved back beside the MLP. The ramp was
lowered between the structures, and Bionetics employees began removing film from camera
boxes located in specific areas on the MLP (Tr. 121, 122). Retrieval of the film required
employees to approach near the perimeter and near interior blast holes on the MLP.
The Secretary contends that the unguarded blast hole openings presented a fail
hazard to Bionetics’ employees in violation of 0 1910.22(c)4 and that the unguarded

4 The standard requires:

   #1910.22(c).Covers and guw&zik Covers and/or guardrails shall be provided to protect
   personnel from the hazards of open pits, tanks, vats, ditches, etc,

. - *,. -

perimeter exposed them to a fall hazard in violation of 8 1910.23(c)(l)? The guardrails
protecting the blast holes and the perimeter, which had been removed prior to launch,
would not be completely replaced until after Bionetics had retrieved its film from the MLP
(Tr. 103).
The Secretary admits that Bionetics was not in violation of these standards during the
September 12, 1992 launch. (Employees used retractable lifelines to access camera boxes
on September 12, 1992.) The asserted violation is based upon employee testimony of
conditions existing after the earlier June 25 and July 31, 1992 launches. Since Bionetics
furnished employees body harnesses and lanyards and enforced tying off when employees
reached the camera boxes, the Secretary’s charge is fkrther limited to exposure while
employees approached the camera boxes without fall protection (Tr. 9, 57,60, 103).
To establish a violation of a specific standard, the Secretary must prove by a
preponderance of the evidence that (1) the standard applies to the working conditions,
(2) the terms of the standard were not met, (3) employees had access to the condition, and
(4) the employer either knew of the condition or could have known with the exercise of
reasonable diligence. E.g., Kidkz Chszr, Mg Cop., 15 BNA OSHC 1870, 1992 CCH
OSHD li 29,829 (No. 88-1167,1992);A~u Pharmaceutical prods., 9 BNA OSHC 2126,2129,
1981 CCH OSHD K&578, pp. 31,899~900 (No. 78-6247, 1981), affd in pertirtent part,
681 F.2d 69 (1st Cir. 1982).

                                     June 25,1992 Launch

   The weather conditions existing during the June 2!5,1992launch were unusually windy

but, given the geographical location of the MLP, should not have been unexpected
(Tr. 124125,279). Bionetics’ employee Steven Hiis described the weather on the MLP on
June 25 as follows:

’ The standard provides:

   $ 191023(c). Protection of open-sided floats, patfiom, a& runways. (1) Every open-sided
   floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a
   standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open
   sides except where there is entrance to a ramp, stairway, or fixed ladder. . .  l




                                                  4

It was around . 2:00 p.m. There was a high wind condition. As I recall, it
l l

     was 40 knots. I think that came born the loudspeaker on the pad!

     And, the wind--the way the structure is located, the wind does a lot of
     different things . . . the wind was coming up through the openings in the
     decks. And, any of the deluge water that’s still dripping was blowing vertical.
     In some places, it WAS blowing horizontal . .          l   l




     [The stiace] was real wet because the water was being blown all over the
     deck . . But enough water is dripping out of them that it’s continuing to
           l    l




     flow, like a half turn of a faucet at a house. And, there was residue from the
     solids on the deck, and that is generally pretty slippery frr. 109,110).

Employee exposure must be assessed within this COIWXL

                                    The Interior Flame Holes

     Mounted on the zero level deck were thirty-two camera boxes which were used to

photograph the shuttle launch, (EA. C-4).’
Employees retrieved film from three of the camera boxes (E-17, E-18, and EX-4)
located on a “ledge” formed between the blast holes for the SRBs and the blast hole for the
main rocket engine. Depending upon which MLP was used, this area varied from 6 feet
9 inches to 7 feet 11 inches (Tr. 32, 33). Employees approached camera boxes E-17 and
E-18 by walking along the ledge (Tr. 136137). In this area were raised plates, pipes and
other tripping hazards (E&e C-6; Tr. 137). Thus, although employees were tied off after
they arrived at the camera boxes, as they approached these cameras, they were necessar@
within 4 feet of the unguarded blast hole edges and a potential f&Uof 95 feet.

6 It may be likely that the wind speed did not actually reached 40 knots. However, this was the announcement
that Hills and Joseph recalled hearing. There is no dispute that, as a Bionetics’ supervisor put it, “The winds
got quite strong out there” (‘IV.258).

’ Each camera box on the MLP is represented in Exhibit C-4 as E-l through E-28 and EX-1 through EXd.
The Secretary alleges that cameras EX-4, E-17, and E-18 presented a hazard of falls into flame holes.
(Although the Secretary contends that EX-1 would have presented a hazard, there is no evidence that any
employee sewiced that camera during the subject launches.) Camera boxes E-l, E-2, E-3, E-4, E-S, E4 E-23,
and E-24 allegedly exposed employees to perimeter falls (Exh. C-Q;Tr. 41). On either or both of the June 25
or July 31,1!992launches, employees sewiced these camera box= (Exh. G4, pp.2-5; Tr. 99,183-U, 215-217
and 225426).
 Employees also retrieved film from eight perimeter camera boxes (E-l, E-2, E-3, E-4,
E-5, E-6, E-23 and E-24). When approaching cameras E-l through E-6, employees were
no more than 6 feet from an unprotected perimeter edge (EA. C-5; Tr.41). As the activity
is illustrated in photograph Exhibit R-3 (on an unidentified date), Hills had his back to the
perimeter edge, substantially closer than 6 feet to that edge (Tr. 174).
Of special concern were cameras E-23 and E-24. These cameras were located along
the midpoint of the south perimeter of the MLP. The cameras extended over another 4-foot
wide ledge, which this time was formed between the southern end of the main engine blast
hole and the southern perimeter of the MU?. On June 25,1992, employee Sandra Joseph
was assigned to retrieve film from cameras E-23 &d E-24 (Tr. 190). Like Hills, she
descnid how the weather “started to cloud up and get dark. And, we heard over the
intercom l . . ‘winds gusting up to 40 knots.’ And, it was pretty dangerous out there”
(Tr. 189). Although Hills and Joseph informed their supervisors, Scott Haun or Dan Cahill,
of their particular apprehension about retrieving film from E-23 and E-24, Haun directed
Joseph to “go do it” (Tr. 191, 193). Joseph “knelt down and crawled to those two boxes
out there” (Tr. 191). Joseph later acknowledged that before she crawled to the cameras,
Haun offered her the alternative of having someone else retrieve the cameras, Assuming
this would simply mean her partner would be assigned the task, she declined the option
pr. 1%).

                                       Exposum

   Bionetics argues that there was no exposure because employees were cautious in

approaching the cameras, tied off after reaching them, and proceeded without accident,
Cautiousness does not negate exposure. The absence of injuries does not preclude a finding
of exposure. Indeed, “[o]ne purpose of the Act is to prevent the first accident.” Lee Wii
1Mot~~Freehr; Ibe VeSec., 511 Fe2d 864, 870 (10th Cir. 1975); Simpex ‘ITme Recorder Cd,
766 Fe2d at 588 (Dec. Cire 1985). Exposure to a “zone of danger” exists in objective terms,
CortsoLAlum COP., 9 BNA OSHC 1981, CCH OSHD 125,069 (Noe 77-1091, 1980).

                                           6

As stated, the surface of the MLP was uneven and wet, and had potential tripping
hazards. The weather was windy. Employees walked or crawled along ledges where they
were no more than 4 feet from the edges of interior or perimeter fall hazards. They carried
sensitive equipment, which as Hills noted, “You try to be [aware of tripping hazards].
You’re holding a $40,000camera. You don’t want to drop that either” (Tr. 139). Under
these conditions, employees were exposed to the zone of danger. A fall of 45 feet or 95 feet
would predictably result in death.

                                          Knowledge

    Bionetics argues that it was without knowledge of the hazard because it was a

relatively new contractor. While it was true that Bionetics performed work on the contract
only since January 1, 1992, it was aware of the configuration of the camera boxes. Many
Bionetics’ employees, including supervisory employees, had been employees of the previous
contractor (Tr. 145, 346). “Knowledge” is not awareness of being in violation of a cited
standard but simply awareness of the physical conditions constituting a violation. Hamilton
Fixture, 16 BNA OSHC 1889,1993 CCH OSHD ll30,034 (No. 88-1720,1993), citing Shaw
C~MK, 6 BNA OSHC 1341-43, 1978 CCH OSHD ll 22,524 (No. 3324, 1978). Further,
Bionetics’ supervisor specifically directed Joseph to perform work which exposed her to the
violation.

                                           Defenses

    Bionetics contends that under the precedent of the Arming Johnson/Grossman rule,

it has established the mul,&employer worksite defense.’ That defense requires an employer,
who did not create or control the violative condition, to establish that alternative protective
measures were used or were unavailable. The burden of establishing each element of the
defense lies with the employer. SeibeZ Mix&m Mfg. & We&iing Corp., 15 BNA

’ An&g-Johnron Co., 4 BNA OSHC 1193,1199,1975-76 CCH OSHD pp. 20,690,24,784 (No. 3694,1976)
(consolidated cases) and Grvssman Steel & Alh Gqx, 4 BNA OSHC 1185,1188-89,1975-76 CCH OSHD
pp. 20,691,24,791 (No. 12775,1976).

g Although the&&g Johnson/Grossman rule pertains to construction worksites, it can be applicable in this
general industry case because the fact situation presents such unique similarities to a construction site

                                               7

OSHC 1218, 122628,199l CCH OSHD i 29,442, pp. 39,682.85 (No. 88-821,1991)(burden
of proof for alternative methods of protection upon the employer).
Nasa Created and Controlledthe Hazard. NASA built the MLP, and it established the
time sequence under which guardrails were removed and reinstalled and the film retrieved
(Tr. 57, 72). Bionetics lacked authority or expertise to abate the violation by covering or
guarding the flame holes or the perimeter. Such activity would be contrary to NASA’s
master sequencing plan. Further, extraneous materials could damage the shuttle and were
not allowed on the MLP (Tr. 71). NASA, not Bionetics, created and controlled the hazards
on the MU?.
NASA’S Role. The Secretary suggests that the relationship of NASA and Bionetics *
is best analogized to that of a general contractor and its subcontractor on any multi-
employer worksite. To the extent the analogy applies, it is with a significant caveat. The
“general contractor” was NASA. NASA is responsible for launches of the nation’s space
shuttle, an achievement of monumental technical complex@. NASA asserts control over the
precise timing and detailed sequencing of the myriad activities needed to launch and land
the shuttle. This is especially true for the work on the MLP immediately before and after
the launch. NASA strictly enforces what items can be taken onto the MLP and what
activities can be performed there. NASA monitors all post-launch operations on the MLP
(Tr. 71-73, 362).
NASA’s status may logically impart a degree of confidence that when NASA
required its contractor to perform activities on the MLP immediately after the launch, it was
necessary that the task be performed at that time. It might also be inferred that NASA
considered safety when the task was assigned. However, even recognizing NASA’s role,
NASA’s contractors were not completely relieved of their obligation to protect their own
employees while they were on the MLP. NASA’s expertise is but one factor to be evaluated
in determining the reasonableness of the alternative measures an employer may utilize to
protect its employees from the hazards.
Bibnetks AlternativeMeawa. Realistic measures can be less than fi4l compliance
because “[w]hat is realistic depends upon a balance of the hazard involved with
considerations of efficiency, economy, and equity.” Hayden Electrii Sews., 4 BNA
 OSHC 1494,1495,1976-77 CCH OSHD li 20,939, p. 25,149 (No. 4034,1976). The conduct
must be viewed in its totality and in terms of “whether a reasonable employer would have
done more” under the circumstances. Capfonn, Inc., 16 BNA OSHC 2040, (No. 91-1613,
1994), citing Electric Smith,Inc. v. Secretaryof Labor, 666 F.2d 1267,1273-74(9th Cir. 1982).
When balancing the hazard against the employer’s safety efforts, it is obvious that if
the hazard is more immediate, the efforts to protect against it must be greater. Where the
gravity of the hazard is high, the duty on the employer is increased. Its efforts must be
realistic, effective and reasonable.
Employees Hills and Joseph were exposed to highly hazardous conditions as they
serviced cameras E-17, E-18, E-23 and E-24 on June 25,1992. Even though NASA was the
controlling employer, Bionetics was required to protect its employees in a realistic way.
Under certain circumstances, realistic measures may even require that an employer remove
its exposed employees. Here, at a minimum, Bionetics should have requested the option of
waiting until the weather cleared before requiring employees to retrieve film from the four
most exposed camera locations. To do less constituted a failure to utilize reasonable
alternative measures to protect employees exposed to falls into the interior blast holes or
off the perimeter of the MLP. Further, on the basis of this record, Bionetics could have
earlier explored the possrbility of using inertia reels, which it used on September 12, 1992.
The defense is rejected.*’
Violations of 0 1910.22(c) and 6 1910.23(c)(2) are affirmed as serious.

                       Item 3: Alleged Violation of $51910.23(c)(2)

    After each launch, the Fixed Surface Structure was moved back toward the MLP, the

ramp was lowered between the two structures, and employees crossed over to the MLP. In
preparation for the OSHA’s launch inspection, Yarbrough went to KSC. He advised NASA
that an unguarded portion of that ramp presented a hazard. By the time of the

lo Although this is not the conclusion reached in one of the companion cases involving the NASA launches,
the facts of that case are different. The noted perimeter cameras were not in issue there. Employees in that
case approached the two most hazardous interior cameras while
I’ they were tied off. The weight of the hazard
was substantially less than presented here.

                                                 9

September 12 launch, an additional railing had been clamped onto the existing railings to
cover the guardrail gap. The gap had been 3 feet long; the ramp was 5 feet wide
(Tr. 27-28). The Secretary charged a violation relying on the fact that this portion of the
guardrails was missing during the June 25, 1992, and July 31, 1992 launches in violation of
6 191023(c)(2).”
As employees crossed the ramp, they pushed a cart holding their tools, body harness,
and other equipment (Tr. 149). Weather conditions were windy. A 2-foot proximity to the
fall hazard placed employees within the zone of danger for the short period of time needed
to walk 3 feet. Bionetics’ employees were exposed to a fall of 45 feet from the unguarded
portion of the ramp during the two launches. A fall would most predictably result in death.
The e&exe of the gap in the guardrails was easily observable. Bionetics’ supervisors
crossed the ramp on both launch data. Bionetics had knowledge of the violative condition.

                                  Multi-Employer Defense

    As with the earlier items, Bionetics contends that it met the multi-employer worksite

defense. The defense falls for many of the same reasons previously discussed. In addition,
there were not logistical and technological difficulties involved with abating the violation.
Bionetics could have accomplished literal compliance with the guardrail requirements for the
ramp, even if it would be required to first secure NASA’s agreement. Abatement could
easily be achieved by clamping or roping on another guardrail section onto the existing
railings. Since NASA did not assert the same type of control over access from the Fixed
Surface Structure as it did for the MLP, a request to NASA to correct the hazard or to allow
Bionetics to do so could not be assumed to be futile. NASA’s “quick look” of film taken
of the launches would not be delayed. Bionetics’ failure to inquire of NASA regarding the

I1 The standard requires:

   #1910.23(c) Protection of open-dedjkxm, pa$bms, and runways. (2) Every runway shall
   be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this
   section) on all open sides 4 feet or more above floor or ground level.


                                               10

abatement was not reasonable and did not constitute realistic alternative measures. The

multi-employer defense is rejected.
The violation is affirmed as serious.

                                        CITATION NO. 2

                    Item 1.~1910.120O(h)(l)-Hazard
                                             Communication

    The Secretary contends that Bionetics failed to inform and train one employee

concerning its hazard communication program in violation of 0 1910.1200@).‘* This
violation allegedly occurred at the film processing laboratory at Cape Canaveral Air Station,
Florida, where employees worked with hazardous chemicals. The Secretary concedes that
Bionetics had an adequate program, which it kept in the supervisor’s office on site (Tr. 76).
Yarbrough reported that he spoke with employees regarding the hazard communication
program. One employee, Sam Diomede, a chemical technician, did not know that Bionetics
had a program or where it was located. However, Diomede reported to Yarbrough that he
kept his own material safety data sheets (Tr. 77). Bionetics asserts that all employees had
been trained and should have known of the location of its written program.
Some confusion on Yarbrough’s part might have been expected. He was not aware
that all training on hazard communication at KSC was conducted annually by Johnson
Controls. Yarbrough conceded that another company may provide training as long as it is
site specific (Tr. 75). The fact that Diomede told Yarbrough that he had not been trained
by Bionetics, thus, does not mean that he was not trained. Secondly, in January 1992,
Bionetics took over the contract Tom the previous contractor, TGS. Bionetics acquired and
continued to employ all of TGS’s former employees (Tr. 145). By that date Johnson

** The standard provides:

    5 1910.1200(h)Emplqyee infomzation QILdtraining Employers shall provide employees with
    information and training on hazardous chemicals in their work area at the time of their initial
    assignment, and whenever a new hazard is introduced into their work area. (1) Infonnati~
    Employees shall be informed of:

            . . . (iii) The location and availability of the written hazard communication
            program, including the required list(s) of hazardous chemiAs, and material
            safety data sheets required by this section.

                                                  11

Controls had already conducted its annual training for the TGS (now Bionetics) employees.
There was nothing to contradict the inference that Diomede received this training, especially
since he stated that he had been trained with his previous employers. Although the
employees did not readily locate Bionetics’ hazard communication program in response to
Yarbrough’s inquiry, all (except Diomede) stated they knew where it was located. The
employees did locate the program (Tr. 7879). Diomede may have been less interested in
recalling the location of the program since he kept his own MSDS. The weight of the
evidence supports the conclusion that Bionetics complied with the standard.
The violation is vacated.

                                      Penalty

   The Commission and its judges have final authority to assess penalties in all contested

cases. Hem Iron Works,Inc., 16 BNA OSHC 1619, 1621-23, 1994 CCH OSHD 130,363,
pp. 41,881-83 (No. 88-1962, 1994). It must 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 appropriate penalty. L4. Jones Conrh: Co.,
15 BNA OSHC 2201, 2213-14, 1993 CCH OSHD P 29,964, p. 41,032 (No. 87-2059, 1993).
These factors are not necessarily accorded equal weight. The gravity of the violation is the
primary element in the penalty assessment. Zkihity hdus., 15 BNA OSHC 1481, 1483,
1992 CCH OSHD li 29,582, p. 40,033 (No. 88-691, 1992).
Bionetics is a medium-sized employer, having 2,200 employees nationwide (Tr. 51).
It has no history of previous violations (Tr.50) Weighing toward a finding of good faith is
Bionetics’ responsive attitude toward safety-related suggestions, which it facilitates and
encourages. For example, the clamp for the lanyards was quickly modified in response to
an employee request (Tr. M-147). The company cooperated with the inspection (Tr. 85).
All three violations were abated even before the physical inspection of the launch on
September 12, 1992. Also noted, however, is Bionetics’ infrequent safety meetings and the
fact that there is no evidence that it actually has its own safety program (Tr. 230, 248).
Six technicians and one or two supervisors were exposed to fall hazards. The
similarities in the location and type of hazards have also been considered in assessing

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separate penalties. Having considered the above, a penalty of $1,000 is separately assessed
for the interior and the perimeter fall hazards; $750 is assessed for the fall hazard from the
ramp.

                 FINDINGS OF FACT AND CONCLUSIONS OF LAW

    The foregoing     decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

           Based on the foregoing decision, it is ORDERED:
    (1)    Serious Citation No 1, item 1, alleging a violation of 5 1910.22(c) is affirmed

as serious and a penalty of $1,000 is assessed;
(2) Serious Citation No. 1, item 2, alleging a violation of 8 1910,23(c)(l), is
affirmed as serious and a penalty of $1,000 is assessed;
(3) Item 3, alleging a violation of 8 1910.23(c)(2), is affirmed as serious and a
penalty of $750 is assessed; and

    (4)   “Other-than-serious”       Citation        No. 2, item   1, alleging   a violation   of

8 1910.1200(h)(l), is vacated.
/s/ Nancv J. Spies
NANCY J. SPIES
Judge
Date: November 28, 1994

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