OSHRC ALJ decision
Docket 93-1374
Decided June 7, 1994
Modified
Judge Benjamin R. Loye
Marco Electronics Sales & Service
Locked exit and blocked fire extinguisher affirmed, penalties reduced
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This order from 1994 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Final order, not Commission precedent
This decision by an OSHRC
Administrative Law Judge became a final order of the Commission
because no Commissioner directed review (29 U.S.C. § 661(j)). It
binds the parties but is not binding precedent in other cases. The
full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)
Plain-English summary
Marco Electronics Sales & Service repairs and sells electronic equipment
in Corpus Christi, Texas. After a February 1993 inspection, OSHA cited
the shop for a marked exit door that was locked, a fire extinguisher
mounted low and blocked by a rolling work table and a TV being repaired,
and two hazard communication problems: no written hazcom program and an
unlabeled container of muriatic acid. The company's only defense was
that it did not know the OSHA rules, which Administrative Law Judge
Benjamin R. Loye held is not a defense because employers are presumed to
know the standards affecting their business. He affirmed the locked-exit
and blocked-extinguisher items as serious but cut the penalties given
the low fire risk, prompt abatement, and good faith. At the hearing the
Secretary had already moved to downgrade the two hazcom items to
"other than serious," which the judge affirmed with no penalty. The
total penalty assessed was $1,250.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.36(b)(4) (locked exit); 29 C.F.R. § 1910.157(c)(1) (accessible fire extinguisher); 29 C.F.R. § 1910.1200(e)(1) (written hazcom program); 29 C.F.R. § 1910.1200(f)(5)(i) (container labeling).
- Outcome: All items affirmed. Items 1 and 2 upheld as serious with penalties reduced from $1,050 to $800 and from $600 to $450; items 3a and 3b affirmed as other-than-serious with no penalty. Total $1,250.
- Key point: Ignorance of OSHA standards is no defense, but low gravity, prompt abatement, and good faith supported reducing the penalties.
Full text (OSHRC public release)
utJlfED STATES OF:AMERICA
OCCUPATIONALSAFETY AND HEALTH REVIEW COMhi!iSslON
OfI8 kfay0tte c8fItr’0
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
SECRETARY
- - OF LABOR )
v.
Complainant,
I Osmc DOCKET
NO. 93-13’74
MARCO ELECIRONICS SALES & SERVICE
Respondent.
I
NOTICE OF DOCKETING
OF ADMINISTIUTIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on May 6, 1994. The decision of the Judge
will become a final order of the Commission on June 7, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY T’HE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such tition should be received by the Executive Secre on or before .
May 29, 1!E4 in order to ermit sticient time for its review.Te e
Commtssion Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretmy
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 200363419
Petitioning parties shall also mail a copy to:
Daniel J. Mick Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the Sof l
citor, U.S. DC&
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued bv the Commission, then the Counsel for
Regional Trial Litigation will represdnt the Department of Labor. &Y Party
halng questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION ~ ,
Date: May 6, 1994 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 93-1374
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mici5,m.
Counsel for RC ‘oaal Trial Liti ation
Office of the &citor, U.S. Ddt
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
James E. White, Esq.
Re ‘onal Solicitor
off ce of the Solicitor, U.S. DOL
525 Griffin Square Bldg., Suite 501
grifE& &t&f$tt;~Streets
Doroth Matoch;t, Owner
Masco 5 lectronics
1628 Mor an
corpus CL 3iJJc78404
---
Benjamin R. Lo e
Administrative r, w Jud e
Occupational Safety an % Health
Review Commissron
Room 250
1244 North S er Boulevard
Denver, CO r 0204 3582
00107430878:06
UNKED STATESOF:AhdERtCA
OCCUPATIONALSAFETY AND HENIH REVIEW Co~hdlsSlON
1244 N. speer 6OUi8Vard
Room 250
hwer, Colorado 80204-3582
I
SECRETARY OF LABOR, I
Complainant, I
I
v. I OSHRC DOCKET
I NO. 93-1374
MARCO ELECIRONICS I
SALES & SERVICE, I
Respondent. I
,
APPEARANCES:
Jack F. Qstrander, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas ..
--
Dorothy Matocha, Owner, Marco Electronics, Corpus Christi, Texas.
Before: Administrative Law Judge Benjamin R. Luye
This proceeding arises under the Occupational Safety and Health Act of 1970 (29
U.S.C. Section 651 et seq.; hereafter called the “Act”).
Respondent, Marco Electronics Sales & Service (Marco), at all times relevant to
this action maintained a worksite at 1628 Morgan Avenue, Corpus Christ-i,Texas, where
it yas engaged in saIe and repair of electronic equipment (Tr. 1243). Marco is an
employer engaged in a business affecting commerce and is subject to the requirements of
the Act (Tr. 13).
On February 17, 1993 the Occupational Safety and Health Administration
(OSHA) conducted an inspection of Marco’s Morgan Avenue worksite (Tr. 11). As a
result of the inspection, Marco was issued citations, together with proposed penalties,
alleging violations of the Act. By filing a timely notice of contest Respondent brought
this proceeding before the Occupational Safety and Health Review CO&sion
(commission).
On March 8, 1994, a hearing was held in Corpus Christi, Texas, on the contested
issues. At the hearing, Complainant’s motion to amend the classification of “serious”
citation 1, items 3(a) and (b) to “other than serious” citations without penalties was
grated (Tr. 8). As the parties have waived an opportunity to submit briefs on the
remaining issues; this matter is now ready for disposition.
Serious Citation 1, items 1 & 2
The named citations allege:
1
29 CFR 1910.36(b)(4): Exit(s) were locked or fastened, preventing free escape from
inside of the building:
At this establishment, the marked exit from the shop area to Morgan Avenue was
. ‘.
locke~exposing employees to smoke and fire hazards.
2
29 CFR 1910.157(c)(1): Portable fire extinguishers were not mounted, located and identi-
fied so that they were readily accessible without subjecting the employees to injuries:
At this establishment, a S-pound carbon dioxide fire extinguisher mounted on the
leg of the workbench, eighteen inches (18”) off the floor, was blocked by a rolling
work table and a large screen TV being repaired.
Facts
Compliance’ORcer (CO) James Erickson testified that at the time of his inspec-
tiOI& the exit door from Marco’s repair section was locked; the key was hung on the wall
next to the door oppo&e the side where the lock was located (Tr. 1445; Exh. C-l). The
Only other exit available was located in the front showroom (Tr. C-13).
A fire extinguisher was mounted approximately 18 inches off the floor on the leg
of a work bench (Tr. 19; Exh. C-2). Mobile work tables carrying equipment obstructed
access to the fire extinguisher (Tr. 19). The fire extinguisher could be accessed from the
2
shop side (Tr. 30). There was no sign identifying the location of the fire extinguisher (Tr.
23) l
Marco employs seven workers; all had access to the back room (Tr. 16, 24).
Two employees were working in the back room at the time of the inspection (Tr. 16). h
the event of fire, employees trapped and/or unable to locate and access the fire exti.n-
guisher in the back room could suffer burns or smoke inhalation (Tr. 1748). Erickson
admitted that the chance of a fire actually occuring on the premises was low to medium
given the nature of the business (Tr. 18, 24). Smoke detectors were located in every
room (Tr. 31).
The cited violations have been abated (Tr. 35-36, 39-40).
Citation 1, items 3a. 3b
The named citations allege:
3a
29 CFR 1910.1200(e)(l): The employer did not develop, implement, and/or maintain at
the workplace a written hazard communication program which descriis how the criteria
..
specified in 29 CFIX 1910.1200(f), (g), and (h) will be met.
No Written Hazard Communication Program was developed for employees at
Marco Electronic Sales & Service, 1628 Morgan, Corpus Christi, TX. 78404.
3b
29 CFR 1910.1200@(5)(i): Th e employer did not ensure that each container of
hazardous chemicals in the workplace was labeled, tagged or marked with the identity of
the hazardous chemical(s) contained therein:
At this establishment, a plastic one-pint container used to store and dispense
muriactic (sic) acid was not labeled to identifv the contents or hazards associated
with the contents.
Marco does not contest the CO’s testimony that a container of muriatic acid,
which was used sometimes daily, sometimes weekly, for cleaning electrical parts, was
unlabled (Tr* 26-27). Neither does Marco contest the CO’s statement that it did not
have a written hazard communication program covering the muriatic acid (Tr. 27).
3
Ma&s only defense is that it was unaware of OSHA requirements (Tr. 41). The mw-
atic add was removed from the shop during the inspection and disposed of (Tr. 29).
Discussion
As a threshhold matter, the undersigned notes that Marco’s unfamiliarity with
OSHA requirements is not a defense, and cannot affect the penalty assessment in this
case. Employers are presumed to know of standards that affkct their business; ignorance
of the standards does not excuse noncompliance. Capfomr, Inc., 13 BNA OSHC 3319,
1989 CCH OSHD q28,503 (No. 84556, 1989). “An employer has a duty to inquire into
the requirements of the law.” Peterson Brothers Steel Erection Company, 16 BNA OSHC
1196, 1993 CCH OSHD 130,052 (No. 90-2304, 1993).
Taking the relevant testimony into consideration, the undersigned finds that the
Complainant established its prima facie case on the cited items.
Penalty
Penalties in the amount of $l,OSO.OO
and $600.00 were proposed for items 1 and
2, respectively. -.
Both itkns were properly classified as serious. The gravity of the items, however,
given the number of employees exposed and the likelihood of a fire actually occuring is
deemed low. In addition the undersigned finds that given the prompt abatement of the
citation items, and in the absence of any evidence of bad faith, a reduction for good faith
is appropriate.
Penalties in the amount of $800.00 and $450.00 will be assessed.
Findings of Fact and Conclusions of Law
All findings of f&t and conclusions of law relevant and necessaq to a determina-
tion of the contested issues have been found speci@llyand appear in the decision above.
See Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
10 Citation 1, item 1, alleging violation of 51910.36(b)(4), is AFFIRMED, and a
penalty of $800.00 is ASSESSED.
4
2. Citation 1, item 2, alleging violation of ~1~10.1~7(c)(l), is AFFIRMED, and a
pen&y of W5O.00is ASSESSED.
3b Citation 1, items 3a and 3b, alleging violations of §~1910.12()O(e)(1) and (f)(s)(i)
are AFFIRMED as “other than serious” violations without penalty.
Dated: April 29, 1994
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