Tireman's Tire Shop, Inc.

Plain-English summary

Tireman's Tire Shop, Inc. ran an auto tire and repair shop in New York. After an employee complaint, OSHA inspected in December 1996 and, while finding none of the complained-of conditions, cited two hazards in plain view. The first was a 40-foot-long, 5.5-foot-deep repair pit that was unguarded, which employees walked past and entered; the judge found the surrounding equipment did not protect against a fall and that guarding was feasible, so the item was affirmed with a $600 penalty. The owner argued that his insurer-approved setup was adequate and that OSHA had not cited the pit in a 1990 inspection, but the judge held that a prior failure to cite is no defense. The second item involved two energized circuit-breaker panels with missing breakers that left live wires exposed to anyone turning the power on or off; that item was affirmed as serious with a $450 penalty. Both violations were affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.22(c) (guarding of open pits); 29 C.F.R. § 1910.305(b)(1) (closing unused openings in electrical panels)
• Outcome: Both items of Citation 1 affirmed as serious; penalties of $600 and $450 assessed ($1,050 total).
• Key point: OSHA's failure to cite a condition in an earlier inspection is no basis to vacate a later citation for the same condition, and equipment placed near a hazard is not guarding if it does not prevent exposure.

Full text (OSHRC public release)

                              United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                         1120 20th Street, N.W., Ninth Floor
                            Washington, DC 20036-3419




SECRETARY OF LABOR,                            :
                                               :
               Complainant,                    :
                                               :
       v.                                      :              OSHRC DOCKET NO. 97-424
                                               :
TIREMAN’S TIRE SHOP, INC.,                     :
                                               :
               Respondent.                     :

APPEARANCES:

               Luis A. Micheli, Esquire                       Glenn Lefurgy
               New York, New York                             Mahopac, New York
               For the Complainant.                           For the Respondent, pro se.

Before: Chief Judge Irving Sommer

                                    DECISION AND ORDER

       This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) inspected
Respondent’s facility, an auto tire and repair shop, on December 16, 1996, after receiving an
employee complaint about the shop; as a result of the inspection, Respondent was issued a two-item
serious citation alleging violations of 29 C.F.R. §§ 1910.22(c) and 1910.305(b)(1).1 Respondent
contested the citation, this matter was designated an E-Z Trial case pursuant to Commission Rule
203(a), and a hearing was held on July 17, 1997.




       1
         While none of the conditions listed in the complaint were found to be violations, the alleged
violations noted above were in plain view and were consequently cited. (Tr. 18-20; 32).

                                          Citation 1 - Item 1
       This item alleges a violation of 29 C.F.R. 1910.22(c), which provides as follows:
       Covers and/or guardrails shall be provided to protect personnel from the hazards of
       open pits, tanks, vats, ditches, etc.
       Robert Zurlo, the OSHA compliance officer (“CO”) who conducted the inspection, testified
there was an auto repair pit in the shop which he measured to be 40 feet long, 43 inches wide and 5.5
feet deep, and that employees were walking by the pit and entering it to work on a vehicle. The CO
noted the pit was unguarded, as shown in C-1, a photo he took, and that employees could have
inadvertently stepped or fallen into it and been seriously injured; he spoke to Glenn Lefurgy, the
shop’s owner and president, who was with him and agreed the pit could possibly cause an injury.2 The
CO also noted there was a work bench with equipment on it on one side of the pit, a wheel rack on
the opposite side, and alignment equipment and stairs in the middle of the pit; however, none of these
protected against the hazard, particularly since the bench and rack were several feet from the pit. The
CO said the hazard could have been abated by use of a movable metal grate and/or movable netting,
as shown in C-4, a photo he took of a pit at another car shop. (Tr. 3-13; 21-29; 33-35).
       Glenn Lefurgy testified he had previously had fencing around the pit, as recommended by his
insurer, but that he had replaced the fencing, again on the recommendation of his insurer, with the
equipment the CO had seen. Lefurgy said that OSHA had inspected his shop in 1990 and had not
cited the pit then, and that R-1, a photo he took after the citations were issued, showed the equipment
around the pit and the plywood he had put over it as an abatement measure; his opinion was that the
equipment that was in place when the CO was there was adequate. (Tr. 22-24; 39-47).
       In light of the record, the Secretary has demonstrated the alleged violation. First, the CO’s
testimony and photos establish that the equipment in and around the pit did not prevent employee
exposure to the cited hazard and, moreover, that there was a feasible means of abating the hazard.
Second, Lefurgy’s testimony did not rebut that of the CO, and R-1, Lefurgy’s own photo of the pit,
actually supports the Secretary’s position; R-1 clearly shows the pit with no guarding on three sides


       2
          The shop was sold after the inspection, and Lefurgy no longer has any financial interest in
it. (Tr. 36-37). However, dismissal of a case on the basis that it is moot is error where “the Secretary
continues to seek the assessment of penalties, and the employer continues to defend against them.”
See Kenny Niles, 17 BNA OSHC 1940, 1945 (No. 94-1406, 1987).

and that the equipment adjacent to the pit would have afforded no protection to employees walking
or working near those sides. Finally, even assuming arguendo that the pit was inspected in 1990, it
is well settled that OSHA’s failure to cite a condition pursuant to a previous inspection provides no
basis for vacating a later citation for the same condition. This item is affirmed as a serious violation,
and the Secretary’s proposed penalty of $600.00, which is based on the employer’s size, history and
good faith, and the low gravity of the violation, is assessed. (Tr. 13-14).
                                          Citation 1 - Item 2
        This item alleges a violation of 29 C.F.R. 1910.305(b)(1), which states as follows:
        Conductors entering boxes, cabinets, or fittings shall also be protected from abrasion,
        and openings through which conductors enter shall be effectively closed. Unused
        openings in cabinets, boxes, and fitting shall be effectively closed.
        CO Zurlo testified he observed two circuit breaker panels on the back wall of the shop that
had missing breakers; he determined the panels were energized with his tick tracer and then asked
Lefurgy about them, who told him that his office manager used the panels each morning and evening
to turn the power in the shop on and off. The CO said the missing breakers left open spaces in the
panels, as shown in C-2-3, photos he took of the panels, and that anyone reaching into them to turn
the power on or off could have inadvertently contacted the exposed live wires in the open spaces and
received an electrical shock or burn. The CO also said that the condition could have been corrected
by placing blanks or dummy breakers in the open spaces, and that Lefurgy told him that he had an
electrician coming into the shop who would be taking care of the problem. (Tr. 8; 14-17; 29-30).
        In view of the foregoing, the alleged violation has been shown. Again, the CO’s testimony and
photos establish the cited hazard, and Lefurgy’s statement, that the electrician had taken out the bad
breakers the week before and would be returning that week to replace them, does not rebut the
Secretary’s evidence. (Tr. 45-46). This item is accordingly affirmed as a serious violation, and the
proposed penalty of $450.00, which is based on the same factors noted above as well as the low
gravity of the condition and the limited exposure to it, is assessed. (Tr. 17).
                                         Conclusions of Law
        1. Respondent Tireman’s Tire Shop, Inc., is engaged in a business affecting commerce and
has employees within the meaning of section 3(5) of the Act. The Commission has jurisdiction of the
parties and of the subject matter of the proceeding.

        2.   Respondent was in serious violation of 29 C.F.R. 1910.22(c) and 29 C.F.R.
1910.305(b)(1).
                                              Order
        On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
        1. Items 1 and 2 of citation 1 are AFFIRMED as serious violations, and penalties of $600.00
and $450.00, respectively, are assessed.




                                                      Irving Sommer
                                                      Chief Judge

Date: