Mayflower Vehicle Systems, Inc.

Plain-English summary

Mayflower manufactured truck parts with a mechanical power press whose two-hand controls were mounted on a movable stand. Employees other than supervisors or safety engineers could unbolt and relocate the stand, and the stand was not consistently secured during press operation. The judge affirmed the violation as de minimis because an employee could move the controls farther from the press without creating a hazard. The Commission held that the violation was serious because the standard reduces the possibility that controls will be moved too close to the point of operation, where contact could cause crushing or amputation. It reclassified the violation as serious and assessed a $2,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.217(c)(3)(vii)(d)
• Outcome: Power-press control violation reclassified from de minimis to serious; $2,000 penalty assessed.
• Key point: A movable two-hand press control has a direct safety relationship because unauthorized relocation can place the operator within reach of the point of operation.

Full text (OSHRC public release)

SECRETARY OF LABOR,

   Comp lainant,

                   v.                             OSHRC D ocket No. 99-1319

MA YFL OW ER V EHIC LE SY STEM S, INC .,

   Respon dent.



                                     DECISION

Before: RO GERS , Chairman; EISE NBRE Y, Comm issioner.
BY THE COMMISSION:
Mayflower Vehicle Systems, Inc. (“M ayflower”) m anufactu res truck pa rts at its plant
in Shadyside, Ohio. On June 20, 1999, one of Mayflower’s “team leade rs” was se riously
injured when one of his hands was partially amputated by an “OBI 200” mechanical power
press. Shortly after the accident, Bruce Bigham, a safety specialist with the Occupational
Safety and Health Administration (“OSHA”), inspected the press. As a result, on June 28,
1999, OSHA issued a citation alleging serious violations of three mechanical power press
standards under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 (the
“Act”). The Secretary later withdrew two of the items. After a hearing, Administrative Law
Judge Michae l H. Schoenfeld affirmed the remaining item–Citation 1, Item 2–and
reclassified it as de minimis. The Secretary petitioned for review, and review was granted
on the sole issue of whether the judge erred in reclassifying the violation as de minim is.1 For
the following reasons, we find that the violation w as not de minimis, affirm it as serious, and

   1
    Mayflower filed a Conditional Cross-Petition for Discretionary Review, arguing that

the Commission should also consider “pre-accident misconduct . . . which [led] or
contributed to” the in jury. This evidence was rejected by the judge, and the issue was not
directed for review.

                                                                           OSHRC N o. 22

2

assess a penalty of $2000.
I. Whether the Judg e Erre d in R eclassif ying th e Viola tion of 2 9 C.F .R. §
1910.217(c)(3)(vii)(d) as De Minim is.
The mechan ical powe r press invo lved in the accident, the OBI 200, was used to stamp,
among other things, bumpers for 18-wheel trucks out of large pieces of metal. It was used
inter mitte ntly, at frequencies varying from “every other day” to “at least every month.” The
press was activated with a “palm button station,” a two-hand control device mounted on a
“T-stan d.” An “extendable arm” was generally used to affix the stand to one of the
following: the frame of the press; a table that w as generally ke pt next to the press to hold
materials; the “bolster plate” that held the die in the press; or some other object.
Mayflower’s “rule of thumb” was to have the stand bolted 36 inches from the point of
operation during a job,2 but the reco rd show s that this was not always done. Item 2, as
amended, alleges a serious violation of 29 C.F.R. § 1910.21 7(c)(3)(vii)(d) 3 because “[o]n
and prior to June 23, 1999 , in the OB I Departm ent, the two [-]hand co ntrol for the Verson
No[.] 7 ½ mechanical power press (Serial No. 5640) was not secured to prevent the operator
or othe r emplo yees from movin g the co ntrols.”
The judge affirmed a violation, finding that “the two-hand control stand for the OBI
200 press wa s not consiste ntly bolted in plac e during th e operation [and] that employees

   2
    The “safety distance” that must be maintained between the controls and the point of

operation is gove rned by a formu la stated in 29 C .F.R. § 1910.217(c)(3)(vii)(c), which was
not cited here. Estimates of the actual required safety distance for the OBI 200 varied from
just under 15 inches to 18 inches, based on Mayflower’s data.
3
The cited standard provides:

   § 1910.217 Mechanical Power Presses
   ...
   (c) Safeguarding the point of operation.
   ...
   (3) Point of operation devices . . . (vii) . . . (d) Two h and contro ls shall be
   fixed in position so that only a supervisor or safety engineer is capable of
   relocating the controls.

3

other than supervisors and safety engineers could relocate the stand” by unscrewing a bolt
by hand or with a commonplace wrench. While acknowledging that any employee,
supervisory or not, could move the control stand “too nea r to the press which could have
resulted in an injury,” he reason ed that “ [o]n th e other h and, an y employe e could . . . move
the control stand farther away which, although a violation of the standard, would not have
created a hazard.” A s a result, the judge conclude d that Mayflower’s noncompliance “was
de minim is becau se stand ing alon e, it did no t necess arily result in a safety h azard.”
We disagree. Section 9(a) of the Act indicates that violations are de minim is when
they “have no dire ct or imm ediate re lationsh ip to saf ety or hea lth.” 29 U.S.C. § 658(a). “A
violation should be classified as de minim is when there is technical noncompliance with a
standard but the violation has such a negligible relationship to the safety or health of
employees that it is not appropriate to order abatement or assess a penalty.” See Whiting-
Turner Contr acting C o., 13 BNA OSHC 2155, 2156, 1987-90 CCH OSHD ¶ 28,501, p.
37,771 (No. 87-1238, 19 89). We find no b asis in the record for concluding that M ayflower’s
failure to comply with the cited standard had a ne gligible relationship to safety. The standard
requires that the controls be fixed in position so th at only a superv isor or safety en gineer is
capable of relocating them. It supp lements the requirement of section 1910.21 7(c)(3)(i)(e)
and (iii)(e) that two-hand con trols be separated from the point of operation by a certain
calculated distance. M oving the c ontrols too c lose to the pre ss’ point of o peration w ould
clearly expose the machine’s operator to the hazard posed by the point of operation.4 The
standard operates to reduce that po ssibility. We therefore find that the judge erred in
classifying the violation as de minimis.
Mayflower’s duty to comply with the standard and ensure that “only a supervisor or

   4
    We see no ba sis for inferrin g, as the judg e apparen tly did, that the Secretary’s

withdrawal of the other mechanical power press citations amounted to a concession that the
point of ope ration p osed n o haza rd. See Se ibel M odern Mfg. & W elding C orp., 15 BNA
OSHC 1218, 1 223-2 4, 1991 -93 CC H OS HD ¶ 29,442 , pp. 39,679-81 (No. 88-821, 1991)
(and cases cited therein).
 4

safety engine er is capable of relocating the controls” is not affected by whether employees
might mak e cor rect s afet y decisions that enhance safety, such as moving the stand farther
away. Indeed, the standard is similar to a number of other standards that require oversight
or inspection by certain classes of peop le befo re wor k takes place. See DiGioia Bros.
Excavating, Inc., 17 BNA OSH C 1181, 1184, 1993-95 CC H OSH D ¶ 30,751, p. 42 ,723-3
(No. 92-3024, 1995) (serious violation where the lack of adequate inspections by a competent
person posed the same hazard as failing to adequately protect employees in an excavation
from cave-ins); Aviation Constructors, Inc., 18 BNA OSHC 1917, 1918, 1921-22, 1999 CCH
OSHD ¶ 31,933, pp. 47,374, 47,378-79 (No. 96-0593, 1999) (willful violation where the
employer’s excavation protection system was not approved by a registered professional
engineer); cf. Archer-Western Contractors Ltd., 15 BNA OSH C 1013, 1016 & n.5, 1991-93
CCH OSHD ¶ 29,317, pp. 39,376 n. 5, 39,377 (No. 87-1067, 1991) (willful violation where,
inter alia, employer assigned no “qualif ied engine ers comp etent in this field” to determine
whether a crane was ca pable o f lifting a particul ar load) , aff’d, 978 F.2d 744 (D .C. Cir.
1992).
Furthermore, we find that the violation was serious as alleged.5 Under Commission
precedent, a violation is serious if, in the event of an accident, there is a “substantial
probability that the result w ould be death or serious physical harm.” George C. Christopher
& Sons, In c., 10 BNA OSH C 1436, 1446, 1982 CCH OSHD ¶ 25,956, p. 32,533 (No. 76-
647, 1982). A serious violatio n only req uires pro of that th e harm “could have o ccurred .”
Dec-Tam Corp ., 15 BNA OSH C 2072, 2077, 1991-93 CCH OSH D ¶ 29,942, p. 40,918 (No.
88-523, 1993) . Here, if a stand was not properly fixed in position and an employee moved
the stand close enough to the point of operation to contact it, the result of any su ch contac t,

     5
    Mayflower cites two unreviewed judges’ decisions affirming violations under the

cited standard as de minim is and one a ffirming a violation as n onserious. Unreviewed
judges’ decisions do not constitute preceden t bindin g upon the Co mmiss ion. See Leone
Constr. Co., 3 BNA OSHC 1979, 1981, 1975-76 CCH OSH D ¶ 20,387, p. 24,322 (No. 4090,
1976).
 5

as the Secretary’s witnesses testified, could be crushing or amputation. These potential
injuries c learly fall w ithin the mean ing of “ serious physical h arm.”
II. Penalty
Section 17(j) of the Act m andate s that the Com mission give “d ue con sideratio n . . .
to the appropriateness of the penalty with respect to the size of the business of the employer
being charged, the gravity of the violation, the good faith of the employer, and the history of
previous violations.” 29 U.S .C. § 666(j). “These factors are not necessarily accorded equal
weight; generally speaking, the grav ity of a violation is th e primary elem ent in the pe nalty
assessm ent.” J.A. Jon es Con str. Co., 15 BNA OSHC 2201, 2214, 1991-93 CCH OSHD
¶ 29,964, p. 41,033 (No. 87-2059, 1993). “The gravity of a particular violation depends on
such matters as the number of emplo yees expose d, the duratio n of the exposure, the
precautions taken against injury, and the likelihood that any injury would result.” Id.
Safety specialist Bigham testified that in calculating the proposed penalty of $5000,
he considered the severity and probability of an injury as well as the employer’s good faith,
histo ry, and size. He did not explain, however, how he balanced the factors. Because the
judge found the violation to be de minimis, he did not assess a penalty. The Secretary
requests that the $5000 penalty she proposed be assessed.
In our view, the evidence shows that the gravity of the violation is moderately low.
The alleged violation inv olved only one press that was not used every day. The likelihood
of injury was further diminished by the fact that Mayflower’s team leaders frequen tly
inspected the presses at the beginning of each shift. The record contains no specific evidence
on the size of Mayflower’s business. In regard to good faith, we note that Mayflower
provided the two-hand controls to be used with the press, maintaine d a written s afety
program requiring that the con trols be fixed in place, and used a rule o f thumb in an attempt
to keep the controls 36 inches from the p oint of ope ration wh ich, accordin g to the evidence
presented here, was greater than the required safety distance for this p ress. In regard to
histo ry, we note that the record contains evidence of a 1999 violation, at a sister plant, of the
cited standard, that was ultimately settled as nonserious with no penalty. On balance,
 6

therefore, we find that a penalty of $2000 is appropriate.
III. Order
For the reasons set forth above, we affirm the violation of 29 C.F.R.
§ 1910.217(c)(3)(vii)( d) as serious and assess a penalty of $2000.

                                             /s/
                                             Thomasina V . Rogers
                                             Chairman




                                             /s/
                                             Ross Eisenbrey
                                             Commissioner

Date: September 5, 2001
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Comp lainant,

    v.                                                        OSHRC D OCKET N O. 99-1319

MAYFLOWER VEHICLE SYSTEMS, INC.
Respon dent,

USWA LO CAL NO. 9419,
Authorized Employee
Representative.

Appearances:

            Anthony M. S tevenson, Esquire                    Ricklin Brown , Esquire
            Office of the Solicitor                           Bowles Rices McDavid Graff &
            U.S. Department of Labor                           Love, PLLC
            Clevelan d, Ohio                                  Charleston , West Virg inia
                   For the Complainant                                      For the Respondent

            Charles J. Robinson , Jr.
            USAW Local No. 9419
            St. Clairsville, O hio
                   For the Authorized Employee
                      Representative

BEFORE: MICHAEL H. SCHOENFELD
Administrative Law Judge

                                 DECISION AND ORDER

Background and P rocedural History
This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§
651-678 (1970) (“the Act”). On June 23, 1999, the Occupational Safety and Health
Administration (“OSHA ”) visited Responden t’s work site in Shadyside, Ohio. As a result of
the inspection, OSHA issued a citation to Respondent on June 28, 1999, alleging serious
violations of the mechanical power press standards appearing in Title 29 of the Code of
Federal Regulations (“C.F.R.”). Respondent timely contested the citations. Following the
filing of a complaint and answer, and pursuant to a notice of hearing, the case came on to be
heard in Wheeling, West Virginia. Both parties have filed post-hearing briefs.6
Jurisdiction
It is undisputed that at all relevant times Respondent has been an employer engaged
in the manufacture of truck parts. In addition, Respondent admits it handles goods or
materials which have moved in interstate commerce. I find as fact Respondent was engaged
in a business affecting interstate commerce.
Based on the above finding, I conclude that Respondent is an employer within the
meaning of section 3(5) of the Act. Accordingly, the Occupational Safety and Health Review
Commission (“ the Comm ission”) has jurisdiction over the parties and the subject matter.
Facts
Respondent utilizes a machine called the Vernon OBI 200 press. The OBI 200 presses
have two-han d controls m ounted on moveab le stands that, a ccording to company policy, are
to be bolted in place a safe distance from the point of operation; when a press is not in use,
however, its control stand is unbolted and moved out of the way. 7 (Tr. 66, 270-71). The stand
can be bolted in place to the press itself or to other locations, including totes, conveyors,
racks or the bolster plate. (Tr. 25, 52, 63-65, 252-53, 258-60). In addition, the stand can be
relocated by any employee by simply unscrewing the bolt by hand or using a commonplace
tool such as a wren ch. (Tr. 24, 51-52, 60-61, 78 -79, 82, 275, 334-35 ).

    6
    Before the hearing, the Secretary vacated Item 1 of the citation, leaving only Item 2

at issue.
7
Responden t’s policy is to have a safety distance of 36 inches from the machine during
operation. (Tr. 30-31, 34, 36).
 On June 20, 1999, an employee who was operating an OBI 200 press had his hand
partially amputated.8 OSHA inspected the machine three days later pursuant to a formal
complain t.

Discussion
Item 2 of Citation 1 alleges a serious violation of a machine guarding standard,
spec ifica lly, 29 C.F.R. § 1 910.217 (c)(3)(vii)(d), w hich prov ides that “[t]w o hand co ntrols
shall be fixed in position so that only a supervisor or safety engineer is capable of relocating
the controls.” In g eneral, to prove a violation of a standard, the Secreta ry must dem onstrate
by a preponderance of the evidence (1) that the cited standard applies, (2) noncompliance
with the terms of the standard, (3) employee exposure or access to the hazard created by the
noncompliance, and (4) that the employer knew, or with the exercise of reasonable diligence
could have known, of the conditio n. Astra Pharmaceutical Prod., 9 BNA OSHC 2126, 2129
(No. 78-6247, 1981). I find that the cited standard applies and conclude that Respondent
failed to comp ly with the standa rd’s term s for the follow ing reas ons.
As set out above, the standard requires two-hand controls to be fixed in place so that
only supervisors o r safety engine ers can reloc ate the contro ls. Respon dent asserts th at the
two-hand control stand on the O BI 200 p ress was f ixed in place during press operation. This,
however, does not satisfy the terms of the standard, which expressly requires that two-hand
controls be fixed in place so that only a supervisor or safety engineer is capable of relocating
the controls. In any case, the evidence of record establishes not only that the two-hand
control stand for the OBI 200 press was not consistently bolted in place during operation but
also that emplo yees other than supervisor s and safe ty engineers c ould reloca te the stand. One
former employee testified that sometimes the press control stands were bolted in place during
operation and that sometimes they were not and that, as to some presses, there w as nowhere
to bolt the s tands. (T r. 92-95). Another witness, a team leader, testified that the two-hand

   8
       This particular OBI 2 00 press was use d approximately once a m onth. (Tr. 41).

control stand for the cited press was never b olted in place and that befo re the accident there
was nowhere to do so.9 (Tr. 354-55).
Witnesses also testified that even when control stands were bolted in place,
supervisors and safety en gineers w ere not the o nly individuals who co uld relocate them. (Tr.
52, 78, 127, 33 4-35). In fa ct, the same former employee indicated above specifically testified
that it was the press op erator’s respo nsibility to bolt the stand in place, although it was not
always possible to do so, and that supervisors did not check the control stands re gularly. (Tr.
89, 94-95). In addition, a grou p leader testifie d that he w ould “che ck” the stan ds and tell
employees to re-bolt them if th ey were too close to the presses. (Tr. 50-51, 57-58). The
record demonstrates that employees other than sup ervisors or safety engin eers could r elocate
a press control stand simply by twisting off the bolt or bolts securing the stand by hand or by
using a common tool, such as a wrench , to unbolt the stand. (Tr. 32, 52, 82, 95, 166, 171-75,
275). The record also demonstrates there was no mechanism in place to prevent employees
from moving the press control stands, and the plant electrical engineer testified that there was
nothing to impede an em ployee’s ability to do so. (Tr . 24, 79). Re sponden t does not d ispute
these facts, and I therefore find that Respondent violated the terms of the standard.
The record shows that employees had access to the cited condition. Contrary to
Responden t’s assertion that e mployees ha d not actua lly operated the subject press or moved
its control stand within the releva nt time frame, Com mission precedent do es not require
actual employee exposure to the cited condition. Rather, the Secretary need show o nly that
employees had access to an area of potential danger based on reason able predictability. The
question of exposure is a factual one "to be determined by considering the zones of danger
created by the hazard , employee w ork activities, the ir means o f ingress-eg ress, and the ir
comfort activities." Dic-Underhill, a Joint-Venture, 4 BNA OSHC 1489, 1490 (No. 3042,
1976). The question is wh ethe r, the emp loyee s, wi thin reas onable p redictab ility, were within

   9
     A team leader is an union employee, whereas a group leader is a non-union employee

of the co mpa ny. (Tr. 99, 103, 224). Group leaders supervise team leaders and other
employees. (Tr. 40, 264-65). Although it is disputed whether team leaders are supervisors,
it is undis puted th at grou p leade rs are su perviso rs. See footno te 7, infra.
the zone of dan ger crea ted by the violativ e cond ition. Brennan v. Gilles & Cotting, Inc., 504
F.2d 1255, 12 63 (4th C ir. 1974); Adams Steel Erection, 12 BNA OSHC 1393, 1399 (No. 84-
3586, 1985). The Commission has held, however, that another guarding standard, 29 C.F.R.
§ 1910.212(a)(1), requires more than proof that employees could possibly come into contact
with the unguarded machinery. There, the Commission h eld that the Secretary had to show
that employees were exposed to the hazard "as a result of the manner in which the machine
functio ns and the wa y it is opera ted." Jefferson Smurfit Corp., 15 BNA OSHC 1419, 1421
(No.89-0553, 19 92).
Although the cited press was not operated every day, Respondent’s employees had
access to the hazard within the relevant time period, it is undisputed that the press was
regularly operated at least once a month. (Tr. 41). Furthermore, the CO testified that he was
informed that the press had also been operated three weeks prior to the accident. (Tr. 112).
Thus, there is substantial evidence that the machine was operated under conditions which
violated the cited standard’s requirements. Even if each operation was conducted with the
hand buttons placed at least 36 inches from the point of operation, nonetheless, it was done
while the controls were able to be moved by persons other than those authorized by the
standard. Based on the foregoing evidence and inferences reasonably arising from that
evidence, I find that employee access to the violative condition was reasonably predictable.10
The record reveals that Respondent had knowledge of the viola tive condition or could
have had knowledge of the condition through the exercise of reasonable diligence. The cited
press was in plain view on the plant floor where other, similar machines were located, and
a group leader wa s on the floor of the plan t overseeing the man ufacturing operations. (Tr.
263-65). Respon dent’s safe ty engineer also toured the f loor “spot c hecking” for safety
violations seve ral tim es a d ay, ev ery da y. (Tr. 232-33). The evidence thus demonstrates that

   10
       Even if the subject press was not operated regularly at least once a m onth, I wo uld

still find that employees had access to the hazard because the press and its control stand were
located on the plant floor where employees had ready access to them on a daily basis. (Tr.
270-7 1).
Respondent had knowledge of the violative condition or could have had knowle dge of it w ith
the exercise of reasonable diligence.11
Respondent urges the accident was a result of an isolated incident of employee
misconduct because the employee was operating the press without authorization. How ever,
I need not resolve whether the employee operated the press without authorization. Although
the accident triggered the OSHA inspection, my finding of a violation in this case is not
based on the accident but on the witness testimony establishing that employees other than
supervisors or safety engineers had relocated the control stand.12 In an y case, to prove the
affirmative defense of unpreventable employee misconduct, the employer must show that (1)
it had established work rule s designed to prevent th e violation, (2) it had adeq uately
communicated the rules to its employees, (3) it had taken steps to discover violations, and
(4) it had effectively enforced the rules when violations were detected. Jensen Constr. Co.,
7 BNA OSH C 1477, 1479 (No. 76-1538, 1979). Respondent asserts that it had a written
safety rule requiring “[p]alm buttons or other operating controls [to] be secured at the
approved distance from the nearest pinch point.” (Tr. 251-52; C-10). This rule was not
designed to prevent the violation in this case because it did not prohibit employees from
relocating the controls, and the rule says nothing about only supervisors or safety engineers
being allowed to relocate controls. Moreo ver, even if the rule had been des igned to prevent
the violation, it was not communicated adequately to its employees, based upon the testimony
of the former employee that operators were routinely considered to be responsible for
affixing the control stand before using the OBI 200 press. (Tr. 89, 96). Based on the

   11
     Respondent was cited previously pursuant to the same standard at another plant

located in South C harleston, West Virginia; there, the violation was ultimately designated
as “unc lassified , with no penalty.” ( Tr. 244 , 253-5 4, 261; R . Brief, p p. 11-1 2).
12
Respondent urges that the injured employee, a team leader, was a supervisor and was
therefore permitted to relocate the c ontrol stand . This argument does not need to be resolved,
since the evidence shows that employees other than sup ervisors or safety engineers had also
relocated the stand.

                                         -12-

evidence, Respondent has not met the first two elements of its affirmative defense. Its
asserted defense is accordingly rejected.13
The Secretary allege s that the viola tion was se rious. How ever, I reject this
classification and find the violation to be de minim is. The Co mmission has the auth ority to
re-characterize a violation as de minim is based o n the fa cts of th e case. Erie Coke Corp., 15
BNA OSH C 156 1 (No . 88-61 1, 1992), aff’d, 16 BN A OS HC 12 41 (3d C ir. 1993); Super
Excavators, Inc., 15 BNA OSHC 1313, 1315 (No. 89-2253, 1991) . De minimis violations are
those with no direct or imm ediate relation ship to safe ty or health. Sectio n 9(a) of th e Act, 29
C.F. R. § 658( a). Stated an other wa y, a violation is de minimis when there is technical
noncompliance with a stand ard but the v iolation has such a negligible re lationship to
employee safe ty or health that i t is no t app ropr iate to ord er ab atem ent o r assess a penalty.
Whiting-Turner, 13 BN A OS HC 21 55, 2156 ; Cleveland Consolidated, 13 BNA OSHC 1114,
118; Fabricraft, Inc., 7 BNA OSHC 15 40, 1543 (No. 76-1 410, 197 9); Rust Eng’g Co., 5
BNA O SHC 11 83, 1184 (No s. 12200 & 12 201, 1977).
Based on the spe cific facts of this case, I conclude that Re spondent’s noncompliance
with the cited standard was de minim is because, standing alone, it did not necessarily resu lt
in a safety hazard. The hazard contemplated by the standard is that of operators setting up
their controls in such a location that they would be able to work too close to the point of
operation. It is clear that any employee, supervisory or not, moving the control sta nd in this
case too near to the press could have resulted in an injury. On the other hand, any employee
could also move the control stand farther away which, although a violation of the standard,
would not have created a hazard.. In light of this consideration, together with the fact that the
citation item under another machine guarding standa rd was withdr awn b y the Sec retary, I
find that the Secretary has not shown that employee safety and health were compromised by
the violation of this standard standing alo ne. Thus, u nder the ev idence pre sented in this case,

   13
     Also rejected is Respondent’s assertion, as set out in its brief, that the means of

compliance with the standard is vague and the Secretary’s enforcement of the standard has
been inconsisten t. Respond ent did not raise this defense in its notice of contest or answer nor
did it present any evidence as to confusion or misunderstanding as to its requirements.
Indeed, it was familiar with the standard. See footno te 6, supra.
I find that the viola tion of th is standa rd, by itself , had a negligible relationship to employee
safety or health. This item is therefore affirmed as a de minim is violation.

Findings of Fact

   All findings of fact necessary for a determination of all relevant issues have been

made above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law
inconsistent with this decision are hereby denied.

Conclusions of Law

   1. Respondent was, at all times pertinent hereto, an employer within the meaning of

section 3(5 ) of the A ct.
2. The Com mission has jurisdiction over the p arties and the subject matter.
3. Respondent was in violation of 29 C.F.R. § 1910.217(c)(3)(vii)(d) as alleged in
Citation 1, Item 2; the violation was de minim is, and no civil penalty is appropriate.
 ORDER

  1. Citation 1, Item 2 is AFFIRMED as a de minim is violation.
  2. No civil penalty is assessed.




                                             /s/
                                             Michae l H. Scho enfeld
                                             Judge, OSHRC

Dated: December 22, 2000
Washington, D.C.

                                      -15-