MARINAS OF THE FUTURE, INC.
OSHRC Docket No. 13507
Occupational Safety and Health Review Commission
November 14, 1977
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
F. V. LaRuffa, Reg. Sol., USDOL
Arthur Eisenberg, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
On January 5, 1976, Administrative Law Judge Seymour Fier issued a decision holding respondent, Marinas of the Future, Inc., in nonserious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., [hereinafter "the Act"] for failure to comply with the safety standards published at 29 CFR § 1910.22(a)(1) n1 and 29 CFR § 1910.215(a)(2). n2 Total penalties of $50 were assessed.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 § 1910.22 General requirements.
* * *
(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.
n2 § 1910.215 Abrasive wheel machinery
(a) General requirements.
* * *
(2) Guard design. The safety guard shall cover the spindle end, nut, and flange projections. The safety guard shall be mounted so as to maintain proper alignment with the wheel, and the strength of the fastenings shall exceed the strength of the guard, except: [omitted]
[*2]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Neither party petitioned for review of the Judge's decision. Former Commissioner Moran issued a direction for review, however, but did not specify any issues to be reviewed. Subsequently, respondent filed a brief asserting that the Judge erred in several respects. Pursuant to the Commission's Policy Statement, 41 Fed. Reg. 53015 (December 3, 1976) the points n3 urged by respondent will be considered.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 The respondent argues principally the following: (1) concerning section 1910.22(a), that if respondent's conduct is measured by a "reasonable man" test it should not be held in violation of that provision; and (2) concerning section 1910.215(a)(2), respondent contends that the machine involved was not being used without a guard and therefore there was no violation. For further discussion of respondent's arguments concerning section 1910.215(a), see p. 5, infra.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
I.
For the reasons that follow, we conclude that respondent complied [*3] with § 1910.22(a)(1) but not with § 1910.215(a)(2). n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 On review the Secretary did not file a brief, but chose to rely on his brief submitted to the Judge, and on the Judge's decision.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Respondent is the operator of a small boat yard on Staten Island, New York. Located on the premises is a closed barge that has been converted into a storeroom and workshop. On April 30, 1975, respondent's boat yard was inspected by an OSHA compliance officer. During the course of the inspection, the compliance officer observed tools, hoses, pieces of wood, and other materials spread about the storeroom area of the barge. The compliance officer testified that, in his opinion, the condition of the storeroom presented a tripping hazard to employees who would use the area. As a result of this condition, respondent was cited for a failure to comply with § 1910.22(a)(1). A penalty of $25 was proposed for the alleged violation.
In the center of the rear section of the barge, the compliance officer observed a two-wheel abrasive bench [*4] grinder with a clip-type wheel. The right wheel lacked a side-cup guard on the spindle as required by § 1910.215(a)(2). The wheels were interchangeable. On the day before the inspection the right grinder wheel had been replaced with a wire-brush wheel. The morning of the inspection day, the wire brush was removed and the grinder wheel was reinstalled. Respondent did not, however, replace the side-cup guard. Nevertheless, the machine was plugged in, and it began operating when the compliance officer used the starting switch. A penalty of $25 was proposed for the alleged violation.
In his decision, Judge Fier, citing Commission precedent, n5 rejected respondent's contention that § 1910.22(a)(1) is unconstitutionally vague. Noting that respondent conceded that various materials were on the floor of the barge, he found that respondent did not comply with the standard.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 See, for example, Plessey, Inc., 74 OSAHRC 77/C1, 2 BNA OSHC 1302, 1974-75 CCH OSHD para. 18,907 (No. 946, 1974).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
We reverse. n6 [*5] Although we agree with the Judge's finding that various work materials were on the floor of respondent's barge, we conclude that the Judge did not adequately consider the circumstances. A severe storm several days before the inspection necessitated extensive repairs on the marina. Respondent's assistant manager, Howard Wenger, was alone in the workroom at the time of inspection. He was making electrical repairs when the compliance officer arrived. When informed of the arrival of the compliance officer at respondent's office, Wenger stopped his work to meet the inspector and to accompany him on the inspection. Wenger's work required him to cut log styrofoam, used for flotation on the docks, and stretch out several 30-40 foot lengths of copper wire for inspection and repair.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Our disposition makes it unnecessary to rule on respondent's vagueness argument.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Respondent argues that to have removed the materials from the floor before meeting the compliance officer, Wenger would have either had to complete the work, [*6] which arguably would have taken several hours, or put all the materials away. Respondent contends that the latter option was impractical because to have removed the wires from the floor Wenger would have had to out the wires away without separating the sections that had been found to need replacement. This would negate several hours of work. Respondent notes that for Wenger to have marked the wires before removing them from the floor would have taken a substantial amount of time. Rather than have the compliance officer wait for him to clean up the area, respondent maintains that Wenger chose to interrupt his work and escort the inspector around the boat yard.
Respondent is apparently of the opinion that it was cited for failing to clean the work area before Wenger joined the compliance officer. Respondent is under a misapprehension. It was not cited for its failure to clean the workplace when notified that the compliance officer had arrived for an inspection. Rather, the plain wording of the citation indicates that respondent was cited for failing to keep its workplace clean and orderly.
In brief, the evidence establishes that, at the time of the inspection, respondent was [*7] engaged in extensive repairs that required it to lay wires, tools, and other materials on the floor. Moreover, there is no evidence indicating that the work materials on the floor were in excess of those required to accomplish repairs, and, therefore, there is no convincing evidence that the work area was unreasonably filled with work materials. We agree with respondent that the standard is to be read objectively in light of what is reasonable under the circumstances. See General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975), rev'd on other grounds, 540 F.2d 67 (2d Cir. 1976). We conclude that respondent has complied with the standard in the circumstances of this case.
II.
Judge Fier also affirmed the item alleging a failure to comply with § 1910.215(a)(2). Although the compliance officer did not observe any employee using the machine, the Judge noted that the grinder was in working order and that it was used on occasion. Relying on language in Brennan v. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032 (2d Cir. 1975) that stated that to prove a violation the Secretary need only show that there was a hazard [*8] accessible to employees, Judge Fier concluded that the Secretary established the violation.
Respondent makes several arguments in opposition to the Judge's affirmance of the § 1910.215(a)(2) violation.
First, respondent points out that the standard prohibits the use of the bench grinder without a safety guard, n7 and that the compliance officer did not observe any employee using the machine.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 § 1910.215(a)(1), which sets forth the general requirements regarding the applicability of the remainder of § 1910.215, states as follows:
(a) General requirements -- (1) Machine guarding. Abrasive wheels shall be used only on machines provided with safety guards as defined in the following paragraphs of this section, except:
(i) Wheels used for internal work while within the work being ground;
(ii) Mounted wheels, used in portable operations, 2 inches and smaller in diameter; and
(iii) Types 16, 17, 18, 18R, and 19 cones, plugs, and threaded hole pot balls where the work offers protection.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Second, respondent [*9] seeks to distinguish the Second Circuit's Underhill decision, relied upon by the Judge, from the instant case.
Finally, respondent argues that, even if the Underhill decision is controlling, there was no violation. Respondent cites the testimony of Wenger wherein he stated that company policy prohibits the use of the grinder without a guard on the abrasive wheel; that employees must ask permission on each occasion before they use the grinder; and that, in fact, the machine was not used without the guard in place. Accordingly, respondent urges the Commission to conclude that its employees did not have access to the unguarded machine, and that because there was no access the grinder posed no ascertainable hazard.
The controlling decision is Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976). There, the Commission has held that employee exposure can be established by a showing that the employees had access to the hazardous condition. This access theory of exposure has been consistently applied in cases regarding violations of various machine and tool standards. In such cases, the Commission has held that proof that [*10] a tool or machine in a violative condition is available for use is enough to establish a violation of section 5(a)(2) of the Act. See, for example, Morris Enterprises, Inc., 77 OSAHRC 44/F8, 5 BNA OSHC 1248; 1977-78 CCH OSHD para. 21,717 (No. 12283, 1977) (§ 1910.213(c)(11); Palmer Christiansen Co., 76 OSAHRC 39/D10, 4 BNA OSHC 1020, 1975-76 CCH OSHD para. 20,517 (No. 3108, 1976) (§ 1926.401(a)(1)).
Similarly, the Commission has interpreted § 1910.215(a)(2) to be effective when the machines mentioned therein are available for use. Stephenson Enterprises, Inc., 76 OSAHRC 122/A2, 4 BNA OSHC 1702, 1976-77 CCH OSHD para. 21,120 (No. 5873, 1976), petition for review docketed, No. 76-4163, 5th Cir., November 19, 1976.
As noted above, at the time of the inspection the bench grinder was plugged in and ready to operate. Moreover, Wenger's testimony indicates that respondent's policy requiring employees to get permission before using the machine and prohibiting the use without appropriate guards was not totally effective. When asked by the Secretary if it was possible for an employee to have used the unguarded machine without his seeing it, Wenger replied, "That's [*11] very possible." Clearly, respondent's unguarded machine was accessible to and available for the use of its employees. Stephenson Enterprises, Inc., supra.
We conclude that the $25 penalty assessed by the Judge is appropriate. Respondent is a small employer, having only five employees at the time of the inspection. Respondent has a good safety record and has exhibited good faith and a concern for safety. Respondent's safety policy, although not totally effective, indicates that the likelihood of an accident was small. Finally, the hazard was abated immediately after the inspection.
Accordingly, it is ORDERED that item 1 of the citation of nonserious violation for failure to comply with § 1910.22(a)(1) is vacated. Item 2 of the citation for failure to comply with § 1910.215(a)(2) is affirmed and a penalty of $25 is assessed.