SECRETARY OF LABOR,
Complainant,
v.
THE DURIRON COMPANY, INC.,
Respondent.
UNITED STEELWORKERS OF
AMERICA, LOCAL UNION 3320,
Authorized Employee
Representative.
OSHRC Docket No. 77- 2847
DECISION
Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:
This case is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of
the Occupational Safety and Health Act of 1970, § 651-678 ("the Act").
Originally, the case involved a series of citations, but only one issue remains to be
resolved. Administrative Law Judge J. Paul Brenton vacated a citation which alleged that
the extreme heat at Duriron's iron and steel casting machines violated the general duty
clause of the Act, section 5(a)(1). [[1]] We reverse Judge Brenton's decision and find
that conditions at the casting machines violated section 5(a)(1) of the Act.
I
Duriron operates a foundry in Dayton, Ohio which produces iron and steel castings. One of
the foundry's operations is performed at three centrifugal casting machines. At these
machines, an operator receives molten material in a large ladle which is moving overhead
on a monorail. After receiving the material, the operator moves the ladle by hand to a
position adjacent to the machine. He pours the material by tipping the large ladle into a
smaller ladle attached to the machine. One of two operators presses a button or lever, and
the smaller ladle automatically pours into the casting machine after which the pourer
moves out of the area. A tub called a "pig" receives the excess material from
each operation while the material is still hot. The material gradually cools down and is
not usable for casting until it is reprocessed.
The operation is, by all accounts, a very hot one. An OSHA compliance officer inspected
the foundry, took the temperature in the area around a centrifugal casting machine, and
found the temperature was on the average 95(d) F. Duriron officials also took measurements
around the time of the inspection and the results ranged from 92(d) F to 99(d) F. At other
times, the temperature in the area has reached as high as 115(d) F.
As a result of this inspection the Secretary cited Duriron for violating section 5(a)(1)
of the Act. The portion of the citation which is now in contest alleges:
"The employer did not furnish his employees working in the centrifugal [sic] pipe
casting department (#746) employment and a place of employment which was free from
recognized hazards that were causing or were likely to cause death or serious physical
harm to his employees in that heat stress measurements exceeded the natural wet bulb-globe
temperature index (WBGT) for heavy work in hot environments recommended by NIOSH, OSHA and
the Threshold Limit Values for Physical Agents adopted by the ACGIH for 1976. While
employees exhibited physiological effects characteristic of heat stress, the employer did
not institute work practices including: (1) an acclimatization policy, (2) work-rest
regimens, (3) preemployment and periodic examinations to determine employee fitness in hot
work locations, (4) informing and training of employees in safety and health procedures
with respect to hot work locations and in recognition and treatment of heat disorders, (5)
initial and periodic measurements of hot work locations to define the employee's heat
exposure, (6) shields, covers, or personal protective clothing to protect employees from
heat, and (7) engineering controls to reduce the heat load in hot work locations;"
Exposure to excessive heat can result in heat exhaustion and heat stroke. At high
temperatures, the body circulates great amounts of blood to the skin in an effort to
eliminate heat through perspiration. As a result, less blood is circulated to the body's
vital organs including the brain. Heat exhaustion can lead to dizziness, nausea, and
eventual collapse. If not treated promptly by lowering the body temperature, a person
suffering from heat exhaustion could suffer brain damage.
Beyond heat exhaustion is heat stroke. The Secretary's expert medical witness testified
that during heat stroke the body stops sweating, making it impossible to dissipate heat.
The body temperature may rise to a dangerously high level and cause death.
The dangerous effects of high temperatures can be minimized in several ways. First, people
working in hot environments should drink plenty of liquids to replenish the body liquids
lost through perspiration. Second, people can be acclimatized, or gradually introduced, to
the hot environment. If a person is exposed to a hot environment for progressively longer
periods over the course of a week, the body gradually builds a tolerance to the high
temperatures.
Workers assigned to the casting machine did not receive instructions about the possible
effects of the heat nor were they acclimatized to the heat. They were exposed to the heat
for about fifty minutes out of each working hour. Water and salt tablets were available
and fans were located near the area to allow workers to cool off between pourings. Foremen
were instructed in the problems concerning heat exhaustion in first aid courses.
An incident which highlights the problem of the extreme heat occurred at the casting
machines shortly before the inspection. On July 5, a Duriron employee, Paul McDonald, was
assigned to work on a centrifugal casting machine. Although it was his first time working
in this hot a job, McDonald was given no warnings or instructions about the heat. After
about ninety minutes at the casting machine, McDonald began to "black out." The
operator's work station at the casting machine is very near molten metal and moving parts
of the machine. Duririon's job description states that the operator is exposed to hazards
of rotating machinery, and the top of the pig, which contains molten metal, is below the
operator's waist level. McDonald testified that on July 5, "I was worried about
myself . . . passing out, you could fall the wrong way and it would be all over with
you." Eventually, McDonald felt so weak that he took himself off the job and reported
to the nurses office. The Duriron nurses gave McDonald Gatorade and checked his blood
pressure and temperature.
The next day, McDonald reported to the nurses station where his blood pressure was
checked. He was advised to stay as cool as possible and drink fluids. McDonald followed
these instructions. However, five to six hours into the day, he experienced dizziness and
on his way to a fan to cool off, "passed out cold." McDonald was taken to the
medical office where, once again, he was given fluids and had his blood pressure and
temperature checked. The nurses refused to allow him to work in the casting area when he
reported for work the next day.
Judge Brenton vacated the 5(a)(1) citation. He reasoned that while the evidence
established that heat stress was a recognized hazard and Duriron's foundry was not free of
the hazard of extreme heat, "the evidence does show that heat stress was not
recognized as a hazard causing or likely to cause death or serious harm in hot
environmental workplaces such as Respondent's facility." Judge Brenton also stated
that an incident in which an employee would collapse and fall into molten metal was not
likely to happen because of the precautions taken by Duriron.
The Secretary petitioned for review of this issue. Commissioner Cottine directed review on
the following questions:
Whether the judge erred in concluding that the Secretary did not establish a violation of
29 U.S.C. § 654(a)(1), section 5(a)(1) of the Act.
Whether the judge erred in concluding that 'heat stress is not recognized in the industry
as causing or likely to cause death or serious physical harm to its victims.'
II
In order to establish a section 5(a)(1) violation, the Secretary must prove:
(1) the employer failed to render its workplace free of a hazard, (2) the hazard was
recognized either by the cited employer or generally within the employer's industry, (3)
the hazard was causing or was likely to cause death or serious physical harm, and (4)
there was a feasible means by which the employer could have eliminated or materially
reduced the hazard. Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10th
Cir. 1981); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir.
1973); United States Steel Corp., 82 OSAHRC 35/A2, 10 BNA OSHC 1752, 1982 CCH OSHD ¶
26,123 (No. 77-1796, 1982).
Judge Brenton found that the Duriron foundry was not free of the hazards associated with
heat stress, and that finding is supported by the record. The record amply demonstrates
that excessive heat can cause various safety and health problems. Heat exhaustion can
result in dizziness and fainting. Depending upon were the employee collapses he may be
harmed by the fall, and if left untreated, heat exhaustion can result in brain damage. In
extreme situations, excessive heat can result in a fatal heat stroke.
Measurements taken at different times in the casting area place the temperature at 92(d)
F. to 115(d) F. The Secretary's expert, Dr. Dukes-Dobos, testified that fatal heat stroke
can occur at temperatures as low as 86(d) F., but most often begins to occur at over
100(d) F. In short, heat exhaustion and heat stroke could occur at the temperatures found
at the casting machine area. The incident in which McDonald passed out supports this
testimony.
Concerning recognition of the hazard, Duriron's own job description characterized the
casting machine job as a "hot" one where workers were exposed to "extreme
heat." Duriron also gave its foremen a standard Red Cross first aid course, which
included training in problems associated with excessive heat including heat stroke and
heat exhaustion. Finally, the Secretary's expert witness on heat stress, Dr. Dukes-Dobos,
testified that management of industries, including foundries, of which he was aware knew
of the problems of heat stress and the need for taking certain precautions.[[2]]
Judge Brenton found that heat stress was not likely to cause death or serious injury in
Duriron's workplace. He reasoned that an incident in which an employee would suffer death
or serious harm was not likely to occur. However, the Commission has held that the term
"likely" in the general duty clause does not refer to the likelihood of an
incident occurring but to the likelihood of serious injury in the event an incident
occurs. In R.L. Sanders Roofing Co., 79 OSAHRC 61/D7, 7 BNA OSHC 1566, 1570 1979 CCH OSHD
¶ 23,756 at p. 28,805 (No. 76-2690, 1979), enforcement denied, 620 F.2d 97 (5th Cir.
1980) the Commission stated:
We believe that the remedial purposes of the Act are better served by interpreting section
5(a)(1) to require that the workplace be kept free of recognized hazards which, if an
accident occurs, are likely to cause death or physical harm regardless of whether an
accident is likely to occur.
(emphasis in the original).
Here, if an incident occurred it is likely that the result would be death or serious
injury. Unrebutted expert testimony established the serious medical repercussions,
including possible brain damage, because of heat exhaustion and heat stroke. In this case,
the chances of serious injury or death were enhanced because of the proximity of molten
metal and moving machinery to the casting machine work station. If the casting machine
operator was overcome by heat exhaustion, he might collapse into the molten metal and
moving machinery. McDonald himself testified he was concerned about this possibility.
When employees are exposed to high temperatures for extended periods of time, it is
incumbent upon employers to take feasible steps to materially reduce common hazards
associated with extreme heat. This is especially true when employees are working, as in
this case, around potentially dangerous machinery and materials. If an employer fails to
institute the necessary administrative changes and provide its workers with adequate
personal protective equipment to cope with extreme heat, it will be in violation of the
general duty clause of the Act.
Duriron's precautions were inadequate given the heat and potential danger. Dr. Dukes-
Dobos testified that there are several other feasible precautions which other industries
have regularly taken and which Duriron could have taken to alleviate the danger of the
extreme heat, such as acclimatizing employees and giving them. specific instructions and
warnings concerning the effects of the heat. Also, after the inspection, Duriron covered
the pig containing excess molten metal, which both reduced the heat radiated into the
operator's work station and lessened the danger that an employee overcome by the heat
would fall into molten metal.[[3]]
Since the Secretary has established all the elements of a section 5(a)(1) violation, Judge
Brenton's decision is reversed and the citation is affirmed. After considering the factors
enumerated in section 17(j) of the Act, 29 U.S.C. § 666(i), we assess a penalty of $200.
Duriron exhibited good faith by taking certain steps, albeit inadequate, to protect
employees exposed to the hazard of heat stress. However, the severity of possible injury
from an incident requires that more than a nominal penalty be assessed.[[4]] SO ORDERED.
FOR THE COMMISSION
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
DATED: APR 27 1983
FOOTNOTES:
[[1]] Section 5(a)(1), 29 U.S.C. § 654(a)(1), provides:
Sec. 5(a)(1) Each employer--
(a) shall furnish to each of his employees employment and a place of employment which are
free from recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees.
[[2]] In 1972, the National Institute for Occupational Safety and Health
("NIOSH") suggested a standard for exposure to heat. Pursuant to sections
6(b)(1) and 7(b) of the Act, 29 U.S.C. §§ 655(b)(1) and 656(b), an advisory committee
recommended to the Secretary that he adopt the NIOSH recommendation as a mandatory OSHA
standard. However, the Secretary did not subsequently propose or adopt any standard
governing heat stress.
Duriron strenuously argues that this enforcement action is improper and a violation of due
process because the Secretary is trying to enforce a recommended standard for exposure to
heat under the guise of a section 5(a)(1) violation.
We reject this argument. The Secretary did not attempt to enforce the recommended NIOSH
standard. Rather, the Secretary used the recommended standard as general evidence of the
hazard and industry recognition of the hazard. This is permissible. See Cargill Inc.,
Nutrena Feed Division, 82 OSAHRC 11/A2, 10 BNA OSHC 1398, 1982 CCH OSHD ¶ 25,935 (No.
78-5707, 1982.)
Furthermore, if the Commission were to accept Duriron's argument, it would mean that any
time a standard is recommended to the Secretary the Secretary is precluded from enforcing
the general duty clause with respect to the hazards encompassed in the suggested
regulation. Though a standard may have been recommended, and not promulgated, this does
not necessarily mean that the Secretary concluded that a hazard did not exist, or is
otherwise objective evidence that a hazard does not exist. This is particularly true in
the face of testimony and evidence as in this case that heat stroke and heat exhaustion
are recognized hazards. We do not believe worker safety and health is best served by such
a restricted application of the minimum protections of the general duty clause. See
American Smelting & Refining Co. v. OSHRC, 501 F.2d 504, 514 (8th Cir. 1974)
(Secretary can cite employer under general duty clause even though a specific standard
regulating the hazard has yet to become effective).
[[3]] The citation, quoted supra, alleged that Duriron should have also taken other
precautions to reduce the hazard of heat stress. For the purpose of disposing of this
case, we need not decide whether the Secretary proved the feasibility and likely utility
of all of these means. It is sufficient to observe that the record establishes that some
feasible precautions were available to Duriron to materially reduce the hazard. See Litton
Systems, Inc., Ingalls Shipbuilding Div., 81 OSAHRC 101/C12, 10 BNA OSHC 1179, 1982 CCH
OSHD ¶ 25,817 (No. 76-900, 1981). If these measures do not entirely eliminate the hazard,
then Duriron must determine whether additional precautions are feasible. See Kelly
Springfield Tire Co., 83 OSAHRC 47/36, 10 BNA OSHC 1970, 1975 n. 5, 1982 CCH OSHD ¶
26,223 at p. 33,114 n. 5 (No. 78-4555, 1982), appeal filed, No. 82-4389 (5th Cir. Oct. 6,
1982).
[[4]] We note that the dissent relies on untrained employees to remove themselves from the
hazardous environment before the onset of serious injury and on subsequent medical
treatment to negate either the existence or seriousness of a hazard. This clearly
contravenes the purpose of section 5(a)(1). See 29 U.S.C. § 651(b); General Dynamics
Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir. 1979); National Realty
& Constr. Co. v. OSHRC, supra; Beaird-Poulan, A Div. of Emerson Electric, 79 OSAHRC
21/D11, 7 BNA OSHC 1225, 1979 OSHD ¶ 23,493 (No. 12600, 1979); S & H Riggers &
Erectors Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ¶ 23,480 (No. 15855,
1979), rev'd, 659 F.2d 1,273 (5th Cir. 1981).