SECRETARY OF LABOR,
Complainant,

v.

CONTINENTAL ELECTRIC COMPANY,
Respondent.

OSHRC Docket No. 83-0921

 

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.
BY THE COMMISSION:

The issue in this case is whether Administrative Law Judge Joe D. Sparks properly vacated the Secretary's citation alleging that Continental Electric Company ("Continental") committed a nonserious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-78, by failing to provide a hearing conservation program as required by the Secretary's noise standard, 29 C.F.R. 1910.95.[[1/]] The judge concluded that the Secretary had not proven that Continental knew or should have known of the allegedly violative conditions.  We reverse the judge's decision and affirm the citation.

The relevant facts are not in dispute.   Continental uses a pneumatically-operated tool know as an "air file" to remove excess material from castings.  During an inspection of Continental's facility the Secretary's industrial hygienist measured noise levels as high as 120 to 103 decibels while the air file was operating.  Since these levels indicated that the employee who operated the air file might be exposed to noise in excess of the limit permitted by the standard, the hygienist asked whether Continental had taken any noise measurements.   Continental's representative said that the company had performed its own monitoring but refused to divulge its noise records.  In the absence of any information as to the employee's actual noise exposure, the hygienist decided to conduct a full-shift noise sample by placing a noise dosimeter on the air file operator wore the dosimeter for 7 hours and 17 minutes, during which time he operated the air file intermittently.  The dosimeter indicated that the operator was exposed to slightly more than 92 decibels on an 8-hour time-weighted average basis.  In response to the hygienist's inquiry, the operator told the hygienist that the day the air file less than on other days.   Continental stipulated that it did not have a hearing conservation program when the inspection occurred.[[2/]]

Continental argued, and Judge Sparks held, that there was no showing that it had actual or constructive knowledge of the noise levels at the air file operator;s work station.[[3/]]  We disagree; we conclude that Continental in the exercise of reasonable diligence should have been aware of the amount of noise to which the air file operator was exposed.[[4/]]

The Secretary may prove knowledge by establishing either that the employer actually knew of the hazardous conditions or that the employer should have taken measures that would have informed it that such conditions existed.   E.g., R.D. Anderson Construction Co., 12 BNA OSHC 1665, 1668-69, 1986-87 CCH OSHD 27,500, pp. 35,640-41 (No. 81-1469, 1986), Union Boiler Co., 83 OSAHRC 11/C7, 11BNA OSHC 1241, 1244, 1983-84 CCH OSHD  26,453, p. 33, 606 (No. 79-232, 1983) aff'd mem., 732 F.2d 151 (4th Cir. 1984).  When employees are exposed to a condition that is regulated by the Secretary's health standards such as noise, reasonable diligence requires the employer to use those test procedures or measurements that are available to determine whether the exposure exceeds the limits set forth in the standard.  Seaboard Foundry, Inc., 83 OSAHRC 23/C7, 11 BNA OSHC 1398, 1402, 1983-84 CCH OSHD 26,522, p. 33,775 (No. 77-3964, 1983); General Electric Co., 81 OSAHRC 41/A2, 9 BNA OSHC 1722, 1728, 1981 CCH OSHD 25,345, p. 31, 455 (No. 13732, 1981).  See Union Boiler, supra (general discussion of employer's duty to anticipate hazards to which employees may be exposed by inspecting work area).

In addition to an employer's general obligation to determine the severity of health hazards in it workplace, the hearing conservation standard requires that the employer conduct noise monitoring "when information indicates that any employee's exposure may equal or exceed an 8-hour time-weighted average of 85 decibels." 29 C.F.R. 1910.95(d)(1).  The fact that the air file produced noise levels as high as 103 decibels[[5/]] would clearly indicate to a reasonably diligent employer the possibility that the air file operator's overall noise exposure could average more than 85 decibels over an 8-hour work day.  Thus, Continental had duty to measure the exposure of the air file operator under the terms of the hearing conservation standard itself.  See R.D. Anderson, 12 BNA OSHC at 1688, 1986-87 CCH OSHD at p. 35,640 (discussion of monitoring requirement of the asbestos standard, 29 C.F.R. 1910.1001(f)(1).

The record shows that Continental in fact had taken noise measurements of it own.  Absent the introduction into evidence of the result of its noise monitoring, we cannot conclude that Continental had actual knowledge of the 8-hour time-weighted average noise level to which the air file operator was exposed.   However, considering that the length of time the air file was used on the day of inspection was typical of, or even less than, it use on other days, [[6/]] we conclude that Continental's noise measurements should have put it on notice of a need for a hearing conservation program for the air file operator.  A reasonably diligent employer conducting its own noise measurements would have been aware that the air file operator normally is exposed to a noise level considerably in excess of 85 decibels.

Accordingly, the judge's decision is reversed, and the citation alleging that Continental failed to comply with 29 C.F.R. 1910.95(c) is affirmed.  The Secretary proposed no penalty and we assess none.

 

FOR THE COMMISSION

Ray H. Darling, Jr.
EXECUTIVE SECRETARY


DATED: April 18, 1989


SECRETARY OF LABOR

Complainant,

v.

CONTINENTAL ELECTRIC COMPANY,

Respondent.

OSHRC Docket Nos.

83-0920 and 83-0921

(Consolidated)

Appearances:

L.K. Cooper, Jr. Esquire, Office of the Solicitor, U.S. Department of Labor, Birmingham, Alabama, on behalf of complainant.

Winston B. McCall, Jr., Esquire, Birmingham, Alabama, on behalf of respondent.

DECISION AND ORDER

SPARKS, Judge:  This proceeding arises under section 10(c) of the Occupational Safety and Health Act of 1970 (the "Act").

Compliance officers of OSHA conducted inspections to determine compliance with the Act.  Citation were issued charging violations of safety and noise standards.  By amendment, the Secretary withdrew safety citation number one and deleted items 2b, 5c, and 8b of citation number two.   Item five of citation number two was modified (Tr. 5-6).  Left at issue from docket number 83-0920, citation number two, are item 1, 2a, 3, 4, 5a, 5b, 6a(a), 6b(a), 6c(b), 6c(c), and 8a.  The citation in docket number 83-921 alleging a failure to have a continuing, effective hearing conservation program is also at issue.  All items remaining for decision are alleged to be other than serious violations.  There are no issues involving purposed penalties or abatement dates (Tr. 48-49).  The cases were consolidated by an order of April 12, 1984.

Respondent contends the Secretary failed to carry his burden of proving the violations.  Clarence Brown d/b/a Brown's Contracting, 77  OSAHRC 78/C4, 5 BNA OSHC 1455, 1977-78 CCH OSHD 21,816 (No. 7690, 1977).  The findings of fact specifically enumerated and those stated in the following discussion are found to be established by the preponderance of the evidence of record

I
DOCKET NO. 83-0920
CITATION NO. 2

Item one alleges a violation of 29 C.F.R. 1910.22(d)(1) [[1/]] in that and overhead area was not marked to show its maxim load limit.  An overhead area used to store flat cardboard boxes was not so marked.   The evidence fails to identify the building official or the approvedload limit for the area in question. Although the record establish that respondent occupied and used the building, it does not establish that respondent is the "owner of the building or his duly authorized agent."  See Cole, Division of Litton Business Systems, Inc. ,   79 OSAHRC 87/A2, 7 BNA OSHC 2145, 1979 CCH OSHD 23,944 (Nos. 77-3432 BS 78-2939, 1979). The burden is upon the Secretary to prove that a particular standard applies to the cited working conditions. Howard Barthelmass Painting Co., 81 OSAHRC 84/E1, 9 BNA OSHC 2160, 1981 CCH OSHD 25,637 (No. 78-5450, 1981).  The Secretary has failed to carry his burden of showing essential elements of the standard so item one must be vacated.

Item 2a alleges a violation of 29 C.F.R. 1910.106(e)(2)(iv)(d) [[2/]] in that paint regularly used in the painting operations was not drawn through a self-closing.   The drum was marked flammable.  The flash point of Chem Glaze paint was daily drawn from a drum and through a valve which was not self-closing.  The drum was marked flammable.  The flash point of Chem Glaze paint was 70 F.  (Tr. 353-354).  Flammable liquid having a flash point below 100 F.  The information was available to respondent from the specification sheets furnished by the manufacturer.   A violation of item 2a was established.

Item three alleges a violation of 29 C.F.R. 1910.106(e)(9)(iii) [[3/]] in that combustible rags were stored in a plastic trash can.  The evidence shows the rags were used to wipe up paint until they became so stiff they could no longer perform that purpose and were stored discarded into plastic trash can.  A combustible liquid is defined as any liquid having a flash point of the hardened paint.  Complainant argues that the rags themselves, made of cloth, were combustible material subject to the restrictions of the standard (Comp. Brief P. 2).  The compliance officer testified, however, it was only because the rags were used to wipe up paint that she considered the material combustible (Tr. 68,218).  No tests were conducted by the Secretary and respondent's tests flame up when a flame was applied.  The evidence of the record does not establish that the soiled rags were combustible waste material.  Item three must be vacated.

Item four alleges a violation of 29 C.F.R. 1910.151(c) [[4/]] in that employees were exposed to injurious corrosive materials and suitable facilities for quick drenching of flushing of the eyes and body were not available within the work area for immediate emergency use.  Two employees regularly used epoxy resin, a corrosive material (Tr. 273,282).  Respondent did not have special safety showers and eye wash facilities, but bathrooms with sinks and a drinking fountain were located at an end of the building.  The bathrooms had hot and cold running water (Tr. 347).  The compliance officer estimated the bathrooms were 25 to 50 feet the work area (Tr. 176).  Respondent's supervisor estimated the distance as 20 feet and stated the employees could reach the bathrooms within seconds (Tr. 347-349).

In Gibson Discount Center, Store No. 15, 78 OSHARC 30/C1, ^ BNA OSHC 1526, 1978 CCH OSHD 22,669 (No. 14657, 1978), the Review Commission held that whether a violation exists depends on consideration of all circumstances.  There it was established that battery acid is not hazardous if washed out within a short period and that an exposed employee could reach running water within 29 to 30 seconds.  The review Commission held that the evidence did not establish a violation.  In E.I. DuPont De Nemours & Co., Inc., 82 OSAHRC 4/A2, 10 BNA OSHC 1320, 1982 CCH OSHD 22, 669 (no. 14657, 1978), the Commission held that a violation had not been proved where the employer provided a standard full-body shower but not a specific eye-wash facility.  See also Bridgeport Brass Co., __ BNA OSHC ___, 1984 CCH OSHD 27,054 (No. 82-899, 1984).

In the instant case, the evidence establishes that the employees did wear eye protection (Tr. 178,348).  They could reach the bathrooms where running water was available within a matter of seconds.  The evidence running water was available within a matter of seconds.  The evidence fails to show that an injury to the eyes or body would result within the elapsed time.   Considering all evidence of record, the Secretary has not established that the available facilities are not suitable.  Item four is vacated.

Items 5a and 5b allege violations of 29 C.F.R. 1910.212(a)(1) [[5/]] under conditions stated as follows (as amended):

Machine guarding was not provided to protect operators and other employees from hazards  created by:  ingoing nip points:

(a) Cutting and grinding area in Fiberglass Building -nip points where sanding belt meets pulleys were not guarded.  Machine made by Stephen Bader Company.

(b) In Machine Shop in Iron Building - unguarded nip points on each of three small floor grinders where the sanding belt and the V-belt meet the respective pulleys.  Grinders made by Stephen Bader Company.

The machine described in 5a has three possible nip points formed when the sanding belt comes into contact with rollers or pulleys.   The nip point A e(Ex. C-6) was accessible to employees in back of the machine if they had occasion to go back there and could possibly be reached from the front (Tr. 84, 88).  A well was behind the machine (Tr. 187-188).  Nip point B was guarded by location from the front but could be reached from the rear (Tr. 88).  The machine was operated eight hours daily.  The operator stood two or three away from the machine while operating it and did not put his hands in the point of operation (Tr. 86-87, 186, 189).  Once the machine is in operation, the employee has no reason to touch it (Tr. 35).  No injuries had been reported on the machine (Tr. 189-190).

In Stacey Manufacturing, Inc., 82 OSAHRC 14/B1, 10 BNA 1534, 1982 CCH 25,965 (No. 76-1656, 1982), the Review Commission held as follows:

In order to establish a violation of 29 C.F.R. 1910.212(a)(1), the Secretary must first prove the existence of a hazard. A.E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD 21, 573 (No. 12501, 1977), aff'd,

Whether a hazard is presented must be determined from all circumstances including the manner in which the machine function and how it is operated by the employees.  Rockwell International Corp., 80 OSHARC 118/A2, ___ BNA OSHC ___, 1980 CCH OSHD 24,979 (No. 12470, 1980).  See also Syntron, Inc., 83 OSAHRC 1/C1, 11 BNA OSHC 1158, 1984 CCH OSHD 26,840 (No. 81-1494-S, 1984); Skydyne, Inc., ___ OSAHRC ___, 11 BNA OSHC 1753, 1984 CCH OSHD 26, 761 (No. 80-5422, 1984).

Here the evidence fails to disclose any reason or occasion for an employee's hands or other parts of the body to come into contact with one of the nip points.   The Secretary has failed to carry his burden of proof.

The machine described described in item 5b also contained unguarded nip points (Ex. C-8, C-9; Tr. 91, 102).  The machine was used less than weekly by an employee (Tr. 104, 201).  If an employee were to get any part of his body into the nip points; abrasions, cuts, pinches and amputations could result (Tr. 105).  The operator stands in front of the machine and feeds material to a sanding belt.  At that time, the operator  is about 37 inches from the nip point (Tr. 199).  Any injuries on the sanders have been minor (Tr. 354).  Again, the evidence does not reveal any occasions for employees to come into contact with the nip points.

Complaint's alternative pleading to reallege item 1a of serious citation number one is denied (Tr. 325).

Items 6a(a) and 6a(b) allege violations of 29 C.F.R. 1910.215(a)(2) [[6/]]  in that two abrasive wheels used on grinding machinery were not provided with safety guards which covered the conditions observed by the compliance officer.  A hazard of injury is presented to the operator and any other person nearby.

Respondent contends that the Packer bench grinder [item 6a(a)] was not in use at the time of the inspection and was later discarded.   The compliance officer did not see it in use, and a photograph taken the date of the inspection shows the electric cord and plug wrapped around the machine (Ex. C-10; Tr. 109). Respondent's representatives on the walkaround inspection stated the machine was used for short times one or two times weekly (Tr. 112). At the hearing, a supervisor testified that the machine had not been used in a while; but, if needed, it would have been used (Tr. 359, 376-377).  The conclusion to be drawn from the evidence is that the grinder was available for use when needed.  The fact that it was not used more frequently does not relieve respondent from such exposure which presented the hazard of a wheel coming off or apart.

The shop built grinder in item 6a(b) was also used infrequently, but employee exposure and the condition of the unguarded grinder were clear.

Item 6b alleges two violations, (a) and (b), of 29 C.F.R. 1910.215(a)(4)[[7]] in that work rests on grinding machinery were not adjusted closely to the wheel with a maximum opening of one-eight inch.  Such conditions present hazards that fingers or work product may become caught between the rest and wheel.  The evidence establishes the conditions alleged.  Respondent contends the machines are used for only short periods of time and no injuries have resulted from those machines.  The machines are regularly used and are available for use.  The conditions of use present a hazard of injury giving rise to other than serious violations. 

Item 6c alleges three instances of violations of 29 C.F.R. 1910.215(b)(9)[[8]] as a result of the distances between the abrasive wheels and the peripheral guards.  It is not disputed that the distance in each case was greater than the one-quarter inch permitted by the regulation.  Respondent argues that there have been no injuries, that the machines are not used frequently, employees used protective equipment and in one instance the deviation from the standard was not great.  Such guards are designed to contain fragments should an abrasive wheel break (Tr. 119-120, 130).  Other than serious violations described in 6c(a), and 6c(c) were established.

Item seven alleges three areas of the facility where respondent failed to mark electrical disconnect boxes to indicated their purposes contrary to 29 C.F.R. 1910.303(f).[[9]] The evidence clearly shows that the electrical boxes on the front wall of the iron ship, the assembly areas of the iron building and near the shipping and receiving area of the fiberglass building were not so marked, nor were their purposes evident from their locations.  The boxes control circuits to lights, equipment and appliances.  Respondent points out that the machines also had ON-OFF switches and plugs which could be pulled out of the wall outlets.   The alternate means of disconnecting machinery does not obviate the necessity for properly marking the electrical disconnect boxes.

Item 8a alleges a violation of 29 C.F.R. 1910.305(b((1)[[10]] in that knockout plugs were not present in a temporary outlet near a drill press.  The evidence establishes the facts alleged (ex. C-10).  Although the outlet was used only for a short period of time once a week, a hazard was present at that time (Tr. 144-146).  Fingers or tools could come into contact with live electrical wires through the holes.  A violation has been established.

II

DOCKET NO. 83-921

CITATION NO. 1

The only citation of docket number 83-921 alleges a violation of the noise conservation standard at 29 C.F.R. 1910.95(c)[[11]] in that the employer failed to administer a continuing, effective hearing conservation program where employee noise exposure equaled or exceeded an eight-hour time-weighted sound level of 85 dBA.

The evidence established that the air file operator in the fiberglass department was exposed to noise at 120.5% of the allowable exposure at 90 dBA.  The findings are sufficient to require a noise conservation program as provided in 29 C.F.R. 1910.95(c).

Respondent stipulated it did not have a continuing, effective hearing conservation program within the meaning of the Act (Tr. 285).  Respondent attacks the reliability of the findings. The industrial hygienist, Ms. Etterer, however, demonstrated a through knowledge of her equipment and the procedures necessary to take accurate and fair samples of the environment.  The equipment was properly calibrated before and after use.  The findings were checked and calculations carefully made.  She is found to be a competent and reliable expert witness.

Two legal problems are presented.  In Forging Industry Association v. Secretary of Labor, 748 F.2d 210 (4th Cir. 1984), 12 BNA OSHC 1041, 1984 CCH OSHD 27,102 (No. 83-1420, 1984), the Court of Appeals for the Fourth Circuit held the hearing conservation amendment to be invalid.  It is not certain that the matter has been exhausted so the issue will not be decided on that basis.   The record is deficient of evidence that the employer knew or should have known of the conditions, an element of proof of an other than serious as well as a serious violation.  The Commission has held such evidence necessary because an employer cannot be expected to have corrected a hazard of which he was unaware.

The alleged violation, therefore, must be vacated.  L.M. Sessler Excavating & Wrecking, Inc.,   ___OSAHRC___,___BNA OSCH___, 1984 CCH OSHD 26,943 (No. 79-2168, 1984).

FINDINGS OF FACT

1.    Respondent is a corporation with a manufacturing facility located at Lovic Road, Birmingham, Alabama, where it is engaged in the production of electric pole hardware.

2.    Pursuant to a warrant, Compliance Officer Virginia Simmons and Industrial Hygienist Judith Etterer entered respondent's plant on August 17, 1983, to inspect for compliance with the Occupational Safety and Health Act.  Employees had been sent home on that day so the agents returned on August 24 to observe operations and interview employees.  Noise monitoring was conducted on August 25 (Tr. 14, 21, 94, 236, 246).

3.    In the air file department, an overhead storage area was not marked to show the maximum weight load limit (Ex. C-1, C-2; Tr. 26-34, 215).

4.    An employee worked under the unmarked overhead storage area (Ex. C-2; Tr. 32-33, 150-153, 266).

5.    The overhead storage area was constructed of three-to-four-inch steel post supports and heavy lumber flooring (Tr. 155-156, 331, 334).

6.    The overhead storage area was used to store flat cardboard boxes.  The boxes usually exerted a weight of 50 pounds per square foot on storage floor.  The maximum exerted was 75 pounds (Tr. 154, 157, 332).

7.    The maximum weight the overhead storage area could hold was 200 pounds per square foot, but the storage area was not so marked (Tr. 333).

8.    There were no signs of stress on the storage area (Tr. 158, 334).

9.    A paint product marked "Chem Glaze" was contained in a drum in the paint area (Ex. C-3; Tr. 38-39, 41-42, 335-556).

10.    The contents of the drum were flammable (Tr. 38-39, 41, 161, 337-338, 369-370).

11.    Two employees regularly used the  paint product Chem Glaze (Tr. 41-42, 44-45).

12.    The employees removed paint from the drum at least once a day (Tr. 46, 165-166).

13.    The paint was removed from the drum by means of a ball or turn valve not a self-closing valve (Tr. 47, 160, 215-216, 368-369).

14.    A non self-closing valve allows vapors to escape the container presenting a hazard of fire (Tr. 49-50, 166).

15.    The chance of a spark igniting the paint was low (Tr. 168).

16.    A plastic trash can in the Fiberglas Department was used to store soiled cloth rags (Ex. C-4; Tr. 52, 217).

17.    The rags were used to wipe up paint.  After the paint in the rags began to harden, the rags were no longer suitable for use and were discarded into the plastic trash can (Tr. 53, 55, 58-60, 340).

18.    When the top of the trash can was removed, the odor of paint was smelled; but the paint smell could have come from other areas (Tr. 55, 69, 170).

19.    The paint wiped up by the rags was flammable (Tr. 66/68, 218).

20.    The trash can contained only a few rags; it was not as much as half-filled (Tr. 168).

21.    Tests performed by respondent after the inspection showed that, when a flame was applied to a rag hardened with paint, the rag charred and turned red but did not flame up (Tr. 345).

22.    Respondent's employees daily placed an epoxy resin on pole line hardware products (Ex. C-5; Tr. 69-71, 78, 269).

23.    The epoxy resin was obtained from Southeast Resin Company, Shalimar, Florida (Tr. 71, 174-175).

24.    Employees also used methylene chloride and acetone in the area (Tr. 72, 73, 271).

25.    The epoxy resin, methylene chloride and acetone are corrosive materials (Tr. 72, 73-74, 276-275, 282, 302).

26.    Respondent did not have an eye wash or a quick drenching shower for the body (Tr. 78, 175).

27.    Respondent's building has a water fountain and two bathrooms with sinks for men and women located near the area where corrosive materials were being used (Tr. 177, 180, 292-293, 346-349).

28.    Bathroom sinks and drinking water fountains provide hot and cold running water (Tr. 347).

29.    An asindales grinder manufactured by Stephen Bader Company located in the cutting and grinding area of the Fiberglass Building had three nip points (Ex. C-6; Tr. 80-83).

30.    A nip point is the point is at which two moving pieces come together (Tr. 81).

31.    A sanding belt made of reinforced paper created nip points as it rotated around rollers or pulleys of the grinder (Tr. 182, 350).

32.    Two of the three nip points were partially but not completely guarded by location (Tr. 82, 83, 86, 88, 186-189).

33.    Two of the nip points could be reached from the rear, and one from the front (tr. 83, 88).

34.    Employees of respondent operated the Asindales grinder eight hours a day grinding the ends of fiberglass rods (Tr. 87-88, 350).

35.    The sanding belt breaks an average of twice a day (Tr. 350).

36.    Respondent performed a test shortly after the inspection by placing an object five-eights inch in diameter in the nip point between the wheel and the sanding belt at which time the belt broke.  The test has no validity in establishing the potential damage to a human finger as a fiberglass rod is of much harder material (Tr. 352, 371-372).

37.    An operator stands three or four feet away and feeds rods into the machine but has no reason to touch the machine while it is operating (Tr. 350, 353).

38.    The only occasion for a person to be behind the machine is to change out a broken belt (Tr. 353).

39.    Three grinders in the machine shop manufactured by Stephen Bader Company had exposed nip points created by a sanding belt and a V-belt on each moving over rollers or pulleys (C-8, C-9; Tr. 91, 101, 190).

40.    The four nip points were not guarded (Tr. 101-102, 200-202).

41.    The grinder in the machine area was available for use and was used less than weekly (Tr. 105, 220).

42.    If a person got any part of his body into nip points, the result could be abrasions, cuts, pinches and amputations (Tr. 105, 202).

43.    The nip points of the grinders could be guarded (Ex. C-9; Tr. 106).

44.    If the sanding belts broke, the machine stopped (Tr. 194, 356).

45.    Respondent performed a test after the inspection during which a glove was placed between the belt and pulley at which time the belt broke, but it is not known how far the glove entered into the nip point before the belt was broken (Tr. 356, 374-376).

46.    A Packard bench grinder did not have a guard over the spindle and nut and flange projection (Ex. C-10; Tr. 110).

47.    At the time of the inspection, the grinder was available for use and was used one or two times weekly (Tr. 111-112, 204).

48.    The hazards presented by the unguarded machine include the wheel coming off or shattering thereby striking someone (Tr. 113-114).

49.    The photograph of the machine shows the electrical plug wrapped around the machine (Ex. C-10).

50.    After the inspection, the Packard bench grinder was removed from operation (Tr. 203-204, 357-359).

51.    The grinder was used to grind a level edge on fiberglass rods (Tr. 222).

52.    A grinder in the machine shop of the Iron Building had an unguarded flange projection and spindle end nut (Ex. C-11; Tr. 115-116).

53.    The grinder described above was available for use and was used one or two times weekly (Tr. 117, 205, 362).

54.    Respondent's representatives Randy Hall and Mr. Argo agreed the grinder presented a potentially hazardous condition and requested sufficient time to have a guard made (Tr. 117).

55.    On the date of the inspection, the work rests of a dual-wheel Dayton bench grinder located in the machine shop in the Fiberglass Building were improperly adjusted.  The left work rest was three-quarters inch from the wheel.  The right work rest was one-quarter inch from the wheel (Ex. C-12; Tr. 126, 365).

56.    The grinder was used one to two times weekly (Tr. 127).

57.    There were no tongue guards on either wheel of the Dayton bench grinder at the time of the inspection, but such guards were added prior to a discovery inspection in August 1984 (Ex. C-12; tr. 130, 207-208).

58.    The improperly adjusted work rests present a hazard that work may become jammed against the wheel causing it to break or that fingers may be pulled against the wheel (Tr. 208).

59.    A Dayton bench grinder in the machine shop of the Iron Building had an improperly adjusted work rest.  The work rest was three-quarters inch from the wheel (Ex. C-13; Tr. 133).

60.    The grinder was used regularly (Tr. 134-135).

61.    The left tongue guard on the Dayton bench grinder in the machine shop of the Iron Building was three-quarters inch from the wheel (Tr. 135-136).

62.    The same dual-wheel shop-built grinder referred to in item 6a(b) also lacked a tongue guard (Ex. C-11; Tr. 119, 121).

63.    A tongue guard is an adjustable protrusion from the top of the peripheral guard designed to protect an operator should the wheel break (Ex. C-11; Tr. 119-120).

64.    The distance between the abrasive wheel and the edge of the peripheral guard where the tongue guard should have been attached was three inches (Tr. 121).

65.    During the inspection, electrical disconnect boxes on the front wall of the Iron Shop were not marked to show the electrical systems which they controlled (Tr. 136-137, 308).

66.    The handles of the disconnect boxes were in the ON position and the electrical service was in use (Tr. 136, 309).

67.    The location or arrangement of the disconnect boxes did not reveal the equipment served by the electrical boxes (Tr. 137).

68.    Respondent's representatives acknowledged that the electrical boxes controlled the electric service, but they were uncertain exactly which equipment was served from each box (Tr. 136-137, 139, 213, 308).

69.    Individual machines could be disconnected by unplugging it from the wall outlet or by means of the ON-OFF switch (Tr. 211-212).

70.    Electrical disconnect boxes in the assembly area of the Iron Building were in service but were not marked to show their purposes (Tr. 139-140, 313).

71.    The electric disconnect boxes were not so located or arranged so that their purpose was evident (Tr. 140, 313).

72.    The disconnect boxes in the Assembly Area control the main source of electrical service and heaters, fans and machines (Tr. 311-315).

73.    Electrical disconnect boxes in the shipping and receiving area were in operation but were not marked to show what they controlled (Ex. C-14; Tr. 142-144, 314).

74.    The boxes were not located or arranged so that their purposes were evident (Tr. 143).

75.    The electrical boxes controlled circuits to drill presses, lights and oven (Tr. 143).

76.    Knockout plugs were missing from a temporary electrical outlet in the Fiberglass Building (Ex. C-10; Tr. 144-146).

77.    A knockout plug is a piece of metal which can be pushed out to allow conduit into the box (Tr. 146).

78.    The temporary outlet was energized and available for use.  The outlet was used for five minutes or less one day a week (Tr. 145-146, 213-214).

79.    The absence of knockout plugs would permit fingers or tools to come into contact with live electrical wires (Tr. 146).

80.    Judith Shell Etterer is an industrial hygienist who has been employed by OSHA for nine years.  She holds a B.S. degree in chemistry with a minor in biology.  She has completed all course work for a Master of Science degree in industrial hygiene and was writing her thesis.  In addition, she had completed approximately 30 training courses, primarily in industrial hygiene and occupational health (Tr. 230-232, 236).

81.    On August 24, Ms. Etterer took screening samples for noise levels with a sound level meter (Tr. 237-238, 242).

82.    On August 25, full-shift monitoring was conducted to determine noise exposure of the air file operator, Mr. Edward Self (Ex. C-15; Tr. 246-247, 286-287).

83.    The air file operator used a pneumatic tool called an air file to knock burrs off of castings.  The operation of the tool was intermittent (Ex. C-16; Tr. 261, 263).

84.    The noise was monitored by a dosimeter which was placed on the employee (Tr. 248, 297-289).

85.    Prior to and after its use, the dosimeter was calibrated (Tr. 249-250, 260-261).

86.    The dosimeter remained on the air file operator for a total period of 437 minutes beginning at 5:20 a.m. (Tr. 252, 262).

87.    The noise readings were made in four segments; 5:20 a.m. to 7:30 a.m., 7:30 a.m. to 10:00 a.m., 10:42 a.m. to 12:05 p.m., and 12:06 p.m. to 1:20 p.m. (Tr. 252-253, 258-260).

88.    The dosimeter is programmed to show the percentage of noise and employee has been exposed to based upon 90 decibels for an eight-hour time-weighted average (Tr. 254, 256-257).

89.    By adding the readings for each segment, the total exposure was obtained (Tr. 258-260).

90.    The air file operator was exposed to a noise level of 92.02 decibels on the A-scale (Tr. 255, 291).

91.    The noise levels were typical or normal during the day the sampling was performed (Tr. 262).

92.    On August 17, 24 and 25, 1983, the dates of the inspection, respondent did not have a continuing, effective hearing conservation program within the meaning of 1910.95(c) (Tr. 285-286).

CONCLUSIONS OF LAW

1.    Respondent is subject to the Act and this proceeding.

2.    Respondent violated the following items under conditions constituting other than serious violations:

Docket No. 83-920

Citation No. 2

Item 2a

Items 6a, 6b and 6c

Item 7

Item 8a

3.    Respondent's motions to dismiss are denied as to the foregoing violations.

4.    Respondent did not violate the following items:

Docket No. 83-920

Citation No. 1

Items 1a and 1b

Citation No. 2

Item 1

Item 2b

Item 3

Item 4

Items 5a, 5b and 5c

Item 8b

Docket No. 83-921

Citation No. 1

ORDER

It is ORDERED:

The items listed in paragraph two are affirmed; those listed in paragraph four are vacated.

Dated this 16th day of April, 1985.

 

JOE D. SPARKS
Judge


CONTINENTAL ELECTRIC COMPANY,

APPLICANT,

v.

SECRETARY OF LABOR,

RESPONDENT.

OSHRC Docket Nos.

83-0920 and 83-0921

(Consolidated)

APPEARANCES:

L.K. Cooper, JR., Esquire, Office of the Solicitor, U. S. Department of Labor, Birmingham, Alabama, on behalf of respondent.

Winston B. McCall, Jr., Esquire, Birmingham, Alabama, on behalf of appellant.

DECISION AND ORDER

SPARKS, Judge:    This proceeding was instituted by Continental Electric Company for legal fees and expenses under the Equal Access to Justice Act, as amended.

One of the two captioned cases alleged safety issues and the other involved alleged violations of the hearing conservation standard.   The cases were consolidated under Docket No. 83-0920.

Applicant prevailed on several safety items, including some which were withdrawn by the Secretary prior to decision, but lost on the hearing conservation issue and several safety items.

This case was brought by applicant to recover reasonable attorney fees and expenses.

Pertinent portions of 28 U.S.C.A. 2412 provide as follows:

    (d) (1) (A) except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses,...(a), incurred by that party...including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

***

    (B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses are computed.  The party shall also allege that the position of the United States was not substantially justified.  Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based)  which is made in the civil action for which fees and other expenses are sought.

    (C) The court, in its discretion, may reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.

    (2) For the purposes of this subsection--

    (A) "fees and other expenses" includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case, and reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the United States; and (ii) attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.);

    (B) "party" means (i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed, or (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed;....

The Secretary of Labor does not dispute that applicant is a qualified party and was the prevailing party on several items but contends it did not prevail on all items for which expenses are claimed.

The Secretary does also contend, however, that its position was substantially justified, that applicant unduly and unreasonably protracted the proceedings, that applicant failed to prove the amount of attorney's fees and expenses, and special circumstances make an award unjust in this case.

I

QUALIFIED PARTY

Continental submitted a financial statement showing net worth of less than five million dollars.  Applicant also asserts it had fewer than 100 employees.

II

THE ITEMS AT ISSUE AND THE PREVAILING PARTY

Applicant manufactured components for the electric transmission industry at its facility on Lovic Road, Birmingham, Alabama. Pursuant to an inspection warrant, Compliance Officer Virginia Simmons and Industrial Hygienist Judith Etterer went to applicant's plant to conduct an inspection on August 17, 1983.  The employees were sent home on that day, but the inspection did take place on August 24. On September 9, 1983, two citations alleging safety violations were issued as follows:

Serious Citation No. 1

Item 1a, 29 C.F.R. 1910.219(d) (i)

    (a) In Machine Shop in Iron Building-unguarded pulleys on each of three small floor grinders made by Stephen Bader Company.

Item 1b, 29 C.F.R. 1910.219(e)(3)(i)

    (a) In the Machine Sop (sic) in the Iron Building - unguarded 'v' belt on each of three small floor grinders made by Stephen Bader Company.

Proposed penalty $210.

Other Citation No. 2

Item 1, 29 C.F.R. 1610.22(d) (1)

    (a) In air File Department in Fiberglass Building - overhead storage area not marked to indicate maximum weight load limit.

Item 2a, 29 C.F.R. 1910.106(e) (2) (iv) (d)

    (a) In the paint Department in the Fiberglass Building - paint was not drawn through a self-closing valve.

Item 2b, 29 C.F.R. 1910.106(e)(6)(i)

   (a) At the Paint Department in the Fiberglass Building - container of flammable "Chemglaze" paint was not grounded.

Item 3, 29 C.F.R. 1910.106(e)(9)(i)

    (a) Paint area in the Fiberglass Department-rags used to clean up flammable paints were stored in a covered plastic container.

Item 4, 29 C.F.R. 1910.151(c)

Facilities for quick drenching or flushing of the eyes and body were not provided for immediate emergency use in the fiberglass assembly area.

Item 5, 29 C.F.R. 1910.212(a)(1)

Machine guarding was not provided to protect operator(s) and other employees from hazard(s) created by: ingoing nip points:

    (a) Cutting and grinding area in Fiberglass Building - nip points where sanding belt meets pulleys were not guarded.   Machine made by Stephen Bader Company.

    (b) In Machine Shop in Iron Building-unguarded nip points on each of three small floor grinders where sanding belt meets pulleys.  Grinders made by Stephen Bader Company.

    (c) In Assembly Area of Iron Building-unguarded nip points on vertical table grinder where sanding belt meets pulleys.

Item 6a, 29 C.F.R. 1910.215(a)(2)

Abrasive wheel(s) used on grinding machinery were not provided with safety guard(s) which covered the spindle end, nut, flange projections:

    (a) Grinding area in Fiberglass Building-Packard Bench Grinder did not have a guard over the spindle end, nut projection.

    (b) At Machine Shop in Iron Building - shop built dual wheel grinder did not have guards over the spindle end, nut, flange projections.

Item 6b, 29 C.F.R. 1910.215(a) (4)

Work rest(s) on grinding machinery were not adjusted closely to the wheel with a maximum opening of one-eighth inch:

    (a) At corner of Machine Shop in Fiberglass Building - work rests on Dayton Beach Grinder were in excess of 1/8 inch from the wheel.

    (b) In Machine Shop in Iron Building - work rest on Dayton Bench Grinder was 3/4 inches from grinding wheel.

Item 6c, 29 C.F.R. 1910.215(b) (9)

The distance between the abrasive wheel periphery(s) and the adjustable tongue or the end of the safety guard peripheral member at the top exceeded one-fourth inch:

    (a) In Machine Shop in Iron Building - tongue guard on left wheel of Dayton Bench Grinder was 3/4" from wheel.

    (b) At corner of Machine Shop in Fiberglass Building - left side grinding wheel on Dayton Bench Grinder was 1 1/2" from outer peripheral guard.  Right side wheel was 1/2" from outer peripheral guard.

    (c) In Machine Shop in Iron Building - on dual wheel, shop built grinder, both wheels were 3" from outer peripheral guard.

Item 7, 29 C.F.R. 1910.303(f)

    (a) On front wall of Iron Shop - electrical disconnect boxes were not marked to indicate purpose.

    (b) Assembly Area of Iron Building-electrical disconnect boxes were not marked to indicate purpose.

    (c) By shipping and receiving in Fiberglass Building - electrical disconnect boxes were not marked to indicate purpose.

Item 8a, 29 C.F.R. 1910.305(b)(1)

   (a) At Grinding Area in Fiberglass Building-knockout plugs were missing from the temporary outlet hanging on wall by drill presses.

Item 8b, 29 C.F.R. 1910.305(g)(l)(i)

    (a) In Grinding area of Fiberglass Building-flexible cord hanging on nails on wall was used to supply power for drill presses.

The total penalty proposed for both citations was $210.

Prior to the trial on the merits, the Secretary withdrew item 1b of the serious citation and items 2b, 5c and 8b of the other than serious citation.  After trial and decision, the applicant prevailed on the following items:

Serious Citation No. 1

Item 1a

Other Than Serious Citation No. 2

Items 1, 2b, 3, 4, 5a, 5b, 5c, 8b

The Secretary prevailed on the following items:

Serious Citation No. 1

None

Other Than Serious Citation No. 2

Items 2a, 6a, 6b, 6c, 7, 8a

None of the proposed $210 penalty was assessed.

III

WAS THE POSITION OF THE SECRETARY SUBSTANTIALLY JUSTIFIED?

The Secretary offered evidence to support its position regarding each alleged violation including those on which it did not prevail.   The factual evidence and legal precedence are discussed in detail in the Decision and Order of the undersigned dated April 16, 1985.  A total of 86 findings of fact were made.  Of course, the position of the Secretary was more firmly supported and more reasonable regarding some items than others.

Although the government is certainly not responsible for fees and expenses as to every issue upon which it does not prevail, it seems clear that the 1985 amendments to the EAJA intended to increase the government's burden of showing it was substantially justified in its position.  A review of the findings, decision and briefs of the parties establishes in this case that the Secretary has not shown it was substantially justified within the meaning of the EAJA, regarding any of the issues upon which the applicant prevailed.  See Sierra Club v. Secretary of Army, 280 F2.d 513 (1st Cir. 1987).

The Secretary makes essentially the same arguments to establish that her positions were substantially justified as she did originally to establish the existence of violations. While the Secretary's case in each instance was not frivolous nor arbitrary or capricious, it had weaknesses of fact or law, set forth in the decision, which renders it not substantially justified for the purposes of the EAJA as amended.

IV

AMOUNT OF AWARD   

Applicant submitted a claim for $9,200 attorney fees and $676 expenses with its brief received March 17, 1986.  The claim for attorney fees were subsequently reduced to $7,467, but an additional claim for fees of $3,934 was made for time spent preparing its claim under the EAJA.

Applicant's attorney did not maintain logs precisely describing the work performed on the cases so there is no way to state with any degree of certainty how much time was spent on the various items upon which it prevailed and how much time was spent on items which were affirmed.  The attorney originally claimed a total of 206.5 hours defending all items which he agreed should be reduced to 184.5 hours.  He arbitrarily assessed 50% of the total hours as work on the serious citation on which applicant prevailed and claimed $70 per hour for 92.25 hours or a total of $5,166.  For the other than serious citation, he claimed $807 (11.53 hours each) for each time on which applicant prevailed for a total of $4,034.  It is certain that the time spend on items upon which applicant prevailed is, at best, only a rough guess.   The total expenses of $965 were allocated according to the same formula for a total of $676. 

The Act provides only for the payment of "reasonable" attorney fees.  The time claimed by applicant's attorney is excessive considering the relatively simple factual and legal issues involved in these cases.  The extensive discovery, briefs and other paperwork generated by this case suggest that applicant's attorney likely did spend all the hours claimed working on the case.  But it was unreasonable for any attorney to spend so much time preparing, trying and briefing the issues involved here.  That is particularly true of Serious Citation No. 1 which involved only two simple items, one of which was withdrawn prior to hearing.  The only alleged serious violation tried charged that applicant had "... unguarded pulleys on each of three small floor grinders made by Stephen Bader Company."  Applicant is entitled to fees for time spent on the item which was withdrawn (an unguarded v-belt).  For work on that citation, applicant claims to have worked 92.55 hours for a fee of $5,166.  The claim is unreasonable in time and money.   The factual and legal contentions were very simple and the proposed penalty was only $210.  Only "reasonable" fees can be recovered the Act. William B. Hopke Co., 12 BNA OSHC 2159 (No. 81-206, 1986). Even considering that applicant's attorney is not experienced in the Occupational Safety and Health Act, no more than 20 hours would be considered reasonable for work on the serious citation.

Applicant was the prevailing party on four items and subparts to two items of the other than serious citation.  Applicant's attorney claims fewer hours for his work on the other than serious citation than on the serious one although more items were involved.  As more other than serious items were cited, it is reasonable that more time was required to defend against the charges, therefore, 30 hours is found to constitute a reasonable expenditure of time for such items.  It is concluded that 50 hours is a reasonable time for defending against the serious and other than serious citations.  That time multiplied by the stipulated prevailing fee of $70 per hour yields a reasonable fee of $3,500. A further reasonable attorney's fee of $700 is justified for 10 hours work preparing applicant's EAJA claim.  Its claim for $3,934 for such is patently unreasonable.  Expenses of $676 appear supported.

V

SPECIAL CIRCUMSTANCES

The Secretary contends that "special circumstances" make any award unjustified.  The Secretary points out that abusive language and subterfuge were used to impede the investigation and intimidate the compliance officers.  Applicant's officials certainly did not display a cooperative attitude or good manners, and some of their actions might have been viewed as threatening the female inspectors.  But, there is no evidence of any illegal actions or that applicant prevented OSHA from conducting a complete inspection of its facilities.   Applicant's actions do not rise to the level which would bar a recovery of attorney fees and expenses.]

VI

DID APPLICANT UNDULY AND UNREASONABLY PROTRACT THE PROCEEDINGS?

Without question, the amount of discovery, motions and trial time was far above average for a case involving such relatively simple issues and so small ($210) proposed penalty.  The Secretary implies that applicant intentionally prolonged the case to tie-up the Secretary's legal resources.  Without doubt, the case was exhaustively contested, but there is no evidence that it was done with such evil motive.  It may be that much of the excessive time was due to respondent's attorney's unfamiliarity with proceedings under OSHA.  In any event, the time claimed by applicant's attorney was beyond the bounds of reasonableness and is so treated when determining the amount of reasonable attorney fees for which reimbursement is due.

The above constitute findings of fact.

CONCLUSIONS OF LAW

1.    Applicant is a qualified party eligible for benefits within the meaning of the EAJA.

2.    Applicant was the prevailing party on both items of the serious citation and four items and two partial items of the other than serious citations.

3.    The position of the Secretary was not substantially justified.

4.    Applicant had reasonable attorney's fees of $4,200 and expenses of $676 defending against the charges on which it was the prevailing party.

ORDER

Applicant is entitled to reasonable attorney's fees of $4,200 and expenses of $676.

Dated this 14th day of September, 1989.

 

JOE D. SPARKS
Judge

 


FOOTNOTES:

[[1/]] The standard provided in pertinent part as follows:

1910.95 Occupational noise exposure.

(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16...

Table G-16--- Permissible noise Exposures

The table referred to above is not available in this format.

Please telephone the Review Commission Public Information Office, 202-606-5398, to request a paper copy; TTY 202-606-5386; FAX: 202-606-5050; email: lwhitsett@oshrc.gov

(c) Hearing conservation program. (1) The employer shall administer a continuing, effective hearing conservation program, as described in paragraphs (c) through (o) of this section, whenever employee noise exposures equal or exceed an 8-hour time-weighted average sound level (TWA) of 85 decibels.....

[[2/]] A hearing conservation program, as prescribed in 1910.95(c)-(o), consists of a number of measures to prevent or reduce the incidence of hearing loss.  Among other requirements, the employer must administer audiometric testing to employees exposed to an 8-hour time-weighted average of 85 or more decibels.   Hearing protection devices such as earmuffs or plug \s must be made available to these employees, and the employer must insure that employees who show a certain degree of hearing loss wear these hearing protectors.  There are additional requirements for training employees in the use and care of hearing protectors, and some information and recordkeeping provisions.

[[3/]] Judge Sparks found that the air file operator was exposed to varying levels of noise that were equivalent to a constant noise level of 92.02 decibels, that these levels were typical or normal for the air file operation, and that Continental did not have a hearing conservation program when inspection took places that is , the judge found that the condition in Continental plant fail to comply with the terms of the hearing conservation standard.  In vacating the citation for failure of the Secretary to prove knowledge, the judge stated that the record did not show the Continental knew or should have known of the "conditions" at issue.   Although the judge decision is not specific, the parties agree that their knowledge dispute is limited to the question of whether Continental knew or could have known of the existence  of excessive noise exposure.

[[4/]] Review was also directed on whether employer knowledge is a proper element of a nonserious violation of the Act and, if so, whether it is proper to place on the Secretary the burden of proving knowledge.

We decline to disturb the well-settled and longstanding precedent holding that knowledge of conditions that fail to comply with a standard is a necessary prerequisite to finding an employer in violation of the Act, regardless of the characterization of the violation of the Act, regardless of the characterization of the violation, and that the Secretary has the burden of proving all elements of a violation, including knowledge.  E.g., Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564, 570-71 (5th Cir. 1976) (requiring Secretary to prove knowledge, even of nonserious violations, so as to avoid imposing strict liability on employers); R.D. Anderson Constr. Co., 12 BNA OSHC 1665, 1668, 1986-87 CCH OSHD 27,500, p. 35,640 (No. 81-1469, 1986); Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD 25,358 (No. 16147, 1981) (lead and concurring opinions).  See Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1952, 1986-87 CCH OSHD 27,650, p. 36,019 (No. 79-2553), rev'd on other grounds, 843 F.2d 1135 (8th Cir. 1988) (elements of the Secretary's burden). 

[[5/]] Noise levels of this magnitude are substantial and are capable of causing hearing loss.  See Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1439-40, 1977-78 CCH OSHD 21,854, pp. 26,330-31 (No. 10925, 1977), aff'd, 692 F.2d 741 (9th Cir. 1982).

[[6/]] There is no first-hand testimony of the extent to which the air file was used on days other than the inspection.  The evidence that the air file was used at least as much on other days as it was during the inspection consists of a statement the air file operator made to the Secretary's industrial hygienist.  As an out of court declaration, the employee's statement inherently has less probative value than would the employee's own testimony and is not necessarily entitled to dispositive weight.  Morrison-Knudsen, Inc., 13 BNA OSHC 1121, 1123, 1986-87 CCH OSHD 27,869, p. 36,540 (No. 80-345, 1987). 

In this case, however, Continental does not question the employee's statement and does not contend that is should not be taken at face value.   Rather, Continental expresses agreement with the summary of the case set forth in the Secretary's brief, in which the Secretary contends that the noise levels measured during the inspection were typical or normal.  Accordingly, the parties in effect have stipulated that the noise levels at the time of the inspection are representative of those on other days.  We also note that, in the absence of evidence to the contrary, we would consider the Secretary's measurements to be probative of other days.   Seaboard Foundry, Inc., 83 OSAHRC 23/C7, 11 BNA OSHC 1398, 1401, 1983-84 CCH OSHD 26,552, p. 33,774 (No. 77-3964, 1983).

 

[[1]] Section 1910.22)(d)(1) of 29 C.F.R. provides as follows:

floor loading protection. (1) In every building or other structure, or part thereof, used for mercantile, business, industrial, or storage purposes, the loads approved by the building official shall be marked on plates of approved design which shall be supplied and securely affixed by the owner of the building, or his duly authorized agent, in a conspicuous place n each space to which they relate.  Such plates shall not be removed or defaced but, if lost, removed, or defaced, shall be replaced by the owner or his agent.

[[2]] Section 1910.106(e)(2)(iv)(d) of 29 C.F.R. states as follows:

Flammable or combustible liquids shall be drawn from or transferred into vessels, containers, or portable tanks within a building only through a closed piping systems, from safety cans, by means of a device drawing through the top, or from a container or portable tanks by gravity through an approved self-closing valve.  Transferring by means of air pressure on the container or portable tanks shall be prohibited.

[[3]] Section 1910.106(e)(9)(iii) of 29 C.F.R. reads as follows:

Waste and residue.  Combustible waste material and residues in a building or unit operation area shall be kept to a minimum, stored in covered metal receptacles and disposed of daily.

[[4]] Section 1910.15(c) of 29 C.F.R. provides as follows:

Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.

[[5]] Section 1910.212(a)(1) of 29 C.F.R. states as follows:

(a) Machine guarding --(1) Types of guarding .  One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.  Examples of guarding methods are--barrier guards, two-hand tripping devices, electronic safety devices, etc.

[[6]] Section 1910.215(a)(2) of 29 C.F.R. reads as follows:

Guard design. The safety guard shall cover the spindle, 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:

[[7]] Section 1910.215(a)(4) of 29 C.F.R. states as follows:

Work rests.  On offhand grinding machines, work rests shall be used to support the work.  They shall be of rigid construction and designed to be adjustable to compensate for wheel wear.  Work rests shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage.  The work rest shall be securely clamped after each adjustment.  The adjustment shall not be made with the wheel in motion.

[[8]] Section 1910.215(b)(9) of 29 C.F.R. states as follows:

Exposure adjustment.  Safety guards of the types described in subparagraphs (3) and (4) of this paragraph, where the operator stands in front of the opening, shall be constructed so that the peripheral protecting member can be adjusted to the constantly decreasing diameter of the wheel.  The maximum angular exposure above the horizontal plane of the wheel spindle as specified in paragraphs (b)(3) and (4) of this section shall never be exceeded, and the distance between the wheel periphery and the adjustable tongue or the end of the peripheral member at the top shall never exceed one-fourth inch. (See Figures 0-18, 0-19, 0-20, 0-21, 0-22, and 0-23.)

[[9]] Section 1910.303(f) of 29 C.F.R. provides as follows:

Identification of disconnecting means and circuits.  Each disconnecting means required by this subpart for motors and appliances shall be legibly marked to indicate its purpose, unless located and arranged so the purpose is evident.  Each service, feeder, and branch circuit, at its disconnecting means or overcurrent device, shall be legibly marked to indicate its purpose, unless located and arranged so the purpose is evident.  These marking shall be of sufficient durability to withstand the environment involved.

[[10]] Section 1910.305(b)(1) of 29 C.F.R. reads as follows:

Cabinets, boxes, and fittings. (1) Conductors entering boxes, cabinets, or fittings. Conductors entering boxes, cabinets, or fittings shall be protected from abrasion, and openings through which conductors enter shall be effectively closed.   Unused openings in cabinets, boxes, and fittings shall also be effectively closed.

[[11]] Section 1910.85(c) of 29 C.F.R. states:  Hearing conservation program. (1) The employer shall administer a continuing, effective hearing conservation program, as described in paragraphs (c) through (o) of this section, whenever employee noise exposures equal or exceed an 8-hour time-weighted average sound level (TWA) of 85 decibels measured on the A scale (slow response) or, equivalently, a dose of fifty percent.  For purposes of the hearing conservation program, employee noise exposures shall be computed in accordance with Appendix A and Table G-16a, and without regard to any attenuation provided by the use of personal protective equipment.

(2) For purposes of paragraphs (c) through (n) of this section, an 8-hour time-weighted average of 85 decibels or a dose of fifty percent shall also be referred to as the action level.