SECRETARY OF LABOR,
Complainant,
v.
KASPAR WIRE WORKS, INC.,
Respondent.
Docket No. 85-1060
ORDER OF REMAND
The administrative law judge affirmed two citation items issued by the Secretary of Labor
to Kasper Wire Works, Inc. We remand this case to the judge for further consideration.
Item 1 of citation 1 alleged a violation of 29 C.F.R. {sec} 1910.217(c)(1)(i), which
requires point-of- operation guards or devices on mechanical power presses. Two of the
principal questions litigated by the parties were whether compliance with the standard was
infeasible and whether compliance would create a greater hazard than the hazard of
noncompliance. These questions were pleaded in Kaspar's answer to the complaint. Testimony
on them was adduced at the hearing and the parties discussed them in their post-hearing
briefs. The judge's decision, however, contains neither findings of fact nor discussions
of the issues. Kaspar's petition for discretionary review argues that this omission was
error, and that the decision was erroneous in other respects. We do not reach these other
arguments. We remand for the judge to reconsider this item in light of the evidence and
arguments on the infeasibility and greater hazard issues and to prepare a new decision
with findings of facts, conclusions of law, and a statement of reasons for any disposition
he may make of the two issues. See generally Stripe-A Zone, Inc., 85 OSAHRC 3/B7, 12 BNA
OSHC 1192, 1984-85 CCH OSHD (p) 27,184 (No. 79-2380, 1985); Syntron, Inc., 82 OSAHRC
39/E9, 10 BNA OSHC 1848, 1982 CCH OSHD (p) 26,145 (No. 81-1491, 1982). The judge may also
reconsider his decision in light of any other arguments the parties may raise.
We also remand for the judge to reconsider his disposition of item 2 of citation 2. That
item alleged a violation of the duty imposed by section 1910.217 to report within 30 days
point-of-operation injuries caused by mechanical power presses. The judge rejected
Kaspar's defense that the issuance of the citation item more than two years after the
expiration of the thirty-day reporting period violated the six-month limitation period in
section 9(c) of the Act, 29 U.S.C. {sec} 658(c). Kaspar maintains that its reflected the
unreported injuries and had been inspected by OSHA during the two-year period. In Sun
Ship, Inc., 85 OSAHRC 2/C13, 12 BNA OSHC 1185, 1186, 1984-85 CCH OSHD (p) 27,175, p.
35,078 (No. 80-3192, 1985), we stated, citing Commission precedent, that "the statute
of limitations does not begin to run until OSHA discovers or reasonably should have
discovered a violation." The judge should therefore reconsider his decision in light
of Sun Ship. He should determine specifically whether OSHA was or reasonably could have
become aware of the alleged reporting violation during earlier inspections of Kaspar, and
whether the statute of limitations had therefore already run.
Accordingly, the judge's decision is vacated. The case is remanded for further proceedings
consistent with this opinion.
FOR THE COMMISSION
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
DATED: April 14, 1987
SECRETARY OF LABOR,
Complainant,
v.
KASPAR WIRE WORKS, INC.,
Respondent.
OSHRC Docket No. 85-1060
APPEARANCES:
Allen Reid Tilson, Esquire, Office of the Solicitor, U.S. Department of Labor, Dallas,
Texas, for the Complainant.
Vic Houston Henry, Esquire, of Dallas, for the Respondent.
DECISION AND ORDER
Louis G. LaVecchia, Judge
This proceeding arises under Section 10 of the Occupational Safety and Health Act of 1970
(29 U.S.C. sec. 651 et seq.), also referred to as the "Act."
Background
The respondent seeks review of two citations issued by the Occupational Safety and Health
Administration ("OSHA") after an inspection of its plant conducted between June
18 and 20, 1985. A total civil penalty of $720 was proposed for the alleged violation of
certain safety and health standard promulgated under the Act.
A hearing was held in San Antanio, Texas on April 24, 1986. Briefs and/or replies have
been submitted by the parties.
It was stipulated that the respondent is an employer engaged in a business which affects
commerce; that the Review Commission has jurisdiction of this proceeding; and that the
respondent has no history of previous violations of the Act.
Motion to Suppress
The respondent has moved to suppress the evidence respecting Items 1 and 2 of Citation No.
1, as well as Items 2, 3, and 4 of Citations No. 2, on the grounds that it had consented
only to a hygiene inspection and not to an inspection for violations of any safety
standards. OSHA's supervisory industrial hygienist, Raymond Skinner, had stated that the
inspection would be for industrial hygiene purposes, when he conferred with David Little,
the respondent's representative before the compliance officer entered the plant. (Tr.
268-9). He stated, however, that no limitations were discussed. The compliance officer, in
accordance with normal operating procedures, would be expected not to focus on safety
items, but to address any safety hazards which are open and obvious during a hygiene
inspection. (Tr. 269).
The compliance officer, Robert Hudgens, testified that the respondent's representatives
placed no limitations on his inspection, and did not object to the items inspected or the
areas of the plant involved. (Tr. 9, 182, 247-248).
On brief, the complainant asserts that in administrative investigations there is a natural
presumption of consent in the absence of protest by representatives, of the respondent at
the time of the inspection, citing, among other cases, Lake Butler Apparel Co., v.
Secretary of Labor,519 F.2d 84 (5th Cir. 1975). The Secretary further argues that even
though there might nave been a valid limitation of consent, the evidence should not be
suppressed because the compliance officer believed in good faith that he could conduct an
inspection of safety as well as items concerned only with industrial hygiene. See United
States v. Leon, 468 U.S. 897 (1984).
In a recent decision the Fifth Circuit Court of Appeals affirmed the Review Commission's
application of the good faith exception to the exclusionary rule. Smith Steel Casting Co.
v. Secretary of Labor, F.2d (No. 75-4346) (September 19, 1986), (OSHRC Docket No.
80-2069). The evidence showing that the compliance officer acted pursuant to a reasonable
good faith belief that the respondent had consented to an inspection without limitation,
and the alleged safety violations having been observed while open and obvious, the motion
to suppress must be denied.
Item 1 of Citation No. 1
This item alleges a violation of the safety standard at 29 CFR 1910.217(c)(1)(i) in that
point of operation guards or devices were not being used on a 60-ton mechanical press
observed by the compliance officer during his inspection. (Tr. 12, 152) (Exs. C-1a and
1b). Although the press is equipped with a point of operation guard (two hand trips or
starter buttons) it was not being used when observed by the compliance officer. Instead,
the employee (Gerald Goldsmith) was actuating the press by the use of the foot pedal. (Tr.
14, 18). He was engaged in punching holes in the end of some square metal tubing. (Tr. 12,
152). The opening between the ram and die measured about 4 inches, and the employee's
hands came within 9 inches of the opening during the operations. (Tr. 17, 20-23). The
press is used infrequently, and on most occasions the two-hand trips are used.
The respondent argues, on brief, that no hazard was demonstrated in the use of the press
with the two-hand trips disengaged, but it is obvious that, considering the ingenious ways
employees find of accidentally placing their fingers, hands or other parts of their bodies
into the point of operation of punch presses, there is a hazard present when the foot
pedal is used instead of the two-had trips for actuating the press.
The presence of the two hand trips on the press is in itself an indication that the
potential hazard presented to the operator has been recognized. Although no accident may
yet have occurred when the press was used without recourse to the two-hand trips that
circumstance is no guarantee that in accident can never happen. That any such accident
would be serious in nature is also evident.
In view of the findings expressed in the foregoing discussion I can only conclude that the
respondent violated the safety standard as alleged. However, it is my opinion that
consideration of the applicable criteria warrants reduction of the proposed penalty from
$320 to $160.
Item 2 of Citation No. I
This item alleges a violation of the safety standard at 29 CFR 1910.252(c)(2)(iv)in that
the point of operation on resistance press welding machine(s) were not guarded. An
employee was observed welding d french-fry basket without a guard to prevent a possible
injury to his finger or- fingers. (Tr. 34,37). The press ram was one inch deep, two inches
wide, with a gap of 1/4 inch or less when being used. (Tr. 147-148). The respondent argues
that it would be impossible for an employee to insert his finger into the gap, given the
minimum space involved when the welding is in process. Giving credence to the argument,
there would be no hazard it, the operation, barring intentional injury, A variety of
product, require use of the welding press, with millions of welds made during a normal
year. No injuries have been reported with respect to this press operation. (Tr. 145, 229).
It is reasonably clear that the operating employee would have to come very close to an
intentional placing of his finger or part of his hand into the aperture between the ram
and the die in order to sustain an injury. I conclude that no hazard within the meaning of
the Act has been shown by the complainant.
This item will be vacated.
Item 1 of Citation No. 2
Under sub-parts (a), (b), and (c) this item alleges violations of the respiratory
protection program required to be established under 29 CFR 1910.134(a)(2): (a) that
respirators were not selected on the basis of hazards to which the worker was exposed; (b)
that users of respirators were not instructed and trained in the proper use of such
equipment and their limitations; and (c) that respirators used routinely were not
inspected during cleaning, and worn or deteriorated parts replaced.
Two locations are involved in the allegations: the acid cleaning area of the wire
department; and the sheet metal cleaning department. (Tr. 45). In the wire department the
employee stated that he was using a respirator for protection against acid fumes or
vapors. In the sheet metal department the employee stated that he was using a respirator
for protection against dust emanating from the use of a dry-powder cleaning material in a
vibrating vat. (Tr. 46).
The compliance officer did not check the contents of the containers in the acid-cleaning
department, nor did he obtain a material safety data sheet applicable to the acid being
used. (Tr. 55,104). He detected no acid gas in the room. (Tr. 54). He did not measure the
concentration of the acid, nor could he recall whether acid gas inhibitors were installed
on any of the tanks. (Tr. 101, 104, 199-200). The only potential hazard seen by the
compliance officer was acid fumes in the event of spill when acid was added to a cleaning
tank. (Tr. 55,104). Two employees were used when acid was added to the tanks, and no such
injuries had ever been experienced by the respondent. (Tr. 198,201-202, 233-234). No
samples or readings of air in the acid-cleaning room were taken by the compliance officer.
In these circumstances I am constrained to find that no hazard has been proved by the
complainant with respect to the acid-cleaning operation.
A similar situation prevails with respect to the sheet-metal cleaning department. No
measurement of the concentration of any substance used in that operation was made; the
room was not measured; air samples were not taken; length of exposure of employees was not
determined. (Tr. 47, 101-109). The material safety data sheet (Ex. C-4) considered the
cleaner non-hazardous, with zero percent volatility. No recognized effects of overexposure
were known and local exhaust was said to be suitable ventilation. No evidence of any
injury to an employee was introduced.
Accordingly, I conclude that no hazard has been shown by the complainant in this
operation.
The allegation with respect to the failure to instruct employees in the proper use of
respirators was denied by the respondent, and evidence of its written respirator program
was received. (Tr. 241). (Exs. R-6, 6A, and 6B). The compliance officer admitted that he
had not asked the respondent's employees whether they had been trained or instructed in
the use of respirators. (Tr. 105). This allegation cannot be sustained. Nor can the
allegation respecting the failure to inspect respirators, since the complainant did not
establish the length of time since the last cleaning and inspection of respirators.
Item1 of Citation No. 2 will be vacated.
Item 2 of Citation No. 2
This items alleges that the respondent failed to comply with the injury-reporting
requirements of the standard at 29 CFR 1910.217(g), in that a 12/31/84 power press injury
was not reported; nor was a 12/01/83 power press injury reported. The respondent argues
that prior inspections by OSHA personnel had not resulted in citations for not reporting
these injuries. It is also argued that citation is barred by Section 658(c) of the Act
which states that no citation may be issued after the expiration of six months following
the occurrence of any violation
The failure to cite or the part of OSHA personnel during prior inspections is not binding
on OSHA during future inspections. Nor is citation barred under Section 658(c) of the Act.
Section 658(a) of the Act provides: If, upon inspection or investigation, the Secretary or
his authorized representative believes that an employer has violated a requirement of
section 5 of this Act, of any standard, rule or order prescribed pursuant to section 6 of
this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable
promptness issue a citation to the employer.
(c) No citation may be issued under this section after the expiration of six months
following the occurrence of any violation.
A reasonable interpretation of the latter subpart of the section can only lead to the
conclusion that subpart (c) is meant to be construed as referring to the time when the
violation was discovered by the Secretary's inspectors, and not to the date of the alleged
violation. Any other- interpretation would be contradictory of the main purpose of the
section, and leave it without substantial meaning. Furthermore, there has been no
showing of prejudice on the part of the respondent because of the delay in being cited for
the violations. 0 . Stripe-A-Zone, (No. 79-2380). CCH OSHD para. 26,069 (1982),
Item 2 of Citation No. 2 must be affirmed. Zero penalty.
Item 3 of Citation No. 2
This item alleges a violation of the standard at 29 CFR 1910.252 (e)(2)(i)(c) in that
operators of resistance welding or brazing equipment were not using transparent face
shields or goggles to protect their faces or eyes. Specifically, the charge relates to
wire welding operations on french-fry baskets (flying sparks or pieces of metal wires).
The evidence failed to disclose any injuries from flying sparks or wire fragments while
employees operated the basket spot welders. (Tr. 110,149-150). Each of the machines makes
over 15 million welds a year. (Tr.227-229) A guard protects against flying pieces of wire.
(Tr. 148, 149, 230). Flying sparks are diverted downward and away from the operator's face
and eyes by fans positioned near the spot welders. (Tr. 150, 235-236)
No hazard having been demonstrated by the complainant, this item must be vacated.
Item 4 of Citation No. 2
This item alleges a violation of 29 CFR 1910.303(f) in that the disconnecting means for a
forklift battery charger was not located and arranged so that its purpose was evident, nor
legibly marked to indicate its purpose. Company representatives were not able to find the
disconnect switch for about two hours. (Tr. 61-63, 112). The charger was not being
operated on the day of the inspection. (Tr. 111). The label on the front of the charger
shows where the machine could be disconnected. (Ex. R-4). 'The plant manager testified
that he was certain that the operators of the charger would have knowledge of the
charger's disconnect switch because of their instructions(Tr. 238). He stated further that
the switch has an automatic cut-off feature in the event of a malfunction. (Tr. 238).
The state of the evidence relevant to this item dictates that this item be vacated.
Item 5 of Citation No. 2
This item charges respondent with a violation of the health standard at 29 CFR
1910.1025(d)(2) in that an initial determination allegedly was not made to determine if
any employee May have been exposed to lead at or above the action level. The compliance
officer was not permitted by the respondent to monitor the lead level in the sheet metal
department where three employees were observed in the spray painting shop. (Tr. 79,82-83).
The paint being used contained 10 percent lead. (Tr. 68)(Ex. C-3). The employees were
using respirators, but the compliance officer did not check them to see if they were lead
approved because he did not want to interrupt the production process. There was
ventilation provided in the spray booth in the form of a fan or fans. The compliance
officer did not consider the fan or fans capable of providing adequate ventilation, but
the company insists that the system is adequate. Although the respondent was unable at the
time of the inspection to produce a monitoring record, it did provide one at the hearing.
The date of the monitoring by the respondent was not shown on the exhibit. (Tr. 116-117,
208, 213-218).
There is an essential element missing in the complainant's case--test results showing the
extent to which the employees might have been exposed to impermissible lead levels. Even
though the respondent would not permit the monitoring, by the compliance officer, legal
means existed fur obtaining access to the information desired.
This item must be vacated.
Item 6 of Citation No. 2
This item alleges that employees working in an area where there was a potential exposure
to airborne lead at any level were not informed of the content of Appendices A and B of
the regulation at 29 CFR 1910.1025(1)(1)(i).
The compliance officer ascertained that the employees working in the spray booth
heretofore mentioned had not been given copies of the appendices, but he was not able to
state that the employees had not been informed of the content of the appendices. (Tr.
266). He was under the impression that the standard called for actual delivery of copies
of the appendices to employees. (Tr. 121-122). The respondent had provided material safety
data sheets for lead-containing paints to the employees working with such paints. (Tr.
214,215,241). It appears to have considered the providing of the sheets, along with
instructions from supervisors and the placing of copies of the sheets on bulletin boards
as tantamount to compliance with this provision of the standard. This may not have been
the best means for informing the employees of the content of the appendices, but the state
of the evidence will, on the other hand, not sustain a finding of violation.
This item will be vacated.
Conclusions of Law
1. The Review Commission has jurisdiction of this proceeding.
2. The respondent is engaged in a business affecting commerce and is covered by the
provisions of the Act.
3. The respondent violated the standard set forth in Item I
of Citation No. 1. The violation was serious and warrants the imposition of a civil
penalty of $160.
4. The respondent violated the standard set forth in Item 2 of Citation No. 2. This was an
other-than-serious violation and no civil penalty is assessed.
5. The respondent did not violate the standards set forth in the remaining items included
in the citations.
Order
Upon the basis of the foregoing findings, express or implied, the conclusions of law,
and the entire record, it is ordered that:
1. Item I of Citation No. I is affirmed, with a civil penalty of $160.
2. Item 2 of Citation No. 2 is affirmed, with no penalty.
3. The remaining items in the citations are vacated.
So ORDERED.
Louis G. LaVechhia
Judge, OSHRC'
Dated: December 10, 1986
DALLAS