SECRETARY OF LABOR,
GREEN DUCK CORPORATION,
OSHRC DOCKET NO. 86-0973
The parties' stipulation and settlement agreement is approved. This order is issued pursuant to a delegation of authority to the Executive Secretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).
FOR THE COMMISSION
Ray H. Darling, Jr.
Dated: August 18, 1987
WILLIAM E. BROCK, SECRETARY OF LABOR,
GREEN DUCK CORPORATION
OSHRC Docket No. 86-0973
STIPULATION AND SETTLEMENT AGREEMENT
The parties have reached agreement on a full and complete settlement of the instant matter which is presently pending before the Commission.
The parties stipulate as follows:
(a) The Occupational Safety and Health Review Commission (hereafter "the Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Sat. 1590; 29 U.S.C. 651 et seq.)(hereafter "the Act").
(b) Respondent, Green Duck Corporation is a
corporation with its principal place of business in Hernando, Mississippi.
It is engaged in producing novelty items and during the course of its business respondent uses materials and equipment which it receives from places located outside Hernando, Mississippi. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by Section 3(3) and 3(5) of the Act and is subject to the requirements of the Act.
(c) As a result of an inspection conducted on June 5 and June 6, 1986 at respondent's workplace at 255 S. Elm Street in Hernando, Mississippi, a citation for two serious violations, a citation for one repeated violation and a citation for two other-than-serious violations were issued to respondent on June 18, 1986 pursuant to Section 9(a) of the Act. A total penalty of $1,730.00 was proposed for the violations.
(d) Respondent contested the citations and proposed penalties for all the citations except for serious citation item 2 wherein it contested only the penalty, other-than-serious citation item 1 wherein it contested only the penalty and other-than-serious citation item 2 wherein it contested only the abatement date.
On February 11, 1987, Commission Administrative Law Judge Joe D. Sparks issued his Decision and Order in which he affirmed both the serious citations alleging violations of 29 C.F.R. 1910.212(a)(3)(ii) and 29 C.F.R. 1910.217(c)(1)(i), and the other-than-serious violations of 29 C.F.R. 1903.2(a)(1) and 29 C.F.R. 1910.1200(e)(1). The judge also assessed a total penalty of $1,600.00 for the violations. Thereafter, respondent filed a timely Petition for Review on the serious and repeat violations which was granted by the Commission on March 25, 1987.
Now, the Secretary of Labor and Green Duck Corporation in order to conclude this matter without the necessity of further litigation or review, stipulate and agree as follows:
(a) The Secretary hereby agrees to reduce the classification in serious citation Item 1(a) for violation of 20 C.F.R. 1910.212(a)(3)(ii) from serious to other-than-serious with no penalty. The parties agree that for the violation of serious citation Item 1(b) respondent will pay $90.00.
(b) The Secretary hereby agrees to reduce the penalty for violation of 29 C.F.R. 1910.219(e)(3)(i) in serious citation Item 2 to $20.00.
(c) The Secretary hereby agrees to reduce the penalty for repeat violation of 29 C.F.R. 1910.217(c)(1)(i) in citation 2 to $450.00.
(d) The Secretary hereby agrees to reduce the penalty for other-than-serious violation of 29 C.F.R. 1903.2(a)(1) in citation 3 to $50.00 and for other-than-serious violation of 29 C.F.R. 1910.1200(f), (g) and (h) in citation 3 to $50.00.
(e) Respondent hereby withdraws its Notice of Contest to the citations and to the Notification of Proposed Penalty as amended in subparagraphs (c) through (d) above. Respondent states that the violations have been abated and shall remain abated.
(f) Respondent and Complainant agree that each party shall bear its won costs.
(g) Respondent agrees to pay a penalty of $660 within (20) days after the signing of the settlement agreement, by mailing a check to the Complainant as full and complete payment of the penalty.
Antony F. Gil
Attorney for the Secretary
Green Duck Corporation
SECRETARY OF LABOR,
GREEN DUCK CORPORATION,
RETAIL, WHOLESALE AND DEPARTMENT
STORE UNION, LOCAL 772,
OSHRC Docket No. 86-0973
Cynthia W. Brown, Esquire, Office of the Solicitor,
U. S. Department of Labor, Birmingham, Alabama,
on behalf of complainant.
Bob Whitesell, President, Green Duck Corporation,
Hernando, Mississippi, on behalf of respondent.
Eugene Newbern, Business Agent, Retail,
Wholesale and Department Store Union, Local 772,
Memphis, Tennessee, on behalf of authorized
DECISION AND ORDER
SPARKS, Judge: Green Duck Corporation is engaged in producing novelty items at its plant in Hernando, Mississippi. In June 1986, Compliance Officer Linda Campbell conducted an inspection of the facility to determine compliance with the Occupational Safety and Health Act of 1970 (the "Act"). She concluded that employees were exposed to injury because of unguarded machine presses and a belt drive and that a required hazardous communication program had not been written and an OSHA poster was not displayed. Citations for serious, repeat and other violations were issued and penalties of $1,730 were proposed. Respondent contested portions of each citation as follows (Tr. 10-12):
Citation 1, Item 1(a) Violation, penalty and
Citation 1, Item 1(b) Violation and penalty
Citation 2 Violation, penalty and abatement date
Citation 3, Item 1 Penalty only
Citation 3, Item 2 Penalty and abatement date
In answers to request for admissions, respondent acknowledged that it used equipment and materials shipped from outside the State of Mississippi and used interstate communications. The company admitted that it was an employer engaged in a business affecting commerce. It also acknowledged that it had been issued a citation for serious violations in January 1985 which had become a final order. Respondent contends, however, that new management has corrected the prior violations and was determined to operate a safe plant in compliance with safety regulations.
In Astra Pharmaceutical Products, Inc., 81
OSAHRC 79/D9, 9 BNA OSHC 2126, 1981 CCH OSHD ¶ 25,578 (No. 78-6247, 1979), the Review
Commission stated that the following elements are necessary to establish a violation of an
In order to prove a violation of section 5(a)(2) of the Act, 29 U. S. C. § 654(a)(2), the Secretary must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence. Daniel International Corp., Wansley Project, OSHRC Docket No. 76-181, (June 30, 1981).
SERIOUS CITATION ONE
Item one alleges two instances of violations of 29 C.F.R. § 1910.212(a)(3)(ii)[[1/]] in that machine no. C-11, a hole puncher, and the GM Numbering Stamping Machine, no. C-14, were operated without guards at their points of operation.
Machine C-11 punches holes in coins. The coins are placed in a stripper plate by the operator who maintains a finger on the coin while depressing a foot pedal which causes a punch to make a hole in the coin (Tr. 19-21, 70). The Secretary acknowledges that the stripper plate constitutes an adequate guard if the end of the punch remains at or below the level of the stripper plate (Tr. 55). On the day of the inspection, the machine was out of adjustment so that the point of the punch was one-eighth of an inch above the stripper plate (Tr. 21-22, 55, 70, 74). The Secretary contends that the operator is exposed to the danger of a finger or hand coming into contact with the punch causing severe lacerations or amputation (Tr. 22, 24). Respondent disputes the assertion that the small aperture will allow injury and points out that the OSHA standard relating to mechanical power presses permits a maximum opening of one-fourth of an inch at the point of operation[[2/]] (Tr. 71, 75, 93). It acknowledges, however, that the punch press in question was not a mechanical power press (Tr. 92) and the standard alleged to have been violated does not permit an unguarded opening at the point of operation.
In Rockwell International Corp., 80 OSAHRC 118/A2, ___ BNA OSHC ___, 1980 CCH OSHD ¶ 24,979 (No. 12470, 1980), the Review Commission was concerned with the machine guarding standard at 29 C.F.R. § 1910.212(a)(3)(ii). The Commission interpreted the standard as follows (1980 CCH OSHD ¶ 24,979 at p. 30,846):
By its terms the standard's guarding requirements
apply only when the point of operation exposes an employee to injury. In the
instant case there has been no showing that Rockwell's machines exposed the operators to
injury. The mere fact that it was not impossible for an employee to insert his hands
under the ram of a machine does not itself prove that the point of operation exposes him
to injury. Whether the point of operation exposes an employee to injury must be
determined based on the manner in which the machine functions and how it is operated by
After noting that the operator did not hold the piece at the point of operation, the ram descended slowly and would begin ascending when the operator ceased pressing on the foot pedal, the Commission held as follows:
The Secretary's contention that the major concern of the standard is to require guarding so as to make it impossible for employees to place their hands in the point of operation begs the question. Before guarding is required, the point of operation must expose an employee to injury. As no such showing has been made, we hold that Rockwell did not violate the standard and affirm the Judge's vacation of the citation. (Footnote omitted.)
See also Stacey Manufacturing, Inc., 82 OSAHRC 14/B1, 10 BNA OSHC 1534, 1982 CCH OSHD ¶ 25,965 (No. 76-1656, 1982); Skydyne, Inc., 84 OSAHRC 1B/2, 11 BNA OSHC 1753, 1984 CCH OSHD ¶ 26,761 (No. 80-5422, 1984); Syntron, Inc., 83 OSAHRC 1/B1, 11 BNA OSHC 1158, 1984 CCH OSHD ¶ 26,840 (No. 84-1491S, 1984).
In the instant circumstances, the fingers of the operator remained at the unguarded point of operation. The compliance officer's testimony is entirely reasonable that the unguarded gap of one-eighth inch between the punch and stripper plate at the point of operation presented a hazard of serious injury to the operator whose finger was on the coin at the point of operation (Tr. 22, 24). The OSHA 200 for 1984 reflects that there was an injury on the hole punch machine (Ex. C-2; Tr. 23). It is concluded that the facts establish that the employees were exposed to injury.
Respondent's operations manager, J. R. Girten, testified that the punch had to be removed from the machine periodically for sharpening and is adjusted when it is replaced by the set up man. It is unknown how long the machine had been operated while out of adjustment. Girten admitted it was management's responsibility to correct any incorrect adjustment (Tr. 94-96). With proper diligence, the employer would have known of the violative conditions. The evidence establishes a violation as charged.
Respondent also contests the 30-day abatement date stated in the citation but has offered no reasons why that abatement period is unreasonable. In view of the Secretary's position that the condition can be abated by properly adjusting the stripper plate which was already on the machine, there would appear to be no reason why that could not be accomplished in less than one day. As neither party argued the issue of whether the abatement period should be shortened, the Secretary's proposed 30-day period is affirmed.
The second incident of a violation of 29 C.F.R. § 1910.212(a)(3)(ii) as alleged in item 1(b) of the citation one charges that the GM Numbering Machine, no. C-14, did not have a guard at the point of operation.
To operate the machine, the operator was required to insert a tag into the point of operation and push a foot pedal. The tags were small and the fingers were near the unguarded point of operation when the machine was activated (Tr. 25-28, 30). The operator was thereby exposed to injury. On the day of the inspection, the machine was not in operation, but it had been used the previous day or week (Tr. 29, 76-77, 96-98). An employee had received a severe cut on the thumb which was recorded on the form OSHA 200 for 1985 (Ex. C-4; Tr. 30). Management had recognized the hazard presented by the machine and had removed it from service pending installation of palm buttons which corrected the problem (Ex. R-2; Tr. 96). A severe injury of laceration or amputation would result from an accident. The evidence establishes a serious violation as cited.
The Secretary proposed a penalty of $450 for the violations described in incidents (a) and (b) of item one. The Act in section 17(b) requires that consideration be given to the gravity of the violation as well as the size, good faith and history of the employer. In connection with the gravity, it is noted that the machine in item 1(a) is operated regularly and the machine in item 1(b) is operated about 60 to 70 percent of the time the facility is in operation (Tr. 69). There are two shifts at the plant and a total of five to seven persons may be called upon to operate the machines who would be exposed to the hazard. Although serious injury could result from an accident, it is highly unlikely that death would result. The probability of an accident, while not considered in determining whether there was a violation, is a relevant factor when considering an appropriate penalty. To apply the mitigating factors of size, good faith and history, the compliance officer gave credit for the size of the employer. She estimated there were about 125 employees while the company placed the number at about 85 (Tr. 91). In addition, the company offered substantial evidence of its good faith efforts to provide a safe work environment. New management was installed after the citations were issued in January 1985 and has worked diligently to correct the numerous past deficiencies as well as to discover any new hazards (Tr. 89-90). Respondent has expressed a willingness to comply with the Act and has taken actions to further that policy (Tr. 63-66). It is noted that Green Duck voluntarily removed from service machine no. C-14 to have safety equipment attached. Considering the facts described above, a penalty of $400 is reasonable.
CITATION ONE, ITEM TWO
Citation one, item two, alleges a serious violation of 29 C.F.R. § 1910.219(e)(3)(i)[[3/]] in that the horizontal drive belt going to the soldering oven was not guarded. Respondent contests only the proposed penalty of $180.
The evidence shows that the belt drive to the soldering oven was not guarded subjecting the operator and bypassers to the danger of having their clothing caught in the mechanism and receiving cuts (Tr. 33-34). It was noted in the minutes of the safety meeting of May 30 that a guard was needed for the motor of the soldering oven (Ex. R-1; Tr. 59-60, 80). Manager Girten testified the oven was used only 20--30 times a year and had not been used between the day of the safety meeting until the guard was installed (Tr. 79-80). The compliance officer testified that she was told by an employee, who was not identified, that the oven had been used the day before the inspection. Such hearsay testimony will not be afforded any weight. However, there is no indication that the soldering oven was effectively removed from service by disconnecting and tagging out or locking it out of service. It, therefore, had been used earlier and remained available for use. Considering the foregoing factors, a penalty of $100 is warranted and reasonable.
REPEAT CITATION TWO
Citation number two charges a repeat violation of 29 C.F.R. § 1910.217(c)(1)(i)[[4/]] for the operation of Bliss power press, no. B-7, which blanks out circles and buttons, without a guard at the point of operation. The material is hand fed into the point of danger and thus presents a substantial risk of harm to the operator. The machine was not in use on the day of the inspection but had been used the previous week (Tr. 36-42). The company contended the machine was difficult to guard and argued that it was unlikely that an operator would get hurt (Tr. 82-84). On cross-examination, Manager Girten acknowledged the point of operation could be guarded by wing guard and plexiglass guarding (Tr. 84).
The Bliss power press, B-7, had been cited as lacking
a point of operation guard under the identical standard in a serious citation issued
January 16, 1985, and had become a final order of the Commission on October 17, 1985
(Request for Admission 4 and answer thereto).
The Review Commission in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294 (No. 16183, 1979), defined a repeated violation as follows:
A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.
The Secretary may establish substantial similarity in several ways. In cases arising under section 5(a)(2) of the Act, which states that each employer shall comply with occupational safety and health standards, the Secretary may establish a prima facie case of similarity by showing that the prior and present violations are for failure to comply with the same standard. (Footnote omitted.)
See also New England Container Co., ___ OSAHRC ___, 12 BNA OSHC 1368, 1369, 1985 CCH OSHD ¶ 27,148 at p. 35,044 (No. 78-1539, 1984).
The same standard and the same hazard were the subject of the final order and the present violation. In both instances there were no guards which prevented access to the point of operation. A repeat violation of 29 C.F.R. § 1910.217(c)(1)(i) has been established.
The Secretary proposed a penalty of $900.
There had been an injury in 1985, and three fingers of an employee had been amputated as
the result of an accident several years ago (Ex. C-4; Tr. 43-44, 62). The risk of
injury was, therefore, clear and well known. Two employees were exposed to the
danger for up to eight hours daily. No reduction of the penalty for good faith or
history is warranted for the repeat violation although consideration must be given to the
size of the employer. Under the foregoing circumstances, the penalty of $900 is
Respondent also contests the reasonableness of the abatement date which was July 23, 1986; more than a month after the date of the citation of June 18, 1986. The dates and methods of abatement were discussed with Manager Ron Girten. The compliance officer felt she had Girten's agreement that the abatement time was reasonable but advised him that, if more time was needed, he should contact the Area Office (Tr. 45-56). Respondent does not state specifically why the time provided was inadequate (Tr. 82-83). As shown in the video exhibit, Green Duck has provided plexiglass guards on the machine and wing guards on the dies (Ex. R-2; Tr. 82). The period to abate the condition was reasonable.
OTHER THAN SERIOUS CITATION THREE
Citation number three charges respondent with an other than serious violation of 29 C.F.R. § 1903.2(a)(1)[[5/]] for the failure to have an OSHA notice posted and of 29 C.F.R. § 1910.1200(e)(1)[[6/]] for the failure to have a written hazard communication program (HCP) in effect. Penalties of $100 were proposed for each violation.
No poster could be located (Tr. 47). Although the company contended an OSHA notice had been displayed at one time, it was not there at the time of the inspection (Tr. 84-85). The violation was abated by placing a copy of the notice under glass.
The company contested the penalty only (Tr. 12). The Act makes the assessment of a penalty mandatory. Section 17(i) of the Act states as follows:
(i) Any employer who violates any of the posting requirements, as prescribed under the provisions of this Act, shall be assessed a civil penalty of up to $1,000 for each violation.
The Secretary proposed a penalty of $100 or one-tenth the amount authorized. The notice provides important information to employees about safety and health at the workplace. Considering the fact that respondent had posted a copy at one time, there is no indication that the employer was trying to prevent employees from having access to the information but was careless in monitoring conditions. Under such circumstances, the proposed penalty of $100 is reasonable and warranted.
The employer acknowledges that it did not have a written hazard communication program on May 25, 1986, and, therefore, did not contest the alleged violation (Tr. 85). It did contest the proposed penalty of $100 and the abatement date of July 14, 1986.
The Secretary points out that respondent was advised of its obligation to have a written HCP by May 25, 1986, during the prior inspection in 1985 (Tr. 50, 67).
Manager Girten testified that the company recognized it did not have the required HCP and contacted the Mississippi Manufacturing Association for assistance. The first available seminar after contacting the MMA was June 18, 1986, and the HCP was prepared within 30 days following the meeting (Tr. 85-86). The record shows that respondent did not take timely action to have the HCP in place by the required date and thus was in violation of the standard. The company offers no reason for its lack of diligence (Tr. 85-89). The proposed penalty of $100 for its tardiness is a reasonable and appropriate penalty. As the HCP was completed within 30 days of the seminar on June 18, 1986, there is no evidence it was not or could not be completed by July 14, 1986, so the abatement date is affirmed.
The record demonstrates that respondent has made good
faith efforts to comply with the Act and safety standards, but its tardiness in correcting
some violations suggests that compliance is sometimes not made a first priority of the
FINDINGS OF FACT
1. Respondent is an employer with facilities in Hernando, Mississippi, where it is engaged in producing novelty items.
2. A hole punch machine, no. C-11, was operated without an adequate and effective guard so that the fingers of the operator were exposed to the hazard of serious injury because the punch extended above the stripper plate guard.
3. The guard became adequate by proper adjustment of the stripper plate so that the proposed abatement date of July 14, 1986, was reasonable.
4. Operators were exposed to serious injury by the GM numbering machine, no. C-14, because they were required to place the small tags on which the numbers were imprinted into the point of operation with their fingers without guards in place.
5. A penalty of $400 is reasonable for citation one, items 1(a) and 1(b), and the proposed abatement date of July 14, 1986, for item 1(a) is appropriate.
6. Operators and bypassers were exposed to the hazard of serious injury by the unguarded belt drive of the soldering oven.
7. A penalty of $100 is reasonable.
8. Operators of the Bliss power press, no. B-7, were exposed to serious injury because they were required to insert material by hand into the unguarded point of operation.
9. The violation was a repeated one because a
prior citation of the same machine had become a final order of the Commission.
10. A penalty of $900 and an abatement date of July 23, 1986, are reasonable.
11. Respondent failed to have an OSHA poster on display under other than serious conditions.
12. A penalty of $100 is reasonable.
13. Respondent failed to prepare and have a written hazard communication program for its facility by May 25, 1986.
14. A penalty of $100 and the proposed abatement date for the other than serious violation are reasonable.
CONCLUSIONS OF LAW
1. Respondent is subject to the Act and this proceeding.
2. Respondent violated 29 C.F.R. § 1910.212(a)(3)(ii) under conditions constituting serious violations as alleged in citation one, items 1(a) and 1(b).
3. A penalty of $400 and abatement date of July 14, 1986, are reasonable and appropriate for the violations described in paragraph two.
4. Respondent violated 29 C.F.R. § 1910.219(e)(3)(i) under conditions constituting a serious violation of the Act as alleged in citation one, item two.
5. A penalty of $100 and an abatement date of June 30, 1986, are reasonable and appropriate for the violation described in paragraph four.
6. Respondent violated 29 C.F.R. §
1910.217(c)(1)(i) under conditions constituting a repeated violation as alleged in
citation two, item one.
7. A penalty of $900 and abatement date of July 23, 1986, are reasonable and appropriate for the violation described in paragraph six.
8. Respondent violated 29 C.F.R. § 1903.2(a) and 29 C.F.R. § 1910.1200(e)(1) under conditions constituting other than serious violations as described in citation three, items one and two.
9. Penalties of $100 for each violation and an abatement date of June 23, 1986, for the violation of 29 C.F.R. § 1903.2(a)(1) and July 14, 1986, for the violation of 29 C.F.R. § 1910.1200(e)(1) are reasonable and appropriate for the violations described in paragraph eight.
It is ORDERED:
1. The following citations are affirmed:
a. Citation 1, Items 1(a) and 1(b)
b. Citation 2
c. Citation 3, Items 1 and 2
2. The following penalties are assessed:
a. Citation 1, Items 1(a) and 1(b) $400
b. Citation 1, Item 2 $100
c. Citation 2 $900
d. Citation 3, Item 1 $100
e. Citation 3, Item 2 $100
3. The following abatement dates are established:
a. Citation 1, Item 1a July 14, 1986
b. Citation 2, Item 1 July 23, 1986
c. Citation 3, Item 1 June 23, 1986
d. Citation 3, Item 2 July 14, 1986
Or no later than five days after this Order becomes a final order of the Commission.
Dated this 3rd day of March, 1987.
JOE D. SPARKS
[[1/]] Section 1910.212(a)(3)(ii) of 29 C.F.R. provides as follows:
The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.
[[2/]] Section 1910.217(c)(1)(ii) states as follows:
The requirement of subdivision (i) of this subparagraph shall not apply when the point of operation opening is one-fourth inch or less. See Table 0-10.
[[3/]] Section 1910.219(e)(3)(i) of 29 C.F.R. provides as follows:
(3) Vertical and inclined belts. (i) Vertical and inclined belts shall be enclosed by a guard conforming to standards in paragraphs (m) and (o) of this section.
[[4/]] Section 1910.217(c)(1)(i) of 29 C.F.R. states as follows:
(c) Safeguarding the point of operation--(1) General requirements. It shall be the responsibility of the employer to provide and insure the usage of "point of operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press. See Table 0-10.
[[5/]] Section 1903.2(a)(1) of 29 C.F.R. reads as follows:
Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.
[[6/]] Section 1910.1200(e)(1) of 29 C.F.R. provides as follows:
(e) Written hazard communication program.
(1) Employers shall develop and implement a written hazard communication program
for their workplaces which at least describes how the criteria specified in paragraphs
(f), (g), and (h) of this section for labels and other forms of warning, material safety
data sheets, and employee information and training will be met, and which also includes