SECRETARY OF LABOR.

Complaint,

v.

LOOMIS CABINET COMPANY,

Respondent.

OSHRC Docket

No. 88-2012

                                                                    DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:   

    The Secretary of Labor ("the Secretary") through the Occupational safety and Health Administration ("OSHA:) issued to Loomis Cabinet Company ("Loomis") a notification of failure to abate numerous violations of the Occupational Safety and Health Act, 29 U.S.C. 651-678 ("the Act"), as well as citations for repeat and other-than-serious violations of the Act.[[1]]  The Secretary proposed penalties amounting to $43,900.  Loomis stipulated to the existence of the violations.  However, Loomis contended that it was improperly cited because it was not an employer within the meaning of section 3(5) of the Act.[[2]]   At the hearing, Loomis claimed that the persons exposed to the violations were former employees of Loomis who had become partners in the Eastview Cabinet Company ("Eastview"), with which Loomis had a contractual relationship.[[3]]   Review Commission Administrative Law Judge Irving Sommer found that no partnership existed and that the alleged partners were Loomis employees and affirmed both the citations and the proposed penalty.  On review, Loomis renews the argument that the workers at issue were not employees of Loomis, and that the penalty assessed by the judge was not appropriate.  We conclude that an employment relationship did in fact exist between Loomis and the workers at issue, and we affirm the assessed penalty.

                                                                       I. Background

   On January 5, 1988, OSHA inspected the Loomis Cabinet workshop located in North Highlands, California.[[4]]  On March 1, 1988, OSHA issued one citation alleging nine serious violations, and a second citation alleging nine other-than-serious violations, with abatement dates ranging from March 3 through March 31, 1988.  These citations were not contested.

   Loomis represents that on March 1, the day the citation was issued, its employees stopped working for Loomis by forming the Eastview Cabinet Company partnership, which later entered into a contract to manufacture cabinets exclusively for Loomis.[[5]]  Michael Loomis, the sole owner of the Loomis Cabinet Company, testified that the  partnership was formed so that Loomis and the workers "could make more money" and "wouldn't have to be held hostage by the [workmen's compensation insurance] and the other restraints of government agencies.[[6]]   The partnership contract, which was not formalized until September 1, 1988, provided that the members of Eastview would manufacture wood cabinets under the direction of Loomis Cabinet in exchange for 75 percent of the net profit from the cabinets' sale.[[7]]

    On or about July 1, 1988, OSHA attempted a second inspection at Loomis' place of business.  At first Loomis objected and refused entry on the grounds that it had no employees and was therefore not subject to OSHA jurisdiction.  However, it later consented to the inspection.  Following the inspection, OSHA issued a Notification of Failure to Abate Alleged Violations, a citation for repeat violations, and a citation for an other-than-serious violation.  Loomis contested the citations by letter, dated August 24, 1988, alleging that it was not an employer.

    On October 1, 1988, Loomis and Eastview further refined their agreement in a "Management Services Contract and Contract to Provide Manufacturing Services."  According to this agreement, Loomis conducts all contract negotiations with suppliers and customer, provides the designs and specifications for the cabinets, schedules the work with the customers, assists the Eastview Management Committee in supervision, manufacture, installation, and quality control, and performs all accounting, administrative, and financial services.  Loomis also provides Eastview with tools, tool maintenance, the shop itself, and all materials and supplies. In return, 75 percent of Loomis' profits go to Eastview, while the remaining 25 percent stays with Loomis.  The profits destined for Eastview are then divided again among the partners, based according to the partners' respective skill level, as determined by the Eastview Management Committee.[[8]]

                                                                   II Judge's Decision

    On August 16, 1989, the judge issued a decision affirming the citations in this case.  Judge Sommer applied the "economic realities test," first articulated and applied by the Commission in Griffin & Brand of McAllen, Inc., 6 BNA OSHC 1702, 1703, 1978 CCH OSHD

22,829, pp. 27,600-01 (No. 14801, 1978), and more recently in Van Buren-Madawaska Corp., 13 BNA OSHC 2157, 2158, 1989  CCH OSHD

    28,504, P. 37,780 (No. 87-214, CONSOLIDATED, 1989).  The judge found that the record establishes that "there is no partnership among Eastview 'partners' nor between Loomis Cabinet Company and its employees," and that "there existed an employer-employee relationship between Eastview and Loomis despite its partnership form."  Accordingly, the judge held that OSHA did have jurisdiction over Loomis' workplace.  The judge noted that Loomis had "essentially put all its eggs in one basket in arguing that OSHA was without jurisdiction" because "Loomis otherwise made minimal attempt[s] to demonstrate that it should prevail on the basis of any affirmative defenses."  Judge Sommer also noted that "[s]ince Loomis submitted little or no evidence, many of the violations must be affirmed on the basis of Loomis' own admissions as outlined in the [s]tipulation...and the record evidence."  The judge held that the record established that Loomis violated all the cited standards "by a preponderance of the evidence."

                                                                        III Discussion 

                                            A. Whether the workers are employees of Loomis

                                                                                i.

   To determine whether an employment relationship exists, the Commission has applied an "economic realities test."  The test emphasizes the substance over the form of the relationship between the alleged employer and the workers.  The Commission has considered a number of factors when making such a determination, including the following:

    1) Whom do the workers consider their employer?

    2) Who pays the workers' wages?

    3) Who has the responsibility to control the workers?

    4) Does the alleged employer have the power to control the workers?

    5) Does the alleged employer have the power to fire, hire, or modify the employment condition of the workers:

    6) Does the workers' ability to increase their income depend on efficiency rather than initiative, judgment, and foresight?

    7) How are the workers' wages established?

    Van Buren-Madawaska, 13 BNA OSHC at 2158, 1989 CCH OSHD at p. 37,780 (quoting Griffin & Brand, BNA OSHC at 1703, 1978 CCH OSHD at pp. 27,600-01).

The Secretary has directed our attention to Nationwide Mutual Insurance Co. v. Darden, 60 U.S.L.W. 4242, 4243 (U.S. March 24, 1992).  In Darden, the Supreme Court held that the term "employee," in a federal statute, should be interpreted under common law principles unless Congress clearly indicated otherwise.  The Court quoted the following language from Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), discussing the common law interpretation of what constitutes an "employee" where the meaning of the term under the Copyright Act was issue:

    In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished.  Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

490 U.S. at 751-752 (footnotes omitted).

    We note that many of the factors in the Commission's economic realities test appear in the Darden test as well.  In deterring whether there is an employment relationship for purposes of the Act, the Commission has primarily relied upon its determination of "who has control over the work environment such that abatement of hazards can be obtained." Van Buren-Madawaska, 13 BNA OSHC at 2159, 1989 CCH OSHD at p. 37,781 (quoting MLB Indus., 12 BNA OSHC 1525, 1527, 1984-85 CCH OSHD

27,408 at p. 35,510 (No. 83-231, 1985). In Darden, the Supreme Court primarily relies upon "the hiring party's right to control the manner and means by which the product is accomplished."  Darden, 60 U.S.L.W. at 4243 (quoting Reid, 490 U.S. at 751).  Thus, the inquiry central to both tests is the question of whether the alleged employer controls the workplace.[[9]]

   Loomis argues that the responsibility of controlling the workers had passed to the workers themselves or to Mr. Do, the chief partner.  However, as noted above, Loomis conducts all contract negotiations with suppliers and customers, provides the designs and specifications for the cabinets, and schedules the work with the customers.  Loomis also controls pricing, choice of materials, and marketing.   In addition, it provides accounting, administrative, and financial services.   In contrast, the workers provided only their labor.  Eastview did no advertising or soliciting, and made minimal effort to gain outside contracts. The Eastview partners worked exclusively for Loomis and were not allowed to work for other cabinet shops.

   Moreover, Loomis exerted considerable control over the workshop with regard to abatement of hazardous conditions.  Loomis owned all the equipment in the shop.  Abatement of almost all the violations alleged in the citations would have involved either an adjustment to a machine owned by Loomis, the wearing of personal protective equipment to avoid a hazard on a machine owned by Loomis, or the modification of some other condition within Loomis' control.

   The evidence further demonstrated the involvement of Mr. Loomis in hiring and firing the workers.  The testimony established that "nine times out of ten," the partnership gets new people when the current workers bring in acquaintances.  However, if the workers do not know anybody to fill a particular job position, they ask Mr. Loomis to put an ad in the paper.  Mr. LOOMIS handles the phone calls and conducts "a screening interview and...narrow[s] it down for them."  After Mr. Loomis' screening, the partners interview the potential workers themselves.  Mr. Do testified that Mr. Loomis sometimes told him when to hire new people to complete a job.  Mr. Loomis testified that he would tell Mr. Do. if something happened that warranted firing an employee.

   Loomis retained the power to unilaterally change conditions in the workshop.  Mr. Loomis testified that he purchased a new lacquer spray machine for the workers to use.  Although the workers did not like using the machine because it slowed them down, Mr. Loomis stated that he told the workers that they had to use the machine to make their product more competitive.  Mr. Loomis also purchased a wide belt sander.  He testified that the employees did not argue over its use because "it made everybody more one."  In addition, Mr. Loomis recommended workloads and encouraged the workers to work more hours in order to meet production goals.

   Also relevant in determining whether an employment relationship exists is the way in which the workers' wages were established.  Mr. Loomis devised the partner level system of payment, which was "administered by his mother who is the bookkeeper for both Loomis and Eastview."[[10]]  Mr. Loomis "deducts all rent, insurance payments and then issues Eastview their allotment" for distribution to the partners according to the partner level plan.  Although it could be argued that Mr. Loomis merely administered a pay scheme set up by the partnership, the only change in the way the workers are paid under the partnership is that they now vote on each other's increases.

                                                                            ii.

   Based on our consideration of these factors, we conclude that the workers in question were employees of Loomis, and not merely partners in a separate business entity that has an independent contractual relationship with Loomis.  Loomis argues that it ceded to the partners of Eastview all the powers and responsibilities that made them employees of Loomis.  However, we conclude that the record shows that Loomis controlled the cited workplace and the workers there.  It is Loomis that conducted contract negotiations with suppliers and customer, provided the designs and specifications of the cabinets, scheduled the work with the customers, and controlled the pricing, choice of materials, and marketing.  Loomis owned the workshop and all the equipment, and made unilateral decisions about the purchase of new equipment.  Mr. Loomis participated in hiring and firing workers and drafted the partnership agreement.   Loomis was also responsible for all accounting, administrative, and financial services.  All of these factors, taken together, support our finding that the Loomis Cabinet Company was an employer within the meaning of the Act.

                                                                                B. Penalty

                                                                  i.

   In determining an appropriate penalty, in accordance with section 17(j) of the Act, 29 U.S.C. 666(j), we consider the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations.  Loomis' size, the gravity of the violations, and its history of previous violations are not in dispute.  Loomis is a small company, but it has been cited for repeated violations of the Act.  Loomis failed to abate its violations of 15 standards, (see note 1, supra), including the failure to guard such equipment as power saws and belt sanders, and the workers' failure to wear protective eye equipment.  Its failure to abate these violations could result in serious bodily harm to the workers.  At issue is whether Loomis exhibited good faith.

    Loomis argues that it believed in good faith that it was no longer subject to OSHA jurisdiction.  Loomis also claims that OSHA's penalty criteria does "not take into account the legal, economic, and practical realities of [Loomis'] business."  Loomis argues that the penalties themselves were not appropriate because the worker's "own experience, common sense, desire to avoid injury, and business judgment allowed them to determine 'reasonably necessary or appropriate' safety standards for themselves, as such are contemplated by... the Act."  Loomis claims that it was improperly cited because its workers have "15 years experience in the cabinet manufacture business" and that "Complainant's inspectors had no such experience nor any appreciation or understanding of the economic and practical realities of the cabinet manufacture business" and that the inspectors "had no experience with the tools and equipment used in the business."  Loomis further argues that its workers" "freedom of choice in these matters should be respected by OSHA."

    Loomis also argues that "Complainant's standards are not necessarily correct and fair just because they are Complainant's standards are not necessarily correct and fair just because they are Complainant's; Respondent and other reasonable experts can differ as to reasonable and proper standards for workplace safety in a production cabinet shop."  Loomis claims that its 'contempt' was not for true workplace safety, but for the paternalistic, arrogant, and self-righteous approach which Complainant has taken in imposing its standards in this matter...."

    The Secretary challenges Loomis' good faith argument.  The Secretary argues that "[t]here is an obvious difference between a good faith belief that your operations are safe and a good faith belief that you have cleverly avoided the reach of the law by forming paper business entities."  The Secretary further argues that Mr. Loomis did not exhibit good faith because he "was very candid in expressing his contempt for the requirements for safety devices."  The Secretary relies on Mr. Loomis' testimony that if the employees wanted safety improvements made to the radial arm saw, he would make the employees pay for it.  In addition, she notes that when Mr. Loomis was asked whether the workers have safety meetings, he replied, "No, it's dumb...."  The Secretary also points to Mr. Loomis' testimony of safety practices among cabinet makers, which he described as follows:

    A. All the shops are set up exactly like mine.  They hear the OSHA guy comes in, what happens, they stall the guy in the office and the foreman goes out there and tells everybody, put all of the guards on.  And the guy comes out and inspects, he leaves, everybody rips everything off and sticks in a safe place so the next time he comes in.  See, it's a joke.

    Q. Is this primarily for the table saws?

    A. Yeah.  Basically, the table saws.  That's the biggest thing.  Maybe the safeties on the nail GU, but --

    Q. Okay.

    A. And they probably all reach for the bin where there's, you know, underneath this dusty table somewhere where the safety glasses are.  Everybody's walking around with all this dust all over their lenses.

                                                                                ii.

   The test of good faith is an objective one. i.e. was the employer's belief concerning a factual matter or concerning the interpretation of a standard reasonable under the circumstances.  Mel Jarvis Constr. Co., Inc 10 BNA OSHC 1052, 1053 (No. 77-2100, 1981).  Under these circumstances, we cannot say that Loomis' beliefs regarding its duty to comply with the Act were reasonable.  Its argument, that it did not need to comply with the standards because its workers were experienced, has no merit.  "[E]mployers are required to provide to all their employees, experienced and inexperienced alike, the protection that occupational safety and health standards are designed to accord to them."  C. Kaufman Inc., 6 BNA OSHC 1295, 1299, 1977-78 CCH OSHD

22,481, p. 27,101 (No. 14249, 1978).  Nor can Loomis choose not to follow the Secretary's standards because it "differ[s] as to reasonable and proper standards for workplace safety in a production cabinet shop."  This contention only challenges the wisdom of the standards.  It is well settled that the Commission lacks the power to invalidate a standard on such a ground.  Van Raalte Co., Inc.,  4 BNA OSHC 1151, 1152, 1975-76 CCH OSHD

20,633, p. 24,698 (No. 5007, 1976).  As long as a standard is within the Secretary's granted power, issued pursuant to proper procedure, and reasonable, we cannot question it except for unenforceable vagueness.  E.g., The Budd Co., 1 BNA OSHC 1548, 1551, 1973-74 CCH OSHD

17,387, p. 21,916 (Nos. 199 & 215, 1974), aff'd on other grounds, 513 F.2d 201 (3d Cir. 1975).  Loomis' failure to abate the violations cited in March 1987 in the belief that the partnership agreement put it out of the reach of the Act also demonstrates something less than good faith.  Our impression of Loomis' attitude is reinforced by its arguments, criticizing, inter alia, the "paternalistic, arrogant, and self-righteous approach which Complainant has taken in imposing its standards in this matter...."

    We therefore conclude that Loomis' size, its history of previous violations, the gravity of the violations and failures to abate at issue here, and its lack of good faith do not warrant any reduction in the $43,900 penalty proposed by the Secretary.

                                                                           IV. Order

        Accordingly, we find that the workers in question  were employees of Loomis under the Act.  We assess a penalty of $43,900 for the citations and instances of failure to abate set forth in note 1. supra.

Edwin G. Foulke, Jr.                                                                                                                                      Chairman

Donald G. Wiseman                                                                                                                               Commissioner

Velma Montoya                                                                                                                                       Commissioner

Dated:  May 20, 1992

 

IN THE MATTER OF:

ELIZABETH DOLE                                                                                                                               SECRETARY OF LABOR,

Complainant,

v.

LOOMIS CABINET COMPANY,

Respondent.

Docket No. 88-2012

APPEARANCES:                                 LESLIE M. CAMPBELL, ESQUIRE

                                                             U.S. Department of Labor

                                                             Office of the Solicitor

                                                              P.O. Box 3495

                                                              San Francisco, California  94119-3495

                                                                            For the Complainant,

                                                               DECISION AND ORDER

SOMMER, JUDGE

                                                                PROCEDURAL BACKGROUND

      This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. section 651, et seq., :the Act") to review citations issued by the Secretary of Labor pursuant to section 9(a) of the Act, and the proposed assessment of penalties therein issued, pursuant to section 10(a) of the Act.

    This case involves citations resulting from a follow-up inspection of the Loomis Cabinet Company's (hereinafter "Loomis") business.  Mr. Angel Diaz, an Occupational Safety and Health Administration Compliance Officer (hereinafter "OSHCO") conducted the original inspection on January 6, 1988.  Another OSHCO, Ms. Donna Karr, attempted to conduct a follow-up inspection in June, 1988, but was denied entrance on the basis of lack of jurisdiction.

    Loomis believed that OSHA was without jurisdiction because it had no employees due to a reorganization of its business.  Before March, 1988 (the abatement date) Mr. Loomis, the sole proprietor of Loomis Cabinet Company had entered into a partnership agreement with his employees.  The agreement was dated March 1, 1988, and formed a partnership, known as Eastview Cabinet Company (hereinafter "Eastview").  Thus, under this agreement , all prior Loomis employees became Eastview partners.  (Ex. J-12, Stipulation No. 4).  The U.S. Bankruptcy Court of the Eastern District of California confirmed the contractual agreement between Mr. Loomis and Eastview on August 8, 1988.  (R-2, pg. 6).  Before that confirmation however, on July 6, 1988, Ms. Karr returned with Mr.  Diaz and a search warrant to conduct the follow-up inspection.  (Testimony of Ms. Karr, Tr. 36).

    As a result of that follow-up inspection, Loomis was issued one citation for repeat violations and a Notification for Failure to Abate (hereinafter FTA), and a second citation for other than serious violations.

REPEAT VIOLATIONS 

    The complaint alleges concerning Citation No. 1, Item 1 that Loomis violated 29 CFR section 1910.22 (a) (1) in that places of employment were not kept clean, orderly, or in a sanitary condition.  The secretary alleged that Loomis violated 1910.22 (a) (1) because the work area outside the back door of the shop in the Holz Trim Saw Area was cluttered with pieces of lumber, piles of excess lumber and saw dust, and loose electrical cords.  A proposed penalty of $1,000 was assessed.

    The complaint alleges concerning Citation Number 1, Item 2(a) that Loomis violated 29 CFR 1910.305 (b) (2) in that pull boxes, junction boxes and fittings were not provided with covers approved for the purpose.  The employees were allegedly exposed to a hazard of burns or smoke inhalation.  A proposed penalty of $400 was assessed.

OTHER THAN SERIOUS VIOLATION

    The complaint alleges concerning Citation Number 2, Item 1 that Loomis violated 29 CFR 1903.16(a) in that Loomis did not immediately post citations, or unedited copies thereof at the worksite in place readily observable by all affected employees.  A proposed penalty of $500 was assessed.

FAILURE TO ABATE

   As a result of the original inspection on January 5, 1988, Loomis was issued two citations.  Loomis did not contest these citations and thus they became final orders of the Commission.  (Tr. 50; Ex. J-12, No. 3).  The complaint alleged that Loomis failed to abate these citations by July 6, 1988, the date of the re-inspection.   The previous citations contained 9 items each and alleged numerous violations as listed in the addendum of this decision.  A total proposed additional penalty for these items of $42,000 was assessed.

    Loomis filed a timely notice of contest placing in issue the above noted citations.  Pleadings were filed and there was some discovery.  Respondent then filed a Motion for Dismissal of the Complaint or Severance of Jurisdictional Issue, and Change of Venue of  hearing; both were denied as without legal justification and untimely, respectively.  Respondent later filed a Petition for Discretionary Review, which the Commission construed as a Petition for Interlocutory Review and denied.  A hearing was held on April 24, 1989, in San Francisco, California.  Post-hearing briefs have been filed and considered.

                                                                           DECISION

    Loomis was engaged in the manufacture of wooden cabinets.   Loomis maintains its principal place of business at 6915 30th Street, North Highlands, California 95660.  The complaint alleged that Loomis employed approximately 13 employees in its business activities.  Loomis admits that it utilizes goods, equipment and materials shipped from outside the State of California and is engaged in a business affecting commerce.  However, Loomis challenges OSHA jurisdiction over its workplace because it claims to have no employees.

    In large part, Loomis does not contest the violations but objects to the amount of penalties and questions OSHA's jurisdiction over its establishment.   Loomis contends that OSHA is without jurisdiction because it formed a partnership agreement with its prior employees.  The Secretary, on the other hand, argues that OSHA does have jurisdiction because Loomis is not really a partnership, but rather there exists an employer-employee relationship.

    In order to analyze the relationship which exists between Loomis and it's employees it is necessary to look at the substance over the form of the relationship.   In so doing, the Commission has created a test for determining the nature of the relationship between the employee and employer.

    Early on, the Commission applied the "economic realities test" to determine whether an employment relationship exists.  Griffin & Brand of McAllen, Inc., 6 BNA OSHC 1702 (No. 14801, 1978).  There is no single criterion that determines the existence of an employment relationship, rather the Commission pointed to seven factors which should be considered as a whole.  Griffin, 6 BNA OSHC at 1703.  The seven factors are as follows:

    (1) Whom do the workers consider their employer?

    (2) Who pays the workers' wages?

    (3) Who has the responsibility to control the workers?

    (4) Does the alleged employer have the power to control the workers?

    (5) Does the alleged employer have the power to fire, hire or modify the employment condition of the workers?

    (6) Does the workers' ability to increase their income depend on efficiency rather than initiative, judgment, and             foresight?

    (7) How are the workers' wages established?

       Recently, the Commission again applied the economic realities test in Van Buren-Madawaska Corp., 13 BNA OSHC 2157 (Docket Nos. 87-214, 87-217, 87-450 through 459, 1989).  The Van Buren-Madawaska decision offers further insight in applying the economic realities test.

                        (1)      Whom do the workers consider their employer?            

                      Mr. Han Do, a "general partner" with Eastview, was the only worker deposed before the hearing.  Mr. Do stated at the deposition that Mr. Loomis was his supervisor before the partnership.  This would indicate that Mr. Do no longer believed Mr. Loomis was his employer.  Nevertheless, although there was some evidence that Mr. Do had increased supervisory duties after the formation of Eastview, his position essentially remained the same and more in the nature of an employee.

    The depositions of both Mr. Loomis and Mr. Do indicate that the Eastview partners still look to Mr. Loomis as their employer.  For example, Mr. Do does not have the authority to actually fire an employee although he could recommend a firing.  Mr. Do does not take any orders from customers, and only negotiates a price on small orders.  (Depo. of Mr. Loomis, Ex. J-2(a), p. 36).  Mr. Do and the other partners have set hours each day.  The "partners" do not purchase any supplies, nor do they create their own designs.  Even more telling is the exclusive nature of the relationship with Loomis.  Eastview does not advertise for business;   it's sole customer is Loomis.  )Depo. of Mr. Loomis, Ex. J-2(a) p. 38; Depo. of Mr. Do, Ex. J-2(b) p. 19).  Both Mr. Do's and Mr. Loomis' depositions offer a clear picture of the relationship between Eastview and Loomis.  Despite the employees' new titles, and employer-employee relationship continue to exist between Eastview partner's and Loomis.

    (2)  Who pays the workers' wages?

        The nature of the wage distribution indicates that Mr. Loomis continues to fulfill the role of employer.  Eastview does not have its own secretary or bookkeeper; rather, the Eastview partners are paid by Loomis' secretary and bookkeeper on an hourly basis.  (Depo. of Mr. Loomis, Ex. J-2(a) P. 40).  Although the partners are given a percentage of the profits, Mr. Loomis noted that if a partner is absent his wages will be reduced.  (Depo. of Mr. Loomis, Ex. J-2(a) P. 35).  Thus, Loomis continues to pay the worker's wages.

    (3)  Who has the responsibility to control the workers?

               The record evidence further indicates that Mr. Loomis continues to exercise control over the workers.  Mr. Do     cannot decide when the work will be completed.  Mr. Loomis controls all bookkeeping, wages, profit making, and managerial decisions.  (Depo. of Mr. Loomis, Ex. J-2(a) P. 18).  Mr. Loomis controls the workload and has required the employees to work more hours to meet the production goals.   (Depo. of Mr. Loomis, Ex. J-2(a) P. 31).  Loomis selects the tools, equipment, and materials the employees are to be using.  Mr. Loomis controls all lease negotiations and expansion decisions.  (Depo. of Mr. Loomis, Ex. J-2(a) Pp. 54-55, 66).  Eastview uses Loomis' designs exclusively.  Despite the new partnership, Loomis continues to exercise considerable control over the partners.

            (4)  Does the alleged employer have the power to control the workers?

               Mr. Loomis plays a significant role in the hiring and firing of workers.  Mr. Do did point out that he recommended a friend and brother to join the partnership which was brought before the partners.  However, Mr. Loomis does all initial screening of applicants and determines whether or not a new worker is needed.  (Depo. of Mr. Loomis, Ex. J-2(a) P. 47).  Although Mr. Do has some supervisory duties, Mr. Loomis continues to exercise significant control over the workers.

            (5) Does the Alleged employer have the power to hire, fire or modify the employment condition of the workers?

            On the basis of the evidence, this inquiry must be answered in the affirmative.  Mr. Loomis can dock worker;s wages.  (Depo. of Mr. Loomis, Ex. J-2(a) Pp. 35, 57).  Mr. Loomis determines when new employees will be hired and conducts screening interviews.   (Depo. of Mr. Do, Ex. J-2(b) P. 23).  Mr. Loomis will also recommend firing when necessary.  (Depo. of Mr. Loomis, Ex. J-29a0 P. 20).  Although Mr. Loomis appears to have delegated these duties to the "management committee," he continues to play a powerful role in final decisions of  Eastview.

            (6)  Does the workers' ability to increase their income depend on efficiency rather than initiative, judgment, and                     foresight?

            In the case at hand, the workers are required to be efficient during their working hours, otherwise a supervisor will issue warnings.  Although naturally the workers' increased productivity will result in increased profits, the record evidence indicates that the partners show little initiative and exercise little or no business judgement.   Additionally, Eastviews' sole means of support is through its contract with Loomis.   Eastview is financially dependent on Loomis.  Eastview does no advertising, soliciting and makes minimal effort to gain outside contracts.  Eastview works exclusively for Loomis and is not allowed to work for other cabinet shops.  (Depo. of Mr. Loomis, Ex. J-2(a) P. 36).  Under these circumstances, an employment relationship rather than an independent contractor relationship exists.

            (7)  How are the workers' wages established?

            The workers' wages are established by Mr. Loomis.  Mr. Loomis determines how much the Eastview partners will receive.  He deducts all rent, insurance payments and then issues Eastview their allotment.  The partner level system of payment was devised by Loomis and Eastview.   (dep. of Mr. Loomis, Ex. J-2(a) Pp. 45-46).  This extensive control over the workers' wages is further evidence of an employer-employee relationship.

 

    Under the Occupational Safety and Health Act, an employer who exercises that control also has a corresponding responsibility to control the work environment to assure the safety and health of the employees.  Van Buren-Madasawka, 13 NBA OSHC at 2159.  Ultimately, Mr. Loomis has control over the workers.  Since Mr. Loomis exercises a significant degree of control over the workers it is incumbent that he also ensure a safe and healthful work environment. 

    In this case the separate identity of Eastview and Loomis should be disregarded because Mr. Loomis exercises control over the partners of Eastview and thus over their work environment.  The commission stressed that "Formal technicalities are not determinative, however, if they present a false image of the employment relationship."  Griffin, 6 BNA OSHC at 1703-1704.  So it is in this case, equity should look to the substance and not the form of the partnership in determining whether an employment relationship existed.  On the basis of the above noted facts, If find there existed an employer-employee relationship between Eastview and Loomis despite its partnership form.  Accordingly, OSHA has jurisdiction over Loomis' workplace.

ALLEGED VIOLATIONS

    Loomis essentially put all its eggs in one basket in arguing that OSHA was without jurisdiction.  Loomis otherwise made minimal attempt to demonstrate that it should prevail on the basis of any affirmative defenses.  Since Loomis submitted little or no evidence, many of the violations must be affirmed on the basis of Loomis' own admissions as outlined in the Stipulation at exhibit J-12 and the record evidence.

                                                                                DISCUSSION

REPEAT VIOLATIONS

   Citation NO. 1, Item 1 Alleged Repeat Violation of 29 CFR 1910.-22(a) (1).

    The Secretary cited Loomis for a repeat violation of section 1910.22(a) (1) because the work area outside the back door of the shop in the Holz Trim Saw area was cluttered with pieces of lumber, piles of excess lumber and saw dust and loose electrical cords.  A proposed penalty of $1,000 was assessed.  Loomis does not contest that it's employees were exposed to the cited condition, but objects to the seriousness of the hazard and the amount of the penalty.  (Ex. J-12, Stipulation, No. 25).

    The compliance officer testified that the hazard in this citation is that of a worker falling off the pile of wood, possibly tripping, going into the planer or hitting his head on the metal table.  (Testimony of Ms. Karr, Tr. 33-34).  This violation is depicted in a photograph taken by the compliance officer.  (Ex. J-11(b).   This condition does present a serious hazard.  Loomis offered no evidence to the contrary.  Accordingly, the violation is established and the $1,000 penalty is affirmed.

    Citation NO. 1, Item 1(a) Alleged Repeat Violation of 29 CFR 1910.305(b) (2).

    It is alleged that Loomis did not have approved covers for pull boxes, junction boxes and fittings and thereby exposing its employees to a hazard of burns or smoke inhalation.  A proposed penalty of $400 was assessed.  Again, Loomis does not contest the violation, but disputes the appropriateness of the penalty.   (Ex. J-12, Stipulation, No. 26).  Because Loomis admits there was a violation and it is a repeat and the compliance officer followed the guidelines in the Federal Operations Manual correctly, the violation and $400 penalty must be affirmed.   (Testimony of Ms. Karr, Tr. 34-35).

OTHER THAN SERIOUS VIOLATIONS

    Citation NO. 2, Item 1 Alleged Other Than Serious Violation of 29 CFR 1903.16(a).

    Citation Number 2, Item 1 alleges that Loomis violated 29 CFR 1903.16(a) in that Loomis did not post the prior inspection's citations, or unedited copies thereof at the worksite in places readily observable by all affected employees at the time of the follow-up inspection.  (Ex. J-12, Stipulation NO. 27).  A proposed penalty of $500 was assessed.  Loomis contends that the poster had been previously posted after the original inspection.

    Under 29 CFR 1903.16(b) each citation, or a copy thereof, shall remain posted until the violation has been abated or for 3 working days, whichever is later.  Loomis readily admits that certain violations were not abated.  Further, Mr. Loomis stated that he thought only some of the "senior people" were aware of the penalties.  (Depo. of Mr. Loomis, Ex. J-12 (a) P. 10).

    Under 1903.16(a), the citation shall be posted, unedited, in a prominent place where it will be readily observable by all affected employees.   Since, Loomis did not comply with the posting requirements, the violation is affirmed.  Additionally, because the compliance officer calculated the penalty on the basis of the Federal Operations Manual which provides that posting citations are $500, the penalty is reasonable.  (Testimony of Ms. Karr, Tr. 35).

FAILURE TO ABATE VIOLATIONS

    Item Nos. 1-2(a) and 1-2(b) Alleged FTA Violation of 29 CFR 1910.37(k) (2) and 1910.37(q) (a).

        Loomis stipulated that it was aware the door was blocked in the condition as depicted in Exhibit Numbers 11 (a) through (e), and that the condition had not been corrected as required by the prior inspection.  A proposed penalty of $6,000 was assessed for these two grouped items.  Loomis contends that the six large bay doors are always open during business hours.  Loomis questions whether unmarked exit doors and the condition depicted in Exhibit Numbers J-11 (a) through (e) poses "blocked exits" so as to cause a serious hazard and whether the penalty is appropriate.  (J-12, Stipulation Nos. 10, 11).

    Ms. Karr testified that one door was blocked with tires and cans.   (Tr. 20; Ex. J-11 (a).  Another door was blocked by wood in front of the door and beside the door.  (Testimony of Ms. Karr, Tr. 21; Ex. J-11 (b).   Yet another door was blocked by poles and frames.  (Testimony of Ms. Karr, Tr. 21; Ex. J-11(b)).  Yet another door was blocked by poles and frames.  (Testimony of Ms. Karr, Tr. 21; Ex. J-11(b)).  Loomis' argues that (1) the doors are always open during business hours, (2) the doors are wide enough to provide clear access, and (3) because they no longer operate in the same manner, the situation of poles and frames in front of the doors no longer exists.  (testimony of Mr. Loomis, Tr. 70-71).

    Loomis' arguments are not convincing.  The photography's clearly show that the exits were blocked.  Although Loomis may have changed its operating procedures to eliminate blocked exits, it is undisputed that poles and frames were barring clear access to the exits on the day of the re-inspection.  This situation limited employee egress which presented hazardous condition sin an emergency.   Also, because of the number of blocked exits which were all unmarked the condition is serious.  Accordingly, the Secretary has established a violation of this standard.   This situation can be easily abated, yet Loomis continued to remain in open defiance of the Act.  Given the gravity of the violations and Loomis' lack of good faith the $6,000 penalty is appropriate.

    Item No. 1-3 Alleged FTA, Violation of 29 CFR 1910.94 (c) (2).

       Loomis stipulated to the fact that the spray finishing operation was not in compliance with 201 through 206 of the "Standard for Spray Finishing Using Flammable and Combustible Materials," NFPA No. 33-1969.   Loomis further admitted that there was nonmechanical ventilation in the spray-finishing operation and the cords in use were not explosion proof and that the workers were using flammable materials in the spray finishing area.  Loomis contends that the ventilation provided by 3 of the bay doors which are open at all times during business hours is sufficient.  Again, Loomis contends that the condition is not serious and questions the appropriateness of the penalty.  Loomis also asserted the affirmative defense of feasibility.  (ex. J-12, Stipulation No. 12).

    Ms. Karr observed that the spray finishing operation was open to the whole shop while the surrounding machinery was in use which could provide an ignition source for the fumes.  (Tr. 23; Ex. C-1 through C-3).  Mr. Loomis testified that the natural ventilation of the building is sufficient to prevent fumes from spreading.   (Tr. 75-78, Ex. R-3.  Loomis' evidence is not convincing.  Additionally, Loomis submitted no evidence to support its affirmative defense of feasibility.  The Secretary has established a violation of the standard.  Under these circumstances, the $6,000 penalty is appropriated.

    Item NO. 1-5 Alleged FTA, Violation of 29 CFR 1910.133(a) (1)

    Loomis does not dispute the fact that he did not require his workers to use protective eye equipment while working around wood working equipment and operating staple/nail guns.  Loomis contends that this is not a serious hazard and questions the appropriateness of the penalty.  (Ex. J-12, Stipulation No. 13).  This is a serious violation because there exists the possibility of eye injury or damage to the face.  (Testimony of Ms. Karr, Tr. 27).  Loomis submitted no convincing evidence to the contrary.  Thus, the Secretary has established a violation of the standard and the corresponding $5,000 penalty is appropriate.

    Item No. 1-6 Alleged FTA, Violation of 29 CFR 1910.213(b) (3)

    Loomis does not dispute that the cited machines, the horizontal belt sander, the Sterling band saw, the Dewalt radial saw, the Delta Chop saw, and the Makita chop saw did not have magnetic switches to prevent them from automatically restarting upon restoration of power after a power failure.  Loomis contends that the Delta Chop saw and the Makita Chop saw have trigger switches and that the Rockwell table saw in fact had a magnetic switch.  Loomis argues that the condition does not pose a serious hazard, and questions the appropriateness of the penalty.  Ex. J-12, Stipulation No. 14).

    During the original inspection, Mr. Diaz tested all the machines for magnetic switches.  He determined that the cited machines did not have magnetic switches.  At the re-inspection, Mr. Diaz only tested a few of the machines to determine whether Loomis had abated the hazard.  The machines still did not have magnetic switches.  According to Mr. Diaz, he did not complete the testing because Mr. Loomis had told him that he had not abated the hazard.  (Tr. 52-53).   According to Mr. Loomis the Rockwell table saw was already equipped with a magnetic switch.  (Tr. 83).

    The testimony of Mr. Diaz is credited.  Mr. Diaz conducted testing of each machine at the original inspection and determined that none of them had magnetic switches.  Given Mr. Loomis' failure to abate any of the hazardous conditions at his workplace and the lack of evidence submitted at the hearing regarding the Rockwell Table saw, I find that the Rockwell Table saw did not have a magnetic switch.   Accordingly, the Secretary has established a violation of the standard.  The lack of proper switches poses the hazard of a serious laceration when dealing with saws of this power.  Under these circumstances, I find the $5,000 penalty is appropriate.

    Item NO. 1-7 Alleged FTA, Violation of 29 CFR 1910.213 (d) (1)

    Loomis admits that the table saws were not guarded as required by the standard.  Loomis asserts the greater hazard defense, questions the seriousness of the hazard, and whether the penalty is appropriate.  (Ex. J-12, Stipulation NO. 15).  The Secretary submitted three pages of guards which could be used with Loomis' equipment.  (Ex. C-4).  Mr. Diaz pointed out that unguarded saws create a hazardous condition in that fingers could be lacerated or amputated.  (Tr. 58).

    Mr. Loomis stated that its safer to not use a guard because the "guys just don't like them on there" as it creates a false sense of security and it impairs your vision of the blade.  (Tr. 84-85).  Mr. Loomis further pointed out that in a previous job at a mobile home factory guards were required and used regularly.  (tr. 84).  Mr. Loomis' testimony is not convincing; indeed he has discredited his own testimony by pointing to the safety program of another workshop which requires that guards be used regularly.  Accordingly, the Secretary has established a serious violation of the standard.  Under the circumstances, the $6,000 penalty is appropriate.

    Item NO. 1-8(a) Alleged FTA, Violation of 29 CFR 1910.213(h) (1)

    Loomis admits that the radial saws in question did not have the sides of the lower exposed portion of the blade guarded to the full diameter of the blade by a device that automatically adjusted itself to the thickness of the stock and remained in contact with the material being cut.  Loomis argues that the abatement of this hazard creates a greater hazard, questions the seriousness of the hazard, and whether the penalty is appropriate.  (Ex. J-12, Stipulation No. 16).

    Loomis submitted no additional evidence to support its arguments under this item.  For the reasons stated above in FTA Item 1-7, the violation and penalty must be affirmed.

    Item NO. 1-8(b) Alleged FTA, Violation of 29 CFR 1910.213(h) (4)

    Loomis stipulated that the Dewalt radial cutting head did not return to the starting position automatically when released by the operation.  Loomis merely questions the seriousness of the hazard, whether the abatement creates a greater hazard and whether the penalty is appropriate.  (Ex. J-12, Stipulation No. 17).  Mr. Diaz pointed out that this hazard is easily abated by installing a safety device on the saw.  Loomis submitted no evidence to support its position.  Accordingly, the Secretary has established a violation of the standard.  Since this condition is serious and is easily abated, the $6,000 penalty for the grouped items 8(a) and 8(b) are appropriate.

    Item NO. 2-1 Alleged FTA, Violation of 29 CFR 1903.2(a)(1)

    Loomis admitted that the OSHA notice was not posted at the workplace,  Loomis contends that the poster had been previously posted after the original inspection.  Loomis questions the appropriateness of the penalty.  (Ex. J-12, Stipulation NO. 18).

    Loomis' arguments are without merit.  Under 29 CR 1903.2(a) (1) each employer shall post and keep posted a notice...informing employees of the protections and obligations provided for in the Act.  Even though Loomis may have had a poster previously posted, he did not have one posted on the day of the re-inspection in contravention of the standard.  Accordingly, the Secretary has established a violation of the standard.  Loomis was not assessed a penalty previously and Ms. Karr noted that Loomis had been assessed the lowest possible penalty in this situation.   Since this is an other than serious violation and Loomis was already assessed the lowest possible penalty, the penalty of $1,000 is appropriate.

    Item NO. 2-2 Alleged FTA, Violation of 29 CFR 1904.2(a)

    Loomis admits that the OSHA-200 log was not kept at the workplace for the years 1985-1987.  The parties agree that this is an other than serious violation.  Loomis merely questions the validity of the penalty.  (Ex. J-12, Stipulation NO. 19).  For the same reasons as previously noted in the FTA 2-1 other than serious violation, the penalty of $1,000 is appropriate.

   Item No. 2-3 Alleged FTA, Violation of 29 CFR 1910.141(a) (3) (i)

    Loomis admits that the men toilet facility was not clean and had not been kept clean as required by the prior inspection, Citation NO. 1, Item 3 issued March 1, 1988 and that it is an other than serious hazard.  Loomis disputes the amount of the penalty.  (Ex. J-12, Stipulation No. 20).  Again, for the same reasons as previously noted in the FTA 2-1 other than serious violation, the penalty of $1,000 is appropriate.

    Item No. 2-4 Alleged FTA, violation of 29 CFR 1910.213 (p) (4)

    The Secretary alleged that a horizontal belt sander did not have a guard provided at each nip point where a sanding belt ran onto a pulley to prevent the operator's hands or fingers from coming into contact with nip points.  Mr. Loomis admitted in his deposition that the belt sander did not have a guard.  (Exhibit J-12, Pp. 90-91).  The Secretary has established a violation of the standard and the $1,000 penalty is reasonable.

    Item No. 2-5 Alleged FTA, Violation of 29 CFR 1910.242(b)

    Loomis admits that compressed air used for cleaning purposes was not reduced to less than 30 p.s.i.. Loomis contends that abatement is not feasible and that the penalty is not appropriate.  (Ex. J-12, Stipulation No. 21).  Mr. Loomis admitted that his air hose operates at a minimum pressure of 90 p.s.i.. Loomis offered no evidence in support of its feasibility argument.  Mr. Diaz recommended a "reducer" which could be applied to the hose in order to lower the pressure.   This situation poses a threat of eye injuries or embolism where the skin might rip with the pressure of the air hose.  (Testimony of Mr. Diaz, Tr. 63).  The Secretary has established a violation not the standard.  Under these circumstances, the $1,000 penalty is appropriate.

    Item No. 2-7 Alleged FTA, Violation of 29 CFR 1910.1200(f). (g) and (h).  

    Loomis admits that it did not develop or implement a written hazard communication program which at least describes how the criteria in 29 CFR 1910.1200(f) (g) and (h) would be met.  Loomis admits that its workers were using chemicals such as Weldwood Contact Adhesive, and that there were the manufacturer's warning labels on the containers.  Loomis merely questions the appropriateness of the penalty.  By its own admission, Loomis has violated the standard.  The $1,000 penalty is appropriate under these circumstances.

    Item No. Alleged FTA, Violation of 29 CFR 1910.1200(g) (1)

    Loomis admits that it did not have a material safety data sheet (MSDS) for each hazardous chemical which was used in the workplace and that the workers were using chemicals such as Weldwood Contact Adhesive.  Loomis merely questions the amount of the penalty.  (J-12, Stipulation NO. 23).  This violation can easily be abated, yet Loomis continued to defy the requirements of the Act.  Accordingly, the $1,000 penalty is reasonable.

    Item No. 2-9 Alleged FTA, Violation of 29 CFR 1910.1200(h) (1) and (2).

    Loomis admits that it did not provide information and training as specified under the standard on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard is introduced in their work area.   The parties agree that the workers were using chemicals such as Weldwood Contact Adhesive.  Loomis merely questions the appropriateness of the penalty.  (J-12, Stipulation No. 24).  The Secretary has established a violation of the standard.   Under these circumstances, the penalty of $1,000 is reasonable.

    In sum, I note that Mr. Loomis has taken a cavalier attitude toward the safety of his workers on the job.  This is evidenced by his unwillingness to abate the violations and his "common sense" approach to safety on the job.   For example, Mr. Loomis stated "there isn't really any safety guy, you know.   They would laugh at him and tell him to leave me alone."  Further, "It's not for me to tell him how he should run his saw....And it's not my duty to go out there and tell them."  (Depo. of Mr. Loomis, Ex. J-29a), Pp. 64-65, 83).   Loomis' overall lack of concern for the safety of its employees and the requirements of the Act supports a strong showing of lack of good faith.

                                                                        FINDINGS OF FACT

    All findings of fact relevant and necessary to a determination of the contested issues have been found specifically and appear herein.  See Rule 52(a) of the Federal Rules of Civil Procedure.  Proposed Findings of Fact or Conclusions of Law inconsistent with this decision are denied.

                                                                        CONCLUSIONS OF LAW

    1.  The record establishes by a prepondance of the evidence that there is no partnership among Eastview "partners" nor between Loomis Cabinet Company and its employees, and that the relationship is one of employer (Loomis) and employees (Eastview), and that Loomis is subject to the jurisdiction of the Occupational Safety and Health Act of 1970 as an employer.

    2.  The record establishes by a prepondance of the evidence that Loomis Cabinet Company violated the following sections of the regulations:

    1.  29 CFR 1910.22(a) (1)

    2.  29 CFR 1910.305(b) (2)

    3.  29 CFR 1903.16(a)

Additionally, the respondent failed to abate violations of the following sections:

    4.   29 CFR 1910.37(k) (2) and 29 CFR 1910-37(q) (1)

    5.   29 CFR 1910.94(c) (2)

    6.  29 CFR 1910.133(a) (1)

    7.  29 CFR 1910.213(b) (3)

    8.  29 CFR 1910.213(d) (1)

    9.  29 CFR 1910.213(h) (1) and 29 CFR 1910.213(h) (4)

    10. 29 CFR 1903.2(a) (1)

    11. 29 CFR 1904.2(a)

    12. 29 CFR 1910.141(a)(3)(i)

    13. 29 CFR 1910.213(p) (4)

    14. 29 CFR 1910.242(b)

    15. 29 CFR 1910.1200(f), (g) and (h)

    16. 29 CFR 1910.1200(g) (1)

    17. 29 CFR 1910.1200(h) (1) and (2)

                                                                                ORDER

Based upon the Findings of Facts, Conclusions of Law, and the entire record, it is hereby ordered:

    1.  Citation 1, item 1 is affirmed as a repeat violation of 29 CFR 1910.22 (a) (1) with a penalty of $1,000.

    2.  Citation 1, item 2(a) is affirmed as a repeat violation of 29 CFR 1910.305(b) (2) with a penalty of $400.

    3.  Citation 2, item 1 is affirmed as an other than serious violation of 29 CFR 1903.16(a) with a penalty of $500.

    4.  FTA items 1-2(a) and 1-2(b) are affirmed as a violation of 29 CFR 1910.37(k) (2) and 1910.37(q) (1) with a penalty of $6,000.

    5.  FTA item 1-3 is affirmed as a violation of 29 CFR 1910.-94(c) (2) with a penalty of $6,000.

    6.  FTA item 1-5 is affirmed as a violation of 29 CFR 1910.-133(a) (1) with a penalty of $5,000.

    7.  FTA item 1-6 is affirmed as a violation of 29 CFR 1910.-213(b) (3) with a penalty of $5,000.

    8.  FTA item 1-7 is affirmed as a violation of 29 CFR 1910.-213(d) (1) with a penalty of $6,000.

    9.  FTA items 1-8(a) and 1-8(b) are affirmed as a violation of 29 CFR 1910.213(h) (1) and 1910.213(h) (4) with a penalty or $6,000.

    10. FTA item 2-1 is affirmed as a violation of 29 CFR 1903.-2(a)(1) with a penalty of $1,000.

    11. FTA item 2-2 is affirmed as a violation of 29 CFR 1904.-2(a) with a penalty of $1,000.

    12. FTA item 2-3 is affirmed as a violation of 29 CFR 1910.-141(a) (3) (i) with a penalty of $1,000.

    13. FTA item 2-4 is affirmed as a violation of 29 CFR 1910.-213(p)(4) with a penalty of $1,000.

    14. FTA item 2-5 is affirmed as a violation of 29 CFR 1910.-242(b) with a penalty of $1,000.

    15. FTA item 2-7 is affirmed as a violation of 29 CFR 1910.-1200(f), (g) and (h) with a penalty of $1,000.

    16. FTA item 2-8 is affirmed as a violation of 29 CFR 1910.-1200(g) (1) with a penalty of $1,000.

    17. FTA item 2-9 is affirmed as a violation of 29 CFR 1610.-1200(h) (1) and (2) with a penalty of $1,000.

Irving Sommer                                                                                                                                                                       Judge, OSHRC

DATED: Sep 5, 1989                                                                                                                                                                   Washington, D.C.

                                                                                            ADDENDUM

FAILURE TO ABATE:  CITATION ONE

ITEM ALLEGED VIOLATION

2(a)    29 CFR 1910.37(k) (2) in that means of egress were not continuously maintained free of obstructions or impediments to allow instant use in case of fire or other emergency.  Four exit doors remained blocked by materials impeding egress.

2(b)    29 CFR 1910.37(q) 91) in that four exit doors were not marked by readily visible exit signs.  Items 2(a) and 2(b) were grouped and a proposed additional penalty of $6,000 was assessed for both.

3    29 CFR 1910.94(c) (2) in that spray finishing operations were still not located as provided in 201 through 206 of the "Standard for Spray Finishing Using Flammable and Combustible Materials, NFPA No. 33-1969.  Thus, creating the hazard of lack of adequate ventilation and the presence of non-explosive proof wiring.   A proposed additional penalty of $6,000 was assessed.

5    29 CFR 1910.133(a) (1) in that protective eye equipment was not required where there was a reasonable probability of injury.  Employees were not wearing eye protection while working around woodworking machinery and operating staple-nail gun.  A proposed additional penalty of $5,000 was assessed.

6    29 CFR 1910.213(b) (3) in that provisions were not made to prevent woodworking machines from automatically restarting upon restoration of power after a power failure.  The complaint alleged that the following 6 woodworking machines did not have magnetic switches:

(1)    One Horizontal Belt Sander;

(2)    One Sterling Band Saw;

(3)    One Rockwell Table Saw;

(4)    One DeWalt Radial Saw;

(5)    One Delta Chop Saw; and

(6)    One Makita Chop Saw.

A proposed additional penalty of $5,000 was assessed.

7    29 CFR 1910.213(d) (1) in that circular hand-fed cross cut table saws were not guarded by an automatically adjusting hood which completely enclosed that portion of the saw above the table and the material being cut.  The complaint alleged that the following 3 cutting blades were not guarded:

(1)    One Delta Unisaw;

(2)    One Powermatic Saw; and

(3)    One Rockwell Saw.

A proposed additional penalty of $6,000 was assessed.

ITEM     ALLEGED VIOLATION

8(a)    29 CFR 1910.213(h) (1) in that the sides of the lower exposed portion of the blade of radial saws were not guarded to the full diameter of the blade by a device that automatically adjusts itself to the stock and remains in contact with the material being out.  The complaint alleged that the following 3 woodworking saws had unguarded lower blades:

    (1)    One DeWalt Radial Saw;

    (2)    One Delta Chop Saw; and

    (3)    One Makita Chop Saw.

8(b)    29 CFR 1910.213(h) (4) in that the DeWalt Radial Saw were not installed so as to cause the cutting head to return gently to the starting station when released by the operator.  Items 8(a) and 8(b) were grouped and a proposed additional penalty of $6,000 was assessed.

FAILURE TO ABATE: CITATION NUMBER TWO

1    29 CFR 1903.2(a)(1) in that there was yet no OSHA poster posted to inform employees of the rights and obligations provided for in the Act.  A proposed additional penalty of $1,000 was assessed.

2    29 CFR 1904.2(a) in that a log of all recordable occupational injuries and illnesses (OSHA form No. 200 or equivalent), was not maintained for the years 1985 through the present.  A proposed additional penalty of $1,000 was assessed.

3    29 CFR 1910.141(a) (3) (i) in that places of employment were not kept clean to the extent the nature of the work allowed. The men's toilet facility was not clean or sanitary, and hand not been kept clean.  A proposed additional penalty of $1,000 was assessed.

4    29 CFR 1910.213(p) (4) in that a horizontal belt sander did not have a guard provided at each nip point where a sanding belt ran onto a pulley to prevent the operators hands or fingers from coming into contact with nip points.  A proposed additional penalty of $1,000 was assessed.

5    29 CFR 1910.242(b) in that compressed air used for cleaning purposes was not reduced to less than 30 p.s.i. and employees were using these hoses to clean off their clothes.  A proposed additional penalty of $1,000 was assessed.

7    29 CFR 1910.1200(e) (1) in that the employer had not developed or implemented a written hazard communication program which at least described how the criteria in 29 CFR 1910.-1200(f), (g), and (h) would be met.  A proposed additional penalty of $1,000 was assessed.

ITEM    ALLEGED VIOLATION

8    29 CFR 1910.1200(g) (1) in that the employer still did not have a material safety data sheet (MSDA) for each hazardous chemical used including, but not limited to Weldwood Contact Adhesive.  A proposed additional penalty of $1,000 was assessed.

9    29 CFR 1910.1200(h) in that the employees were still not being provided information and training as specified in 29 CFR 1910.1200(h) (1) and (2) on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard is introduced into their work area.  A proposed additional penalty of $1,000 was assessed.

FOOTNOTES:

[[1]] The notification of failure to abate involved 15 standards: 1.) 29 C.F.R. 1910.379k)(2) (obstructed exists); 2.) 29 C.F.R. 1910.37(q)(1) (unmarked exits);3.) C.F.R. 1910.94(c)(2) (failure to meet spray-finishing area requirements); 4.) 29 C.F.R. 1910.133(a)(1) (failure to wear protective eye equipment); 5.) 29 C.F.R. 213(b)(3) (six power woodworking machines not provided with switches to prevent restarts upon restoration of power after power failure); 6.) 29 C.F.R. 1910.213(d)(1) and (h)(1) (unguarded power saw); 7.) 29 C.F.R. 1910.213(h)(4)(power saw not provided with automatic return);8.)29 C.F.R. 1903.2(a)(1) (failure to post OSHA notice); 9.) 29 C.F.R. 1904.2(a) (failure to maintain a log of injuries/illnesses); 10.) 29 C.F.R. 1910.141(a)(3)9i) (unclean toilet facility); 11.) 29 C.F.R. 1910.213(p)(4) (unguarded belt sander); 12.) 29 C.F.R. 1910.242(b) (compressed air in excess of 30 psi); 13.) 29 C.F.R. 1910.1200(e)(1) (no hazard communication program); 14.) 29 C.F.R. 1910.1200(g)(1) (no Material Data Sheet for adhesive); 15.) 29 C.F.R. 1910.1200(h) (training and information on hazardous chemicals not provided).

The repeat citation alleged violations of 1.) 29 C.F.R. 1910.22(a)(1) (working area of trim saw cluttered with debris) and 2.) 29 C.F.R. 1910.305(b)(2) (no cover for electrical receptacle box).  The other-than-serious citation alleged a violation of 29 C.F.R. 1903.16(a) (failure to post citations of violations).

[[2]] Section 3(5) of the Act defines "employer" as "a person engaged in a business affecting commerce who has employees."  Section 3(6) of the Act defines "employee" as "an employee of an employer who is employed in a business of his employer which affects commerce."

[[3]] In its brief, Loomis states that in August, 1989, the Eastview entity was replaced by an entity known as the "Empire Cabinet Company."  Loomis claims that its business relationship with Empire is essentially the same as the Eastview relationship for purposes of this case.

[[4]] This case arose during the period from 1987 to 1989 when California's Occupational Safety and Health Administration (CAL-OSHA) was not in operation. Future enforcement of the Act at Loomis would be left to CAL-OSHA.

[[5]] Mr. Loomis testified that some of the workers, but not the partnership, do "a little business on the side," but that the work could not be done on business hours because Loomis has an exclusive contract with the partnership.

[[6]] When Mr. Loomis was questioned about whether the partnership was formed to "get out from under federal OSHA", he responded that it "didn't even enter into any reason why we did it," although he did admit that the members were aware of the first OSHA inspection and that some of the senior people knew that penalties had been assessed.

[[7]] There is no documentary evidence detailing the nature of Eastview as it existed before September 1, 1988, the date an "Amended Partnership Agreement for Eastview Cabinet Company A California Partnership" was executed.

[[8]] The Amended Partnership Agreement reflects the cash contribution each partner made in an amount proportional to his ownership interest. The total capital contribution collected from all the partners amounted to $1000.

[[9]] Although the Secretary brought Darden to our attention, neither party has briefed its applicability to the facts of this case.  Without expressly finding Darden applicable, we conclude that the result would be the same under either test.

[[10]] When questioned on how raises are given, Mr. Loomis testified as follows:

    Well, the contract's up at the end of the year.  See, if you, I know they're going to try to dig into my 25 percent.  So I'm going to have to guard against that.  But the guys, you know, they probably will have to negotiate with me, which I.m not going to budge on.    

    But then they can negotiate with the rest of them about, because basically, what happens is that if there's a guy that's level two and he wants to be level three, the guys in four, five, six and seven got to give him some of their money.   And basically, they, they don't know this, I'm not going to let them know, is that levels one through four could really, they could gang up on the five's, six's and seven's and out quote them and take a bunch of their money.