SECRETARY OF LABOR,
Complainant, v.
TRINITY INDUSTRIES, INC.,
Respondent.

Docket No. 89-3287

ORDER

This, matter is before the Commission on a Direction for Review entered by Commissioner Edwin G. Foulke, Jr. on June 24, 1991. The parties have now filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission. The terms of the Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order. This, is the final order of the Commission in this case. See 29 U.S.C. 659(c), 660(a) and (b).

Edwin G.Foulke, Jr.
Chairman

Donald G. Wiseman                                                                            
Commissioner

Velma Montoya                                                                                                               
Commissioner

Dated February 10, 1992


SECRETARY OF LABOR,                                                                                   
Complainant,                                                                                                                             
v.                                                                                                                                 
TRINITY INDUSTRIES, INC.,                                                                                                           
Respondent.

Docket No. 89-3287

STIPULATION AND SETTLEMENT AGREEMENT

In full settlement and disposition of the issues in this proceeding, it is hereby stipulated and agreed by and between the Complainant, Secretary of Labor, and the respondent, Trinity Industries, that:

1. This case is before the Commission upon the granting of Respondent's Petition for Discretionary Review seeking review of the Administrative law Judge's decision and Order dated April 26, 1991. Review was granted of serious Citation 1, Items 6(a), 6(b), 6(c), Items 9(a), 9(b), Item 12, Item 13, Item 14, Item 15, Item 16, and other-than-serious Citation 2, Item 2 and Item 3. (no review was sought and none was granted for the affirmance of serious Citation 1, Item 6(d), and Item 11 and other-than-serious Citation 2, Item 4 and Item 5; Items 1, 2, 3, 4, 5, 7, 8, 10 and 17 of serious Citation 1 and Item 1 of ("other-than-serious Citation 2 were vacated").

2. The Secretary hereby withdraws serious Citation 1, Items 6(a), 6(b), Item 9(b), Item 12, Item 13 and Item 14 and the proposed penalties thereto.

3.  The Secretary hereby withdraws other-than-serious-citation 2, Items 2 and 3.

4. The Secretary hereby amends the classification of Serious Citation 1, Item 6 (c) to other-than-serious with no proposed penalty.

5. The Secretary hereby amends the proposed penalty for Serious Citation 1, Item 9 (a) for $150.00.

6. The Secretary hereby amends the proposed penalty for Serious Citation 1, Item 15 to $250.00 and the proposed penalty for Item 16 for $250.00.

7. Respondent hereby withdraws its notice of contest to serious Citation 1, Item 6 (c) and to the notification of proposed penalty as amended in paragraph 4.

8. Respondent hereby withdraws its notice of contest to serious Citation 1, Item 9 (a) and to the notification of proposed penalty as amended in paragraph 5.

9. Respondent hereby withdraws its notice of contest to serious Citation 1, Item 15 and 16 and to the notification of proposed penalty as amended in paragraph 6.

10. Respondent agrees to a penalty of $150.00 for Serious Citation 1, Item 6 (d).

11. Respondent agrees that the above-mentioned violations have been abated consistent with the terms of this agreement.

12. By entering into this agreement respondent does not admit to any violations.   Respondent is entering into this agreement strictly to avoid the expense and uncertainty of further litigation.

13. Respondent agrees to submit to the OSHA Area Office $800.00 in full and complete payment of the penalty within 30 days of this Agreement.

14. Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at the workplace on the 23rd day of January, 1992, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure. There are no authorized representatives of affected employees.

15. Complainant and respondent will bear their own litigation costs and expenses.

Anthony F. Gil                                                                                                                
Counsel for the Secretary of Labor

Robert E. Rader, Jr.
Attorney for Respondent

 

 

SECRETARY OF LABOR,                                                                                                                                         Complainant,
v.
TRINITY INDUSTRIES, INC.,
Respondent.

Docket No. 89-3287

 

APPEARANCES:

Robert A. Fitz, Esquire
Dallas, Texas
For the Complainant.

Robert E. Rader, Jr., Esquire
Bradley C. Weber, Esquire
Dallas, Texas
For the Respondent.

DECISION AND ORDER

LAVECCHIA, Judge:

This is a proceeding brought before the Occupational Safety and Health Review Commission ("the Commission") pursuant to 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 at seg. ("the Act").

From May 11-16, 1989, the Occupational Safety and Health Administration ("OSHA") conducted an inspection of two Trinity plants located at 5101 Maple Avenue in Dallas, Texas, hereinafter referred to as "No. 61" and "No. 74." The inspection resulted in the issuance of one serious and one "other" citation. Both citations allege a number of violations, which are discussed below. Respondent timely contested the citations, and a hearing took place on July 10-11, 1990. Both parties have submitted post-trial briefs regarding this matter.

Serious Citation Number 1

Item 1 - 29 C.F.R. 1910.38(a)(l)

William Burke is the compliance officer ("CO") who conducted the inspection. He has been a CO, with OSHA since 1985, has worked in two state plans, and has eight to nine years of safety experience with construction companies. He is also a journeyman electrician with four years of apprentice training, during which time he learned the National Electric Code. (Tr. 26-28).

Burke testified that he requested information regarding the facility's emergency action plan during his opening conference with management officials. He was told there was no such plan and that one was not needed because the facility consisted of open shed buildings. Burke said a plan was required to enable employees to get out in case of fires or other disasters, since equipment can sometimes block vision from one end to the other of a building. He noted the plan should include a central reporting location so that a determination could be made if any employees were left in the facility. (Tr. 37-40).

Eugene Moore is the plant manager of No. 61, which fabricates freight cars. No. 61 had about 112 employees at the time of the inspection, and while it shared the overall plant location with No. 74, it did not share employees, materials or work areas, other than the office, garage and vending machine areas. Moore testified that he accompanied Burke during his inspection of No. 61, which he said was a big, open plant; many sides do not have walls, or have large openings or 50-foot doors. (Tr. 21-24; 313; 320; 330; 334).

Thomas Evans in the plant manager of No. 74, which fabricates tank car parts and has about 130 employees. He testified that he accompanied Burke during his inspection of No. 74. He described the facility as an open plant, with large, 40 to 50-foot doors and areas without walls. He said if there were a fire, employees would have more than one way to evacuate the building. He also said the facility has a PA system with 25 to 30 phones; it is loud enough to be heard over plant noise and could be used for evacuation in case of fire. (Tr. 11-13; 235-36; 251-52).

The subject standard provides, in pertinent part, as follows:

Emergency action plan - Scope and application. This paragraph (a) applies to all emergency action plans required by a particular OSHA standard. The emergency action plan shall be in writing ... and shall cover those designated actions employers and employees must take to ensure employee safety from fire and other emergencies.

The citation in regard to this item alleges as follows: 29 CFR 1910.38(a) (1):

The emergency action plan required by 29 CFR 1910.157(a) or (b) when the employer has elected to partially or totally evacuate the workplace in the event of a fire emergency was not in writing: at the establishment.

The record demonstrates that Respondent's facilities did not have written emergency action plans. However, it is the Secretary's burden to show that the standard applied to the cited condition. A. P. O'Horo Co., Inc., 14 BNA 2004, 2007, 1991 CCH OSHD 29,223 (No. 85-369, 1991). In this instance,she has not met her burden, for the following reasons.

1910. 38 (a) (1) supra, does mandate that emergency action plans be in writing. However, it refers to plans pursuant to "a particular OSHA standard," and does not itself impose a requirement for a plan. The other cited standards, 1910.157(a) and (b), are subparts of the standard regarding portable fire extinguishers. While both mention 1910.38 and emergency action plans, they do not require employers to have such plans. See 1910.157(a) and (b). The Secretary apparently interprets the standards to require emergency action plans. However, deference is to be accorded the Secretary's interpretation only when it is reasonable and consistent with the language of the standard. Martin v.. OSHRC, 111 S. Ct. 1171 (1991). It is concluded the Secretary's interpretation does not meet this test.

Although the citation alleges a violation of 1910.157(a) or (b), the Secretary's complaint refers to 1910.165(a) and her brief references 1910.165(b) (1). There is nothing in the record to indicate the Secretary sought to amend this citation item. However, even assuming arguendo that a 15(b) amendment pursuant to the Federal Rules of Civil Procedure might be appropriate, the Secretary would nevertheless fail to establish a violation, for the same reasons noted supra. 1910.165 (a) and (b) (1) are subparts of the standard regulating employee alarm systems. Both refer to emergency action plans; however, neither imposes a requirement for such a plan. See 1910.165 (a) and (b) (1) . Since the Secretary has not demonstrated the applicability of the standards to the cited condition, this citation item is vacated.

Items 2 and 3 - 29 C.F.R. 1910.179(e)(3)(ii) and (e)(4)

William Burk testified that he observed overhead cranes in Department D of No. 61 with more than one trolley operating on the same bridge. The trolleys were not equipped with bumpers or the equivalent on their adjacent ends. He also observed two overhead floor-operated cranes in No. 74. Crane C-15 was located in the plate shop, and Crane H-30 was located in Bay 6. The cranes were not equipped with sweeps that extended below the rail tops and projected in front of the truck wheels. Burke did not know when any of the cranes were installed or if they had been modified since installation. (Tr. 42-45; 164).

Eugene Moore testified that he began working at the Maple Avenue facility in 1960. He was familiar with the cited overhead cranes in Department D. He said they were in place when he started at the plant, and to his knowledge, had not been substantially modified. Moore was also familiar with Cranes C-15 and H-30 in No. 74. He said both were at the facility in 1960, and that neither had been substantially modified. (Tr. 321-22; 337-38; Exh. C-4-7).

The subject standards provide as follows:

1910,179 (e)(3)(ii):   Trolley bumpers. When more than one trolley is operated on the same bridge, each shall be equipped with bumpers or equivalent on their adjacent ends.

1910.179(e)(4)Rail sweeps. Bridge trucks shall be equipped with sweeps which extend below the top of the rail and project in front of the truck wheels.

The foregoing are subparts of the standard regulating overhead and gantry cranes, which states, at 1910.179(b)(2):

New and existing equipment.  All now overhead and gantry cranes constructed and installed an or after August 31, 1971, shall meet the design specifications of the American National Standard Safety Code for Overhead and Gantry Cranes, ANSI B30.2.0-1967.

According to Commission precedent, cranes constructed and installed before August 31, 1971, are exempt from the design specification requirements of 1910.179. United States Steel Corp., 81 OSAHRC 31/A2, 9 BNA OSHC 1527, 1981 CCH OSHD 25,283 (No. 78-5940, 1981); General Dynamics Corp., Elec, Boat Div., 80 OSAHRC 42/C7, 8 BNA OSHC 1360, 1980 CCH OSHD 24,416 (No. 78-3290, 1980).

The subject standards are clearly design specification requirements. Id. Moreover, the only evidence in the record regarding the installation dates of the cited cranes was the testimony of Moore. He said the cranes were at the facility when he arrived there in 1960, and the Secretary did not rebut his testimony. Based on the record, the Secretary has not demonstrated the cranes were required to comply with the cited standards. Consequently, both of these citation items are vacated.

Item 4 - 29 C.F.R. 1910.179(k) (1) (ii)

William Burke saw a one-ton overhead floor crane in the robot assembly area of No. 74. He asked Thomas Evans to activate it so he could determine if the actuating mechanism would trip the limit switch to prevent the hook or block from contacting the trolley. The hook went up without stopping and had to be stopped manually. The crane was disconnected after the malfunction was discovered. Burke said the purpose of the switch is to keep the crane from pulling the hook up into the hoisting mechanism and breaking the block and load loose, which could seriously injure employees below. Evans told his the crane was not used. Burke did not see it used, but said it was connected and available for use and that there were two employees and 55-gallon barrels of equipment in the area. He also said there were over 20 similar cranes in the plant; he checked some of then and found they wore operating properly. (Tr. 53-57; 164-67).

Thomas Evans testified the crane was not in use at the time of the inspection. It was not used to move the barrels, which, as he told Burke, were moved with a forklift. Evans said he did not know about the switch and was surprised to find it did not work; he immediately had the crane disconnected and repaired. He said there were 15 or 16 similar cranes in the plant, and that the switches on those he operated for Burke functioned properly. He believed the problem was one that would have been discovered during the next require crane inspection, and explained Trinity's procedures. The foremen conduct monthly inspections of ovary department in the facility. They fill out a form, Exhibit R-2, after each inspection and us it to report any problems. The maintenance department is responsible for correcting the problems, and he ensures they do. There is also a separate form for cranes. Evans identified Exhibit R-4 as the form for the cited crane. He noted it showed it was inspected on April 12, 1989, and that no problems were found with its electrical apparatus, which would indicate the switch was working then. Evans said Burke was provided all of the plant's inspection forms. (Tr. 249-50; 257-61).

The subject standard provides, in pertinent part, an follows:

The actuating mechanism of the limit switch shall be located so that it will trip the switch, under all conditions, in sufficient time to prevent contact of the hook or hook block with any part of the trolley.

To establish a violation, the Secretary must show (1) the standard applied to the cited condition, (2) a violation of the standard occurred, (3) employee exposure and (4) employer knowledge of the condition.  A. P. O'Horo Co., supra. The record clearly demonstrates (1) and (2). In regard to (3), although the crane was not in use at the time of the inspection, the fact that it was connected and had recently been inspected would suggest it was available for use. However, the citation must nonetheless be vacated, since it is found that the fourth criterion, employer knowledge, has not been established.

To show knowledge, the Secretary must demonstration the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition. Id. Evans testified he did not know about the switch, and his testimony is supported by the record, which suggests that the crane was functioning properly on April 12 and had not recently been used. Based on the record, it is logical to conclude the malfunction occurred sometime after the April inspection, and that Evans, in fact, did not know about it. Moreover, Evans' testimony regarding the facility's monthly safety inspection procedures supports a finding that Respondent exercised reasonable diligence in attempting to ensure that its cranes had no defects. Accordingly, this citation item is vacated.

Item 5 - 29 C.F.R. 1910.179(n)(2)(ii)

William Burke testified he observed a lifting device in Bay 6. He identified Exhibit C-9 as a photo he took of the device. He talked to Thomas Evans and learned it was used to lift the 240-pound manway covers shown on the floor in C-9. He also learned it was shop made and that no determination had been made that the device or its machine screw was sufficient to hold the covers. Evans told him the device lifted the covers about waist high and that four employees used it. Burke said if the device failed while lifting a cover, the cover could fall on an employee's log or foot and cause a fracture. He said the standard requires loads to be attached by slings or other approved devices, and that if an engineer approved the device for lifting the covers, it would meet the standard. (Tr. 58-62; 168-73).

Thomas Evans testified that Ralph Banks, Trinity's senior vice-president, made the device shown in C-9. He said Banks had 45 years of heavy metal fabrication experience, and that the device, which is one-inch thick carbon steel, was specially built to lift manway covers. Evans stated he had lift-tested the device after the citations wore issued by picking up two manway covers and suspending then for five minutes. The load held, and the device had no cracks or other problem after the test. Evans did not test the strength of the machine screw, but said its purpose was to keep the cover level while being lifted. He know of no accidents caused by the device and said that in his opinion, its lifting capability greatly exceeded 240 pounds. (Tr. 262-63; 287-88).

Edward Kersey also testified. He is Trinity's corporate facilities engineer and is responsible for plant layout and design. He has a degree in mechanical engineering. Prior to testifying, Kersey performed analytical stress calculations on the device. He said if pushed to its limit, it would hold over 1000 pounds, and that 240-pound manway covers were well within its capacity. He said the screw, which tightens the fit between the device and the cover, did not change his conclusion because his calculations showed it could handle a great deal more than 250 pounds. His opinion, after analyzing the device, was that its designers know exactly what they were doing when they made it. (Tr. 303-312).

The subject standard provides as follows:

The load shall be attached to the load block hook by means of slings or other approved devices.

Although the standard does not define "approved," it is apparent the standard's intent is to prohibit the utilization of devices that cannot support the loads they are used to lift. On the basis of the information the CO received, it is understandable he questioned the lifting capability of the cited device. However, the testimony of Respondent's witnesses, particularly that of Kersey, demonstrates the device was more than capable of lifting 240-pound manway covers and that it did not represent a hazard. Moreover, the CO himself indicated the device would comply with the standard if it were approved by a qualified engineer. I conclude the testimony of Kersey provides the approval required by the standard. This citation item is vacated.

Item 6(A) - 29 C.F.R. 1910.212(a)(1)

William Burke observed an employee using a Burgmaster milling machine in the machine shop to make holes in a metal part. The machine had some guarding, but not on all sides, which exposed the operator and other employees who might be in the area to the flying chips produced. He said employees wore safety glasses, but that chips can get under glasses and into eyes and can also strike employees in the face. (Tr. 62-65; 207; 234).

Burke identified Exhibit C-2 as a photo he took of the machine. He draw a red oblong to show where the operator stood, in front of the pendant with the red button. Burke did not see the machine setup, but said the operator would put the piece to be worked on the table and set the controls, which would be several feet away based on machines he had seen. He noted C-2 showed a guard, on one side, and recalled there was a place for another guard in front of the machine. He said this was where an operator would normally be, but that the area behind the machine, where the electrical panel and fire extinguisher appear in C-2, was accessible to employees. (Tr. 63-64; 206-10; 230-34).

Thomas Evans testified the machine in C-2 is located in No. 74's machine shop and is used to drill holes in steel plates. He said the plates are loaded and unloaded with a crane, and that C-2 portrayed the unloading phase. He marked a red "X" on the guard in C-2, and said if the machine had been operating, there would have been similar guards on the front and other side, which fit in the slots around the table's edge. He stated it would not be possible for someone to got directly behind the machine, where its operating equipment is located, and that the extinguisher in ten to twelve feet from the machine. (Tr. 16-18; 266-71).

Evans explained that the guarding is only removed during setup, or programming, and loading and unloading. The machine is off during loading and unloading. The guarding is not in place during setup because the operator must see the drill hitting the plate to program the machine. There is no hazard to the operator during setup because he is at a control cabinet seven to eight feet away, which is not shown in C-2. After setup, the guarding is put into place and the operator runs the machine from the control cabinet or the pendant control, when the operator is about five feet from the drill. Evans said that although Exhibits C-37 and 38 shoved employees had been injured in the machine shop from flying metal particles, no one had ever boon injured from flying chips from the Burgmaster machine. (Tr. 266-71; 291-302).

The subject standard provides as follows:

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

The record shows the cited machine has guarding on three sides when it is operating; however, the guarding is removed during setup when the drill is hitting the steel plate. It is clear from both the record and the fact of the drill contacting the plate that this activity would produce flying chips, with the operator no farther away than when the machine is operating and guarded. It is concluded, therefore, that this activity in hazardous to the operator and to other employees who might be in the area. Evans said the operator could not program the machine with the guarding in place. However, his statement, standing alone, does not establish an infeasibility defense, particularly since Respondent presented no evidence it attempted to prevent general exposure to the condition. See Walker Towing Corp., Paducah River Serv., 14 BNA OSHC 2072, 2075, 1991 CCH OSHD 29,239 (No. 87-1359, 1991) and cases cited therein. Moreover, there is an additional reason for finding a violation, as follows.

The record shows the machine's back side is never guarded. Evans said it is not possible to get directly behind the machine. However, the CO observed the area and said it was accessible, and his statement is supported by C-2 and the extinguisher's location. Although there is no evidence flying chips from the machine have caused an injury, C-37 and 38 show such injuries have occurred in the machine shop and can be serious. A back guard in this case would protect employees who night be behind the machine. This citation item is affirmed as a serious violation. [[1]]

Item 6(b) - 29 C.F.R. 1910.212(a)(l)

William Burke saw an employee in the machine shop drilling a steel plate with a radial drill. He identified Exhibits C-10 and 11 as photos of the scene. He said the operator had a partial guard in front of him; it was about waist high and did not completely guard the drill. Burke said the condition exposed the operator and other employees who night be in the area to flying metal chips, and noted there were chips all along the table. He said that even though the operator wore safety glasses, chips could hit the guard and get in his eyes or strike his face, and, after striking him, could fall to the floor. (Tr. 62; 65-69; 210-12).

Thomas Evans identified Exhibits R-5 and 6 as photos of the drill taken at the same time Burke took C-10 and 11. He said if chips flew around the guard and hit the operator, there would be chips on the floor around his feet. He noted R-6 showed no chips there. Evans has watched the drill operate, and believes the guard is sufficient to protect the operator. He said there have been no injuries caused by flying chips from the drill. (Tr. 271-75).

The subject standard, set out supra, requires guarding on machines which present a hazard of flying chips. The CO believed the drill guarding was inadequate and hazardous to the operator and other employees. Respondent asserts the fact there are no chips around the operator's feet in R-6 shows the guard is sufficient to protect the operator. I disagree. While it undoubtedly provides some protection, there are what appear to be metal particles around the base on which the operator is standing in R-6. Their location is such that it is reasonable to conclude they were created by the drill and flow over or around the guard within striking distance of the operator or other employees who night be in the area.

Moreover, R-5 shows numerous metal fragments on the ground to the right of the drill, which it presumably created since it is completely unguarded on that side. Although there was no evidence of employees in that area, R-5 demonstrates it is accessible, and it is logical to conclude employees would walk through the area from time to time and be exposed to flying chips. Although Evans said flying chips from the drill had caused no injuries, C-37 and 38, discussed supra, show that such injuries have occurred in the machine shop and can be serious. This citation item in affirmed.

Item 6(C) - 130 C.F.R. 1910.212(a)(1)

William Burke saw a 13-inch South Bend lathe in the milling area of the machine shop. Thomas Evans told his employee used it and did not indicate it was guarded. Burke identified Exhibit C-12 as a photo he took of the lathe, and circled what he called the "chuck unit," which has jaws and rotates when the lathe operates. He said guarding in required when the jaws extend beyond the chuck unit because employees can be struck by then or got their hair tangled in them, which can cause fractures and lacerations. He noted C-12 did not show the jaws fully extended. Burke did not see the lathe used, and did not know where the operator would stand. He said most lathes do not require the operator to be there the entire time. (Tr. 62; 70-72; 213).

Thomas Evans testified that the lathe is automatic, and that the operator, who stands about three feet away when it is running, has no reason to get close to the chuck unit. He said no one has been injured by the chuck unit or jaws. (Tr. 275-76).

Neil Foreman also testified. He is Trinity's corporate safety coordinator and is responsible for the Maple Avenue facility. He participated in the subject inspection, and identified Exhibit R-9 as a video he made of the lathe's operation, which he described. The lathe is automatic and used to make face cuts across metal pieces. The operator fastens the metal in place with the chuck jaws, with the machine off. He then turns a lever under the cutting tool which causes the cutting head to move automatically across the material and sake the face cut. After engaging the lathe, the operator stands 3.5 to four feet away; he disengages it with the same lover after the cut is made. Foreman said the operator is not required to be close to the revolving chuck unit, and did not believe accidental contact could occur. He also said the jaws are normally flush with the unit during operation. If contact were to occur, the unit would push the employee away or bump or "rattle" his fingers, which could cause bruising but not a serious injury. (Tr. 340-41; 347-51; 366; 371-72).

The subject standard, set out supra, requires guarding on machines whose rotating parts represent a hazard. Although the CO did not see the lathe in operation, his opinion was that it could injure the operator when it was run with the jaws extending beyond the chuck unit. Foreman's testimony was that the jaws are normally flush with the unit when it rotates, and that the worst injury contact with the unit could cause under these circumstances would be bruising. However, Foreman's testimony indicates the lathe is sometimes run with the jaws extended, which, as the CO testified, could cause serious injury. Foreman's opinion was that accidental contact would not occur. Regardless, it in not difficult to conceive of situations in which the operator, while standing next to the lathe to turn it on or off, might become distracted and contact the extended, rotating jaws and sustain a serious injury. Such injury could be easily prevented by guarding the lathe. This citation item is therefore affirmed as a serious violation.

Item 6(d) - 29 C.F.R. 1910.212(a)(1)

William Burke observed an employee operating an unguarded turret lathe in the machine shop. He identified Exhibit C-13 as a photo he took of the lathe, and C-14 as another turret lathe in the same area that was properly guarded. He described the lathe as an eight-inch-thick table with a 42-inch diameter that cuts holes in the center of cast iron parts as it rotates. Burke said the unguarded lathe was hazardous. If the operator got too close he could be struck by it, or his clothing could be caught in it, which could cause bruises, fractures or lacerations. (Tr. 62; 73-77).

Thomas Evans testified that at the time of the inspection, the turret lathe in C-13 had been operating at the plant for seven or eight weeks. He said the table has no parts extending beyond its edge, and if someone contacted it, it would just bump the person away. He noted the lathe had caused no injuries. (Tr. 276-77).

As noted above, the subject standard requires guarding on machines whose rotating parts represent a hazard. Respondent acknowledges the fact that another turret lathe was guarded demonstrates that guarding was, in fact, required on the cited lathe. It asserts, however, that because the possibility of serious injury was remote, the violation should be classified as nonserious. I disagree. Although Evans said there were no parts that extend beyond the table's edge, C-13 shows what appear to be notches around the top of the table which could presumably catch clothing, as the CO testified. Moreover, while Evans believed contact with the rotating table would not cause serious injury, the CO's opinion was that it could, and his opinion, as a safety specialist with many years of experience, is credited over that of Evans. This citation item is affirmed.

Turning to the assessment of a penalty, citation items 6(a) through (d), as noted above, have been grouped with a proposed total penalty of $600.00. Since violations have been found for all four items, the proposed penalty of $600.00 is assessed.

Items 7(a) -- 29 C.F.R. 1910.212(a)(3)(ii)

William Burke testified he saw an unguarded Whitney angle shear in No. 61. He identified Exhibit C-15 as a photo he took of it. He did not see it operate, but Eugene Moore told his it was used to cut eight by eight three-quarter angles. Burke said the shear could cause an amputation if an employee got his hand, arm or fingers into its point of operation. He noted a two-hand control would be an alternative to guarding. He said the unit did have buttons which had to be pushed to start the operating cycle, but that they were not an adequate control. They did not have to be pushed at the same time and could be released before the cycle was over, which would enable the operator to get his hands into the point of operation. (Tr. 78-82; 213).

Eugene Moore testified that he was familiar with the angle shear. It was working properly the day before the inspection, when he operated it himself, but did not work properly when he showed it to Burke. Moore had it checked by maintenance and learned it had malfunctioned because it had a bad switch. He said the shear moves very slowly, and that when it is functioning normally an operator could not accidentally got caught in it because of its two control buttons. The buttons are not shown in C-15, but are about two feet from the shear and 18 inches apart. The operator must keep both hands on the buttons for the unit to work, and if he removes either hand it will stop before he can got his hand in the point of operation. (Tr. 322-24; 338-39).

Neil Foreman testified that he has seen the angle shear in operation before and after the inspection, and that he was present when Burke saw it. He said it had not been modified since the inspection other than the control button repair. He made a video of the shear's operation, which he described. The unit is hydraulic and runs very slowly. The operator has to push both buttons to actuate the shear head, which stops immediately if either button is released. Foreman did not believe the shear's normal operation was hazardous or that an employee could get into the point of operation, either accidentally or deliberately, because of the control buttons. (Tr. 351-54; Exh. R-9).

The subject standard provides, in pertinent part, as follows:

The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be ... no designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

The record shows that the Whitney angle shear was not guarded. However, as the CO testified, a two-hand control which keeps the operator's hands out of the point of operation would also comply with the standard. Based on how the shear's tripping device functioned on the day of the inspection, it is understandable the CO believed it did not meet the standard requirements. However, both Moore and Foreman testified regarding the normal operation of the lathe and the tripping device. Their testimony demonstrates that if the device had been working properly it would have complied with the standard.

As has been previously noted, one of the necessary elements in establishing a violation is employer knowledge of the condition. The Secretary must show the employer know, or in the exercise of reasonable diligence could have known, of the violative condition. In this case, Moore testified he operated the shear the day before the inspection, when it was operating properly. He also testified the shear's malfunction was due to a bad switch, which, as Foreman indicated, was repaired. Based on the record, it is concluded the requisite knowledge of the violative condition has not boon shown. This citation item is accordingly vacated.

Item 7(b) - 1910.212(a)(3)(ii)

William Burke testified he observed a cold form roll ban line in No. 61. He did not see it operate, but Eugene Moore told his it was a new unit used to form metal plate into rail car sides. Burke thought the line was approximately 50 feet long, with about 10 feet between its four roller assemblies. He identified Exhibit C-16 as a photo he took showing metal in one of the assemblies. The metal would feed continuously through the rollers and be cut off at the end of the unit, where there was a shear. The rollers and shear were unguarded and Moore told him the operator walked up and down the line as it operated. Burke said the line was hazardous to the operator; the shear could cause an amputation, and the rollers could cause a crushing injury or catch his clothing and pull him into the machine. Burke noted there was an operator station eight feet from the nearest roller. He said there would be no hazard to the operator if he stayed behind the station when the unit was running. (Tr. 83-88; 213-14).

Eugene Moore testified that the operator's station is eight to ten feet from the line, and that the operator stands behind it when the line operates. When Burke asked if the operator walked by the line, Moore replied that he did, but not when it was running. Moore said the operator needs to be at the station when the line is running so he can shut it down if a problem develops, and that no one besides the operator has a reason to be in the area. He noted the rollers turn very slowly. He did not believe anyone could be caught in then unless the act was deliberate. (Tr. 325-26).

The subject standard, set out supra, requires guarding on machines whose operation exposes an employee to injury. The record demonstrates that the shear and rollers an the cold form roll ban line were unguarded, and that the line was cited because the CO believed the operator walked along it as it operated. Moore, however, testified the operator stayed behind the station when the line operated. I observed the demeanor of both witnesses, and have no reason to disbelieve the testimony of either. Based on the record, it would appear the CO misunderstood what Moore said, and that the operator does, in fact, stand behind the station while the line is running. The CO acknowledged there would be no hazard to the operator if this were the case, and there was no evidence other employees were exposed to the unguarded line. This citation item is vacated.

Item 8 - 29 C.F.R. 1910.221(a)(4)

William Burke saw an unguarded parts tumbler outside the plate shop building of No. 74. He described it as a large revolving barrel or drum on rollers that was electronically operated. It was near a walkway, and behind it was a saw and a stack of cut lumber three to four feet away. Burke identified Exhibits C-17 through C-20 as photos he took of the tumbler. He said it was hazardous because the operator or employees sawing lumber could get hands or other body parts caught in the rollers and be injured; the operator could also be struck if the door in C-17 and C-19 were to open. Burke did not see the tumbler operate or know how fast it turned, but Thomas Evans told him it was used about twice a week to remove burrs from parts and assemblies and that employees used the stand shown in C-19 to put parts in it. Evans also told his the operator turned the tumbler on at its control buttons, left, and then returned to turn it off. Burke noted the control buttons are shown in C-18. (Tr. 90-95; 173-75; 230).
Thomas Evans testified that the operator puts parts in the tumbler, goes to a station five feet away to turn on the start button, and then leaves it running for 15 to 20 minutes while he works inside the building. He said the tumbler rotates very slowly, about four RPM's, and that no one is exposed to its nip points. He stated there is no walkway around the tumbler and that no one works there when it is operating, but that employees occasionally saw wood in the area shown in C-20. That area is twelve or thirteen feet from the tumbler, and employees access it from the opposite direction. (Tr. 277-78).

Neil Foreman testified that he is familiar with the parts tumbler and has soon it operate. He did not believe the nip points between the barrel and the rollers present a hazard because the barrel rotates very slowly, about four RPM's. (Tr. 354-55).

The subject standard provides as follows:

Barrels, containers, and drums. Revolving drum's, barrels, and containers shall be guarded by an enclosure which is interlocked with the drive mechanism, so that the barrel, drum, or container cannot revolve unless the guard enclosure is in place.

The record clearly shows the parts tumbler was not guarded. However, as noted previously, there must be evidence of employee exposure to the condition to establish a violation. The CO believed the operator could be caught in the tumbler's rollers or struck by its door. However, he did not see the tumbler operate, and Evans' testimony demonstrates that the only occasions the operator is in the area of the machine when it in running is when he turns it on and off from a control button five foot away. After turning the tumbler on, the operator leaves the area and works inside the building. Based on the record, the operator is not exposed to the hazards described by the CO.

The same conclusion is reached in regard to the employees who saw lumber behind the tumbler. Evans testified the area is twelve to thirteen feet from the tumbler and accessed from the opposite side. Although the CO said there was wood stacked three to four feet from the tumbler, C-20 demonstrates the stack is considerably farther from the rollers themselves. C-19 and 20 show the wood-cutting area could be accessed from the direction of the tumbler; however, the rollers' location is such that it appears a deliberate act would be required to contact them. Even if contact were to occur, it would seen the machine's slow rotation would allow an employee to withdraw before any injury ensued. While guarding would prevent contact with the rollers, instructions to keep away from the tumbler when it is operating would also protect employees. Respondent presumably provides such instructions, based on Evans, testimony about the operator and how employees access the lumber-cutting area. In any case, Respondent was not cited for failure to instruct, and it is concluded that the facts of this case do not demonstrate a violation. This citation item is therefore vacated.

Items 9(a) and (b) - 29 C.F.R. 1910.217(c)(2)(i)(b) and (d)

William Burke testified he saw a Danly 200 mechanical power in operation in the plate shop. Its point of operation was guarded, but there was a 9 3/4-inch by 14 1/2-inch opening in the guard and the distance from the opening to the point of operation was approximately 24 inches. Burke said the maximum allowable opening width was 2 1/8 inches, and that the condition was hazardous because an employee could get his hand into the point of operation and sustain an amputation injury. He identified Exhibit C-21 as a photo he took of the press which showed the opening. (Tr. 96-98; 101-03; 215).

Burke further testified that another point of operation guard on the press was not fastened securely and had been left open. He identified Exhibit C-22 as a photo he took of the guard. He said it should have been fastened in place with nuts or screws or some other device so it could not be swung open. Burke said an employee could receive an amputation injury if he opened the guard and reached into the point of operation. He noted the operator did not work on that side and would not accidentally got into the point of operation from there. (Tr. 96; 98-101; 104-05; 214-15).

Thomas Evans testified that the Danly press has been in the facility since 1985; it runs all day and makes 200 to 250 stamps per hour, and has never caused any injuries. He said the guarding is always in place and closed when the press operates. He noted the guard on the front of the press, shown on the right side of C-21, has to be opened for the die to be changed, but that it is always closed when the press is operating. He did not believe an employee could accidentally got caught in the point of operation. (Tr. 278-79).

Neil Foreman also testified. He has seen the press operate several times, and the guarding has always been on and closed. He marked a red "X" an C-21 to show the machine's point of operation. He then discussed R-9, a video he made of the operating cycle. The operator supports the material, which is long bar stock, with both hands and feeds it into the side of the press. He could not accidentally get into the point of operation because it is 24 inches from the guard and he would have to insert his arm into the opening up to some point between his elbow and shoulder to do go. If he fell, the four-foot base of the machine would keep his tram getting into the operation. Foreman said C-22 shows the guard an the side away from where material foods in. He has never seen the press running with it open. (Tr. 355-58).

1910.217(c)(2)(i)(b) provides as follows:

Point of operation guards. Every point of operation guard shall meet the following design, construction, application, and adjustment requirements: It shall conform to the maximum permissible openings of Table 0-10.

The record clearly demonstrates that the opening in the Danly power press guard did not conform to the requirements got out in the standard in Table 0-10. Respondent urges the opening was not hazardous because it would require a deliberate act to get into the point of operation. I disagree. C-21 shown an operator feeding long bar stock into the opening with ore hand which appears to be about a foot from the opening. The operator's hand, as it feeds the stock, would necessarily approach the point of operation. Moreover, the size of the opening would enable the operator to insert his hand or even his arm into it as the press cycles, and Respondent presented no evidence that this does not occur.

Foreman did not believe the operator could got into the point of operation because of its 24-inch distance from the opening. Regardless, it seems entirely possible to this judge that the operator, with his hand or arm partially inserted into the opening, could fall or be accidentally shoved from behind, which could cause his fingers or hand to enter the point of operation and be amputated. It is concluded that the record demonstrates employee exposure to the hazards of the violative condition. This citation item is affirmed as a serious violation.

1910.217 (c) (2) (i) (d) provides as follows:

Point of operation guards. Every point of operation guard shall meet the following design, construction, application, and adjustment requirements: It shall utilize fasteners not readily removable by operator, so as to minimize the possibility of misuse or removal of essential parts.

The record shows the cited guard was not fastened as required by the standard. Respondent asserts the condition was not a hazard because an employee would have to deliberately open the guard with the press running to get into the point of operation. However, while Evans testified the press is always operated with the guard closed, it was not closed when the CO observed it and Evans did not state it had been opened to change the die. In any case, the fact remains that the guard was not fastened, and the operator or other employees could swing it open and got into the point of operation. It might be that doing so would require a deliberate act, as Respondent urges. Notwithstanding, the Commission has indicated that some standards, including the subject standard, may reasonably be interpreted to require employers to forestall deliberate misbehavior. See Ornet Corp., 81 OSAHRC 35/C3, 9 BNA OSHC 1828, 1831 n.3, 1981 CCH OSHD 25,322 (No. 76-4398, 1981). I conclude the facts of this case mandate such an interpretation, based on the seriousness of the hazard and the ease with which it could be prevented. Accordingly, this citation item is affirmed.

Turning to the assessment of a penalty, citation items 9(a) and (b) have been grouped, with a total proposed penalty of $700.00. Since violations have been found for both items, the proposed penalty of $700.00 is assessed.

Item 10 - 29 C.F.R. 1910.243(g)(1)

William Burke observed a hand-held abrasive grinding wheel that was unguarded. He did not see it used, but an employee told him it was used to grind out defects on welded metal, and Eugene Moore was present at the time. Burke identified Exhibit C-23 an a photo he took of the wheel. He said it was hazardous because it could fall apart during use and create shrapnel which could strike an employee and cause a puncture wound. Burke did not recall being told the wheel was used without a guard. He also did not recall that the guard for the wheel was in the area and was produced, but said it could have boon. He did remember there were a number of grinding wheels in the facility, and that he did not note any others that were unguarded. (Tr. 105-08; 216-17; 225-28).

Eugene Moore testified he was present when Burke saw the wheel. Moore called an employee over and asked his why it was unguarded. The employee told his he took it off to replace the wheel and then produced the guard, which was in the immediate area. Moore said the employee was disciplined for not putting the guard back on the wheel. He noted the facility has a rule requiring wheels to be guarded at all times; the rule is in the employee safety manual, and is discussed with now hires and at safety meetings. He also noted the facility enforces Trinity's corporate safety program through employee training and use of personal protective equipment, safety meetings, audits and inspections, incentive programs and disciplinary procedures for violations of safety rules. (Tr. 314-20; 326-28; 336-37; Exh. R-8).

The subject standard states, in pertinent part, as follows:

Portable abrasive wheels - General requirements. Abrasive wheels shall be used only on machine provided with safety guards.

It is undisputed the cited wheel was unguarded at the time of the inspection. However, Respondent asserts the condition was the result of unpreventable employee misconduct. To demonstrate this affirmative defense, Respondent must show that it both established and adequately communicated work rules designed to prevent the violation, and that it made efforts to detect violations and enforced the rules when violations were discovered. Jensen Constr. CO., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1479, 1979 CCH OSHD 23,664 (No. 76-1538, 1979).

Although there is no specific rule about abrasive wheel guarding, R-8 does advise employees that machinery guards should not be removed and that rotating parts on tools should be guarded. (Exh. R-8, pgs. 2, 4). Moore testified this rule was discussed with employees, and that the employee who removed the guard was disciplined. Moore also testified about the facility's procedures for training and disciplining employees and for detecting violations. Based on the record, it is concluded the unguarded wheel was the result of unpreventable employee misconduct, which is consistent with the fact the CO found no other unguarded wheel in the facility. This citation item in vacated.

Item 11 - 29 C.F.R. 1910.244(a)(1)(ii)


William Burke saw a Walker hand jack in the garage area. He identified Exhibit C-24 as a photo he took of the jack. Hilton Price, the maintenance foreman, told him it was used in the maintenance shop, and a mechanic told his it was used about once a month to change forklift tires. He and Price looked for the load capacity on the Jack and could not find it, and no one at the facility know its rating. Burke said the Jack was required to have the load capacity legibly and permanently marked on it to prevent overload and failure, which could cause a crashing injury. He know of several cases where equipment not known to be inadequate had failed after being used a number of years. He indicated that if the Jack had previously had a load capacity plate, had a rating sufficient to lift the forklifts, and was only used for that purpose, it would not be a hazard. (Tr. 109-11; 217-21).

Eugene Moore testified that the Jack shown in C-24 was located in the garage area shared by No. 61 and No. 74. He said it was only used for lifting forklifts, that it was used about once a month, and that it had had a load rating plate an it at one time. Although he could not remember the date, he recalled the jack had been sent out for repairs sometime prior to the inspection. His explanation for the plate's absence was that it must have been knocked off when the Jack was being repaired. (Tr. 328-34).

The subject standard provides as follows:

Jacks - Loading and marking. The rated load shall be legibly and permanently marked in a prominent location on the jack by casting, stamping, or other suitable means.

The purpose of the standard, as the CO testified, is to ensure that a jack's capacity is sufficient to sustain the loads it lifts. See also 1910.244 (a)(1)(i). Respondent does not deny a violation occurred, but asserts it should be classified as de minimis, based on the CO's testimony. I disagree. The CO's testimony that the jack would not be a hazard was clearly conditioned on its capacity being sufficient for the purpose for which it was used. Although the jack was used to lift forklifts, Respondent presented no evidence in regard to its capacity. As the CO noted,, equipment unrecognized as inadequate can fail after a number of years. In this case, such failure could cause serious injury. This citation item is affirmed as a serious violation,, and the Secretary's proposed penalty of $500.00 in assessed.

Item 12 - 29 C.F.R. 1910.303(b)(2)

William Burke testified that the cold drink machine and the snack machine in the vending area of the shop had straight-blade male plugs which were connected to twist-lock female receptacles. He said straight-blade plugs art not made to fit twist-lock receptacles, and, according to OSHA regulations and the National Electric Code, cannot be interchanged. Burke identified Exhibits C-25 and C-26 as photos he took. C-26 shows the receptacles, and C-25 shows one of the plugs with its blades twisted to make it fit in the receptacle. Before he disconnected the plug, it was hanging out of the receptacle with part of the blade exposed, which created an electrocution hazard if someone plugged or unplugged it. Burke recalled being told that Trinity did not own the machines or have anything to do with then, and that they had been installed and were maintained by a vending machine company. (Tr. 112-17; 182-83).

Thomas Evans and Eugene Moore were familiar with the vending machines, and testified that they were installed, owned and maintained by a company named Automated Food. They said all of the receptacles in the facility are the twist-lock type, and neither know if anyone advised Automated of this. Neither had any reason to believe the machines were installed incorrectly, and both said their employees used the machines but had nothing to do with plugging or unplugging them. (Tr. 252-53; 28b-87; 334-35; 336-39).

Neil Foreman testified that Trinity facilities conduct in-house safety inspections that include identifying and correcting electrical problems. The inspections are recorded on Exhibit R-20, which has an electrical portion, and facilities have maintenance personnel whose sole responsibility is to repair equipment. When Foreman conducts safety audits of Trinity facilities, one of the things he checks is to ensure that straight plugs are not used in twist-lock receptacles. He has audited the Maple Avenue facility more than once, which has several hundred receptacles; he said that if he saw a plug like the one in C-25, he would have it replaced. He stated he had never seen the cited plugs before the inspection and never considered checking then because the machines are owned and operated by a vending company and Trinity has nothing to do with them. He also stated the machines are in a small alcove off one of the production bays, and that the plugs are back in a darkened area between the machines. (Tr. 341; 345; 363; 366; 372-73; 375-76).

The subject standard provides as follows:

Installation and use. Listed or labeled equipment shall be used or installed in accordance with any instructions included in the listing or labeling.

The record shows the vending machine plugs did not comply with the standard. Respondent contends there can be no violation because it did not create the condition, or have any reason to know about the condition, which was not obvious. Commission precedent is well established that an employer in a multiemployer worksite who did not create or control the condition may defend against the citation on the ground that it did not know, and could not know in the exercise of reasonable diligence, about the condition. See 4G Plumbing & Heating, Inc., 78 OSAHRC 29/B8 6 BNA OSHC 1528, 1978 CCH OSHD 22,658 (No. 12892, 1978), and cases cited therein. However, it is clear from these decisions that the employer has the burden of showing the violation was outside its area of expertise. In this case, Respondent has not met its burden, since the record demonstrates that detecting and correcting electrical problems is a routine part of its maintenance procedures.

Alternatively, Respondent contends there was no violation because there was no evidence of employee exposure. The record does indicate that Respondent's employees, in the course of their regular duties would have no reason to contact the cited plugs. However, since the machines are at the worksite, it is reasonably foreseeable that Respondent's employees could contact the plugs, if for example, one of the machines developed a short and required unplugging, or if the plug hanging out of the socket fell out and needed to be replugged. Since the consequences of such contact could be serious or fatal, this citation item is affirmed, and the secretary's proposed penalty of $800.00 is assessed.

Item 13 - 29 C.F.R. 1910.304(f)(4)

William Burke saw three instances in which the path to ground from surface equipment enclosures was not continuous. One of the items was a metal light fixture lose than eight feet from the floor located between metal racks in the No. 74 warehouse on the second floor It was plugged into an extension cord that had its ground prong missing, which caused it to be ungrounded. Burke identified Exhibit C-27 as a photo he took of the fixture. He said it could cause an electrocution if it was defective and someone contacted it and the racks. The other two items were the plugs to the cold drink and snack vending machines, which had had their ground prongs removed. Burke noted Exhibit C-25 showed the condition, and said employees could be electrocuted when using the ungrounded machines, which were on concrete, in the event of a short circuit. (Tr. 117-21; 187-88).

Thomas Evans and Eugene Moore both testified that there is a facility rule about cutting ground prongs off of plugs. Evans said employees are told not to do so, and that the facility did not have a problem with it. Moore said the rule is to not tamper with grounding devices at all, and that employees are subject to discipline or dismissal for doing so. Both stated that Trinity's employee safety manual is discussed with employees when they are hired. (Tr. 241; 253-54; 335-36; Exh. R-8).

The subject standard provides as follows:

Grounding path. The path to ground from circuits, equipment and enclosures shall be permanent and continuous.
The record demonstrates that the vending machines, which were also the subject of the previous citation item, did not comply with the standard. Respondent's assertion that it did not create or know about the condition was dismissed supra and need not be addressed again. It is found, therefore, that Respondent was in violation of the standard in regard to the vending machines.

In regard to the light fixture, which also did not comply with the standard, Respondent asserts the condition was the result of unpreventable employee misconduct. To establish this affirmative defense, Respondent must prove it both established and adequately communicated work rules which would prevent the violation, and that it made efforts to detect violations and enforced the rules when violations were discovered. Jensen, supra.

The record shows the facility does, in fact, have a rule which prohibits the use of cords without proper grounding devices. See Exh. R-8 pg. 15. The record also shows that facility inspections are to include checking equipment for proper grounding. See Exh. R-2, items 25 and 28. However, the fact that there were three instances of ungrounded equipment indicates that Respondent's rules and procedures regarding grounding were not as effective as they should have been, and it is found that unpreventable employee misconduct has not been demonstrated. Accordingly, this citation item is affirmed an a serious violation, and the Secretary's proposed penalty of $800.00 is assessed.

Item 14 - 29 C.F.R. 1910.305(b)(2)

William Burke testified he saw a duplex receptacle outside of the No. 74 warehouse. It did not have a face plate cover, and he learned the plug in it was connected and disconnected daily. Burke said Exhibit R-10 appeared to be a photo of the receptacle, and explained that the purpose of a cover is to protect against contact with exposed electrical parts. He said that although R-10 did not depict the condition, there was about a quarter-inch opening around the edge of the box that exposed the receptacle's terminal screw, which have live parts. He stated this was hazardous; an employee plugging something into the receptacle could get a finger tip into the opening or could hit the screws with the plug and receive a shock. Burke noted he observed a number of receptacles in the facility during his inspection, and that this was the only one he saw without a cover. (Tr. 122; 189-90; 377-81).

Neil Foreman identified Exhibit R-10 an a photo he took of the receptacle, and said it accurately reflected the receptacle's condition at the time of the inspection. He said the receptacle box had no exposed electrical parts other than the two places where connection is made. He also said if he saw a receptacle like the one in R-10 he would put a cover on it, not necessarily because it was hazardous, but because that is the appropriate practice. He noted this was one of the purposes of Trinity's in-house audits, and that Trinity had maintenance people whose sole responsibility was to repair equipment. (Tr. 360-62).

The subject standard provides, in pertinent part, as follows:

Covers and canopies. In completed installations each outlet box shall have a cover, faceplate, or fixture canopy.
It is undisputed the cited receptacle did not have a cover as required by the standard. Respondent contends, the condition was not hazardous because, according to Foreman's testimony, there were no exposed live parts. However, the CO testified that the terminal screws were exposed, and his opinion was that employees using the receptacle could receive an electrical shock. The CO's electrical experience has been noted supra. Based an that experience, his opinion is credited over that of Foreman, and it is found that the uncovered receptacle represented a hazard.
Respondent also contends it had no knowledge of the condition, based on the evidence of Trinity's safety inspections, and the fact the CO saw no other receptacles in the facility without covers. As has already been noted, knowledge may be demonstrated by showing the employer could have discovered the condition in the exercise at reasonable diligence. In this case, the condition was apparently open and obvious, since employees used the receptacle daily to connect and disconnect the plug. It is logical to conclude, therefore, that Respondent could have known about the condition had it exercised reasonable diligence. This citation item is affirmed as a serious violation, and the Secretary's proposed penalty of $700.00 is assessed.

Item 15 - 22 C.F.R. 1910.305(g)(2)(iii)

William Burke observed a pigtail adapter connected to a cooler containing juice in the mill bolster area. The adapter had tape on it, which was loose and not fastened in any way, and its cord hung down from the receptacle into which it was plugged. Burke identified Exhibits C-28, 29 and 30 as photos he took of the cord. He said a flexible cord's normal configuration would be almost a 90-degree angle out of the plug, rather than hanging down. He did not remove the tape, but inspected the cord and tested it with him hand. He said the metal plug was not clasped to the insulation, and that this caused the conducting wires in the cord to put tension an the receptacles terminal screws. He noted the photographs did not depict the tension on the screws, but that C-30 showed the individual conductors hanging loose from the back of the plug. He said the condition was hazardous because the tension could cause the conductors to break or come loose, which could transfer voltage to the metal plug and cause a shock or electrocution. (Tr. 123-27; 190-91).

Neil Foreman testified that he removed the tape and inspected the cord in his office after the inspection. He said that while there was insulation damage to the top of the cord, the bottom of the cord was still attached to the plug. He said this could not have been seen without removing the tape. He stated that it he came across a plug like the one in C-28 during one of his periodic audits, he would have it repaired. (Tr. 362; 373).

The subject standard provides as follows:

Flexible cords shall be connected to devices and fittings so that strain relief in provided which will prevent pull from being directly transmitted to joints or terminal screws.

Respondent asserts Foreman's testimony about his inspection of the cord demonstrates there was no violation of the standard. I do not agree. Although Foreman's testimony indicates the insulation on the cord was not completely severed from the plug, he admitted it was damaged and that he would have repaired the cord had he discovered it. Moreover, the fact the insulation was not completely severed does not establish a violation did not occur. Although the CO apparently believed the plug was not attached to the insulation, his testimony about the cord's condition was sufficient to convince the undersigned that it more likely than not caused tension to be transmitted to the terminal screws in violation of the standard. The CO's testimony about the hazards of the condition was equally convincing, and Respondent, based an Foreman's testimony, apparently does not deny those hazards. This citation item is accordingly affirmed as a serious violation, and the Secretary's proposed penalty of $700.00 is assessed.

Item 16 - 29 C.F.R. 1902.305(j)(l)(i)

William Burke testified that the receptacle depicted in Exhibits C-28 and 30 had a bent and broken face plate. He said C-28 showed the bent condition, which created a one-quarter to one-half-inch opening in the box, and that the terminal screws, while not shown in C-28, were close to the receptacle's front. He also said that one of the blade entrances to the receptacle was right behind the broken corner of the face plate as shown in C-30. Burke stated the face plate was hazardous because of the exposed live parts; an employee contacting the box could touch the terminal screws and be electrocuted. (Tr. 127-29).

Neil Foreman testified that when he inspected the receptacle box to do, determine if there were any exposed live parts, he saw none. He did not consider the condition to be a realistic hazard to employees, but said if he had discovered it, he would have had it repaired. He believed the condition would have been detected and corrected during the next plant inspection. (Tr. 362-64; 373).

The subject standard provides, in pertinent part, as follows:

Lighting fixtures, lampholders, lamps and receptacles.

Fixtures, lampholders, lamps rosettes, and receptacles may have no live parts normally exposed to employee contact.
Respondent contends there was no violation of the standard, based on Foreman's testimony that he saw no exposed parts and did not consider the condition a "realistic hazard." Foreman's opinion about the condition is contradicted by his admission that he would have had it repaired had he discovered it. It is also contradicted by the CO's testimony, which was that the terminal screws were exposed and that employees contacting the box could touch then and be electrocuted. The CO's electrical experience has been noted supra. Based on that experience, more weight in given to his testimony and opinion, and it is found that the cited condition presented a serious hazard to employees.
Respondent further contends that it had no knowledge of the condition. However the record shows the cited receptacle was in plain view in an area that, due to the presence of a drink cooler, was apparently frequented by employees. Because the condition was open and obvious, it should have been discovered in the exercise of reasonable diligence. This citation item is therefore affirmed an a serious violation, and the Secretary's proposed penalty of $700.00 is assessed.

Item 17 - 29 C.F.R. 1910.1200(h)(1)

William Burke saw an employee, Charles Montgomery, using a coolant in the machine shop. After talking to Montgomery, Burke determined he had not been trained about the coolant's hazards. Thomas Evans was there and said the machine shop was Montgomery's normal work area, but did not indicate whether his statements were accurate. Burke did not ascertain the hazards of the coolant; he did not receive the material safety data sheet ("MSDS") for it, even though he requested it, and he did not take a sample of the coolant for testing. Burke said he had seen the facility's Haz-Com program at the opening conference, and that he had soon one of the facility's MSDS books. He also said he had interviewed several other employees, who indicated they had received Haz-Com training.
(Tr. 129-33; 191-94; 198).

Thomas Evans testified that the corporate safety department provides a written Haz-Com program which is part of the facility's employee safety training. Although it is an annual requirement, the facility gives Haz-Com and MSDS training more often than once a year. Haz-Com is also discussed with now employees, and they are told about the facility's four MSDS books. (Tr. 240-43).

Evans further testified he was present when Burke talked to Montgomery, and that he tried to remind his he had had Haz-Com training. Evans identified Exhibit R-3 as the report of a plant wide meeting he conducted in April, 1989, when a video about Haz-Com and MSDS was shown. He noted Montgomery was at the meeting, and put a check by his name on the list of attendees. Evans said Montgomery would also have received specific instructions about any hazardous substances in his area, and that he confirmed Montgomery had had that training. He said Burke talked to other employees who indicated they had had Haz-Com training. (Tr. 254-57; 284-85).

Neil Foreman testified that Trinity's corporate safety department provides written materials to help its facilities implement specific programs like Haz-Com. The programs are updated as needed, and updates are sent to the facilities. Each plant is required to conduct yearly Haz-Com training, and is monitored to ensure the training takes place. Foreman has seen the Haz-Com video Evans discussed. It is a 3M Corporation video which addresses the hazard communication standard, MSDS, flash points and chemical handling. (Tr. 341-44; 366-68).

The subject standard provides, in pertinent part, as follows: Employee information and training. Employers shall provide employees with information and training 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.

The citation was issued because the CO believed Charles Montgomery had not been instructed about the hazards of the coolant. The record shows Respondent's facility provides Haz-Com and MSDS training, and that Montgomery attended a safety meeting that addressed those topics less than a month before the inspection. There was no evidence regarding the hazards of the coolant, or that Montgomery received specific instructions about the coolant. However, Evans' testimony indicated Montgomery was trained about all of the hazardous substances in his work area. Therefore, assuming arguendo that Respondent was required to provide training about the coolant, it would appear Montgomery did, in fact, receive the training, and that he either did not recall it or misunderstood the CO. It is concluded the record does not establish a violation. This citation item is vacated.

Penalty Determination

Penalties have been assessed for a number of serious violations, supra. In assessing the penalties, due consideration has been given to the size of Respondent's business and the gravity of the violations, as well as to Respondent's good faith and its history of previous violations.

"Other" Citation Number 2
Item 1 - 29 C.F.R. 1910.157(c)(4)

William Burke testified he observed an ABC fire extinguisher on the north wall, column K-32, of the sill bolster bay. Its tag showed it had last been inspected on April 4, 1989, and its gauge needle was in the recharge position. He identified Exhibit C-31 as a photo he took of the extinguisher. He said the condition was a hazard. Although the plant had a number of extinguishers and there may have been one on a nearby column, welders who worked in the area indicated the extinguisher was one that would be used if a fire started. Burke said the fact the pin was in the extinguisher was an indication it had probably leaked, and noted the extinguisher was immediately replaced. (Tr. 134-37; 162-64).

Thomas Evans testified that he was there when Burke saw the extinguisher, and that he did not know about its condition. He noted the facility's extinguishers are inspected monthly, and said the fact the pin's clip was not broken indicated the extinguisher had not been used and had leaked. (Tr. 279-80).
Neil Foreman, identified Exhibit R-11 as a photo he took of the extinguisher. He noted it showed that the seal around the pin was intact; if the extinguisher had been used the seal would have been broken. He said the condition indicated what he called a "leaker," which can occur when seals age, and that this was the reason Trinity inspected its extinguishers monthly. (Tr. 364-65).

The subject standard provides, in pertinent part, as follows:

The employer shall assure that portable fire extinguishers are maintained in a fully charged and operable condition.
It is undisputed the cited extinguisher was not fully charged. However, as noted supra, to establish a violation it must be shown the employer knew or could have known in the exercise of reasonable diligence that the condition existed. It is concluded the facts of this case do not demonstrate the requisite knowledge. Although the extinguisher was apparently in plain view, Evans said he did not know about it, and that he would not is supported by the fact it had not been used. Moreover, the evidence regarding monthly inspections, along with the fact the cited extinguisher had been inspected approximately a month earlier, supports a finding that Respondent exercised reasonable diligence in attempting to ensure its extinguishers remained fully charged. This conclusion is not inconsistent with the extinguisher condition, since the record suggests it was caused by leakage. This citation item is vacated.

Item 2 - 29 C.F.R. 1910.179(b)(5)

William Burke saw a P&H overhead bridge-type floor-operated crane in the warehouse of No. 74. The block was marked to show its load capacity, but the unit itself was not. Burke said this was hazardous. The block's capacity say have been different from that of the unit, as blocks are sometimes changed or replaced, and the crane could be overloaded and fail, resulting in a load falling on an employee. Burke did not see the crane used, but an employee told his he had used it to move shelves in the warehouse four to five months earlier, and Thomas Evans did not indicate it was not used. Burke said probable injuries would be bruises rather than fractures, as he did not know the shelves' weight or see any overly heavy items in the area. (Tr. 137-41; 159-62).

Burke identified Exhibit C-12 as a photo he took of the crane. He said the blue motorized hoisting mechanism ran along the gray beam, or bridge, on which it was mounted. He stated the beam would have to move for the unit to be an overhead crane, and noted this could not be determined from C-32. He thought the beam moved, as he recalled it being 10 to 15 feet away from the shelving that had been moved. After reviewing his notes, he said he did not know why he would have written it down as a bridge crane if it did not move as one unit. (Tr. 138; 222-24).

Thomas Evans testified that the crane shown in C-32 in not used, and that the warehouse worker has no reason to use it in his normal duties. (Tr. 281).

The subject standard, which pertains to overhead and gantry cranes, provides, in pertinent part, as follows:

Rated load marking. The rated load of the crane shall be plainly marked on each side of the crane.

Respondent does not dispute the rated load was not marked on the sides of the cited unit. It asserts, rather, that the standard does not apply because the evidence does not establish the unit is an overhead crane. The applicable definition appears at 1910.179(a)(8), and states as follows:

"Overhead crane" means a crane with a savable bridge carrying a movable or fixed hoisting mechanism and traveling on an overhead fixed runway structure.

Careful consideration has been given to the CO's testimony in regard to the cited crane's characteristics, and to C-32. It is concluded that this evidence, which was not refuted by Respondent, is sufficient to find that the crane's beam, or bridge, is movable and that the unit meets the above definition. Parenthetically, I note that Exhibit C-8 shows a similar hoisting device which was also cited as an overhead crane.

Respondent next asserts the citation is time barred because more than six months expired between the time the alleged improper use occurred and the date the citation was issued. Section 9(c) of the Act does, in fact, state that "[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation." However, Commission precedent is well settled that the limitation period does not begin to run until OSHA discovers, or reasonably should have discovered, a violation. Kaspar Wire Works, Inc., 87 OSAHRC 24/C5, 13 BNA OSHC 1261, 1987 CCH OSHD 27,882 (No. 85-1060, 1987); Sun Ship, Inc., 85 OSAHRC 3/B4, 12 BNA OSHC 1185, 1985 CCH OSHD 27,175 (No. 80-3192, 1985); Yelvington Welding Serv. 78 OSAHRC 84/E11, 6 BNA OSHC 2013, 1978 CCH OSHD 23,092 (No. 15958, 1978).

In this case, the CO discovered the condition on May 15, 1989 (Tr. 138), and the citation was issued November 6, 1989. OSHA could not have discovered the condition any earlier than it did because Respondent would not allow the inspection until ordered to do so. See in re Trinity Indus., Inc., 898 F.2d 1049 (5th Cir. 1990). Accordingly, the citation is not time barred.

Finally, Respondent asserts there was no violation because there was no evidence the crane was available for use. However, even though the crane may not have been used at the tine of the inspection, the record shows it was used four to five months earlier, and Respondent did not refute this activity. This citation item is affirmed as a nonserious violation. No penalty was proposed, and none is assessed.

Item 3 - 29 C.F.R. 1910.184(i)(9)(iii)

William Burke saw a synthetic web sling with tears and cuts in the robot assembly area of No. 74. Thomas Evans was surprised when he saw it. He indicated they had moved into the area a short time before, and that he did not know where the sling had come from. Burke identified Exhibit C-33 as a photo he took of the sling. It was in a rack with chains and other lifting devices in an area where he saw employees working and 55-gallon drums with metal parts in them. Burke believed the sling could have been used to lift the drums, although he did not see it used and no one indicated it had been. He said the sling was hazardous; if used, it could tear and cause bruises or a crushing injury. (Tr. 141-44; 158-59).

Thomas Evans testified the sling was in an area that had only recently been used for fabrication. It had been a storage area for about a year, and when it was cleaned out the sling must have been missed. He did not know how the sling got there, or that it was there before the inspection. He said there was no use for the sling in that particular fabrication area. (Tr. 281-82).

The subject standard provides as follows:

Removal from service. Synthetic web slings shall be immediately removed from service if any of the following conditions are present: Snags, punctures, tears or cuts.

The record demonstrates the presence or a directive sling in an employee work area. Although there was no evidence it was used, the fact it was in a work area and located in a rack with other lifting devices indicates it was available for use. Even if employees in the immediate vicinity had no use for the sling, as Evans testified, employees from adjacent areas could conceivably use it. Evans also testified he did not know about the sling. However, I conclude Respondent should have known about it in the exercise of reasonable diligence. The sling was apparently in plain view. Moreover, it was in an area that had recently been cleaned out for employee use, which should have been inspected for unsafe conditions. This citation item is affirmed. No penalty was proposed, and none is assessed.

Item 4 - 29 C.F.R. 1910.215(d)(1)

William Burke observed a six to seven-inch abrasive wheel on a cutter-grinder unit in the tool room of No. 74. He asked Thomas Evans who used it, and Evans presented Wayne Mitchell did not know what a ring test was, but said, after Burke gave his a demonstration, he had not ring tested the wheel. He said he looked at the wheels before he installed then. Burke stated the failure to ring test for cracks is hazardous. Wheels can be cracked in shipment and the unit's centrifugal force can cause then to fall apart and turn into shrapnel, which can result in puncture wounds. He said the violation was classified as non-serious because there were guards on the unit which would catch most or any flying parts. He also said most cracks on the wheels would not be visible, and that a magnifying glass would not detect internal cracks. (Tr. 145-47; 156-58).

Thomas Evans testified that the facility's toolroom attendant inspects grinding wheels with a jeweler's magnifying glass to ensure they have no cracks. In talking to the attendant, he learned that in the past six years the glass had detected three defective wheels, which were not used. Evans said in the nine years he had been at the facility, to his knowledge there had not boon a defect the attendant had not caught or a wheel that had flown apart. (Tr. 282-83).

The subject standard pertains to abrasive wheel machinery and provides, in pertinent part, as follows:

Mounting - Inspection. Immediately before mounting, all wheels shall be closely inspected and sounded by the user (ring test) to make sure they have not been damaged in transit, storage, or otherwise .... Wheels should be tapped gently with a light nonmetallic implement, such an the handle of a screwdriver for light wheels, or a wooden mallet for heavier wheels. If they sound cracked (dead), they shall not be used. This is known as the "Ring Test".

The standard requires a ring test to be performed on abrasive wheels before they are used. The record establishes that Trinity's employee did not ring test the wheels he installed, and Respondent presented no evidence it required employees to do so. It asserts, however, that because its inspections provide as much protection as technical compliance with the standard, the violation should be classified as de minimis. I disagree. Evans' testimony does not constitute an expert opinion and it furnishes no scientific basis for concluding that a magnifying glass inspection provides as much protection as a ring test, which, pursuant to the standard, is mandatory. This citation item is affirmed. No penalty was proposed for this item, and none is assessed.

Item 5 - 29 C.F.R. 1910. 304(a)(1)

William Burke saw white wires utilized an grounding Conductors on two disconnect switches which were used for welding equipment. He identified Exhibits C-34 and C-35 as photos he took of the switches, which wore in the same general area; C-34 was in the Bay 6 manway area and C-35 was in the detail shop area. Burke did not know if the wires were necessary, since the welding equipment was separately grounded, but said the standard requires conductors to be identifiable and distinguishable. Based on his OSHA and electrical training, this means grounding conductors are to be green or bare and grounded conductors are to be white. Burke had no trouble identifying the conductors as neutral, but said using incorrect color coding can be hazardous. If the wrong color of wires are used and someone unaware of the situation uses the equipment or performs rewiring work, the person could be exposed to an energized conductor and receive a shock. (Tr. 147-56).

Neil Foreman testified he was present when Burke saw the conductors. Foreman said it was apparent they wore grounding wires and that he immediately recognized then as such. He also said they were identifiable and distinguishable from other conductors. He referred to then as "machine grounds," and noted that one and of the wire was attached to the machine casing and the other and ran over to a shop column. He stated the wires were secondary grounds which were not even required for the equipment, since they had a grounding wire running to the power cable itself. (Tr. 368-69).

The subject standard provides as follows:

Identification of conductors. A conductor used as a grounded conductor shall be identifiable and distinguishable from all other conductors. A conductor used as an equipment grounding conductor shall be identifiable and distinguishable from all other conductors.

It is clear that both Foreman and the CO, identified the cited wires as grounding conductors. However, the CO interpreted the standard to require color coding to ensure that conductors will be identifiable and distinguishable. He based his interpretation on his OSHA and electrical experience which is set out supra. I conclude the CO's interpretation is reasonable and consistent with the language of the standard, and, having so concluded, deference must be given to it. Martin v. OSHRC, supra.

The record demonstrates the cited wires did not comply with the color coding described by the CO. A violation is therefore established. However, the record also demonstrates that because the welding equipment was separately grounded, the wires were not necessary for the equipment. Moreover, as grounding wires, they were neutral and did not represent a hazard. Accordingly, the violation is classified as de minimis.

Conclusion of Law

1. Respondent, Trinity Industries, Inc., is engaged in a business affecting commerce and has employees within the meaning of Sec. 3(5) of the Act. The Commission has jurisdiction of the parties and of the subject matter of the proceeding.

2. Respondent was in serious violation of 29 C.F.R. 1910.212(a)(1), 1910.217(c)(2)(i)(b), 1910.217(c)(2)(i)(d), 1910.244 (a)(1)(ii), 1910.303(b)(2), 1910.304(f) (4), 1910.305(b) 1910.305(g)(2)(iii) and 1910.305(j)(1)(i).

3. Respondent was in nonserious violation of 29 C.F.R. 1910.179(b)(5), 1910.184(i)(9)(iii) and 1910.215(d)(1).

4. Respondent was in de minimis violation of 29 C.F.R. 1910.304(a)(1).

5. Respondent was not in violation of 29 C.F.R. 1910.38(a)(1), 1910.157(c)(4), 1910.179(e)(3)(ii), 1910.179(e)(4), 1910.179(k)(1)(ii), 1910.179(n)(2)(ii), 1910.212(a)(3)(ii), 1910.212(a)(4), 1910.243(c)(1) and 1910.1200(h)(1).

Order

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Items 1, 2, 3, 4, 5, 7, 8, 10 and 17 of serious citation number 1 are VACATED.

2. Items 6(a) through (d) of serious citation number 1 are AFFIRMED, and a total penalty of $600.00 is assessed.

3. Items 9(a) and (b) of serious citation number 1 are AFFIRMED, and a total penalty of $700.00 is assessed.

4. Item 11 of serious citation number 1 is AFFIRMED, and a penalty of $500.00 is assessed.

5. Item 12 of serious citation number 1 is AFFIRMED, and a penalty of $800.00 is assessed.

6. Items 13(a) through (c) of serious citation number 1 are AFFIRMED, and a total penalty of $800.00 is assessed.

7. Item 14 of serious citation number 1 is AFFIRMED, and a penalty of $700.00 is assessed.

8. Item 15 of serious citation number 1 is AFFIRMED, and a penalty of $700.00 is assessed.

9. Item 16 of serious citation number 1 in AFFIRMED, and a penalty of $700.00 is assessed.

10. Item 1 of "other" citation number 2 is VACATED.

11. Items 2, 3 and 4 of "other" citation number 2 are AFFIRMED, and no penalties are assessed.

12. Item 5 of "other" citation number 2 is AFFIRMED as de minimis, and no penalty is assessed.

Louis G. LaVecchia

Administrative Law Judge

DATE: May 17, 1991

FOOTNOTES:

[[1]] Citation item 6(a) through (d).have been grouped, with a total proposed penalty of $600.00. The penalty assessment for these items is therefore addressed in the 6(d) discussion, infra.