HUGHES TOOL COMPANY
OSHRC Docket No. 15086
Occupational Safety and Health Review Commission
February 2, 1978
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth Reg. Sol., USDOL
Clinton S. Morse, for the employer
Mr. W. W. Woods, Chairman, USWA 1742, Safety and Health Committee, for the employees
Mr. H. B. Darby, Pres., United Steelwkrs. of America 1742, for the employees
Mr. Jack Golden, Staff Rep., United Steelwkrs. of America, for the employees
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
A decision of Administrative Law Judge J. Paul Brenton is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as "the Act"]. In that decision the Judge, among other things, n1 vacated items 22 and 25 of a citation for nonserious violations of section 5(a)(2) of the Act, issued to respondent, Hughes Tool Company, that alleged noncompliance with the standards at 29 CFR § 1910.141(d)(2)(iv) n2 and 29 CFR § 1910.176(a), n3 respectively.
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n1 The Judge also disposed of numerous other items. None of the parties have taken exception to the Judge's action on these items and, accordingly, they are not before us on review.
n2 § 1910.141 Sanitation.
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(d) Washing facilities.
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(2) Lavatories.
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(iv) Individual hand towels or sections thereof, of cloth or paper, warm air blowers or clean individual sections of continuous cloth toweling, convenient to the lavatories, shall be provided.
n3 § 1910.176 Handling materials-general.
(a) Use of mechanical equipment.
Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that would create a hazard. Permanent aisles and passageways shall be appropriately marked.
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Following the issuance of the Judge's decision, a petition for discretionary review was filed by the Secretary of Labor. The petition, which I granted, n4 raised the following issues:
(1) Whether the Administrative Law Judge erred in concluding that the individual hand towels issued by respondent satisfy the requirements of the standard at 29 CFR § 1910.141(d)(2)(iv)?
(2) Whether the Administrative Law Judge erred in concluding that the configuration of respondent's machinery satisfies the aisle marking requirement of the standard at 29 CFR § 1910.176(a)?
(3) Whether the Administrative Law Judge erred in concluding that "knowledge" is an element to be proven by the Secretary of Labor in order to establish a "non-serious" violation of the Act?
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n4 A direction for review was also issued by former Commissioner Moran that did not specify any issues.
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The Commission members are divided on whether the Judge erred in his disposition. In [*3] order to fulfill the statutory purpose of expeditious adjudication, however, and in light of the absence of a third member since April 28, 1977, the members agree to resolve their impasse by affirming the Judge's order. Because of this disposition, the Judge's decision is accorded only the precedential value of an unreviewed Judge's decision. See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD para. 22,313 (No. 14910, 1977).
I. Item 22 - § 1910.141(d)(2)(iv)
During a safety inspection of respondent's facility in Houston, Texas, the OSHA compliance officer observed that certain lavatories were not provided with individual hand towels of paper or cloth, warm air blowers, or continuous cloth toweling. Respondent did, however, provide its employees with two cloth towels, called "kex" rags, at the beginning of each shift. Respondent's production manager, John Belton, testified that one of the towels is provided for the personal use of the employees, while the other is for use in cleaning their machines. Belton further testified that the employees are not limited to these two towels, but may receive additional towels by exchanging the soiled [*4] cloths for clean ones. Should an employee not have a towel to exchange, he can receive a towel by obtaining a requisition slip from his supervisor. Two of respondent's employees, William Dixon and W. W. Woods, n5 testified, however, that they were not always able to exchange their dirty towels for clean ones.
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n5 Mr. Woods also appeared at the hearing as a representative of the United Steel Workers of America, Local 1742.
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Dixon also testified that, when issued, the towels were often imbedded with numerous steel shavings. Dixon claimed to have cut himself several times when wiping himself with the towels. Moreover, Dixon stated that he was unable to keep a towel separate for personal use because often both towels were needed to clean the machines.
Judge Brenton concluded that the Secretary was concerned with the cleanliness of the issued towels and not with whether they were convenient to the lavatories. Nevertheless, he held that, because employees would carry one of the towels in their pockets, the requirement [*5] that towels be "convenient to the lavatories" was satisfied since the employees would always have one with them. The Judge also concluded that employees were able to obtain clean towels when needed. Finally, Judge Brenton found that foreign matter entered the towels only on a few isolated instances, but that, in any event, the presence of foreign matter was not proscribed by the standard.
Commissioner Barnako would vacate the item for the reasons given by the Judge. He notes that the Judge's finding that employees were freely able to exchange soiled towels was based on the Judge's granting more probative value to the testimony of Belton than to the testimony of the employees Dixon and Woods. Commissioner Barnako would accept the Judge's evaluation of the evidence. See Okland Constr. Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD para. 20, 441 (No. 3395, 1976).
I would reverse the Judge and affirm the item. The Secretary, on review, clearly contends that respondent's dispensing method does not provide towels convenient to the lavatory. I agree. In my view, a dispensing method that requires employees to travel from their work stations to the dispensing crib [*6] and then to the lavatories does not satisfy the requirement that towels must be convenient to the lavatory. Should emergency use of the lavatory be necessary, an employee needing to exchange the towels would find respondent's towel dispensing method highly inconvenient. Moreover, the standard implicitly requires that the towels be clean. n6 The evidence clearly establishes that by the time a towel was used in the lavatory, it had often become soiled unsanitary. Employees used their "personal" towels to wipe grease off both themselves and their machines when at their work stations. Also, these towels often become imbedded with metal shavings from their exposure to the plant environment. As indicated by the testimony of Mr. Dixon, these shavings were not always successfully removed during laundering. Under these circumstances, I would conclude that the towels provided by respondent did not fulfill the requirements of the standard.
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n6 Although the standard explicitly requires that only continuous cloth toweling be clean, it obviously assumes that the other devices enumerated in the standard would also be clean when dispensed. The reason for the explicit cleanliness requirement on continuous cloth towels is clear. Unlike individual towels of cloth or paper which are used only once, continuous cloth toweling is used by many individuals and must be regularly replaced to insure cleanliness.
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II. Item 22 - § 1910.176(a)
The compliance officer also observed that respondent did not mark the aisles where forklifts were used, and that the aisles were not kept clear of tools, boxes, and machine parts. At the hearing, the compliance officer testified that, although the placement of the machines created an aisleway, the pattern was irregular and not clearly marked. He was able to observe areas that once contained markings, but the markings were faint and, in some areas, gone entirely. The compliance officer also stated that various production materials blocked the aisles. He stated, however, that he saw only one area where a forklift's path was sufficiently obstructed to prevent passage. According to the compliance officer, the hazard of failing to mark the aisles and keep them clear was that a forklift could bump into materials, causing the vehicle to turn over and drop its load on the operator or other employees in the vicinity.
Mr. Belton testified that respondent had marked the aisleways six to eight times, but that the markings were obliterated within a week. He also stated that the [*8] placement of the machines was relied upon to delineate the aisles and that the forklift operators were instructed to keep the aisles clear. He further indicated that failure to obey company rules resulted in disciplinary actions ranging from a verbal warning to time off. Employee Robert Martin testified, however, that the aisles are frequently blocked by boxes.
In vacating the item, Judge Brenton held that the placement of respondent's machines served to visually mark the aisles, thereby satisfying that portion of the standard requiring the marking of aisles. The Judge also held that the Secretary failed to establish that the aisles were so obstructed as to create a hazard. Holding that the Secretary has the burden of proving employer knowledge of nonserious violations, the Judge found that the Secretary failed to establish that respondent knew or should have known about the blocked aisle observed by the compliance officer. He noted that, although respondent's work rules prohibit the blocking of aisles, personal supervision of each of respondent's 40 forklift operators would be an impossible task.
Commissioner Barnako would affirm the Judge. Regarding that part of the item [*9] alleging a failure to mark the aisles, he notes that the Secretary's own interpretation of the standard accepts the use of a workplace's physical layout to delineate the aisles. In Qs. and As. to Part 1910, OSHA 2095, December 1973, reprinted at CCH Employment Safety and Health Guide, para. 1115.13, the Secretary interprets § 1910.176(a) as follows:
Q. What is meant by appropriately marked aisles?
A. The standard is intentionally vague because there are many ways aisles could be appropriately marked. For example, racks define aisles because all the areas between the racks are aisles. Striping and signs also are good ways to mark aisles.
Accordingly, Commissioner Barnako agrees with the Judge that the placement of respondent's machines sufficiently marked the aisles to comply with § 1926.176(a).
Commissioner Barnako would also affirm the Judge's finding that, with the one exception noted by the Judge, the aisles were not so obstructed as to create a hazard. The Judge found that, although some materials were placed in the aisles along which the forklifts traveled, in all locations but one there was sufficient room for the forklifts to maneuver to avoid striking any of [*10] the material. Commissioner Barnako concludes that the standard is not violated under such circumstances. The standard prohibits only those obstructions which create hazards, and the Secretary, with the one exception, has not demonstrated that the aisles in respondent's plant were sufficiently obstructed to be hazardous.
Concerning the one location where the obstruction was significant, the Judge found that:
[R]espondent maintains an excellent training program for its forklift operators which includes the requirement that they keep the aisles clear. Moreover, respondent's shop foreman and supervisors are required to and do enforce this and all safety rules.
Commissioner Barnako accepts this finding by the Judge. He concludes that respondent exercised reasonable diligence to prevent, discover, and correct hazardously obstructed aisles, and that respondent therefore lacked constructive knowledge of the one instance of violation which occurred. Accordingly, Commissioner Barnako concludes that the Judge's vacation of the citation was proper and consistent with Commission precedent. See Green Constr. Co. and Massman Constr. Co., 76 OSAHRC 134/D9, 4 BNA OSHC 1808, 1976-77 [*11] CCH OSHD para. 21,235 (No. 5356, 1976).
I would reverse the Judge and affirm the item. Although I agree that respondent's machines could have served as aisle markings, the evidence establishes that they were not placed in a sufficiently symmetrical configuration so as to clearly indicate the limits of the aisles. The compliance officer testified that the machines could have delineated the aisles, but noted that in respondent's plant some machines jutted out, while others were recessed. Thus, a forklift operator who relied on the alignment of the machines to define the aisles could easily have run his forklift into a machine that jutted into the aisle farther up the pathway.
I would also find that respondent failed to comply with § 1910.176(a) by failing to keep the aisles free of hazardous obstructions. Unlike my colleague, who finds that the blocked aisle observed by the compliance officer was an isolated incident of which respondent had no knowledge, I find that obstructed passageways were a chronic problem at the worksite. Employee Robert Martin testified that the aisles were constantly cluttered with boxes. Indeed, respondent's production manager admitted that there are [*12] times that boxes are placed out of their designated locations. Although he also stated that inspections are conducted to discover such infractions and to discipline the offending employee, it is apparent from the frequency of noncompliance that respondent's enforcement program is not effective. The failure to effectively enforce work rules reflects a failure to exercise reasonable diligence toward the discovery of noncompliant conditions. Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977). Finally, I conclude vacation is not required because the evidence establishes that the forklift operators were able to maneuver around most of the obstructions. The fact that safe passage depended upon the driver's ability to maneuver is sufficient to establish the hazardous condition of the aisles. Cf. Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977).
As stated previously, the Commission members, although divided on whether the Judge erred in his disposition, agree to resolve the impasse by affirming the Judge's decision. Life Science Products Co., supra. [*13]
Accordingly, the Judge's decision is AFFIRMED.