United States of America

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

1244 Speer Boulevard, Room 250

Denver, Colorado 80204-3582









SECRETARY OF LABOR, 	
Complainant,

	
v.

	OSHRC DOCKET NO. 00-1544
G&K SERVICES, and its successors,	
Respondent.

	



APPEARANCES:



For the Complainant:

David Q. Jones, Esq., Sheryl Vieyra, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas,

Texas.



For the Respondent:

Steven R. McCown, Esq., Earl M. Jones, III, Esq., Littler Mendelson,
Dallas Texas; Joseph Casseb,

Esq., Goode, Casseb, Jones, Riklin, Choate & Watson, San Antonio, Texas.



Before: Administrative Law Judge: James H. Barkley



*DECISION AND ORDER*



This proceeding arises under the Occupational Safety and Health Act of
1970 (29 U.S.C. Section 651 /et seq./; hereafter called the "Act").

Respondent, G&K Services, and its successors (G&K), at all times
relevant to this action maintained a place of business at 410 Probant,
San Antonio, Texas, where it operated a commercial laundry. Respondent
admits it is an employer engaged in a business affecting commerce and is
subject to the requirements of the Act.

On May 12, 2000, after an accident occurred at G&K's San Antonio plant,
the Occupational Safety and Health Administration (OSHA) conducted an
inspection of the work site. As a result of that inspection, OSHA issued
citations to G&K alleging violations of the Act, and proposing civil
penalties. By filing a timely notice of contest G&K brought this
proceeding before the Occupational Safety and Health Review Commission
(Commission).

On May 15, 2001, a hearing was held in San Antonio, Texas. At the
hearing, Complainant's motion to amend citation 1, item 1 was granted
(Tr. 7-15). Respondent's motion to raise additional affirmative defenses
to meet the amended complaint was also granted (Tr. 17). The parties
have submitted briefs on the amended issues and this matter is ready for
disposition.

*Facts*

G&K's Smith Grantham dryer consists of a large rotating basket in a
stationary housing. The basket door is mounted to a crossbar assembly
which lifts the door over the top of the dryer when the dryer is being
loaded and unloaded. The dryer will not operate with the crossbar in the
raised position. Before the dryer can be operated, the cross-arm must be
closed, and locked onto the housing. Closing the crossbar seals the
basket and door assembly. The door is mounted to the crossbar by means
of ball-bearings, which permit the door to rotate with the basket when
the dryer is in operation (Tr. 138, 149; Exh. C-5, C-6, C-18, p.5). The
seal between the door and basket, however, is not tight, and the door
rotates at a slower speed than the basket. The witnesses estimated that
the door revolves more slowly than a residential dryer basket (Tr. 59,
120, 149). There is a three or four inch gap between the door and the
crossbar (Tr. 59; Exh. C-11). When the Smith Grantham dryer is
completely and correctly assembled the ball bearing housing forms a
round port in the door/crossbar assembly. The port is covered by a
plate, which is fastened by four bolts (Exh. C-1). It is undisputed that
there was no plate covering the port on May 11, 2000.

On May 11, 2000, Ricardo Espitia, a wash floor operator at G&K's
commercial laundry, was instructed to work in the dryer area (Tr. 44-45,
49, 69, 77). Espitia had worked at G&K a little over a month; he
testified that he had not yet been trained to run the dryers. Espitia
stated that he never ran the dryers himself, though he was occasionally
called upon to help load and unload the machines (Tr. 46, 48, 65, 77).
Another G&K employee, Mark Gutierrez, was running the dryers on May 11.
Espitia was assisting (Tr. 50). Espitia testified that, at some point
while Gutierrez was out of the area, he noticed a piece of clothing
protruding from the uncovered port in the front of G&K's Smith Grantham
dryer (Tr. 54; Exh. C-2 [depicting open port]). Espitia stated that when
he attempted to push the cloth back into the dryer, the clothing in the
dryer wrapped around his hand and pulled his arm into the dryer's
rotating basket (Tr. 50-51). Espitia's arm was amputated (Tr. 54). In
addition, Espitia suffered friction burns and lacerations when his other
arm became caught between the cross-bar and the rotating door of the
dryer during his efforts to extricate himself (Tr. 59).

It is undisputed that G&K's written safety rules state: "Never reach or
move through guards, gears, belts, chains or any moving parts in
machinery," and "Do not operate any equipment unless all protective
guards are in place. Check all exposed moving parts. Be sure they are
clear of material before operation" (Tr. 73; Exh. R-13, p.2-24, ¶14,
¶14.d).

Espitia, however, testified that he was never told not to place his hand
in the open port, and was not aware of any company rule prohibiting the
practice (Tr. 45, 56, 64). Espitia admitted that on the day he applied
for a job at G&K, he signed a statement verifying that he had received
G&K's new employee safety orientation (Tr. 66-67, 75; Exh. R-10).
Espitia testified that he was not actually given a copy of G&K's Safety
Rules For Employees when he applied for the job, though portions of the
document were read to him (Tr. 72, 75). Espitia stated he was called
back approximately a week after he completed the application process,
and began work the same day. He did not receive any additional safety
training at that time (Tr. 75).

Espitia testified that he was trained to actually operate the washers by
a Richard Mata, the lead man on night shift; he maintained that he was
never trained in the operation of the dryers (Tr. 45-46). Espitia
testified that he had seen other G&K employees put their hands into the
port on the door of the dryer, including operators Mark Gutierrez and
Abraham Cruz, and night shift production manager Tim Cofield (Tr. 49,
51, 84, 87). According to Espitia, the temperature gauge on the Smith
Grantham did not work properly, and employees routinely put their hands
in the port to pull clothing out to see if the dryer had cooled enough
to be opened (Tr. 52, 55-56, 79). Espitia testified that he had never
seen a plate over the inspection port (Tr. 62).

Abraham Cruz worked on G&K's wash floor from the end of 1999 through the
date of the accident (Tr. 112, 127). Cruz was never told that placing
his hand into the port on the dryer door was hazardous (Tr. 117-19).
Cruz testified that he routinely saw other employees, including his area
supervisor, Matias, place their hands in the open port. He was trained
to do the same (Tr. 114, 117-18). Cruz stated that during his shift,
uniform pants were dried. Because the pants took a long time to dry,
Cruz would place his hand in the port several times a shift (Tr. 118,
124). According to Cruz, the temperature gauge read hotter than the
actual temperature inside the drum; manually checking the temperature of
the clothing allowed him to open the dryer sooner (Tr. 125). Cruz stated
that at one time there was a plate over the inspection port, which was
fastened with a single screw, allowing it to swing open (Tr. 115).
According to Cruz, the plate had been missing for a month or two prior
to May 11 (Tr. 115-16 ).

Tim Cofield understood that G&K's safety manual prohibited employees
placing their hands in moving parts of machinery, and stated that an
employee found violating the rule would be issued a written warning (Tr.
91). However, according to Cofield, the written rule does /not/
prohibit//checking the dryer's internal temperature by pulling laundry
items through the port in the front of the Smith Grantham dryer. Cofield
stated that the inspection port was four inches deep, and so long as
employees do not put their fingers more than four inches into the port,
there is no danger of being pulled into the dryer basket (Tr. 97).
Cofield never reprimanded or issued a warning to employees using that
method (Tr. 91, 94, 100).

In fact, Cofield stated that checking the temperature of "dust items,"
/i.e. /towels, in the Smith Grantham dryer, by catching them with the
fingers and pulling them through the inspection port, was an accepted
procedure at G&K (Tr. 94-95, 97, 106). Cofield testified that they could
cut down the drying time on dust items by shortening the wash time,
extracting excess water prior to drying, and manually checking the items
while they were still in the dryer (Tr. 107). Cofield testified that he
put his own hand into the inspection port 45 minutes prior to Espitia's
accident (Tr. 95, 97). He stated that when he was trained for the wash
floor, Richard Mata and Mark Gutierrez showed him how to check the
temperature of dust items by pulling them through the port from the
operating dryer (Tr. 94-95, 99). Cofield testified that Gutierrez
instructed him not to put his hand any further than four inches into the
port, so as not to be caught in the dryer basket (Tr. 99, 106). Cofield
stated that employees only attempted to pull dust items, /i.e./, towels,
from the operating dryer, never garments (Tr. 108).

Cofield testified that all the wash floor employees are cross-trained to
handle all the machinery on the wash floor (Tr. 92). Cofield testified
that he had seen the plate covering the inspection port about a week
prior to the accident, but knew it was missing on May 11, 2000 (Tr.
104-05).

*Alleged Violation of §1910.212(a)(1)*

Serious citation 1, item 1, as amended, alleges:



29 CFR 1910.212(a)(1): 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 or sparks.

a) The rotating drum ( tumbler) was not guarded to protect employees
from being caught in the nip points between the cross bar and the drum.



/Discussion/

As a threshold matter, G&K argues that the general machine guarding
standards at §1910.212 /et seq./ are preempted by the more specific
regulations applicable to laundry operations found at §1910.264 /et seq.
/(Respondent's Post-Hearing Brief, p. 6). It is well settled, however,
that even where regulations specific to an industry have been
promulgated, general standards remain applicable where they "provide
meaningful protection to employees beyond the protection afforded" by
specific standards. /See, Quinlan t/a Quinlan Enterps., /15 BNA OSHC
1780, 1991-93 CCH OSHC ¶29,765 (No. 91-2131, 1992), citing /Bratton
Corp./, 14 BNA OSHC 1893, 1987-90 CCH OSHD ¶29,152 (No. 83-132, 1990).
It is undisputed that §1910.264 /et seq./ does not address the cited nip
point hazard. Whether the general machine guarding standard at §1910.212
(a)(1)is applicable, therefore, depends upon whether the Secretary has
shown the existence of a significant nip point hazard that the
application of §1910.212(a)(1) would eliminate. Under Commission
precedent, before the Secretary can require the abatement of an alleged
hazard pusuant to §1910.212(a)(1), the Secretary must show that employee
exposure to the cited hazard is more than theoretically possible. The
Secretary must establish that it is "reasonably predictable" that
employees have been, are, or will be in the "zone of danger," either by
operational necessity or through inadvertence. /Secretary of Labor v.
Fabricated Metal Products, Inc./, 18 BNA OSHC 1072, 1997 CCH OSHD
¶31,463 (No. 93-1853, 1997).

The Secretary does not maintain that dryer operators are exposed to the
cited nip point during their normal operation of the dryer. The evidence
establishes that G&K employees frequently work in the general area of
the Smith Grantham dryer, where the floors are wet from dripping laundry
(Tr. 61-62, 123-24, 134). The record further establishes that a nip
point is created between the dryer's stationary crossbar and the door,
which rotates with the basket. CO Sanchez testified that, in his
opinion, there is a good chance that, given the height of the crossbar,
employees in the area of the dryer could catch their clothing or hair
between the crossbar and rotating drum. Alternatively, Sanchez believed
that employees could slip on the damp floor and fall into the nip point
(Tr. 142). The Secretary maintains that a physical barrier is required
to prevent the wash floor employees from approaching the dryer while it
is in operation.

There is insufficient evidence in the record, however, to show that the
scenario described by Sanchez is "reasonably predictable." The height of
the crossbar is not clear from the record, however; based on the
photographic exhibits, it is not reasonably predictable that an
employee's hair or clothing could be caught in the three to four inch
space between the crossbar and the slow moving basket door as the
employee passed by the dryer. Moreover, it seems unlikely that an
employee slipping on a wet spot while walking near the dryer would be
tall enough, or close enough to the rotating door to catch a hand or arm
in the cited nip point. The Secretary cited only one accident involving
the nip point between the dryer's revolving door and the crossbar. That
accident did not result from an employee catching his or her hair or
clothing in the alleged nip point, or from a slip and/or fall. Rather
the friction burns suffered by Mr. Espitia resulted from his efforts to
extricate himself from clothing that was pulling his arm into the dryer
basket. The extraordinary circumstances in this case do not establish
that employee exposure to the alleged nip point hazard is reasonably
predictable.

The Secretary's evidence does not establish the existence of a
reasonably predictable hazard, and this judge cannot find a violation of
§1910.212(a)(1). G&K's preemption argument is, therefore, moot.

*Alleged Violation of §1910.264(d)(1)(v)*

Serious citation 1, item 2 alleges:



29 CFR 1910.264(d)(1)(v): Employees were not properly instructed as to
the hazards of their work and were not instructed in safe practices by
bulletins, printed rules, and verbal instructions.



a) Employees were not trained on the hazards associated with the
operation of the washers and dryer and/or instructed in safe practices
when operating the washers and dryers. On or about May 11, 2000 a
portion of an employee's arm was amputated when he placed his fingers
into the inspection port while the dryer was in operation. The
employee's finger was caught by a pant belt loop which led to the
amputation of his arm. The inspection port was not intended to be used
as a means to check clothes for dampness but was intended to insure that
the sprinkler system was operational on models equipped with a sprinkler
system. This practice was used in conjunction with the dryer timer
system and was not prevented or discouraged by the employer.



Section 1910.264(d)(1)(v) provides:



/Instruction of employees./ Employees shall be properly instructed as to
the hazards of their work and be instructed in safe practices, by
bulletins, printed rules, and verbal instructions.



/Discussion/

G&K maintains that it properly instructed its employees in the hazards
associated with their work and in safe work practices. G&K further
maintains the cited standard is unconstitutionally vague because it
requires the employer to guess at the meaning of "proper instruction"
(Respondent's Post-Hearing Brief, p. 10-11).

G&K's vagueness argument is without merit. A standard is not
impermissibly vague simply because it is broad in nature. The
application of external objective criteria, including the knowledge and
perceptions of a reasonable person may be used to give meaning to a
broadly worded standard. /J.A. Jones Constr. Co./, 15 BNA OSHC 2201,
1991-93 CCH OSHD ¶29,964 (No. 86-2059, 1993). Moreover, prior Commission
decisions serve to put employers on notice of their duty under a broadly
worded standard./Corbesco, Inc. v. Dole/, 926 F.2d 422 (5th Cir. 1991).
The Commission has previously interpreted training requirements to
require the employer to provide instructions that a "reasonably prudent
employer" would give in the same circumstances. /N&N Contractors Inc.,/
18 BNA OSHC 2121, 2126, 2000 CCH OSHD ¶32,101 (No. 96-0606, 2000). As
noted by the Secretary's counsel, the Commission has also found that an
employer's instruction must be specific enough to advise employees how
to avoid hazards associated with their work. /El Paso Crane and Rigging
Co.,/ 16 BNA OSHC 1419, 1424, 1993-95 CCH OSHD ¶30,231 (No. 90-1106, 1993).

G&K argues that its employees were informed, upon hiring, of written
safety rules that prohibit reaching through guards or moving parts of
machinery, and/or operating equipment unless all protective guards are
in place (Respondent's Post-Hearing Brief, p. 10). It is clear from the
record, however, that the formal safety training to which G&K refers was
perfunctory. First, Ricardo Espitia had not been hired when a member of
G&K's office staff read portions of G&K's safety handbook to him, and
asked him to sign a document certifying that he had read and understood
the document. Second, the training Espitia received failed to explain
how the written rules actually apply to the work he was to perform.
G&K's new hires received on-the-job training in the actual operation of
the laundry machinery from other employees who, based on the evidence,
did not understand the rules G&K relies on. Finally, Espitia was not
trained at all in the proper operation of the dryers.

The Commission found a violation of the parallel training standard at
§1926.21(b)(2) [construction] where the Secretary showed that Respondent
had its employees affirm they read and understood manuals containing
safe operating instructions for a hydraulic hopper. The employees,
however, had not actually read the manuals themselves, and had never
received specific verbal instructions from the employer describing safe
operating practices for the hopper. /O'Brien Concrete Pumping Inc.,/ 18
BNA OSHC 2059, 2000 CCH OSHD ¶32,026 (No. 98-0471, 2000). // As the
Commission held in /O'Brien, /a prudent employer cannot assume that the
mere dissemination of a general safety handbook, will satisfy OSHA
training requirements. General warnings about hazards are ineffective if
unaccompanied by specific instructions describing safety precautions,
and the circumstances under which such precautions are appropriate.

G&K failed to "properly" train its employees, in that it failed to
effectively impart its safety rules to its employees, or to associate
the general safety rules in its handbook with specific operating hazards
found in its plant. G&K's night-shift production manager, Tim Cofield,
is a case in point. Cofield testified that he was familiar with G&K's
safety handbook, and was in charge of enforcing G&K's safety rules (Tr.
88-90). Cofield, however, received his task specific training from G&K
wash floor employees, Richard Mata and Mark Gutierrez. Gutierrez trained
Cofield to put his hand into the port on the dryer door, a practice G&K
now maintains is specifically prohibited by its written safety rules.
Cofield believed he had been shown the "proper" manner of checking dust
items through the port. Based on his on-the-job training he believed the
practice was not hazardous, and was not prohibited by G&K's safety rules.

It cannot be disputed that the practice of checking the internal
temperature of the Smith Grantham dryer by reaching through the port
created by the missing door plate is an unsafe practice. G&K asserts
that the practice was a violation of at least two safety rules it claims
to have communicated to its employees. It is clear, however, that its
employees were not "properly instructed," in those safety rules. As
discussed above, Tim Cofield, who holds a supervisory position in G&K's
commercial laundry, was so uninformed about the hazards inherent to
commercial laundry operations, or the safe operation of such equipment,
that he failed to recognize that reaching into an operating dryer was
either hazardous or a violation of company safety rules.

G&K relies on /N&N Contractors Inc./, /supra/, in which the Commission
found that an employer's violation of OSHA regulations did not, standing
alone, establish that its employees were improperly trained. This case,
however, is clearly distinguishable from /N&N/ on the facts. In /N&N/
the Respondent employer had a safety program which included training in
the corporate office and monthly meetings on site during which the
disputed safety rules (in that case, fall protection) were discussed.
The employer in /N&N /had both a safety manager and a safety coordinator
who demonstrated an understanding of relevant OSHA regulations, and who
conducted meetings with the employer's foremen to reinforce company
safety rules. G&K's safety program, on the other hand, consisted of a
cursory reading of the written safety rules and on-the-job training
during which employees were instructed in practices which directly
contravened the written program. Supervisory personnel on duty did not
understand the written safety program, and so made no effort to correct
the improper training that was being given to new hires.

The Secretary has established a violation of the cited standard.

/Penalty/

A penalty of $6,300.00 was proposed for this item.

The violation was correctly classified as high severity and serious, in
that the failure to properly train employees could lead to serious
injury, such as amputation. CO Sanchez proposed the maximum gravity
based penalty, /i.e./, 7,000.00 with a 10% reduction because G&K had no
history of prior OSHA violations. Sanchez did not recommend that G&K be
given any credit for size, or for good faith.

The penalty proposed by OSHA is appropriate and will be assessed.



*Alleged Violation of §1910.264(d)(2)(i)(a) *

Serious citation 1, item 3 alleges:



29 CFR 1910.264(d)(2)(i)(a): Safeguard(s), safety appliance(s) or
device(s) attached to or forming an integral parts of any machinery were
removed or made ineffective for purpose(s) other than making immediate
repairs or adjustments:

a) The swing plate to the inspection port on a Walter Grantham dryer
serial number 422, was removed and not replaced. The internal parts of
the inspection port were missing and not replaced.



§1910.264(d)(2) provides:



/Mechanical-/(i) /Safety guards./ (a) No safeguard, safety appliance, or
device attached to, or forming an integral part of any machinery shall
be removed or made ineffective except for the purpose of making
immediate repairs or adjustment.. . .



/Discussion/

G&K argues that the cited standard is not applicable because the
Secretary failed to show that the missing port cover on the Smith
Grantham dryer was a safeguard or safety device. This judge does not agree.

The Secretary maintains, in its pleading for citation 1, item 2, that
the port in the Smith Grantham's door was an inspection port intended to
be used as a means to check whether the sprinkler system was operational
in the event of a dryer fire. Though the Secretary adduced no testimony
in support of this theory, she did introduce a document, Dryer Fire
Procedures (Exh. C-12), in support of her theory. The Secretary also
introduced assembly specifications that show the port, where the ball
bearing assembly that allowed the door to rotate was located, was
supposed to be covered and secured with four bolts (Exh. C-1, C-20).
Whether the open port on the dryer door was intended as an inspection
port, or was merely a means of accessing the ball bearing assembly, the
port cover was indisputably an integral part of the dryer door intended
to prevent inadvertent contact with the moving parts of the dryer
located behind the dryer's crossbar. The port cover is, therefore, a
safeguard as contemplated by the standard.

It is undisputed that the port cover was removed, and/or made
ineffective by the removal of three of the four bolts, allowing
employees to reach into the moving parts of the machine. Cofield, G&K's
night supervisor was not only aware that the plate was missing on the
day of the accident, he knew that employees were routinely bypassing the
guard for purposes other than repairing and/or making adjustments to the
machine.

The Secretary has established the cited violation.

/Penalty/

A penalty of $6,300.00 was proposed for this item.

This violation was also correctly classified as high severity and
serious, in that the removal of the cover plate could lead to serious
injury, such as amputation. CO Sanchez proposed the maximum gravity
based penalty, /i.e./, 7,000.00 with a 10% reduction based on G&K's
history with OSHA. Again Sanchez did not recommend that G&K be given any
credit for size, or for good faith.

The penalty proposed by OSHA is appropriate and will be assessed.

*ORDER*

  * Citation 1, item 1, alleging violation of §1910.212(a)(1) is VACATED.
  * Citation 1, item 2, alleging violation of §1910.264(d)(1)(v) is
    AFFIRMED, and a penalty of $6,300.00 is ASSESSED.
  * Citation 1, item 3, alleging violation of §1910.264(d)(2)(i)(a) is
    AFFIRMED, and a penalty of $6,300.00 is ASSESSED.




/s/

James H. Barkley

Judge, OSHRC



Dated: July 26, 2001