________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :   OSHRC Docket No. 90-2775
                                :
KASPAR WIRE WORKS, INC.,        :
                                :
          Respondent.           :
________________________________:

*DECISION*

Before: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.

BY THE COMMISSION:

Kaspar Wire Works ("KWW") manufactures formed wire products such as
newspaper and magazine racks at its facility in Shiner, Texas. KWW,
Kaspar Tool and Die ("KTD"), and Kaspar Electroplating Corp. ("KEC")
comprise the three affiliated Kaspar companies located in the Shiner
facility. From March 19, 1990 until September 14, 1990, OSHA conducted a
scheduled inspection of KWW and, on September 18, 1990, the Secretary
cited KWW for over 400 alleged willful and serious violations of various
standards under the Occupational Safety and Health Act of 1970, 29
U.S.C. §§ 651-687 ("OSH Act" or "Act"), proposing combined penalties of
$1,236,000.[1] Administrative Law Judge E. Carter Botkin held a hearing
in the case, but died before issuing a decision. The case was
transferred to Administrative Law Judge Stanley M. Schwartz who affirmed
most of the alleged violations, including 382 recordkeeping items he
affirmed as willful, and assessed a combined penalty of $257,700. Our
decision is limited to the specific items directed for review. We affirm
the judge's decision in part, and reverse in part. We turn first to the
recordkeeping items.

*I. WILLFUL CITATION*

*A. OSHA 200 RECORDING--29 C.F.R. § 1904.2(a)--Items 1-171, 173-189,
191-263, 265-385*

*BACKGROUND *

The recordkeeping requirements of the Act "play a crucial role in
providing the information necessary to make workplaces safer and
healthier." /General Motors Corp., Inland Div., /8 BNA OSHC 2036, 2041,
1980 CCH OSHD 24,473, p.30,470 (No.76-5033, 1980). The cited
recordkeeping regulation, section 1904.2(a),[2] requires that employers
enter on the OSHA 200 "recordable" injuries and illnesses. OSHA
regulations define "recordable" as including those injuries and
illnesses resulting in death, lost workdays, transfer to another job,
termination of employment and restricted workdays, and those requiring
medical treatment. 29 C.F.R. § 1904.12(c). "Medical treatment" includes
treatment by a physician or other professional performed under a
physician's orders, but excludes one-time first aid and its follow-up
care regardless of whether it is administered by a physician. 29 C.F.R.
§ 1904.12(d). The categories of required information are printed on the
front of the OSHA 200, and more detailed instructions and definitions
are printed on the back.

KWW failed to properly record approximately 86.5% of the recordable
injuries and illnesses that occurred in its facility during 1988 and
1989. Judge Schwartz' finding that these failures violated the act is
not at issue on review.[3] Rather, we consider only whether the judge
erred in affirming the violations as willful and assessing per instance
penalties. Under Commission precedent, a violation is willful when
"committed with intentional, knowing, or voluntary disregard for the
requirements of the Act or with plain indifference to employee safety."
/Valdak Corp., /17 BNA OSHC 1135, 1136, 1993-95 CCH OSH ¶ 30,759, p.
42,740 (No. 93-239, 1995), /aff'd /73 F.3d 1466 (8th Cir. 1996). Our
examination of willfulness here focuses on several factors: whether, and
to what extent, company personnel were trained and knowledgeable
regarding OSHA recordkeeping requirements; KWW's recordkeeping
procedures; and the company's recordkeeping history.

KWW employee Jo Ann Knezek has prepared and maintained all of KWW's
illness and injury records, including those required by OSHA, since
1970. She originally held the job title "insurance clerk," later became
a supervisory level "office coordinator" and, according to her
testimony, has been a managerial level employee since approximately
1987. From July 1971 until his retirement in 1989, David Little was
personnel manager for all three Kaspar companies and supervised Ms.
Knezek's work. Dan Price began working at KWW in September 1988 as
assistant personnel manager to David Little, and succeeded Mr. Little as
personnel manager in January 1989.

According to Little, an OSHA compliance officer provided training on
OSHA recordkeeping approximately six months after Little began working
at KWW, and Little followed those procedures. Knezek testified that she
received her OSHA 200 recordkeeping instructions from Little, but she
was unaware of any instructions on the back of the OSHA 200 form, and
relied only on her "best judgment," as instructed by Little, to
determine the seriousness and recordability of an injury. Dan Price
testified that he had seen an OSHA 200 form prior to the inspection, but
did not recall whether he had read either the front or back of the form.
He first became aware of his responsibilities regarding OSHA
recordkeeping at Kaspar when Knezek asked for his signature on the Form
200-S.[4] Price testified that he'd "assumed that [the] record keeping
was all established . . . and didn't see the necessity of getting
involved in it."

Little and Knezek described KWW's recordkeeping procedure as a two-step
process. Each time an employee sustained an injury, the employee's
supervisor would complete an investigation report and send it to Knezek
for preparation of the E-1 insurance and workers' compensation claim
form. Knezek would then record the injury either on the OSHA 200 or the
company's first-aid log, depending on its severity as described in the
supervisor's report. Although David Little and Dan Price supervised Ms.
Knezek and signed the yearly 200-S forms, neither of them apparently
checked the OSHA 200 for accuracy. KWW sent all injured employees to
nearby doctors for evaluation and treatment. Knezek, however, did not
receive information on the treatment because the doctors' records were
sent directly to the insurance companies.[5]

Both Little and Knezek clearly understood that an injury involving lost
work days beyond the date of injury should be recorded on the OSHA 200.
Knezek acknowledged that recordable cases included "the ones that I felt
or knew that would be missing work, restricted work or could not work at
all, one day or more, or if it was a serious injury, not just first-aid
treatment."[6] Although Knezek's testimony also reveals that she
understood that restricted work day cases should be recorded on the OSHA
200, Little was less certain about the recordability of those cases.
Both Little and Knezek understood that recordability based on medical
treatment involved the more "serious" injuries. Knezek testified that
she relied solely on the supervisor's description in evaluating the
seriousness of an injury, and described as "serious" injuries such as
back injuries, hernias, or amputations, and described as "minor"
injuries such as minor cuts or abrasions or minor burns. While admitting
that lacerations, mashed fingers, punched hands, and amputations were
not first-aid injuries, Knezek stated that the instances of those
injuries recorded on KWW's first-aid rather than OSHA 200 logs for 1988
and 1989 were, in her judgment, not serious enough to list on the OSHA 200.

KWW's defense here rests, in large part, on its history of numerous
citation-less OSHA inspections[7] combined with its assertion that its
recordkeeping practices were unchanged from 1971 until the 1990
inspection. Jo Ann Knezek indicated that, from the commencement of her
employment with KWW, she consistently maintained KWW's illness and
injury records in the manner originally established. A comparison
between KWW's recordkeeping statistics for 1983/1984 and those for
1988/1989 bears on the veracity of this assertion.

CO Robert Hudgens reviewed KWW's 1983 and 1984 OSHA 200s during a 1985
health inspection he conducted. Hudgens' notes from that inspection
include numerical calculations of the data from the OSHA 200s.[8] The
notes indicate that in 1984, when KWW had about 485 employees, it
recorded 196 items on its OSHA 200, yielding a rate of reported items to
total number of employees of approximately 40%. Hudgens also calculated
a combined LWDI rate of 11.2 for 1983 and 1984, a rate significantly
above the stipulated national average for manufacturing of 4.7. Hudgens
testified that he found no recordkeeping violations and issued no
recordkeeping citations as a result of that inspection.[9]

KWW's 1988 and 1989 OSHA 200s are in evidence and show that for those
two years combined, when KWW had approximately 850 employees, it
recorded a total of seventy-four illnesses and injuries. The rate of
recorded items to total number of employees was approximately 4.3% for
each of the two years. CO Antonio reviewed the OSHA 200 logs at the
commencement of the 1990 inspection, from which he calculated a LWDI
rate of 4.45 based on the recorded items. That rate barely exceeded the
national average rate of 4.2, which was sufficient to compel a
comprehensive inspection.

The 1990 records' review ultimately included a review of KWW's OSHA
200s, first-aid logs, E-1s, and doctors' records, and resulted in the
recordkeeping violations at issue here. Our review of this evidence
shows that KWW made 357 recordkeeping errors during 1988 and 1989
combined, the vast majority of which consisted of complete failures to
record. These 357 items, combined with the 55 remaining recorded items
that were not alleged as violative, result in a calculation of 412
recordable injuries and illnesses for 1988 and 1989. Based on these
numbers, the total recordkeeping error rate is approximately 86.5%. Had
KWW correctly recorded injuries and illnesses in 1988 and 1989, its rate
of recorded items to total number of employees would have been
approximately 24% for each of the two years, rather than the 4.3%
actually recorded.

*DISCUSSION*

The hallmark of a willful violation is the employer's state of mind at
the time of the violation--an "intentional, knowing, or voluntary
disregard for the requirements of the Act or . . . plain indifference to
employee safety." /Valdak Corp., /17 BNA OSHC at 1136, 1993- 95 CCH OSHD
at p. 42,740. "[I]t is not enough for the Secretary to show that an
employer was aware of conduct or conditions constituting the alleged
violation; such evidence is already necessary to establish any violation
. . . . A willful violation is differentiated by heightened awareness of
the illegality of the conduct or conditions and by a state of mind of
conscious disregard or plain indifference . . . ." /Hern Iron Works,
Inc., /16 BNA OSHC 1206, 1214, 1993-95 CCH OSHD ¶ 30,046, p. 41,256-257
(No. 89-433, 1993)(citations omitted). As articulated by the Fifth
Circuit, the court to which this case would be appealable, "the
Secretary must show that the employer acted voluntarily, with either
intentional disregard of or plain indifference to OSHA requirements."
/Georgia Elec. Co. v. Marshall, /595 F.2d 309, 317-319 (5th Cir. 1979).
An employer's motive for failing to comply with the Act's requirements,
however, need not be evil or malicious in order to find a violation
willful. /See Anderson Excavating and Wrecking Co., /17 BNA OSHC 1890,
1891, n.3, 1995-97 CCH OSHD ¶ 31,228, p. 43,788, n.3 (No. 92-3684,
1997), /aff'd, /131 F.3d 1254 (8th Cir. 1997).

We affirm Judge Schwartz' finding that KWW's failures to properly record
illnesses and injuries on its 1988 and 1989 OSHA 200s were willful for
all items except those based solely on restricted work day
recordability.[10] We conclude that the training and experience of KWW's
personnel that resulted in many years of apparent compliance with OSHA
recordkeeping requirements, followed by a nearly complete cessation of
recording in 1988 and 1989 when hundreds of obviously recordable items
went unrecorded, establishes that KWW knowingly and voluntarily failed
to comply with OSHA's recordkeeping requirements and shows plain
indifference to the requirements of the Act.

The evidence in this record demonstrates that KWW chose to ignore its
statutory recordkeeping responsibilities during 1988 and 1989. The
recordability of most of the cited items was obvious. Virtually all of
the items that KWW should have recorded on its OSHA 200 were listed,
instead, on its first-aid log. KWW clearly knew that these injuries and
illnesses occurred and knew of their severity as indicated, in many
instances, by lost work day notations and injury descriptions on the
first-aid log. Moreover, as Judge Schwartz found, the recordability of
most of these injuries and illnesses could be determined from the
instructions on the OSHA 200 form itself. While any employer who
attempts to enter information on an OSHA 200 has some knowledge of
recordkeeping requirements from the instructions on the form, Little and
Knezek each had nearly twenty years of experience completing KWW's OSHA
logs.[11] We agree with Judge Schwartz that it seems incredible that,
regardless of the adequacy of their initial training, these individuals
could have believed that they were correctly recording injuries and
illnesses in 1988 and 1989.

In fact, the evidence suggests that Ms. Knezek, who was by then a
managerial level employee and had principal, if not sole responsibility
for KWW's OSHA recordkeeping, knew what was required and simply failed
to continue to properly maintain KWW's OSHA 200s in 1988 and 1989.
Knezek admitted knowing that injuries and illnesses such as lacerations,
mashed fingers, punched hands, and amputations are more than first aid,
yet she listed instances of just such injuries on KWW's 1988 and 1989
first-aid logs rather than its OSHA 200, explaining that they were "[i]n
[her] judgment," not serious enough. Injuries not serious enough to be
recorded included finger amputations suffered by five employees. One of
these employees lost three fingers and missed eight weeks of work,
another lost two fingers and nine weeks of work. Also not serious enough
to record were a broken wrist, a broken finger, a broken toe, second and
third degree burns, more than thirty eye injuries, and hundreds of
lacerations. Many items involving lost work days were also listed on the
first-aid logs rather than the OSHA 200s despite Knezek's acknowledgment
that she knew such items were recordable. One such item involved a hand
ligament injury for which KWW's first-aid log notes 171 lost workdays.
Although Knezek also claimed that her recordkeeping practices remained
unchanged from 1970 until 1990, that claim is belied by a comparison,
discussed more fully below, between the data from KWW's 1984 OSHA 200
and that on its 1988 and 1989 OSHA 200s.[12]

On review, KWW attempts to turn the facts of its earlier inspection
history to its advantage, pointing out that prior to the inspection in
this case, OSHA had inspected KWW's OSHA 200s and other recordkeeping
documents many times and did not issue any recordkeeping citations nor
recommend any changes to its recordkeeping practices. It claims that
based on OSHA's failure to issue citations after these inspections it
had a good faith belief that it was correctly recording injuries and
illnesses and that this good faith belief should defeat willfulness.
Although we are unable to independently assess the accuracy of KWW's
earlier recordkeeping, the evidence indicates that KWW had substantially
complied with the OSHA 200 requirements. Two of the compliance officers
who were involved in prior KWW records' reviews testified that they
found no violations, that they were required to cite any violations
found, and that they issued no recordkeeping citations. Moreover,
Hudgens' review of the 1984 OSHA 200 revealed such a large number of
recorded items that misrecording or underrecording of any significance
seems highly unlikely.

KWW's argument, however, misses the point. Rather than showing good
faith in 1988 and 1989, a careful review of KWW's inspection history
shows that KWW profoundly changed its recordkeeping practices sometime
between 1985 and 1988.[13] KWW recorded vastly more items in 1984, at a
time when it had approximately half as many employees, than it did in
1988 and 1989 combined. In 1984 KWW had 485 employees and recorded 196
injuries, yielding an employee to injury rate of approximately 40%. In
1988 and 1989 KWW had an average of approximately 850 employees and
recorded a total of 73 illnesses and injuries, yielding an employee to
injury rate of approximately 4.3% per year. Correct recording for those
years would have yielded an employee to injury rate of approximately
24%. It is an inescapable fact that KWW virtually stopped recording any
injuries and illnesses on the OSHA 200 in 1988 and 1989, as reflected by
its error rate for those years of 86.5%. This marked decrease in
recorded items clearly constitutes a change from KWW's earlier
recordkeeping practices. Moreover, for all the reasons discussed herein,
we conclude that the evidence establishes that this change was knowingly
made and thus reflects a willful state of mind. /See Monfort of
Colorado, Inc., /14 BNA OSHC 2055, 1991-93 CCH OSHD ¶ 29,246, p. 39,186
(No. 87-1220, 1990) (finding willfulness dependent on employer's
underlying state of mind at time of violation).

We also emphasize that KWW's 86.5% error rate alone is simply
overwhelming. This incidence of recording errors far exceeds that of any
other case decided by the Commission. KWW's nearly complete failure to
enter recordable injuries on the OSHA 200 does not, as KWW claims,
resemble in any significant respect the circumstances in /Kohler, Inc.,
/16 BNA OSHC 1769, 1993-95 CCH OSHD ¶30,457 (No.88-237, 1994). In
/Kohler, /the Commission found no evidence that a single recordkeeping
error that resulted in extensive failures to record was other than
inadvertent. KWW's recordkeeping problems are of a different order. As
Judge Schwartz found, the whole of KWW's recording process was fatally
flawed. As underscored by the lack of any follow-up tracking procedures,
KWW made no effort to ensure that the regulation was followed and the
OSHA 200 was correctly filled in. /See Georgia Electric Co. v. Marshall,
/595 F.2d 309, 320 (5th Cir. 1979). The failures here, though involving
large numbers of hand and finger injuries, included many other types of
injuries and illnesses and resulted from an overall disregard of the
regulation's requirements. Our dissenting colleague notes that there was
no "consistent pattern of misrecording." The point, however, is that a
1-in-8 recording rate during a period in which 412 items should have
been recorded either defies consistency or effectively constitutes a
consistent failure to record at all.

Contrary to our dissenting colleague's contention that we have "run
roughshod over the distinction between willfulness and simple
carelessness" by affirming a willful violation in the circumstances of
this case, we believe that our decision here securely preserves that
distinction. As stated by the Supreme Court, "[t]he word 'willful' is
widely used in the law, and although it has not by any means been given
a perfectly consistent interpretation, it is generally understood to
refer to conduct that is not merely negligent." /McLaughlin v. Richland
Shoe Co., /486 U.S. 128 (1988).[14] The evidence here demonstrates that
KWW not only knew of the applicability of the OSH Act and the
recordkeeping regulations, it substantially complied with them for many
prior years. OSHA reviewed Kaspar's recordkeeping compliance eight times
prior to the inspection here, alerting Kaspar that its recordkeeping was
important. KWW also knew of the existence of all of the cited items, as
well as the severity of many, as indicated by the notations on its
first-aid logs. It also had to have known that most of the cited items
were recordable based on the knowledge and experience of its
management-level recordkeeping personnel and the obviousness of
recordability in light of the instructions on the OSHA 200 form itself.
KWW's pervasive and blatant failures to comply with the statutory
recordkeeping requirements in 1988 and 1989 were anything but mistaken
or careless. As found by Judge Schwartz, "it is incredible that Little
and Knezek, the individuals charged with responsibility for the OSHA
200s for seventeen and twenty years, respectively, could have believed
that they were properly recording injuries and illnesses."

Although, in our view, the evidence amply establishes that KWW chose to
change its recordkeeping practices, we could find no evidence in the
record to explain the reason for this choice and the resulting egregious
failure to record during the cited years. Thus, we agree with Judge
Schwartz that the record does not establish that KWW's recordkeeping
errors resulted from an attempt to maintain a low LWDI rate in order to
avert a comprehensive inspection. Nonetheless, evidence of KWW's motive
is not necessary to support a willful violation. As discussed above, an
employer need not have an evil or malicious motive. /Cf. Hazen Paper Co.
v. Biggins, /507 U.S. at 617 (finding that once willful violation of
ADEA is shown, employee need not provide direct evidence of employer's
motivation). The state of mind required for a willful violation need be
only knowing, voluntary, or intentional. Based on all of the evidence
and circumstances here, we conclude that KWW had such a state of mind
when it chose to cease recording the vast majority of illnesses and
injuries suffered by its employees during 1988 and 1989.[15]
Accordingly, we also conclude that those failures showed plain
indifference to the requirements of the Act, and we affirm Judge
Schwartz' conclusion that the non-restricted work day items constitute
willful violations.

We treat the restricted work day items differently because they present
other considerations. CO Hudgens' 1985 inspection notes reveal that KWW
recorded no restricted work days in 1983 or 1984 despite recording
approximately 393 injuries for those years. Hudgens testified that he
found no recordkeeping violations and would have been compelled to issue
a citation for any violations uncovered. We think it unlikely that none
of the 393 recorded injuries would have resulted in restricted work
days, especially where we found approximately 130 instances of
restricted work orders out of the 412 recordable injuries that occurred
in 1988 and 1989. Therefore, there is no evidence of any change in KWW's
restricted work day recording between the 1984 and 1988/1989 recording
years. Although OSHA's failure to cite KWW for not having recorded
restricted work days in 1983-1984 does not provide a basis for KWW to
argue that it lacked knowledge of its failures to record, /Columbian Art
Works, Inc., /10 BNA OSHC 1132, 1133, 1981 CCH OSHD ¶ 25,737 at p.32,
102 (No. 78-29, 1981), it may have lulled KWW into believing that
restricted work day information was of no concern to OSHA. Given this
uncertainty surrounding the recording of injuries and illnesses that
resulted in restricted work days, we find that the evidence as to KWW's
failures to record such injuries falls short of establishing
willfulness. We affirm the items based solely on restricted work orders
as other-than-serious.[16]

*PENALTIES*

Judge Schwartz assessed an aggregate penalty of $234,000. He calculated
the penalty on a per instance basis in the amount of $250-$1000 per
item, depending on the extent to which the basis of recordability
exceeds the definition of non-recordable first aid. Although the
Commission had requested that the parties address the issue of per
instance penalty authorization in their briefs, it is now well-settled
Commission precedent that the Secretary has discretion to cite each
recordkeeping error as a separate violation, and that the Commission has
discretion to assess penalties for such violations on a per instance
basis. /Pepperidge Farm, Inc., /17 BNA OSHC at 2001, 1995-97 CCH OSHD at
p. 44,011; /Caterpillar, Inc., /15 BNA OSHC 2153, 2173, 1991-93 CCH OSHD
¶ 29,962, p. 41,007 (No. 87-922, 1993). Accordingly, we conclude that
Judge Schwartz did not err in assessing penalties on a per instance basis.

With respect to penalty amounts, Section 17 (j) compels us to consider
the size of the company, gravity of the violations, history of
compliance with the Act, and good faith. KWW is a moderate to large size
company, employing approximately 850-900 workers at its Shiner facility,
and has a history of few previous OSHA violations, none of which
pertained to recordkeeping. Moreover, the gravity of recordkeeping
violations is generally considered low. We find no basis, however, on
which to accord KWW credit for good faith where the bulk of the
violations are affirmed as willful, and where the failures to record
were largely so obvious. We conclude that the Section 17(j) factors
support Judge Schwartz' penalty assessments for the items we affirm as
willful, and see no reason to disturb them. Accordingly, after deducting
the $17,000 Judge Schwartz assessed for the vacated items, we affirm an
aggregate penalty for the willful recordkeeping items of $210,500. With
respect to the items based solely on restricted workday recordability
that we affirm as other-than-serious, we conclude that a penalty
reduction is warranted based on the change in characterization, and
assess an aggregate penalty of $4875 for these items.

*B. OSHA 200 ANNUAL SUMMARY AND CERTIFICATION--29 C.F.R. § 1904.5(b) &
(c)[17]--Items 386 (a) & (b)*

The Secretary alleged that KWW willfully violated section 1904.5(b) by
failing to total the data on its OSHA 200s (Item 386(a)), and willfully
violated section 1904.5(c) by failing to sign the OSHA 200s, certifying
their accuracy (Item 386(b)). Judge Schwartz affirmed the violations as
willful and assessed a combined penalty of $500. The record supports
Judge Schwartz' conclusion that KWW neither totaled the incidents
recorded on its OSHA 200s for 1988 and 1989, nor certified their
accuracy with the requisite signature. The 200s are in evidence and
reveal blank spaces in the areas designated for totals and
certification. Moreover, CO Jones' testimony that the information was
neither totaled nor certified is uncontroverted.

KWW contends that these violations should be vacated because they
occurred outside the period covered by the complaint.[18] The Commission
has already considered and rejected this argument in /Johnson Controls,
Inc., /15 BNA OSHC 2132, 2135-36, 1991-93 CCH OSHD ¶ 29,953, p. 40,965
(No. 89-2614, 1993), where, noting that a recordkeeping error violates
the Act until it is corrected or until the 5-year retention period
expires, it held that the Secretary may cite an employer for a
recordkeeping error within six months of the time she discovers, or
reasonably should have discovered, the facts necessary to support the
citation.[19] Here, the recordkeeping errors were uncorrected and well
within the 5-year retention period when the Secretary discovered them
during the March 19 to September 14, 1990 inspection. Accordingly, we
conclude that the complaint is timely and properly identifies the dates
during which the violations occurred.

In contrast to Judge Schwartz, however, we find that the evidence is
insufficient to support a willful characterization for either violation.
As indicated above, the OSHA 200 contains clearly identified spaces for
totaling the information entered on the form and for the signature of
the individual certifying its accuracy. Beyond these "instructions" on
the form itself, however, we could find no testimony or other record
evidence concerning whether Ms. Knezek, Mr. Little, or Mr. Price were
aware of, or understood, these requirements. In these circumstances, as
with the recordkeeping items based solely on restricted workdays, we
conclude that the record establishes other-than-serious violations.

The Secretary proposed a combined penalty of $5,000, and Judge Schwartz
assessed $500. We consider the Section 17 (j) factors, as discussed
above and, consistent with our treatment of the restricted workday
recordkeeping items, we conclude that a penalty reduction is warranted
based on the change in characterization. Accordingly, we affirm Items
386(a) and (b) as other-than-serious, and assess a combined penalty of
$375.

*C. ACCESS TO MEDICAL RECORDS--29 C.F.R. § 1910.20(e)(3)(i)--Item 387*

Section 1910.20(e)(3)(i), the "Records Access" rule provides, inter
alia, that an employer must, upon request, accord OSHA prompt access to
employee exposure and medical records.[20] OSHA cited KWW under this
standard for KWW's alleged delay in obtaining and providing its
employees' medical records pertaining to workplace injuries and
illnesses that occurred in 1987, 1988 and 1989. Judge Schwartz affirmed
the violation, characterized it as willful, and assessed a penalty of
$2,500. For the reasons discussed below, we find that the Secretary
failed to establish the applicability of the standard and vacate this
citation item.

By its own terms, the Records Access rule applies to an employer that
"makes, maintains, contracts for, or has access to employee exposure or
medical records, or analyses thereof, pertaining to employees exposed to
toxic substances or harmful physical agents." 29 C.F.R. § 1910.20(b)(1).
The rule applies to all such records "made or maintained in any manner,
including on an in-house o[r] contractual (e.g., fee-for-service)
basis." 29 C.F.R. § 1910.20(b)(3). The term "access" is defined as "the
right and opportunity to examine and copy." 29 C.F.R. § 1910.20(c)(1).
The preamble to the final rule, unchanged in this respect by amendments
to the rule made in 1988, states that the rule's applicability
provisions are intended to be given a "broad application," as expressed
in the preamble to the proposed rule:

    To come within the scope of this . . . rule, the records do not have
    to be within the employer's physical control as long as the employer
    has access to them. The concept of employer access encompasses
    situations in which any of the employer's officers, employees,
    agents, or contractors (including the corporate medical department)
    has physical control or access to records, even though they are not
    generally available to all officers, employees, agents, and contractors.

45 Fed. Reg. 35,259 (1980) (citation omitted). It is also clear,
however, that the rule "creates no substantive requirements" (id. at
35,214), but "simply requires the preservation and availability of
records which employers for one or more reasons have already chosen to
create . . . ." /Id. /at 35,253. Accordingly, as the preamble to the
final rule points out, "[m]any employers generate neither exposure nor
medical records, and thus will experience little or no impact from this
rule." /Id. /at 35,254.

Here, OSHA served KWW with a subpoena on April 17, 1990, that included a
request for all recordable and non-recordable employee injury, accident
and illness records for the years 1987 through 1989. Area Director
Hunter recalled that KWW responded to the subpoena by providing some
information on April 23, 1990, but that no medical support documents
were included. According to Hunter, Dan Price advised him at that time
that KWW did not have the requested medical records. Hunter testified
that Price later called to advise him that most of the records were kept
at the offices of Drs. Wagner & Wagner and could not be released without
employee consent.

In a May 9, 1990 letter to CO Jones from the offices of Drs. Wagner &
Wagner regarding an apparent April 28 request from Jones to the doctors
for medical reports, the doctors emphasized that they were not employed
or retained by KWW to provide medical care for KWW employees who
sustained job-related injuries, and that their care of such employees
was based on a private doctor-patient relationship. The letter explains
that it is the doctors' understanding that they were not the sole care
providers to KWW employees, but that their proximity to KWW resulted in
their having provided medical care to KWW employees for the majority of
job-related injuries during the relevant time period. The letter also
indicates that under the Texas Medical Practice Act, all care is
confidential and privileged, but that all necessary information under
the state Workers' Compensation Law is provided either to KWW or their
designated workers' compensation carrier. By approximately June 15,
1990, OSHA received the requested medical records from Drs. Wagner &
Wagner pursuant to a June 7, 1990 subpoena served directly on the doctors.

Not included with the records obtained from Drs. Wagner & Wagner were
the medical records pertaining to approximately seventy-five cases
treated by other medical care providers. From late June through
mid-July, KWW sent a series of letters to various doctors requesting the
medical records, and sent requests to employees for their authorization
to release the records. A letter from one group of doctors advised KWW
that, pursuant to the workers' compensation statutes, the doctors would
need either patient authorization or a subpoena to release any medical
records. One of KWW's insurance carriers advised that due to a perceived
"privacy issue" it could provide medical information concerning only
open claims. KWW's workers' compensation carrier informed KWW that it
would be unable to provide most of the medical records KWW requested
from it because those claims were closed and the files were no longer
available. They offered to forward copies of the six compensation claim
cases still open. It is undisputed that by the time the citation issued
on September 18, 1990, OSHA had received all of the medical records KWW
was able to obtain, which comprised approximately 95% of the records
OSHA requested.

This evidence establishes that KWW did not "make, maintain, or contract
for" the medical records OSHA requested. Under these circumstances, the
standard provides that KWW would have had an obligation to obtain the
records for OSHA only if KWW had "access" to them. Access is defined as
the "right and opportunity to examine and copy." KWW argues that under
Texas law it had no such right, as it was precluded from obtaining
employee medical records pertaining to job-related injuries without the
affected employee's consent. The relevant Texas statute provides, /inter
alia, /that the Workers' Compensation Commission will release employee
"injury information" to an employer if:

    (1) the claim is open or pending before the commission, on appeal to
    a court of competent jurisdiction, or the subject of a subsequent
    suit where the insurance carrier or the subsequent injury fund is
    subrogated to the rights of the named claimant . . . .

Tex. Civ. Stat. Ann., Art. 8308-2.31(c), (d) (1992).

The record here contains evidence concerning the status of only a few of
the workers' compensation claims involving the employees whose medical
records are the subject of this citation item. The medical records are
for injuries that occurred from 1987 to 1989, but they were not
subpoenaed by OSHA until April 1990. The available evidence indicates
that most of the compensation claims were by then closed. In these
circumstances, the Secretary has failed to establish that KWW had a
"right" to examine or copy the requested records. Based on our reading
of the regulations and the rulemaking that underlies them, and in the
absence of a response from the Secretary concerning the applicability of
the access rule here, we conclude on this record that the cited
regulation is inapplicable, and vacate this citation item.[21]

*D. PUNCH PRESS POINT OF OPERATION GUARDS--29 C.F.R. §
1910.217(c)(1)(i)[22]--Items 388 (a) & (b)*

Items 388 (a) & (b) allege willful violations for KWW's failure to
provide point of operation guards on two punch presses. Judge Schwartz
affirmed the violations as willful and assessed a combined penalty of
$5,000. With respect to Item 388(a), the record supports, and KWW does
not deny, Judge Schwartz' conclusion that at the time of the inspection
the punch press was in use and unguarded.[23] In evidence is CO
Antonio's photograph of KWW employee Dennis Kopecky operating a press
that lacked a point of operation guard. While the record does not
indicate whether there was ever a guard on the cited machine or whether
one was removed, Kopecky testified that when guards were installed on
the machines they were bolted in place and not easily removed. KWW has
not alleged, nor is there any evidence to suggest, that it provided
removable guards that employees failed to use. Kopecky also testified
that the press' function changed frequently, sometimes within the course
of a day, and that his supervisor would determine in what mode the punch
press would operate.

The record also demonstrates that KWW was well aware of the hazard
created by an unguarded punch press prior to the 1990 inspection. In
1988, a Commission administrative law judge affirmed a citation against
KWW for its failure to guard a sixty-ton punch press in violation of the
same standard cited here.[24] /See Anderson Excavating & Wrecking Co.,
/17 BNA OSHC 1890, 1892-93 n.8, 1991-93 CCH OSHD ¶ 31,228, p. 43,789 n.8
(No. 92-3684, 1997), /aff'd /per curiam, 131 F.3d 1254 (8th Cir. 1997)
(previous citation for violation of same standard relevant to question
of willfulness). Perhaps the most telling evidence of KWW's awareness of
the hazard came from its safety compliance officer, Paul Morkovsky, who
testified that in the fall of 1989 he became aware that there had been a
"rash" of serious punch press accidents. Moreover, there was evidence of
other punch press injuries that had been known to management personnel.
For example, on June 12, 1989, employee Gloria Ybarra injured two of her
fingers while working on an unguarded punch press, causing the fingers
to be amputated to the second joint, and on May 25, 1988, employee
William Collins had the nails on two of his fingers torn off while
working on an unguarded press. In addition, CO Donald Jones testified
that his records' review for 1988 and 1989 revealed eight to twelve
instances of hand or finger injuries from unguarded punch presses.

In these circumstances, we conclude that the Secretary has established
the existence of the violative condition, employee exposure to the
hazard, employer knowledge of the violation,[25] and a heightened
awareness of the illegality of the condition. In addition, we conclude
that, armed with this information, KWW's failure to install a point of
operation guard on the punch press showed "plain indifference" and
constitutes a willful violation of the Act. /See, e.g., Caterpillar,
Inc., /17 BNA OSHC 1731, 1733, 1995-97 CCH OSHD ¶ 31,134, p. 43,483 (No.
93-373, 1996), /aff'd /122 F.3d 437 (7th Cir. 1997).

Item 388(b) involves an alleged failure to guard a Bassick Department
punch press. Judge Schwartz affirmed the violation based solely on
employee William Collins' testimony concerning a May 1988 accident
involving the cited press. According to Collins, the Bassick Department
was newly-formed at the time of the accident, which occurred when
Collins used his fingertips to rake a part out of a "fairly old"
unguarded press that was prone to double-stroking when cold. He
testified that the machine was unguarded, that he never worked on that
machine after the accident, and that he "vaguely" remembered the 1990
OSHA inspection. Collins provided additional testimony about the
condition of the machine and timing of the OSHA inspection, but we are
unable to determine from it whether he meant to say that the machine on
which he had his accident was unguarded at the time of the inspection.
Nor is there any evidence that the machine was available for use at
anytime after Collins' accident. /See Fabricated Metal Prods., Inc., /18
BNA OSHC at 1073, 1998 CCH OSHD at p. 44,506 ("[t]he Secretary always
bears the burden of proving employee exposure to the violative
conditions"). In these circumstances, we conclude that there is
insufficient evidence to establish that a violation existed within six
months of the September 18, 1990 citation, and vacate this item.

Judge Schwartz assessed a combined penalty of $5,000 for the two
items.[26] We affirm a violation only with respect to Item 388(a) and,
accordingly, we conclude that a penalty amount of $2,500 is appropriate
under the Section 17(j) factors for this single willful violation.

/E. POWER PRESS INJURY REPORTING--29 C.F.R. § 1910.217(g)(1)[27] Items
389, 391, 392, 394-396/

Judge Schwartz affirmed willful violations for these six failures to
report power press injuries as required by section 1910.217(g)(1), and
assessed a penalty of $1,000 for each of them. At issue is the
characterization of the violations and propriety of per instance
penalties.[28]

The evidence establishes that KWW failed to report six power press
injuries during the period August 24, 1987 to November 15, 1989. The
record also shows that KWW knew of the reporting requirement prior to
the time the first of these injuries occurred. OSHA issued a citation to
KWW for a violation of this reporting standard in 1985,[29] and David
Little reported a power press injury on July 15, 1987. Dan Price
testified that he was unaware of the reporting obligation until the
summer of 1989, and that his single reporting failure subsequent to that
time was "inadvertent." Price had reported two power press injuries
between the time he learned of the requirement and the time he failed to
report the last one.

Chairman Rogers and Commissioner Visscher conclude that these facts do
not support a willful characterization. The record contains no specific
explanation for KWW's failure to report the injuries for Items 389, 391,
and 392. Dan Price's failure to report the injuries for Items 394 and
395 occurred before he became aware of the reporting requirement. In
Chairman Rogers' and Commissioner Visscher's view, these failures show a
lack of diligence in complying with the OSHA reporting requirement, but
they find that KWW's single prior citation, followed by its filing of a
single report, is insufficient to establish the heightened awareness
required to establish a willful violation of this reporting standard.
With respect to Item 396, Price admitted that he was aware by then of
the reporting requirement and knew of the injury, but that his failure
to report that injury was inadvertent. In fact, Price had reported two
power press injuries after learning of the requirement. Chairman Rogers
and Commissioner Visscher conclude that his inadvertent failure to
report the third injury was not willful. /See Williams Enters., Inc.,
/13 BNA OSHC at 1257, 1986-87 CCH OSHD at p. 36,589 (willful charge not
justified for mere carelessness or lack of diligence).[30]

The Secretary alleged in the Complaint that these items were willful and
serious, and section 17(k) of the Act provides that a serious violation
is one where "there is a substantial probability that death or serious
physical harm could result . . . ." However, we could find no evidence
that the parties tried the question of whether these reporting
violations were serious. The only testimony remotely related to the
issue is that of Area Director Hunter, who indicated that receipt of
numerous such injury reports might prompt notification to the OSHA Area
Office and lead to an inspection. The Secretary did not address this
issue in her brief. We, therefore, find that the evidence in this case
does not show that the failure to file the required injury reports could
result in a substantial probability of death or serious physical harm.
Accordingly, the violations are affirmed as other-than-serious.

We reevaluate the penalties assessed for these violations in view of the
change in their characterization. Based on the penalty factors discussed
previously, and the change in characterization from willful to
other-than-serious, Chairman Rogers and Commissioner Visscher assess a
penalty of $750 for each of the six violations.

*F. PRESS WELDER POINT OF OPERATION GUARD--29 C.F.R. §
1910.255(b)(4)[31] Item 397(d)*

The Secretary alleged that KWW willfully failed to provide a point of
operation guard on a press welder in violation of section
1910.255(b)(4).[32] Judge Schwartz affirmed a willful violation and
assessed a penalty of $2,500. We find that the evidence pertaining to
this item is insufficient to establish a violation.

The Secretary's Complaint alleges that KWW violated the standard based
on the following condition:

    Respondent violated this standard because the points of operation on
    resistance press welding machines were not guarded to protect
    against the possibility of the operator's fingers being under the
    point of operation: . . . (d) in the wire welding dept. employee was
    operating press welders and had his fingers/hands in the unguarded
    point of operation.

In support of this citation item, Judge Schwartz relied only on the
testimony of former KWW employee Stephen Nobles, who worked as a sheet
metal welder. Nobles testified that he was injured on November 16, 1989,
when his thumb became caught in the jaws of an unguarded press welder
and was severed just above the joint. According to Nobles, KWW had about
three automatic press welders and approximately thirty manual press
welders in the sheet metal welding department. Nobles, who was working
in the wire welding department during the 1990 inspection, testified
that he knew of no guards or hand restraints on the automatic press
welders at that time. Nobles added that the manual press welders also
lacked guards and hand restraints, but that he thought they could not be
guarded.

Nobles at first acknowledged that the machine on which he had been
injured remained unguarded during the inspection. He stated that he
thought the inspector had not seen that press welder because "[t]hey had
taken a forklift and put pallets around it to where you couldn't see the
welder without knowing about it being there." Later, however, Nobles
contradicted his testimony by stating that the machine around which
pallets were stacked was "an identical machine to the one I was hurt on,
not the exact same machine." (Emphasis added). He then responded "no"
when asked whether the machine behind the pallets was in operation
during the inspection.

Based on this evidence, the Secretary has failed to prove a violation.
Because of the inconsistency in Nobles' testimony, it is not possible to
identify the allegedly hazardous press welder as to its size, type,
location, or even whether it was a manual or automatic welder, or to
determine whether its point of operation was unguarded. Nor is it
possible to determine whether any employee was exposed to an unguarded
point of operation. We find that the record does not establish even a
prima facie showing of a failure to comply with the cited standard, or
of employee access to any violative condition. /See Astra Pharmaceutical
Prods., Inc., /9 BNA OSHC at 2129, 1981 CCH OSHD at pp. 31,899-900
(Secretary must show applicability of standard, noncompliance, employee
exposure and employer knowledge to establish violation). Accordingly, we
vacate this citation item.

*II. SERIOUS CITATION*

*A. PRESS BRAKE POINT OF OPERATION GUARD--29 C.F.R. §
1910.212(a)(3)(ii)[33]--Item 9*

The Secretary alleged that KWW failed to guard the point of operation of
a press brake in violation of section 1910.212 (a)(3)(ii). Judge
Schwartz affirmed a serious violation and assessed a $900 penalty. As
with the press welder guarding item discussed above, we find the
evidence insufficient to establish a violation.

In support of this item, Judge Schwartz relied solely on the testimony
of employee Adolph Koncaba. Koncaba had been injured twice on the press
brake, most recently no later than June 5, 1989, and testified that the
machine was equipped with a guarded foot pedal but no point of operation
guard when he operated it. He hadn't operated the press brake at all,
however, since approximately December 1989, and his awareness of the
1990 OSHA inspection was limited to "hear[ing] about some people coming
through."

Compliance Officer Jones recommended this citation item based on
Koncaba's statement and the evidence of Koncaba's previous injuries
sustained while working on the press brake. Jones admitted that he had
never seen the press brake himself, and that he had no personal
knowledge that the allegedly violative condition existed in 1990.

We conclude that this evidence is insufficient to establish that the
press brake was unguarded and available for use within six months of the
September 1990 citation. It is undisputed that Koncaba stopped working
on the press brake at least nine months prior to the citation. Koncaba's
sole testimony concerning the condition of the press brake at the time
of the inspection was his affirmative reply when asked whether the press
brake was then equipped with two-hand buttons. Although Koncaba's answer
might imply the continued existence and use of the machine, he was not
working on it at the time and was hardly aware of the inspection. The
Secretary contends that Koncaba "was clearly familiar with the current
operation of the press brake," but we find that the record does not
establish a failure to comply with the cited standard or establish
employee access to any violative condition within six months of the
citation. Accordingly, we vacate this item.

*B. TABLE SAW--"NONKICKBACK FINGERS"--29 C.F.R. § 1910.213(c)(3)--Item 11*

The Secretary alleged a serious violation for KWW's failure to have
nonkickback fingers on a table saw in violation of section
1910.213(c)(3).[34] Judge Schwartz affirmed the violation and assessed a
$100 penalty. We vacate this citation item for the following reasons.

The cited standard applies by its own terms to a ripsaw, yet we could
find no evidence in the record regarding the type of blade with which
this table saw was equipped. The Citation and Complaint describe the
allegedly violative piece of equipment as a "Craftsman Table Saw."
Although there is a photograph of the saw entered in evidence, we are
unable to determine from it whether the saw is a ripsaw. Employee Kevin
Willhoite, who operated the table saw daily, described some of his work
on it as "ripping" plywood." Nonetheless, when asked what type of saw
was pictured in the photograph, he replied only that it was a table saw.
The Secretary acknowledged in her initial brief that KWW contested the
applicability of the standard to the cited saw, but she did not respond
to that contention either in her initial brief or on reply.

There is also conflicting evidence as to whether the saw lacked
nonkickback fingers. CO Antonio was unequivocal in his assertion that
the saw did not have nonkickback fingers. According to Willhoite,
nonkickback fingers were added to the saw after he had been employed at
KWW a little while. When asked whether he remembered if the nonkickback
fingers were added after the OSHA inspection, Willhoite replied that he
"really [couldn't] remember exactly what period of time that happened."
He testified that the nonkickback fingers were present in the photo of
the cited saw, but he pointed out that they could not be discerned in
the photo because of their position on the guard. Willhoite also
testified that the table saw pictured with nonkickback fingers in
another photo appeared identical to the condition of the cited saw at
the time of the inspection.

Based on his finding that Willhoite's testimony was equivocal, Judge
Schwartz concluded that the nonkickback fingers were installed on the
saw after the inspection and affirmed the violation. We agree that
Willhoite's testimony was somewhat equivocal concerning the timing of
the inspection in relation to the installation of the nonkickback
fingers, and that Antonio's testimony, though less detailed, was
unequivocal. Nonetheless, in view of this conflicting testimony, and the
lack of evidence concerning applicability of the standard to this
particular saw, we conclude that the record does not support the
existence of a violation and vacate this item.

*C. POWER PRESS INSPECTIONS and CERTIFICATION RECORDS 29 C.F.R. §
1910.217(e)(1)(i)and (ii)--Items 16(a) & (b), and 17 (a) & (b)*

Judge Schwartz affirmed violations for Items 16 (a) & (b), and 17 (a) &
(b) for

KWW's alleged failure to have fully implemented any power press
inspection program, including the requisite certification records, by
the time of the OSHA inspection. He assessed a penalty of $500 each for
Items 16 and 17.

Item 16 alleges a violation of 29 C.F.R. § 1910.217(e)(1)(i), which
provides:

    It shall be the responsibility of the employer to establish and
    follow a program of periodic and regular inspections of his power
    presses to ensure that all their parts, auxiliary equipment, and
    safeguards are in a safe operating condition and adjustment. The
    employer shall maintain a certification record of inspections which
    includes the date of inspection, the signature of the person who
    performed the inspection and serial number, or other identifier, of
    the power press that was inspected.

Item 17 alleges a violation of 29 C.F.R. § 1910.217(e)(1)(ii), which
provides:

    Each press shall be inspected and tested no less than weekly to
    determine the condition of the clutch/brake mechanism, antirepeat
    feature and single stroke mechanism. Necessary maintenance or repair
    or both shall be performed and completed before the press is
    operated . . . . The employer shall maintain a certification record
    of inspections, tests and maintenance work which includes the date
    of the inspection, test or maintenance; the signature of the person
    who performed the inspection, test or maintenance; and the serial
    number or other identifier of the press that was inspected, tested
    or maintained.

KWW personnel manager Dan Price testified that he developed a written
punch press inspection program in August 1989 to identify KWW's
inventory of presses and provide for inspections and maintenance of
inspection records. Price also testified that at the time of the OSHA
inspection in March 1990, KWW had submitted the program to its
department supervisors and was "in the process" of "identifying and
setting up files on each individual press."

CO Antonio testified that he discussed with Dan Price whether KWW had a
power press inspection program and whether it kept records of
maintenance on its power presses. According to Antonio, Price told him
"no, that they did not have a power press inspection program, that he
was working on one trying to identify all the equipment that they had so
they could develop that type of program." Antonio also stated that Price
informed him that maintenance records were not available.

In response to a September 4, 1990 subpoena, however, KWW did provide
copies of mechanical press maintenance records dating from January 1,
1990. While those records provide much of the information required by
the standard, many of them do not provide the required work completion
date, or any indication that needed maintenance was performed. Along
with those records, KWW sent a letter to AD Hunter in which it states
that although "mechanical press operators inspect their individual
presses at the beginning of each shift and safety apparatus are
inspected more frequently[,] [t]hese inspections have not been formally
documented and are not available for reproduction."

The record clearly demonstrates that KWW had not adequately complied
with the power press inspection and certification record requirements of
the cited standards at the time of the 1990 inspection. In fact, KWW
does not contend that it had. Rather, KWW argues that Items 16 and 17
are duplicative, and therefore cannot support two separate violations.
We disagree. The standards pertain to different power press components
and provide for different inspection frequencies. Section
1910.217(e)(1)(i) provides for "periodic and regular" inspections of
"all parts, auxiliary equipment and safeguards" to ensure that the
equipment is "in a safe operating condition," whereas section
1910.217(e)(1)(ii) provides for "weekly" inspections of the
"clutch/brake mechanism, antirepeat feature and single stroke mechanism"
and includes a testing requirement and mandates completion of necessary
maintenance or repairs before continued operation of the press.
Accordingly, although KWW could design an inspection program broad
enough to encompass all of the requirements of both standards, it would
be possible for it to fully comply with either one of the cited
standards and still fail to satisfy all of the requirements of the
other. In these circumstances, we conclude that the judge properly
affirmed violations for both citation items.

The judge assessed a penalty of $500 each for items 16 and 17. The
Secretary argues that the proposed penalty of $1000 for each item is
warranted because of KWW's long delay in implementing its program and
because KWW could have avoided numerous power press point of operation
injuries had KWW complied with the inspection and maintenance
requirements earlier.

We note that a lack of adequate guards more likely contributed to KWW's
accident history. We have little basis, however, on which to evaluate
whether KWW's pre-inspection development of the power press program
warrants a penalty reduction. Thus, while KWW first began to develop a
power press inspection program only seven or eight months prior to the
OSHA inspection and had still failed to accomplish its implementation,
we do not know how long KWW had power presses in the plant and whether
it had ever had the requisite inspection program. In these
circumstances, and in consideration of the 17(j) factors discussed
above, we affirm the judge's penalty assessment of $500 each for Items
16 and 17.

*D. PULLEY AND BELT GUARDS--29 C.F.R. § 1910.219(d)(1)[35] and
(e)(3)(i)[36]--Items 18(a) & (b) and 19(a) & (b)*

Judge Schwartz affirmed serious violations for Items 18 and 19 for KWW's
failure to guard a pulley and belt on each of two pieces of equipment: a
wire welding department fan and a maintenance department table saw.[37]
He assessed penalties of $100 for each item.

KWW does not dispute that the cited equipment was unguarded in the
manner alleged. Rather, it contends that the Secretary failed to
establish that the equipment did not fall within an exception to the
standard, and failed to establish employee exposure to the hazards. With
respect to KWW's first contention, we note that the standard does
"except" from its application specific types of belts when operating
below a particular speed. 29 C.F.R. § 1910.219(a)(1) & (2). The
Commission has repeatedly held, however, that "the party claiming the
benefit of an exception to the requirements of a standard has the burden
of proof of its claim." /Kaspar Electroplating Corp., /16 BNA OSHC 1517,
1522, 1993-95 CCH OSHD ¶ 30,303, p. 41,759 (No. 90-2866, 1993) (citing
/Con Agra Flour Milling Co., /15 BNA OSHC 1817, 1823, 1992 CCH OSHD ¶
29,808, p. 40,593 (No. 88-2572, 1992). See also /Griffin & Brand of
McAllen, Inc., /4 BNA OSHC 1900, 1903-04, 1996-97 CCH OSHD ¶ 21,338, p.
25,682 (No. 4415, 1976) (respondent bears burden of proving entitlement
to exceptions contained in pulley and belt guarding standard at 29
C.F.R. § 1910.219(a)(1)). Here, KWW has introduced no evidence that the
cited equipment conforms to the standard's exception. In addition, the
photographic exhibits make clear that the allegedly hazardous conditions
are well within the "seven (7) feet or less from the floor" requirement
of the pulley guarding standard. The Secretary, therefore, has
established that the standard applies to the cited equipment.

*EXPOSURE*

The evidence pertaining to employee exposure to the cited hazards
presents a close factual determination. CO Antonio observed the fan and
table saw during his inspection and testified that neither was in use,
but that both were plugged in and available for use and that the table
saw was covered with sawdust.

With respect to the fan, we note initially that the photographic exhibit
clearly shows that the unguarded condition is unobstructed and protrudes
out from the body of the fan. Although the motor to which the belt and
pulley are attached is located inside the fan's narrow metal framework,
it is very close to the edge. CO Antonio stated that although the fan is
large and heavy, it is movable. He also observed employees working in
the area, and observed that the fan was located close to the edge of an
aisle way where he had seen employees walking "approximately two to
three feet from it." Antonio admitted that he did not know "how often,
if ever," the fan was used, and knew of no injuries resulting from the
unguarded condition.

KWW compliance officer Morkovsky testified that the fan was located
fifteen feet from the nearest workstation.[38] Morkovsky, however, did
not accompany Antonio during the inspection or visit the wire welding
department on the inspection day. He, therefore, admitted that he would
not know how close an employee would have come to the fan on that
particular day.

With respect to the saw, CO Antonio testified that the belt is located
behind the saw below the level of the saw table surface, and admitted
that normal operation of the saw would not expose the operator to the
unguarded belt or pulley. Antonio also stated that although nothing was
stored below the saw and he observed no reason for any employee to get
underneath the saw near the belt or pulley during the inspection, an
employee might reach underneath the saw table "to pick up something he
dropped off the floor."

KWW employee Kevin Willhoite, who operated the table saw daily,
testified that he worked from a position behind the saw when ripping
large sheets of plywood, but that ninety to ninety-five percent of the
time he worked from the front of the table. He also stated that when
working from the back, he would stand approximately two feet away and
that his hands remained on the wood and never went below the table. In
addition, Willhoite indicated that there would be no reason for him to
reach down to the level where the pulley and the belt were located.
Although he was not sure whether he had ever accidentally dropped
something on the floor behind the saw, he did not believe that he would
have done so while the table saw was operating. He also noted that it
takes a few seconds for the saw to quit running after the switch is
turned off. Willhoite was never injured on the table saw, and Antonio
knew of no injuries resulting from its unguarded condition.

*DISCUSSION*

Commission precedent establishes that the Secretary bears the burden of
proving employee exposure to cited hazards, which requires her to "show
that it is reasonably predictable either by operational necessity or
otherwise (including inadvertence), that employees have been, are, or
will be in the zone of danger." /Fabricated Metal Prods., Inc., /18 BNA
OSHC at 1073-74, 1998 CCH OSHD at p. 44,506. The circumstances during
which employees might be considered within the danger zone include times
when they engage in activities in the course of their assigned working
duties, their personal comfort while on the job, or their normal means
of ingress and egress to their assigned workplaces. /See Giles &
Cotting, Inc., /3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ¶ 20,448, p.
24,425 (No. 504, 1976).

Here, the cited fan was plugged in and available for use, and was
located within two to three feet of where Antonio observed employees
walking in an aisle way. Moreover, Antonio's unrebutted testimony that
the fan is movable is supported by its appearance in the photo, which
also depicts the motor as unobstructed and protruding. Although there is
no evidence that any employee has ever been injured by the unguarded fan
belt or pulley, the configuration of the fan combined with its location
adjacent to an employee walkway establishes the requisite exposure to
support a violation. /See ConAgra Flour Milling Co., /16 BNA OSHC 1137,
1150, 1993-95 CCH OSHD ¶ 30,045, p. 41,243 (No. 88-1250, 1993), rev'd in
part on other grounds, 25 F.3d 653 (8th Cir. 1994) (finding exposure
despite fact that no injuries had occurred, Commission noted that
"occurrence of injuries is not dispositive in determining whether a
violation exists[,]" and that "'presence of a hazard is established by
the objective facts concerning the configuration and operation of a
machine'") (citation omitted). In these circumstances, we conclude that
it is "reasonably predictable" that an employee would come into contact
with the unguarded belt and pulley either while attempting to reposition
the fan, or inadvertently while passing nearby.

The facts here differ from those in /Miniature Nut and Screw Corp., /17
BNA OSHC 1557, 1995-97 CCH OSHD ¶ 30,986 (No. 93-2535, 1996). In that
case, the Commission vacated a citation of the same standard, but the
cited pulley and belt in that case were partially guarded, the operator
came no closer than two feet from the cited area, and the existing guard
was adequate to prevent accidental contact. 17 BNA at 1562-63, 1995-97
CCH OSHD at p. 43,180. Here, there is nothing to prevent such accidental
contact. /See ConAgra Flour Milling Co., /16 BNA OSHC at 1150, 1993-95
CCH OSHD at p. 41,243 ("working in close proximity to unguarded
machinery where access is not otherwise impeded or obstructed is
sufficient to show exposure to a hazard"). /But see Jefferson Smurfit
Corp., /15 BNA OSHC 1419, 1422, 1991-93 CCH OSHD ¶ 29,551, p. 39,954
(No. 89-553, 1991) (evidence must show more than a mere possibility that
employees walking past cited equipment could come in contact with an
unguarded nip point). Accordingly, we affirm serious violations for
Items 18(a) and 19(a).

With respect to the table saw, however, we conclude that there is
insufficient evidence to establish that it is reasonably predictable
that employees would be in the danger zone. Although the photograph of
the table saw shows that the unguarded condition protrudes out from the
back, employee Willhoite, who used the table saw daily, testified that
an operator would be working in that position very
seldomly--approximately five to ten percent of the time. He also
testified that when he did work from that position, he stood two feet
away from the table and held the wood being cut with both hands.

Accordingly, as CO Antonio admitted, the evidence establishes that
normal operation of the saw would not expose the operator to the
unguarded belt or pulley. Although Antonio thought an employee might
accidentally contact the unguarded belt and pulley when reaching below
the saw table for something that had been dropped, Willhoite testified
that he believed that he would not have accidentally dropped anything
while operating the saw, and that the saw stops running "a few seconds"
after turning off the switch. In these circumstances, we conclude that
the Secretary has not established the requisite employee exposure to the
table saw belt and pulley, and vacate Items 18(b) and 19(b).

The judge assessed penalties of $100 for Item 18 (a) & (b) and $100 for
Item 19 (a) & (b). We affirm only Items 18(a) (fan pulley) and 19(a)
(fan belt) and, accordingly, we assess a $100 total penalty for these
items.[39]

*E. GROUNDING PATH--29 C.F.R. § 1910.304(f)(4)[40]--Item 22*

Judge Schwartz affirmed a serious violation of section 1910.304(f)(4)
based on KWW's failure to maintain the ground on a pedestal fan plug in
the wire welding department and on a pressure washer cord in the
silkscreen area. At issue is whether KWW knew, or with the exercise of
reasonable diligence could have known, of the violative conditions.

According to KWW compliance officer Morkovsky, KWW had 1500 to 2000
electrical outlets, and he had not been aware that the grounding plugs
cited in Item 22 were broken. Morkovsky also stated that there would be
no need to remove a grounding plug because none of its outlets were
two-prong, it was KWW's policy that they not be removed, but that when
missing grounding plugs were identified, the cord should be cut to
prevent its use until it can be replaced.

CO Antonio admitted that he could not tell how long the fan plug had
been broken, or even whether it might have broken on the day of the
inspection. Antonio also acknowledged that he could not tell whether a
supervisor would have had an opportunity to see the broken plug prior to
the time he noticed it. Similarly, with respect to the pressure washer
plug, we could find no evidence concerning how long the condition had
been in existence, whether and when a supervisor might have visited the
work area, or even whether and when that particular washer had been used.

We find that the Secretary has failed to establish the requisite
employer knowledge. Morkovsky's claim that he did not know of the cited
conditions is uncontroverted, and there is no evidence that any other
supervisor had such knowledge. While the Commission has held that
constructive knowledge may be found where the Secretary demonstrates
that an employer's failure to discover violative conditions was due to a
lack of reasonable diligence in inspecting its worksite, /Texas A.C.A.,
Inc., /17 BNA OSHC 1048, 1050, 1993-95 CCH OSHD ¶ 30,652, pp. 42,525-26
(No. 91-3467, 1995), here there is simply no evidence concerning whether
or when KWW inspected the electrical cords on its equipment. Nor has the
Secretary offered "evidence to show what would constitute reasonable
diligence under the circumstances." /See Centex-Rooney Construc. Co.,
/16 BNA OSHC 2127, 2129, 1993-95 CCH OSHD ¶ 30,621, p. 42,409 (No.
92-0851, 1994) (employer knowledge of faulty electrical switch not shown
where record indicated that employer regularly conducted random checks
and Secretary did not establish what would constitute reasonable
diligence). Finally, in the absence of any evidence indicating how long
the violative conditions had been in existence, we are unable to
evaluate whether KWW could have known of them even if it had been
reasonably diligent in inspecting its equipment. See Ragnar Benson, No.
97-1676, slip op. at 7 (September 27, 1999) (constructive knowledge not
shown where lack of evidence of violation's duration precluded
determination whether employer could have known of condition with
exercise of reasonable diligence). In view of these deficiencies in the
evidence, we conclude that the Secretary has not established that KWW
had constructive knowledge of the cited conditions, and vacate this item.

*F. EQUIPMENT GROUNDING--29 C.F.R. § 1910.304(f)(5)(v)[41]--Item 23*

Judge Schwartz affirmed a serious violation for KWW's failure to ground
the metal reflector tops of two lamps in the shipping area and six lamps
in the sheet metal welding area as required by section
1910.304(f)(5)(v).[42] He assessed the proposed penalty of $700.

KWW does not deny that the cited lamps were ungrounded, but rather
argues that the standard does not apply to them because they are not
portable.[43] The record provides little evidence upon which to assess
portability. With respect to the two shipping department lamps, CO
Antonio described them as "portable" and testified that they were
equipped with ungrounded metal reflectors and two-wire type attachment
cords. He added that they were "clamp type lamps," attached to a bracket
five or six feet high on a wall, and were used when loading and
unloading trucks. Antonio took no photos of the lamps, but his testimony
is uncontroverted.

The six sheet metal department lamps were, according to Antonio, the
same type as those used in the shipping department, but he admitted that
these were attached to welding jigs. He further testified that although
he did not handle any of the lamps, he believed that they were screwed
on and would have to be unscrewed in order to be removed from the jigs.
KWW sheet metal welding department supervisor Michael Moeller testified
that he was familiar with the six cited lamps located in his department,
and that they were "bolted to a jig." He agreed that the lamps were not
portable; that they could not be picked up and moved around.

The portability element of the standard requiring that metal lamp parts
be grounded appears to be based on the electrical shock hazard presented
when such lamps are handled while plugged in and not otherwise grounded.
CO Antonio described the two shipping department lamps as "portable" and
"clamp-type." His testimony is unrebutted. The evidence pertaining to
the six sheet metal welding department lamps, however, indicates that
they were attached by screws to welding jigs. We conclude that the
evidence establishes a violation with respect to the two shipping
department lamps based on the unrebutted testimony of their portability,
and affirm a violation on that basis. We also conclude, however, that
the Secretary has failed to meet her burden to establish portability
with respect to the six sheet metal welding department lamps that were
bolted onto welding jigs. Accordingly, we vacate that portion of the
citation item that pertains to these six lamps.

The judge assessed the proposed penalty of $700 for all eight lamps. As
for the section 17(j) penalty factors, KWW's size and history are
discussed above. We have little evidence upon which to assess the
gravity of this violation, but note that the ungrounded lamps were fully
exposed and located just five or six feet above the floor. The number of
exposed employees, however, is significantly reduced based on our
finding that the standard applies to only two of the eight cited lamps.
Accordingly, we assess a penalty of $200.

*III. ORDER*

Based on the foregoing, we issue the following order with respect to the
citation items addressed in this Decision:

*WILLFUL CITATION*

*Items 1-171; 173-189; 191-263; 265-385*

We affirm willful violations for the following Items: 1-9, 12-14, 16-21,
23-26, 29-33, 36, 38, 40, 42-43, 45-52, 55-71, 73-90, 92-103, 106-109,
111-113, 115-117, 119-136, 138-139, 141-148, 150-171, 173-189, 191-202,
204-205, 207-213, 215-222, 224-227, 229-263, 265-279, 281-287, 290-292,
294-295, 297-307, 309-310, 312-358, 360-363, 365-379, 381-385. We assess
an aggregate penalty of $210,500 for these items.

We affirm other-than-serious violations for the following Items: 10, 15,
22, 34, 44, 72, 104, 114, 206, 223, 228, 296, 308, 359. We assess an
aggregate penalty of $4,875 for these items.

We vacate the following Items: 11, 27, 28, 35, 37, 39, 41, 53, 54, 91,
105, 110, 118, 137, 140, 149, 203, 214, 280, 288, 289, 293, 311, 364,
and 380.

*Items 386(a) & (b)*--We affirm other-than-serious violations for Items
386(a) and (b) and assess a combined penalty of $375.

*Item 387*--We vacate this item.

*Items 388(a) & (b)*--We affirm a willful violation for Item 388(a) and
assess a penalty of $2,500. We vacate Item 388(b).

*Items 389, 391, 392, 394-396*--We affirm other-than-serious violations
for Items 389, 391, 392, 394-396, and affirm a penalty of $750 for each
of these six items.

*Item 397(d)*--We vacate this item.

*SERIOUS CITATION*

*Item 9*--We vacate this item.

*Item 11*--We vacate this item.

*Items 16(a) & (b) and 17(a) & (b)*--We affirm (without
characterization) Items 16 and 17, and assess a penalty of $500 for each
of them.

*Items 18(a) & (b) and 19(a) & (b)*--We affirm Items 18(a) and 19(a),
for which we assess a combined penalty of $100. We vacate Items 18(b)
and 19(b).

*Item 22*--We vacate this item.

*Item 23*--We affirm Item 23 and assess a penalty of $200.

 

/s/________________________
Thomasina V. Rogers
Chairman

 

/s/________________________
Stuart E. Weisberg
Commissioner

Date: July 3, 2000

------------------------------------------------------------------------

VISSCHER, Commissioner, concurring in part and dissenting in part:

I concur except with regard to the finding that Kaspar Wire Works's
(KWW's) recordkeeping violations, other than those involving restricted
work activity, were willful. I would classify all of KWW's recordkeeping
violations in this case as other than serious.

"To prove a willful violation, the Secretary must show that the employer
acted voluntarily, with either intentional disregard of or plain
indifference to OSHA requirements." /Georgia Elec. Co. v. Marshall, /595
F.2d 309, 318 (5th Cir. 1979).

Although the Secretary claims that KWW intentionally disregarded the
recordkeeping requirements in order to evade inspections, the judge
concluded that the evidence does not support this contention.[44] His
decision stresses the fact that despite the number of recordkeeping
errors made by KWW on its 1988 and 1989 OSHA 200 logs, the 200 logs
still yielded a LWDI /above /the national average. He also noted that
during previous inspections of KWW and its affiliates subsidiaries, OSHA
had reviewed both the 200 logs and the E-1 and first aid logs. As the
judge observed, KWW thus had little reason to believe that it could have
concealed injuries from the Secretary by recording them only in its
first aid log. And, as the judge also concluded, "there is no evidence
that Knezek, Little, or Price [the three KWW employees responsible for
recordkeeping] had any specific knowledge of OSHA's recordkeeping
requirements and consciously disregarded those requirements."

Unlike the judge, the majority now concludes that KWW did intentionally
violate OSHA's recordkeeping standards. They do not support this finding
with any record evidence of intent, nor do they attempt to explain why,
if KWW was intentionally violating the law, it did not do so in a way
that would have avoided a comprehensive inspection.

The majority also concludes that the violations (other than those
involving restricted work activity) were willful because KWW was
"plainly indifferent." As the Eight Circuit Court of Appeals recently
observed, "[t]he point at which conduct becomes 'plainly indifferent'
rather than simply negligent defies easy formulation." /McKie Ford, Inc.
v. Secretary, /191 F.3d 853, 856 (8th Cir.1999). Nonetheless, the courts
and the Commission have insisted that something more than carelessness
or negligence be shown. /Id./ ("There must be evidence of aggravating
circumstances, apart from mere lack of diligence or adequate care, in
order to satisfy the standard"); /Caterpillar, Inc. v. Herman, /154 F.3d
400 (7th Cir. 1998) ("Whether it was a willful violation depended on
whether it resulted from a conscious disregard of the regulation, or was
merely careless"); /Beta Constr. Co., /16 BNA OSHC 1435, 1444,1993 CCH
OSHD ¶ 30,239, p. 41,652 (No. 91-102, 1993)("In order to establish a
willful violation, the Secretary must show more than simple lack of
diligence or carelessness on the part of the employer"). "A willful
violation is differentiated by a heightened awareness--of the illegality
of the conduct or conditions--and by a state of mind--conscious
disregard or plain indifference." /Williams Enterp., Inc., /13 BNA OSHC
1249, 1256, 1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987).

By finding that KWW was plainly indifferent, the majority has run
roughshod over the distinction between willfulness and simple
carelessness. They claim to find support in the fact that instructions
for recording injuries and illnesses were printed on the front and back
of the OSHA 200 form. But, even assuming that those instructions were
clear regarding each injury, mere knowledge of the requirements of a
standard or regulation does not establish that a violation was willful.
/See Sal Masonry Contrac., Inc., /15 BNA OSHC 1609, 1612, 1991-93 CCH
OSHD ¶ 29,673, p. 40,208 (No. 87-2007, 1992); /Wright & Lopez, Inc., /8
BNA OSHC 1261, 1265, 1980 CCH OSHD ¶ 24,419, p. 29,777 (No. 76-3743,
1980). To rely on the instructions printed on the OSHA form to prove
willfulness is to make every recordkeeping violation willful. /See TWA
v. Thurston, /469 U.S. 111, 128 (1985) (rejecting willfulness based on
mere awareness of statute).

The majority finds further support in the rate at which Kasper
misrecorded injuries during 1988 and 1989 as compared with 1984. But, as
the majority acknowledges, the record itself provides no explanation for
this disparity. The majority has simply inferred a willful state of mind
from the increased number of recording errors.

Indeed, the record in this case does not contain the type of evidence
necessary to show heightened awareness of the illegality of the conduct.
The Commission will find heightened awareness "where an employer has
been previously cited for violations of the standards in question, is
aware of the requirements of the standards, and is on notice that
violative conditions exist." Propellex Corp., 18 OSHC 1677, 1684, 1999
CCH OSHD ¶ 31,792, p. 46,591-92 (No. 96-0265, 1999), quoting /J.A. Jones
Constr. Co., /15 BNA OSHC 2201, 2209, 1991-93 CCH OSHD ¶ 29,964, p.
41,029 (No. 87-2059, 1993). KWW and its affiliates had been inspected
eight times between 1982 and 1990, including several inspections of
injury and illness records, but had not been previously cited for its
recordkeeping practices, even though KWW acknowledges that records
reviewed by the Secretary in previous inspections did contain errors.
While the fact that KWW's recordkeeping was not cited in earlier
inspections would not provide a defense to the current violations, the
fact that the Secretary did not cite KWW previously no doubt reduced,
rather than heightened, KWW's awareness that its recordkeeping did not
comply with OSHA's standards.

Nor is this case similar to cases that have found "heightened awareness"
from the fact that employees were exposed to visibly dangerous
conditions. /See, e.g., Brock v. Morello Bros. Construction, /809 F.2d
161, 164 (1st Cir. 1987)(referring to "instances in which unsafe conduct
is so egregious, so life-threatening" that willfulness can be presumed
"from the offender's knowledge of conditions"); /Ensign-Bickford Co. v.
OSHRC, /717 F.2d 1419 (D.C. Cir. 1983); (improper handling of highly
explosive substances); /E.L. Davis Contrac. Co., /16 BNA OSHC 2046,
2052, 1994 CCH OSHD ¶ 30,580, p. 42,342 (No. 92-35, 1994)(untrained
employees working in unshored, 22 foot-deep excavation without
protective equipment). Unlike these cases, it can hardly be argued that
KWW's recordkeeping violations were somehow highly unsafe working
conditions.

The majority decision departs from prior cases in another aspect as
well. The Secretary cited KWW for 382 separate violations of section
1904.2(a). The Commission has upheld the Secretary's authority to cite
each non-recorded or misrecorded injury or illness required by section
1904.2(a) on an "instance-by-instance" basis, so long as the multiple
violations do not result from a single course of action. /Caterpillar,
Inc., /15 BNA OSHC 2153, 2172-73, 1991- 93 CCH OSHD ¶ 29,962, pp.
41,005-07 (No. 87-922, 1993). In order to prove that these violations
were willful, the Secretary must establish that KWW displayed a willful
state of mind with regard to each violation. /See Monfort of Colorado,
Inc., /14 BNA OSHC 2055, 2061, 1991-93 CCH OSHD ¶ 29,246, p. 39,185 (No.
87-1200, 1991)(finding willfulness dependent on employer's underlying
state of mind at the time of the violation). I can think of no reason
why this requirement should be eliminated simply because the Secretary
has chosen the cite the violations on an instance-by-instance basis. Had
the Secretary shown a consistent pattern of misrecording, then there
might have been some basis for finding that a single state of
mind--willfulness--characterized each of the individual violations.
/See, e.g., Sanders Lead Co., /17 BNA OSHC 1197, 1202, 1993-95 CCH OSHD
¶ 30,740, p. 42,694 (No. 87-260, 1995). The record does not show that
KWW was pursuing any sort of plan, however, and the random character of
KWW's recordkeeping errors belies the suggestion that such a plan
existed. Some injuries were recorded, some were not. There simply is no
evidence here connecting a state of mind with the individual
recordkeeping violations.

I recognize that KWW's recordkeeping practices during 1988 and 1989
resulted in a large number of errors. It is not likely that those errors
would have occurred had KWW been reasonably diligent about complying
with the recordkeeping regulation. The question, however, is whether the
record supports the further finding that those recording errors resulted
from something more than carelessness: that they resulted from conduct
that can be characterized as willful. By finding KWW's recordkeeping
violations here to be willful, the majority has erased the distinction
between carelessness and willfulness, and has allowed proof that
establishes no more than constructive knowledge of the violations
themselves to sustain a finding that the violations were willful.

Since I have concluded that this group of violations was not willful, it
follows that I would assess a more nominal penalty than that assessed by
the majority.

 

/s/________________________
Gary L. Visscher
Commissioner

Date: July 3, 2000

------------------------------------------------------------------------

[1] This case is unaffected by the revised penalty amounts prescribed in
the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, §
3101 (1990).

[2] 29 C.F.R. § 1904.2(a) provides:

    Each employer shall, . . . (1) maintain in each establishment a log
    and summary of all recordable occupational injuries and illnesses
    for that establishment; and (2) enter each recordable injury and
    illness on the log and summary as early as practicable but no later
    than 6 working days after receiving information that a recordable
    injury or illness has occurred. For this purpose form OSHA No. 200
    or an equivalent which is as readable and comprehensible to a person
    not familiar with it shall be used. The log and summary shall be
    completed in the detail provided in the form and instructions on
    form OSHA No. 200.

[3] Although only the characterization of the recordkeeping items was
directed for review, our examination of the record here revealed a lack
of sufficient evidence to establish that twenty-five citation items were
recordable. Accordingly, we address the characterization question with
regard to the 357 items we affirm, and vacate the following items: 11,
27, 28, 35, 37, 39, 41, 53, 54, 91, 105, 110, 118, 137, 140, 149, 203,
214, 280, 288, 289, 293, 311, 364, and 380. In particular, for items 11
and 35, the sole alleged basis for recordability is medical treatment,
which the evidence indicates consisted only of ultrasound therapy.
Neither the instructions on the OSHA 200 nor the Bureau of Labor
Statistics guide indicate whether ultrasound constitutes recordable
medical treatment. For items 27, 39, 41, 110, 149, 214, 288, and 289 the
only evidence of alleged medical treatment is the application of
steri-strips without any indication of whether they were used in lieu of
sutures. The evidence for items 28, 53 and 54 indicates that the
employees suffered eye injuries but does not establish that foreign
bodies were removed. Although the evidence indicates that prescription
medications were used to treat the injuries sustained in items 37 and
140, the record does not indicate whether the medications were
administered as more than just a single dose. The evidence for item 203
pertains to a knee injury, which does not match the Complaint allegation
of a hand contusion. Finally, for items 91, 105, 280, 311, 364, and 380
the record contains insufficient evidence to establish that any
recordable medical treatment was administered, as alleged.

[4] The OSHA No. 200-S consists of an annual report provided to the
Bureau of Labor Statistics in which employers record the previous year's
totals with respect to hours worked and recordable injuries and
illnesses, but do not list the incidents individually as they do on the
OSHA 200.

[5] According to Dan Price, employee medical information was available
to KWW upon request when deemed "necessary."

[6] There was some apparent confusion, however, concerning whether
injuries initially thought not to involve lost workdays, which were
listed only on the first-aid log, should be added to the OSHA 200 or the
200-S when they ultimately resulted in lost workdays.

[7] OSHA first inspected Kaspar's Shiner facilities in 1982 and
conducted eight inspections, three of which involved KWW, between that
time and the March 1990 inspection. All of the inspections included a
records' review and some were limited to only that. OSHA inspections
occurring between 1982 and 1991 included the calculation of a lost
workday injury ("LWDI") rate used to exempt from a safety inspection
those workplaces whose rate fell below the industry's national average.
/See Hamilton Fixture, /16 BNA OSHC 1073, 1076 n.4, 1993-95 CCH OSHD ¶
30,034, p. 41,172 n.4 (No. 88-1720, 1993), /aff'd without published
opinion, /28 F.3d 1213 (6th Cir. 1994). Three of the eight Kaspar
inspections revealed a LWDI rate below the national average and exempted
the company from a comprehensive safety inspection. We also note that
Kaspar's history of no prior recordkeeping citations is consistent with
compliance officer testimony that no recordkeeping violations were found
during their inspections, and David Little's and Jo Ann Knezek's
testimony that they were never advised by OSHA personnel that Kaspar's
recordkeeping practices were deficient. We are unable to independently
assess whether KWW's records complied with OSHA guidelines for the prior
inspected years because the OSHA 200s and first-aid logs for those years
are not in evidence.

[8] This 1985 inspection is the only prior inspection for which
underlying recordkeeping statistics are in evidence.

[9] Hudgens' inspection notes indicate that KWW did not list on its 1983
and 1984 OSHA 200s any restricted work days, though it recorded
approximately 393 injuries for those years combined. For 1988 and 1989
there were about 130 injuries resulting in restricted work days out of a
total number of 412 recordable injuries. In view of this data, it seems
unlikely that there were no injuries resulting in restricted work days
in 1983 and 1984. Accordingly, it appears that despite CO Hudgens'
assertion that he found no recordkeeping violations, KWW did not record
restricted work days in 1983 and 1984.

[10] As discussed below, we affirm other-than-serious violations for the
restricted work day items.

[11] Our dissenting colleague suggests that any reliance on the OSHA 200
instructions to show willfulness would make every recordkeeping error a
willful violation. We emphasize, however, that these instructions do not
constitute the sole basis for our willfulness finding. Rather, as the
Commission did in /Pepperidge Farm, Inc., /17 BNA OSHC 1993, 1999, 1995-
97 CCH OSHD ¶ 31,301 (No. 89-0265, 1997), we rely on the fact that many
of the recordkeeping errors reflect a failure to follow the 200 form's
instructions in conjunction with other evidence showing the employer's
state of mind.

[12] /Cf. Reeves v. Sanderson Plumbing Prods., Inc., /68 U.S.L.W. 4480,
4483-84 (U.S. June 12, 2000) (noting "the general principle of evidence
law that the factfinder is entitled to consider a party's dishonesty
about a material fact as 'affirmative evidence of guilt,'" Court stated
in an Age Discrimination in Employment Act ("ADEA") case that "[p]roof
that the defendant's explanation is unworthy of credence is simply one
form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive." (Citations omitted.)

[13] We also note that the Commission has repeatedly held that OSHA is
not precluded from issuing a willful citation for previously observed
and uncited violations. /See Pepperidge Farm, /17 BNA OSHC at 2000,
1995-97 CCH OSHD at p. 44,011 (citing /Seibel Modern Mfg. & Welding
Corp., /15 BNA OSHC 1218, 1223-24, 1991-93 CCH OSHD ¶ 29,442, pp.
39,679-81 (No. 88-821, 1991)).

[14] Applying that principle in an ADEA case, the Court found that mere
awareness of the statute was insufficient to establish willfulness,
noting that such a broad standard would frustrate the intent of the
ADEA's two-tiered liability scheme and result in an award of double
damages in almost every case. /TWA v. Thurston, /469 U.S. 111, 128
(1985). The "mere awareness" concept in Thurston, however, consisted
only of the employer's knowledge of the potential applicability of the
ADEA; that it was "in the picture." /Id./ In a subsequent case, the
Court explained that "the two-tiered liability principle was simply one
interpretive tool among several that [it] used in Thurston to decide
what Congress meant by the word 'willful.'" /Hazen Paper Co. v. Biggins,
/507 U.S. 604, 616 (1993). The Court noted that "[t]he ADEA does not
provide for liquidated damages 'where consistent with the principle of a
two-tiered liability scheme.' It provides for liquidated damages where
the violation was 'willful.'" /Id./ Affirming its belief that the
"knowledge or reckless disregard" standard of willfulness was itself
sufficient to create two tiers of liability across the range of ADEA
cases, the Court emphasized that willfulness would be obviated by a good
faith, albeit incorrect, belief that a particular age-based decision was
permissible. /Id./ /See also Woodhouse v. Magnolia Hosp., /92 F.3d 248,
256 (5th Cir. 1996) (upholding willful violation of ADEA where evidence
was sufficient for jury to conclude that employer acted willfully and
employer offered no evidence that it reasonably believed in good faith
that its conduct was permissible).

[15] Commissioner Weisberg notes that his dissenting colleague suggests
that Commission precedent requires that a willful state of mind be shown
for each separate willful violation, and that "[h]ere there is no
evidence connecting a state of mind with the individual recordkeeping
violations." It is clearly incumbent upon the Secretary to establish
each separate violation cited. While the Secretary must also establish
the requisite state of mind for a willful violation, it does not
necessarily follow that she must separately show a "heightened
awareness" of each individual violation. There may be circumstances,
such as here, where an employer's willful state of mind informs a course
of conduct with respect to a particular category of hazards or
requirements. Consistent with that view is the Commission's decision in
/Pepperidge Farm, Inc., /17 BNA OSHC at 1999, 1995-97 CCH OSHD at p.
44,009-10, where the Commission affirmed as willful 176 separate
recordkeeping violations, most of which derived from a failure to follow
the OSHA 200 instructions, where Pepperidge Farm's management officials
failed to ensure compliance with a company-wide directive to accurately
adhere to OSHA recordkeeping requirements. There was no other
individualized evidence relied on in that case to support the willful
characterization of each of the violations. Here, KWW's recordkeeping
errors bespeak an overall pattern that reflects its willful state of
mind. In Commissioner Weisberg's view, evidence of KWW's thoughts during
each of the seven out of eight times it chose not to record an injury or
illness is not necessary to establish that each of those separate acts
was willful. /Cf. Caterpillar, Inc., /15 BNA OSHC at 2173, 1991-93 CCH
OSHD at p. 41,006 (upholding per instance citation authority, Commission
noted that overall changes made to employer's recordkeeping guide that
resulted in many recording errors "had no consequences by
themselves"--"[i]t was the separate case-by-case application of those
erroneous criteria to employee injuries and illnesses and subsequent
decisions not to record them that violated the Act").

[16] These other-than-serious violations are item numbers: 10, 15, 22,
34, 36, 44, 72, 104, 114, 206, 223, 228, 296, 308, and 359.

[17] The regulation states:

    *§ 1904.5 Annual summary.*

    (a) Each employer shall post an annual summary of occupational
    injuries and illnesses for each establishment. This summary shall
    consist of a copy of the year's totals from the form OSHA No. 200 .
    . . .

    (b) The summary shall be completed by February 1 . . . .

    (c) Each employer . . . shall certify that the annual summary of
    occupational injuries and illnesses is true and complete . . . .

[18] The Complaint alleges that all of the cited items occurred "on or
about March 19, 1990--September 14, 1990," and KWW's recording failures
here would have commenced on February 2, 1988 and February 2, 1989.

[19] Section 9(c) of the Act provides that "[n]o citation may be issued
. . . after the expiration of six months following the occurrence of any
violation."

[20] The standard provides:

    *§ 1910.20 Access to employee and exposure medical records.*

    . . . .

    (e) Access to records.

    . . . .

    (3) OSHA access. (i) Each employer shall, upon request, and without
    derogation of any rights under the Constitution or the [OSH Act]
    that the employer chooses to exercise, assure the prompt access of
    representatives of [OSHA] to employee exposure and medical records
    and to analyses using exposure or medical records.

[21] We also emphasize that, as noted above, this regulation applies
only to medical and exposure records of employees exposed to "toxic
substances or harmful physical agents." See /General Motors Corp.,
Electro-Motive Div., /14 BNA OSHC 2064, 2065 n.5, 1991-93 CCH OSHD ¶
29,240, p. 39,165 n.5, 19 (No. 82-630, 1991) (consolidated). The
preamble to the final rule explains that "coverage is appropriately
limited to records relevant to employees currently or previously exposed
to toxic substances or harmful physical agents" and that the regulation
applies to all "relevant" records. 45 Fed. Reg. 35,215. "[R]ecords of
employees who are exposed solely to typical safety hazards (e.g., trips,
falls, traumatic injury, etc.) are not covered by this rule. /Id./ at
35,258. The Secretary has made no attempt to establish applicability
under this aspect of the access rule. While the evidence indicates that
KWW's production process included painting and some employees were
exposed to chemicals, the evidence is insufficient to evaluate which
employee records might be covered by the rule.

[22] The standard states:

    *§1910.217 Mechanical power presses*

    . . . .

    (c) /Safeguarding the point of operation/--(1) /General
    requirements/ (i) It shall be the responsibility of the employer to
    provide and insure the usage of "point of operation guards" or
    properly applied and adjusted point of operation devices on every
    operation performed on a mechanical power press.

[23] KWW seems to argue that it cannot be cited for this condition
because CO Donald Jones, who completed the KWW investigation after CO
Antonio's transfer to another office, did not know whether the machine
was guarded at the time the citation issued. A violation of the Act,
however, "'occurs' whenever an applicable occupational safety and health
standard is not complied with and an employee has access to the
resulting zone of danger." /Gen'l Dynamics Corp., /15 BNA OSHC 2122,
2128, 1991-93 CCH OSHD ¶ 29,952, p. 40,957 (No. 87-1195, 1993) (citation
omitted). Here, CO Antonio observed Mr. Kopecky working at the unguarded
press during the inspection. Any post-inspection abatement does not
expunge the original violation.

[24] /Kaspar Wire Works, Inc., /13 BNA OSHC 1785, 1786-87, 1987-90 CCH
OSHD ¶ 28,198 (No. 85-1060, 1988) (unreviewed judge's decision).

[25] Neither the parties nor Judge Schwartz addressed the question
whether KWW knew that the punch press was unguarded. Nonetheless, proof
of such knowledge is an essential element of the Secretary's case.
/Astra Pharmaceutical Prods., Inc., /9 BNA OSHC 2126, 2129, 1981 CCH
OSHD ¶ 25,578, pp. 31,899-900 (No. 78-6247, 1981), /aff'd in pertinent
part, /681 F.2d. 69 (1st Cir. 1982). Here, KWW knew of the requirement
of the standard from the previous citation and knew of the numerous
injuries sustained by its employees on unguarded presses. Moreover, its
supervisors were closely involved in the operation of the presses, and
those guards that were installed on the presses were bolted in place and
not easily removed. We, therefore, find that the Secretary has
established a prima facie case of employer knowledge, which is unrebutted.

[26] The Secretary had proposed a combined penalty of $10,000 for Items
388 (a), (b) and (c). Judge Schwartz vacated Item 388(c) and it is not
at issue on review.

[27] The standard states:

    *§ 1910.217 Mechanical power presses.*

    . . . .

    (g) /Reports of injuries to employees operating mechanical power
    presses. /(1) The employer shall, within 30 days of the occurrence,
    report to . . . [OSHA], all point of operation injuries to operators
    or other employees.

[28] As with the recordkeeping items, the wording of this standard
clearly requires a separate action for reporting individual injuries as
they occur. Accordingly, Commission precedent supports the judge's per
instance penalty assessments for each of KWW's failures to report power
press injuries. /Pepperidge Farm, Inc., /17 BNA OSHC at 2001, 1995 CCH
OSHD at p. 44,011; /Caterpillar, Inc., /15 BNA OSHC at 2173, 1991-93 CCH
OSHD at p. 41,007.

[29] /Kaspar Wire Works, Inc., /13 BNA OSHC 1785, 1987-90 CCH OSHD ¶
28,198 (citation vacated on timeliness grounds).

[30] While Commissioner Weisberg agrees, for the reasons stated by his
colleagues, that Dan Price's inadvertent failure to report the third
power press injury (Item 396) was not willful, he would find that the
other five failures to report (Items 389, 391, 392, 394 and 395) were
willful. The record establishes that KWW was aware of OSHA's power press
injury reporting requirement prior to the time the first of these
injuries occurred. OSHA issued a citation to KWW for a violation of this
reporting standard in 1985, which was vacated only on timeliness
grounds. /Kaspar Wire Works, Inc., /13 BNA OSHC 1785, 1787, 1987-90 CCH
OSHD ¶ 28,198 (No. 85-1060, 1988) (unreviewed judge's decision).
Moreover, David Little knew of the requirement when he reported a power
press injury on July 15, 1987, "pursuant to Title 29, Code of Federal
Regulations, Section 1910.217(g)." Although Dan Price testified that he
was unaware of the reporting obligation until the summer of 1989, his
ignorance did not deprive Kaspar of the knowledge it obtained from the
prior citation and that imputed to it through David Little.
/Caterpillar, Inc., /17 BNA OSHC at 1732-33, 1995- 97 CCH OSHD at p.
43,483 (employer's knowledge imputed through former managerial employees
remains with corporation despite any turnover in personnel). In addition
to KWW's knowledge of the regulation, managerial employee Jo Ann Knezek
knew of all six injuries, as evidenced by her signature on the E-1s.
Commissioner Weisberg, therefore, would find that the prior citation
combined with Little's subsequent injury report establishes the
requisite "heightened awareness" for a willful violation. /See Carabetta
Enters., Inc., /15 BNA OSHC 1429, 1432-33, 1991 CCH OSHD ¶ 29,543 (No.
89-2007, 1991) (finding employer's failure to comply with standard
willful where prior citations informed employer of OSHA's application of
cited standard). /Cf. Branham Sign Co., /18 BNA OSHC 2132, 2134 (No.
98-752, 2000) (finding no heightened awareness regarding alleged fall
protection violation absent evidence of prior citations or other
warnings regarding the need for safety harnesses in sign erection work).
Accordingly, he would conclude that KWW's unexplained failure to submit
the injury reports demonstrates "plain indifference," and affirm the
judge in finding a willful violation for these five items.

[31] The standard states:

    *§ 1910.255 Resistance welding.*

    . . . .

    (b) /Spot and seam welding machines (nonportable)/

    . . . .

    (4) Guarding. All press welding machine operations, where there is a
    possibility of the operator's fingers being under the point of
    operation, shall be effectively guarded by the use of a device such
    as an electronic eye safety circuit, two hand controls or protection
    similar to that prescribed for punch press operation . . . .

[32] In both the Citation and Complaint, the Secretary mistakenly
identified the standard by its former number, 29 C.F.R. §
1910.252(c)(2)(iv), which now covers welder ventilation. Judge Schwartz
granted the Secretary's motion to amend the Complaint to allege a
violation of the renumbered standard. Although KWW argues that it
suffered prejudice from the mistake by failing to adduce evidence to
support an infeasibility defense, the judge's ruling was justified in
view of the fact that the Complaint correctly describes the violation as
a failure to provide point of operation guards. KWW would, accordingly,
have had ample notice that it was being charged with a violation
concerning guarding rather than one concerning ventilation.

[33] The standard states:

    *§ 1910.212 General requirements for all machines.*

    (a) Machine Guarding

    . . . .

    (3) Point of operation guarding.

    . . . .

    (ii) The point of operation of machines whose operation exposes an
    employee to injury, shall be guarded. The guarding device shall be
    in conformity with any appropriate standards therefor, or, in the
    absence of applicable specific standards, shall be so designed and
    constructed as to prevent the operator from having any part of his
    body in the danger zone during the operating cycle.

[34] The standard states:

    *§ 1910.213 Woodworking machinery requirements.*

    . . . .

    (c) /Hand-fed ripsaws./

    . . . .

    (3) Each hand-fed circular ripsaw shall be provided with nonkickback
    fingers or dogs so located as to oppose the thrust or tendency of
    the saw to pick up the material or to throw it back toward the operator.

[35] The standard states:

    *§ 1910.219 Mechanical power-transmission apparatus.*

    . . . .

    (d) /Pulleys--/(1) /Guarding. /Pulleys, any parts of which are seven
    (7) feet or less from the floor or working platform, shall be
    guarded in accordance with the standards specified in paragraphs (m)
    and (o) of this section.

[36] The standard states:

    *§ 1910.219 Mechanical power-transmission apparatus.*

    . . . .

    (e) /Belt, rope, and chain drives/

    . . . .

    (3) /Vertical and inclined belts. /(i) Vertical and inclined belts
    shall be enclosed by a guard conforming to the standards in
    paragraphs (m) and (o) of this section.

[37] The fan pulley is cited as Item 18(a) and the table saw pulley is
cited as Item 18(b). The fan belt is cited as Item 19(a) and the table
saw belt is cited as Item 19(b). The table saw is the same piece of
equipment cited in Item 11.

[38] The record indicates that employees would not likely come in
contact with the unguarded fan pulley and belt in the normal course of
their work. Morkovsky testified that he knew of no reason why any
employee would need to reach down near the pulley and belt. Antonio
testified about employee accessibility by "reach[ing] over the top of
the motor into it" but, as we understand his testimony, he was
responding to a question positing a situation where the fan would be
turned from its unobstructed position to one that would block direct
employee access to the belt and pulley.

[39] Although the Secretary argues that a higher penalty is warranted
based on her assertion that Kaspar had been previously cited for
violating the same standard, that citation was issued to KEC on
September 20, 1990, the same date OSHA cited KWW in this case, and the
Commission vacated that item on review because it found that the
Secretary did not establish employee access to the hazard. /Kaspar
Electroplating Corp., /16 BNA OSHC at 1524-25, 1993-95 CCH OSHD at p.
41,761.

[40] The standard states:

    *§ 1910.304 Wiring design and protection.*

    . . . .

    (f) /Grounding./

    . . . .

    (4) /Grounding Path. /The path to ground from circuits, equipment,
    and enclosures shall be permanent and continuous.

[41] The standard states:

    *§ 1910.304 Wiring design and protection.*

    . . . .

    (f) /Grounding./

    . . . .

    (v) /Equipment connected by cord and plug. /Under any of the
    conditions described in paragraphs (f)(5)(v)(A) through (f)(5)(v)(C)
    of this section, exposed non-current-carrying metal parts of cord-
    and plug-connected equipment which may become energized shall be
    grounded.

    . . . .

    (C) If the equipment is of the following types:

    . . . .

    (8) Portable hand lamps.

[42] Judge Schwartz found it clear from the record that the cited lamps
were "removable and therefore portable," and that their condition
violated the standard. He also noted, however, that the standard
"contains nothing to indicate that it applies only to portable
equipment." While there are other bases upon which to establish
applicability of the standard, the Secretary issued this item based
solely on the alleged portability of the cited lamps. Accordingly, we do
not consider whether the cited lamps would require the requisite
grounding for any other reason.

[43] KWW defines portable as "easily or readily removable," citing
/Webster's New Universal Unabridged Dictionary, /(2d ed. 1979), p. 1403.

[44] The Commission's second footnote in /Caterpillar, Inc., /15 BNA
OSHC 2153, 2155 n.2, 1991-93 CCH OSHD ¶ 29,962, footnote misplaced by
publisher on p. 40,966 n.2 (No. 87-922, 1993) is a succinct explanation
of the background here as well: "Until 1983, compliance with section
1904.2(a) and other recordkeeping regulations requiring the recording of
injuries, illnesses, and lost workdays was generally enforced by
grouping a number of failures to record as a single violation and
proposed a penalty of $100 or less. In 1983, the Secretary began a
practice of inspecting injury and illness records before deciding
whether to inspect the workplace. OSHA Field Operations Manual Chapter
III, section D.4 (April 18, 1983). If the records inspection showed that
the lost-workday injury ("LWDI") rate of a workplace exceeded the
national average for the industry, a comprehensive inspection was
conducted. If the rate fell below the national average there was no
inspection. /Id./ at section D.4.b. In 1986, the Secretary began
enforcing the recordkeeping regulations much more aggressively in the
belief that some employers were attempting to avoid comprehensive
inspections by under-reporting occupational injuries and illnesses. He
began issuing willful citations and proposing heavy penalties for
failures to record a work-related illness or injury, or lost workday,
particularly where substantial numbers of failures to record were alleged."

------------------------------------------------------------------------

________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :   OSHRC Docket No. 90-2775
                                :
KASPAR WIRE WORKS, INC.,        :
                                :
          Respondent.           :
________________________________:


APPEARANCES:

   E. Jeffery Story, Esquire
      Terry Goltz Greenberg, Esquire
      Dallas, Texas
         For the Complainant.

   Vic Houston Henry, Esquire
      Lane Fletcher, Esquire
      Dallas, Texas
         For the Respondent.

Before:  Administrative Law Judge Stanley M. Schwartz[1]



*DECISION AND ORDER*

This is a proceeding brought before the Occupational Safety and Health
Review Commission (``the Commission'') pursuant to section 10 of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 /et seq.
/(``the Act'').

The Occupational Safety and Health Administration (``OSHA'') conducted
an inspection of Kaspar Wire Works, located just north of Shiner, Texas,
from March 19, 1990, through September 14, 1990. The inspection resulted
in the issuance of one serious citation and one willful/egregious
citation; the citations together alleged 422 violations and the proposed
penalties totaled $1,236,000.00. The hearing in this matter took place
from June 29, 1992, through July 9, 1992, and additional testimony was
taken on July 20, 1992. Both parties submitted post-hearing briefs.

Prior to the hearing, Judge Botkin granted Respondent's motion for
partial summary judgment regarding the Secretary's citing the willful
items on an instance-by-instance basis pursuant to the ``egregious''
penalty policy. The Secretary requested reconsideration of this ruling
after the Commission's decision in /Caterpillar, Inc., /15 BNA OSHC
2153, 1991-93 CCH OSHD ¶ 29,962 (No. 87-922, 1993). Based on that
decision, the undersigned set aside the ruling as being contrary to
intervening Commission precedent in an order dated June 13, 1994.[2] As
a result, the penalties as originally proposed will apply to any penalty
determination in regard to willful/egregious citation 2.

_Willful/Egregious Citation 2--Items 1-385_

These items allege 385 willful violations of 29 C.F.R. § 1904.2(a) for
failure to record occupational injuries and illnesses as required on
OSHA Form No. 200 or the equivalent for calendar years 1988 and 1989.[3]
The Secretary withdrew items 172 and 190 at the hearing, leaving for
resolution 383 items. (Tr. 12; 873-74). It is clear from the record that
these items were not recorded on the company's OSHA Forms 200 for 1988
and 1989, although they were recorded on its first aid logs for those
years. /See /G-388-391, the OSHA 200 and 200-S forms for 1988 and 1989;
the first aid logs are attached to the 200-S forms.[4] It is also clear
that these items involved injuries or illnesses resulting in medical
treatment and/or lost and/or restricted work days such that they were
required to be recorded on the OSHA 200 forms.[5] See G-1-384, which
consist of a Form E-1[6] for each cited instance together with
documentation such as doctor and supervisor reports.[7] See also
G-385-A-B, employee time and attendance records for 1988 and 1989. The
issue to be resolved, therefore, is the characterization of the violations.

_Background_

Kaspar Wire Works (``KWW'') makes formed metal products out of wire and
sheet metal; most of its products are made to order, and the types of
different items produced number in the tens of thousands. KWW employs
about 800 workers and is the largest of three sister companies at the
Shiner location; Kaspar Electroplating Corporation (``KEC'') and Kaspar
Die and Tool (``KDT''), the other two companies, have around forty and
fifteen employees, respectively. The companies have grown substantially,
from a total of about 250 employees in 1970 to the present number; in
1988, there were approximately 750 shop employees working in the three
companies.

Jo Ann Knezek was hired as KWW's insurance clerk in 1970. Her
responsibilities included receptionist and secretarial duties, accounts
payable, health and worker compensation insurance, and maintaining the
OSHA 200 forms and first aid logs. Knezek worked in the personnel
department under the supervision of the personnel manager, Bill
Chenault, from 1970 until July 1971, when Chenault left and was replaced
by David Little. Little supervised Knezek until January 1989, when he
retired and was replaced by Dan Price, the present personnel manager.
Knezek's title changed to that of office coordinator in 1977 or 1978,
although her duties remained the same, and in 1987 she became a part of
management; however, until January 1991 she and the personnel manager
were the only individuals in that department.[8] In January 1991 an
assistant personnel manager was hired and that spring a nurse and
assistant were hired to perform various functions, including maintaining
the OSHA 200. In addition, Knezek now supervises fifteen employees.

At the time of the inspection, the practice was to send any employee
with a work-related injury or illness at any of the three companies to a
physician. Knezek used the supervisor's report of the incident, made on
a form provided by the worker compensation insurer, to complete a Form
E-1; a copy of the E-1 went to the insurer, and another copy was kept in
the office. Knezek also used the supervisor's report to determine
whether to record the incident on the OSHA 200 or the first aid log, and
incidents for all three companies were recorded on the same forms.[9]
After the first of each year Knezek used the OSHA 200 and first aid log
to prepare an OSHA 200-S, which was reviewed and signed by the personnel
manager. The OSHA 200's and first aid logs were kept in one binder and
the E-1's in another in the personnel office.

OSHA's Corpus Christi office visited the companies several times from
1982 to 1988 pursuant to their appearance on the establishment
inspection lists for those years; KWW was visited in 1982, 1983, 1984
and 1985, KDT in 1983, 1985 and 1988, and KEC in 1984 and 1985. On each
visit the OSHA 200's for the two previous years were reviewed and the
lost workday injury rate (``LWDI'') was calculated to determine if it
was higher than the national average for the industry such that a
comprehensive safety inspection was required. None of these visits
resulted in a comprehensive safety inspection; however, because the LWDI
was not considered in regard to companies appearing on the establishment
lists for health inspections, all three companies had a comprehensive
health inspection in 1985. KWW and KEC were cited for other conditions
pursuant to the 1985 inspections, but none of the visits resulted in
citations with respect to the OSHA 200's.

The subject inspection, which consisted of a comprehensive safety
inspection of KWW and a comprehensive safety and health inspection of
KEC, was the first comprehensive safety inspection to occur at any of
the companies. Compliance Officer (``CO'') Nicke Antonio conducted the
safety inspections, and, based on his findings, recommended the issuance
of serious citations to KWW and KEC. He then transferred to another OSHA
office, but, pursuant to his review of the OSHA 200's, referred the
matter for further inspection to his area office. Donald Jones, the CO
who continued the inspection, found a large number of incidents for 1988
and 1989 which were not recorded on the OSHA 200's, 385 of which were
ultimately cited as willful violations. The cited items included eye
injuries, lacerations, contusions, fractures, sprains, strains,
dermatitis, burns, finger amputations and carpal tunnel syndrome; of
these, eye, finger and hand injuries were the most prevalent.

_The Contentions of the Parties_

The Secretary contends the violations were willful based on the large
number and obvious nature of the unrecorded incidents. He asserts that
management either knew or should have known of the violations, and that
the failures to record in this case were so blatant as to constitute
either plain indifference to or conscious disregard of OSHA
recordkeeping requirements. The Secretary also suggests that Respondent
purposefully omitted injuries and illnesses from its OSHA 200's to evade
inspections, especially in view of OSHA's practice up to 1991 to use the
LWDI to determine if a comprehensive safety inspection was required.

Respondent contends the violations were not willful. It asserts that
management had no knowledge that illnesses and injuries were not being
properly recorded, particularly since OSHA had inspected its records a
number of times and had had ample opportunity to discover any
deficiencies but had never before cited the company or advised it of any
problems with the OSHA 200's. It further asserts that although the cited
incidents were not recorded on the OSHA 200's they were recorded on the
company's first aid logs, and that the facts of this case preclude
classifying the violations as willful based on the Commission's decision
in /Kohler Co., /16 BNA OSHC 1769, 1994 CCH OSHD ¶ 30,457 (No. 88-237,
1994).

Based on the foregoing, the proper characterization of the violations
must be determined by a close examination of the relevant evidence in
this case, as follows.

_The Relevant Evidence_

Jo Ann Knezek appeared and testified. Her only experience before working
for KWW consisted of a bookkeeping job for two years in which she had no
duties relating to recording injuries and illnesses. She was the only
person who recorded injuries and illnesses at KWW up to the time of the
inspection, and she had always used the same procedure.[10] Utilizing
the supervisors' reports, she used her best judgment to decide how to
record incidents; the ones she felt were serious or would result in
missed days or restricted duty she put on the OSHA 200, and the rest she
put on the first aid log. Knezek found out when incidents resulted in
lost days by contacting the supervisor, payroll or the physician the
employee had seen, and noted this on the document where the incident had
been recorded originally. She did not transfer incidents from the first
aid log to the OSHA 200, although she used both forms to a prepare a
200-S each year; the 200-S included the items on the OSHA 200 as well as
those on the first aid log that involved lost workdays or that she felt
were no longer first aid. Knezek knew the purpose of the OSHA 200, but
not the 200-S; she agreed the forms requested basically the same
information and did not know why she put all serious and lost workday
incidents on the 200-S and not the 200. She said Little was the
individual who had instructed her in these procedures and that no one
else, including Price, had given her instructions in this regard. (Tr.
1450-57; 1461-62; 1467-76; 1484-89; 1495-97; 1500-02).

Knezek gave the OSHA 200's and first aid logs to Little, and to Price
after Little left, to review with the 200-S after the first of each
year; neither ever questioned her figures or changed them. She noted the
200-S forms for 1988 and 1989 were signed, while the 200 forms for those
years were not, but said she was never told to sign the 200's. Knezek
recalled records inspections prior to 1990, at which times she gave
Little the binders containing the OSHA 200's, first aid logs and E-1's;
she herself did not participate in the inspections. Knezek was never
told until the 1990 inspection the OSHA 200's were being kept improperly
and was unaware until then of the instructions on the back of the form;
she knew there was writing on the back, but was following what Little
told her. She did not recall seeing before the inspection anything like
the recordkeeping guidebook CO Antonio left her. (Tr. 1457-67; 1474-77;
1484-85; 1489-92; 1496; 1500-09).

Knezek could not recall putting hand injuries on the OSHA 200 before the
inspection, but said no one ever told her not to record such incidents.
She agreed most of the items on the 200's for 1988 and 1989 were back
injuries and that there were many hand, finger and other injuries on the
first aid logs she did not put on the 200's. She also agreed that many
of these injuries, including finger fractures and amputations, were not
first aid, but said that at the time she was using her judgment and the
limited information on the supervisor's reports; the doctor reports went
directly to the insurer.[11] Knezek noted her worker compensation duties
were very time consuming and that no one assisted her in 1988 and 1989.
She also noted that after learning of the guidebook and instructions on
the OSHA 200 she realized she could look up incidents to determine how
to record them, which she began doing after the inspection; she also
began recording all incidents on the OSHA 200 and, at the end of the
year, deleting those she believed were first aid based on the medical
information she received. (Tr. 1457-61; 1465-85; 1492-96; 1503-04;
1507-08; 1511).

Dan Price also appeared and testified. His duties at KWW involve all
areas of human resources, including responsibility for insurance and
safety; he supervises Knezek and the personnel who currently keep the
OSHA 200's. As assistant manager Price did not receive much training
from Little; however, he familiarized himself with company policies and
operations and gradually assumed Little's duties. Price became aware of
the 200-S in January 1989, when Knezek gave him the 1988 form to review.
He asked for the previous year's 200-S and compared the figures on the
forms, which appeared accurate; he also verified the employee hours
worked and then signed the 200-S and gave it to Knezek to mail. He did
not verify the other figures on the form, and while he became aware of
the OSHA 200's and first aid logs at some point and may have reviewed
them before signing the 200-S forms for 1988 and 1989 he could not
recall doing so. Price was unaware of any problems with the OSHA 200's
until the inspection; at that time he instructed Knezek to begin
recording all injuries and illnesses on the OSHA 200. He had not
instructed her about the form before because he assumed the
recordkeeping was already established and that there was no need for him
to be involved in it. (Tr. 1543-45; 1551-53; 1556-60; 1565-71).

Price was a personnel manager for Tandy Corporation from 1970 to 1977,
in which position he supervised the insurance clerks who prepared the
OSHA 200's; he held vice president and president positions at Tandy from
1977 to 1986 and while he had overall responsibility for the insurance
clerks most of this time he had very little involvement with OSHA
200's.[12] Price was aware of the necessity of keeping the OSHA 200's
but was never instructed in them, and while he might have he could not
recall reviewing or signing the forms at Tandy. He also could not recall
reading an OSHA 200 or having specific knowledge about it before March
1990; however, he did read the 200-S forms before signing them in 1989
and 1990 and knew generally the purpose of both forms at that time. He
remembered a folder with recordkeeping pamphlets in his credenza, the
same credenza Little had used, but did not recall discussing
recordkeeping with Little or reading the pamphlets before the
inspection. Price noted that Knezek was in charge of worker
compensation, that he never signed the E-1's, and that doctor reports
went directly to the insurer although Knezek could obtain specific
information if she needed it. He also noted the form used by supervisors
to report injuries has been expanded, that the company now investigates
serious incidents, and that the company nurse maintains medical files on
all job-related injuries and illnesses. (Tr. 1545-50; 1554-69; 1577-81).

David Little testified he was responsible for taking care of all
personnel needs at KWW during his tenure with the company, and that his
prior experience consisted of teaching and serving as principal and
superintendent of schools in Shiner; he further testified that while
Knezek took care of the worker compensation and injury and illness
records he was ultimately responsible for these matters. Little was
initially not very knowledgeable in recordkeeping; however, shortly
after he began an OSHA inspector visited the site and told him and
Knezek how to keep the records and after that time the same procedure
was always followed. Knezek put serious injuries on the OSHA 200 and
first aid on the first aid log, and they both participated in deciding
the injuries to be reported on the 200-S, although Knezek did most of
this; these included all items on the OSHA 200 and those on the first
aid log which were no longer first aid. (Tr. 1982-92; 1997-2001;
2006-07; 2026).

Little described as recordable anything beyond first aid, such as
lacerations, sprains, broken bones, finger amputations and head
injuries. He then indicated that recordability depended on the severity
of the injury and lost time, stating that sprains, rashes, punctures or
injuries resulting in stitches could be first aid if the employee was
medically taken care of and did not lose a full day's work; he further
indicated restricted duty cases could also be first aid, depending on
the injury, and could not remember if these were ever put on the OSHA
200. Little noted that every injury, even first aid, was treated by a
doctor, and that all incidents were recorded. He also noted that the
company insisted on follow-up visits when the treating doctor so
advised, and that a worker put on a new job due to an injury could stay
at the new job if he preferred; in his view, the company took very good
care of employees and all incidents were properly recorded. Little
indicated he had had some OSHA recordkeeping literature in his office
but that he was not very knowledgeable in that literature, and he
recalled no specific recordkeeping discussions with Knezek, Price, or
Don Kaspar, the company president. (Tr. 1985; 1990-2022; 2034).

Little recalled six to ten OSHA visits to the Shiner location. On each
occasion, he asked Knezek for the binder containing the OSHA 200's and
first aid logs, which he referred to as the ``anatomy book,'' as well as
the binder with the E-1's. All the OSHA inspectors were provided all the
records, he answered any questions they had, and no inspector ever
recommended any changes or told him his recordkeeping was deficient or
that he should not have kept both the OSHA 200 and a first aid log.
Little described as ``absurd'' the notion that KWW had concealed its
records from OSHA, indicating if such had been the case the company
would not have recorded everything and provided the records to the
inspectors. He also pointed out that while he was not minimizing the
importance of recordkeeping he had many demands on his time while he was
with the company, that the volume of work was tremendous, particularly
as the number of employees increased, and that he had relied on Knezek,
who he considered very competent, to use her best judgment when
recording injuries and illnesses. (Tr. 1988; 1999; 2013-15; 2022-35).

_Discussion_

To prove a willful violation, the Secretary must establish it was
committed ``with intentional, knowing or voluntary disregard for the
requirements of the Act or with plain indifference to employee safety.''
/Williams Enter., Inc., /13 BNA OSHC 1249, 1256, 1986-87 CCH OSHD ¶
27,893, p. 36,589 (No. 85-355, 1987). As /Williams /further explains:

    A willful violation is differentiated by a heightened awareness--of
    the illegality of the conduct or conditions--and by a state of
    mind--conscious disregard or plain indifference. There must be
    evidence that an employer knew of an applicable standard or
    provision prohibiting the conduct or condition and consciously
    disregarded the standard. Without such evidence of familiarity with
    the standard's terms, there must be evidence of such reckless
    disregard for employee safety or the requirements of the law
    generally that one can infer that if the employer had known of the
    standard or provision, the employer would not have cared that the
    conduct or conditions violated it. It is therefore not enough for
    the Secretary simply to show carelessness or lack of diligence in
    discovering or eliminating a violation.

/Id. /at 1256-57 and p. 36,589.

Based on the testimony set out above, there is no evidence that Knezek,
Little or Price had any specific knowledge of OSHA's recordkeeping
requirements and consciously disregarded those requirements. The
Secretary nonetheless suggests, as noted supra, that Respondent
deliberately omitted incidents from its OSHA 200's to evade inspections.
Respondent, on the other hand, contends that OSHA's various inspections
led it to believe it was in compliance with recordkeeping requirements.
There was a plethora of evidence in this regard, all of which has been
considered. Some of this evidence is cumulative and other is
conflicting; accordingly, only the most significant is summarized below.

OSHA records of its visits to KWW and KEC from 1982 through 1984 reflect
LWDI's ranging from .5% to 4.9%, which were below the national averages
for the manufacturing industry for those years.[13] See R-1-5; R-9. In
contrast, the LWDI's calculated during the 1985 inspections of KWW, KDT
and KEC were 11.2%, 9.8% and 8.9%, respectively, and the parties
stipulated that the 1984 national average LWDI was 4.7%.[14] (Tr.
532-34; 579; 609-12; 1975-76; R-6; R-8; R-21).

In addition to the foregoing, the evidence shows that some CO's had, in
fact, looked at the company's E-1's and first aid logs in the previous
records reviews, while others apparently looked only at the OSHA 200's.
(Tr. 509-45; 579-82; 1200-16; 1225-28; 1239-41; 1292-96; 1384-87;
1796-1809; 1924-50; R-175). It is clear from the testimony of Nicke
Antonio and Ann Fox, the CO who conducted the health inspection of KEC,
that the E-1's and first aid logs were provided to them during their
joint records review. (Tr. 562-67; 1899-1910; R-23-24). Further,
Antonio's initial calculation of the LWDI from the 1988 and 1989 OSHA
200's was 4.5%, which was above the 4.2% national average. (Tr. 284-86).
Mike Hunter, the area director of OSHA's Corpus Christi office,
testified that his own calculation from only the 1988 OSHA 200 resulted
in a very low LWDI.[15] (Tr. 1138; 1247-50). Regardless, there is simply
no conclusive evidence that Respondent attempted to evade inspections by
omitting incidents from its OSHA 200's. However, there is likewise no
reason to conclude that the various inspections of its facilities led
the company to believe it was in compliance with OSHA's recordkeeping
requirements, as Respondent asserts, such that a willful
characterization is unjustified. To the contrary, the record in this
case shows the violations were willful. My reasons follow.

I note at the outset that the unrecorded incidents for 1988 and 1989
total 171 and 211, respectively, and that, based on the testimony of
Mike Hunter and my own calculations, these incidents represent
approximately 20% and 25% of the total number of employees for those
years.[16] (Tr. 1182). I note also there are only thirty-two and
forty-one incidents recorded on the OSHA 200's for 1988 and 1989,
respectively, that these totals include four entries for KEC and two for
KDT, and that there are no eye injuries and only one hand injury on the
forms. See G-388-89. It is evident that the incidents which are recorded
are the same types of injuries appearing on the first aid logs, /i.e./,
back strains, burns, pulled muscles, broken toes, a cracked arm, a
hernia, a squeezed hand and carpal tunnel syndrome. It is further
evident that many of the incidents on the first aid logs were obviously
recordable, even from the brief descriptions in the logs, and that
recordability was clearer still in light of the treatment received and
lost workdays. /See /G-1-384 and G-390-91. Finally, it is evident the
information on the supervisor's report from which Knezek prepared the
E-1 was often sufficient to determine if the injury was recordable.
/See, e.g./, G-384; both the report and E-1 state three fingers on the
right hand were severed.

Pursuant to the testimony of Knezek, Little and Price, none of these
individuals had any actual training in OSHA recordkeeping or any
specific knowledge of those requirements. Notwithstanding this lack of
training, the undersigned finds it incredible that Little and Knezek,
the individuals charged with responsibility for the OSHA 200's for
seventeen and twenty years, respectively, could have believed they were
properly recording injuries and illnesses. Anyone with reasonable
intelligence and common sense, even without any training in OSHA
recordkeeping, should have been able to determine with little effort the
reportability of most of the incidents in this case, especially in view
of the pamphlets Little had in his office and the instructions on the
OSHA 200 itself. In this regard, it is noted that the front of the form
discusses recordable cases and refers readers to the back for
definitions and additional instructions. (Tr. 1183-87; G-431). It is
further noted that both Knezek and Little appeared to have understood
how to complete the 200-S form, and yet, implausibly, did not understand
how to complete the OSHA 200.

As stated above, Respondent points to the Commission's decision in
/Kohler Co., /16 BNA OSHC 1769, 1994 CCH OSHD ¶ 30,457 (No. 88-237,
1994), in support of its contention that the violations were not
willful. However, Kohler is a very different case. Kohler was a much
larger employer, and the 277 violations in that case represented a small
percentage of its total employees. Moreover, all of Kohler's injuries
and illnesses, including first aid, were recorded on an OSHA-approved
computerized log, and most of the cited items had to do with the
company's failure to track first aid cases which later became
recordable. Significantly, the Commission specifically found that while
some parts of Kohler's recordkeeping were flawed, others were excellent.
/Id./ at 1776 and p. 42,064. In this case, the whole of Respondent's
recordkeeping can only be described as fatally flawed. While the record
does not show that injuries and illnesses were intentionally omitted
from the OSHA 200's, the company did nothing to ensure the standard was
met. Employers must take responsibility for their employees and provide
a minimum of supervision to make sure that individuals charged with
recordkeeping do not share the views expressed by Little and Knezek.
Respondent provided no such supervision, and, based on the record, it is
found that the company exhibited plain indifference to the standard.[17]
Items 1-385 of citation 2 are affirmed as willful violations, except for
items 172, 190 and 264, which are vacated for the reasons given supra.

_Penalty Determination_

The Secretary has proposed a penalty of $3,000.00 for each 1904.2(a)
violation in this case. In assessing penalties, the Commission must give
due consideration to the four criteria set out in the Act, that is, the
gravity of the violation and the employer's size, history and good
faith; the gravity of the violation is generally accorded greater weight
than the other factors. /See Kohler /at 1777 and p. 42,065, and cases
cited therein. The proposed penalties in this case must therefore be
considered in light of these factors.

In regard to size and history, Respondent is a medium-sized employer
with a relatively negligible history of previous OSHA violations. /See
/R-6 and R-22, the citations issued as a result of the 1985 inspections.
As to good faith, the record shows a profound neglect of OSHA
recordkeeping before the inspection; however, this neglect is somewhat
offset by the company's significant efforts to correct the deficiencies
in its recordkeeping after the inspection, noted above.

In regard to gravity, the Commission has noted that while recordkeeping
``play[s] a crucial role in providing the information necessary to make
workplaces safer and healthier,'' such violations are generally of low
gravity because they bear on elements such as employee exposure to
hazards and probability of accidents in only a ``most tangential way.''
/See Kohler /at 1772-73 and 1777, and pp. 42,060 and 42,065, and cases
cited therein. However, the number of violations must be considered,
particularly in relation to the number of employees, as well as the
extent to which they exceed the definition of non-recordable first aid
set out at 1904.12(e). /Id./ at 1777-78 and pp. 42,065-66.

In light of the foregoing, the violations in this case are of higher
gravity than those in /Kohler /based on their willful characterization,
their large number relative to the number of employees and their obvious
nature. In weighing this factor with the others set out above, the
undersigned notes that the company changed its entire recordkeeping
system after the inspection. The undersigned also notes this is a
medium-sized company, not a large corporation such as an automobile
manufacturer, and that its resources are obviously limited. Finally, it
is noted that the proposed penalty was based on the Secretary's
determination that the failure to record injuries and illnesses was
deliberate, a conclusion not supported by the record. Taking all these
factors into consideration, I have attempted to arrive at a meaningful
penalty that will have positive results on the safety and health of this
company's employees and that will also meet the criteria of the Act. I
have also attempted to follow Commission precedent with respect to
arriving at an appropriate penalty; in this regard, I note /Kohler's
/requirement that consideration be given to the extent to which the
violations exceed the definition of non-recordable first aid. For all of
these reasons, it is concluded that the proper range of penalties in
this case is $250.00 for less serious incidents, such as sprains,
strains, rashes and chipped teeth; $500.00 for more serious incidents,
such as contusions, concussions, lacerations, burns and carpal tunnel
syndrome; and $1,000.00 for the most serious incidents, such as eye
injuries, amputations, punctures, fractures and crushing injuries.[18]
This conclusion is based on my review of the E-1's, doctor reports and
other documents supporting the citation items.

The 382 items for which violations have been found are grouped below
according to the type of incident and body part injured. In this regard,
it is noted that where the citation describes the incident more
generally, such as a hand injury, and the supporting documentation
describes it more specifically or accurately, such as a finger
laceration, the item has been grouped according to the supporting
documentation. It is also noted, with respect to item 203, that the
citation describes the incident as a hand contusion; the supporting
documentation describes it as a knee contusion and it has been grouped
accordingly. The penalties assessed for each category are shown at the
end of that category. The total penalty assessment for these items is
$234,000.00.

_Eye Injuries--(86 items, $1,000.00 each)_

Foreign objects in eyes (including metal particles, sparks, glass,
grit); chemical sprays/splashes in eyes; flash burns; being struck/poked
in eye--Items 13, 17, 20, 28, 31-33, 37, 47, 51, 53-54, 56, 61-62,
64-65, 67-68, 70, 73-74, 79-80, 86-88, 90, 92, 94, 105-06, 116, 120-21,
123-24, 126, 129, 133, 140-41, 143, 151, 157, 159-60, 163, 166, 170,
181, 186-87, 193, 200, 211, 216, 221, 234, 242, 249-50, 254-55, 266,
268, 271, 275-76, 280, 295, 301-02, 304, 311, 321, 323, 338, 347, 368,
372-73, 378-81

86 items x $1,000.00 = $86,000.00

_Total--$86,000.00_

_Facial Area Injuries (5 items, $250.00--$500.00 each)_

Chipped/fractured teeth--Items 165, 314 ($250.00 each)

Facial burn--Item 183 ($500.00)

Facial laceration--Item 96 ($500.00)

Welding burr up nose--Item 46 ($500.00)

3 items x $500.00 = $1,500.00

2 items x $250.00 = $500.00

_Total--$2,000.00_

_Head Injuries (10 items, $500.00 each)_

Concussions--Items 19, 299

Contusions--Items 57, 240

Lacerations--Items 30, 43, 127, 214, 217, 362

10 items x $500.00 = $5,000.00

_Total--$5,000.00_

_Back/Neck/Shoulder Injuries (39 items, $250.00--$500.00 each)_

Back contusion--Item 233 ($500.00)

Back sprains/strains--Items 1-2, 4-5, 7-9, 167, 173-80, 220, 237, 247,
265, 283-84, 312-13, 348, 355, 377, 385 ($250.00 each)

Back/neck sprain/strain--Item 246 ($250.00)

Neck sprains/strains--Items 6, 244, 308, 332, 361 ($250.00 each)

Shoulder contusions--Items 325, 349 ($500.00 each)

Shoulder sprains/strains--Items 3, 138 ($250.00 each)

3 items x $500.00 = $1,500.00

36 items x $250.00 = $9,000.00

_Total--$10,500.00_

_Trunk Injuries (15 items, $250.00--$500.00 each)_

Chest/rib cage contusions--Items 15, 122, 218 ($500.00 each)

Chest/rib cage pulled/strained muscles--Items 22, 320 ($250.00 each)

Groin strain--Item 224 ($250.00)

Hernia--Item 366 ($500.00)

Hip contusion--Item 310 ($500.00)

Hip sprains/strains--Items 191, 256, 356 ($250.00 each)

Stomach strain--Item 286 ($250.00)

Trunk burns--Item 81 ($500.00)

Trunk contusion--Item 344 ($500.00)

Trunk laceration--Item 77 ($500.00)

8 items x $500.00 = $4,000.00

7 items x $250.00 = $1,750.00

_Total--$5,750.00_

_Arm/Elbow Injuries (26 items, $250.00--$500.00 each)_

Arm burns--Items 29, 340 ($500.00 each)

Arm sprains/strains--Items 12, 36, 307, 350 ($250.00 each)

Arm/elbow contusions, tendonitis--Items 24, 35, 89, 104, 185, 228, 290,
330, 345 ($500.00 each)

Arm/elbow lacerations--Items 41, 59, 98, 108, 169, 198, 230, 239, 306,
329, 339 ($500.00 each)

22 items x $500.00 = $11,000.00

4 items x $250.00 = $1,000.00

_Total--$12,000.00_

_Hand Injuries (37 items, $250.00--$1,000.00 each)_

Contusions, hematoma--Items 102, 107, 111, 119, 154, 168, 223, 296, 357
($500.00 each)

Fracture--Item 248 ($1,000.00)

Lacerations--Items 14, 48, 66, 95, 145, 189, 197, 238, 251, 260, 316,
324, 328, 346, 364 ($500.00 each)

Punctures--Items 139, 188, 331, 382 ($1,000.00 each)

Sprains, strains--Items 34, 44, 49, 58, 63, 72, 125, 261 ($250.00 each)

5 items x $1,000.00 = $5,000.00

24 items x $500.00 = $12,000.00

8 items x $250.00 = $2,000.00

_Total--$19,000.00_

_Wrist Injuries (22 items, $250.00--$1,000.00 each)_

Carpal tunnel syndrome--Items 343, 363, 365 ($500.00 each)

Contusion--Item 215 ($500.00)

Foreign body in/abrasion to wrist--Item 337 ($500.00)

Fracture--Item 112 ($1,000.00)

Inflammation, sprains, strains--Items 18, 23, 99, 118, 147, 158, 213,
263, 293, 367 ($250.00 each)

Lacerations--Items 52, 117, 128, 152, 202, 210 ($500.00 each)

1 item x $1,000.00 = $1,000.00

11 items x $500.00 = $5,500.00

10 items x $250.00 = $2,500.00

_Total--$9,000.00_

_Finger Injuries (92 items, $250.00--$1,000.00 each)_

Amputations--Items 84, 225, 243, 269, 278, 384 ($1,000.00 each)

Avulsion--Item 369 ($500.00)

Contusions--Items 11, 146, 206, 226, 235, 267, 359 ($500.00 each)

Crushes--Items 16, 199, 205, 207-08, 258, 294, 298, 309, 317 ($1,000.00
each)

Dislocation--Item 287 ($500.00)

Foreign object in/infection to finger--Items 93, 148, 371 ($500.00 each)

Fractures--Items 55, 142, 144, 153, 171, 196, 222, 227, 281, 360
($1,000.00 each)

Inflammation, sprains, strains--Items 297, 333-35 ($250.00 each)

Lacerations--Items 21, 39, 42, 50, 69, 71, 76, 97, 100-01, 109-10, 113,
115, 130-31, 134, 137, 149-50, 156, 161, 182, 195, 204, 229, 245, 259,
262, 270, 274, 277, 279, 282, 285, 288-89, 315, 318-19, 322, 326, 351,
358, 374 ($500.00 each)

Punctures--Items 10, 192, 303, 352, 376 ($1,000.00 each)

31 items x $1,000.00 = $31,000.00

57 items x $500.00 = $28,500.00

4 items x $250.00 = $1,000.00

_Total--$60,500.00_

_Knee/Leg/Thigh Injuries (18 items, $250.00--$1,000.00 each)_

Knee contusions, hematoma--Items 82, 114, 132, 203, 209, 236, 327
($500.00 each)

Knee laceration--Item 291 ($500.00)

Knee puncture--Item 91 ($1,000.00)

Knee/leg injury from standing/walking on concrete--Item 25 ($500.00)

Leg contusion--Item 40 ($500.00)

Leg lacerations--Items 60, 85 ($500.00 each)

Leg strain, pulled muscles--Items 273, 370 ($250.00)

Leg/thigh contusion/abrasion--Item 194 ($500.00)

Thigh laceration--Item 27 ($500.00)

Wood splinter in leg--Item 26 ($250.00)

1 item x $1,000.00 = $1,000.00

14 items x $500.00 = $7,000.00

3 items x $250.00 = $750.00

_Total--$8,750.00_

_Ankle Injuries (6 items, $250.00--$500.00 each)_

Burns--Item 375 ($500.00)

Contusions--Items 155, 231 ($500.00 each)

Laceration--Item 272 ($500.00)

Sprains--Items 212, 336 ($250.00 each)

4 items x $500.00 = $2,000.00

2 items x $250.00 = $500.00

_Total--$2,500.00_

_Foot Injuries (12 items, $500.00--$1,000.00 each)_

Foot contusions, hematoma--Items 45, 164, 232, 341 ($500.00 each)

Foot fracture--Item 162 ($1,000.00)

Foot puncture--Item 83 ($1,000.00)

Fractured/crushed toes--Items 184, 219, 252, 305, 342 ($1,000.00 each)

Toe contusion--Item 292 ($500.00)

7 items x $1,000.00 = $7,000.00

5 items x $500.00 = $2,500.00

_Total--$9,500.00_

_Other Injuries (14 items, $250.00 each)_

Insect stings/spider bites--Items 75, 78, 257, 300

Rashes, contact dermatitis--Items 135-36, 201, 241, 253, 353-54, 383

Other reactions to chemical substances--Items 38, 103

14 items x $250.00 = $3,500.00

_Total--$3,500.00_

_Willful/Egregious Citation 2--Items 386(a)-(b)_

These items allege the annual summaries for the company's OSHA 200's for
1988 and 1989 were neither completed as required by 29 C.F.R. §
1904.5(b) nor certified as true and complete as required by 29 C.F.R. §
1904.5(c). It is clear from the record that the OSHA 200's were not
completed as required, particularly since the figures on the forms were
not totaled, and, more importantly, since the vast majority of injuries
and illnesses for those years were not recorded on the forms at all; it
is also clear that the OSHA 200's were not certified as true and
complete as required. (Tr. 960-63; G-388-89). Items 386(a) and (b) are
affirmed as willful violations, for the reasons set out in the preceding
discussion. These items were grouped with a single proposed penalty of
$5,000.00. In light of the factors above and the nature of this
violation, it is concluded that the proposed penalty is excessive and
that the assessment of a single penalty of $500.00 for these items is
appropriate.

_Willful/Egregious Citation 2--Item 387_

This item alleges Respondent did not provide access to medical records
for the years 1987, 1988 and 1989 in violation of 29 C.F.R. §
1910.20(e)(3)(i), which states as follows:

    Each employer shall, upon request, and without derogation of any
    rights under the Constitution or the [Act] that the employer chooses
    to exercise, assure the prompt access of representatives of [OSHA]
    to employee exposure and medical records and to analyses using
    exposure or medical records.

The record shows that after CO Antonio reported a problem with the
company's recordkeeping, Mike Hunter told him to make copies of the OSHA
200's, first aid logs and E-1's.[19] Antonio was not allowed to do so,
and on April 17, 1990, OSHA served an administrative subpoena and
medical access order on KWW to obtain its injury and illness records and
supporting documentation, including medical records, for 1987-1989; as a
result, Dan Price delivered to Hunter copies of the OSHA 200's, first
aid logs, E-1's and supervisors' reports for those years.[20] When
Hunter asked about the medical records, Price told him KWW did not have
them and that they were kept by the treating physicians, who could not
release them without employee authorization as they were confidential;
most of the records were at the clinic of the Drs. Wagner, the company's
primary medical provider.[21] Hunter told Price OSHA needed the records
and to get them by whatever legal means necessary.[22] (Tr. 1100;
1105-06; 1253-60; 1341-45; 1588-94; 1621-22; R-28).

OSHA had not received any medical records by June, and on June 7 a
subpoena was served on Drs. Wagner.[23] By about mid-June those doctors
had provided the records they had, which comprised most of the
incidents; however, there were about seventy-five cases which had been
treated by other doctors, and on June 18 Hunter sent a letter to Price
listing those incidents and advising him to furnish the records. Price
contacted the Industrial Accident Board and learned it could not help
him. He also called KWW's worker compensation insurers and followed up
with letters on June 20 written by the company's counsel requesting the
records; one insurer no longer had them and the other would not provide
them. In late June and early July Price wrote to the various doctors,
most of whom advised they could not provide the records without employee
authorization. Price then wrote the employees shown in Hunter's letter,
asking each to sign an authorization; some responded and others did not,
and for those who did their authorizations were sent to the treating
doctors. Price advised OSHA of his progress, and as medical records were
received they were sent to the agency. Although there were some
incidents for which medical records were never received, OSHA had most
of those it sought by the time the citations were issued on September
18. (Tr. 1100-02; 1261-63; 1333-36; 1345-49; 1354-65; 1590-93; 1600-17;
1622; R-31-33; R-36; R-42-47; R-49-50; R-58; R-60; R-62-63; R-174).

Based on the foregoing, the record supports the finding of a willful
violation of 1910.20(e)(3)(i). Respondent refused to provide copies of
the injury and illness records it had at its facility until OSHA
subpoenaed them. Moreover, while Price visited the clinic of Drs. Wagner
and learned they would not release their medical records without
employee authorization he made no further attempt to obtain those
records; he also made no attempt to obtain the medical records of other
doctors who had treated employees until he received Hunter's letter
dated June 18. After that time, Price made reasonably diligent efforts
to obtain the rest of the medical records. However, as the Secretary
notes, these efforts occurred approximately three months after the
beginning of the inspection and two months after the service of the
first subpoena and the date by which the company knew that the treating
doctors would not release their medical records without further action
on its part. (Tr. 1621-22). See also the Secretary's post-hearing brief
at p. 41. Under the circumstances of this case, a willful violation of
the standard has been established.

The Secretary proposed a penalty of $10,000.00 for this item. Although
the violation has been characterized as willful, the proposed penalty is
excessive in light of the penalty determination factors discussed supra
and the circumstances of this item. As noted above, the company did not
provide any records to OSHA until they were subpoenaed and made
essentially no effort to obtain employee medical records until after
June 18. After that time, however, the company used reasonable diligence
to secure the records in the seventy-five cases set out in Hunter's
letter. Further, acquiring the records from the Wagner clinic would have
been a very time-consuming undertaking, especially in view of the steps
Price took to obtain the records of the remaining cases, and while this
does not excuse the failure to act it at least provides a partial
explanation. Finally, due to Price's efforts OSHA did receive most of
the records it sought. For these reasons, it is concluded that the
assessment of a penalty of $2,500.00 is appropriate for this item.

_Willful/Egregious Citation 2--Items 388(a)-(c)_

    These items allege that point of operation guards or devices were
    not provided or used on punch presses as required in violation of 29
    C.F.R. § 1910.217(c)(1)(i). That standard states as follows:

It shall be the responsibility of the employer to provide and insure the
usage of ``point of operation guards'' or properly applied and adjusted
point of operation devices on every operation performed on a mechanical
power press.

In regard to 388(a), the record shows this item was based on CO
Antonio's observing Dennis Kopecky operating an unguarded Diamond punch
press, depicted in G-419, to punch holes in a small piece of sheet
metal; Antonio and CO Jones opined the proximity of Kopecky's hands to
the point of operation and the fact the press was operated by means of a
foot pedal could have resulted in his fingers getting into the operation
and being amputated, crushed or lacerated. (Tr. 823-44; 963-66). Dennis
Kopecky's testimony indicates R-130-31 depict the same press except for
the guard, which was put on after the inspection, and that the smallest
items he punched on it measured about 20 by 20 inches. (Tr. 21-22;
29-36; 42-53). G-419 clearly shows the proximity of Kopecky's hands to
the point of operation. This proximity and the foot pedal operation
convince the undersigned that employees could have sustained finger
injuries while using the press, a conclusion supported by the guard put
on after the inspection and the warning sign on the guard advising
workers to not use the press without the guard in place. /See /R-130-31.
This item is affirmed.

In regard to 388(b), William Collins' testimony was that he had worked
in the Bassick department since early 1988, and that in May of that year
he was injured on a punch press that cycled unexpectedly. Collins had
started up the press early that morning, had put a part on a 5 to 6-inch
rod with his left hand and, holding the rod with his right hand,
inserted the part into the die on the ram. The rod was designed to also
remove the part was after it was pressed, which was done by stepping on
a foot pedal, but this particular rod would not catch the part and when
he tried to rake it out with his left hand the machine cycled again and
smashed two fingertips; the injury required a number of stitches and he
was off work six to eight weeks. Collins said the Bassick department was
just starting up, and that although no one knew it until then the press
was subject to double cycling when it was cold. He also said the press
was unguarded, and that while it had hand restraints on it he did not
know what they were and no one had told him to use them. Collins had not
worked on the press since his accident. (Tr. 145-62). Based on the
record, a violation is established. This item is accordingly affirmed.

As to 388(c), Leonard Marek testified he had worked on the cited press,
a Niagara punch press, for eight years and never been injured. He noted
the guard shown on the press in G-414-15, and said that although he used
a metal rod to scrape some parts out through the small gap in the guard,
as shown in the photos, the guard kept him from sticking his hand into
the point of operation when the press was running. He also noted that
while the guard was removed to change the die this was always done when
the machine was turned off and that to remove the guard it had to be
unbolted and the lamp in G-414-15 removed. Marek said that in the manual
mode the aluminum buttons on either side of the machine both had to be
pushed to operate the press, and that in the automatic mode there was a
safety sensor that would cut it off. He also said the present guard on
the press is better; it more fully encloses the equipment and is removed
by unlocking it. (Tr. 98-127). Based on the record, the cited press was
guarded at the time of the inspection, and while it would appear that
the current guard is an improvement over the old one, the Secretary, in
my view, has not shown the alleged violation. This item is vacated.

Violations have been found as to 388(a) and (b). As to the
characterization of these items, I note first that KWW was cited
pursuant to the same standard in 1985; the specific allegation was that
an employee was working at an unguarded punch press and was exposed to
serious finger injuries.[24] /See /R-6. I note also that a number of
punch press injuries had occurred at the facility in 1988 and 1989, and
that Paul Morkovsky, the company's safety and health compliance officer
since February 1988, himself testified that the facility had had a
``rash'' of serious injuries of this type during this period. (Tr. 1722;
1736; 1895). /See also /items 389-396, /infra. /For these reasons, the
violations were willful.

Turning to an appropriate penalty, items 388(a)-(c) were grouped with a
single proposed penalty of $10,000.00; however, only items (a) and (b)
have been affirmed. In considering the factors set out above, the
gravity of these violations was high in light of the potential for
serious injury and the fact that such injuries actually occurred. On the
other hand, Paul Morkovsky testified that point of operation guarding
training was given at the facility in January 1990 and that no punch
press injuries had occurred since then. (Tr. 1895-96). On balance, I
conclude that a single penalty of $5,000.00 is appropriate for items
388(a) and (b).

_Willful/Egregious Citation 2--Items 389 and 391-396_[25]

These items allege that the company did not report punch press point of
operation injuries occurring during 1987, 1988 and 1989 as required, in
violation of 29 C.F.R. § 1910.217(g)(1). That standard provides as follows:

    /Reports of injuries to employees operating mechanical power
    presses. /The employer shall, within 30 days of the occurrence,
    report to ... [OSHA], all point of operation injuries to operators
    or other employees.

It is clear from the record that G-386, G-71, G-84, G-207, G-222 and
G-358, copies of E-1's prepared by the company in 1987, 1988 and 1989,
establish the punch press point of operation injuries alleged in items
389, 391, 392, 394, 395 and 396, respectively; specifically, G-386 shows
an 8/24/87 injury to Veronica Kurtz, G-71 shows a 5/25/88 injury to
William Collins, G-84 shows a 6/14/88 injury to Kevin Madden, G-207
shows a 2/24/89 injury to Rosalind Franklin, G-222 shows a 3/27/89
injury to Mary Ann Hubbard, and G-358 shows an 11/15/89 injury to
Barbara Koliba.[26] It is also clear, based on the testimony of Mike
Hunter and G-423, copies of the company's reports of mechanical press
point of operation injuries to OSHA in 1987, 1988 and 1989, that the
injuries described in items 389, 391, 392, 394, 395 and 396 were not
reported as required; in this regard, I note that KWW reported only one
injury in 1987 and two in 1989. (Tr. 1263-80).

Dan Price testified that he did not know there was a requirement to
report mechanical press point of operation injuries until the summer of
1989, that his reports in June and October of 1989 were after he learned
of the requirement, and that while he did not report the injury
occurring in November 1989 that failure was inadvertent. (Tr. 1892-93;
G-423). This testimony is no defense against a finding that the
violations were willful; to the contrary, the record shows KWW was cited
pursuant to the same standard in 1985.[27] /See /R-6. Items 389, 391,
392, 394, 395 and 396 are affirmed as willful violations, and items 390
and 393 are vacated for the reasons above.

A penalty of $4,000.00 was proposed for each of these items. In light of
the factors discussed above, I conclude that the assessment of a penalty
of $1,000.00 each for items 389, 391, 392, 394, 395 and 396 is appropriate.

_Willful/Egregious Citation 2--Items 397(a)-(d)_

These items allege three instances of spot welders and one instance of a
press welder in which the equipment was not guarded to protect against
the operators' fingers being under the point of operation in violation
of 29 C.F.R. § 1910.255(b)(4).[28] That standard provides as follows:

    All press welding machine operations, where there is a possibility
    of the operator's fingers being under the point of operation, shall
    be effectively guarded by the use of a device such as an electronic
    eye safety circuit, two hand controls or protection similar to that
    prescribed for punch press operation, § 1910.217 of this part.

As to 397(a), the basis of this item was OSHA industrial hygienist
Marianne McGhee's observation of employee Tommy Deberry using a spot
welder on July 17, 1990; McGhee was conducting an ergonomics review of
the facility, and G-421 is the video she made of her observations. (Tr.
938-42; 1022-24). McGhee testified she looked at spot welders and saw
Deberry using one in the sheet metal department, as shown in G-421. He
finished welding and then began filing the electrodes, the points that
weld parts together, which were about 2 inches apart based on her later
measurement; McGhee was about 15 feet away at the time, and estimated
the file was 12 to 16 inches long and that Deberry's hands were 3 to 4
inches from the electrodes. She said his foot was near the foot pedal
and that she did not see him turn off the welder before beginning
filing; however, she did not know where the power source was and said he
could have turned it off. (Tr. 1425-47).

Michael Moeller has worked at KWW since 1979; he began as a spot welder
and has been a supervisor in the sheet metal department since 1988. He
testified that filing the electrodes on spot welders is a common event
which can occur four to five times an hour, depending on what is being
welded. He further testified most of the spot welders are operated by
foot pedal, that the power switches to such welders are on their fronts
or sides, and that the policy since he has been a supervisor is to turn
off the power before filing the electrodes. (Tr. 1671-76; 1713-14).

In light of the foregoing, the Secretary has not demonstrated employee
exposure to the alleged hazard. McGhee admitted Deberry could have
turned the spot welder off before beginning to file the electrodes,
Moeller testified this had been the company's policy since 1988, and the
Secretary presented no further evidence in support of his allegation.
This citation item is vacated.

As to 397(b) and (c), two employees testified in regard to their use of
spot welders at the facility and the Secretary indicated their testimony
related to item 397. (Tr. 55-65; 131-44). However, the Secretary never
specifically identified either at the hearing or in his post-hearing
brief the sub-items to which their testimony related. Moreover, it
cannot be determined from their testimony and the language of the
citation which sub-item relates to which employee. Based on the record,
items 397(b) and (c) are vacated for lack of proof.

As to 397(d), the basis of this item was Stephen Nobles' November 16,
1989, injury on a press welder. Nobles testified he was welding a
newspaper rack part, specifically, a hinge onto a lid, in a press
welding machine. The job required him to place his fingers in between
the jaws of the welding equipment to straighten the hinge and then hold
the piece in place with his fingers in close proximity to the jaws, and
when he inadvertently stepped on the machine's foot pedal the jaws
closed on both thumbs; the right was only nicked but the left was broken
in several places and required pinning and numerous stitches, which
resulted in Nobles being off work for four months and a twenty-five
percent disability in the use of his thumb. Nobles said there were no
guards or hand restraints on the machine to keep fingers out of the
operation and that it was in the same condition at the time of the
inspection. (Tr. 244-46; 252-55). The testimony of Nobles and G-360, the
E-1 and other supporting documentation regarding his injury, establish
the alleged violation.

A violation of the standard has been found as to item 397(d), and the
violation is properly characterized as willful in light of the serious
nature of the hazard, the fact the welder was still unguarded at the
time of the inspection, as well as the fact that Respondent was
previously cited pursuant to the same standard in 1985. /See /R-6.[29] A
penalty of $10,000.00 has been proposed for items 397(a)-(d). Due to the
gravity of item 397(d) and the vacation of items 397(a)-(c), it is
concluded that a penalty of $2,500.00 is appropriate for item 397(d).

_Serious Citation 1--Items 1(a)-(b)_

These items allege violations of 29 C.F.R. § 1910.23(d)(1)(i), which
provides as follows:

    Every flight of stairs having four or more risers shall be equipped
    with standard stair railings or standard handrails ... [o]n
    stairways less than 44 inches wide having both sides enclosed, at
    least one handrail, preferably on the right side descending.

The record shows that there were three stairways without handrails at
the facility at the time of the inspection; one was in the sheet metal
paint department and was basically a ramp with a six-riser stairway in
the middle, while the other two were in the wire paint department and
were essentially identical four-riser stairways. There are no photos of
the sheet metal paint department stairway, but those in the wire paint
department are shown in G-404 and R-67-69 and R-71.[30] (Tr. 291-96;
660-70; 701; 1742-46). CO Antonio testified that employees could have
fallen and sustained sprains or broken bones when using the stairways.
(Tr. 293-95). Respondent presented nothing in defense of 1(a), the sheet
metal paint department stairway, and this item is affirmed as a serious
violation. In regard to 1(b), the wire paint department stairways,
Antonio conceded on cross examination that the stairways were actually
44 inches wide and that the standard did not apply to them. (Tr.
620-28). Based on this testimony, the stairways in the wire paint
department did not violate the standard and item 1(b) is vacated. A
total penalty of $600.00 was proposed for items 1(a) and 1(b). As 1(b)
alleges two violative conditions and has been vacated, a penalty of
$200.00 is appropriate for item 1(a).[31]

_Serious Citation 1--Item 2_

This item alleges a violation of 29 C.F.R. § 1910.94(a)(6)(iii), which
states as follows:

    The air for abrasive-blasting respirators shall be free of harmful
    quantities of dusts, mists, or noxious gases, and shall meet the
    requirements for air purity set forth in ANSI Z9.2-1960. The air
    from the regular compressed air line of the plant may be used for
    the abrasive-blasting respirator if ... an automatic control is
    provided to either sound an alarm or shut down the compressor in
    case of overheating.

CO Antonio testified there was an abrasive blasting booth in the
refurbishing area of the facility and that he observed no alarm or
automatic shutoff inside or outside the booth or on the air compressor,
which was in another room, that would alert employees or shut down the
compressor if it overheated; he said the condition was a hazard because
the compressor could overheat and cause its lubricating oils to break
down, which could expose the person in the booth using the respirator to
carbon monoxide. (Tr. 296-302; 701-14; 827-28; R-405-06).

Jonathan Petru, the maintenance department supervisor at KWW, testified
that the compressor that feeds the respirator hood used in the abrasive
blasting booth has an automatic shutoff on it so that if the oil heats
above a certain temperature the compressor shuts off and has to be
manually restarted. He further testified that the compressor was in the
same condition at the time of the inspection, and that while the reset
button is easily visible the shutoff mechanism is not because it is
inside a control box on the compressor. (Tr. 1623-24; 1630-34; 1645-48).

Based on the testimony of Petru, which the Secretary did not rebut,
there was no violation of the cited standard. This item is accordingly
vacated.

_Serious Citation 1--Item 3_

This item alleges a violation of 29 C.F.R. § 1910.106(d)(2)(i), which
covers the storage of flammable and combustible liquids and provides as
follows:

Only approved containers and portable tanks shall be used.

CO Antonio testified he saw employees in the silkscreen area using
unapproved plastic jugs to transport inks, paints and thinners from
large storage containers to their work areas; the large containers were
identified as holding flammable liquids and two thinners, MEK and MIK,
had flashpoints of 24 and 73 degrees Fahrenheit, respectively.[32]
Antonio said the containers could have caused spills and, due to
ignition sources such as electrical outlets, burn injuries; the
containers did not have the spring-loaded enclosures that safety
containers have which prevent spills and also could have ruptured if a
fire had occurred. (Tr. 302-06; 714-20).

Respondent contends that the subject standard applies only to the
storage of flammable and combustible liquids and that it did not violate
the standard because of the exception set out at 1910.106(d)(1)(ii)(c),
which exempts the following:

    Flammable or combustible paints, oils, varnishes, and similar
    mixtures used for painting or maintenance when not kept for a period
    in excess of 30 days.

In support of its contention, Respondent presented the testimony of
Linda Mullins, a lead person in the silkscreen department at the time of
the inspection and currently the assistant supervisor in that area. She
testified that ink, cleaners and thinners were put into small plastic
containers and used out on the floor, and that while the cleaners and
thinners were used during the day and then disposed of the ink could be
stored in the containers for months. (Tr. 1652-63).

Based on the record, the Secretary has shown a violation. While
paragraph (d) of the standard specifically states that it applies to the
storage of flammable or combustible liquids and nowhere discusses the
transporting of such materials, Mullins herself testified inks could be
stored in the plastic containers for months. Moreover, it is clear from
Antonio's observations and the discussion in regard to item 4, infra,
that the inks were flammable. Finally, while Antonio's primary concern
was the transporting and possible spills of flammable materials his
testimony indicates he was also concerned about their storage. This item
is affirmed as a serious violation.

A penalty of $600.00 was proposed for this item. Since the alleged
violation went to both the transporting and storage of inks and other
flammable materials and the citation has been affirmed only as to the
storage of inks, I conclude that a penalty of $200.00 is appropriate for
this item.

_Serious Citation 1--Item 4_

This item alleges a violation of 29 C.F.R. § 1910.106(d)(3)(ii), which
governs the design and construction of fire resistant storage cabinets
and states as follows:

    Storage cabinets shall be designed and constructed to limit the
    internal temperature to not more than 325 degrees F. when subjected
    to a 10-minute fire test....Cabinets shall be labeled in conspicuous
    lettering ``Flammable--Keep Fire Away.''

CO Antonio testified that there were approximately 150 gallons of
flammable materials stored on top of and inside a wood cabinet in the
silkscreen area; the materials included paints, inks and MEK, and the
cabinet was unapproved because it had no warning signs and the walls
were less than a half inch thick. Antonio said the cabinet was a hazard
because if a fire had occurred it could have consumed the cabinet and
spread to the contents inside. (Tr. 306-09; 720-28; 828-29).

Based on the foregoing, the cabinet violated the standard. It was used
to store flammable materials, did not have any warning signs and was not
made of one-inch-thick wood as required. See 1910.106(d)(3)(ii)(a)-(b).
This item is affirmed as a serious violation. The Secretary proposed a
penalty of $600.00 for this item. In view of Linda Mullins' testimony
that the wood cabinets had been disposed of and that materials are now
stored in metal cabinets such as those shown in R-72-73, a penalty of
$500.00 is appropriate for this item. (Tr. 1661-64).

_Serious Citation 1--Item 5_

This item alleges a violation of 29 C.F.R. § 1910.107(e)(9), which
provides as follows:

    Whenever flammable or combustible liquids are transferred from one
    container to another, both containers shall be effectively bonded
    and grounded to prevent discharge sparks of static electricity.

CO Antonio testified that thinners such as MEK and MIK were kept in
large drums in both the wire paint and sheet metal paint departments and
transferred into other containers for the purpose of mixing paint and
cleaning equipment; the drums were not grounded and bonded as required,
and there were also no bonding straps for bonding the smaller
containers. Antonio said the condition was hazardous because
transferring the liquids could have resulted in static electricity and,
consequently, a fire and burn injuries. (Tr. 316-23; 728-35; G-404).

Paul Morkovsky testified there was a grounding bar behind the drums
shown in G-404, the wire paint department, and that while he thought
some of the drums were grounded at the time of the inspection they were
not all grounded and bonded. He offered his opinion that the condition
did not represent a significant hazard, but noted that all the drums had
since been grounded and bonded. (Tr. 1747-52).

Based on the foregoing, a violation of the standard has been
established. Morkovsky's opinion that the condition was not a
significant hazard is unpersuasive in light of the language of the
standard and Antonio's testimony, and this item is accordingly affirmed
as a serious violation. The Secretary proposed a penalty of $700.00 for
this item. In view of the evidence that the drums are now grounded and
bonded, a penalty of $600.00 is appropriate for this item.

_Serious Citation 1--Item 6_

This item alleges that Respondent did not have a lockout/tagout program
in violation of 29 C.F.R. § 1910.147(c)(1), which provides as follows:

    The employer shall establish a program consisting of an energy
    control procedure and employee training to ensure that before any
    employee performs any servicing or maintenance on a machine or
    equipment where the unexpected energizing, start up or release of
    stored energy could occur and cause injury, the machine or equipment
    shall be isolated, and rendered inoperative, in accordance with
    paragraph (c)(4) of this section.

Respondent does not dispute that it was required to comply with the
standard, but contends, rather, that it had a lockout/tagout program at
the time of the inspection. In this regard, Paul Morkovsky testified he
developed a draft program based on the one set out in the standard and
sent it to supervisors around the first of March 1990, and that the
program, R-56, was finalized on March 20. He further testified that
while he did not know the exact date, the program was in place in the
maintenance department sometime in March because John Petru, the
maintenance supervisor, had begun working from the draft and educating
his employees. Morkovsky said the program was greatly expanded later
that year after he and the company's training officer went to a
lockout/tagout course offered by the Texas Safety Association. (Tr.
1752-55).

In view of the foregoing, R-56 should have been available during CO
Antonio's inspection. However, Antonio specifically testified he did not
see R-56 while at the facility and that when he asked Morkovsky if he
had developed a lockout/tagout program Morkovsky told him he had not.
(Tr. 323-27; 735; 739-43). Moreover, John Petru testified that while the
lockout program was implemented sometime around the inspection he could
not remember if it was before or after, and Stephen Nobles, who worked
as a welder in the sheet metal department, testified that to his
knowledge there was no such program until shortly before he left the
company in April 1991. (Tr. 258-60; 1628-29). Finally, while other
employees testified about locking out equipment they did not specify
when the facility's lockout program was implemented. (Tr. 30-31; 44-45;
111). Based on the record, a serious violation of the standard has been
established. The proposed penalty of $700.00 is reduced to $600.00 in
light of the evidence that the company now has a lockout program.

_Serious Citation 1--Item 7_

This item alleges a violation of 29 C.F.R. § 1910.176(b), which states
as follows:

    Storage of material shall not create a hazard. Bags, containers,
    bundles, etc., stored in tiers shall be stacked, blocked,
    interlocked and limited in height so that they are stable and secure
    against sliding or collapse.

CO Antonio testified he saw silkscreens stored on shelving up above the
sheet metal office such that they could have fallen and struck
employees, resulting in injuries such as lacerations or concussions; the
screens were stored vertically side by side, as shown in G-407, and one
of them, which Antonio circled, was on the end of the shelving and
appeared ready to fall. (Tr. 327-33; 743-48). Linda Mullins testified
that employees accessed the area daily to put up and remove screens,
that the circled screen in G-407 looked like it was not braced properly,
and that the shelves now have wire around them, as shown in R-74-75, to
keep the screens from falling. (Tr. 1664-67). Based on the record, a
serious violation of the standard has been shown, and this item is
affirmed. The Secretary's proposed penalty of $300.00 is reduced to
$200.00 in light of the company's correction of the condition.

_Serious Citation 1--Item 8_

This item alleges a violation of 29 C.F.R. § 1910.212(a)(1), which
provides as follows:

    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.

CO Antonio testified he saw an employee operating a Strippit punch press
with the interlock switches inside the access doors overridden with
rubber bands, as shown in G-408-09; the switches were designed to shut
off the press when the doors were opened and if the operator had done so
for some reason, such as the machine overheating, he could have gotten
his hands into the rotating turret and suffered lacerations, broken
bones or finger amputations. Antonio said the broken guard on the foot
pedal shown in G-410 was an additional hazard because the operator could
have inadvertently stepped on it and activated the press. (Tr. 333-41;
749-58).

Jonathan Petru testified that although the purpose of the switches is to
keep employees from getting into moving parts the press is operated with
the doors closed and he was unaware of any problems with it overheating.
He further testified the switches on the press are overridden with
rubber bands during maintenance so the operation can be observed and
indicated this was the reason for the cited condition. He said the
rubber bands should have been removed after the maintenance, and that to
his knowledge the condition had not recurred since the inspection. (Tr.
1634-40; 1648-50). Paul Morkovsky testified the access doors were opened
to maintain the press and change punches, that no one had ever
complained about it overheating, and that there was no advantage in
operating it with the door open. He further testified that the broken
guard on the foot pedal was not a hazard because the pedal's only
function is to operate the jaws used to hold parts in place and they
open only a quarter of an inch. (Tr. 1755-61; R-79-81).

Based on the record, the Secretary has not demonstrated employee
exposure to the cited hazard. It is clear that the purpose of the
interlock switches is to keep employees from getting into the rotating
turret behind the access doors. However, Respondent's witnesses
testified the press was operated with the doors closed and Antonio
conceded this was the case when he was there and that the doors
themselves acted as barriers. (Tr. 749; 756). Moreover, while Antonio
believed the doors could have been opened due to the press overheating
Respondent's witnesses indicated this had not occurred. Finally,
although the record shows the doors were also opened to change dies
there is nothing to indicate this ever happened with the press
operating; to the contrary, it would appear based on Petru's testimony
that the rubber bands were left on the switches as an oversight after
maintenance had been performed on the press, and Antonio conceded this
could have been the case. (Tr. 750). In regard to the broken guard on
the foot pedal, Morkovsky's testimony must be credited over that of
Antonio because other than its operating the clamp Antonio appeared
unsure as to its function. (Tr. 753-54). This item is vacated.

_Serious Citation 1--Item 9_

This item alleges a violation of 29 C.F.R. § 1910.212(a)(3)(ii), which
provides as follows:

    The point of operation of machines whose operation exposes an
    employee to injury, shall be guarded. The guarding device shall be
    in conformity with any appropriate standards therefor, or, in the
    absence of applicable specific standards, shall be so designed and
    constructed as to prevent the operator from having any part of his
    body in the danger zone during the operating cycle.

The basis of this item was a press brake in the sheet metal department
which injured operator Adolph Koncaba on August 8, 1988 and June 5,
1989. (Tr. 905-20; G-113; G-269). Adolph Koncaba testified that on both
occasions he was operating the same press brake to press parts, which
involved putting the parts in the press manually and holding them there
and then pushing the foot pedal to operate the press, and inadvertently
got his fingers into the point of operation; the 1988 injury resulted in
a laceration to one finger which required a number of stitches, while
the 1989 injury caused a fingernail on one hand to be mashed off and the
index finger on the other hand to be severely mashed, resulting in
medical treatment, time off of work and a permanent deformity of the
mashed finger.[33] Koncaba said there were no light curtains, hand
restraints or point of operation guards on the press brake then, and
that guards could not be used due to the way the metal was formed. He
also said that within six months of the 1989 injury the press brake was
equipped with two-hand buttons that kept the operator's hands out of the
point of operation; however, they could not be used for large parts,
which required holding onto the part with his hands 4 to 6 inches from
the point of operation and using the foot pedal to press the part.
Koncaba began working on a punch press shortly after that time and has
not worked on the press brake since then. (Tr. 220-42).

Respondent contends that the Secretary has not shown a violation because
Donald Jones, the CO who recommended this item, had no personal
knowledge of the press brake. Jones did, in fact, testify he had no
personal knowledge of the press brake and that the citation was based on
Koncaba's statements and the E-1's and other supporting documentation of
his injuries. (Tr. 1039-46). I find that Koncaba's testimony together
with G-113 and G-269 establishes the alleged violation. Koncaba stated
there was no guarding on the press brake before his injuries, that the
two-hand buttons installed after his 1989 injury could not be used when
pressing large parts, and that during such jobs his hands would be 4 to
6 inches from the point of operation. He also stated the press brake was
in the same condition at the time of the inspection. (Tr. 234-42). This
testimony clearly demonstrates the press brake violated the standard,
and Koncaba's opinion it could not be guarded does not, standing alone,
show compliance was infeasible. This item is affirmed as a serious
violation, and the Secretary's proposed penalty of $900.00 is assessed.

_Serious Citation 1--Item 10_

This item alleges a violation of 29 C.F.R. § 1910.213(i)(1), which
applies to bandsaws and states as follows:

    All portions of the saw blade shall be enclosed or guarded, except
    for the working portion of the blade between the bottom of the guide
    rolls and the table.

CO Antonio testified he saw a bandsaw in the maintenance department
which was not guarded as required; the bandsaw had a guard on it which
could be adjusted up and down depending on the thickness of the stock to
be cut, but the lower part of the guard was gone, leaving about 2 inches
of blade above the guide rollers exposed, as shown in G-411. Antonio
said the operator's hand could have slipped while using the saw and been
lacerated by the blade. He did not recall seeing a push block, but noted
the purpose of such a device is to create a barrier between the
operator's hands and the exposed portion of the blade below the guide
rollers when pushing smaller stock through the blade. (Tr. 341-46; 758-62).

Based on the foregoing, a serious violation of the standard has been
shown. In defense of this item, Respondent presented the testimony of
Kevin Willhoite, an employee of the company from 1988 until April 1990
who used the saw for carpentry work. However, Willhoite testified only
that the same guard had been on the saw when he used it, that he used
the push block anytime his hands were close to the blade, and that the
saw would not have worked except on very thin materials if the guard had
gone all the way to the bottom of the blade. (Tr. 167-79). This
testimony does not rebut that of Antonio, and this item is affirmed as a
serious violation.

A penalty of $300.00 was proposed for this item. In light of Paul
Morkovsky's testimony that a guard was put on the exposed area of the
blade after the inspection, as shown in R-83-84, a penalty of $200.00 is
appropriate. (Tr. 1761-63).

_Serious Citation 1--Item 11_

This item alleges a violation of 29 C.F.R. § 1910.213(c)(3), which
provides as follows:

    Each hand-fed circular ripsaw shall be provided with nonkickback
    fingers or dogs so located as to oppose the thrust or tendency of
    the saw to pick up the material or to throw it back toward the operator.

CO Antonio testified there was a table saw in the maintenance department
without ``kickback fingers'' or ``dogs'' to prevent boards being kicked
back at the operator as they were pushed through the saw; G-412 depicts
the saw, and R-87 and R-127 show the kickback fingers it should have
had. Antonio said the teeth on the fingers work by binding into the
board being cut and that without them an operator could sustain
lacerations. He also said the risk of kickback on the subject saw was
minimized by its guarding and adjustable blade. (Tr. 346-50; 762-64).

Respondent contends that the saw had kickback fingers at the time of the
inspection based on the testimony of Kevin Willhoite. Willhoite did, in
fact, testify that there were kickback fingers on the saw at that time.
(Tr. 182-83; 189-91). However, he also testified they were added to the
saw after he had been at the facility for a while and that he could not
remember if this was before or after the inspection. (Tr. 171-72).
Moreover, while he initially indicated that G-412 showed the kickback
fingers, he later stated they were not depicted in that photo. (Tr. 172;
180-81). Based on the equivocal nature of Willhoite's testimony, I
conclude the kickback fingers were put on the saw after the inspection.
This item is accordingly affirmed as a serious violation.

A penalty of $300.00 was proposed for this item. In view of the
abatement of the condition and Antonio's testimony that the hazard was
minimized by the guarding and adjustable blade on the saw, a penalty of
$100.00 is appropriate for this item.

_Serious Citation 1--Item 12_

This item alleges a violation of 29 C.F.R. § 1910.213(h)(1), which
applies to radial saws and states, in pertinent part, as follows:

    The sides of the lower exposed portion of the blade shall be guarded
    to the full diameter of the blade by a device that will
    automatically adjust itself to the thickness of the stock and remain
    in contact with stock being cut to give maximum protection possible
    for the operation being performed.

The record shows there was a Dewalt radial arm saw in the maintenance
department at the time of CO Antonio's inspection which did not have a
guard on the lower exposed portion of the blade to protect the operator
from contacting it, as shown in G-413. (Tr. 170-73; 350-53). Although
Respondent contends there was no exposure to a hazard from operating the
saw, Antonio's opinion was that the unguarded blade was a hazard and
Kevin Willhoite testified his hands were 6 to 12 inches from the blade
when he used it. (Tr. 195-96; 352-53; 764-66). I conclude, based on the
record and the language of the standard, that a guard was required on
the lower exposed portion of the blade. This item is affirmed as a
serious violation.

A penalty of $300.00 was proposed for this citation item. In light of
the evidence that a guard was installed on the saw after the inspection,
a penalty of $200.00 is appropriate for this item. (Tr. 1763-65; R-88).

_Serious Citation 1--Item 13_

This item alleges a violation of 29 C.F.R. § 1910.213(h)(4), which
provides as follows:

    Installation [of each radial saw] shall be in such a manner that the
    front end of the unit will be slightly higher than the rear, so as
    to cause the cutting head to return gently to the starting position
    when released by the operator.

The record shows that the cutting head on the Dewalt radial arm saw
discussed above would not roll back to its starting position at the time
of CO Antonio's inspection; Antonio testified this condition was a
hazard because of the potential for the operator to contact the blade.
(Tr. 353-56; 765-66). Paul Morkovsky testified that the condition was
due to sawdust building up around the saw and that after cleaning the
sawdust away the cutting head rolled back as required; he also testified
that a spring was added to the saw, as shown in R-89, to make sure the
head would roll back. (Tr. 1765-66). Based on the record, the saw was in
violation of the standard. This item is affirmed as a serious violation.

A penalty of $300.00 was proposed for this item. In light of the
evidence that the condition was corrected, a penalty of $200.00 is
appropriate.

_Serious Citation 1--Item 14_

This item alleges a violation of 29 C.F.R. § 1910.217(b)(6)(i), which
applies to mechanical power presses and provides as follows:

    A two-hand trip shall have the individual operator's hand controls
    protected against unintentional operation and have the individual
    operator's hand controls arranged by design and construction and/or
    separation to require the use of both hands to trip the press and
    use a control arrangement requiring concurrent operation of the
    individual operator's hand controls.

The basis of this item was CO Jones' viewing of G-421, a video taken of
various facility operations during the inspection, and his conclusion
that three different mechanical power presses being used in G-421 could
have inadvertently operated because their activating buttons were not
guarded.[34] The record shows that all three presses required the
operator to manually place the part to be pressed into the point of
operation and then push with both palms the two activating buttons; the
presses would not operate unless both of the activating buttons were
pushed at the same time, and in between those buttons were an emergency
stop button, which would immediately stop the press when pushed, and a
``stop on top'' button, which would stop the press at the beginning or
top of its cycle. The activating buttons on one of the presses were on
its sides just above the operator's waist level and had metal guards
over them, as shown in R-93-95, so that the operator had to reach in
between the guards and the buttons to push them. The activating buttons
on the other two presses were on their fronts, were 5 to 6 feet off the
ground, and had the emergency stop and ``stop on top'' buttons between
them, as depicted in R-90-91; the metal guards around the activating
buttons in R-90-91 were not there at the time of the inspection. (Tr.
640-54; 921-38; 1047-73; 1767-72).

After viewing G-421 again and comparing it with R-93-95, CO Jones
admitted that that press did not present a hazard of inadvertent
operation. (Tr. 1054-60). As to the other two presses, Jones testified
that the height of the activation buttons, the distance between them and
the location of the emergency stop and ``stop on top'' buttons made
inadvertent operation of the presses less likely but that the lack of
guards nonetheless rendered the presses hazardous. (Tr. 1061-71).
However, his descriptions of the scenarios which could have resulted in
inadvertent operation of the presses and accidents were unlikely, and he
himself conceded as much. (Tr. 1066-71). Further, CO Antonio testified
that even without the guards the likelihood of inadvertent operation of
the presses was very low. (Tr. 647). Based on the record, the Secretary
has not shown a violation. This item is vacated.

_Serious Citation 1--Item 15_

This item alleges a violation of 29 C.F.R. § 1910.217(c)(2)(i)(d), which
states as follows:

    [Every point of operation guard] shall utilize fasteners not readily
    removable by operator, so as to minimize the possibility of misuse
    or removal of essential parts.

The basis of this item was the Niagara punch press which was also the
basis of item 388(c), supra. CO Antonio testified that the plexiglass
guard on the press was held in place with the plier-like clamp and the
lamp shown in G-414-15. His opinion was that these fasteners were
insufficient and violated the standard because they were readily
removable; he did not attempt to take them off himself, but said that it
was not necessary to unbolt or unscrew the clamp and that the guard
could be removed just by pulling on it. (Tr. 356-61; 766-69). However,
Leonard Marek, the employee who had worked on the press for eight years
without injury, testified that both the lamp and the clamp had to be
removed to take off the guard and that the clamp had to be unbolted to
be removed. (Tr. 98-127). Marek's testimony was not rebutted by the
Secretary, and this item is accordingly vacated.

_Serious Citation 1--Items 16 and 17_

These items allege violations of 29 C.F.R. §§ 1910.217(e)(1)(i) and
1910.217(e)(1)(ii), respectively, which provide as follows:

    1910.217(e)(1)(i)--It shall be the responsibility of the employer to
    establish and follow a program of periodic and regular inspections
    of his power presses to ensure that all their parts, auxiliary
    equipment, and safeguards are in a safe operating condition and
    adjustment. The employer shall maintain a certification record of
    inspections which includes the date of inspection, the signature of
    the person who performed the inspection and the serial number, or
    other identifier, of the power press that was inspected.

    1910.217(e)(1)(ii)--Each press shall be inspected and tested no less
    than weekly to determine the condition of the clutch/brake
    mechanism, antirepeat feature and single stroke mechanism. Necessary
    maintenance or repair or both shall be performed and completed
    before the press is operated....The employer shall maintain a
    certification record of inspections, tests and maintenance work
    which includes the date of the inspection, test or maintenance; the
    signature of the person who performed the inspection, test, or
    maintenance; and the serial number or other identifier of the press
    that was inspected, tested or maintained.

The record shows these items were based on Dan Price's statements to CO
Antonio that although the company had begun working on a power press
program it was not yet fully developed and implemented at the time of
the OSHA inspection. (Tr. 361-64; 774-80; 824-27; 1083-88). Dan Price
testified he developed R-65, a written power press inspection program,
in August of 1989 and that it was submitted to all department
supervisors; R-65 instructed them to identify all presses and set up a
file for each one which would contain weekly inspection reports and any
maintenance performed. Price said some of the data had been collected to
identify the company's ninety to 100 presses at the time of the OSHA
inspection but that he did not know how much information had been
completed and had not checked to see how much of the program had been
implemented; it was his belief, however, that weekly inspection reports
were not being made then. He identified R-61 as copies of the 1990
maintenance records of the company's presses and noted these were sent
to OSHA in September 1990 pursuant to a subpoena. (Tr. 1584-88; 1618-21).

Based on the foregoing, it is clear that Respondent was not in
compliance with the standards at the time of the OSHA inspection and
that items 16 and 17 must be affirmed as serious violations. The
Secretary proposed a penalty of $1,000.00 for each of these items. Due
to the similar nature of the items, and the evidence that Respondent had
a written program and was working on its implementation at the time of
the inspection, a penalty of $500.00 each for items 16 and 17 is
appropriate.

_Serious Citation 1--Items 18 and 19_

These items allege violations of 29 C.F.R. §§ 1910.219(d)(1) and
1910.219(e)(3)(i), respectively, which state as follows:

    1910.219(d)(1)--Pulleys, any parts of which are seven (7) feet or
    less from the floor or working platform, shall be guarded....

    1910.219(e)(3)(i)--Vertical and inclined belts shall be enclosed by
    a guard....

The basis of these two items was an electric fan in the wire welding
department and a table saw in the maintenance department, both of which
had an unguarded pulley and belt, as shown in G-418 and G-412,
respectively.[35] CO Antonio testified the fan and saw were not in use
when he saw them but that they were plugged in and available for use and
employees were in both areas. He opined that both pieces of equipment
were hazardous because employees could have contacted their unguarded
parts and sustained lacerations or broken bones; contact with the pulley
and belt on the fan could have occurred if an employee had attempted to
move or position it or reach over it when it was running, while contact
with the pulley and belt on the saw could have occurred if an employee
had been picking up material from the floor behind the saw when it was
running. (Tr. 364-70; 780-87).

In defense of these items, Respondent contends there was no exposure to
the cited hazards. As to items 18(a) and 19(a), Paul Morkovsky testified
that the nearest work station to the fan was 15 feet away. (Tr. 1773-75;
1793-94). However, this testimony does not rebut that of Antonio, which
clearly establishes employee access to the cited hazard, and items 18(a)
and 19(a) are affirmed as serious violations. As to items 18(b) and
19(b), Kevin Willhoite, the saw operator, testified he usually worked in
front of the saw but that when a large piece of plywood was cut he would
stand about 2 feet from the back of the saw, shown on the left in G-412,
and take hold of the wood after it was fed through by another worker; he
did not recall dropping anything on the floor in back of the saw while
it was running, but said it took a few seconds to quit running after
being turned off. (Tr. 175; 179-83; 196-98). This testimony, together
with that of Antonio, demonstrates employee access to the cited hazard.
Items 18(b) and 19(b) are affirmed as serious violations.

The Secretary proposed a penalty of $200.00 each for items 18 and 19. In
view of the similarity of these items, and the fact that guarding was
placed on the pulley and belt on the fan after the inspection, it is
concluded that a penalty of $100.00 each for items 18 and 19 is
appropriate. (Tr. 1773; 1793; R-121).

_Serious Citation 1--Item 20_

This item alleges a violation of 29 C.F.R. § 1910.242(b), which provides
as follows:

    Compressed air shall not be used for cleaning purposes except where
    reduced to less than 30 p.s.i. and then only with effective chip
    guarding and personal protective equipment.

The basis of this item was CO Antonio's observing three compressed air
hoses with nozzles that did not reduce the pressure to 30 p.s.i. or
less; the hoses were in the wire forming, sheet metal and silkscreen
areas, and when he tested them with a gauge he found their pressure to
be 80, 60 and 70 p.s.i., respectively. Antonio testified that an
employee using one of the hoses to clean parts, equipment or clothing
could have gotten the end of the nozzle against his skin, which, based
on his training, could have caused an air embolism, especially if there
was a cut or abrasion in the skin; he did not see the hoses used but
determined they were employed for cleaning due to conversations with
employees. (Tr. 370-74; 787-92).

Respondent contends the standard applies only when compressed air is
used for cleaning, and that the subject hoses were not employed for this
purpose. In this regard, Linda Mullins, the silkscreen area assistant
supervisor, testified the hose in her area was used for drying
silkscreens. (Tr. 1668-69). This testimony does not rebut that of
Antonio with regard to the hoses in the other two areas, and this item
is affirmed as a serious violation. Respondent presented no evidence
that it abated the condition, and the Secretary's proposed penalty of
$300.00 is assessed.

_Serious Citation 1--Item 21_

This item alleges a violation of 29 C.F.R. § 1910.304(a)(2), which
states as follows:

    No grounded conductor may be attached to any terminal or lead so as
    to reverse designated polarity.

This item was based on CO Antonio's testing of two duplex receptacles
with a three-light circuit tester at the facility and finding that their
polarity was reversed; one of the receptacles was attached to a pendant
outside the shipping department office, while the other supplied power
to a paint gun controller in the wire paint department. Antonio
testified the receptacles were hazardous because they exposed workers to
the possibility of electrical shock. (Tr. 374-77; 792-93). Jonathan
Petru, on the other hand, testified that he had been working with
electrical wiring and sockets since 1978 and that the receptacles were
not hazardous. He explained that all receptacles have a hot and a
neutral wire and the fact that the wires are in the opposite position
and their polarity is reversed is not dangerous; the black wire is still
hot and the white wire is still neutral and working on such wiring is
not a hazard because the wiring is properly identified, and receptacles
and equipment attached to them operate the same with reversed polarity
as long as the current is alternating, as it was to the subject
receptacles. (Tr. 1640-43; 1650-51).

Based on the foregoing, the evidence does not establish the alleged
violation. Although CO Antonio opined that the condition violated the
standard and presented a hazard, he did not explain his reasons for this
conclusion. Moreover, the Secretary presented nothing to rebut the
opinion of Jonathan Petru, the company's maintenance supervisor. In
light of the Secretary's failure to present further evidence in support
of his position, this item must be vacated.

_Serious Citation 1--Item 22_

This item alleges a violation of 29 C.F.R. § 1910.304(f)(4), which
states as follows:

    The path to ground from circuits, equipment, and enclosures shall be
    permanent and continuous.

The basis for this item was CO Antonio's observing a pedestal fan in the
wire welding department that had an attachment plug with a missing
ground conductor, as shown in G-417, and a pressure washer in the
silkscreen area that had a three-wire cord but was attached to a
two-wire non-grounded extension cord, as shown in G-416. Antonio
testified that both of these conditions eliminated the equipment
grounding and that had there been a ground fault an employee contacting
the equipment could have been exposed to the hazard of an electrical
shock, particularly if the floor had been damp. (Tr. 377-83; 793-96).

In defense of the foregoing, Paul Morkovsky testified he was unaware of
the missing ground on the fan's plug and that it was the company policy
to cut such cords off to ensure they were not used until they were
repaired. (Tr. 1776-77). This does not rebut the testimony of Antonio in
regard to the condition of and the hazard presented by the lack of
grounding on the cited equipment. This item is affirmed as a serious
violation, and the proposed penalty of $800.00 is assessed.

_Serious Citation 1--Item 23_

This item alleges a violation of 29 C.F.R. § 1910.304(f)(5)(v), which
provides as follows:

    [E]xposed non-current-carrying metal parts of cord- and
    plug-connected equipment which may become energized shall be grounded.

This item was based on CO Antonio's observation of two portable lamps in
the shipping area and six portable lamps in the sheet metal welding area
that had metal reflector tops which were not grounded; the lamps in the
shipping area were clamped to brackets on the wall and were used to
light the insides of trucks being loaded, while those in the sheet metal
area were attached to welding jigs and were used to light the insides of
items being welded. Antonio said the hard usage to which the lamps were
subjected could have caused a lamp holder to short out and energize the
reflector, which could have resulted in an employee being shocked. He
also said the condition could have been abated by using heavier-duty
lamps with ground-type reflectors, or, in the shipping area, more
permanent lighting which attaches to the wall and has articulated arms.
(Tr. 383-86; 796-98).

Respondent's only defense in regard to this item is that the lamps were
not portable because they were either attached to a wall or, as Michael
Moeller testified, bolted to a welding jig. (Tr. 1679-80). However, it
is clear from the record that the lamps were removable and therefore
portable, and the subject standard in any case contains nothing to
indicate that it applies only to portable equipment. It is also clear
that the cited lamps were in violation of the standard. This item is
affirmed as a serious violation, and, since there was no evidence the
condition was abated, the proposed penalty of $700.00 is assessed.

_Serious Citation 1--Item 24_

This item alleges a violation of 29 C.F.R. § 1910.305(g)(2)(iii), which
states as follows:

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

CO Antonio testified the outer insulation of the flexible cord on the
same pedestal fan cited in items 18 and 19 was frayed and pulled back
from the clamping device, resulting in tension being transmitted onto
the attachment screws rather than the outer insulation, as depicted in
G-428. He said the condition was hazardous because the tension could
have caused the cord to pull free and short circuit, exposing employees
to the possibility of electrical shock. (Tr. 386-94; 798-802).

Based on the foregoing, the Secretary has shown a violation of the cited
standard. Although Respondent contends that the condition did not
represent a hazard, based on the testimony of Paul Morkovsky, Morkovsky
himself conceded that the outer insulation on the cord was pulled away
such that the inner wires could be seen. (Tr. 1777-78; 1791-93). This
item is accordingly affirmed as a serious violation, and, as there was
no affirmative evidence that the condition was corrected, the
Secretary's proposed penalty of $300.00 is assessed.

_Serious Citation 1--Item 25_

This item alleges a violation of 29 C.F.R. § 1910.1200(f)(5)(i), which
provides as follows:

    [T]he employer shall ensure that each container of hazardous
    chemicals in the workplace is labeled, tagged or marked with the
    following information: Identity of the hazardous chemical(s)
    contained therein.

The record shows that two plastic one-gallon bottles containing machine
oil were labeled as containing a hand cleaner and that a five-gallon
container holding a rust inhibitor was unlabeled, as shown in G-420. CO
Antonio testified that the condition was hazardous because employees
would not have known what was in the containers or the hazards presented
by using their contents; he said that using the machine oil could have
resulted in dermatitis but could identify no hazard relating to the rust
inhibitor. (Tr. 394-97; 802-06). Paul Morkovsky testified that neither
substance was hazardous and that the rust inhibitor, which was in
diluted form, contained sodium nitrite. (Tr. 1778-80). Based on the
foregoing, no hazard has been established with respect to the rust
inhibitor. In regard to the machine oil, it is clear an employee could
well have used the oil to clean his hands; however, as the only hazard
described by Antonio that might have resulted from such use was
dermatitis, this item is affirmed as an ``other'' violation and no
penalty is assessed.

_Conclusions of Law_

1. Respondent, Kaspar Wire Works, Inc., is engaged in a business
affecting commerce and has employees within the meaning of section 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. §§ 1910.23(d)(1)(i),
1910.106(d)(2)(i), 1910.106(d)(3)(ii), 1910.107(e)(9), 1910.147(c)(1),
1910.176(b), 1910.212(a)(3)(ii), 1910.213(i)(1), 1910.213(c)(3),
1910.213(h)(1), 1910.213(h)(4), 1910.217(e)(1)(i), 1910.217(e)(1)(ii),
1910.219(d)(1), 1910.219(e)(3)(i), 1910.242(b), 1910.304(f)(4),
1910.304(f)(5)(v) and 1910.305(g)(2)(iii).

3. Respondent was in ``other'' violation of 29 C.F.R. § 1910.1200(f)(5)(i).

4. Respondent was not in violation of 29 C.F.R. §§ 1910.94(a)(6)(iii),
1910.212(a)(1), 1910.217(b)(6)(i), 1910.217(c)(2)(i)(d) and 1910.304(a)(2).

5. Respondent was in willful violation of 29 C.F.R. §§ 1904.2(a),
1904.5(b), 1904.5(c), 1910.20(e)(3)(i), 1910.217(c)(1)(i),
1910.217(g)(1) and 1910.255(b)(4).

_Order_

On the basis of the foregoing Findings of Fact and Conclusions of Law,
all of the citation items are hereby affirmed or vacated, and penalties
assessed therefore, as set forth above. All Findings of Fact and
Conclusions of Law with respect to the alleged violations are
specifically adopted herein and incorporated by reference by this Order.

 

/s/________________________
Stanley M. Schwartz
Administrative Law Judge

Date: MAR 17 1995

------------------------------------------------------------------------

[1] Although this case was heard by Administrative Law Judge E. Carter
Botkin, it was reassigned to the undersigned for decision after the
death of Judge Botkin. The parties were notified of the reassignment and
no comment from either was received.

[2] The same order denied the Secretary's request for reconsideration of
Judge Botkin's ruling regarding Exhibit G-432 for the reasons stated
therein.

[3] 1904.2(a) provides as follows: ``Each employer shall ... (1)
maintain in each establishment a log and summary of all recordable
occupational injuries and illnesses for that establishment; and (2)
enter each recordable injury and illness on the log and summary as early
as practicable....For this purpose form OSHA No. 200 or an equivalent
which is as readable and comprehensible to a person not familiar with it
shall be used. The log and summary shall be completed in the detail
provided in the form and instructions on form OSHA No. 200.''

[4] Employers are required to provide an OSHA 200-S each year to the
Bureau of Labor Statistics to report the recordable injuries and
illnesses and employee hours worked for the previous year; the 200-S is
used for statistical purposes, and in particular to determine the lost
workday injury rate by industry, and while it is intended to show the
totals from the OSHA 200 it does not, like that form, reflect individual
incidents. See G-390-91.

[5] The nature of these instances is set out below, following the
penalty determination discussion for these items.

[6] Form E-1, Employer's First Report of Injury or Illness, is a
standard form used to report job-related injuries or illnesses for
worker compensation purposes.

[7] With three exceptions, each exhibit corresponds to the item with the
same number. G-190 corresponds to item 191, which alleges the same
violation as withdrawn item 190, and G-172 corresponds to item 385. (Tr.
12; 873-74). In addition, G-264 corresponds to item 274, and as there is
no exhibit supporting item 264 it must be vacated, leaving 382 items for
resolution.

[8] The only exception was the period from September 1988 to January
1989, when Price was preparing to assume Little's duties and held the
title of assistant personnel manager.

[9] Employees of KDT and KEC were so identified on the forms.

[10] The only times someone else might have recorded injuries were the
two weeks she took her vacations each year. (Tr. 1485-86).

[11] Knezek stated that in one case in which the injury resulted in loss
of fingers, the supervisor's report described the incident as ``squeezed
fingers.'' (Tr. 1479-81).

[12] From 1986 until 1988, Price was in a small manufacturing business
consisting of himself and two others. (Tr. 1550-51; 1574-75).

[13] R-2, an OSHA form letter to KWW dated May 7, 1982, reflects an LWDI
for 1980 and 1981 of .5% and a national average of 5.2%; however, R-9,
the CO's case file notes dated May, 6, 1982, reflects an LWDI of 4.9%
for those same years.

[14] The LWDI calculated during the 1988 inspection of KDT was 2.7%. See
R-37.

[15] Hunter calculated three different LWDI's for 1988, one from the
OSHA 200, one from the 200-S and one which included all the omitted
incidents; he recalled these LWDI's as being between 2-3%, 7-8% and
11-14%, respectively. (Tr. 1247-50).

[16] My total of the unrecorded incidents takes into account items 172,
190 and 264, noted supra.

[17] As stated in my order of June 13, 1994, G-432 has in no way been
considered or had any bearing on my reaching this conclusion.

[18] The Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508,
§ 3101 (1990), dated November 5, 1990, is irrelevant to the penalty
determination in this case as the citations were issued on September 18,
1990.

[19] This was evidently sometime between March 20 and 23, 1990. See R-23-24.

[20] Hunter thought the documents were delivered on April 23, the date
shown on the subpoena, while Price believed this occurred two to three
weeks later, due to the copying work required; the medical records KWW
did have at that time were included with the other documents. (Tr. 1100;
1258; 1342-44; 1377; 1590-92).

[21] Price testified he had visited the clinic and been advised he could
not have the medical records within a week of the service of the
subpoena. (Tr. 1593-94). CO Jones contacted the clinic on April 28 and
also requested the records; the clinic responded that they were
confidential and privileged pursuant to the Texas Medical Practice Act.
(Tr. 1015-16; 1351-54; 1593-94; 1597-98; R-66).

[22] Hunter repeated this request to the company a number of times. (Tr.
1260-63; 1338).

[23] On this same date OSHA also subpoenaed KWW's 1987-89 time and
attendance records, copies of which were provided the agency within
about three weeks. (Tr. 1349-41; 1594-96; R-34; R-64).

[24] This citation was affirmed by Judge Botkin on April 11, 1988. See
/Kaspar Wire Works, Inc., /13 BNA OSHC 1785, 1987-90 CCH OSHD ¶ 28,198
(No. 85-1060, 1988).

[25] The Secretary withdrew item 390 at the hearing. (Tr. 12).

[26] Although the Secretary introduced an Exhibit G-387 in support of
item 393, G-387 is not in the record; item 393 must therefore be vacated
for lack of proof. (Tr. 1263-71). As to item 396, this item was not
addressed at the hearing; however, the record nonetheless establishes
the alleged injury. (Tr. 77-86; 1263-80; G-358). /See also /Respondent's
post-hearing brief at pp. 101-02.

[27] This citation was vacated in /Kaspar Wire Works, Inc., /13 BNA OSHC
1785, 1987-90 CCH OSHD ¶ 28,198 (No. 85-1060, 1988); however, this was
due to Judge Botkin's finding that while the violation occurred OSHA did
not comply with the statute of limitations.

[28] These items originally alleged violations of 1910.252(c)(2)(iv). At
the hearing, the Secretary moved to amend the items to allege violations
of 1910.255(b)(4) because revisions to the regulations between July 1989
and July 1990 had resulted in the standard being renumbered. Respondent
objected, and Judge Botkin reserved on the motion. (Tr. 59-62; 674-86;
816-22; 950-59). It is clear the language of the previous
1910.252(c)(2)(iv) is exactly the same as the current 1910.255(b)(4).
There is no prejudice to Respondent, and the motion to amend is granted.

[29] Although that citation had to do with spot welders and was vacated
after a hearing before a Commission administrative law judge, it is
clear Respondent had notice of the applicability of the standard to the
subject press welder. /See Kaspar Wire Works, Inc., /1986-87 CCH OSHD ¶
27,788 (No. 85-1060, 1986).

[30] The guardrails in R-67-69 and R-71 were not there at the time of
the inspection. (Tr. 1746-47).

[31] The penalty determination factors set out above have been
considered in arriving at any penalties assessed for serious violations.

[32] MEK is methylethylketone. (Tr. 303).

[33] Although Koncaba testified these injuries occurred in 1987 and
1988, it is clear from G-113 and G-269, the E-1's and other supporting
documentation of these incidents, that they actually took place in 1988
and 1989.

[34] As noted in the discussion regarding item 397(a), supra, G-421 was
taken by another OSHA CO.

[35] The table saw is the same one as that cited in item 11, supra.

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