United States of America

**

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104

Secretary of Labor, 	
Complainant,

	
v.

	OSHRC Docket No. *02-0285*
Duro-Last, Inc., 	**

    *EZ*

Respondent.

	



Appearances:



Kathleen G. Henderson, Esq., Office of the Solicitor, U. S. Department
of Labor, Birmingham, Alabama

For Complainant



Ellen E. Crane, Esq., Braun, Kendrick, Finkbeiner, P.L.C., Saginaw, Michigan

For Respondent



Before: Administrative Law Judge Ken S. Welsch



*DECISION AND ORDER*

Duro-Last, Inc. (Duro-Last), manufactures customized vinyl-like roofing
sections at its plant in Jackson, Mississippi. Occupational Safety and
Health Administration (OSHA) industrial hygienist (IH) Priscilla Jordan
began an inspection of Duro-Last's Jackson facility on January 9, 2000,
based on OSHA's Site Specific Targeting list, which targets employers
with high injury and illness rates. On January 25, 2002, the Secretary
issued a citation alleging three serious violations of the Occupational
Safety and Health Act of 1970 (Act).

Item 1 of the citation alleges a serious violation of § 1910.151(c) for
failure to have an eye wash for quick drenching or flushing within the
work area for immediate emergency use. Item 2 alleges a serious
violation of § 1910.219(c)(4)(i) for failing to guard two rotating
shafts measuring 3¾ and 1½ inches on the parapet machine. Item 3 alleges
a serious violation of § 1910.1030(d)(2)(ix) for allowing employees to
eat and drink in a room where first aid was administered. The Secretary
proposes penalties totaling $4,125.00.

The Review Commission designated this case as an E-Z proceeding pursuant
to Commission Rule 200, /et seq./ A hearing was held in this matter on
April 29 and 30, 2002, in Jackson, Mississippi. The parties stipulated
jurisdiction and coverage. They have filed post-hearing written
statements of their positions.

Duro-Last denies that it violated the terms of the cited standards. For
the reasons discussed below, it is determined that items 1 and 2 are
vacated, and item 3 is affirmed.

*Background*

Duro-Last owns and operates eleven facilities in four states, with its
corporate offices located in Saginaw, Michigan. Duro-Last employs
approximately 750 employees corporate-wide. At the Jackson, Mississippi,
facility that is at issue here, Duro-Last cuts, welds and folds the
roofing material to its customers' specifications. Before cutting, the
roofing material is stored on 500-pound rolls that are shipped from
Saginaw, Michigan (Tr. 8, 14-15, 64).

IH Jordan conducted a one-day inspection of Duro-Last's facility on
January 9, 2002. She initiated the inspection based on Duro-Last's high
Lost Work Day Injury and Illness (LWDII) rate (Exh. C-12; Tr. 304-306).
During the inspection, she inspected the eye wash machine, the parapet
machine and the first aid station. As a result of IH Jordan's
inspection, the Secretary issued the citation that gave rise to the
present case.

The Jackson, Mississippi, facility has a battery charging station near
the loading dock, where the company's four forklifts are left overnight
to recharge their batteries (Tr. 309-310). A wall-mounted Pureflow 1000
eye wash machine is located approximately 50 feet from the battery
charging station (Exh. C-6; Tr. 51).

Duro-Last has one parapet machine located in the welding area, which is
used to hot-air weld smaller sheets of roofing material together. The
operator of the parapet machine sits in a chair and uses her hands to
move the material through the machine (Exhs. C-1 and R-3; Tr. 28).

Duro-Last maintains a medical supply cabinet on a wall in the office of
the two production supervisors, both of whom eat lunch in the room (Exh.
C-8; Tr. 70). A sign is posted above the office door with the words
"FIRST AID" on it (Exh. C-8).

*Citation No. 1*

**

**

The Secretary has the burden of proving her case by a preponderance of
the evidence.



In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability
of the cited standard, (b) the employer's noncompliance with the
standard's terms, (c) employee access to the violative conditions, and
(d) the employer's actual or constructive knowledge of the violation
(/i.e., /the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).



/Atlantic Battery Co., /16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

*Item 1: Alleged Serious Violation of § 1910.151(c)*

The Secretary alleges that Duro-Last committed a serious violation of §
1910.151(c), which provides:

Where the eyes or body of any person may be exposed to injurious
corrosive materials, suitable facilities for quick drenching or flushing
of the eyes and body shall be provided within the work area for
immediate emergency use.



The citation states that for Duro-Last's battery charging station, the
"eye wash was located more than 25 feet away, [and] the unit did not
contain enough water to provide for 15 minutes of continuous use."

The first element the Secretary must establish is that the cited
standard applies to the cited conditions, /i.e, /that the battery
charging area creates exposure "to injurious corrosive materials" such
that "suitable facilities" would be required.

Duro-Last uses its four forklifts on a daily basis. After the facility
shuts down for the evening, the employees connect the forklift batteries
to the battery charger and charge them overnight (Tr. 42). Duro-Last
employees are not otherwise required to work with the forklift
batteries, although there is evidence that they may occasionally add
water to the batteries (Tr. 104-105). Duro-Last has a contract with
Briggs Equipment, who periodically comes to the facility to service the
forklifts. Briggs Equipment's responsibilities include maintenance of
the forklift batteries (Exh. R-1; Tr. 43-44). A Pureflow 1000 eye wash
station is mounted on the wall in the corner of the plant next to the
loading docks, approximately 50 feet from the battery charging area
(Exhs. C-2, C-5, C-6, C-16, C-17; Tr. 51).

Section 1910.151(c) requires "suitable facilities" where "the eyes or
body of any person may be exposed to injurious corrosive material." The
Commission addressed this standard in /Atlantic Battery Co., /16 BNA
OSHC at 2167-2168:

Under Commission precedent, whether an employer has complied with its
obligation to provide "suitable facilities" within the meaning of
section 1910.151(c) depends on the "totality" of the relevant
"circumstances," including the nature, strength, and amounts of the
corrosive material or materials that its employees are exposed to; the
configuration of the work area; and the distance between the area where
the corrosive chemicals are used and the washing facilities.



The Commission also held in /ConAgra Flour Milling Co., /16//BNA OSHC
1137, 1142 (No. 88-1250, 1993), that the Secretary must prove that a
hazard exists before § 1910.151(c) is applicable to the cited
conditions: "[T]his standard by its plain terms requires the Secretary
to prove the existence of a hazard requiring the use of the protective
measures specified, here quick-drenching or flushing facilities."

The Commission in /ConAgra /reversed the ALJ's decision finding that a
violation can be based solely on a potential hazard. In that case,
employees added water to forklift batteries on a weekly basis. The
Secretary cited the employer under § 1910.151(c) for failing to have an
eye wash located within 25 feet of the battery charging area. The
Commission vacated the cited item, stating:

The purpose of section 1910.151(c) is to protect employees who are
exposed to corrosive chemicals by giving them a means to wash such
chemicals from their eyes or body before they suffer injury. . . . The
standard applies generally to all situations in which corrosive
materials are used and does not specifically address battery charging.
Accordingly, the Secretary must demonstrate that the employer is on
notice of a need for a washing or flushing facility in the circumstances
in question. . . . [T]he mere possibility that battery electrolyte might
splash onto an employee's body or into his eyes does not establish that
a sufficient hazard existed to require a facility for washing or
flushing the eyes or body.



There is even less of a potential hazard to employees in the present
case. In /ConAgra/, employees added water to forklift batteries on a
weekly basis as part of their duties. Here, there is no reason for
Duro-Last's employees to have any contact with the batteries, other than
connecting them to the battery charger, which does not expose them to
corrosive materials. Production supervisor Freddie Roberts speculated
that Duro-Last employees may add water to the batteries from time to
time. Under the Secretary's own interpretation, this activity would not
create the need for drenching facilities.

Industrial hygienist Jordan testified that one of the documents on which
she relied in recommending the instant citation was an OSHA Standard
Interpretation and Compliance Letter addressing "Quick drenching or
flushing facilities in battery charging areas," issued by the Secretary
on August 16, 1976. Paragraph 1 of the letter states (Exh. C-14,
emphasis added):

Battery charging areas are not specifically mentioned in CFR 1910.151(c)
but are considered to be covered /if the battery caps are removed and if
electrolyte acid is added/, removed, or spilled. If the battery is
simply undergoing charge, it is not necessary to have quick drenching or
flushing facilities for the eyes or skin.



There was no evidence that anyone added electrolyte acid to the
batteries. The Secretary's Standard Interpretation undercuts her case.

The Secretary attempted at the hearing to assert that the employees of
Briggs Equipment were exposed to the corrosive materials in the
batteries when they serviced the forklifts. This argument is rejected.
The Secretary was not aware that the forklifts were maintained by a
subcontractor until the hearing. The potential exposure to the employees
of Briggs Equipment formed no part of the basis for issuing the
citation. No evidence of the activities of the Briggs Equipment
employees was adduced (Tr. 321-322).

The Secretary has failed to establish that any employees were "exposed
to injurious corrosive material," and has thus failed to establish that
the cited standard is applicable to the battery charging area. Item 1 is
vacated.

*Item 2: Alleged Serious Violation of § 1910.219(c)(4)(i)*

Section 1910.219(c)(4)(i) provides:

Projecting shaft ends shall present a smooth edge and end and shall not
project more than one-half the diameter of the shaft unless guarded by
nonrotating caps or safety sleeves.



The citation states that Duro-Last's parapet machine contained "two
unguarded shafts measuring 3¾ inches and 1.5 inches in length."

It is undisputed that the shafts in question projected more than ½ inch
the diameter of the shaft and that they were not guarded by nonrotating
caps or safety sleeves. Duro-Last contends that the Secretary failed to
prove that its employees had access to the exposed shafts.

When operating the parapet machine, the operator sits in a chair behind
a table and moves the material through a hot air welder on a movable
arm. The movable arm is attached to a stationary upright and a
horizontal arm where the control panel is located. On the stationary
upright near the bottom above the table are two rotating shafts. The
shaft closest to the operator is 3¾ inches long and ¾ inch in diameter.
The other rotating shaft is 1½ inches long and ½ inch in diameter. The
shafts rotate at 54 rpm. There are ½ inch grooves running the length of
the shafts. The machine at one time was a drip welder, with wheels
mounted on the shafts. When the drip welder was converted to a parapet
machine, the wheels were removed, leaving the shafts exposed. The shafts
are not guarded (Exhs. C-1, R-3; Tr. 249, 284-285).

Sandra White, a parapet machine operator, testified that her right hand
is 2 to 3 feet from the rotating shafts when she holds the material as
it moves through the welder. When pushing buttons on the control panel,
her hands are approximately 18 inches from the shafts. When reaching
under the horizontal arm and control panel, her hand is approximately 8
or 9 inches from the 3¾ inch shaft (Tr. 286-288).

Generally, the question of whether employees have access to a violative
condition is determined by looking at the employees' exposure to the
zone of danger.

The Secretary may prove employee exposure to a hazard by showing that,
during the course of their assigned working duties, their personal
comfort activities on the job, or their normal ingress-egress to and
from their assigned workplaces, employees have been in a zone of danger
or that it is reasonably predictable that they will be in the zone of
danger. . . . The zone of danger is determined by the hazard presented
by the violative condition, and is normally that area surrounding the
violative condition that presents the danger to employees which the
standard is intended to prevent.



/RGM Construction Co., /17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)
(citations omitted).

The starting point for an analysis of whether there was employee
exposure in a machine guarding case is /Rockwell Intl. Corp./, 9 BNA
OSHC 1092 (No. 12470, 1980). In /Rockwell, /the Commission held :

The mere fact that it was not impossible for an employee to insert his
hands under the ram of a machine does not itself prove that the point of
operation exposes him to injury. Whether the point of operation exposes
an employee to injury must be determined based on the manner in which
the machine functions and how it is operated by the employees.



/Id./ at 1097-1098.

The employer is not required to protect against every conceivable injury
that could possibly occur during the use of a machine. The Commission
has stated:

[I]n order for the Secretary to establish employee exposure to a hazard
she must 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. We emphasize that, as we
stated in /Rockwell/, the inquiry is not simply whether exposure is
theoretically possible. Rather, the question is whether employee entry
into the zone of danger is reasonably predictable.



/Fabricated Metal Products, Inc.,/ 18 BNA OSHC 1072, 1074 (No. 93-1853,
1997) (citations and footnotes omitted).

There is no operational necessity that would require the parapet machine
operator to place her hands in the zone of danger of the unguarded
shafts. The shafts are located on the opposite side of where the
operator sits. White testified that the rollers and welders must be shut
down before she can place her hands near the opposite side of the
machine (Tr. 279-281).

The Secretary claims that an employee could inadvertently reach into the
zone of danger while the machine was on. Industrial hygienist Jordan
stated her reasons for believing that the unguarded shafts created a
hazard for the parapet machine operators (Tr. 330-331):

Any time that employees are working around unguarded shafts, sometimes
they forget to turn the machine off or they don't even see the shaft
after a while, especially if they have worked on the machine for a
number of years, and that they can be distracted by other employees or
by what they're doing or something that went on last night.



And, if they get their sleeve caught or any part of their clothing
caught in a rotating shaft, after it turns a couple of times, you're
going to need somebody to turn the machine off because you cannot pull
your clothing out.



Jordan's testimony regarding the hazard posed by the exposed shafts is
highly speculative. White, who actually operates the machine, was
adamant that she would never reach through the machine, placing her
hands near the shafts, unless the machine was off and the shafts were
not rotating. "Generally speaking, where employees testify from their
own knowledge and experience on matters that pertain to their specific
work activities, their testimony should be given greater weight than
that of witnesses who do not have first-hand experience with the
operation in question." /ConAgra, /16 BNA at 1141.

The Secretary has failed to establish that employees were exposed to a
hazard created by the unguarded shafts. Item 2 is vacated.

*Item 3: Alleged Serious Violation of § 1910.1030(d)(2)(ix)*

Section 1910.1030(d)(2)(ix) provides:

Eating, drinking, smoking, applying cosmetics or lip balm, and handling
contact lenses are prohibited in work areas where there is a reasonable
likelihood of occupational exposure.

"Occupational exposure" is, according to § 1910.1030(b), "reasonably
anticipated skin, eye, mucous membrane, or parenteral contact with blood
or other potentially infectious material that may result from the
performance of an employee's duties."

The citation states that in the "[f]irst aid room, employees eat and
drink where first aid was administered."

Production supervisor Roberts testified that he and another production
supervisor routinely ate lunch and drank beverages in the supervisors'
office. The office is located next to the shipping area of the facility.
There is only one entrance to the office, which also contains the
company's medical supply cabinet. Roberts stated that employees
occasionally came to the office for bandages when they had bleeding cuts
or lacerations. A sign posted over the office door reads "FIRST AID," in
letters bigger than those in the word "Supervisor" that appears on the
office door (Exh. C-8; Tr. 67-71). If an employee sustained a more
serious injury, he or she would be taken to Minor Med, a clinic located
approximately 10 minutes from Duro-Last's facility, where Duro-Last's
doctor works. Roberts recalled several occasions within the past year
when employees came to the supervisor's office with bleeding cuts (Tr.
79-80).

Industrial hygienist Jordan explained the hazard created by performing
first aid treatment in the same room where employees ate lunch (Tr.
339-340):

[A]ny time you have a likelihood of transmitting a blood borne pathogen,
such as hepatitis, which is easily transmitted and in small quantities,
that you should not eat, drink or apply cosmetics or smoke in that area
because you can transfer so easily from touching the doorknob. And, you
can transmit the virus from the doorknob to your mouth which presents a
route of entry for that particular virus or any other virus that would
be in the blood.

. . .

You may not know a transmission has been made, but when you also eat or
drink in that area or that office, then you have increased the
likelihood of transmission. You can transmit whatever is on the doorknob
to your bag of chips or to the french fries or whatever, or cup of
coffee or whatever you're drinking.



The Secretary has established that two of Duro-Last's employees
routinely ate and drank in a work area where there was a reasonable
likelihood that they could come into contact with the blood of employees
injured on the job. Item 3 is affirmed.

*Penalty Determination*

The Commission is the final arbiter of penalties in all contested cases.
In determining an appropriate penalty, the Commission is required to
consider the size of the employer's business, history of previous
violations, the employer's good faith, and the gravity of the violation.
Gravity is the principal factor to be considered.

Duro-Last employs approximately 750 employees corporate-wide, with
approximately 50 employees at the Jackson, Mississippi, facility. There
is no evidence that the Secretary had previously cited Duro-Last for any
violations. Duro-Last is entitled to credit for good faith. It has a
written safety program and a safety committee at its facility (Tr. 18-19).

The gravity of item 3 is moderate. Only two employees regularly ate
their lunch in the office. If an employee had a bleeding cut that could
be treated with a Band-Aid, he or she often went to the bathroom first
to wash it off, minimizing the risk of bleeding in the office. Employees
with serious bleeding cuts were taken to the clinic. A penalty of $1,000
is deemed appropriate.

*FINDINGS OF FACT*

**

**

*AND CONCLUSIONS OF LAW*

The foregoing decision constitutes the findings of fact and conclusions
of law in accordance with Federal Rule of Civil Procedure 52(a).

*ORDER*

Based upon the foregoing decision, it is hereby ORDERED that:

1. Item 1, alleging a serious violation of § 1910.151(c), is vacated and
no penalty is assessed;

2. Item 2, alleging a serious violation of § 1910.219(c)(4)(i), is
vacated and no penalty is assessed; and

3. Item 3, alleging a serious violation of § 1910.1030(d)(2)(ix), is
affirmed and a penalty of $1,000 is assessed.

/s/

KEN S. WELSCH

Date: June 12, 2002

Judge