THE WEATHERHEAD COMPANY
OSHRC Docket No. 8862
Occupational Safety and Health Review Commission
June 10, 1976
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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners. �
COUNSEL:
William Kloepfer, Assoc. Regional Solicitor
D. L. Flora, Manager, THE WEATHERHEAD COMPANY, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On February 6, 1975, Judge James H. Cronin, Jr., rendered his decision in this case. � On February 7, 1975, the Secretary filed a petition for discretionary review of the decision that was granted on February 13, 1975, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. � � 651 et seq. [hereinafter referred to as "the Act"]. � The Secretary asserted that the Judge erred in vacating item 9 of the citation alleging a violation of 29 CFR � � 1910.215(c)(6)(i), quoted in pertinent part below.
The Commission has reviewed the entire record, including the Secretary's brief filed following the direction for review. � Respondent filed no brief at this stage. � We reverse the Judge's decision in part for reasons set forth below.
Respondent, The Weatherhead Company, is an employer whose business affects commerce within the meaning of section 3(5) of the Act. � On May 23, 1974, a compliance safety and health officer inspected respondent's workplace. � [*2] � Thereafter, a citation issued containing 11 items, five of which respondent contested. � After a hearing, the Judge vacated two items and found noncompliance with three items for which he assessed penalties of $50 each. � Complainant has taken exception only to the portion of the Judge's opinion vacating item 9. � The Judge's disposition of the remainder of the case is affirmed.
The facts pertinent to complainant's exception are undisputed. � Respondent was cited for noncompliance with the standard set forth at 29 CFR � � 1910.215(c)(6)(i), which provides in pertinent part:
1910.215 Abrasive wheel machinery.
* * *
(c) Flanges
* * *
(6) Blotters (i) Blotters (compressible washers) shall always be used between flanges and abrasive wheel surfaces to insure uniform distribution of flange pressure.
The compliance officer found an employee operating a Baldor 7-inch aluminum snagging grinder, in respondent's salvage department, that did not have blotters between its grinding wheel surface and its flanges. A blotter is a cushion, usually of soft paper material, that absorbs the pressure of the metal flanges and distributes it uniformly on the wheel. The absence of blotters [*3] � creates a hazard in that the pressure of the flanges against the wheel and the vibration of the wheel can cause a wheel to fracture and fly apart during operation. � The compliance officer testified that he did not observe any blotters in the vicinity of the grinder. When he called the absence of the blotters to the attention of the operator, the employer representative, and the employee representative, the operator disassembled the grinder in order to install the blotters.
Respondent had been previously cited for noncompliance with this standard for failing to use a blotter on this identical machine run by the same operator. � Respondent's industrial manager testified that, following this earlier citation, its
Maintenance Department did supply -- make and supply said blotters. It was furnished to our supervision in this area and in turn it was given to the operator involved who I was advised did install it; . . . .
Respondent does not contend that the required blotters were in place at the time of the inspection, but relies on its previous abatement efforts for its defense. � In light of these previous abatement efforts made by respondent and the fact that the operator began to [*4] � install a blotter when its absence was called to his attention, the Judge concluded that "respondent's supervisors were unaware of the [non-compliance] on May 23, 1974" and that same "was an isolated occurrence committed by the operator of the particular machine contrary to instructions." Thus, it was held that there was no failure to comply with the standard. � For reasons that follow, we hold that this conclusion was unsupported by the record.
The existence of an "isolated incident," or perhaps more accurately an unpreventable occurrence, is an affirmative defense wherein the employer bears the burden of proving that the actions constituting noncompliance with the standard were: (a) unknown to the employer and (b) contrary to both the employer's instructions and a company work rule which the employer had uniformly enforced. � See Murphy Pacific Marine Salvage Co., No. 2082, 15 OSAHRC 1, BNA 2 OSHC 1464, CCH OSHD para. 19,205 (1975); Mississippi Valley Erection Co., No. 524, 5 OSAHRC 483, BAN 1 OSHC 1527, CCH OSHD para. 17,098 (1973); Standard Glass, Inc., No. 259, 1 OSAHRC 594, BNA 1 OSHC 1045, CCH OSHD para. 15,146 (1972). � Here, respondent did not introduce any � [*5] � evidence that it had any company rule requiring the use of blotters, let alone that any such rule was enforced. n1 Nor did respondent present any evidence of instructions to machine operators concerning the blotters. In short, there is no evidence that respondent made any effort to insure that blotters were used other than providing them to machine operators.
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n1 Compare Brennan v. O.S.H.R.C. and Raymond Hendrix d/b/a Alsea Lumber Co., 511 F.2d 1139 (9th Cir. 1975) relied upon in the dissenting opinion for the proposition that the Secretary of Labor has the burden of showing employer knowledge. � Even if Alsea were to be followed here, there would be no difference in result. � After holding that the Secretary had the initial burden of establishing a prima facie case of employer knowledge, that Court added the following:
Proof of an employer's failure to provide guardrails, safety equipment, instructions, or the like, would establish a prima facie case of an employer's knowledge of its own acts of omission. � (Emphasis supplied by the Court.) 511 F.2d at 1143, n.5.
In this case, the Secretary established his prima facie case by showing that blotters were not being used. � It follows that the burden of going forward then shifted to respondent to prove that the failure to use a blotter was unpreventable.
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When a standard requires the use of a device by employees operating a mchine, mere provision of the device to them will not protect an employer from responsibility under the Act if the device is not in fact used. � This is especially true when the devices were only provided after an identical citation was issued and there is no evidence that respondent instructed and required employees to use the devices when they were finally provided.
Furthermore, since the record indicates that blotters were not provided until the previous citation issued, respondent must reasonably have known that its machine operator was not in the habit of using them. � Under these circumstances, respondent has failed in its burden of proving that the failure to use blotters on May 23, 1974, was an "isolated incident."
In summary, we find that the undisputed testimony concerning inspection of respondent's workplace on May 23, 1974, established noncompliance with the standard set forth at 29 CFR � � 1910.215(c)(6)(i). � We also find that respondent failed to prove as an affirmative defense that such noncompliance was an "isolated incident." � [*7] �
Pursuant to section 17(j) of the Act, we consider the size of respondent's business, the gravity of the violation, respondent's good faith, and its history of previous violations under the Act in determining the appropriate penalty to be assessed. � In this case, respondent has a large business, employing slightly over 400 persons. � Four previous inspections of its plant in Antwerp, Ohio, have resulted in citations for a total of 48 nonserious violations. � Since respondent has been previously cited for noncompliance with the instant standard, we allow no credit for good faith. � For this reason especially, we find that imposition of a penalty is appropriate in order to promote future compliance with the standard and the Act. � Since the compliance officer's undisputed testimony established that the gravity of this item is moderate, we assess a $75 penalty.
Accordingly, that portion of the Judge's opinion vacating the citation for noncompliance with the standard set forth at 29 CFR � � 1910.215(c)(6)(i) is reversed. � The citation is affirmed nd a penalty of $75 is assessed. �
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
Complainant has failed to establish that respondent had knowledge of the [*8] � existence of the alleged hazardous condition and, therefore, the Commission's reversal of the decision below concerning the 29 C.F.R. � � 1910.215(c)(6)(i) charge is improper.
Knowledge of the existence of a violation, either actual or constructive, is an essential element of any violation of the Act. � It is an affirmative obligation of the Secretary to prove employer knowledge. � See Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975). n2 This decision states the very reverse of that rule by asserting that it is the employer's burden to prove lack of knowledge. n3
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n2 The reasoning in this decision has been adopted by the United States Court of Appeals for the Fifth Circuit in Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564, 571 (5th Cir. 1976).
n3 This decision is a complete reversal by Mr. Barnako of views to which he subscribed less than seven months ago. � In Secretary v. Engineers Construction, Inc., 20 OSAHRC 348 (1975) he assented to a decision from which the following is quoted:
"We agree with the conclusion reached in Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139, 1145 (9th Cir. 1975), and:
fail to see wherein charging an employer with a . . . violation because an individual, single act of an employee, of which the employer had no knowledge . . . contributes to the cooperation sought by the Congress."
That September 29, 1975 decision of the Commission was recently cited with approval by the Fifth Circuit Court of Appeals in the Horne Plumbing case, supra. Mr. Barnako implicitly conceded his flip-flop on the Alsea Lumber case in note 1 supra where it is stated: "Even if Alsea were to be followed here . . ." etc. � Further comment on that footnote appears infra at note 5.
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In this case, there was no evidence indicating that this respondent actually knew that blotters were not attached to the snagging grinder machine. Thus, the question here is whether respondent could be presumed to know that the machine was not equipped therewith.
The machine operator who was operating the grinder in the instant case was also the operator when the respondent was previously cited for the same alleged violation. � As the majority opinion indicates, following the first inspection, respondent's maintenance department made and supplied blotters to this operator. � The evidence also indicates that respondent had given its employees instructions to install and use these blotters. n4 My colleagues are correct in concluding, however, that the evidence does not show that respondent's instructions had been enforced. � On the other hand, there is no evidence that they were not enforced.
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n4 Affidavits of two of respondent's supervisors indicate that the operator was told that the blotters were to be installed and used on the machine. The Judge below, however, did not admit these documents into evidence because they were hearsay. � This was error. � The Administrative Procedure Act provides for the admission of all evidence except that which is irrelevant, immaterial, or unduly repetitious. � 5 U.S.C. � � 556(d).
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In the Alsea Lumber case, the Circuit Court specifically rejected the Secretary of Labor's contention that an employer has the burden of proving lack of knowledge of the alleged violative conditions. � In rejecting that contention the Circuit Court stated:
"We fail to see wherein charging an employer with a . . . violation because of an individual, single act of an employee, of which the employer had no knowledge and which was contrary to the employer's instructions, contributes to achievement of the cooperation sought by the Congress. � Fundamental fairness would require that one charged with and penalized for violation be shown to have caused, or at least to have knowingly acquiesced in, that violation. � Under our legal system, to date at least, no man is held accountable, or subject to fine, for the totally independent act of another."
511 F.2d at 1145. That logic is equally applicable in the instant case as the significant facts in both cases are the same. � In this connection, the Circuit Court made the following observation in its decision:
"There is no evidence in the record tending to show [*11] � that the employer had any knowledge respecting these instances of employee disobedience of its established instructions. � No effort was made to establish that the instructions were a mere sham or that the employer had any on-going practice of permitting its instructions to be disregarded by its employees with impunity."
511 F.2d at 1141 (emphasis added). � The same is true in this case. � Not only did complainant fail to establish a prima facie case, but respondent demonstrated by evidence of providing the necessary equipment and instructions for its use that complainant could not establish such a case. � Thereafter, complainant introduced no evidence tending to show that respondent's "instructions were a mere sham" or that respondent "had any on-going practice of permitting its instructions to be disregarded by its employees with impunity." Accordingly, complainant failed to establish a prima facie case and in fact the case was not proved even considering all the evidence of record. n5
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n5 Footnote 1 of the majority's opinion adds another twist to the growing Barnako-Cleary lexicography. �
We are now told that there is no difference between the word "provide" and the word "used." They quote from a footnote to the Alsea Lumber case which states that a prima facie case of an employer's knowledge of its own acts or omissions could be established by "proof of an employer's failure to provide guardrails, safety equipment, instructions or the like." They underline the words "failure to provide" and then conclude that the Secretary's case was established here - not because of evidence that the employer failed to provide - but because "blotters were not being used." In Alsea Lumber, as here, the employer "provided" the required safety equipment but the employees - unbeknown to the employer - were not using it at the time of inspection. That is the very reason why the Court vacated the citation against the employer in that case.
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� I will not repeat what I said there, but will add that my colleagues seem to have forgotten that the Act dictates that "[e]ach employee shall comply with occupational safety and health standards." Where an employer has furnished an employee with the equipment required to comply with a standard and has told him use it, it is obviously improper to hold the employer liable if the employee fails to follow instructions. � Under these circumstances, it is clear that the employee is not interested in his own safety. � If the person who the Act intends to protect refuses that protection after being furnished the necessary equipment and told to use it, why should the employer be punished? � Clearly, that is a result never intended by the Act and never contemplated by anyone until Messrs. Cleary and Barnako joined forces.
Since this decision does not cover all matters included in Judge Cronin's decision, � [*13] � the same is attached hereto as Appendix A.
APPENDIX A
DECISION AND ORDER
Gary M. Goldfarb, Trial Attorney, U.S. Department of Labor, for the Secretary of Labor
D. L. Flora, Manager, Industrial Relations, The Weatherhead Company, for the Respondent
James A. Cronin, Jr., Judge, OSAHRC:
This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereafter called the Act) contesting items 4, 6, 7, 8 & 9 of an 11-item citation issued by the complainant to respondent on June 20, 1974 and the proposed penalties based thereon which were $75.00, $100.00, $80.00, $50.00, and $100.00 respectively.
The alleged violation of 29 C.F.R. � � 1910.215(a)(4) (item 4) was described in the citation as follows:
"The work rest had excessive gap on the left side of the B & D 10-inch pedestal grinder located in the maintenance department, area Q-13."
The standard as promulgated by the Secretary provides:
"(4) Work rests. On offhand grinding machines, work rests shall be used to support the work. � They shall be of rigid construction and designed to be adjustable to compensate for wheel wear. � Work rests shall be kept adjusted closely to � [*14] � the wheel with a maximum opening of one-eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage. � The work rest shall be securely clamped after each adjustment. � The adjustment shall not be made with the wheel in motion."
The alleged violation of 29 C.F.R. � � 1910.22(b)(1) (item (6) was described in the citation as follows:
"A tripping hazard existed in the south doorway to the plating room, off of the main aisleway, by a metal plate protruding up in the center of the walkway."
The standard as promulgated by the Secretary provides:
"(b) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. � Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard."
The alleged violation of 29 C.F.R. � � 1910.133(a)(1) (item 7) was described in the citation as follows:
"The use of adequate eye protection was not being enforced where hazardous chemicals were being used in the plating department."
The standard as � [*15] � promulgated by the Secretary provides:
"(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. � In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. � Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards."
The alleged violation of 29 C.F.R. � � 1910.22(a)(2) (item 8) was described in the citation as follows:
"An excess amount of water was on the floor of the paint storage room located in the south side of the plant and on the floor of the main aisleway to the assembly department, #32."
The standard as promulgated by the Secretary provides:
"(a) Housekeeping. * * *
(2) The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition. � Where wet processes are used, drainage shall be maintained, and false floors, platforms, � [*16] � mats, or other dry standing places should be provided where practicable."
The alleged violation of 29 C.F.R. � � 1910.215(c)(6)(i) (item 9) was described in the citation as follows:
"No blotters were used between the grinding wheel and the flanges on the 7-inch aluminum snagging grinder located in the southwest corner of the salvage department."
The standard as promulgated by the Secretary provides, in pertinent part:
"(6) Blotters. (i) Blotters (compressible washers) shall always be used between flanges and abrasive wheel surfaces to insure uniform distribution of flange pressure * * *."
The hearing took place on November 7, 1974 at Toledo, Ohio with only the respondent submitting a closing argument. n1
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n1 The affidavit attached to respondent's brief was not considered.
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Jurisdiction and Issues
Respondent, a manufacturer of metal automotive parts, does not contest Commission jurisdiction and admits that it is engaged in a business affecting commerce within the meaning of Section 3(5) of the Act (29 U.S.C. � [*17] � 652(5)) (Ex. C-1).
The issues to be resolved and determined are:
1. � Whether the record evidence establishes that respondent violated the alleged standards?
2. � If the violations were committed, what penalties are appropriate?
Findings of Fact
Upon the entire record, the following facts are found:
1. � On May 23, 1974, the date respondent's plant at Antwerp, Ohio was inspected by a Department of Labor Compliance Officer, respondent employed just over 400 persons.
2. � On May 23, 1974 a Black & Decker 10-inch offhand pedestal grinder was located in the Maintenance Department. � The gap between the work rest on the left side of the machine and the two stone grinding wheels, at the time of inspection, was 5/8 of an inch (Tr. 12, 15, 51; Ex. C-2). � The Compliance Officer did not observe the machine being operated. � However, it was available for use (Tr. 39, 54). � The work rest can be adjusted by respondent's maintenance men (Tr. 54; Respondent's Ex. 2). � There were other grinders in the plant and the existing openings between the wheels and rests on these machines were in compliance with the standard (Tr. 54).
The purpose of requiring work rests to be adjusted closely to the � [*18] � wheel is to prevent the material being ground from being jammed between the wheel and the rest (Tr. 38; see also � � 1910.215(a)(4)). � The Compliance Officer conceded that if a large piece of material was being ground, the rest could be positioned a greater distance from the wheel (more than one-eighth inch) without any possibility of jamming occurring (Tr. 39). � It was the Compliance Officer's opinion, however, that even if a large piece of material was ground on this machine, it might have a small corner on it that could slip into a 5/8 of an inch gap (Tr. 38-39).
This particular machine was used by respondent "primarily" for grinding large material such as grinding and removing welds (Tr. 91). � When used for this purpose, the grinder wheel wears rapidly creating a gap between the rest and the wheel "quickly" (Tr. 91). � No injuries at respondent's plant have ever resulted from operating grinders with openings in excess of the standard, and Mr. Flora believes the probability of an injury is "very slight" (Tr. 93).
3. � At a point where a steel deck plate joins a concrete area, in a portion of an aisleway near the south doorway to the Plating Department, two pieces of deck plate protrude [*19] � above the floor, one-eighth to one-half an inch (Tr. 19; Ex. C-3). � This area is adjacent to a wall, steel post and a piece of stationary equipment, near the edge of, and not in the center of, the aisleway (Tr. 107; Respondent's Ex. 4; Ex. C-3). � The aisleway is more than 6 feet wide (Tr. 106; Respondent's Ex. 4). � A powered industrial forklift truck and employees were observed traversing this aisleway at the time of inspection (Tr. 19, 40).
Should a powered forklift carrying parts strike these steel plates, something could possibly be jarred off the forklift. � Also, an employee might trip over them and possibly fall in front of a passing forklift (Tr. 40). � Because of the location of these protrusions, however, the likelihood of an accident is considered slight.
4. � In the Plating Department there is located a "pickle line" consisting of five tanks positioned close together. � The first tank is a soap tank; then a water tank; followed by an acid tank and a water tank; and finally, a rust preventive tank (Tr. 73). � These tanks are used to clean oily parts.
Respondent's employees working on the pickle line are provided with regular safety glasses, open at the sides, rubber gloves [*20] � and aprons (Tr. 74, 76). � These employees stand in front of the tanks and operate an overhead hoist on which the materials to be cleaned are carried in pans (Tr. 77, 78). � The workers lower the pans into the various tanks (Tr. 77).
The type of safety glasses provided and used does not eliminate the possibility of injury to the eyes from acid splashes (Tr. 24, 53, 75), and around January of 1973, two of respondent's employees got acid in their eyes while working on this line (Tr. 75). � Respondent concedes that employees possibly could be splashed with corrosive chemicals (Tr. 113).
The use of goggles made for handling liquids could eliminate injury to eyes from acid splashes (Tr. 24, 75).
5. � At the time of inspection, there was water standing in the center of the paint storage room covering about half its width (Tr. 20-22; Ex. C-4).
On the night of May 22, 1974 there had been a heavy rain which created the water condition observed by the Compliance Officer (Tr. 117).
The paint room is a small enclosed area in the warehouse section, some 100 feet from the normal work area (Tr. 117). � Only one or two persons plus service people would have reason to go into the paint room (Tr. 51, � [*21] � 52, 117). � Following a previous inspection of respondent's plant on March 7, 1974, an inspection which resulted in the issuance of a citation which included a similar charge of excess water in the paint room, respondent installed a new drain pit and an electrical sump pump which is operated by first priming and then depressing the electrical switch manually (Tr. 117, 131).
On the day of the inspection, the respondent's maintenance people had "failed" to go into the paint room and start the pump (Tr. 57).
6. � In the main aisleway of Assembly Department 32 there was water standing and covering a "substantial" area, some 6 to 8 feet in length (Tr. 22). � Approximately 60 people worked in this part of the plant (Tr. 22-23). � The Compliance Officer did not observe anyone working with this water or cleaning it up (Tr. 52-53).
Tanks in this area are used to test pressure vessels submerged in water. After continued use, the tanks became dirty and must be cleaned. � The tanks were being cleaned on the day of inspection. The water is first emptied into a bucket and then the tanks are scrubbed. � Some water is routinely spilled during the emptying and cleaning process (Tr. 115-116, Ex. C-5). � [*22] �
7. � A Baldor 7-inch aluminum snagging grinder located in the Salvage Department was being operated on May 23, 1974. � The grinding wheels on this machine are mounted between flanges and on the date in question there were no blotters separating the wheels and flanges (Tr. 24, 25, 59). � A blotter absorbs the pressure of the metal against the wheel uniformly and prevents the wheel from fracturing (Tr. 25-26; see also � � 1910.215(c)(6)(i)).
Respondent was previously charged, as a result of a March 7, 1974 inspection, with the failure of having a blotter on this identical machine run by the same operator (Tr. 59-60, Respondent's Ex. 11). � Respondent's Maintenance Department, prior to May 23, 1974, made and furnished blotters to supervisors in the salvage department who in turn supplied them to the operator who installed blotters on the machine in question (Tr. 125).
Discussion
A. � As to Violations
Although the Compliance Officer did not observe the 10-inch Black & Decker grinder being operated on May 23, 1974, respondent's notice of contest, answer and brief, all contain implied admissions that this grinder was operated by respondent employees when the opening between the work rest [*23] � and the grinding wheel exceeded one-eighth inch. n2 On this record, therefore, respondent's noncompliance with � � 1910.215(a)(4) was established. � Respondent, however, essentially argues that, because the evidence establishes that noncompliance in this case did not expose any employees to the safety hazard which the standard is designed to eliminate, no violation should be found. � We agree, and item 4 of the citation will be vacated.
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n2 Even if respondent's contention was accepted that the opening measured 3/8 of an inch on May 23, 1974 instead of 5/8 of an inch as measured by the Compliance Officer, the opening exceeded the maximum opening permitted by the standard.
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The standard's plain objective in requiring work rests to be kept adjusted closely to the grinding wheel is to prevent the material being ground from becoming jammed between the wheel and rest, which may cause wheel breakage. � The Compliance Officer acknowledged that under certain conditions, the work rest can be positioned further away from the wheel � [*24] � than permitted by the standard without presenting any possibility of jamming, and by a preponderance of the evidence, respondent proved that due to nature of the work being performed on the grinder in question there was no foreseeable danger of it becoming jammed. The Compliance Officer's surmise that even a large piece of material might become jammed has not been credited because he never observed the conditions under which this grinder was operated.
The protrusion of the steel plates above the level of the floor adjacent to the south doorway of the Plating Department constitutes an obstruction in an aisleway that could create a tripping hazard to employees walking on that side of the aisleway. Therefore, respondent is found in violation of � � 1910.22(b)(1) (item 6) on May 23, 1974.
Complainant also has established by a preponderance of the evidence a violation of � � 1910.133(a)(1) (item 7). � Respondent's argument that the safety glasses made available to employees for use on the "pickle line" are suitable eye protectors for the work to be performed is belied by Mrs. Hasselschwert's uncontroverted testimony that two of respondent's employees got acid in their eyes in January 1973. � [*25] � While we are satisfied that goggles would protect employees' eyes from the corrosive acid, we suggest that respondent re-examine its "pickle line" operation to determine whether additional face equipment also might be required.
The Compliance Officer's testimony and photographic evidence with respect to the substantial amount of water standing on the floor in the paint storage room and in the main aisleway to assembly department #32 went uncontroverted.
While an act of nature over which respondent had no control created the existing water condition in the paint storage room, respondent admittedly failed to take the timely and necessary steps to alleviate and correct the condition.
Respondent's representative testified that the water in the aisleway on the day of inspection was the result of emptying and cleaning out test tanks and that some water is routinely spilled during this process. � This may be true, but the fact remains that a "substantial coverage of water, clear across the aisleway" existed at the time of inspection and nobody was engaged in rectifying the hazardous condition.
Under these circumstances, a violation of the "housekeeping" standard, � � 1910.22(a)(2) (item [*26] � 8) is found.
Because of the previous abatement efforts made by respondent with respect to the absence of blotters on the 7-inch snagging grinder operated by the same employee and the immediate steps taken to correct the violative condition on the day of inspection (Tr. 59, 125, 134), we believe it reasonable to conclude that respondent supervisors were unaware of the violation's presence on May 23, 1974 and that it was an isolated occurrence committed by the operator of the particular machine contrary to instructions. � In light of this conclusion, respondent will not be found in violation of � � 1910.215(c)(6)(i) (item 9). � We would point out, however, that should a similar incident occur again, a different conclusion may be reached because it will be evident that respondent's safety instructions to its employee in this regard are ineffective and that stronger measures should have been instituted to bring about compliance with this standard.
B. � As to Penalties
All record evidence relating to the four factors prescribed by Section 17(j) of the Act (29 U.S.C. 666(i)), the size of respondent's business, gravity of the violations, the good faith of the respondent, and its history of [*27] � violations under the Act, have been considered.
The respondent employs approximately 400 persons and the Antwerp, Ohio plant has been subject to a total of 4 inspections under the Act which have resulted in the issuance of citations containing a total of 48 non-serious violations. � According to the Compliance Officer's testimony, which went uncontradicted on this point, the three prior citations have become final orders of the Commission (Tr. 42). � Despite what are considered good faith abatement efforts by respondent, we are convinced that this prior history of violations dictates the imposition of penalties in this case in order to assure future compliance with the Act. � We also believe, however, that substantial penalties are not warranted due to the low level of gravity of all three of the violations affirmed.
A penalty of $50.00 each for items 6, 7 and 8 is considered appropriate and will be assessed.
Conclusions of Law
1. � The respondent is an employer engaged in a business affecting commerce within the meaning of 29 U.S.C. � � 652(5).
2. � On May 23, 1974 respondent was in violation of 29 C.F.R. � � 1910.22(b)(1) (item 6), 29 C.F.R. � � 1910.133(a)(1) (item 7), and 29 C.F.R. � [*28] � 1910.22(a)(2) (item 8); but these violations were not "serious" within the meaning of 29 U.S.C. � � 666(j).
3. � On May 23, 1974 respondent was not in violation of 29 C.F.R. � � 1910.215(a)(4) (item 4) or 29 C.F.R. � � 1910.215(c)(6)(i) (item 9).
4. � A penalty of $50.00 each for respondent's violations of items 6, 7 and 8 is appropriate.
ORDER
Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED:
1. � Violations of 29 C.F.R. � � 1910.22(b)(1), 29 C.F.R. � � 1910.133(a)(1), and 29 C.F.R. � � 1910.22(a)(2) are hereby AFFIRMED.
2. � The alleged violations of 29 C.F.R. � � 1910.215(a)(4) and 29 C.F.R. � � 1910.215(c)(6)(i), and the proposed penalties based thereon, are hereby VACATED.
3. � A penalty of $50.00 each for respondent's violations of items 6, 7 and 8 of the citation issued June 20, 1974, or a total of $150.00, is hereby ASSESSED.
James A. Cronin, Jr., Judge, OSAHRC
Dated: February 6, 1975