United States of
America
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
1924
Building - Room 2R90, 100 Alabama Street, S.W.
Atlanta,
Georgia 30303-3104
|
Secretary of Labor, |
|
|
Complainant, |
|
|
v. |
OSHRC
Docket No.: 17-0560 |
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TMD Staffing, |
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|
Respondent. |
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Appearances:
Lindsay A. Wofford, Esq.
Office
of the Solicitor, U. S. Department of Labor, Dallas, Texas
For
Complainant
Stephen R. McCown, Esq. and Travis J. Odom, Esq.
Littler
Mendelson, P.C., Dallas, Texas
For Respondent
Before: Administrative Law Judge Sharon
D. Calhoun
DECISION
AND ORDER
TMD Staffing (TMD) contests
a two-item Citation and Notification of Penalty (Citation) issued March 20,
2017, by the Secretary. The Secretary issued the Citation following an
inspection by the Occupational Safety and Health Administration (OSHA) on November
21, 2016, of a facility operated by Hightower Metal Works, in response to a
report of a serious employee injury. The
injured employee was one of several employees provided to Hightower Metal Works
by TMD. After inspecting the facility, a
compliance safety and health officer (CSHO) recommended issuing citations to
both Hightower Metal Works and TMD for failing to provide guards for four
machines used by TMD-supplied employees in Hightower Metal Work’s facility,
exposing the employees to struck-by and caught-by hazards.
Item 1 of the Citation
alleges a serious violation of 29 C.F.R. § 1910.212(a)(1) for failing to
provide a guard for the point of operation of a punch station on a Piranha P-90
ironworker machine. Item 2 alleges a serious
violation of 29 C.F.R. § 1910.212(a)(3)(ii) for failing to provide guards for
points of operation on two press brakes and a bending roll. The Secretary proposes a penalty of $12,675.00
for each item, for a total proposed penalty of $25,350.00.
The Court held a hearing
in this matter on November 8, 2017, in Houston, Texas. The parties filed briefs on February 20,
2018. TMD argues the Secretary failed to
establish its employees were exposed to struck-by or caught-by hazards when
using the unguarded machines. TMD
asserts the affirmative defense of unpreventable employee misconduct with
respect to Instance (c) of Item 2. TMD
also argues it lacked control of the worksite such that it could abate the
alleged violative conditions.
For the reasons discussed
below, the Court AFFIRMS Items 1 and
2 and assesses a total penalty of $20,000.00 for the two items.
JURISDICTION
AND COVERAGE
TMD timely contested the
Citation and Notification of Penalty on March 28, 2017. The parties stipulate
the Commission has jurisdiction over this action and TMD is a covered business
under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678
(Act) (Tr. 16-17). Based on the stipulations and the record evidence, the Court
finds the Commission has jurisdiction over this proceeding under § 10(c) of the
Act and TMD is a covered employer under § 3(5) of the Act.
BACKGROUND
Hightower Metal Works
(HMW) owns and operates a steel fabrication facility in Houston, Texas. The company primarily serves the gas
compression market. It has been in
business for approximately 25 years and has hired workers supplied by TMD since
it began operating. HMW directly employs
five workers (including secretaries) and employs the remaining 10 or 11 workers
through TMD (Tr. 29-31).
The TMD-supplied
employees operate HMW’s steel fabrication machines daily (Tr. 41, 50, 53). HMW operates its manufacturing shop five days
a week, from 6:00 a.m. to 4:30 p.m.
Depending on the workload, HMW may operate the shop a sixth day (Tr.
41).
On
Saturday, October 29, 2016, TMD Employee #1 was operating HMW’s Wysong bending roll (also referred to as the “plate roll”
at the hearing), which is used to roll metal sheets into circular shapes. Employee #1 inserted a sheet of stainless
steel between the rollers of the plate roll to make a pipe. The rolls caught his left glove and pulled
his left index finger into the point of operation, crushing it. Emergency personnel transported Employee #1
to a hospital, where he received medical treatment. Later that week, medical personnel amputated
his finger due to complications (Tr. 125-127).
Employee #1 had worked at HMW’s facility for 14 years at the time of the
hearing. He was on medical leave for two
months and performed light duty at TMD’s office for two weeks. He then returned to operating machines at
HMW’s shop (Tr. 124, 128).
CSHO
Marcelo Maldonado inspected HMW’s facility on November 21, 2016. After photographing the shop machines and
conducting employee interviews, CSHO Maldonado recommended the Secretary issue
citations to HMW, as the creating and controlling employer, and to TMD, as the
exposing employer; the Secretary followed his recommendations. HMW entered into an informal settlement with
the Secretary and abated the cited violations.
The four machines cited
in this proceeding are:
(1) The Piranha P-90 ironworker, used to punch
holes, cut flat bars and angle, and notch metal. HMW bought the ironworker four or five years
before the November 2017 hearing. The
punch station of the ironworker was not guarded at the time of the OSHA
inspection. Following the inspection,
HMW installed a Plexiglas guard on the punch station (Item 1) (Exh. C-1, pp. 7-8; Tr. 39, 50-54);
(2) The H.T.C. 160G press
brake, used to bend sheets of metal.
After placing a sheet of metal in the machine, the operator steps on a
pedal to activate the machine. The
H.T.C. press brake was already in the manufacturing shop when HMW bought the
facility in 1992. It was not guarded at
the time of the OSHA inspection. Subsequent to the inspection, HMW installed a light curtain
guard on the press brake (Item 2, Instance (a)) (Exh.
C-1, p. 5; Tr. 40-47);
(3) The Piranha 65 press
brake, also used to bend sheets of metal.
It is activated using a computer controller. HMW bought the Piranha
press brake in 2005 or 2006. It was not guarded at the time of the OSHA
inspection. HMW installed a light
curtain guard after the inspection (Item 2, Instance (b)) (Exh.
C-1, p. 6; Tr. 48-50); and
(4) The Wysong bending roll or plate roll, used to roll metal
sheets into round shapes. The point of
operation of the plate roll was not guarded, but a wire cable ran around the
machine that would halt operation if the operator touched it. This is the machine on which Employee #1 was
injured. HMW did not guard the point of
operation of the plate roll after the OSHA inspection, but it placed a
guardrail on the back of the machine to prevent employees accessing that area
(Item 2, Instance (c)) (Exh. C-1, pp. 1-4; Tr.
33-40).[1]
THE
CITATION
The
Secretary’s Burden of Proof
To establish a violation, “the
Secretary must show by a preponderance of the evidence that: (1) the cited
standard applies; (2) there was a failure to comply with the cited standard;
(3) employees had access to the violative condition; and (4) the cited employer
either knew or could have known of the condition with the exercise of
reasonable diligence.” Astra Pharma. Prods., 9 BNA OSHC 2126, 2129 (No.
78-6247, 1981), aff'd in relevant part, 681 F.2d 169 (1st Cir. 1982).
Item
1: Alleged Serious Violation of § 1910.212(a)(1)
Item 1 of the Citation
alleges,
On or about
November 21, 2016, and at times prior thereto, employees in the manufacturing
shop were exposed to struck-by and caught-by hazards when operating a punch
station on a Piranha P-90 ironworker without a point of operation guard.[2]
Section 1910.212(a)(1)
provides:
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. Examples of
guarding methods are-barrier guards, two-hand tripping devices, electronic
safety devices, etc.
TMD
argues the Secretary failed to establish its employees were exposed to
struck-by or caught-by hazards created by the point of operation of the punch
station. [3]
(1)
The Cited Standard Applies
Section
1910.212(a)(1) is found
in Subpart O—Machinery and Machine Guarding of the general
industry standards. Section 1910.212 is
captioned “General requirements for all machines.” This standard applies to all
machines not covered by a more specific standard. TMD does not dispute the
applicability of the standard. The Piranha P-90
ironworker is a machine. Section
1910.212(a)(1) applies to the cited condition.
(2)
Failure to Comply with § 1910.212(a)(1)
The
punch station of the Piranha P-90 ironworker was not guarded (Exh. C-1, pp. 7-8).
Mr. Hightower testified his company purchased the machine four or five
years before the hearing, and the TMD employees operated it in its unguarded
condition until after the November 21, 2016, OSHA inspection (Tr. 52-53).
The
Secretary has established TMD failed to comply with § 1910.212(a)(1).
(3)
Employees Had Access to the Violative Condition
“In
order to establish a violation of section 1910.212(a)(1), the Secretary must
first prove the existence of a hazard. . . . Whether a machine exposes an
employee to a hazard must be determined based on the manner
in which the machine functions and how it is operated by the employees.” Armour Food Co., 14 BNA OSHC 1817, 1821
(No. 86-247, 1990).
Mr.
Hightower explained the manner in which the punch
station of the Piranha P-90 ironworker functions and how it is operated.
The actual punch
of the machine is—you lay your piece of metal up there, you’re bringing the
punch down, and you’re lining it up with the hydraulic foot pedal. It comes down slow, and you line that center
punch up in the middle, you let go, and you punch it.
(Tr. 135)
He stated it is dangerous
for operators to place their hands in the zone of danger of the punch
station. “You don’t want to put your
fingers in there. . . It’s where it
punches a hole. It would punch—you know,
it would crush your hand.” (Tr. 59). His
testimony establishes operation of the punch station exposed its operators to a
hazard.
To establish access under
Commission precedent, the Secretary must show either that Respondent's
employees were actually exposed to the violative condition or that it is
“reasonably predictable by operational necessity or otherwise (including
inadvertence), that employees have been, are, or will be in the zone of
danger.” Fabricated Metal Prods., 18 BNA OSHC 1072, 1074, 1998 CCH
OSHD ¶ 31,463, pp. 44,506-07 (No. 93-1853,
1997) (citing Gilles & Cotting, Inc., 3 BNA OSHC
2002, 2003, 1975-76 CCH OSHD ¶20,448, p,
24,425 (No. 504, 1976)).
S & G Packaging Co., LLC, 19
BNA OSHC 1503, 1506 (No. 98-1107, 2001).
TMD’s
primary defense is the Secretary failed to establish its employees had access
to the unguarded points of operation of the cited machines. The Court disagrees and finds the record
establishes operators of the punch station on the Piranha P-90 were required to
place their hands 2 to 3 inches from the point of operation, placing them
within the zone of danger.
Employee
#1 and Employee #2 of TMD testified at the hearing. Employee #1 stated he uses the punch station
of the Piranha P-90 ironworker every day.
He stands “[a]bout 2 feet” from the point of operation of the punch
station when operating it (Tr. 129) Employee #2 likewise testified he
operates the punch station daily, usually three or four times a day (Tr.
112). He stands “a foot and a half—2
feet away” from the point of operation when using the punch station (Tr.
113). The employee witnesses did not
state how far their hands were from the point of operation as they operated the
machine.
Mr. Hightower was the only witness
who testified regarding the position of the operator’s hands when operating the
punch station.
Q.
Before you . . . do the actual punch, what do you do?
Mr. Hightower: Let go of it and take your hands out.
Q.
How far away are your hands from the actual point of operation?
Mr. Hightower: You’re never underneath your point of
operation. Your hands are always 2 or 3
inches away on the punch.
(Tr. 136)
TMD
argues this case is similar to Safeway #2555, & Its Successors, 2005 WL 858056 (No. 03-1072,
2005), in which the Commission reversed the ALJ’s decision affirming a
violation of § 1910.212(a)(1). The
Commission found the Secretary failed to establish respondent’s employees had
access to the points of operation of industrial bakery mixers. Of particular
concern to the Commission was the fact the CSHO “took no measurements to
determine the possibility or likelihood of exposure at Safeway. In fact, the
bowl was not even in place on the M-802 mixer, and his inspection of the A-200
mixer was limited to the question regarding whether any employee operated it.” Id. at *2. As in Safeway,
the CSHO in this case took no measurements to ascertain the distance between
the operator’s hands and the point of operation of the punch station. The Secretary’s case is not limited to the
inspection of the CSHO, however. The
undisputed testimony of Mr. Hightower establishes the operator’s hands come
within 2 or 3 inches of the unguarded point of operation. At this distance it is “more than
theoretically possible” the hands of the machine’s operators would be in the
zone of danger.
The Secretary need not show it was certain that
employees would be in the zone of danger, but he must show that
exposure was more than theoretically possible. Fabricated Metal Prods., Inc. 18 BNA OSHC 1072, 1074 (No.
93-1853, 1997); Phoenix Roofing, 17 BNA OSHC at 1079; Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2195 (No.
90-2775, 2000) (finding that it was “‘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”), aff'd, 268 F.3d 1123 (D.C. Cir. 2001).
Calpine Corp., 27 BNA OSHC 1014, 1017 (No. 11-1734, 2018).
The Court finds the positioning of the punch station operator’s
hands 2 to 3 inches from the point of operation places them within the zone of
danger. It is not sufficient HMW
personnel instructed the TMD employees to “Let go and take your hands out of it”
before activating the pedal. TMW cannot
rely on training to protect employees from the hazards addressed in the machine
guarding standard. The Commission has
also long-recognized that OSHA's machine guarding standards were designed to
protect employees from human error, such as “neglect, distraction, inattention
or inadvertence of an operator. . . . The standard was designed to provide against
such human weakness.” Slyter Chair, Inc., 4 BNA OSHC 1110, 1112 (No.
1263, 1976). “This requirement implicitly recognizes that human characteristics
such as skill, intelligence, carelessness, and fatigue, along with many other
qualities play a part in an individual's job performance, and it avoids
dependence on human conduct for safety.” B.C.
Crocker, 4 BNA OSHC 1775, 1777 (No. 4387, 1976). “It is clear from the examples provided [in § 1910.212(a)(1)] that
the method of machine guarding should not be predominantly dependent upon human
behavior. The plain purposes of the standard are to avoid dependence upon human
behavior and to provide a safe environment for employees in the machine area
from the hazards created by the machine's operation.” Akron
Brick & Block Co., 3 BNA OSHC 1876, 1878 (No. 4859, 1976).
The Court
finds TMD’s employees were assigned to operate the punch station of the Piranha
P-90 ironworker on a daily basis, which would bring
their hands within the zone of danger posed by the unguarded point of
operation. It was reasonably predictable
TMD’s employees would have access to the struck-by and caught-by hazards.
(4) Employer Knowledge
TMD conducts quarterly
worksite evaluations for every TMD client (Tr. 240). Martha Gallegos worked for TMD for six
years. The last four years she worked
there, she was a senior staffing specialist (Tr. 80). One of her duties was conducting site
inspections of workplaces to which TMD supplied employees. Ms. Gallegos would accompany a TMD branch
manager as they inspected the site and complete paperwork as instructed by the
branch manager (Tr. 83). As part of the
inspection, Ms. Gallegos filled out a form titled Quarterly Work Site Evaluation.
The form is a checklist for specific items listed under the topics of
housekeeping, personal protective equipment, training, ergonomics, first aid,
work practices, fire protection, material handling, tools, machinery, contact
agents, pressure equipment, and accidental management information. The machinery section of the checklist
provides:
(Exh. C-6, p. 30)
Page
30 of Exhibit C-6 is a copy of TMD’s Quarterly Work Site Evaluation for
HMW, completed by Ms. Gallegos as instructed by a branch manager identified as
Irma on the line for “Service Rep.” (Her last name was not given at the
hearing.) The date written by Ms.
Gallegos appears to be “4/14/16.”[4] Of the four boxes, Ms. Gallegos checked only
“Good working condition” for the machinery items. She did not check “Guarded at point of
operation.” (Tr. 87)[5]
The Secretary has
established a prima facie case that TMD had actual knowledge the cited machines
were not guarded.[6] TMD states it could not “be expected to know
that the machines were not in compliance with the standards, given that
Hightower, not TMD, is in the metal working business.” (TMD’s brief, p. 2) Ms. Gallegos
testified she wrote on the form only what the branch manager told her to
write. TMD did not train her to conduct
worksite evaluations or provide her with training in machine guarding (Tr.
83-84).
Neither Irma nor any other branch manager
testified. The record is, therefore,
silent regarding the training and duties of branch managers relating to
worksite evaluations and expertise on machine guarding. TMD failed to rebut the Secretary's
documentary evidence of the branch manager's actual knowledge of the unguarded
machines. "It is well established that when one
party has it peculiarly within its power to produce witnesses whose testimony
would elucidate the situation and fails to do so, it gives rise to the
presumption that the testimony would be unfavorable to that party. Graves v.
United States, 150 U.S. 118, 121 (1893). The Commission also has noted that
when one party has evidence but does not present it, it is reasonable to draw a
negative or adverse inference against that party, i.e., that the
evidence would not help that party's case. Capeway
Roofing Sys., Inc., 20 BNA
OSHC 1331, 1342-43 (No. 00-1968, 2003).
TMD provided no rebuttal to the Secretary's evidence TMD supervisors
inspected HMW's worksite and observed the machines were not guarded.
The
Secretary has established TMD had actual knowledge of the violative condition
of the unguarded punch station of the Piranha P-90 ironworker.[7] TMD conducted quarterly inspections of HMW’s
worksite and specifically looked at the machines its employees operated to
determine whether they were guarded. In
2016 (after the purchase date of the Piranha P-90 ironworker) the branch
manager instructed Ms. Gallegos to omit checking the box for “Guarded at point
of operation” for HMW’s machines. The
branch manager is a supervisory employee whose actual knowledge is imputed to TMD. See W.G. Yates & Sons Construction Co.,
Inc. v. OSHRC, 459 F.3d 604, 607 (5th
Cir.2006) (“[W]hen a corporate
employer entrusts to a supervisory employee its duty to assure employee
compliance with safety standards, it is reasonable to charge the employer with
the supervisor's knowledge[,] actual or constructive [,] of non-complying
conduct of a subordinate.”).
The
Secretary has established TMD had actual knowledge of the violative
condition. TMD violated §
1910.212(a)(1).
Characterization
of the Violation
The Secretary characterized
the violation of § 1910.212(a)(1) as serious. A serious violation is
established when there is “a substantial probability that death or serious
physical harm could result [from a violative condition] . . . unless the
employer did not, and could not with the exercise of reasonable diligence, know
of the presence of the violation.” 29 U.S.C. § 666(k).
As noted, Mr. Hightower
testified it is dangerous for operators to place their hands in the zone of
danger of the punch station because “it would crush your hand.” (Tr. 59)
The Court determines the
Secretary properly characterized the violation as serious.
Item
2: Alleged Serious Violation of § 1910.212(a)(3)(ii)
Item 2 of the Citation
alleges,
On
or about November 21, 2016, and at times prior thereto;
a. Employees in
the manufacturing shop were exposed to struck-by and caught-by hazards when
operating a H.T.C. 160G press brake without a point of operation guard.
b. Employees in
the manufacturing shop were exposed to struck-by and caught-by hazards when
operating a Piranha 65 Ton press brake without a point of operation guard.
c. Employees in
the manufacturing shop were exposed to caught-by hazards when operating a Wysong bending roll without a point of operation guard.
Section
1910.212(a)(3)(ii) provides:
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.
TMD argues the Secretary
failed to establish its employees were exposed to struck-by or caught-by
hazards created by the points of operation of the press brakes and the press
roll.
(1)
The Cited Standard Applies
Section
1910.212(a)(3)(ii) is found in Subpart O—Machinery and Machine
Guarding of the general industry standards. It is undisputed the cited the press brakes
and press roll are machines. Section
1910.212(a)(3) applies to the cited conditions.
(2)
Failure to Comply with § 1910.212(a)(3)(ii)
It
is undisputed the two cited press brakes and the bending roll were not guarded
(Exh. C-1, pp. 1-6; Tr. 33-50). TMD failed to comply with § 1910.212(a)(3)(ii).
(3) Employees Had Access to the Violative
Condition
“With a general standard such
as the point of operation guarding standard in this case
(§ 1910.212(a)(3)(ii)), the Secretary must prove that the violation of the
standard presents a hazard.” Fabricated Metal Prod., Inc., 18 BNA OSHC 1072, n.6 (No. 93-1853, 1997). Mr. Hightower testified the cited press
brakes presented amputation hazards to the operators (Tr.
57). The injury to Employee #1 while
operating the bending roll establishes use of the unguarded machine presents a
hazard. The Secretary has proven the violation
of § 1910.212(a)(3)(ii) with regard to the cited
machines presents hazards.
Instances
(a) and (b): H.T.C. 190G Press Brake and
Piranha 65 Ton Press Brake
Operators
use the press brakes to bend angles on metal.
They operate the press brakes daily (Tr. 50). Regarding the H.T.C. press brake, Mr.
Hightower explained, “[Y]ou lay out your piece of
metal to whatever you want, put the proper die in, lay it in there, and you
bring it down and get on the line, and you push the pedal, and it breaks it.”
(Tr. 45) He
stated operators stand in front of the H.T.C. press brake when positioning the
metal. “They’re pretty close when
they’re bringing [the die] down because they have to put it on the line. . . . A foot away . . .
you, know, bending over looking at it.” (Tr. 46) Mr. Hightower stated the Piranha press
brake is operated in the same manner, except it is activated with a computer
controller, rather than a pedal (Tr. 48).
TMD focuses on the
placement of the operators’ feet while operating the press brakes, in arguing
its employees are guarded by distance.
Although the operators stand approximately a foot from the press brakes,
they must place their hands much closer to perform their assigned tasks. Referring to OSHA Instruction CPL 02-01-025, TMD
states, “[W]hile OSHA recognizes guarding by
distance, where applicable, requires only four inches of clearance to be safe,
here the witnesses testified their normal practice was to maintain one to two
feet of clearance in all cases.” (TMD’s brief, p. 13) The section of the OSHA Instruction
cited by TMD provides:
For the purpose of maintaining
a "safe distance" as discussed in this instruction, the
operating employee and helping employee(s) must not approach closer than
necessary and in no case, closer than 4 inches (10.16 centimeters) to the power
press brake point of operation. The minimum safe distance of 4 inches (10.6 cm)
shall be measured from the exterior point of contact of the power press brake
die closest to an employee.
Id. at ¶ D.7. (emphasis in original)
This argument misses the
mark for two reasons. First, TMD ignores
the previous language of the OSHA Instruction mandating safe distance guarding
is allowed only in the event guarding
is not feasible and it is limited to one-time only fabrication.
5. Because of constraints imposed by certain
manufacturing or fabricating processes, safeguarding by maintaining a safe
distance from the point of operation may be acceptable but only when
safeguarding by physical barrier or physical devices is not feasible.
"Safe distance" means the clearance between an employee (typically
his or her fingers holding and supporting a piece part) and the power press
brake point of operation.
6. Safeguarding by maintaining a "safe distance"
is acceptable if:
a. The employer demonstrates that physical
barriers and physical devices are not feasible to guard the power press brake
point of operation. Physical devices typically include: two hand controls,
holdouts or restraints and presence sensors.
b. The employer demonstrates that power press
brake point of operation guarding by maintaining a safe distance is limited to
one-time only fabrication of made-to-order or custom-made piece parts. Small
quantity runs, typically performed in job shop or model shop establishments may
be affected by this provision; high volume piece part rates of production will
not. A "small quantity run" means fabrication of more than one of the
same piece parts over a continuous timeframe of no more than four hours per
month.
Id.
(emphasis in original)
Here,
guarding by physical devices is feasible, as demonstrated by HMW’s subsequent
guarding of the press brakes using light curtain guards (Tr. 47, 50).
Second, the OSHA
Instruction states the minimum safe
distance is 4 inches. Mr. Hightower
testified credibly the operators’ hands could be as close as 2 inches when
positioning the metal. Mr. Hightower
testified, “[W]hen you’re using the press brake, you’re
going to have to have your hand right up under there until you get
it on the line, and then you’re going to
move your hands and come on down.” (Tr. 64) TMD’s counsel asked Mr. Hightower how
far the operator’s hands are from the point of operation of the H.T.C. press
brake when positioning the metal piece. He stated, “[A] couple of inches, 4 inches, when you’re lining the line up. But your
hand is still not in the pinch point.” (Tr. 137) (emphasis added) The distance of the hands of the
Piranha press brake operator from the point of operation is “[i]dentical” to that of the
operator’s hands from the H.T.C. press brake’s point of operation” (Tr. 138)
As with Item 1, the Court
finds a distance of 2 to 4 inches from the point of
operation to be within the zone of danger of the two press brakes. The Secretary has established TMD’s employees
had access to the violative condition.
Instance (c)—Wysong
Bending Roll
Mr.
Hightower testified the bending roll is operated by placing the metal sheet
between the machine’s rollers. “You feed
the material into the front, turn it on, and it rolls it.” (Tr. 138)
The operator stands “a foot or more” away from the front of the machine
when it is activated (Tr. 138). TMD’s
employees operated the plate roll daily (Tr. 107, 127).
Employee #1 explained how his finger
was pulled into the rollers of the machine.
As I was operating
the roller and I was putting in a piece of stainless steel to make a pipe, when
I put it in, my glove—my left-hand glove slipped. As I was operating it, it caught my—it caught
it, and I automatically stopped it, and it crushed my finger.
(Tr. 126)
Employee
#2 was working next to Employee #1 at the time of the accident. He stated Employee #1 was rolling a metal
sheet. “Looking at 2 and a half feet. Not that big.
A little piece of stainless steel.” (Tr. 106) TMD took a statement from Employee #1
as part of its Accident/Injury Report. A TMD representative reported, “The material
went slanted he wanted to fix and that is when this happened.” (Exh. C-20, p. 6)
It
is one of the responsibilities of the plate roll operator to insert the metal
sheet correctly. In inserting the
stainless steel, Employee #1 was performing an assigned duty. When he reached out to straighten the metal
sheet, he was engaging in reasonably predictable behavior. See Kaspar Wire Works, Inc., 18
BNA OSHC 2178, 2195 (No. 90-2775, 2000) (finding that it was “‘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”), aff'd, 268 F.3d 1123 (D.C. Cir. 2001).
The
Secretary has established it was reasonably predictable by operational
necessity that TMD’s bending roll operators were in the zone of danger of the
point of operation when operating the machine.
(4)
Employer Knowledge
Page 30 of Exhibit C-6 is
a copy of TMD’s Quarterly Work Site
Evaluation, completed in April of 2016 at the instruction of a TMD branch
manager. As noted regarding Item 1, the
box indicating HMW’s machinery is guarded is not checked. The knowledge of TMD’s branch manager is
imputed to TMD. The Secretary has
established TMD knew of the violative condition of the cited machines.
Unpreventable
Employee Misconduct Defense
TMD contends the injury to
the hand of Employee #1 was the result of his unpreventable misconduct. To establish that a
violation was the result of unpreventable employee misconduct an employer is
required to show that it: “(1) established work rules designed to prevent the
violative conditions from occurring; (2) adequately communicated those rules to
its employees; (3) took steps to discover violations of those rules; and (4)
effectively enforced the rules when violations were discovered.” Manganas Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-0588, 2007).
The unpreventable
employee misconduct defense applies in situations where the behavior of the
employee, not the existence of a violative condition, is at issue. OSHA’s
machine guarding standards were designed to protect employees from common human
errors such as “neglect, distraction, inattention or inadvertence of an
operator[.]” Slyter Chair, Inc., 4 OSHC BNA at 1112. Here, the violative conduct is the failure to
guard the bending roll, not the inadvertent action of the employee.
TMD’s reliance on the
unpreventable employee misconduct defense regarding Employee #1 is
misplaced. Even without the occurrence
of his injury, the record establishes TMD employees routinely operated the
bending roll while it was in noncompliance with § 1910.212(a)(3)(ii). “See
Boeing Co., 5 BNA OSHC 2014, 2016 (No. 12879, 1977) (finding of a violation
does not depend on the cause of the particular accident that led to the case); Concrete Constr. Corp., 4 BNA OSHC 1133,
1135 (No. 2490, 1976) (‘The Act may be violated even though no injuries have
occurred, and even though a particular instance of noncompliance was not the
cause of injuries.’); Kansas City Power
& Light Co., 10 BNA OSHC 1417, 1422 (No. 76-5255, 1982) (‘Indeed, both
the judge and Respondent improperly define the hazard at issue in terms of the
asserted cause of the specific incident that led to injury . . . .’).” Calpine Corp, 27 BNA OSHC at n. 6.
Neither TMD nor HMW installed guards
on the cited machines. Neither company
had a work rule designed to prevent employees from using unguarded machines; it
follows the companies could not then adequately communicate such a rule or
takes steps to discover its violation or enforce the nonexistent rule. TMD’s unpreventable employee misconduct
defense fails.
Lack of Control Defense
TMD cites Central of Georgia Railroad Company v. OSHRC, 576 F.2d 620 (5th Cir. 1978),
in support of its argument it lacked control of the worksite. In Central,
the Court of Appeals for the Fifth Circuit discussed the emergent
multi-employer worksite defense as set out in Anning-Johnson Co. v. OSHRC,
516 F.2d 1081 (7th Cir. 1975). The Fifth Circuit stated,
We regard the Commission's position at least in
part as an allocation of burdens of proof. Under this allocation the Secretary
must first make out a prima facie case; the burden then shifts to the employer
to rebut this prima facie case; or if he does not do so, he may establish an
affirmative defense by showing his own lack of control over the hazard, and
according to the Commission his protection of the employees through alternative
measures.
Central, 576
F.2d at 624.
TMD argues it lacked control over
the hazard:
TMD has no
supervision on site at Hightower. TMD visited Hightower only two to four times
per year for site inspections. Further, TMD left training of proper use of the
iron worker, press brakes, and plate roll to Hightower. TMD had no contractual
right to insist on changes being made to the machines. [TMD claims
administrator] Donna Mitchell testified that documents in the record at C-6
constitute the only contract between TMD and Hightower Metal Works. Those
documents do not give TMD any right to access or alter the machines at
Hightower, nor do they include any contractual covenants that TMD could enforce
to force Hightower to change its machines.
Furthermore, Hightower, and not TMD, investigated guarding options and
collaborated with OSHA to implement guards on the equipment at issue.
(TMD’s
brief, pp. 17-18)
The Court agrees with the facts set
out in TMD’s argument. TMD overlooks,
however, the second step of the formulation of the defense: the exposing employer must protect its employees
through alternative means.
“Under
Commission precedent . . . the focus of the Secretary's burden of proving that
the cited standard applies pertains to the cited conditions, not the particular
cited employer.” Southern Pan Services Co.,
25 BNA OSHC at 1085. An employer whose
own employees are exposed to a hazard or violative condition (an exposing
employer) has a statutory duty to comply with a particular
standard even where it did not create or control the hazard. See Anning-Johnson Co., 4 BNA OSHC 1193,
1198-99 (No. 3694, 1976) (consolidated) (holding that the exposure of a
subcontractor's “employees to a condition that the employer knows or should
have known to be hazardous, in light of the authority or ‘control’ it retains
over its own employees, gives rise to a duty under section 5(a)(2) of the
Act[.]”). Thus, even if TMD had no control over HMW’s worksite, it still had an
obligation to comply with the standard, either by requesting HMW to provide
guards for the machines, or, if HMW refused the request, prohibiting its
employees from operating the machines.
[E]ach employer
has primary responsibility for the safety of its own employees. Simply because
a subcontractor cannot himself abate a violative condition does not mean it is
powerless to protect its employees. It can, for example, attempt to have the
general contractor correct the condition, attempt to persuade the employer
responsible for the condition to correct it, instruct its employees to avoid the area where the hazard exists if
this alternative is practical, or in some instances provide an alternative
means of protection against the hazard.... In the absence of such actions, we
will still hold each employer responsible for all violative conditions to which
its employees have access.
Grossman Steel & Alum. Corp.,
4 BNA OSHC 1185, 1189 (No. 12775, 1975) (emphasis added) “[S]uch a requirement is consistent with Commission precedent
requiring an employer to detect and assess the hazards to which its employees
may be exposed, even those it did not create.” Associated Underwater Servs, 24 BNA OSHC
1248, 1251 (No. 07-1851, 2012).
As the Secretary points out, TMD
could have included language in its contract with HMW requiring machines to be
guarded. In its existing contract, TMD
prohibits its employees from operating forklifts (Exh.
C-6, p. 29; Tr. 217, 228-229).
In Central, on which TMD relies, the Fifth Circuit upholds the primacy
of the Act over any contractual terms to which the employers agreed.
[A]s the Commission has
noted, an employer may not contract out of its statutory responsibilities under
OSHA. Anning-Johnson, 4 OSHC at 1198
n. 8 (BNA), and cases cited therein. If an employer does contract with a third
party to maintain safe conditions, it is to be presumed that the employer can
enforce the contract. We are unimpressed by Central's arguments that it could
not enforce the present contract. . . [I]t was Central's burden to show the
unavailability of such means, and it has not met its burden to show lack of
control.
We stress that the Act,
not the contract, is the source of Central's responsibilities. See Frohlick Crane
Service, Inc. v. OSHRC, 521 F.2d 628, 631 (10th Cir. 1975). An employer may
carry out its statutory duties through its own private arrangements with third
parties, but if it does so and if those duties are neglected, it is up to the
employer to show why he cannot enforce the arrangements he has made. If he
cannot make this showing, he must take the consequences, and his further remedy
lies against the private party with whom he has contracted and whose breach
exposes the employer to liability.
Id.
at 624–25.
The
Court determines TMD’s defense it lacked control over the worksite fails.
Characterization
of the Violation
The Secretary characterized
the instances of the violation of § 1910.212(a)(3)(ii) as serious. With regard to the
cited press brakes, Mr. Hightower stated, “It wouldn’t be a smushed
finger there; it would be a cut-off finger.
It would cut it off in the press brake.” (Tr. 57) The injury to Employee #1 while
operating the plate roll establishes the risk of serious physical harm of
operating that unguarded machine. The
violation of § 1910.212(a)(iii) is properly characterized as serious.
PENALTY
DETERMINATION
The Commission is the
final arbiter of penalties in all contested cases. “In assessing penalties,
section 17(j) of the OSH Act, 29 U. S. C. § 666(j), requires the Commission to
give due consideration to the gravity of the violation and the employer’s size,
history of violation, and good faith.” Burkes
Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). “Gravity is a
principal factor in a penalty determination and is based on the number of
employees exposed, duration of exposure, likelihood of injury, and precautions
taken against injury.” Siemens Energy and
Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005).
TMD has approximately
1,000 employees (Tr. 180). CSHO
Maldonado conceded he erred when he calculated TMW’s history of violations—he
factored in six citations resulting from three inspections in 2014 and
2015. The Secretary deleted these
citations in a final settlement agreement (Exh. R-1,
p. 3; Tr. 189-190). The Secretary states
that, had the CSHO correctly calculated the TMW’s history of violations, “the
penalty would have been reduced by only ten percent” (Secretary’s brief, p. 14). TMW had a written safety and health program
and its employees received safety training (Exhs. C-9
& C-10). It is entitled to penalty
reductions for history and good faith.
The gravity of the
violations for Items 1 and 2 is high.
Two employees were exposed on a daily basis to
unguarded points of operation on four machines.
The likelihood of injury if they were struck or caught by the points of
operation was great. TMS took no
precautions against such injuries.
Based on the factors of
size, history, good faith, and gravity, the Court assesses a penalty of
$10,000.00 each for Items 1 and 2.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW
The foregoing decision
constitutes the findings of fact and conclusions of law in accordance with Fed.
R. Civ. P. 52(a).
ORDER
Based on the foregoing
decision, it is hereby ORDERED:
1. Item 1 of Citation No.
1, alleging a serious violation of § 1910.212(a)(1), is AFIRMED and a penalty of $10,000.00 is assessed; and
2. Instances (a) and (b) and
(c) of Item 2 of Citation No. 1, alleging a serious violation of § 1910.212(a)(3)(ii)
are AFFIRMED and a penalty of $10,000.00 is
assessed.
SO ORDERED
/s/
Date: June 20, 2018
Sharon
D. Calhoun
Administrative
Law Judge
Atlanta,
Georgia