CWP Asset Corp., d/b/a Mister Car Wash

Plain-English summary

Mister Car Wash moved vehicle-drying work inside a car wash bay near a conveyor system. An employee was hospitalized after his foot entered a gap above the conveyor's moving chain and sprocket. The judge found that this work arrangement made employee exposure to the moving parts reasonably predictable and that the existing trap door did not adequately guard the hazard. The company knew about the machinery and slippery conditions, and its employee-misconduct defense failed because it lacked a specific, effectively enforced rule addressing the conduct. The serious citation was affirmed with a $9,234 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1)
• Outcome: Serious machine-guarding citation affirmed; penalty of $9,234.
• Key point: Moving assigned work closer to machinery can make exposure predictable and require stronger guarding.

Full text (OSHRC public release)



CWP ASSET CORP., D/B/A MISTER CAR WASH., Docket No. 17-1483

Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 17-1483

CWP ASSET CORP., D/B/A MISTER CAR WASH ,

Respondent.

Appearances:

Josh Bernstein , Esq., U.S. Department of Labor, Office of the Solicitor,
Dallas, Texas ,

For Complainant

Travis Odom, Esq., Littler Mendelson, P.C., Houston, Texas

F or Respondent   

Be fore: Administrativ e Law Judge
Peggy S. Ball

DECISION AND ORDER

I. Procedural History

On
June 8, 2017 ,
one of Respondent’s
employees
was
hospitalized after
he got his foot
caught in
the
chain and
sprocket of a car conveyor system at
one of Respondent’s
car
wash
locations
in
El Paso, Texas .
A couple of days later , Complainant sent Compliance Safety and Health Officer,
Rafael Guerrero , to conduct an inspection of the worksite. CSHO
Guerrero
conducted an inspection that lasted
three
days , during which time
he
observed Respondent’s work practices, conducted interviews, and did some independent research of the car wash industry. (Tr.
116, 127–28 ). At the conclusion of his inspection, CSHO
Guerrero
recommended, and Complainant approved, a single-item Citation and Notification of Penalty.

The Citation alleges Respondent
violated 29 C.F.R. § 1910.212 (a)(1)
by failing
to adeq uately guard the sprocket and
chain
for the car conveyor, which
were
located under
a trap door
in the car wash tunnel. (Ex.
C-1 ). Respondent filed a Notice of Contest, arguing that the existing guard was adequate and that the injured employee’s actions
were
the result of unpreventable employee misconduct. The Notice of Contest initiated the present matter, which was assigned to Simplified Proceedings by the Chief Administrative Law Judge on
October 6, 2017 . 1

This matter was initially assigned to Administrative Law Judge John H. Schumacher, who is no longer with the Commission. The case was re-assigned to the undersigned on
December 14, 2017 .

A one-day trial was held on
June 7, 2018,
in
El Paso, Texas . The following people testified:
(1)
[Redacted] , the injured employee; (2 ) Alfred
Murillo, a supervisor at the worksite; (3) CSHO Rafael Guerrero; (4) Juan Espinosa, general manager of the worksite; and (5) Edgar Morales, Respondent’s regional manager . At the conclusion of the trial, the parties opted to submit post-trial briefs in lieu of closing on the record as provided for in
Commission Rule
200 .
See
29 C.F.R.
§
2200. 200(b)(6) .

The parties timely submitted their post-trial briefs, which the Court has reviewed, along with the record evidence and relevant case law.

Based on what follows, the Court finds
Respondent placed its employees close to the hazard
by shifting
its
drying operations inside the car wash bay .
By so doing, the Court finds it was reasonably predictable Respondent’s employees would be in the zone of danger
created by the void over the conveyor’s sprocket and
chain . Because
the change in work practice
moved its
employees closer to the hazard,
Respondent had a commensurate responsibility to ensure any
ingoing nip points or rotating parts
were adequately protected .
See
29 C.F.R. §
1910.212(a)(1). It failed to do so .

As
will be illustrated in more detail below,
the Court finds C omplainant established a serious violation of the guarding standard .

II. Stipulations
& Jurisdiction

As indicated in their joint stipulation statement , t he parties
agree
the Commission has
jurisdiction over this proceeding
pursuant to
section
10(c) of the Act, 29 U.S.C. § 659(c) ,
and
Respondent
is
an employer engaged in
a business affecting commerce within the meaning of
section
3(5)
of the Act, 29 U.S.C. § 652(5).
Slingluff
v. OSHRC , 425 F.3d 861 (10th Cir. 2005). The remaining stipulation merely indicates the parties agree Complainant alleges a violation of 29 C.F.R. § 1910.212(a)(1).

III. Factual Background

Approximately
three
years prior to the events
of
this case,
Respondent
made
a change
to
the
way
its employees dried cars.
Previously , employees waited outside the car wash bay as the customer drove their vehicle off the end of the conveyor and parked it in the drying area. (Tr.
152 ). Once
the car was parked, the employees moved around the perimeter of the stationary car to hand dry it as the last part of the car wash process. (Tr.
62, 103 ). Now ,
car drying occurs
inside
the last portion of the car wash bay, right before the end of the
car conveyor system . 2
(Tr.
62, 103 ; Ex.
C- 13 at 13, 22, C-24, C-25 ). As a result of this
move , employees
were taught how to dry vehicles using a process called side-drying , which
required
em ployees
to clean the front, back, and sides of a vehicle
while positioned along
the
side of the vehicle . 3
(Tr.
70, 103–104, 174–75 ). This
procedure was implemented
because
employees were working on either side of a conveyor system designed to move cars.
(Tr.
103–104 ).

The conveyor system uses a series of rollers that push a vehicle (in neutral gear) along a track. ( Tr. 152;
Ex s .
C-13 at 12–15,
C-19, C-20 ). Once the vehicle exits the track, the rollers that were pushing the car move downward into a
hole
in the floor at the end of the track. (Tr.
169 ; Ex.
C-13 at 22–24 ). Beneath the hole
are a sprocket and
chain
for the ca r conveyor system. (Tr.
123 ). The
hole
is equipped
with a
trap door , which is designed to be pushed back by the incoming roller and return to its original position once the roller has gone back underground. (Tr.
124 ).

While the
trap door
is waiting to receive rollers ,
it sits roughly
two-and-one-half
inches
back
from th e end of the
guides that hold the rollers above ground , creating the
aforementioned
hole .
(Tr.
124 ; Ex.
C-13 at 12–15, C-24, C-25 ).

This gap increases to roughly six inches
once the
door
is pushed backwards by an incoming set of rollers
and
returns
to its original size once the rollers have gone through . (Tr.
124–125 ;
Ex. C-13 at 12–15, C-24, C-25 ). According to
[Redacted] , this happens approximately once every
few
seconds, depending on
the speed of the conveyor. (Tr.
45 ).

Depending on who was testifying, the rationale
provided
for
shifting the drying operation indoors, and its impact on safety, was different . According to
employees , like
[Redacted]
and Murillo,
the y believed the
change was
grounded in production and efficiency, because
the time required to dry the cars was reduced
and controllable . (Tr.
40,
83 ). [Redacted]
believe d this was the case because Respondent had to process both
customers who
had already paid
for a monthly membership and those
who
prefer red
to pay
on per-wash basis . (Tr.
84).
This was echoed by Murillo, who testified that
Respondent’s area manager introduced the change
as a
way to
speed up the drying process. (Tr. 102–103).
Regardless of what they believe or what they were told, both
[Redacted]
and Murillo agreed the process
felt more dangerous
because
the cars were
no longer
stationary as the employees were drying them .
(Tr. 40, 62, 103).
According to
management , however,
the change was precipitated by
safety concerns.
(Tr. 152). Specifically,
Espinosa
testified the
move indoors placed employees in a
cooler, sun-shaded environment and removed the hazards
that come with
a car under a customer’s control. 4
(Tr.
152–53 ).

With respect to the
work practices , training,
and rules governing the drying process inside the bay,
the testimony was
somewhat of a mixed bag. All who testified admitted that it was against the rules to step onto the conveyor . (Tr.
41 ,
77 ,
106,
159 ).
The testimony was somewhat mixed, however, on the question of whether stepping
over
the conveyor was an acceptable work practice.
According to
[Redacted] , the training video he watched said he was not supposed to step over the conveyor .
(Tr.
41 ). According to Espinosa, it
is
acceptable to step over or around the conveyor. (Tr. 159).
Morales testified that stepping over the conveyor is not preferred but admitted there was no rule against it. (Tr. 188). Further, even though everyone
agreed the floor
in the area surrounding the
trap door
could be slippery,
which Respondent a ttempted to remedy
by
using
rubber mats , 5
and even
t hough Respondent has rules regarding proper footwear for washing and drying employees,
just about everyone agreed the rules regarding non-slip shoes were rarely enforced.
(Tr.
46,
105 ,
157,
161 –62 ).

The foregoing inconsistencies in employees’
understanding of the rules and
in management’s enforcement of those rules
was highlighted by the accident in this case. According to
[Redacted] ,
the number of people allocated to drying vehicles
could
b e 2, 3, or 4 , depending on the volume of cars traveling through
the system ,
the rate at which the conveyor
is set , and the
number of employees available . 6
(Tr.
80–82 , 97 ).
When three dryers were allocated
it would
result in an unequal number of dryers per vehicle side,
placing one employee in the position of having to travel back and forth
to opposite sides of the vehicles and, thus, the conveyor. (Tr.
187–88 ).

When asked about training,
[Redacted]
and Murillo both testified they were not trained on how to perform the job with an uneven number of dryers , there were no policies discussing how
to dry with three dryers,
and further expressed that the training video
showed the process
at the slowest speed they
were
likely to encounter
(and thus
was
unlike how they actually perform their jobs).
(Tr.
37–38 , 108 ; Ex.
C-19, C-20 ).

On the day of the accident, Respondent only assigned three people to perform drying duties. Included in this group was
[Redacted] . ( Tr. 31; Ex. C-24 ). In the video of the accident,
[Redacted]
finishe d
up drying the driver’s side of a car that
wa s getting ready to leave the conveyor and beg an
to move to the passenger side of the next car in the queue. (Tr. 32–33; Ex. C-24). A s he crossed over the conveyor ,
[Redacted] ’ foot slipped into the hole, where
it became caught in
the conveyor’s sprocket and chain. (Tr.
34 ; Ex. C-24). [Redacted]
suffered severe injuries
requiring hospitalization
as a result of the accident. (Tr.
39 ). Though he reviewed the video,
[Redacted]
could not recall how
he got his foot stuck inside the hole . (Tr. 34).

Different members of Respondent’s management team were shown the video of wha t
[Redacted]
was doing in the moments leading up to, and including, his injury.
Each had a different take on what, specifically ,
[Redacted]
did wrong as he passed between the two sides of the conveyor
on a day where only three people were assigned to dry cars.
According to
Espinosa ,
the only thing
[Redacted]
did wrong was stepping backwards across the front of the oncoming vehicle ; though even he admitted that it is not a violation of car wash safety rules . (Tr.
174 ). According
to
Morales ,
[Redacted]
violated the rules when he moved from one side of the car to the other . (Tr.
187 ).
Morales explained that each person is assigned to a side, where the front, sides, and back are dried . (Tr.
187 ). The third person is a floater of sorts, who touches up whatever is left unreached by the other two dryers. (Tr. 187).
When asked to clarify
how that would be carried out in practice , Morales
agreed it was acceptable to step over the conveyo r while it was in
operation
but Respondent preferred that employees
avoid doing so.
Neither of the se so-called rules
are memorialized in any of Respondent’s safety materials, policies, or manuals. (Tr.
174, 188 ; Ex.
C-15, C-17, C-18 ).

Based on this incident, CSHO Guerrero recommended, and Complainant issued, a single-item Citation, alleging a violation of the guarding standard found at 29 C.F.R. § 1910.212(a)(1).

IV. Discussion

A. Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows:

29 CFR 1910.212(a)(1): One or more
more
methods
of machine guarding was
[sic]
not 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:

On or about June 8, 2017, employer did not ensure that the rotating chain and sprocket located in the soft close drop door opening was properly guarded. This condition exposed employee to caught-between hazards.

(Ex. C-1) .

To establish a violation of an OSHA standard
pursuant to Section 5(a)(2) of the Act ,
Complainant
must
prove : (1) the standard applies to the facts; (2) the employer failed to comply with the terms of
the
standard; (3) employees
were exposed
to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge of the violation ( i.e. , the employer
knew
or ,
with the exercise of reasonable diligence ,
could have known of the violative condition).

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

Complainant has the burden of establishing each element by a preponderance of the evidence.
See Hartford Roofing Co. , 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance of the evidence” has been defined as:

t he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact
but by evidence that has the most convincing force ; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014) (emphasis added).

i. The Cited Standard Applies
and Was Violated

Subpart O of Part 1910
applies to Machinery and Machine guarding. Complainant alleges Respondent’s employees were exposed to
the sprocket and
chain
located below the
trap door
at the end of the car wash conveyor system . There is no dispute the conveyor belt
is a machine within the meaning of the standard. Thus, the standard applies.

T he Court
also
finds the terms of the standard were violated.
To prove a violation of the
guarding
standard, Complainant must show
“that a hazard within the meaning of
[1910.212(a)(1)]
exists in the employer’s workplace.”
Buffets, Inc.
d/b/a Old Country Buffet ,
21 BNA OSHC
1065 (No . 03- 2097,
2005)
( string cite
omitted).

In practice, this requires
“show[ ing ]
that employees are in fact
exposed to a hazard as a result of the
manner in which the machine functions and is operated.”
Id.
(citing
Jefferson Smurfit
Corp. , 15 BNA OSHC
1419, 1421 (N o.
89-553, 1991)) .
It is insufficient for Complainant to merely show that it is “not impossible”
for an employee to come into contact with the moving parts of a particular machine; instead,
Complainant
“ 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. ”
Fabricated Metal Prods. , Inc. ,
18 BNA OSHC
1072 (No.
93-1853,
1997)
(citing
Rockwell Int’l
Corp. ,
9 BNA OSHC 1082 (No.
12470, 1980) &
Gilles &
Cotting , Inc. ,
3 BNA OSHC 2002
(No. 504, 1976) .

Complainant contends
the gap left between the
trap door
and the end of the conveyor — whether in its normal position or while expanded — exposed Respondent’s employees to the hazard imposed by the sprocket and
chain
located underneath .
In support, Complainant points to the fact that an accident occurred in this case ,
that the conditions surrounding the hole tended to be wet and slippery ,
and
tha t
work
rules appeared to be inconsistently understood and enforced .
Respondent contends that its conveyor policy, which prohibits stepping onto (and
possibly
over) the conveyor belt while it is in operation, when combined with
other safety measures like
the retracting metal plate, is
sufficient
to prevent exposure to the machinery below the hole in the floor.

Further, Respondent contends that ,
if a violation occurred,
it
was the result of
[Redacted] ’
unpreventable employee misconduct .

As highlighted by cases cited above, t he key to
this
case is whether
Respondent’s
employees are exposed to
a
hazard
contemplated by the
guarding
standard . Just because an employer uses a machine with exposed parts does not automatically
impose a duty to guard.
See, e.g., Buffets, Inc. , 21 BNA OSHC 1065 (vacating citation because Complainant failed to show employees were exposed to moving parts
under normal operating conditions ) .

If there is
exposed
machinery, but exposure is not reasonably predictable
given how the machinery works or how employees are expected to work around it , then there is no need to guard and no violation of the standard.
See, e.g. ,
Norman W Fries Inc. , 2018 WL 4899174 (No. 17-0304, 2018 (ALJ Joys) . Conversely, if it is reasonably predictable, through regular work practice or accident, that an
employee will be in the zone of danger created by the machine, then the employer is required to guard it.

As previously noted, t he key event in this case was Respondent’s decision to move the drying operation inside the tunnel. Until that point, there was no concern about
employee
exposure to the
conveyor components beneath the trap door
because there were no employees working in proximity to it.

Thus, the guard , if one existed at that time,
was adequate for its purpose.

By moving the employees indoors, 7
Respondent placed them closer to the
sprocket and
chain
l ocated beneath the trap door.
At the very least , Respondent increased the likelihood of exposure by moving its employees inside of the tunnel , closer to the conveyor .

B oth operational necessity and inadvertence play ed
a role
in Respondent’s employees
being
exposed to the sprocket and
chain
of the conveyor . By moving employees closer to the trap door, Respondent increased the likelihood of exposure because employees were now working proximate to the hole and could, by mistake, step
into it,
which
happened in this case .
T his
possibility
was exacerbated by additional factors: (1) the ground, as admitted by the employees who testified, was slippery around the trap door;
(2) Respondent did not enforce its rules regarding non-slip shoes;
( 3 ) the trap
door did not close completely, or at least to a sufficient degree to prevent a foot from entering; and ( 4 ) Respondent’s allocation of three employees to perform the job, of necessity, required one employee to continually walk from one side of the conveyor to the other .
Depending on what portion of the car this third employee was cleaning, such a step could take place near the trap door.

Though
Morales
testified that such movement was discouraged, he
admitted that it was not prohibited ,
and his
co-worker , Espinosa, admitted that it was not against the rules. (Tr.
170, 187–88 ).

In
cases where a guarding citation
involving
a conveyor
has been
vacated, it was
because
nothing about the job placed employees in proximity to the nip points, rollers, or other guarding-related hazard s .
Norman W Fries Inc. , 2018 WL 4899174
(“Although there is no question the injured employee was exposed, the Secretary failed to establish this exposure was reasonably predictable as a result of the manner in which the conveyor functions and the way it is operated.”).
For example, in
Norman W Fries ,
t he ALJ
found the manner in which the employee was “accidentally” injured was
not
reasonably predictable because neither
the
normal operation
of the conveyor
n or the clean-up process
the employee was engaged in at the time
required
him
to
go
beneath the conveyor.
Id. ;
see also Evergreen Techs., Inc. , 18 BNA OSHC 1528 (1998) (ALJ Spies) (finding employee’s injuries were the result of idiosyncratic behavior, not the failure to replace a failing guard). 8

In this case , there were no rules
that prohibited employees from stepping near the hole; the process used to dry the cars (especially with three employees) placed employees in a position to slip and step into the hole because they were working in an area that was known to be
wet and
slippery; and the rules Respondent
had
on the books
were not consistently
enforced , if at all . At the very least, Respondent’s employees were exposed to
a hazard when working around the trap door of the conveyor.
See Calpine Corp. , 2018 WL 1778958 (No. 11-1734, 2018)
( “Calpine assigned its employees to complete a task that would bring them into the ‘zone of danger’ posed
by the unguarded platform opening.” ).
Just like the employer in
Calpine , Respondent’s work practice brought its employees into the zone of danger posed by the trap door.
Id.
The fact that
[Redacted]
was seriously injured by virtue of stepping into the hole is additional evidence of exposure by way of inadvertence.

B ecause Respondent’s employees were exposed to a hazard, Respondent had an associated duty to ensure the
conveyor
was properly guarded. In that respect, the Court
refers back
to
its previous conclusion that the trap door did not close enough to prevent the entry of a foot.
Th i s conclusion is buttressed by the standards governing
floor holes and
floor
openings , which are
regulate d
under
both general industry and construction
standards .
See
29 C.F.R. § 1910.21 (defining a ‘hole’ as a “gap or open space in a floor, roof, horizontal walking-working surface, or similar surface that is at least 2 inches in its least dimension”);
see id.
§ 1926.500 (same).

Floor holes are smaller
than floor openings
and do not
necessarily
present a “fall-through” hazard, as it were, but instead present slip, trip, and fall hazards
and
potentially expose unwitting employees to whatever hazards may lie underneath.
See, e.g.,
29 C.F.R. § 1910.28(b)(3)(ii) (employees must be protected from “tripping into or stepping into or through” any hole that is less than 4 feet above a lower level) .
Under both sets of standard s , floor holes
must be guarded.
See, e.g.,
29 C.F.R. § 1910.28(b)(3) (listing requirements for how to protect employees from hazards imposed by floor holes).
W hen
those standards are
applied to this case ,
the
gap left by the
trap door, which measured roughly 2.5 inches, would be considered a floor hole. As such, the hole should have been guarded
insofar as there was exposure, which there
wa s.

Ultimately, Respondent is
a victim of its decision to move the drying process indoors. While this
may
have been a safer move overall, 9
the move itself was not inherently safe. Respondent had an obligation to ensure that any new hazards imposed by the move were addressed. With respect to the gap left by the retracting trap door, the Court finds Respondent’s efforts to prevent exposure to the machinery below were insufficient. Accordingly, the Court finds the standard was violated and that Respondent’s employees were exposed to the hazard caused by the violation.

ii. Respondent Knew of the Hazardous Condition

“To establish knowledge, the Secretary must prove that the employer knew or, with the exercise of reasonable diligence, should have known of the conditions constituting the violation.”
Central Florida Equip. Rentals, Inc. , 25 BNA OSHC 2147 (No. 08-1656, 2016). To satisfy this burden, Complainant must show “knowledge of the
conditions
that form the basis of the alleged violation; not whether the employer had knowledge that the conditions constituted a hazard.”
Id.
“Although the Secretary has the burden to establish employer knowledge of the violative conditions, when a supervisory employee has actual or constructive knowledge of the violative conditions, that knowledge is imputed to the employer, and the Secretary satisfied his burden of proof without having to demonstrate any inadequacy or defect in the employer’s safety program.”
Dover Elevator Co. , 16 BNA OSHC 1281 (No. 91-862, 1993);
see also Dana Container , 25 BNA OSHC 1776 (No. 09-1184, 2015) (citing
Dover
for same proposition).

There is no serious dispute about Respondent’s knowledge of the hazardous condition.
As part of the daily inspection procedures, Respondent requires its managers to perform a daily visual inspection of the trap door. (Tr.
72–73 ; Ex.
C-23 ). Indeed, o ne of Respondent’s managers performed this inspection on the day of
[Redacted] ’ accident and noted the trap door was in place and in working order. (Tr.
73 ; Ex.
C-23 ). Thus, Respondent, th r ough its managers, was aware of
the gap left by the trap door. Respondent was also aware the conditions surrounding the trap door were wet and slippery and that employees crossed
over the
conveyor when only three people were assigned to dry vehicles. (Tr.
157–59 ). Respondent’s training
materials
also relay the hazards associated with working on or around conveyors, indicating that they “can be dangerous and even deadly” and “present the risk of conveyor entanglement.” (Tr. 65; Ex. C-17 at 14). This was echoed by Espinosa, who admitted that “it is possible for someone to slip on this wet surface and get their foot caught in the conveyor, even if they violate no safety rules.” (Tr. 159). Because Respondent’s managers were aware of the condition, the Court finds such knowledge is properly imputable to Respondent. Accordingly, the Court finds Complainant has made out a
prima facie
case of knowledge.

Though Respondent proffered a
defense of unpreventable employee misconduct
early in this case , it did not pursue that defense in its post-trial brief. Nevertheless, the Court shall briefly address the defense and illustrate why it does not apply.
To
prove this defense, an employer must show 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) .

With respect to its work rules, Respondent was only clear about one of them: do not step on the conveyor or trap door. While this
rule
is clear, and
was
clearly communicated ,
it did not adequately address the hazard imposed by the trap door hole.
As noted by Espinosa, it was acceptable for employees to step
over
the conveyor, especially when there was an odd number of dryers to wipe down a car. Although
Morales
said stepping over the conveyor was discouraged, there was no rule against it . For that matter, n either Espinosa nor
Morales
could articulate how
[Redacted]
violated the rules when he got his foot stuck in the trap door. (Tr.
174, 186–88 ). The Court finds Respondent’s claim of unpreventable employee misconduct must fail b ecause Respondent lacks rules that specifically govern the behavior Respondent claims to be
misconduct . .

Respondent’s claim of employee misconduct
also
fails because Respondent ’s enforcement history is mixed, at best. According to
Espinosa , Respondent has rules mandating the use of non-slip shoes but does not make any effort to enforce those rules.
(Tr. 161 ).

Likewise, the rule prohibiting stepping onto the conveyor appears to have been enforced only a single time, which occurred six months after the events of this case.
(Tr. 106–107; Ex. C-14).
A
progressive disciplinary program must be more than a “paper program”, requiring “evidence of having actually administered the discipline outlined in its policy and procedures.”
See, e.g.,
Connecticut Light & Pwr. Co. ,
13 BNA OSHC 2214 (No. 85–1118, 1989) (reprimand letters issued) ;
Pace Constr. Corp. ,
14 BNA OSHC 2216 (No. 86–758, 1991) (perennial verbal warnings ignored on a widespread basis) . Respondent’s managers testified that verbal warnings were given, but
also admitted
those
warnings were
not
tracked such that progressive discipline could be imposed in a meaningful way.

By moving the drying operation inside the car wash bay, Respondent knowingly brought its employees closer to the hazard imposed by the machinery located beneath the trap door. Respondent was aware of the hazard imposed by the machinery and knew that the area surrounding the trap door was slippery. Further, Respondent’s management was responsible for allocating employees to the drying area
based on volume and availability .
(Tr. 175).

So, when only three individuals were assigned to dry, Respondent could reasonably anticipate
one of those employees would cross over the conveyor, as
[Redacted]
did in this case.
Since
such an action was not prohibited by Respondent’s work
rules, and
given that neither Espinosa nor
Morales
could identify
what
[Redacted]
did wrong, the only reasonable conclusion is that Respondent knew or, at the very least, could have known of the violative condition.

iii. The Violation Was Serious

A violation is “serious” if there was a substantial probability that death or serious physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k). Complainant need not show that there was a substantial probability that an accident would
actually occur ; he need only show that if an accident occurred, serious physical harm could result. Phelps Dodge Corp. v. OSHRC , 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible injury addressed by a regulation is death or serious physical harm, a violation of the regulation is serious. Mosser Construction , 23 BNA OSHC 1044 (No. 08-0631, 2010);
Dec-Tam Corp ., 15 BNA OSHC 2072 (No. 88-0523, 1993).

After the accident,
[Redacted]
stated that he pulled his foot out of the hole, and it was just hanging there. (Tr. 34). As a result of his injuries,
[Redacted]
had to go to the hospital and
had been
out of work for over a year at the time of the hearing in this matter. (Tr.
56, 91 ). The Court finds
[Redacted] ’ injuries were sufficiently severe to characterize this violation as serious.

V. Penalty

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act requires the Commission give due consideration to four criteria: (1) the size of the employer’s business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the employer’s prior history of violations. Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury.
J.A. Jones Construction Co. , 15 BNA OSHC 2201 (No. 87-2059, 1993). It is well established that the Commission and its judges conduct
de novo
penalty determinations and have full discretion to assess penalties based on the facts of each case and the
applicable statutory criteria. Valdak
Corp ., 17 BNA OSHC 1135 (No. 93-0239, 1995);
Allied Structural Steel , 2 BNA OSHC 1457 (No. 1681, 1975).

In his determination of gravity, CSHO Guerrero assessed the foregoing violation as medium severity and high probability. This conclusion was based on the type of injuries suffered by
[Redacted]
and the fact that similarly situated employees worked around the trap door opening all day long , thereby increasing the likelihood of exposure . (Tr. 118). Because Respondent has over 8,000 employees, Complainant did not provide a discount for size, nor did it provide a discount for
history
due to Respondent receiving a serious citation in the previous five years. (Tr.
119 ). Complainant did, however, award a 15% reduction
for good faith
because Respondent had an “average written safety and health program.” (Tr.
119 ). The resulting penalty proposed by Complainant is $9,234. The Court agrees with the foregoing assessments and finds that they are supported by the record. Accordingly, a penalty of $9,234 shall be imposed.

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing Findings of Fact and Conclus ions of Law, it is ORDERED that:

1. Citation 1, Item 1
   is
   AFFIRMED, and a penalty of $9,234 is ASSESSED .

SO ORDERED

/s/ _______          P eggy S. Ball          Judge, OSHRC

Date: April 17, 2019

Denver, Colorado            

"

1 . Respondent
attempted to have the matter removed from Simplified Proceedings; however, that motion was denied by
Judge Schumacher
on
November 16, 2017.

2 . To
be
clear, the
move indoors did not expose employees
to car wash equipment like you would see at a drive-through car wash facility. Instead, as shown in the video, it appears Respondent used a portion of the bay that
formerly
housed
washing machinery but is now empty save for the conveyor system. (Exs.
C-13 at 16–19,
C-24, C-25).

3 . This method of drying cars can be observed in the training videos and on-site photographs taken by CSHO Guerrero. (Ex.
C-13 at 16–19, C-19, C-20).

4 . According to
Espinosa,
when drying used to occur outdoors, an employee was struck by a
customer, who had mistaken the accelerator for the brake. (Tr.
153).

5 . Respondent’s own training video recognize these mats as
additional
tripping hazards. (Tr.
160–61).

6 . At trial,
[Redacted]
clarified between
average cars per hour, which refers to the number of actual cars processed, and
line speed, which refers to the speed
(measured in cars/hour)
at which the conveyor is set. (Tr.
54).

7 . The Court expresses no opinion on the issue of whether the move indoors is inconsistent with industry standards.
The results of CSHO Guerrero’s internet research lack context,
and
it is unclear whether this particular insurance company’s position on working indoors at a car wash facility
contemplates the conditions at Respondent’s car wash facility.

8 . Contrary to Respondent’s claim, this case is nothing like
Evergreen Technologies . In that case, the citation was vacated because, even though a moving part was left unguarded, exposure to that part only occurred as a result of the employee intentionally “plac[ing] her body into the
Instron machine while it was operating.”
Evergreen Techs., Inc. , 18 BNA OSHC 1528 (ALJ Spies). Here, Respondent’s work practices placed its employees in a position to be inadvertently exposed to the machine’s rotating parts. [Redacted]’ exposure was
not
the result of
some ill-conceived attempt to retrieve a dropped item from behind a machine by reaching through it
while it was running; rather, it was the product of
the
ongoing performance of assigned job tasks.

9 . The Court expresses no opinion on the relative safety of either option. The Court’s concern is whether a hazard, as described in the standard, exists at Respondent’s workplace.