The Specialist of the South, Inc.

Plain-English summary

The Specialists operated a small furniture repair, refinishing, and upholstery business using flammable and toxic materials. OSHA cited 39 serious violations, primarily involving fire and explosion hazards, and proposed $9,900 in penalties. An ALJ affirmed every serious item but assessed a combined penalty of $3,000 after considering the company's ten-employee size, financial condition, cooperation, abatement efforts, good faith, and lack of prior violations. The Commission found that the judge fairly balanced the statutory penalty factors and affirmed the $3,000 assessment. It encouraged the Secretary to arrange a manageable payment schedule because of the company's financial concerns. The embedded ALJ decision also affirmed nine other-than-serious items without penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1903.2(a)(1), 1910.22(a)(1), 1910.36(b)(8), 1910.37(b)(3), 1910.37(f)(2), 1910.37(f)(5), 1910.37(k)(2), 1910.37(q)(1), 1910.94(c)(i)(b), 1910.94(c)(3)(iii), 1910.94(c)(4)(i), 1910.94(c)(4)(ii), 1910.94(c)(5)(iii), 1910.94(d)(9)(i), 1910.94(d)(9)(iii), 1910.94(d)(9)(iv), 1910.94(d)(9)(v), 1910.94(d)(9)(vii), 1910.106(d)(3)(ii), 1910.106(d)(4)(i), 1910.106(d)(4)(iii), 1910.106(d)(4)(iv), 1910.106(d)(7)(iii), 1910.107(b)(5)(i), 1910.107(b)(6), 1910.107(c)(2), 1910.107(c)(6), 1910.107(d)(2), 1910.107(d)(4), 1910.107(e)(2), 1910.107(f)(1), 1910.107(f)(4), 1910.108(b)(1), 1910.108(c)(2)(i), 1910.108(c)(5), 1910.108(e)(2), 1910.108(f)(2), 1910.212(a)(3)(ii), 1910.213(c)(1), 1910.213(c)(2), 1910.213(c)(3), 1910.215(a)(4), 1910.215(b)(9), 1910.219(e)(1)(i), 1910.219(e)(3)(i), 1910.303(f), 1910.303(g)(2)(i), 1910.304(f)(5)(v), 1910.305(b)(1), 1910.305(g)(1)(iii), and 1910.305(g)(2)(iii)
• Outcome: Thirty-nine serious items affirmed with a combined $3,000 penalty; nine other-than-serious items affirmed without penalty.
• Key point: Penalty assessment must balance gravity against employer size, good faith, history, financial condition, and abatement efforts.

Full text (OSHRC public release)

Docket No. 89-2241

SECRETARY OF LABOR,

Complainant,

v.

THE SPECIALISTS OF THE SOUTH, INC.,

Respondent.

OSHRC Docket No. 89-2241

DECISION AND ORDER

BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

The only issue on review is whether Administrative Law Judge Edwin G. Salyers erred in
assessing a penalty of $3,000 for the 39 serious violations committed by The Specialists
of the South, Inc. ("The Specialists").

The Specialists is a small business located in Panama City, Florida, appearing without
counsel, or pro se. It has approximately ten employees, who repair, refinish, and
reupholster furniture.

Following an inspection arising from a complaint, the Secretary issued to The Specialists
a citation alleging 39 serious violations of standards primarily addressing fire and
explosion hazards. The Secretary proposed a penalty for item, totaling $9,900 altogether.

At the hearing, Judge Salyers afforded The Specialists every opportunity to present its
case. In his decision, the judge affirmed all 39 items[[1/]] in the serious citation and
assessed a combined penalty of $3,000.

As the judge stated in his decision, the Commission has the authority to assess penalties,
giving "due consideration" to "the size of the business of the employer
being charged, the gravity of the violation, the good faith of the employer, and the
history of previous violations."[[2/]] Section 17(j) of the Act, 29 U.S.C. {sec}
666(j). The judge considered these factors, particularly nothing that The Specialists: is
"struggling to survive and only recently began to show a profit"; has no history
of inspections (and therefore no history of violations); "cooperated fully with the
compliance officers and has taken significant steps to abate"; and
"impressed" him with its "sincerity." Balanced against The
Specialists' small size, apparent good faith, and lack of previous violations, are the
significant number of violations and their serious nature.

We have considered the evidence relevant to the section 17(j) penalty factors, as well as
the decision of the judge, who had the opportunity to observe the witnesses at the
hearing. We conclude that the judge fairly applied the penalty factors to the facts of
this case and that the penalty assessed by the judge is appropriate. Therefore, we affirm
the judge and assess a penalty of $3,000 for the 39 serious items. Recognizing the
financial concerns of The Specialists, we encourage the Secretary, to whom this penalty
"shall be paid" under section 17(1) of the Act, 29 U.S.C. {sec} 666(1), to work
the company to arrange a manageable payment schedule.

The Secretary has filed with the Commission a "Motion to Sever and for Entry of Final
Order." By affirming the judge's penalty assessment, we have disposed of the only
issue on review. Therefore we deny the motion to sever as moot.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: November 7, 1990

SECRETARY OF LABOR,

Complainant,

v.

THE SPECIALISTS OF THE SOUTH, INC.,

Respondent.

OSHRC Docket No. 89-2241

APPEARANCES:

Cynthia Welch Brown, Esquire, Office of the Solicitor, U.S. Department of Labor,
Birmingham, Alabama, on behalf of complainant.

Mr. Richard Adams, pro se, Lynhaven, Florida, on behalf of respondent.

DECISION AND ORDER

SALYERS, Judge: Respondent operates a business located on East Sixth Street in Panama
City, Florida, where it is engaged in stripping, refinishing and reupholstering various
types of furniture (Tr. 14). Respondent's operations are conducted in a building
containing a stripping tank, a spray painting room and a drying area as depicted in
Exhibit C-1. The building is approximately 200 feet long by 50 to 60 feet wide (Tr. 15).
In connection with its operations, respondent utilizes a variety of paints, varnishes and
stripping solutions which are admittedly flammable and contain toxic substances (Tr. 69).

Respondent's facilities were inspected by compliance officers John Ruggles and Joel
Broadway[[1]] on February 22 and 23, 1989, under the provisions of the Occupational Safety
and Health Act of 1970 ("Act") (29 U.S.C. 651, et seq.) (Tr. 35). As a result of
this inspection, respondent was issued, on June 13, 1989, a serious citation consisting of
39 items and an "other" citation consisting of 9 items. The Secretary proposed a
total penalty of $9,900 for the serious charges.

At the hearing in this matter, respondent was represented by Richard Adams, acting pro se
(Tr. 7). Mr. Adams is the husband of Logan G. Adams, respondent's president. Both Mr. and
Mrs. Adams participated in the hearing and were afforded all rights and privileges in the
presentation of respondent's case. To expedite the hearing, Mr. and Mrs. Adams, after
being placed under oath, were allowed to make comments and give testimony concerning each
item of the Secretary's evidence as the hearing progressed.

The Secretary's evidence consisted of the testimony of the two compliance officers, the
testimony of one current and one former employee of respondent and 36 photographs.  
Respondent's evidence consisted of the testimony of Mr. and Mrs. Adams and one exhibit
relative to its financial circumstances.

The material facts of this case are not in serious dispute and the factual allegations set
in the Secretary's complaint are fully supported by the Secretary's evidence. Based upon
the entire record, the following findings of fact are made:

SERIOUS CITATION 1

1. Respondent is engaged in the refinishing, repair and upholstery of various types of
   furniture and has employees who handle or otherwise work upon goods that have moved in
   commerce.

2. Respondent employs approximately ten employees in its operations, some of whom are
   engaged in the stripping and refinishing of furniture around and in the areas of the dip
   tank, the spray booth and respondent's drying room. In connection with these operations,
   respondent utilities solvent paint, and lacquers which are flammable and toxic.

3. At the time of the Secretary's inspection, the respondent failed to proved employees
   working in the spray room and drying room with at least two means of egress in the event
   of fire or other emergencies. This circumstance resulted from the fact that one doorway in
   this area was blocked by furniture which had been stacked in a manner which prevented
   access to this exit (Tr. 38-42).

4. The fire door leading from the spray room was not self closing nor did it swing with
   the way of travel (Tr. 52-59).

5. In the event of fire, employees working in the spray room would have to cross in front
   of the face of the spray booth, a high hazard area, to exit the area. The path of travel
   was not shielded by suitable partitions or other physical barriers (Tr. 59-63).

6. The double door exit from the drying room had a sliding-bolt lock on one of the doors
   and a spring-loaded lock on the other which could result in the trapping of employees in
   the drying room in the event of fire (Tr. 70-74).

7. The east and west walls and ceiling of the booth in the spray room were constructed of
   sheet rock supported by wood framing rather than non- combustible materials (Tr. 74-76).

8. Overspray filters were not installed in the spray booth nor were there any detection
   devices installed on the booth to insure that a proper air velocity was maintained (Tr.
   77-82).

9. In the spray room, the following conditions existed:

a. The north wall of the room was constructed of sheet rock and wood framing (combustible
materials) (Tr. 84).

b. Windows in the south wall did not have fire shutters (Tr. 85).

c. The exhaust duct of the spray booth passing through the west wall was framed with
combustible material (wooden 2 x 4's) (Tr. 88-89).

10. Employees working around the dip tank containing Unocal Blend 26017, a flammable
    liquid, were:

a. Not instructed as to the hazards of this chemical and the means to render first aid in
the event of exposure (Tr. 93, 121);

b. Not provided with and required to wear protective gloves, aprons and goggles (Tr. 103,
122-124); and

c. Not provided with an immediate source of cold water to wash off splashes to the body or
eyes (Tr. 108-111).

11. Flammable and combustible liquids storage cabinets located in the spray room were not
    labeled with appropriate warning signs nor did they have self- closing fire doors or
    raised sills or ramps at least four inches in height (Tr. 115- 116, 161).

12. Electrical wiring and equipment used in the storage area for flammable liquids were
    not appropriate nor was the area provided with either a gravity or mechanical exhaust
    ventilation system (Tr. 166-171).

13. No signs were provided in this storage area to prohibit open flames or smoking in the
    area (Tr. 174).

14. The average air velocity over the open face of the spray booth was less than 100
    linear feet per minute nor was the face of the booth protected by a deflector or curtain
    (Tr. 20-23, 177-178).

15. An electric motor on the spray booth was not an approved explosion-proof type nor were
    the lighting and associated wiring in the booth approved for this type of operation (Tr.
    179).

16. In the drying room, lighting fixtures and associated wiring, together with a duplex
    receptacle outlet on the south wall, were not of an approved explosion proof type (Tr.
    183-185).

17. The drying room was not provided with mechanical ventilation to restrict or diminish
    the build-up of flammable vapors (Tr. 187).

18. In the spray room, the door of flammable liquid storage cabinet was broken and would
    not close rendering the cabinet useless for its intended purpose (Tr. 196-197).

19. The spray booth was not protected by a sprinkler system to provide water distribution
    throughout the entire booth since the sprinkler system was located above the booth ceiling
    and could not provide water distribution inside the booth (Tr. 202-203).

20. The dip tank in the spray room, which contained a flammable liquid, was not provided
    with mechanical ventilation to limit vapor areas to the smallest practical space nor was
    the tank protected with an automatic extinguishing device to protect against fire and
    explosions (Tr. 206-208, 213-214, 216).

21. A circular hand-fed ripsaw located in the repair area of respondent's establishment
    was not guarded by an automatically adjusting hood which enclosed the saw above the table
    and above the material to be cut. This saw was also not provided with a spreader or
    non-kick-back fingers to protect employees using the saw (Tr. 225-230).

22. Work rests on grinding machine located in the repair area were not properly adjusted
    to prevent employee injury nor was there an adjustable tongue or safety guard installed at
    each end of a bench grinder in this area (Tr. 231-235).

23. Horizontal belts on a bench grinder in the repair area and a vertical belt on the
    spray booth exhaust fan were not enclosed by guards to prevent injury to employees (Tr.
    236-239).

24. In the spray room, a flexible electric cord was substituted for fixed wiring to
    provide power for spray booth lighting; a flexible cord was run through a hole on the
    north wall; and a flexible cord was attached to wooden joists and the wooden frame of the
    spray booth (Tr. 241-246).

25. Flexible electric cords were used in the flammable liquids storage area to power a
    light fixture as a substitute for fixed and permanent wiring (Tr. 246-248).

26. A Columbia model bench grinder in the repair area was not grounded to prevent
    electrical shock (Tr. 248).

27. An unused opening in the circuit breaker panel located in the repair area was not
    closed (Tr. 249-250).

OTHER CITATION 2

28. The OSHA notice informing employees of the protections and obligations provided in the
    Act was not posted at respondent's work site (Tr. 254).

29. Areas in the spray room, liquid storage room and upholstery room were not kept clean
    and orderly or in a sanitary condition (Tr. 256-259).

30. The building fire exits were not marked by readily visible signs (Tr. 261).

31. The dip tank in the spray room was not equipped with a properly trapped overflow pipe
    leading to a safe location outside the building (Tr. 269).

32. In the repair area, branch electrical circuits were not identified in the circuit
    breaker box (Tr. 272).

33. Live electrical parts were not guarded against accidental contact:

a. A receptacle outlet in the president's office did not have a cover (Tr. 274); and

b. The screwing terminals in the plug of a bench grinder located in the repair area did
not have a protective covering (Tr. 274).

34. An extension cord used in the repair area to power a table saw had its outer
    insulation broken away from its plug (Tr. 275-276).

CONCLUSION OF LAW

1. Respondent is an employer engaged in a business affecting commerce within the meaning
   of section 3(5) of the Act. The Occupational Safety and Health Review Commission has
   jurisdiction of the parties and subject matter in this case.

2. Respondent was in serious violation of 29 C.F.R. {sec} 1910.36(b)(8); 1910.37(b)(3);
   1910.37(f)(2); 1910.37(f)(5); 1910.37(k)(2); 1910.94(c)(i)(b); 1910.94(c)(3)(iii);
   1910.94(c)(4)(i); 1910.94(c)(4)(ii); 1910.94(c)(5)(iii); 1910.94(d)(9)(i);
   1910.94(d)(9)(iii); 1910.94(d)(9)(iv); 1910.94(d)(9)(v); 1910.94(d)(9)(vii);
   1910.106(d)(3)(ii); 1910.106(d)(4)(i); 1910.106(d)(4)(iii); 1910.106(d)(4)(iv);
   1910.106(d)(7)(iii); 1910.107(b)(5)(i); 1910.107(b)(6); 1910.107(c)(2); 1910.107(c)(6);
   1010.107(d)(2); 1910.107(d)(4); 1910.107(e)(2); 1910.107(f)(1); 1910.108(b)(1);
   1910.108(c)(5); 1910.108(e)(2); 1910.108(f)(2); 1910.213(c)(1); 1910.213(c)(1);
   1910.213(c)(1); 1910.213(c)(2); 1910.213(c)(3); 1910.215(a)(4); 1910.215(b)(9);
   1910.219(e)(1)(i); 1910.219(e)(3)(i); 1910.304(f)(5)(v); 1910.305(b)(1) and
   1910.305(g)(1)(iii).

3. The foregoing violations were "serious" within the meaning of section 17(k)
   of the Act since they created a ability that death or serious injury could result to
   employees exposed to these conditions.

4. Respondent was in nonserious violation of 29 C.F.R.{sec} 1903.2(a)(1); 1910.22(a)(1);
   1910.37(q)(1); 1910.107(f)(4); 1910.108(c)(2)(i); 1910.212(a)(3)(ii); 1910.303(f);
   1910.303(g)(2)(i); and 1910.305(g)(2)(iii).

THE PENALTY

The Commission is the final arbiter of penalties in all contested cases. Secretary v.
OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). The Commission is required
by section 17(j) of the Act to give "due consideration" to the size of the
employer's business, the gravity of the violation, the good faith the employer, and the
history of previous violations in reaching an appropriate penalty.

The respondent in this case is a small business with ten employees. Its financial
statements reflect it is struggling to survive and only recently began to show a profit.
Respondent urges that imposition of the full penalty proposed by the Secretary would
severely impair its ability to continue operations.

It is noted that respondent has no history of previous inspections by the Secretary.
During the Secretary's inspection, respondent cooperated fully with the compliance
officers and has taken significant steps to abate the violations called to its attention.
Respondent is in the process of converting its operations to a utilization of water-based
paints and non-flammable stripper which will eliminate the hazard of fire and/or
explosions. Respondent also plans to install new equipment and electrical wiring. It is
estimated an investment of $30,000 will be required to accomplish the required changes and
respondent is seeking an SBA loan for this purpose. (See J-19, pages 2 and 3.)

This court was impressed with the sincerity of respondent as expressed during the hearing
and is persuaded that respondent now realizes its responsibilities under the Act and will
comply with its provisions in the future. It is concluded that a penalty of $3,000 is
appropriate under the circumstances of this case.

ORDER

Based upon the foregoing, it is ORDERED:

1. Serious Citation 1, Items 1 through 36, are affirmed with a penalty of $3,000 assessed.

2. Other Citation 2, Items 1 through 9, are affirmed with no penalty assessed.

Dated this 15th day of May, 1990.

EDWIN G. SALYERS

Judge

FOOTNOTES:

[[1/]]As demonstrated by the remainder of the judge's decision, the "Order"
portion mistakenly refers to "Items 1 through 36."

[2/]]We note that under section 17(b) of the Act, 29 U.S.C. {sec} 666(b), an employer must
be assessed a penalty for a serious violation.

[[1]]Broadway is an industrial hygienist and his participation in the inspection was
limited to Item 21 of Serious Citation 1 dealing with air flow over the open face of the
paint spray booth.