Fluidics/Poole & Kent Joint Venture

Plain-English summary

Fluidics/Poole & Kent Joint Venture performed mechanical work at a site in Collegeville, Pennsylvania. An employee removed the guard from a hand grinder to work in a confined area, and the ALJ credited the compliance officer's testimony that the employee used it without reinstalling the guard. Because the exposed blade could send material toward the employee's face and the foreman knew or should have known of the visible condition, the judge affirmed the serious item and assessed $375. On another task, an employee was soldering pipe without a fire extinguisher at hand. Even accepting testimony that another worker retrieved one within 10 to 15 seconds, the judge found that it was not immediately available for instant use. That item was affirmed as other-than-serious with no penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.300(b)(1) and 1926.352(d)
• Outcome: The grinder-guard item was affirmed as serious with a $375 penalty, and the fire-extinguisher item was affirmed as other-than-serious with no penalty.
• Key point: Required fire equipment must already be at hand for instant use, and a short retrieval time does not satisfy an immediate-availability requirement.

Full text (OSHRC public release)

                                           UNITED STATES OF AMERICA
                    OCCUPATIONAL      SAFETY    AND HEALTH REVIEW COMMISSION

I’ One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

 PHONE:
 COM (202) 60&51~
 FE (202) 6OG5100



              SECRETARY OF LABOR
                                 Complainant,
                        v.                                                    OSHRC DOCKET
                                                                              NO. 92-223 1
              FLUIDICS/POOLE        & KENT JOINT VENTURE
                                   Respondent.


                                    NOTICE OF DOCKETING
                             OF ADMINISTRATIVE LAW JUDGE’S DECISION
                   The Administrative Law Judge’s Re ort in the above referenced case was
              docketed with the Commission on July P6, 1993. The decision of the Judge
              will become a final order of the Commission on August 16, 1993 unless a
              Commission member directs review of the decision on or before that date. ANY
              PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
              COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
              Any such petition should be received by the Executive Secretary on or before
              August 5, 1993 in order to ermit sufficient time for its review. See
              Commission Rule 91, 29 C.e .R. 2200.91.

                 All further pleadings or communications       regarding this case shall be
              addressed to:
                                     Executive Secretary
                                     Occupational Safety and Health
                                      Review Commission
                                     1120 20th St. N.W., Suite 980
                                     Washington, D.C. 20036-3419
              Petitioning parties shall also mail a copy to:

                                     Daniel J. Mick, Esq.
                                     Counsel for Regional Trial Liti ation
                                     Office of the Solicitor, U.S. DOB,
                                     Room S4004
                                     200 Constitution Avenue, N.W.
                                     Washington, D.C. 20210
              If a Direction for Review is issued by the Commission, then the Counsel for
              Regional Trial Litigation will represent the Department of Labor. Any party
              having questions about review rights may contact the Commission’s Executive
              Secretary or call (202) 606-5400.
                                                     FOR THE COMMISSION

                                                      R”7p!            U&T,b/p                _
             Date: July 16, 1993                     Ray H. Darling, Jr.
                                                     Executive Secretary

DOCKET NO. 92-2231

NOTICE IS GIVEN TO THE FOILOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOB.
Room S4004
200 ConstitutionAve., N.W.
Washington, D.C. 202 10

Marshall H. Harris, Esq.
Re ional Solicitor
Ofke of the Solicitor U.S. DOL
14480 Gatewa Building
3535 Market J treet
Philadelphia, PA 19 104

James F. Sassaman, Director of
Safety
GBCA
P.O. Box 15959
36 South 18th Street
Philadelphia, PA 19103

Irvin Sommer
Chie P Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00102933785 :03
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
\ i
One Lafayette Centre
!;
1120 20th Street, N-W. - 9th Floor
Washington, DC 20036-3419

                                                                                                       F=tz(

PHONE:
COM (202) 6064100 COM 2c2i 506-5050
Frs (202) 606-5100 ns 202) 5065050

                                                            ..

   SECRETARY                     OF LABOR,                  ..

                     Complainant,

                                                            ..
                            v.                                     Docket No. 92-2231
                                                             .

   FLUIDICS, INC./THE POOLE &
    KENT COMPANY, AJV,
                                                            ..

                     Respondent.

                                                            ..


   Appearances:

                        Richard T. Buchanan, Esq.                           James F. Sassaman
                                    U.S. Department of Labor                36 South 18th Street
                                    Philadelphia, Pa.                       Philadelphia, Pa.
                                         For Complainant                            For Respondent


   Before: Administrative              Law Judge Irving Sommer


                                                 DECISION AND ORDER

                     This is a proceeding under Section 10(c) of the Occupational         Safety and Health Act *
    of 1970, 29 U.S.C. section 65 1 et seq., (the Act), to review citations issued by the
    Secretary of Labor pursuant to section 9(a) of the Act, and the proposed                         assessment of
    penalties therein issued, pursuant to section 10(a) of the Act.
                     Following an inspection of the Respondent’s business site at 1032 Black Rock Road,
    Collegeville, Pa., the Secretary of Labor issued two citations charging a serious violation of
    the standard at 29 C.F.R. 1926.3OO(b)(l), and an other than serious violation of the standard
    at 29 C.F.R. 1926.352(d).

2
A hearing was held in Philadelphia, Pemsyhh. NO jurisdictional issues are in
dispute, the parties having pleaded sufficient facts to establish that the Respondent is subject

to the Act and the Commission has jurisdiction of the parties and of the subject matter.

                                        DISCUSSION


       Alleged Violation of 29 C.F.R. 1926.3OO(b!(l)-Serious Citation no. 1, item 1
              The standard at 1926.300(b)(l)     states:
                 (b) Guarding.   (1) When power operated tools are designed to accommo-

date guards, they shall be equipped with such guards when in use.
The Secretary alleges that a respondent employee used a hand grinder with a fiber blade
with the guard removed exposing him to injury such as cuts, etc. The compliance officer
testified that on April 30, 1992 he observed a group of respondent employees doing duct
work, and upon closer observation noted a grinder on the floor which had no guard. He
spoke to Mr. Consorte, a steamfitter doing the work who identified the grinder as his, stating
he had removed the guard the previous day to be able to work in close quarters, and that
he had used it on April 30 without re-installing the guard. The compliance officer testified
that the use of the grinder without the guard subjected the employee to the hazard of being
struck in the face by flying material off the blade causing possible cuts and lacerations to
that area as well as eye injuries, and as such was a serious violation of the standard. He
stated that the violation was obvious and in full view of the respondent’s foreman working
in the general area, who knew or should have known of the violation. Conforte testified that
he had used the grinder on April 29 without the guard since he was working in close
quarters, but he had-not used it on April 30. The question which presents itself is which
version of the facts is the truthful one. I have had the opportunity of observing the
witnesses upon the stand and to weigh accordingly the credibility of their testimony. The
compliance officer testified in a frank and convincing manner and appeared to be truthful
and his testimony was sufficient to make out a prima facie case. Consorte did not impress
me with the credibility of his testimony which fluctuated and lacked the defmiteness
 3
associated with truth. I b&eve that his testimony that he had not used the Finder On L\pil
30 was made to serve his best interests and that of his employer, and 1 reject it- I IXI~~V~
his initial statement to the compliance officer on the very day he was questioned (April 30)
reflecting its use without a ward is the true picture of what happened therein. I find
that Consorte used the grinder without a guard, subjecting himself to possible serious
injuries, and that the respondent’s foreman knew or should have known of such hazard. The
totality of the evidence establishes a violation of 1926.3OO(b)(1). Under all the existing facts
and circumstances, a penalty of $375 for said violation is consistent with the criteria set
forth in section 17(j) of the Act.

         Alleged Violation of 29 C.F.R. 352(d)-Other than Serious Citation no. 2. item 1
                The standard at 1926.352(d) provides:
                Fire prevention.   (d) Suitable fire extinguishing equipment shall be immediately

available in the work area and shall be maintained in a state of readiness for instant use.
The Secretary alleges that the respondent violated this standard in that “Suitable fire
extinguishing equipment was not immediately available in the work areas where welding,
cutting or sweating was being performed.”
The compliance officer testified he observed a respondent employee “sweating the
joints of a pipe in the ceiling.” He further observed that there was no fire extinguishing
equipment for approximately 30 feet in either direction from where the work was being
performed. He further testified that the employee stated he usually had a fire extinguisher
in his tool basket, but it was not there at that time. During the discussion, another employee
standing there went down the hall “quite a distance and made a right turn into, I believe it
was a room, and - to-procure a fire extinguisher.” The compliance officer says he spoke at
“least a minute” to the employee doing the soldering and no extinguisher was brought. He
left and upon his return (he did not say how much later), there was one there. Paskill, the
employee doing the soldering testified that Abbott, the other employee at the scene went
for the extinguisher and got one in “no more than 15 seconds, ten, 15 seconds.” The
standard requires that such equipment be “immediately available”, and be maintained for
instant use”. The common meaning of immediate and instant implies “no delay whatsoever,
 4
as between request and response.” American Heritage Dictionary of the English Language,
New College Edition, 1976, Houghton Mifflin CO., p. 6%.
The standard in simple terms means what it says - it is obvious to any reasonable
person that fire fighting equipment to stem an incipient fire and prevent injury must be at
hand as soon as a fire occurs. In the instant case it is obvious such was not available
instantly. The compliance officer testified.that the employees were subject to the hazard of
bums should their clothing or the surrounding debris ignite. The hazard was openly visible
to the respondent’s foreman who was in the area. The preponderance of the credible
evidence demonstrates the respondent violated the standard at 1926.352(d). No penalty was
assessed.

                 FINDINGS OF FACT AND CONCLUSIONS                OF LAW
   All findings of fact relevant and necessary to a determination    of the contested issues

have been found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil
Procedure. Proposed findings of fact or conclusions of law inconsistent with this decision
are denied.

                                        ORDER
   Based upon the Findings of Fact, Conclusions of Law, and the entire record, it is

hereby ORDERED:
1. Citation no. 1, item 1 is AFFIRMED as a serious violation of 29 C.F.R.
1926.300(b)(l) with a penalty of $375 assessed.
2l Citation no. 2, item 1 is AFFIRMED as a non serious violation of
29 C.F.R. 1926.352(d)- with no penalty assessed. .
L

                                                         IRVING SmMER
                                                         Judge

DATED:
Washington, D.C.