Bermudez & Longo, S.E. (ALJ decision, December 20, 1993)

Plain-English summary

OSHA inspected Bermudez & Longo's construction site in Guaynabo, Puerto Rico. The judge affirmed two serious grinder violations because an accessible bench grinder used by employees lacked a work rest and a safety guard, assessing $375 for each item. He vacated a third grinder item because the Secretary did not overcome evidence that grinding wheels were inspected and ring-tested at the company's warehouse before being sent to jobsites. The judge also affirmed a serious electrical-enclosure violation involving a junction box kept outdoors without adequate weather protection and assessed $1,125. An uncovered opening in a circuit-breaker panel was affirmed as other-than-serious with no penalty. Total penalties were $1,875.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.303(c)(2), 1926.303(c)(5), 1926.303(c)(7), 1926.405(e)(1), and 1926.405(b)(1).
• Outcome: Mixed. Four items were affirmed, one grinder-testing item was vacated, and $1,875 was assessed.
• Key point: Equipment need not be operating during an inspection when it remains available for employee use, but the Secretary still bears the burden on each distinct requirement.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL‘SAFETY AND HEALTH REVIEW COMMISSION
One LafayetteCentfe
1120 20th Street, N.\N. - 9th Floor
Washington, DC 200364419

SECRETARY OF LABOR
Complainant, *
v. OSHRC DOCKET
NO. 92-3132
BERMUDEZ & LONGO, S. E.
Respondent.

NOTICE OF DOCKETING
OF ADMINKIRATIVE MW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on November 19, 1993. The decision of the Judge will become a final order of the Commission on December 20, 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 December 9 1993 in order to ermit sufficient time for its review. See Commission’Rule 91, 29 C.F.Ef: 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
Oflice of the Solicitor, U.S. DOH.
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 havmg questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR THE CO

Date: November 19, 1993
DOCKET NO. 92-3132
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re '01181Trial Liti ation
Office of the So
%lcitor, U.S. DOc
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Robert Letianc Romero, Esquire
Martinez-Alvarez, Femandez, Paoli
Menendez,. Monroig
Suite 407
Centro De Seguros Building
Santurce,, PR 00907

Irvin Sommer
Chie f Administrative Law Jud e
Occupational Safety and Healt!I
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00017983263:02
 OCCUPAJ-~ONAL
SA~~N~~~‘~“c~E”,EW
Commission
One Lafayette Cents
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

SECRETARY OF LABOR,
.
.

Complainant,
.
.
v. .
. Docket No. 92-3132
.
BERMUDEZ & LONGO, S.E., .
.
.

Respondent.

Appearances:

VJane S. Brunner, Esq.
Roberto Lefranc-Romero, Esq.
U.S. Department of Labor
Santurce, Puerto Rico
New York, New York

For the Complainant
For the Respondent

Before: Administrative Law Judge Irving Sommer

This is a proceeding under Section 10(c) of the Occupa- tional Safety and Health Act of 1970, 29 U.S.C. section 651 & sea. J ("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 J pursuant to section 10(a) of the Act.
 - 2-

Respondent is a corporationwhich was engaged in
construction contracting and related activities. On May 12-15, 1992 f Bermudez & Longo's worksite at Road 165 and Road 28 Amelia Ward, Guaynabo, Puerto Rico was inspected by an OSHA compliance officer. Subsequently, on August 25, 1992, the company received two citations resulting from this inspection. Respondent filed a timely notice of contest to the citations
and penalties. A hearing was held on May 20, 1993, in Hato Rey, Puerto Rico. Both
parties were represented at the hearing and both parties have filed post-hearing briefs. No jurisdictional issues are in dispute. The matter is now before the undersigned for a decision on the merits.

Serious Citation 1, item la alleges:
Floor or bench-mounted grinder(s) were not provided with
work rests.

The Secretary alleges that Respondent failed to provide
work rests on a grinding machine. At the hearing on May 20, 1993, the compliance officer, Hipolito Maldonado, testified that
he observed a grinding wheel at Respondent’s construction site
that was not provided with work rests. The compliance officer
was accompanied during his inspection
by Respondent’s electrical
supervisor, Mr. Collazo, Respondent's engineer and electrical foreman, Mr. Nater, and Respondent's safety engineer, Mr. Diaz. The compliance officer noted that at the time of the inspection the grinding wheel was not in use. However, Respondent’s
management officials ostensibly acknowledged to Mr. Maldonado)
although there was some apparent disagreement, that the grinding wheel was used by Respondent's employees at least once a day to sharpen screw drivers and chisels.
 The compliance officer further testified that
Respondent's employees would come "within a few inches" when using the grinding wheel since the screw drivers and chisels being sharpened were only a few inches long.
The employees using the wheel could be exposed to the hazard that the wheel of the grinder could "grab" the screw driver or chisel being sharpened
and pull it into the wheel, resulting
in lacerations and possibly
an employee's hand being caught in the wheel, or resulting in the wheel breaking, which could lead to the employee's body being pierced with pieces of the grinding wheel (transcript, p. 7-13, P* 37-41). The compliance officer's testimony was also supported by photographic evidence (exhibit C-l).

            Respondent acknowledges that                        there was a bench           grinding

wheel at the worksite which was not provided with a work rest.
However, Respondent argues that the compliance officer did not see the grinding wheel being used by any of Respondent's employees. Furthermore, Respondent's safety engineer, Mr. Diaz,
testif ied at the hearing that he had ordered that the bench
grinding machine be removed from use at the project and taken
back to the warehouse to Put it in compliance with safety
regulations. However, Mr. Collazo, Respondent's electrical
supervisor, testified that though Mr. Diaz had indeed ordered the
machine not to be used further, Respondent's foreman, Mr. Nater, apparently kept it there for further use (transcript, p. 760 85, Respondent's brief, p. 2-4). In addition, Respondent argues that
even if the standard
was violated, none of Respondent's employees
were exposed to the hazard. Further, the
Respondent contends
that since the compliance officer did not see any of Respondent's employees using the grinding wheel, the hazard to which the
employees were allegedly exposed was only speculative
(Respondent's brief, p. 3-4).
 - 4-

           The totality of the                evidence concerning this                   citation

item establishes a violation of the standard as cited. Although the compliance officer did not see the grinding machine being used by Respondent's employees during his inspection, nonetheless case law merely requires a finding that a machine is in a violative condition and is accessible and available for use by the Respondent's employees.See Bechtel&m&uny, 7 BNA OSHC 1361 (NO. 13832, 1979), wesmrne . .
Dru. Inc. a 5 BNA OSHC
1457 (No. 15631, 1977). The Secretary has proposed an $1,125
total amended penalty for citation items Ia, lb, and lc. A
review
the hearing
of all the relevant factors, transcript, and
the official case record fully establishes that a penalty of
$375 is appropriate for citation item la.

. .
.
lolatlgn of 29 C.F.R. sect,lgn 1926.303(~)(s) Serious Citation 1, item lb alleges:
Abrasive wheels were not provided with safety guards to
retain fragments of the wheel in case of accidental
breakage.

The Secretary alleges that Respondent failed to provide safety guards on a grinding machine. At the hearing, Mr.
Maldonado testified that he observed that the same bench grinding
wheel as cited
in citation item la was not
provided with safety
guards to retain fragments of the wheel in the case of accidental breakage. The compliance officer noted that if the grinding
wheel broke while being used by one of Respondent's employees,
the employee's body could be pierced with pieces of the wheel
since the safety guards were missing. Mr. Maldonado testif ied
that the pieces from the wheel could"fragment like a rocket" as the grinding wheel revolved at 3,500 rpm (transcript, p. 130 16, P- 420 46). The Secretary further notes in his brief to prevent confusion that ” there were references by various
witnesses throughout the hearing to "tongue guards’ ’,
"retaining guards”, and *‘safety guards". As the compliance
officer testified,
these are simply different names for the same
thing" (Secretary’s brief, footnote 3 at page 8). The compliance officer's testimony was also supported by photographic evidence (exhibit C-l).

         Respondent counters that the                        bench grinding wheel                    did

have the required safety guard. Respondent maintains that its
assertion is supported by the Secretary’s exhibit C-l (Respondent’s brief, p. 4). However, Respondent's witness, Mr. Diaz, testified at the hearing that the tongue guard was missing from the machine (transcript, p. 81).

         A       preponderance             of     the credible          evidence           upholds         a

finding of a violation of the standard as cited. Under all the existing facts and circumstances herein, a penalty of $375 for citation item lb is consistent with the criteria set forth in section 17(j) of the Act.

                        .      .                       .

lol&lon gf 29 C.F.R. section 1926.303(c)(7)
Serious Citation 1, item lc
alleges:
Abrasive wheels were not inspected and ring-tested to ensure
that they are free from cracks or defects before mounting on grinding machines.

The Secretary alleges that Respondent failed to perform
an inspection and ring testing on a grinding machine. Mr. Maldonado testified at the hearing that he cited Respondent for a violation of the standard as cited on the same bench grinding wheel as cited in citation items la and lb. This standard requires that abrasive wheels be inspected and ring tested before mounting on grinding machines to ensure that they are free from cracks or defects.
 The compliance officer noted that the
inspection
required is a visual inspection.
He described ring testing as a
test where the wheel is hung by a piece of string and then hit
with the plastic handle of a screw driver in four different
places at 45 degree angles from each other to ascertain that the wheel does not have any internal cracks. Mr. Maldonado further testified that he questioned Respondent’s electrical supervisor, Mr. Collazo, and Respondent’s engineer and electrical foreman,
Mr I Nater, on
the inspection
the day of whether or not the grinding wheel had been inspected and ring tested. They answered
that the wheel had not been inspected or ring tested. They further indicated that they did not even know how to perform a ring test. The compliance officer also noted that Respondent’s employees were exposed to the hazard that the wheel could break
while being used and the fragments of the wheel could pierce an
employee’s body and seriously injure him (transcript, p. 1648, Secretary’s brief, p. S-10).

Respondent argues that the standard cited only requires
that a grinding wheel be inspected and ring tested to ensure that it is free from cracks and defects prior to being mounted on a
grinding machine. Respondent’s safety engineer,Diaz, Mr.
testified at the hearing that he had inspected the grinding wheel but had not ring tested it. Furthermore, though he could not specifically verify who ring tested this particular grinding wheel or when, as no records were kept or required to be kept regarding this, the company's regular procedure was to have all grinding wheels purchased, inspected and ring tested at the storage warehouse area prior to being sent out to be utilized (transcript, p. 78-82, Respondent’s brief, p- 4-5).

            Taking          into consideration all                  the record evidence and

credible testimony presented regarding this citation item, the
 L -
7

Secretary has failed to establish the existence of the recognized hazard as cited. Accordingly, since the Secretary has failed to prove a violation of the standard by a preponderance of the evidence, this citation item and proposed penalty are hereby vacated.

SectIon.
. . .
rloqs vlolatmn of 29 C.F.R. 192&4Os(~)(l)
Serious Citation 1, item 2 alleges:
Cabinets, cutout boxes, boxes, and panel-board
fittings, enclosures in damp or wet locations were not installed so as
to prevent moisture or
water from entering and accumulating
within the enclosures.

        The      Secretary        alleges             that Respondent        violated    the

standard that requires that electric junction boxes that are placed in damp or wet
locations shall be insulated so as to prevent moisture or water from entering within the enclosure.
The compliance officer testified at the hearing that during
his inspection he had observed a junction box, which was lying on top of a tire on a truck, partially on the tire and partially off the tire to the outside of the truck.
Mr. Maldonado also noted that the junction box contained electrical wiring and was located
outside where rain could get into
the box. The junction box was
not properly weather-proofed
as there were holes in the box which
were not covered, and there was no insulation.
The compliance officer further added that the junction box powered an ice-making
machine which Respondent’s employees utilized daily.
Responden t’s employees were the exposed
hazard of to electrocution because of the alleged violation of the standard as
cited (transcript, p. 52-64,
Secretary’s brief, p. 1143).
The compliance officer’s testimony was also supported by photographic evidence (exhibits C-2, C-3, and joint exhibit 1).
 - 8-

The Secretary
also addressed in his brief Respondent’s
argument that if a violation of the standard is determined to exist, the violation was caused by the compliance officer’s
action
box in order to take pictures of
of moving the junction
the alleged violation. The Secretary contends that this allegation was emphatically denied by the compliance officer at the hearing. In addition, even if the compliance officer had moved the junction box, the fact remains that the junction box
was in an outside location with no roof over the truck and there
still was a violation of the standard as cited (Secretary’s
brief, p. 12-13).

            Respondent                contends that              the standard             cited         was       not

violated. The electric junction box in question had been located over the interior tire of the double set of tires at the rear part of the trailer. This interior tire was about 8-10 inches inside the border of the body of the trailer, making it almost impossible for water to get
the box. intoIn addition,
Respondent argues
that the rubber tire on which the junction box
was placed served as an insulator. Further, the placement of the ice-maker in front of the junction box also protected it from
getting wet (transcript, p. 55-64, Respondent’s brief, p. 6-7).

            The        Respondent               also      strongly        asserted            that          if          a

violation was found to exist, the compliance officer created the violative condition. Respondent contends that the junction box
had been resting on the tire completely under the truck until Mr.
Maldonado’s inspection. During the inspection, the compliance officer moved the .junction box from its original position over the interior tire to the exterior edge of the outside tire. At this point, the compliance officer took pictures of the alleged
. ‘violation’ ’ (exhibits C-2 and C-3), which in no way reflected the actual existing condition or placement of the junction box prior to Mr. Maldonado's action of moving the junction box in order to take pictures of the
alleged violation (transcript, p.
55-64, p. 71-76, Respondent's brief, pa 6-7).

As to this citation item, I find that the Secretary has
established a violation of the standard by a preponderance of the evidence presented. The evidence further reflects that the Respondent knew or should have known of the hazard. The violative condition was readily visible and obvious. Accordingly, the citation and proposed penalty as amended are affirmed.

sect,lon.
. .
r vl~1-n pf 29 caFaRm 19~ 40Fi(b)(ll
Other Citation 2, item 1 alleges:
Unused openings in cabinets, boxes, and fittings were not
effectively closed.

The Secretary alleges that
Respondent failed to cover an unused opening in a circuit breaker panel. At the hearing Mr . Maldonado testified that at the time of the inspection he observed the circuit breaker panel with an unused opening not
covered. The compliance officer learned during the
inspection
from Mr. Nater and Mr. Collazo
that the unused opening had been
there for several days. In addition, Respondent's supervisory officials informed the compliance officer that the employees normally set the circuit breakers each morning to turn on the power for the worksite when they arrived and also turned off the power at the end of each workday as they left (transcript, p. 310 36 9 Secretary’s brief, p.
13-15). The compliance officer's
testimony was also supported by photographic evidence (exhibit C- 4) . Respondent argues that the standard cited was not violated. Further, the opening in question, i.e.
the unused opening in the circuit breaker panel, "is a hole so small that even intentionally, your small finger will not go through it and even if it did go through, there is no electric power behind it” (Respondent's brief, p. 7). The Respondent also asserts that the Secretary cited Respondent for a violation of an inapplicable standard,, as the standard cited is in the electrical section and does not apply to the oocurrence of cuts or bruises to employees. In addition, Respondent contends that even if a violation
was found to exist, Respondent's employees were not exposed to it (transcript, p. 6506Sj Respondent's brief, p. 7-8).

        The      record evidence       testimony relating
                                       and                                    to        this

citation fully demonstrate a violation of the standard as cited. The violation was obvious and discernible by mere observation. Consequently, an other violation has been established.

All findings of fact and conclusions of law relevant
and necessary to a determination of the contested issues have been found specifically 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. BE3ed upon the Findings of Fact, Conclusions of Law, and the entire record, it is hereby ordered:

1 Citation 1, item la, alleging a serious violation of 29 C1F.R. section 1926.303(c)(Z), i.saffirmed and a penalty of $375 is assessed.

2 Citation 1, item lb, alleging a serious violation of 29
C1F.R. section 1926.303(c)(5), is affirmed and a penalty of $375
is assessed.

3. Citation 1, item lc, alleging a serious violation of 29
   C.F.R. section 1926.303(c)(7), is vacated.

4 Citation 1, item 2, alleging a serious violation of 29 C:F.R. section 1926.405(e)(l), is affirmed and a penalty of
$1,125 is assessed.

5 Citation 2, item 1, alleging an other violation of 29 C.F.R. section 1926.405(b)(l), is affirmed and a penalty of $0 is assessed.

IRVING SaMMER
Judge, OSHRC
DATED: uov i 9 1393
Washington, D.C.