Action Craft, Inc.
Penalties reduced for eight manufacturing violations
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This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Action Craft manufactured small fishing boats with about 18 employees at a facility in Cape Coral, Florida. OSHA cited eight serious conditions involving storage-area load limits and railings, dispensing flammable liquids, a modified forklift, and guarding on a cylinder machine, bandsaw, and bench grinder. The company did not dispute the factual conditions and limited its contest to the penalties. Its argument that OSHA had not previously told it about the requirements failed because employer knowledge concerns awareness of the facts, not prior knowledge of the regulation. The ALJ affirmed all eight items. He reduced each proposed $375 penalty to $200 because the company was small, had no prior inspection history, cooperated fully, corrected every condition promptly, showed a commitment to safety, and faced financial difficulty. The total penalty was reduced from $3,000 to $1,600.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1910.22(b)(1), 1910.23(c)(1), 1910.106(e)(2)(iv)(V), 1910.106(e)(6)(ii), 1910.178, 1910.212(a)(1), 1910.213(i)(1), and 1910.215
- Outcome: All eight serious items were affirmed, but the total proposed penalty was reduced from $3,000 to $1,600.
- Key point: An employer need not know the wording of an OSHA standard to have knowledge of visible workplace conditions that violate it.
Full text (OSHRC public release)
/diGbY UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH RE.VIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM (202) 60&5060
Ers (202) 6064050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0129
ACTION CRAFT, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on June 24, 1993. The decision of the Judge
will become a final order of the Commission on July 26, 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 etition should be received by the Executive Secreta on or before
July 14, 1B93 in order to ermit sufficient time for its review. 7 ee
Commission Rule 91, 29 8 .F.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. 20036-34 19
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
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 rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMbkfSSION
Date: June 24, 1993
DQCKET NO. 93-0129
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Ms. Bobbye D. Spears
Re ional Solicitor
Of&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309
Mr. John Guard, Vice-President
Action Craft, Inc.
2603 Andalusia Boulevard
Cape Coral, FL 33909
Edwin G. Salyers
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00106492754:04
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, NE., SUITE 240
ATLANTA, GEORGIA 30309-3 119
PHONE FAX
COM (404)347-4197 COM (404) 347-0113
FTS (404) 347-4197 f=Ts (404) 347-0113
SECRETARY OF LABOR, ..
Complainant, ..
..
v. .. OSHRC Docket No. 93429
..
ACTION CRAIT, INC., ..
.
.
Respondent. ..
APPEARANCES:
Stephen Alan Clark, Esquire Mr. John E Guard
Office of the Solicitor Vice-President
U. S. Department of Labor Action Craft, Inc.
Fort Lauderdale, Florida cape Coral, Florida
For Complainant For Respondent Ro Se
Before: Administrative Law Judge Edwin G. Salyers
DECISION AND ORDER
The respondent, Action Craft, Inc., manufactures small draft fishing boats at a facility
in Cape Coral, Florida. It employs approximately eighteen people in this manufacturing
operation.
On June 18, 1992, Compliance Officer S. J. Martin inspected respondent’s operation
under the provisions of the Occupational Safety and Health Act (29 U.S.C. 5 651, et seq.).
During the course of this inspection, Martin observed conditions which he believed
constituted violations of the standards promulgated under the Act and on September 24,
1992, the Secretan: * issued a serious citation comprised of the following eicht items:’
Item 1
A violation of 29 C.F.R. 8 1910.22(b)(l) resulting from respondent’s failure to post
load limit signs in a storage area located above the restroom and breakrooms in
respondent’s facility.
Item 2
A violation of 29 C.F.R. 0 1910.23(c)(l) for respondent’s failure to guard with
standard railings the open sides of the overhead storage area to protect employees from fall
hazards.
Item 3
A violation of 29 C.F.R. 9 1910.106(e)(2)(iv)(V) for respondent’s failure to use an
approved self-closing valve on containers from which flammable liquids were dispensed.
Item 4
A violation of 29 C.F.R. 0 1910.106(e)(6)@) for respondent’s failure to electrically
interconnect the nozzle and the container when dispensing flammable liquids from 5%gallon
drums.
Item 5
A violation of 29 C.F.R. 8 1910.178 for operating a powered industrial truck which
had been modified by adding extensions to the forks without the manufacturer’s approval.
Item 6 -
A violation of 29 C.F.R. 0 1910.212(a)( 1) for respondent’s failure to provide guarding
on the ingoing nip points of a cylinder machine.
’ Respondent was also issued two “other” items which were not contested and have become final orders of
the Review Commission.
2
Item 7
A violation of 29 C.F.R. 5 1910.213(i)(l) for respondent’s failure to enclose with
guarding the non-working portions of the blade of a bandsaw used in its manufacturing
process.
Item 8
Aviolation of 29 C.F.R. 8 1910.215 for respondent’s failure to properly guard a bench
grinder in the woodshop area.
The Secretary proposes a penalty of $375 for each of the above described violations.
On October 8,1992, the respondent filed its notice of contest limited to the penalties
assessed for each of the above described items. By letter dated October 17, 1992,
respondent again indicated an intent to contest the penalties but raised some question as to
whether the charge with respect to item 2 (the guarding of the open sides of the storage
area) was proper. In an undated answer to the complaint received by the Review
Commission on December 16, 1992, respondent raised a defense that it lacked knowledge
of any of the alleged violations contained in the citation.
This matter came on for hearing before the undersigned in Tampa, Florida, on
May 6, 1993. Mr. John E. Guard, an officer of respondent corporation, represented the
respondent acting pro se.
Since it did not appear that respondent was disputing the factual allegations set forth
in the body of the citation, this circumstance was verified by the court at the hearing (Tr.
14-27).
3
Respondent’s principal defense at the hearing was that respondent lacked knowledge
that my of the items charged
L constituted a vi&km of the cited standxd~. Rq~&n:
urged that it had not been furnished notice of the
I requirements by the Occupational Safety
and Health Administration prior to the inspection. This defense, of course, is untenable
since the Secretary is not required to advise employers of the Act’s requirements prior to
making an inspection. The knowledge element of a charge relates to an awareness of the
facts which constitute a violation of the standard and not the employer’s knowledge of the
standard’s requirements. Shaw Corzstruction, Inc., 6 BNA OSHC 1341, 1978 CCH OSHD
ll 22,524 (No. 3324, 1978). Since all of the items cited were in plain view, the respondent
should have known of these conditions or could have attained such knowledge through the
exercise of reasonable diligence. Waker TowingCorp., 14 BNA OSHC 2072, 1991 CCH
OSHD ll 29,239 (No. 87-1359, 1991).
The sole issue in this case is whether or not the penalties proposed by the Secretary
are appropriate under the circumstances of this case. In determining penalties, the Review
Commission is required by section 17(j) of the Act to give due consideration to the size of
the business of the employer, the gravity of the violations, the good faith of the employer,
and the history of previous violations. These factors were initially considered by the
compliance officer in arriving at the proposed penalties (Tr. 37.38), and full allowances were
granted except in the case of good faith.
The Review Commission is the final arbiter in determining appropriate penalties.
Nacirema OperatingCo., 1 BNA OSHC 1001, 1971-73 CCH OSHD li 15,032 (No. 4, 1972).
While the Secretary’s penalties were computed according to the guidelines set forth in the
4
agency’s operating procedures, this court believes, upon consideration of the full
circumstances, that a further reduction of penalties is approp+t~.
Respondent is a small company and has not been previously investigated by the
Secretary. The compliance officer reported that respondent cooperated fully during the
course of the inspection and immediately corrected all items brought to its attention (Exhs.
R-1 thru R-11; Tr. 39). This court was impressed with the sincerity of respondent during the
hearing and believes that respondent is fully committed to an effective safety program. It
is also indicated that this company has suffered financial setbacks and is struggling to survive
under the current economic conditions (See Exhs. R-16 thru R-22). In view of these
circumstances, this court believes a penalty of $200 for each of the cited items is appropriate
and this amount will be assessed.
The foregoing will constitute the findings of fact and conclusions of law in accordance
with Rule 52 of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing, it is hereby ORDERED:
Serious Citation No. 1, items 1 through 8, are affirmed and a total penalty of $1,600
is assessed. .
/s/ Edwin G. Salvers
EDWIN G. SALYERS
Judge
Date: June 14, 1993
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