Action Craft, Inc. (ALJ decision, July 26, 1993)

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.

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 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).

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 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

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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