Pit-Stop, Inc. (Uniroyal Pitstop)

Plain-English summary

Pit-Stop, Inc., operating as Uniroyal Pitstop in Midwest City, Oklahoma, ran an automotive shop where workers used floor pits about 3 feet wide, 5 feet deep, and 10 feet long to reach the underside of vehicles for oil changes and grease jobs. OSHA cited the shop after an inspection found several of these pits unguarded. At the start of the hearing the parties partially settled: the Secretary reclassified three items to "other" than serious with no penalty, and the company dropped its contest of a second citation, leaving only the unguarded-pit item for decision. Administrative Law Judge Paul L. Brady found that an open pit with a slippery surrounding floor exposed employees to a fall of 5 feet onto corrugated metal that could cause death or serious injury. Although the company had bought guarding and later installed it, the pits were open during the inspection, so the serious violation was affirmed. The judge assessed a $100 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.23(a)(8) (litigated); items settled or uncontested under § 1910.147, § 1910.304(f)(4), § 1910.1200, § 1903.2(a)(1), and § 1910.215
• Outcome: The contested floor-hole item was affirmed as serious with a $100 penalty; three items were reclassified to non-serious with no penalty by agreement, and a second citation was affirmed after the company withdrew its contest.
• Key point: Buying guarding is not compliance; the hazard exists as long as the pit is open, so an unguarded service pit is a serious violation even if guards are installed later.

Full text (OSHRC public release)

                                    UNITED STATES OF:AMERICA

~~=sGs
She, OCCUPATIQNAL SAFETY AND HEALTH REVIEW COMMisSION
One Lafayette C8ntm
1120 20th Stteet, N.\N. - 9th Floor
Washington, DC 20036-3419

      SECRETARY OF LABOR
                  Complainanh
            v.                                                        OSHRC DOCKET
                                                                      NO. 93-1295
      UNIROYAL PITSTOP
                   Respondent.


                             NOTICE OF DOCKETING
                       OF ADMINISTIUSTIVE L4W JUDGE’S DECISION
           The Administrative Law Judge’s Report in the above referenced case wu
      docketed with the Commission on June q, 1994. The decision of the Judge
      will become a final order of the Commission on July 25,19!M unless a
      Commission member directs review of the decision on or before that date, ANY -
      PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THl3
      COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
      Any such etition should be received by the Executive Secre       on or More
      July 13? 1&I4 in order to ermit sufEcient time for its review.7 et
      Co-ion       Rule 91,29 t?.F.R. 2200.91.
         All further pleadings or communications regarding this case shall be
      addressed to:
                               Executive Secretary
                               Occupational Safety and Health
                               Review Commission
              n                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 IAi ation
                               OfEice 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
      having questions about review nghts may contact the Commission’s Executive
      Secretary or call (202) 606-5400.
        6
                                               FOR THE COMMISSION


     Date:. June 23, 1994
                                               Exkutive   Se&&y

DOCKETNO. 93-1295
NOTICE IS GIVEN TO THE FOLLOWING:

   Daniel J. Mick, Esq.
   Counsel for Re bmil Trial Liti ation
   Office of the Soee‘&or, U.S. D&
   Room S4004
   200 Constitution Ave., N.W.
   Washington, D.C. 20210



   James E. White, Esq.
   Re l onal Solicitor
   O&e of the Solicitor U S DOL
   525 Griffin Square Blhg.,&ite 501
   grif& gy5yb$treets




   Mr. Carl R. Smith, President

.. Pit-Stop, Inc.
422 North Air De ot Boulevard
Midwest City, 0 2 73110

   Paul L Brady
   Administrative Law Jud e               .
 . Occupational Safety an (BHealth
    Review Commission
   Room 240
   1365 Peachtree Street, N.E.
   Atlanta, GA 30309 3119




   00108739855:06

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET. NE , SUITE 240
ATLANTA. GEORGiA 30309-3119

PHONE. FAX
COM (404)347497 COM (404j j&‘-C’!:
FTS (404) 347497 FTS (404) 34:‘-.y3

SECRETARY OF LABOR,

               Complainant,

               v.                                                  OSHRC Docket No. 934295

PIT-STOP, INC.,

               Respondent.

APPEARANCES:

      Daniel Curran, Esquire                                      Mr. Carl R Smith            4
        Office of the Solicitor                                       Pit-stop,    Inc.
        V. S. Department of Labor                                     Midwest   City, Oklahoma
       -Dallas, Texas                                                        For Respondent Jb Sk
              For Complainant

Before: Administrative Law Judge Paul L Brady

                                DECISION AND ORDER                                                  -3


     This proceeding is brought pursuant to section 10 of the Occupational Safety and

Health Act of 1970 (Act) to contest two citations issued by the Secretary of Labor
(Secretary) pursuant to section 9(a) of the Act.
At the beginning of the hearing, the parties entered into an agreement in partial
settlement of the issues pending before the Occupational Safety and Health Review
Commission (Commission). The Secretary agreed to amend items 2, 3 and 4 of Citation
No. 1 to allege “other” than serious violations with no penalties proposed. Respondent,
 Pit-Stop, Inc. (Pit-Stop), agreed to withdraw its notice of contest as to Citation No. 2. A
a result of the agreement, only item 1 of Citation No. 1, alleging a violation of 29 C.F.R.
8 1910g?3(a)(8),remained at issue.
The standard at 5 1910.23(a)(8) requires:
Every floor hole into which persons can accidentally walk shall be guarded by
either:

                 (i) A standard railing with standard toeboard on all exposed
                 sides, or

                 (ii) A floor hole cover of standard strength and construction.
                 While the cover is not in place, the floor hole shall be
                 constantly attended by someone or shall be protected by a
                 removable standard railing . . .
                                            l




       The alleged violation is described in the citation as follows:
       Floor holes, into which persons could accidentally walk, were not guarded by
       standard railings with standard toeboards on all exposed sides or by floor hole
       covers of standard strength and construction:
                                                                 8 .
              In the shop area: bay 3,4, and 5 where covers were not placed
              over the floor holes measuring 3 feet wide by approximately 10
              feet long and 5 feet deep where employees go to do oil changes
              and grease jobs on cars and trucks, exposing employees to the
              hazard of falling into this operation.

       Gerald Young, compliance officer with the Occupational safety and Health
Administration (OS-IA), conducted the inspection which gave rise to issuance of the
citations. He explained that the
                             . openings were setice pits used by employees to gain aqess
to the underside of motor vehicles. The pits, which were used to drain engine oil and grease
vehicles, measured 3 feet wide,
                           .    5 feet deep and approximately 10 feet long (Tr. 19). He
noted the floor in the area of the pit was slippery (Tr. 20). Young testified that adequate
guards were provided for several pits and that Kerry Smith, a Pit-Stop official, told him that

. “it was a matter of time before the guards would be available to the other pits as well” (Tr.
28)0
Jerry Hill, a Pit-Stop employee at the time of the inspection, testified about Pit-Stop’s
efforts to provide safe work conditions. Included was a tour of a General Motors plant to

                                                2

seek feasible methods to guard the pits (Tr. 59-63). Hill also stated there were guards at
the end of the pits. Although the inspector agreed, he pointed out there were gaps between
the guards (Tr. 70). 8
Carl Smith, president of Pit-Stop, testified. that the necessary guarding had been
purchased but had not been installed (Tr. 71, 73). While his testimony was not refuted and
guards were subsequently installed, the pit was open at the time of the inspection.
The standard was violated as alleged.
Section 17(k) of the Act provides as follows:

   For purposes of thissection, a sefious violation shall be deemed to exist in a
   place of employment if there is a substantial probability that death or serious
   physical harm could result from a condition which exists, or from one or more
   practices, means, methods, operations, or processes which have been adopted
   or are in use, in such place of employment unless the employer did not, and
   could not with the exercise of reasonable diligence, know of the presence of
   the violation.

   The evidence shows that a fall of 5 feet to the corrugatedmetal floor of the pit could

result in death or serious physical harm to employees.

   Section 17(j) of the Act, 29 U.SC. 5 666(j), requires that when assessing
   penalties, the Commission must give “due consideration” to four criteria: the
   size of the employer’s business, gravity of the violation, good faith, and prior
   history of violations. J. A. Jones Constx Co., 15 BNA OSHC 2201, 2213-14,
   1993 CCH OSHD ? 29,964, P. 41,032 (No. 8702059,1993). These factors are
   not necessarily accorded equal weight. Generally speaking, the gravity of a
  violation is the primary element in the penalty assessment. 7Czity Iti,        15
  BNA OSHC 1481,1483, 1992 CCH OSHD 129,582, p. 40,033 (No. 8&2691,
   1992). The gravity of a particular violation depends upon such matters as the “!
  number of employees exposed, the duration of the exposure, the precautions
  taken against injury, and the likelihood that any injury would result. J. A.
  Jones, 15 BNA OSHC at 2214, 1993 CCH OSHD at p. 41,032

Hem Iron Woks, Inc., 16 BNA OSHC 1247,1994 CCH OSHD ll30,155 (No. 88-19651994).
Upon consideration of the relevant factors, it is determined that a penalty in the
amount of $100.00 is appropriate.

                                         3

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

       The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rules of Civil Procedure 52(a).            .




       Based on the foregoing decision, it is hereby ORDERED:
Citation NO. 1’

       Item 1, alleging a serious violation of 29 C.F.R. 0 191023(a)(8), is affirmed and a
penalty in the amount of $100.00 is hereby assessed.

. Items 2,3 and 4, alleging violations of 29 C.F.R. 55 1910.147(c)(l), 1910.147(c)(S)(i),
1910.304(f)(4), 1910.12OO(f)(5)(ii),and 1910~12OO(g)(
l), are hereby affirmed as “other” than
serious violations without penalty.

Citation No. 2

       Items 1,2 and 3, alleging violations of 29 C.F.R. $0 1903.2(a)(l), 1910.215(a)(4), and
1910.215(b)(9), respectively, are hereby affirmed.




                                               /s/ Paul L Brady
                                           PAUL L BRADY
                                           Judge


Date: June 15, 1994