OSHRC ALJ decision
Docket 95-1370
Decided February 20, 1996
Mixed result
Judge Ken S. Welsch
A & B Tops
Three serious items downgraded to "other," one grounding item affirmed serious, $300
Apply this to your situation
This order from 1996 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.
Final order, not Commission precedent
This decision by an OSHRC
Administrative Law Judge became a final order of the Commission
because no Commissioner directed review (29 U.S.C. § 661(j)). It
binds the parties but is not binding precedent in other cases. The
full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)
Plain-English summary
A & B Tops is a very small Ohio sole proprietorship, with one or two employees,
that makes and installs kitchen countertops. After an employee complaint, OSHA
got an inspection warrant, entered the Akron plant, and issued four serious
citations: no exit sign on the assembly-room doors, an unguarded window fan,
ungrounded hand tools with missing grounding prongs, and a damaged extension cord
on a belt sander. Owner Alan Savoy, representing the company himself, contested
the citations in an "E-Z" simplified trial and also challenged the warrant. Judge
Ken S. Welsch upheld the warrant, finding it was based on probable cause and that
OSHA did not have to reveal the identity of the complaining employee or give
advance notice.
On the merits, the judge affirmed all four items but downgraded three of them from
serious to "other than serious" with no penalty, finding OSHA had not shown a
substantial probability of death or serious injury for the exit sign, the fan, or
the damaged cord. On the grounding item, the judge split the result: he vacated
the charge as to one miter saw used only by the owner (an owner's own exposure
cannot support a violation) and as to a router that was already inoperable before
the inspection, but affirmed a serious violation for a second miter saw that a
worker regularly used with its grounding prong missing for two years, assessing a
$300 penalty. That $300 was the only penalty, down from $3,200 proposed. The judge
also noted concern about the owner's cavalier attitude toward safety, including
sticking his hand into the running fan and touching his tongue to a damaged cord
to argue the conditions were harmless.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.37(q)(1); 29 C.F.R. § 1910.212(a)(5); 29 C.F.R. § 1910.304(f)(5)(v); 29 C.F.R. § 1910.305(g)(1)(i)
- Outcome: Items 1, 2, and 4 affirmed but reclassified serious to "other," no penalty; item 3 affirmed serious as to one saw ($300) and vacated as to a second saw and a router; $300 total (proposed $3,200)
- Key point: A warrant based on an employee complaint stands even if the alleged conditions are not found, and an owner-operator's own exposure to a hazard, or a tool already out of service, cannot support a citation that requires employee exposure.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFE’IY AND HEALTECREVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
Phone: (202) 606-5 100
SECRETARY OF LABOR Fax: (202) 606-5050
Complainant,
v. OSHRC DOCKET
NO. 95-1370
A&BTOPS
Respondent.
NOTICE OF DOCKETING
OF ADMINISTFKIIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on January 19, 1996. The decision of the Judge
will become a final order of the Commission on February 20, 1996 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 b the Executive Secretary on or before
February Ii 1996 in order to ermit su& cient time for its review. See
Commission Rule 91, 29 C.F.k -2200.91.
AU further pleadings or communications regarding this case shah 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. DOf
Room S4004
200 Constitution Avenue, N.W.
Washington, DC. 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 rrghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: January 19, 1996 Ray-H. Darling, Jr.
Executive Secretary
DOCKET NO. 95-1370
NOTICE IS GIVEN TO THE FOLLOWING:
Benjamin T. Chinni
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Alan Savoy
A&BTo s
1902 Mane%ester Road
Akron, OH 44314
Ken S. Welsch
Administrative Law Jud e
Occupational Safety an cf:Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00121936447:05
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 Peachtree Street, N.E., Suite 240
_ Atlanta, Georgia s03#mjii9
Phone: (404) 347-4 t 97 Fax: (404) 347-01 I3
SECRETARY OF LABOR,
Complainant,
V. OSHRC Docket No. 954370
A & B TOPS,
(EZ)
Respondent.
APPEARANCES:
slaureen Cafferkey , Esquire Mr. Alan Savoy
Office of the Solicitor President
U. S. Department of Labor A & B Tops
Cleveland, Ohio Akron, Ohio
For Complainant For Respondent Pro Se
DECISION AND ORDER
A & B Tops (Tops), a sole proprietorship, manufactures and installs kitchen counter tops
as a residential subcontractor in Ohio. Tops is a small employerwith one to two employees. Its
plant is located at 1902 Manchester Road, Akron, Ohio. Alan Savoy, the owner, testified that the
company has been in business for five years and he has been sole owner for the past two years
(Tr. 161). Tops admits that it is an employer engaged in a business aff&ng commerce within
the meaning of the Occupational Safety and Health Act of 1970 (29 U.S.C. 0 651, ef seq.),
hereafter called the uAct.n
On June 29, 1995, the Occupational Safety and Health Administration (OSHA) received
an employee complaint alleging that Tops failed to provide personal protective equipment, hazard
communication training, safety guards on power tools, proper ventilation, and material safety
data sheets (Exh. C-l;-Tr. 113): The Compkint al@& conditions similar to con&ions c&d ‘h
an uncontested serious citation issued by OSHA in December 1994 (Tr. 110, 145-146).
The complaint inspection. was assigned to CumpIitice OfEcers :Thomas Henry and .
Michael Pappas. Henry had made the December 1994 ‘mspecfion (Tr. i 1 I):- Upori kiving at
Tops, the compliance officers were denied entry by Savoy. Thereupon, OSHA filed &I
application for an inspection warrant which was signed by U. S. Magistrate James Gallas on
Julvd 12, 1995 (Exh. C-l). The warrant limited the inspection to the conditions alleged in the
employee’s complaint.
Upon issuance of the inspection warrant, Henry and Pappas returned to Tops and
inspected the plant on July 12, 1995. Savoy ws present throughout the inspection. As a result
of the inspection, Tops u7as cited for serious violations of 29 C.F.R. $5 1910.37(q)(l),
1910.2 12(a)(5), 19 10.304(f)(5)(~)~ and 1910.305(g)(l)(i). Total proposed penalties were $3,200.
Tops timely contested the citation. On October 6, 1995, the case was designated an E-Z
trial proceeding pursuant to Commission Rule 200,29 C.F.R. $2200.200, et seq. Accordingly,
based on the prehearing conference, the parties stipulated agreed facts and issues which u7ere
incorporated in the court’s order dated October 19, 1995.
The E-Z trial hearing was held on Notrember 3, 1995, in Akron, Ohio. The parties were
unable to further narrow the issues.
PRELIMINARY ISSUES
I. InsDection Warrant Was Based on Probable Cause
The inspection warrant in this case was issued based on a complaint fikd by an employee.
A copy of the complaint was attached to the warrant application (Exh. C-l). Tops challenges the
warrant on the belief that the person who filed the complaint may not have been an employee
(Tr. 105). In support of its claim, Tops notes that none of the conditions alleged in the complaint
were found during the OSHA inspection (Tr. 142). At the hearing, Tops’ request for the identity
of the complainant w.asdenied.
The name of the person who files a complaint with OSHA alleging possible violative
conditions is protected on the basis of the tiorrner’s privilege. The Commission has long
2
recognized the informer’s privikge. M;assman-;lo~~ (LrJing), 3 BNA OSHC -1369, 1980
CCH OSHD 724,436 (No. 7601484,198O). As in this case, the privilege has been given to a
person whose complaint of alleged hazardous conditions initiated the Secretary’s inspection
QualityStampingProducts, Inc., 7 BNA OSHC 1285, 1979 CCH OSHD 7 23,520 (No. 78-235,
1979). In requesting the person’s identity, Tops presented no evidence justifying disclosure. The
mere assertion that the person may not be an employee is not sufficient. In balancing the
Government’s policv to receive confidential information and protect the identity of the informant
with Tops’ right to a fair trial, the court concludes that the complainant’s identity in this case is
unnecessarv* to a determination of probable cause.
The employer challenging the reasonableness of an inspection warrant has the burden of
proving that the inspection failed to conform to the requirements of the Fourth Amendment.
Sarasota Concrete Company, 9 BNA OSHC 1608, 1612, 198 1 CCH OSHD 125,360, p- 3 1,53 1
(No.78-5264, 198l), afd 693 F.2d 1061 (11thCir. 1982). Unlike inspections based on a neutral
administrative plan.. the Review Commission, in reviewing a complaint inspection, whether from
an employee or another source, must assure the inspection bears a reasonable relationship to the
violations alleged in the complaint and that the information before the U. S. Magistrate did not
contain any purposeful misrepresentation or reckless disregard for the truth. The Commission’s
review is limited to the information-contained in the warrant application.
In this case, the U.S. h/fag&rate limited the inspection warrant to the conditions alleged
in the complaint. Tops’ questioning the identity of the complainant fails to show harassment or
an abuse of discretion. An employer’s mere allegation that the employee filing the complaint&d
so to harass the employer is not suffkient to invalidate the inspection warrant. Reich v.
KeZly-SpringfZeZd
Tire Co., 13 F.3d 1160 (‘7thCir. 1994). Even the improper motivation on the
part of a complainant in filing a complaint is not in itself sufficient grounds for invalidating an
OSHA inspection. QualityStamping Products, 7 BNA OSHC 1285,1289,1979 CCH OSHD 1
23,520, p. 28,504.05 (No.78-235, 1979). Here, Tops merely questions the identity of the
complainant. It does not allege or show harassment. Also, the Secretary has the right to inspect
worksites even though the iqection was in response to other than an employee complaint See
Adams Steel Erection, I&., 13 BNA OSHC 1073, 1986-87 CCH OSHD 7 27,815 (No. 77-3804,
3
1987) ( an anonymousc6mplaint). - The is& is not-&~ W&the-comptaint.~~~er, &e is&i-
is whether there is a reasonable basis to assume the alleged conditions in the complaint exist at
the workplace. In this case, since the alleged conditions were similar to. conditions previously
cited, the U. S. Magistrate had a reasonable basis to assume the alleged conditions continued to
exist (Tr. 114). The fact the conditions were not found during the inspection does not show a
lack of probable cause to initiate the inspection. There is no allegation or evidence that OSHA
failed to provide the Magistrate with all relevant information or made any misrepresentations of
fact. There is no showing that OSHA’s application contained deliberate falsehood or reckless
disregard for the truth. Therefore, OSHA satisfied the probable cause requirements of the Fourth
Amendment.
Further, based on the scope of the employee’s complaint, which included conditions in
all areas of Tops’ plant, there is no showing that OSHA acted improperly in inspecting any
potential violative conditions urhich were in plain view. The conditions cited during the
inspection were conditions clearly observable such as lack of an exit door sign, an unguarded
window fan, missing grounding prongs, and a frayed electrical cord. See Nutional
Engineering & Contacting Co. 1: OSHRC, 928 F.2d 762 (6th Cir. 199 1). Thus, the conditions
observed bear a reasonable relationship to the vioiations alleged in the complaint.
Accordingly, the record establishes that the. -inspection of Tops -was conducted +n
conformance with the requirements of the Fouth Amendment.
II . OSHA ComrAied With 29 C.F.R. 5 1903.6.
Tops argues that it should have received advance notice of the in&ction because OSHA
knew that Savoy generally worked away from the plant (Tr. 134-136). Tops notes that 29 C.F.R
6 1903.6 provides as an exception to the rule against advance notice, “where necessary to assure
the presence of representatives of the employer . . . needed to aid in the inspection.” Savoy, as
owner, was clearly the employer representative.
However, the record in this case fails to show that the exception to advance notice was
necessary or required. Savoy was present at the plant at the time OSHA initially attempted to
make the inspection, as well as throughout the actual inspection pursuant to the inspection
4
warrant (Tr. l&20,137).. Thmfore, tbe15wG n0 fi&,to not@ Savoy prior to the impection.
Also, the court notes that section 17(f) of the Act, 29 U.S.C. 0 666(f), specifically prohibits, under
criminal sanctions, advance notice. Thus, any exception must be narrowly construed~.~~. . - . .I** *
Accordingly, $1903.6 exceptions were not applicable to this case and advance notice was
not required.
ALLEGED VIOLATIONS
I. Elements Necessarv to Prove a Violation
In general, to prove a violation of a standard, the Secretary of Labor must prove by a
preponderance of the evidence that (I) the cited standard applies; (2) there was noncompliance
with the terms of the standard: . (3) there was employee exposure or access to the hazard created
by the noncompliance; and (4) the employer knew or with the exercise of reasonable diligence
could have known of the condition. Kasper Electroplating Corp., 16 BNA OSHC 15 17, 1521,
1993 CCH OSHD 7 30,303 (No. 90-2866, 1993); Seibel Modern Manufacturing and Welding
Corp., 15 BNA OSHC 12 18,199l CCH OSHD t 29,442 (No. 88-82 1,199 1).
Additionally, in order to establish a “serious” violation under 5 17(k) of the Act, 29
U.S.C. 5 666(k), the Secretzq must prove that there is a substantial probability that death or
serious physical harm could result from a hazardous condition. In determining substantial
probability, the issue is not whether an accident is likely to occur. Rather, the Secretary must
show that “an accident is possible and there is a substantial probability that death or serious
physical harm could result fi-omthe accident.” ConsolidatedFreightways Corp., 15 BNA OSHC
13 17, 1324, 1991 CCH OSHD 7 29,498 p. 39,804 (NO. 89-2253, 1991); FVhiting-Turner
Contractingco., 13 BNA OSHC 2155, 2157, 1989 CCH OSHDfi28,501, p. 37,772 (No.
8701238,1989).
If a violation is established, the employer has the burden of establishing any af!firmative
defenses. In this case, Tops alleges employee misconduct as to several of the alleged violations.
In order to establish unpreventable employee misconduct, the employer must show that the
action of its employee represented a departure Corn a work rule that the employer has uniformly
5
and effectively commurkated and enforced. MiiSer CQMPWZMXCU.,-
.-15BNA OSHC 1408,
1414,199l CCH OSHD 129,546, p. 39,905 (No 8901027,199I).
If a violation is-found, 6 17(j) of the Act; 29 ,U.S.C. 6 666(j), directs the Commission, in.
determining an appropriate penalty, to consider the gravity of the violation, the good faith of the
employer, the size of the employer, and the employer’s history of violations. The gravity of the
violation is usually the factor of greatest significance in penalty assessment. Caterpillar, Inc.,
15 BNA OSHC 2153, 2178, 1993 CCH OSHD f 29,962, p. 41,011 (No. 87-922, 1993);
Nucirema Operating Co., 1 BNA OSHC 1001, 1003, 1971-73 CCH OSHD 7 15,032, p. 20,044
(No. 4, 1972).
II . Item I - Alleged Serious Violation of 5 1910.37(qJl~
The citation alleges that “on the west side of the assembly area,. the exit doors were not
posted with an EXIT sign” in violation of $ 1910.37(q)(l)‘. Tops does not dispute that the
double doors in the assembly room leading to the parking area. did not have an exit sign.
However, it does question whether an exit sign is necessary. In support, Tops notes that Henry
failed to cite the condition during his prior inspection. Also, Tops asserts that its local fire bureau
does not require an exit sign in the assembly room.
Savoy describes Tops’ plant as a rectangular building measuring 32 feet by 90 feet, with
approximately 2,800 square feet of space (Tr. 163, 165). The plant consists of three rooms: the
assembly room where the counter tops are assembled, the spray room where the counter tops are
painted, and a storage room_wh.ichis used to primarily to store personal items (Tr. 164). The
three rooms are separated by walls with large openings instead of doors (Tr. 162). Tops’
employees are expected to work in all rooms of the plant (Tr. 162,164). The plant has two exits
to the outside: the one at issue Tom the assembly room, and a second exit fiam the storage room
Section 1910.37(q)(l) provides that “exits shall be marked by a readily visible sign. Access to exits shall
be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visibly to the
occupants. n “Exit” is defined at 8 1910.35(c) as u . . . that portion of a mm of egress which is separated Corn
all other spaces of the building . . to provide a protected way of travel to the exit discharge.”
6
which has an exit sign (Tr. 194x ne exit doors in the ass&My r&&&&e normal means for
entering and leaving the plant (Exh. C-6: Tr. 145,165). Henry testified that the wooden counter
tops, partial wooden floori sawdust, electrkal tools and the flammable materials such as mineral
spirits, solvents, and wood finishes provided sources-for fire @ch. C45; Tr. 28-29).
Savoy testified that the local fire bureau did not require an exit sign at the doors in the
assembly room. In support, Savoy presented a ‘Wotice of Violation of Akron Code 93” issued
by the fire bureau in October 1994 which did not cite Tops for failing to have an exit sign (Exh.
R-3). Also, the BOCA National Building Code which was apparently given to Savoy by the fire
bureau, exempts exit signs from doors which are “obviouslv and clearly identifiable as exits”
(Exh. R-4). According to Savoy, the fire bureau found that the doors in the assembly room were
X identifiable as an exit and therefore an exit sign was not necessary (Tr. 165).
Despite the finding by the local fire bureau, OSHA’s standard is clear and unambiguous
in its requirement that “exits shall be marked by a readilye visible sign.” Section 191&37(q)( 1)
does not provide an exception for exit doors that are an obvious and clearly identifiable exit (Tr.
80). Also, an employer can not rely on OSHA’s failure to cite during an earlier inspection or on
another agency’s rules and regulations as a basis for claiming lack of knowledge or justification
for noncompliance. Wheeling-Pittsburgh Steel Corp., -16 BNA OSHC 1780, 1782, 1994 CCH
OSHD fi 30,445 (No. 91-2524, 1994). Therefore, Tops’ failure to have an exit sign as required
by 5 1910.37@( 1) is established.
However, the violation is considered as “other than serious.” The record does not
establis_h a substantial probability for death or serious harm. Henry’s failure to note the condition
in his December 1994 inspection and the local fire department’s determination that the condition
did not require an exit sign indicate that there was no serious hazard. Also, while Tops’ failure
to have an exit sign constituted a violation of the standard, it was not shown that noncompliance
increased the employees’ risk to serious physical harm more than if Tops had an exit sign posted.
It is noted that Savoy immediately posted the exit sign during the inspection (Tr. 195).
Accordingly, an “other” than serious violation of 5 1910.37(q)(l) with no pen&y is
affirmed.
III . Item 2 - Alleged Vmlmon of- 4 1910..21~
The citation alleges that “in the assembly area, a fan 5’ 2” from the floor did not have a
guard over the blades” in violation of $1910.2 12(a)(5).! The fan, which was described as a
normal household fan; was placed in a window to blow air on the employee working in the
assembly room (Exh. C-8; Tr. 170). It was a hot summer and the fan was running during the
inspection (Tr. 36, 173). It is uncontroverted that the fan’s blades were not guarded and it was
less than seven feet from the ground (Exh C-8) Also, the record shows that the fan was placed
in proximity to where the employee was working in the assembly room (Tr. 147). According to
Savoy, the fan was moved to the window a couple weeks before the inspection (Tr. 173).
While not arguing that the blades were unguarded, Tops does question whether the fan’s
blades presented a hazard to employees and, if found to be a violation, whether the condition was
caused bvd unpreventable employee misconduct. Savoy testified that the fan was securely
mounted to a wooden post in the window and the blades could not be reversed (Tr. 170). To
show the lack of a hazard? Savoy, during the inspection, put his hand into the blades stopping the
fan and causing himself no injury (Tr. 86)? Based on Savoy’s demonstration, Henry initially
considered the unguarded fan as an “other” than serious violation. He apparently noted on his
OSHA IB form that the blades could be touched with little harm (Tr. 92, 97). Subsequently
however, Henry cited the fan as a serious violation based on the belief the fan’s blades could be
reversed (Tr. 98). Instead of being exposed to the trailing edge of the blades when the fan is
bringing air into the room, the employee would be exposed to the blades’ “cutting edge” if the
- blades ran in reverse which take air out of the room (Tr. 87). If the blades were reversed, Savoy
agrees the fan could be dangerous (Tr. 170).
Section 1910.212(a)(S) provides that ‘when the periphery of the blades of a fan is less than seven (7) feet
above the flmr or working level, the blades Ml be guarded. The guard shall have openings no larger than one-half
(35) inch.”
The court is c~ncemed about Savoy’s anitude towards safety. He descr&ed himself as a “reckless spirit
who ties chances”(Tr. 175). This reckless attitudewas demonstrated&ring the inspectionwhen he stuck his hand
in the fan and placed his tongue into the damaged area of an electrical cord (Tr. 86, 183). Fortunately, he was not
injured. However, this behavior reflects an unhealthy attitude towards safety in the workplace.
8
it is uncontroverted that the fan was less than 7 feet above the ground and an employee was
working in close proximityof the f’an(Tr. 37). -Theref~, aviolation of $19~0.21~2(a)(5)
has been
shown.
However, because of the location of the fan at the window, and based on Henry’s initial
determination that the blades could be touched with little harm, the violation is “other” than
serious. Savoy’s testimony that the fan was securely mounted and the blades could not be
reiyersed is given greater weight. Henry made no visual examination of the fan to see if the fan
was secured or if the blades could be reversed (Tr. 36). His opinion was based on reviewing his
photographs after returning to his office (Tr. 98). Thus, the record does not establish a substantial
probability for death or serious harm.
As for an affirmative defense, the record fails to show unpreventable employee
misconduct. Tops failed to present evidence of a work rule or that the employee violated any
specific work mle. Also, Savoy was aware the fan had been moved to the window. He testified
that it had been in the window a couple of weeks prior to the inspection (Tr. 173). If Savoy was
aware of the fan’s condition, his knowledge is evidence that if a work rule existed, it was not
being enforced by Tops.
Accordingly, an “other” than-serious violation of 8 1910.212(a)(5) with no penalty is.
affirmed.
IV . Item 3 - Alleged Violation of 5 1910.304~~5)~~~
The citation alleges that “in the shop area, the following hand tools were not properly
grounded: (a) 10” Delta miter saw, Serial Number K9348, (b) Delta 10” saw, Serial Number
K9202, and a Porter Cable Router, Serial Number 02262 1” in violation of 0 1910.304@)(5)(v):
Section 1910.304(f)@)(v) provides that “under any of the conditions described in pangraphs (f)(S)(v)(A)
through (f)@)(v)(C) of this section, exposed nonxurrentcarrying metal parts of cord- and plug-cormectedequipment
which may become energized shall be grounded.” Under paragraphs (f)(5)(v)(B)(3), such equipmem includes “hand-
held motor-operated tools. n
9
Serial Number 02262 1” in violation of ~I9lOJO4(~5)@)~~ -Hq testified &t he observed the
cited hand tools with their grounding prongs missing (Exhs. C-10, C-1 I, C-12; Tr. 42). Tops
does not dispute that the grounding prongs for these three hand-held tools were missing.- Imt&.
Tops argues that the miter SW (#K9348) was exclusively used by Savoy, the bwner; the other
miter saw (HK9202) was purchased without the grounding prong; and the router was inoperable
at the time of the inspection (Tr. 174, 177, 179480).
Henry testified that he did not see the NO miter saws or router in operation (Tr. 43). He
did not even see the miter saw (#K9348) or the router plugged in (Tr. 158-159). However, he
determined that the tools were being used and were available for use based on seeing sawdust on
the saws and router. Also, there was no indication that the tools had been taken out of service
(Tr. 44). Further, Savoy stated during the inspection “that the saw was used this week” (Tr. 43).
Based on the record, the evidence fails to establish that the miter saw (#K9348) was used
by Tops’ employees. The uncontradicted testimony shows that the saw was exclusively used by
Savoy, the owner and employer (Tr. 174). As the employer, a violation can not be based on his
exposure. See Ralph Tqnton, d. b.u. Service Specialty Co., 1992 CCH OSHD 7 29,830 (No.
9 I - 1709, 1992, J. Burroughs). Therefore, in that no exposure to employees was established, a
violation as to the miter saw (#K9348) is vacated.
As for the other miter saw (#K9202),the record establishes a violation. The saw was
plugged in when Savoy unplugged it to show Henry the missing grounding prong (Tr. 64). Savoy
testified that the saw was purchased two years ago without the grounding prong (Tr. 177). Even
if purchased without a grounding, Tops is not excused from its responsibility. The Act does not
relieve an employer corn providing a safe workplace. Commission precedent is well settled ihat
an employer is liable for violative conditions to which its employees are exposed, even if the
employer did not create the hazard. Savoy, by showing the missing ground prong, was aware of
the condition. It is irrelevant that he may not have known the condition violated an OSHA
standard. Also, the record indicates that Tops should have detected that the grounding prong was
Section 1910.305(g)(l)(I)provides, in part, that “flexible cords and cables shall be approved and suitable
for conditions of use and location.”
10
missing from seeing an empty -hsle. in the-plug here t&epro@- shouki have been (Tr 67-68).
Further, the manufacturer’s operating manual which came with the saw would have shown the
grounding prong (Exh. C-l 3). Savq testified that he had looked at the manual (Tr. 177). Thus,
a violation as to the miter saw (K9202) is established.
Regarding the router, the evidence shows that it was inoperable. Henry failed to test the
router (Tr. 56). Tops presented a receipt showing repair work on the router after the inspection
for frozen bearings (Exh. R-6). Also, the photograph taken by Henry shows the router sitting next
to a newer router. According to Savoy, the new router was purchased prior to the inspection (Tr.
179-l 80). The record establishes that the router with the missing prong “ceased functioning in
April 1995” (Exh. C-l 2, Tr. 179-l 80). This was prior to the OSHA inspection. Henry could not
establish how long the grounding prong was missing or if an employee was exposed to the hazard
(Tr. 60). Therefore, a violation as to the router is vacated.
In finding a violation as to the miter saw (+X9202), the violation is considered serious and
a penalty of $300 is deemed reasonable. By pointing out the ungrounded plug to Henry, Savoy
demonstrated his knowledge of the violative condition. Also, although the saw’s handle was
plastic, the operator’s hands would remain in close proximity to the metal parts during operation.
If the metal parts became energized, a possible shock hazard could result in serious phy$ca.l hm
(Tr. 179). In establishing an appropriate penalty, the record reflects that one employee regularly
used the saw. As stated by Savoy, the saw was without grounding for two years. Thus, the
severity is considered high. No credit is given for history based on a prior serious citation or for
good faith based on a lack of u;ritten safety programs and Savoy’s verbally-abusive attitude
during the inspection (Tr. 32, 149-l 5 1). However, credit is given for size in that Tops is a small
employer with one employee during the inspection (Tr. 140).
Accordingly, as to the miter saw (#K9202), a serious violation of 5 1910.304(f)(S)(v)
with a $300 penalty is af&med.
V. Item 4 - Alleged Violation of 6 1910 .3()5-
The citation alleges that “in the shop area, the electrical cord was split and damaged in
two different ark &kn elect&al b& sander, Se&’ G&j& i’238/3” i;;”Viola&& ‘of.
5 1910.305(g)(l)(Q6 Henry testified that the flexible electrical cord used to run the belt sander
was frayed and had three cuts (not two as indicated in the citation) in the outer insulated
sheathing, exposing the three conductors which were separately insulated (Exh. C-14; Tr. 48).
The electrical cord was double insulated with no visible breaks in the insulation around the
conductors (Tr. 49-50). Henry did not observe the sander operating or plugged in (Tr. 123).
However, he testified that he saw sawdust in the damaged areas. Therefore, Henry concluded
that the sander was being used and was available for use (Tr. 124). Savoy agreed that the cord
was frequently damaged because the sander would accidentlvd hit the cord during operation (Tr.
49. 185).
While not arguing the vi0 1ative condition, Tops does question whether the damaged cord
presented a hazard to emplovees.
# There were no apparent cracks in the insulation around each
conductor. To show the lack of a hazard, Savoy during the inspection placed his tongue in the
damage area of the cord without incident (Tr. 183).
The standard requires that the cord must be suitable for conditions of use and-location.
In this case, the cuts in the cord’s outer insulation made the cord not suitable for use. See
McAndly Frame and Trim Co., 15 BNA OSHC 1949, 1991-93 CCH OSHD 7 29,823 (No.
91-3009, 1992, J. Myers). Therefore, the record establishes a violation of 8 1910.305(g)(l)(I).
However, the violation is other than serious with no penalty. As a double insulated cord,
there is no evidence of damage to the inner insulation around each conductor. There were no
bare wires observed. Thus, the record fails to establish the substantial probability for serious
injury. Also, according to a statement from the operator, the cord was damaged the morning of
the inspection (Exh. R-5; Tr. 186).
Section 1910.305(g)(l)(r) provides, in part, that uflexible cords and cables shall be approved sod
suitable for conditions of use and location-”
12
Tops alIeges employee misconduct. However, Tops failed to show that there was a
specific work rule or that it was violated. The record in this case does not show that Tops
maintained any specific safety program (Tr. 150). Also, Savoy referred to the operator as a
foreman (Tr. 172,192). If the foreman is considered a supervisor there is a prima facie evidence
that any work rules, if they existed, were not effectively enforced. Archer Western Contmctors,
Ltd., 15 BNA OSHC 1013, 1017, 1991 CCH OSHD 29,317, p, 39,378 (No. 87-1067). In the
Archer W&fern case, the Commission stated that “where a supervisory employee is involved, the
proof of unpreventable employee misconduct is more rigorous and the defense is more difficult
to establish since it is the supervisors’ duty to protect the safety of employees under his
supervision . . . . A supexvisor’s involvement in the misconduct is strong evidence that the
employer’s safety program was lax.” Thus, employee misconduct has not been established by
Tops.
Accordingly, an %ther” than serious violation of $ 1910.305(g)(l)(I) is affirmed with no
penalty.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
All findings of fact and conclusions of law relevant and necessary to a determination of
the contested issues have been found specially and appear in the decision above. See Rule 52(a)
of the Federal Rules of Civil Procedure.
ORDER
1. Item 1 - an “other” than serious violation of 6 1910.37(q)(l), is &Firmed with no
penalty assessed.
2. Item 2 - an “other” than serious violation of 0 19 10.212(a)(5), is &irmed with no
penalty assessed.
3. Item 3 - a serious violation of $ 1910.304(f)(5)(v), is afErn& with a $300 penalty
assessed.
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4. Item 4 - an “other” than serious violation of 3 1910.305(g)(l )(I), is afkmed with no
penalty assessed
ISI KEN S. WELSCh
KEN S. WELSCH
Judge
Date: December 12, 1995
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