SECRETARY OF LABOR,
Complainant,
v. TRINITY INDUSTRIES, INC.,
Respondent.
UNITED STEELWORKERS OF AMERICA,
LOCAL 7629,
Authorized Employee
Representative.
OSHRC Docket Nos. 89-2168
& 89-2169 (Consolidated)
DECISION
Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
These consolidated cases are before the Commission on review for resolution of the single issue of whether Review Commission Administrative Law Judge ("ALJ") James D. Burroughs erred in denying a prehearing motion that was filed by Trinity Industries, Inc. ("Trinity"), seeking the suppression of all evidence. In so ruling, the judge rejected Trinity's argument that the evidence in both of these proceedings was gathered by the Occupational Safety and Health Administration ("OSHA") in violation of its Fourth Amendment rights. The judge held instead that the evidence was obtained pursuant to a valid administrative search warrant. For the reasons stated below, we concur with the judge's ruling.
I. Factual Background
Trinity maintains a workplace in Sharonville, Ohio, where it is engaged in manufacturing tanks and pressure vessels of various sizes. While the record does not provide a comprehensive description of the Sharonville facility's layout, the evidence that has been introduced strongly suggests that the workplace consists of two buildings and adjacent operations performed outdoors. It appears that the earlier phases of the manufacturing process are concentrated in plant 2 while the final assembly work occurs primarily in plant 1.[[1]]
On February 23, 1988, a Trinity employee filed a formal complaint of unsafe working conditions with OSHA's Cincinnati, Ohio area office.[[2]] The complaint alleged the presence of the following safety hazards at Trinity's Sharonville facility:
1. Portable grinder & rollers operating at 440 volts are being used in the production area of Plant #1. The flex cords and attachment plugs installed on these units are rated for 208 volts.
2. Compressed gas cylinders stored in the plant area are unsecured and some without valve protection caps.
3. Aisles and passageways are blocked by materials and stock limiting employee access in case of emergency. Floors are oil slick.
The complaint further identified the location of each of these alleged hazards as "Production Area Plant #1."
Following the procedures set forth in Chapter IX of its Field Operations Manual ("FOM"), OSHA determined that the complaint met the "formality requirements" of section 8(f)(1), 29 U.S.C. § 657(f)(1), of the Occupational Safety and Health Act of 1970, 29 U.S.C §§ 651-678 ("the Act"). More specifically, OSHA found that the complaint: (1) was reduced to writing (either on an OSHA-7 Form or in a letter), (2) alleged that an imminent danger or a violation threatening physical harm (i.e., a hazard covered by a standard or by the general duty clause) existed in the workplace, (3) set forth with reasonable particularity the grounds upon which it was based, and (4) was signed by at least one employee or employee representative.[[3]]
OSHA also made the determination, required under section 8(f)(1), that there were "reasonable grounds to believe" that the "violation[s] or danger[s]" alleged in the complaint existed and that it was therefore mandated to conduct a "special inspection . . . to determine if such violation or danger exists." OSHA attempted to inspect on February 24, the day after its receipt of the employee complaint. Trinity, however, refused to grant it permission to enter. Accordingly, on February 25, OSHA sought and obtained an administrative inspection warrant from United States Magistrate Robert A. Steinberg of the United States District Court for the Southern District of Ohio, Western Division (hereafter "the district court").
OSHA's warrant application was prepared and presented by the Area Director William M. Murphy in an ex parte proceeding before the aforementioned magistrate. In his sworn affidavit, Murphy informed the magistrate of OSHA's receipt of the formal 8(f)(1) complaint, of its determination that a "special inspection" was required under the terms of section 8(f)(1), and of its unsuccessful attempt to conduct an inspection. The magistrate was provided with OSHA's summary of the complaint, see supra note 2, and with a copy of the relevant provisions of Chapter IX of OSHA's FOM, which governs the agency's evaluation of and response to "formal complaints," referrals from other federal agencies, and "nonformal complaints," which are complaints that do not meet the statutory criteria of section 8(f)(1).
In addition, the warrant application submitted by Area Director Murphy sought conditional authorization to conduct a full-scope ("comprehensive" or "wall-to-wall") inspection under the terms of an administrative plan that we will refer to as "OSHA Instruction CPL 2.45A." This administrative plan is concisely summarized in the Secretary's review brief, as follows:
OSHA's then-effective administrative plan for determining when inspections pursuant to employee complaints should be expanded to include the entire worksite was set out at OSHA Instruction CPL 2.45A-(A)(9)(a). Under this plan, the facility was subject to a comprehensive inspection if four separate conditions were met: (1) there has been an employee complaint which contains "reasonable grounds" for the Secretary "to believe that such violation or danger exists;" (2) the establishment is in a "high rate industry;" (3) its safety records show a lost workday injury rate (LWDI) at or above the national average; and (4) a complete safety inspection has not been carried out in the current or last two fiscal years.
In support of its request for conditional authorization to conduct a full-scope inspection, OSHA supplied the magistrate with a copy of most, but not all, of the relevant provisions of its administrative plan.[[5]] It also provided the magistrate with Area Director Murphy's sworn statement that three of the administrative plan's "four separate conditions" had been met with respect to Trinity's Sharonville facility. Based on this information, OSHA sought authorization to conduct a review of Trinity's safety and health records to determine whether the remaining "condition" had also been met. If the records review established that this fourth "condition "--that the establishment have "a lost workday injury rate (LWDI) at or above the national average"--also applied to Trinity, then OSHA would conduct the conditionally-authorized, full-scope inspection.[[6]]
More specifically, Murphy's affidavit included the following representations with respect to the "four separate conditions" set forth in OSHA's administrative plan:
(1) receipt of employee complaint-Murphy informed the magistrate of OSHA's determinations that the employee complaint filed on February 23, 1988, (a) met "the requirements of Section 8(f)(1)" and (b) provided OSHA with "reasonable grounds to believe that such violations exist or have existed during the last six months, so as to require an inspection under Section 8(f)(1) of the Act." See supra note 4.
(2) "high rate industry "--Paragraph 3 of the warrant affidavit included the following representations:
Trinity Industries, Inc. is engaged in the manufacture of pressure vessels at the facility ... and is classified within the Standard Industrial Classification (SIC) code 3443, machine tools, metal forming type. According to information provided by the Bureau of Labor Statistics (BLS), this industry (SIC 3443) is ranked 49th out of 333 industries on the FY-88 High Rate Industry List for the State of Ohio due to an industry lost workdays injury rate (LWDI) of 7.8.
Typical injuries related to the manufacture of pressure vessel include lacerations and/or amputations from contact with improperly guarded equipment such as grinders, lathes and welders, eye injuries from metal chips and dust, electrical shock from contact with exposed live parts and bums from improper handling of compressed gases.
(3) high establishment LWDI rate--Paragraphs 4 and 5 of the warrant affidavit included the following representations:
The compliance officer(s) will follow the procedures outlined in chapter III ... of the OSHA Field Operations Manual for determining the establishment's lost workday injury (LWDI) rate. The establishment's LWDI rate will be compared to the lowest national average rate for manufacturing attained over the last five years ... to determine whether or not a complete inspection will be conducted.
.... In accordance with OSHA's administrative plan ... the scope of the inspection will extend to the entire establishment with respect to safety if a review of the OSHA injury and illness records indicate[s] the company has a lost workday injury rate (LWDI) at or above the Bureau of Labor Statistics (BLS) National rate of 4.2 for manufacturing.
(4) previous inspections--Paragraph 3 of the warrant affidavit included the following representations:
According to Cincinnati Area Office records, there has been a complaint safety inspection at this company on May 9, 1986. According to these records, no comprehensive safety inspection has been performed within the previous two years.
The administrative inspection warrant issued by Magistrate Steinberg granted OSHA the authority it sought, to conduct: a limited "special inspection" of the Sharonville factory, focusing on the allegations of the employee complaint; a records review; and a full-scope establishment inspection if the facility's LWDI rate exceeded 4.2. On May 11, 1989, more than a year after the warrant issued, when Trinity allowed OSHA to conduct its records review under this warrant, OSHA calculated an LWDI rate for the Sharonville facility of 13.6, more than three times the pertinent national average of 4.2. Then, after determining that all four of the "conditions" of its administrative plan had been met with respect to this facility, OSHA began its "full-scope," "wall-to-wall" inspection. As discussed more fully below, that inspection led to the proceedings that are now before the Commission on review.
II. Procedural Background
Trinity was served with the administrative inspection warrant on February 25, 1988, the same day it was issued. After requesting, receiving, and using time to consult with its attorney before responding to the warrant, Trinity informed OSHA that it would not permit the inspection to take place. A few days later, the employer initiated an action in the district court, by filing a motion to quash the warrant. In that motion, Trinity argued that: (a) the warrant application was Insufficient to establish probable cause for a "special inspection" under section 8(f)(1) of the Act, (b) the warrant application was insufficient to establish probable cause for a full-scope inspection under section 8(a) of the Act,[[7]] (c) the warrant was overly broad in authorizing a records review that extended beyond "those records that are directly related to the alleged violations in the complaint," and (d) it should be allowed to conduct a "Franks evidentiary hearing" in order to rebut the "false and misleading" statements in the warrant application concerning hazards and injuries in the pressure vessel manufacturing industry.
More specifically, with respect to the warrant's conditional authorization of a full-scope inspection, Trinity raised in its motion before the court arguments that it continues to assert on review in these proceedings. Trinity contended that "the Secretary could not expand a complaint inspection under Section 8(f) of the Act ... into a full, wall-to-wall inspection under Section 8(a) ... unless the Secretary showed Trinity's initial selection was based on a reasonable administrative inspection plan, as required by Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) ["Barlow's"]"(emphasis in the original). It claimed that it was "targeted" for inspection based on OSHA's receipt of the employee complaint, not on the basis of a reasonable administrative plan. Trinity also argued that "a complaint limited to discrete conditions in one plant did not establish probable cause for an expanded inspection of Trinity's entire . . . facility."
After hearing oral argument on both Trinity's motion and the Secretary's counter motion to hold Trinity in contempt for refusing to honor the warrant, Magistrate Steinberg issued a lengthy and well-reasoned order or, July 29, 1988. In that order, he denied Trinity's motion to quash as well as the Secretary's motion for a civil contempt order. The magistrate specifically considered and rejected each of the arguments raised in Trinity's motion and outlined above. In particular, Magistrate Steinberg upheld the warrant's conditional authorization of a full-scope inspection, holding that the warrant application and the administrative plan on which it relied, OSHA Instruction CPL 2.45A, met the Barlow's test for establishing probable cause for a full-scope inspection under an administrative plan.
In his July 29 order, Magistrate Steinberg also granted in part and denied in part Trinity's anticipatory request for a stay. Specifically, he: (1) ordered immediate execution of the warrant provision authorizing a limited "special inspection" in response to the employee complaint under section 8(f)(1), but (2) stayed the warrant provisions allowing OSHA to conduct a records review and conditionally authorizing OSHA to conduct a full-scope inspection.
On August 5 and 8,1988, OSHA conducted a limited complaint inspection of Trinity's Sharonville facility pursuant to the February 25, 1988 warrant and Magistrate Steinberg's July 29 order. That inspection resulted in the issuance of citations for specific alleged violations of OSHA standards. Trinity's contest of those citations was docketed with the Review Commission as OSHRC Docket No. 88-2691 and assigned to former Administrative Law Judge Joe D. Sparks. Earlier this year, the Commission issued a decision in that case, modifying the judge's penalty assessment with respect to one item, but otherwise affirming the judge. Trinity Indus., Inc., 15 BNA OSHC 1481, 1992 CCH OSHD 29,582 (No. 88-2691, 1992).[[8]]
While Trinity was maintaining its administrative challenge to the limited section 8(f)(1) inspection before Judge Sparks, it continued to pursue its judicial challenge to the stayed provisions of the February 25, 1988 warrant (the records review and the full-scope inspection provisions) in the federal courts. On October 20, 1988, Trinity lost the next round in that proceeding when the district court summarily affirmed the July 29, 1988 order of Magistrate Steinberg, after "consider[ing] de novo all of the filings in this matter." Nevertheless, even though this order gave her the authority to proceed under the warrant, the Secretary still refrained from executing its records review and conditional full-scope inspection provisions, during Trinity's efforts to obtain a stay of the district court's order, first from the court itself and then from the United States Court of Appeals for the Sixth Circuit. Trinity also appealed the district court's decision to the Sixth Circuit.
On April 25, 1989, the Sixth Circuit denied Trinity's application for a stay. Shortly thereafter, Trinity agreed to allow OSHA to review its safety and health records and to conduct a full-scope inspection if the records review revealed an establishment LWDI rate in excess of the "cutoff figure" of 4.2. As noted above, OSHA's records review in fact established that this final condition was also met, and based on this finding, OSHA began its "wall-to-wall" inspection of the Sharonville facility on May 11, 1989. The "walk-around" portion of this inspection was completed on May 19, 1989, and a final closing conference was held by telephone on June 9, 1989.
During its inspection, OSHA divided its investigators into two teams, one consisting of safety specialists and the other of industrial hygienists. These teams conducted two independent, but concurrent, inspections of the facility. Their separate recommendations to the area director resulted in the issuance of two sets of citations. Trinity's contest of the health citations was docketed by the Commission as OSHRC Docket No. 89-2168. Its separate contest of the safety citations was docketed by the Commission as OSHRC Docket No. 89-2169. Altogether, OSHA issued. and Trinity contested, five citations (one willful, two serious, and two other than serious), alleging numerous violations of the Act. The proposed penalties totaled almost $33,000.
Both cases were assigned to Judge Burroughs, and the parties thereafter filed their pleadings. At the same time it filed its answers, Trinity filed identical motions to suppress the evidence in both proceedings.[[9]] In essence, these motions raised in the Commission proceedings the same, Fourth Amendment issues Trinity had previously raised in its judicial challenge to the February 25, 1988 inspection warrant. Trinity sought the suppression of all evidence obtained by OSHA during its May 1989 full-scope inspection of the Sharonville facility.
On January 29, 1990, Judge Burroughs issued two orders, which he entered in both Docket No. 89-2168 and Docket No. 89-2169. The first order granted the Secretary's unopposed motion to consolidate the two cases. The second order denied Trinity's motions to suppress the evidence. In this second order, Judge Burroughs rejected Trinity's argument that the February 25, 1988 warrant was overly broad because it authorized a wall-to-wall inspection based on a limited employee complaint. The judge concluded, like Magistrate Steinberg had before him that OSHA's warrant application met the Barlow's test for establishing probable cause for a full-scope inspection under an administrative plan.
Shortly after issuing these orders, Judge Burroughs scheduled the consolidated cases for a hearing on the merits of the contested citation items. Trinity, however, notified the judge of its intention not to appear at the scheduled hewing, outlining the financial and tactical reasons that had led it to reach this decision. The judge responded by notifying Trinity that the bearing would proceed as scheduled regardless of whether Trinity appeared. Judge Burroughs expressly issued the following warning to Trinity:
If Trinity does not appear, the record will be closed after the Secretary's evidence is received. Based on the evidence of record, a decision will be tendered subsequent to the hearing on all issues in dispute.
From February 21 through February 23, 1990, a hearing in the two consolidated cases was in fact held, as scheduled. The Secretary and the authorized employee representative, which had previously elected party status, appeared at the hearing, but Trinity did not.
Nevertheless, the Secretary created a substantial evidentiary record, including forty-nine exhibits and a 3-volume transcript of testimony from twelve witnesses, in support of the allegations of the five citations, as well as her penalty proposals. Based on this evidence, Judge Burroughs subsequently issued a 73-page decision in which he ruled on the merits of each of the contested citation items. With the exception of a single vacated subitem and a corresponding $100 penalty reduction, the judge affirmed each of the alleged violations in the two consolidated cases and assessed the proposed penalties. Trinity then sought and obtained Commission review, limited to the single issue of the correctness of the judge's ruling on Trinity's pre-hearing motion to suppress the evidence.
III. Discussion
At issue is whether Judge Burroughs erred in denying Trinity's motion to suppress the challenged evidence on the ground that the February 25, 1988 warrant under which it had been obtained was invalid, because the Secretary failed to establish administrative probable cause for a full-scope inspection.[[10]] Our analysis of this issue begins with the decision of the United States Supreme Court in Barlow's, which provides:
For purposes of an administrative search such as this, probably cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that "reasonable legislative or administrative standards for conducting an...inspection are satisfied with respect to a particular [establishment]." Camara v. Municipal Court, 387 U.S., at 538, 87 S.Ct. at 1736. A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various type of industries across a given area, and the desired frequency of searches in any of the lesser division of the area, would protect an employer's Fourth Amendment rights.
436 U.S. at 320-21 (emphasis added, ellipsis and brackets in the original).
In Barlow's, the Court held that the Fourth Amendment generally prohibits warrantless, nonconsensual inspections of business establishments conducted under the Act. The Court, however, made clear that OSHA's burden in obtaining an administrative inspection warrant is a lesser burden than that which must be met by law enforcement agents when they apply for a criminal search warrant. The Secretary's burden is to establish "administrative probable cause." and that burden may be sustained by meeting either of the, two alternative tests that are set forth in the passage quoted above. These tests, which are used in determining the sufficiency of a warrant application, are commonly referred to as the "specific evidence [of existing violations] test" and the "administrative plan test." In the cases now before us, Judge Burroughs held that OSHA's February 23, 1988 warrant application met the Secretary's burden of showing "administrative probable cause" under the Barlow's "administrative plan test."
Trinity contends that the Barlow's administrative plan test was not met because the employer was not, in the words of the Barlow's Court, "chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act." Trinity alternatively claims that, even if it had been selected for inspection on the basis of the plan set forth in OSHA Instruction CPL 2.45A, the administrative plan test was still not net because CPL 2.45A is not, again in the words of the Barlow's Court, "a general administrative plan for. the enforcement of the Act derived from neutral sources."' Finally, Trinity argues that Judge Burrough's denial of its motion to suppress must be reversed because his ruling conflicts with Commission precedent and appellate court case law. We will examine each of these contentions in the order just stated.
A. Whether Trinity Was Chosen for a Search on the
Basis of a General Administrative Plan
Trinity's threshold challenge to Judge Burroughs' ruling is its claim that the judge erred in evaluating the warrant application under the "administrative plan test" rather than the "specific evidence test." In practical terms. the significance of this distinction is in its effect on the permissible scope of the inspection authorized by the warrant. A showing of administrative probable cause under the administrative plan test "usually" entities the Secretary to conduct a comprehensive wall-to-wall inspection. Sarasota Concrete Co., 9 BNA OSHC 1608, 1617, 1981 CCH OSHD ¶ 25,360, p. 31,536 (No. 78-5264,1981), aff'd. 693 F.2d 1061 (11th Cir. 1982)("Sarasota Concrete"). However, a showing under the specific evidence test does not generally entitle the Secretary to conduct a full-scope inspection, unless: (1) the evidence presented by the Secretary indicates that violations and hazards are pervasive throughout the workplace, (2) it is necessary to conduct a full-scope inspection in order to discover or locate alleged hazards and violations, or (3) there are other circumstances justifying the authorization of a broad-scope inspection. Id. See also Martin v. International Matex Tank Terminals--Bayonne, 928 F.2d 614, 625-26 (3d Cir. 1991) ("International Matex"); In re Inspection of Workplace (Carondelet Coke Corp.), 741 F.2d 172, 175-77 (8th Cir. 1984). In the cases now before the Commission, it is undisputed that OSHA's receipt of the section 8(f)(1) complaint on February 23, 1988, did not, in and of itself, justify a full-scope inspection under the specific evidence test.
In challenging the judge's application of the administrative plan test, Trinity asserts that it was not "initially selected" for inspection pursuant to an administrative plan. Instead, Trinity argues, it was "targeted" for inspection as a result of OSHA's receipt of the section 8(f)(1) complaint:
The "plan" that the Secretary describes in her brief does not select anyone for inspection; it does not even come into play until after a business has been initially selected for inspection based on a complaint.
(Emphasis in the original.) Second, Trinity contends that, because it was "targeted" for inspection based on the complaint, the warrant should have restricted the scope of the inspection. As Trinity argues, "[W]here an employer is selected for inspection based on a limited scope complaint under section 8(f) of the Act, the warrant should be limited to a physical inspection of the complained-of conditions and to records relating to the complaint. . . . " Finally, Trinity concludes that, because the warrant was not limited in this manner, the warrant was illegal and all evidence gathered from the expanded inspection should be suppressed.
Trinity's entire argument is built on its claim that it was initially selected for inspection based on OSHA's receipt of the employee complaint, rather than under the provisions of OSHA Instruction CPL 2.45A. However, this is largely a debate over semantics. Trinity was selected for a limited section 8(f)(1) inspection based on OSHA's receipt of the employee complaint. However, it was selected for a full-scope inspection of the entire Sharonville facility based on OSHA's determination that each of the "four separate conditions" of OSHA Instruction CPL 2.45A had been met with respect to the Sharonville facility.
This distinction is clearly illustrated by the procedural history of these cases. As a result of Magistrate Steinberg's ruling on Trinity's stay request (i.e., granted in part, but denied in part), there were in fact two separate inspections of the Sharonville facility, both under the authority granted by the February 25, 1988 warrant. First, there was a limited section 8(f)(1) complaint inspection, which took place in August 1988, that led to the administrative proceedings in OSHRC Docket No. 88-2691; and second, an expanded full-scope. inspection pursuant to OSHA's administrative plan took place in May 1989 and led to the consolidated administrative proceedings that are now on review.
We recognize, of course, that under different circumstances, OSHA could have conducted only a single expanded inspection, combining its investigation of the complaint items with the "wall-to-wall" walk-around tour of the facility. That the two inspections could have been combined, however, does not affect our fundamental conclusion that the warrant in fact authorized two concurrent inspections. Indeed, in issuing the February 25, 1988 warrant, the magistrate determined that OSHA had established administrative probable cause both for a limited scope inspection under section 8(f)(1) and, conditionally, for an expanded inspection under the provisions of OSHA's administrative plan. Magistrate Steinberg's order of July 29, 1988, with its separate consideration of these two related but distinct probable cause issues makes this abundantly clear.
As Magistrate Steinberg aptly observed in his July 29 order, the fact that both inspections were authorized in a single warrant was essentially nothing more than a concession to administrative convenience--a concession that had no effect whatsoever on the Fourth Amendment rights of the targeted employer. In Magistrate Steinberg's words:
It is in the public interest for OSHA to maximize its limited resources. Where an employer otherwise qualifies for a general programmed inspection, but has not had a general programmed inspection within the last two years, examining the LWDI rate at [the beginning of a § 8(f)(i) complaint inspection] to see if an expanded inspection is warranted is more efficient than waiting to conduct a second inspection under the administrative plan The burdens [on] the employer are minimized as well.... We believe CPL 2.45A strikes a reasonable balance between OSHA's need to carry out inspections on a limited budget to ensure employees are provided with safe workplaces and the employer's interest in privacy and avoiding disruption in its workplace.
For the reasons stated, we find that Trinity was targeted for an expanded, full-scope establishment inspection pursuant to the provisions of an administrative plan, specifically, OSHA Instruction CPL 2.45A. Judge Burroughs therefore did not err in evaluating the February 1988 warrant application under the Barlow's administrative plan test rather than its specific evidence test.
B. Whether OSHA's Administrative Plan Was "Derived From Neutral Sources"
(i)
Under Barlow's, it is not enough to find that Trinity was initially selected for an inspection under an administrative plan. There must be a determination as to whether Trinity was "chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources." 436 U.S. at 321 (emphasis added). Trinity alternatively contends that OSHA's warrant application failed to meet this test because the administrative plan relied upon by the Secretary, OSHA Instruction CPL 2.45A, was not "derived from neutral sources."
In essence, Trinity reasons that the neutrality of CPL 2.45A is destroyed by its reliance on the filing of a section 8(f)(1) complaint as the triggering device that targets a particular employer for inspection. In Trinity's view, reliance on this factor as one of the four criteria OSHA uses in determining which employers will be subjected to full-scope inspections permits the intrusion of impermissible subjective elements e.g., a desire to harass the employer or other improper motivation on the part of the complaining employee into the selection process.
In resolving this issue, we look first to the basic purpose of the Fourth Amendment, which is "to safeguard the privacy and security of individuals against arbitrary invasions by government officials." Barlow's, 436 U.S. at 312. (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)) (emphasis added). "In the context of administrative searches, this principle requires that persons not be subject to the unbridled discretion of executive and administrative officers, particularly those in the field, as to when to search and whom to search." West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 958 (11th Cir. 1982) (quoting Barlow's, 436 U.S. at 312).
Viewing the "derived from neutral sources" language of the Barlow's decision in the light of these overall objectives, we agree with Magistrate Steinberg's analysis of the Court's neutrality requirement:
In order for the plan to establish probable cause, it must provide for inspection on the basis of neutral criteria, thus ensuring that OSHA officials do not have unbridled discretion to target an employer for improper reasons .... Neutrality and discretion are integrally linked; if the evidence submitted in the application shows the plan is based on the type of criteria that does not permit an arbitrary decision to conduct the inspection, then we may find the plan is derived from neutral criteria.
We further conclude that the magistrate was correct in determining that OSHA Instruction CPL 2.45, both as written and as applied, was "derived from neutral sources." Thus, with regard to the administrative plan as written, Magistrate Steinberg held "that CPL 2.45A is derived from neutral criteria because it does not permit OSHA officials to exercise discretion or to arbitrarily decide to conduct the expanded inspection." With regard to the plan as applied, he added that "[t]he employee complaint is a neutral [criterion] because there is no evidence OSHA used the complaint as a guise to improperly target Trinity for an inspection under CPL 2.45A."
In his order denying the Respondent's motion to suppress the evidence, Judge Burroughs reached essentially this same conclusion. Contrasting the warrant application at issue before him with the warrant application that was at issue before the Commission in Sarasota Concrete, he judge emphasized that "the complaint [here] did not automatically result in a full-scope inspection." Instead, three other clearly neutral criteria also had to be met. In particular, "[t]he mechanism for triggering a full-scope inspection," i.e., OSHA's determination of whether the LWDI rate for the Sharonville facility was above the national average for manufacturing, "was not subject to the unbridled discretion of the Secretary."
We agree with the analysis of Judge Burroughs and Magistrate Steinberg, and would add the following observations. First, as the Secretary correctly points out in her review brief, the motivation of the complaining employee in filing a section 8(f)(1) complaint of unsafe working conditions is basically "irrelevant" to the magistrate in making a probable cause determination:
[E]ven an employee complaint motivated by the desire to harass an employer may furnish probable cause. As the courts have held, where there is a reasonable basis to believe that violations exist, it cannot be found that OSHA is motivated by bad faith in seeking a warrant, regardless of the complainant's motive.
(Emphasis in the original, case citation omitted.) Cf. Quality Stamping Prods., 7 BNA OSHC 1285, 1288, 1979 CCH OSHD ¶ 23,520, pp. 28,504-05 (No. 78-235, 1979) ("An individual prompted by improper or wrongful motives nonetheless may supply valid information regarding alleged violations of the Act and the informer's wrongful motive does not negate the validity of the informer's privilege"); Aluminum Coil Anodizing Corp., 5 BNA OSHC 1381, 1382, 1977-78 CCH OSHD ¶ 21,789, p. 26,197 (No. 829, 1977) (improper motivation on the part of the complainant does not affect the Secretary's statutory authority to conduct a responsive complaint inspection).
We further observe that the administrative plan at issue here
includes several provisions that are designed to substantially reduce, if not eliminate,
the potential for misuse of the Act's complaint inspection procedures."
Finally, we emphasize Magistrate Steinberg's finding that the complaint at issue in these
cases was a legitimate section 8(f)(1) complaint: "On the record before us, we
are entitled to find that an authentic complaint alleging actual violations of OSHA
regulations provides administrative probable cause for an inspection and to authorize OSHA
to enter Trinity's premises on that basis." In fact, when OSHA conducted its
limited section 8(f)(1) inspection in August 1988 in response to the February 23 employee
complaint, it confirmed the existence of at least two of the violations that were
identified by the employee in the complaint. See Trinity Industries Inc.,
15 BNA OSHC at 1486-88, 1992 CCH OSHD at pp. 40,036-39 (gas cylinder lacking valve cap,
and portable grinder operated at 480 volts even though its plug was rated for only 208
volts).
(ii)
In addition to challenging the neutrality of OSHA's administrative plan, Trinity also challenges the adequacy of OSHA's warrant application, citing several federal court decisions that expand upon and clarify the Secretary's burden of proof in establishing administrative probable cause under the Barlow's administrative plan test. We find this argument is without merit.
Contrary to Trinity's claims, the warrant application submitted by OSHA to Magistrate Steinberg on February 25, 1988, described in sufficient detail the administrative plan on which it was based. Indeed, the magistrate was provided with a copy of most, if not all, of the key provisions of the plan. See supra note 5. Thus, the magistrate was provided with enough information to make an independent determination as to whether the Secretary's inspection plan is based on neutral criteria and whether it is "reasonable." Magistrate Steinberg in fact made these independent determinations of neutrality and reasonableness, and we agree with his holdings.
The magistrate was also provided with an adequate statement of the methodology followed by OSHA in selecting the Sharonville facility for a full-scope inspection pursuant to the terms of the administrative plan. As we have set forth fully in our statement of facts, supra, the warrant application provided the magistrate with the information OSHA relied upon in making its determination that the Sharonville facility met three of the "four separate conditions" described in the administrative plan. In addition, OSHA informed the magistrate in detail of the steps it would take to determine whether the facility also met the fourth of these separate conditions. Finally, OSHA represented to the magistrate that it would only conduct a full-scope inspection of the facility if and when it determined that all four of the plan's separate conditions were met.
(iii)
Under the case law that Trinity itself cites, the showing we have just described was sufficient to meet the Secretary's burden of proving administrative probable cause under the Barlow's administrative plan test. We therefore find and conclude that OSHA met its burden of demonstrating to the magistrate that Trinity's Sharonville facility was "chosen" for a full-scope establishment inspection "on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources."
C. Whether the Judge's Denial of Trinity's Motion Was
Contrary
to Commission Precedent and Appellate Court Case Law
Throughout these proceedings, Trinity has relied heavily upon Commission precedent and appellate court case law that assertedly supports its position on the proper scope of the February 25, 1988 administrative inspection warrant. In particular, it has emphasized the Commission's decision in Sarasota Concrete and the decision of the United States Court of Appeals for the Third Circuit in Marshall v. North American Car Co., 626 F.2d 320 (3d Cir. 1980) ("North American Car"). Citing these two decisions, and several other federal court decisions, Trinity claims that "[T]he Review Commission ... and the majority of the courts that have considered the issue have held that the scope of a complaint inspection must bear an appropriate relation to the complaint itself, in order to keep the invasion of privacy to a minimum." This follows, in Trinity's view, from the "'basic principle of constitutional law that a warrant ... must be limited in scope to the probable cause that triggers the inspection." Accordingly, Trinity concludes. because Judge Burroughs' denial of its motion to suppress conflicts with these principles and the cases that have applied them, the judge's ruling must be reversed.
More specifically Trinity argued as follows before Judge Burroughs:
There is no dispute in this case that Trinity was initially selected for inspection based on a limited complaint. The Secretary contends that because he, internal inspection regulation, CPL 2.45A, authorizes her to expand employee complaints into wall-to-wall searches, the broad form warrant obtained here is constitutionally permissible. The Review Commission rejected this same contention in Sarasota Concrete. See, 9 BNA OSHC at 1610. Indeed, Sarasota Concrete is not distinguishable from the present case. There, the Commission held it could and would suppress evidence where, as here, the warrant authorized an inspection broader than necessary to investigate the complaint. 9 BNA OSHC at 1614, 1617.
Trinity also focuses on the reasoning of the Third Circuit in the North American Car case. It challenges the Secretary's position in the cases now before us as an impermissible attempt "to blur the distinction between § 8(f), which limits the scope of complaint inspections, and the general inspection provisions of § 8(a)." It presents North American Car as a case where this same approach "was thoroughly analyzed and rejected by the Third Circuit." More specifically, Trinity contends:
In North American Car, as here, the Secretary argued that OSHA's internal regulation authorizing expansion of a complaint inspection to a wall-to-wall inspection is a "general administrative plan within the purview of § 8(a)." 626 F.2d at 323. The Third Circuit held that the Secretary's internal regulation "surpasses the boundaries set by Congress" and that a complaint inspection must be limited to the complaint itself.
We reject these arguments. Our holding that Judge Burroughs did not err in denying Trinity's motion to suppress the evidence is not in conflict with the Commission's precedent as established in Sarasota Concrete. Nor is it inconsistent with the appellate court case law cited by Trinity. On the contrary, each of the cases cited by the Respondent is clearly distinguishable from the cases that are now on review.
The most critical fact in Sarasota Concrete was the fact that the warrant application at issue there was based solely on OSHA's receipt of a complaint of unsafe working conditions.[[12]] The conditions the former employee complained about were located within a discrete and limited section of the employer's workplace. Yet, OSHA's warrant application presented no evidence--other than its receipt of the complaint--that a wall-to-wall inspection would be appropriate. Not surprisingly, therefore, the Commission concluded, in that case, that the warrant issued by the magistrate, which authorized a full-scope inspection of Sarasota Concrete's entire workplace, was overly broad.
The limited showing made by the Secretary in applying for the warrant at issue in Sarasota Concrete was emphasized by the Commission in its holding, as follows: "We adopt the position that, when probable cause for an inspection is based solely on specific evidence of an existing violation, to accommodate the fourth amendment the inspection generally should be limited to the alleged violative condition. 9 BNA OSHC at 1617, 1981 CCH OSHD at pp. 31,535-36 (emphasis added). Here, in sharp contrast, the Secretary did not base her showing of probable cause solely on the specific evidence of existing violations that was Contained in the section 8(f)(1) complaint. Instead, as we have discussed fully above, she established that a full-scope inspection of the Sharonville facility was authorized under the terms of the administrative plan set forth in OSHA Instruction CPL 2.45A.
Trinity's argument that the cases now before us cannot be distinguished from Sarasota Concrete on this basis is unpersuasive. Trinity correctly points out that the Secretary made an administrative plan argument in Sarasota Concrete and that the Commission rejected that argument. However, the reason the Commission rejected the Secretary's argument was because "[t]he Secretary did not introduce the ... internal instruction [i e., the administrative plan] in his warrant application before the magistrate." 9 BNA OSHC at 1615, 1981 CCH OSHD at p. 31,534. Thus, the Commission was merely implementing the policy it had announced earlier in that same decision: "In determining whether probable cause supported the Secretary's action, the Commission will consider in support of probable cause only the evidence the Secretary presented to the judge or magistrate who issued the warrant." 9 BNA OSHC at 1611-12, 1981 CCH OSHD at p. 21,530.
In any event, to the extent the Commission did, in dicta, consider and reject the substance of the Secretary's administrative plan, that discussion is largely irrelevant here. The "plan" that was at issue in Sarasota Concrete was essentially nothing more than a statement that OSHA would conduct a wall-to-wall inspection whenever it received a section 8(f)(1) complaint. Even if we characterized this stated enforcement policy as an 6,"administrative plan" within the meaning of Barlow's, we would have little difficulty in distinguishing that plan from the administrative plan that is at issue before us in these cases. We find no inconsistency between the Commission's rejection of the "plan" that was at issue in Sarasota Concrete and our acceptance of the plan that is at issue in these proceedings.
For essentially the same reasons, we further conclude that each of the appellate court decisions cited by Trinity is clearly distinguishable from the cases now on review. For example, in the North American Car case, the Third Circuit noted that the warrant application at issue before it "merely recited the employee complaint." 626 F.2d at 322. To the extent the court evaluated the warrant application in terms of the Barlow's administrative plan test, it did so in the context of rejecting the Secretary's contention "that his rule of having a wall-to-wall inspection in every employee-complaint case is a general administrative plan within the purview of § 8(a). " In sum, we find no case cited by Trinity, and indeed no other case at either the Commission or appellate court level, that directly or indirectly, holds that OSHA Instruction CPL 2.45A (or any comparable OSHA inspection plan) does not meet the Barlow's criteria for establishing administrative probable cause under the administrative plan test.
This leaves us with Trinity's claim that OSHA Instruction CPL 2.45A impermissibly blurs the distinction between section 8 (a) and 8 (f)(1) of the Act, contrary to the language of those two statutory provisions, see supra notes 3 & 7, and the reasoning of North American Car. We also find this argument unpersuasive. For the reasons that follow, we agree with the statement in the Secretary's review brief that "[n]othing in Barlow's or any other authority prohibits the Secretary from using employee complaints as one of the factors in a programmed inspection plan." In particular, we conclude that the hard and fast line that Trinity would have us draw between section 8(a) and section 8(f)(1) inspections is not warranted by the statutory language or the Act's legislative history.
Section 8(a) of the Act is the only provision in the Act that grants the Secretary the authority to conduct workplace inspections for the purpose of determining whether an employer is in compliance with the Act. Thus, section 8(a) is always the source of the Secretary's authority to inspect, regardless of the event that may have triggered the inspection. Such triggering events include: OSHA's receipt of a section 8(f)(1) complaint; its receipt of a "nonformal" complaint or an agency referral; its receipt of information that a workplace accident has occurred (e.g., through the filing of a formal report by the employer, as required by regulation, or through informal means such as news reports on television or the radio), the chance observation of a compliance officer driving past a construction site:, or the employer's appearance on a list of establishments to be inspected (i.e. a so called "programmatic" inspection pursuant to a formal administrative plan).
Contrary to Trinity's reasoning. section 8(f)(1) is not a separate and independent source of authority for OSHA inspections. Nor is It a limitation on the authority granted to the Secretary in section 8(a). Instead, it is a Congressional mandate or directive, requiring OSHA to conduct inspections under the narrowly-proscribed circumstances set forth in section 8(f)(1). See International Matex, 928 F.2d at 621-22, and authorities cited therein. See also Adams Steel Erection, Inc., 13 BNA OSHC 1073, 1077-78, 1986-87 CCH OSHD ¶ 27,815, pp. 36,402-03 (No. 77- 3804, 1987), and cases cited therein. We conclude that the Act, as properly interpreted by the Secretary in these proceedings, did not preclude her from expanding the scope of the complaint inspection in this case beyond the matters that were specified in the complaint.
Nor do we agree with Trinity that the Barlow's decision requires us to invalidate OSHA Instruction CPL 2.45A. In Barlow's, the Court set forth two alternative routes by which the Secretary could establish administrative probable cause--under the specific evidence test or under the administrative plan test. Contrary to Trinity's reasoning, however, we do not believe that the Court thereby intended to create an absolute equation between the specific evidence test and section 8(f)(1) inspections, on the one hand, and the administrative plan test and section 8(a) inspections, on the other.
Indeed, based on our reading of the Barlow's decision, we conclude that the source of these two alternative tests was not the Act at all, but rather the Court's own precedent, most of which predated Congressional passage of that particular statute. Thus, the Court's "specific evidence test" is based on the traditional test for establishing probable cause in support of a criminal search warrant. The "administrative plan test" is primarily based on the Court's earlier, pre-Act decision in Camara v. Municipal Court, as the quotation to that decision in Barlow's makes clear. See 436 U.S. at 320-21.
In his order denying Trinity's motion to suppress the evidence, Judge Burroughs held that "[t]he filing of a complaint by an employee does not preclude the Secretary from seeking a full-scope inspection under section 8(a) of the Act." For the reasons we have stated above, we affirm that holding.
D. Whether the Warrant 's Records Review Provision Was Overly Broad
In addition to challenging the conditional full-scope inspection provision of the February 25, 1988 warrant, Trinity also contends that the warrant's provision authorizing a review of its safety and health records was overly broad. That provision has been consistently construed as permitting OSHA to inspect only those safety and health records that Trinity was required to keep and make available for inspection under the Act and OSHA regulations implementing the Act. See supra note 6.
Trinity nevertheless takes issue with this provision because it authorized OSHA to inspect all of its "required records," regardless of whether the records bore any relation to the conditions alleged in the section 8(f)(1) complaint. Trinity contends that, because the inspection was triggered by OSHA's receipt of the employee complaint. the warrant should have authorized OSHA to review only those records that were "directly related to the complained-of conditions." To the extent the warrant authorized review of "documents beyond those that related directly to the complaint," Trinity claims that the warrant was "overbroad" and that this defect in itself is sufficient grounds for the Commission to hold that the warrant was invalid.
We disagree. Once again, we find that the cases cited by Trinity are distinguishable because they did not involve inspections pursuant to an administrative plan. Here, the Secretary sought and obtained a conditional full-scope inspection warrant pursuant to the terms of an administrative plan. The records review authorized under that warrant was for the purpose of implementing the Secretary's plan. These facts clearly distinguish the cases now on review from the cases cited by Trinity in support of its position.
Magistrate Steinberg found that Trinity's LWDI rate could not be calculated without the data contained in its injury and illness records. Thus, "[i]f the Secretary were denied access to Trinity's injury and illness records, she could not implement CPI 2.45A." In effect, he continued, OSHA would thereby be precluded from seeking an inspection warrant under the Barlow's administrative plan test, contrary to the Court's statement that this was one of the means by which the Secretary could seek and obtain a warrant. Accordingly, the magistrate concluded, "[b]ecause the data in the injury and illness records is necessary to determine whether to conduct an expanded inspection under CPL 2.45A . . . the Secretary is authorized to review those records . . . ."
We adopt this same reasoning and therefore reject Trinity's contention that the warrant's records review provision was overly broad. We conclude that the warrant issued on February 25,1988, was valid and that Trinity's Fourth Amendment rights were not violated by the May 1989 inspection because the inspection was conducted pursuant to that valid warrant. [[13]]
IV. Order
For the reasons stated in this decision, we affirm Judge Burroughs Order Denying Motion to Suppress Evidence. Because no other issues are before us, the judge's decision and order in these consolidated cases, docketed with the Commission on December 12, 1990, are also affirmed.
Edwin G. Foulke, Jr.
Chairman
Donald G. Wiseman
Commissioner
Velma Montoya
Commissioner
Dated: August 18, 1992
SECRETARY 0F LABOR,
Complainant,
v.
TRINITY INDUSTRIES, INC.,
Respondent.
OSHRC Docket Nos.
89-2168 and 89-2169
(Consolidated)
APPEARANCES:
Janice Thompson, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.
Robert E. Rader, Jr., Esquire, Locke, Purnell, Rain and Harrell, Dallas, Texas, on behalf of respondent.
Mr. Harry W. Sorgs, President, Local 7629, United Steelworkers of America, Cincinnati, Ohio, on behalf of authorized employee representative.
DECISION AND ORDER
Burroughs, Judge: Trinity Industries, Inc. ("Trinity"), contests serious and "other" citations issued to it on June 28, 1989, for alleged health violations (Docket No. 89-2168) and serious, willful, and "other" citations issued to it on June 29, 1989, for alleged safety violations (Docket No. 89-2169). The citations resulted from an inspection of Trinity's facilities located at 11861 Mosteller Road, Sharonville, Ohio.
The Mosteller Road facility includes plant one and plant two. Plant two manufactures tank heads and plant one makes shells and does the final assembly of the pressure vessels (Tr. 205, 259). There are approximately 300 employees at the Mosteller Road facility (Tr. 66).
BACKGROUND
On February 23, 1988, an employee at Trinity's plant filed a complaint with the
Occupational Safety and Health Administration ("OSHA"). The next day an
OSHA compliance officer attempted to inspect the plant, but Trinity refused permission to
enter the facility. On February 25, 1988, OSHA applied for a warrant to the
Magistrate for the Southern District of Ohio. The warrant was issued on the same
date. Trinity filed a motion to quash. The motion was denied; and, after some
further legal maneuvering, a limited inspection was conducted.
While the parties were litigating that warrant, the union filed a second complaint alleging 43 different items. The Secretary obtained a second warrant on April 7, 1989, to investigate the second complaint. On April 10, 1989, OSHA Compliance Officer James Sweeney, accompanied by Safety Specialists John Collier and Mike Boatman, went to Trinity's plant with the warrant. They were met by Robert Essex, Trinity's manager for industrial relations. Essex denied them access to the plant, stating that his supervisors wished to review the warrant (Tr. 17-18). Sweeney returned on May 11, 1989, accompanied by OSHA personnel Dennis Collins and Mike Boatman. The OSHA representatives met with Essex and with Trinity's production manager, Mark Lang, and plant manager, Geoff Langford. They were permitted to enter the premises in order to conduct an inspection (Tr. 19, 123).
The purpose of the inspection was twofold. The compliance officers were to conduct a complaint inspection pursuant to the April 7, 1989, warrant; as well as a comprehensive inspection, pursuant to the February 25, 1988 warrant if the lost work day injury rate exceeded the national average (Tr. 21, 123-124). Compliance Officer Collins calculated the LWDI and it was 13.6, which exceeded the national average of 4.2 (Tr. 124). Therefore, a comprehensive inspection was conducted by the compliance officers (Tr. 24). The inspection was completed on May 19, 1989 (Tr. 28).
Prior to the hearing, Trinity filed a statement on February 16, 1990, explaining that it would not be appearing at the hearing scheduled for February 21, 1990. Trinity's statement provides in pertinent part:
1. The inspection in this case was conducted pursuant to an inspection warrant dated February 25, 1988. The inspection was triggered by a complaint of three alleged hazards in the "production area" of Plant No. 1. The warrant, however, was not limited to the complaint items, but authorized a review of all accident and illness records and an expanded inspection of Trinity's entire three-plant facility.
2. All the citations in this consolidated case stem from the expanded inspection. Trinity therefore filed a motion to suppress the evidence from the expanded inspection and to dismiss the citations . . .
3. By order dated January 29, 1990, the Administrative Law Judge denied Trinity's motion to suppress. . .
4. Trinity's motion to suppress involves a controlling question of law that is obviously dispositive of the entire case. Trinity is precluded from seeking an interlocutory appeal of the Administrative Law Judge's order denying the motion to suppress, however, because the Review Commission has no Commissioners and is unable to act on a petition for interlocutory appeal.
* * *
7. To that end, Trinity hereby states that it will not appear or present evidence at the trial presently scheduled for February 21, 1990, in Cincinnati, Ohio. By not appearing for the trial Trinity does not admit that the citations in this case are correct. To the contrary, Trinity denies that such citations are valid . . . Trinity's motive in not appearing for trial is solely to avoid the unfair expense of protracted trial in the process of obtaining judicial review of the validity of the warrant. (Emphasis in original.)
The Secretary desired to present the merits of her case on the issues. On February 16, 1990, the undersigned issued an order stating:
That the hearing will be held as presently scheduled on
February 21, 1990. Evidence will be received into the record from the Secretary on
all issues in dispute. If Trinity does not appear, the record will be closed after
the Secretary's evidence is received. Based on the evidence of record, a decision
will be rendered subsequent to the hearing on all issues in dispute.
Counsel for Trinity is to advise any employees of Trinity subpoenaed by the Secretary that
the hearing will commence as scheduled and that they are expected to appear at the
hearing.
No one appeared on behalf of Trinity at the hearing. The secretary presented her evidence in support of the allegations.
While it did not appear at the hearing, Trinity filed a brief stating that it was its position "that all the citations should be vacated because the inspection...was unconstitutional." It argues that Review Commission precedent requires the evidence be suppressed and the citations dismissed, citing, Sarasota Concrete Co. 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982). An order was issued on January 29, 1990, denying Trinity's Notion to Suppress Evidence. The order explains the reasons the motion to suppress was denied. No further comment on Trinity's brief is necessary.
DOCKET NO. 89-2168
James Sweeney is an industrial hygienist with OSHA's Cincinnati
Area Office. He has been with OSHA since 1977 and has served as the coordinator for
enforcement of the hazard communication standard since 1985 (Tr. 10-13). Sweeney
testified regarding the alleged health violations cited in Docket Number 89-2168.
CITATION ONE (SERIOUS)
Item One
Confined Spaces
Item one deals with confined spaces and contains three subparts: 1a, 1b, and 1c. Sweeney testified that a confined space has three characteristics. First, a confined space is not designed or intended for prolonged or continuous human occupancy. Second, an oxygen deficiency or excess level of air contaminant can develop in a confined space, because there is no effective natural ventilation. Third, a confined space usually has a limited or restricted means of entry and egress (Tr. 30-31). In general, a confined space includes any area where a worker's entry and exit are limited and where normal air is in short supply. Sweeney testified that, if a tank is more than four feet high, it can be a confined space even if it has an open top (Tr . 32).
The work inside the tanks at Trinity is considered to be work in a confined space. The tanks exhibit the following characteristics common to confined spaces: (1) a space never designed or intended for prolonged or continuous human occupancy; (2) a space in which an oxygen deficiency or excessive level of air contaminant can develop, because there is no effective natural ventilation of the space; (3) a space in which there is limited or restricted means of entry and egress (Tr. 30-31). Standard areas that are normally considered to be confined spaces would include tanks, process vessels, tank cars, bins, silos, pits, vaults, sewer lines, some underground storage space (Ex. C-5; Tr. 31). The American National Standard Institute (ANSI) standard 2117.1-1977 recognizes work in confined spaces can become unsafe as a result of oxygen deficiency and because the occupants may be isolated from help in case of need (Ex. C-5). The committee that wrote the ANSI standard for confined space was spearheaded by a member of the American Petroleum Institute and a member Mobile Oil Corporation, which are the kinds of industries in which Trinity's tanks are used (Tr. 39). In December 1979, NIOSH published a criteria document reviewing in detail potential hazards associated with employees working in confined spaces (Tr. 39-40). Trinity created its own written tank entry program in April 1989 (Tr. 42). Clearly, the hazards associated with work in confined spaces are recognized by the pressure vessel and tank industry and by Trinity in its own written tank entry program.
Item 1a
Alleged Violation of 5(&)(1)
The Secretary charges that Trinity violated 5(a)(1) in that
employees were exposed to potentially toxic and/or oxygen-deficient atmosphere during
welding operations inside tanks and that Trinity's confined space entry program was
deficient in several areas. Section 5(a)(1) states:
Each employer--
(1) shall furnish to each of his employees employment and a place of employment which are
free from recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees;
In Pelron Corp., 87 OSAHRC 28/A3, 12 BNA OSHC 1833, 1986-87 (7CH OSHD P 27,605 (No. 82-388, 1986), the Commission set forth the following criteria for determining a 5(a)(1) violation:
To prove that an employer violated section 5(a)(1), the Act's general duty clause, the Secretary must prove that the cited employer failed to free the workplace of a hazard that was recognized by the cited employer or its industry, that was causing or likely to cause death or serious physical harm, and that could have been materially reduced or eliminated by a feasible and useful means of abatement.
Randy Glacken has worked as a mechanic at the Mosteller Road facility for the past ten years (Tr. 286-287). During a two-week period in late March and early April 1989, he and Dave Shause performed heliarc and pulse arc welding in an open-ended vertical tank that was approximately 15 feet high and 12 feet in diameter (Tr. 289-291). Ventilation was provided by a 20-inch box fan at the bottom of the tank (Tr. 293). The bottom of the tank was smokey and the argon used in welding had nowhere to go (Tr. 294). There was no ladder in the tank and the employees were not attached to a safety harness or any other safety line (Tr. 290, 292). Glacken and Shause were not wearing respirators (Tr. 291). They did not receive written authorization to enter the tank, and no atmospheric testing was done prior to their entering it. No lookout provided for them (Tr. 293-294).
Glacken felt dizzy one time while working in the vertical tank (Tr. 293). In the past, he has become nauseated while working in a horizontal tank and has had to leave the tank to get, some fresh air (Tr. 298-299). He has been injured once while working in a horizontal tank, bruising his knee and cutting his forehead (which required six stitches). He had to be removed from the tank on a stretcher (Tr. 293).
Between April 10 and April 30, 1989, Trinity developed a written tank entry program. The program was written by production manager Mark Lang (Tr. 42). The program did not provide for a confined space entry permit, monitoring of air inside tanks, effective ventilation, or effective rescue procedures, all of which rendered the program deficient (Tr. 45-51).
On May 17, 1989, Sweeney observed Glacken welding inside a tank which was lying on its side (Exs. C-1, C-2; Tr. 33). A household fan was used to draw air out of the tank. Air entered the tank through a large central hole below the fan, traveled a very short distance up to the slightly smaller hole that had the fan in front of it, and was exhausted by the fan. Sweeney described this configuration as a "short circuiting situation." Effective ventilation was not created for any portion of the tank except for the extreme front end, because air is entering and exiting the two holes in proximity to each other at the front of the tank (Tr. 34). Without effective ventilation, an oxygen deficiency problem can be exacerbated during welding; because the argon and carbon dioxide, used as a shielding gas, are heavier than air (Tr. 48).
Abatement can be easily achieved by Trinity. Samples of confined space entry permits or written authorizations are published in the NIOSH standard and in the proposed OSHA confined space standard (Tr. 52). A supervisor who is knowledgeable about the potential hazards can inspect the tank or vessel prior to entry (Tr. 52). There are numerous oxygen meters available on the market (Tr. 52). There are forced-air blowers that could be used to force clean air into the opposite end of a tank and also atmosphere complying respirators (Tr. 53). There were numerous hoists at plant one in which to attach a safety harness for proper emergency rescue (Tr. 53-54). Constant visual contact through a standby employee or audible contact through a walkie-talkie system could be maintained to immediately implement rescue procedures if necessary (Tr. 56). The ANSI standard Z117-1-1977 (Ex. C-5) and the NIOSH criteria document of 1977 set forth the elements of a good confined space entry program (Tr. 57). The Cincinnati OSHA office also distributes a one-page summary of the minimum requirements for work in a confined space (Ex. C-4).
The Secretary has established that working in a confined space is a hazard recognized in Trinity's industry, and that Trinity failed to take adequate steps to free its workplace of that hazard. There were feasible methods of abatement which would have eliminated the hazard. The likely result of employees working in oxygen-deficient atmospheres is serious physical harm or death. Trinity was in violation of § 5(a)(1).
Item 1b
Alleged Violation of 29 C.F.R. § 1910.252(e)(4)(iv)
The Secretary alleges that Trinity had no standby person with a preplanned rescue procedure stationed outside a confined space whenever a welder enters so that he could immediately commence a rescue if such action became necessary. Section 1910.252(e)(4)(iv) of 29 C.F.R. provides:
Lifelines. Where a welder must enter a confined space through a manhole or other small opening, means shall be provided for quickly removing him in case of emergency. When safety belts and lifelines are used for this purpose they shall be so attached to the welder's body that his body cannot be jammed in a small exit opening. An attendant with a preplanned rescue procedure shall be stationed outside to observe the welder at all times and be capable of putting rescue operations into effect.
Whenever a welder enters a confined space, the standard
requires a standby person with a preplanned rescue procedure to be stationed outside a
confined space so that he can immediately start a rescue if there is a need to initiate
one. The facts support the allegation.
During late March to early April 1989, Glacken and Dave Shause performed heliarc and pulse
arc welding in a 15-feet high tank that was sitting in a vertical position (Tr. 289, 291).
Glacken's supervisor was aware that work was being performed inside the tank.
No standby person was assigned to observe them while they were welding (Tr. 60,
288, 294). On a previous occasion, Glacken had been injured while working inside a
tank and had to be carried out on a stretcher (Tr. 292). Trinity's written tank
entry program did not require that anyone observe the welder. It called for periodic
tapping on the tank (Tr. 61). The violation has been established.
Argon and carbon dioxide are gases that are heavier than air and tend to fall to the bottom of the tank (Tr. 48). If the ventilation is not effective, an oxygen-deficiency problem can develop (Tr. 48, 59). This oxygen deficiency could lead to death if the ventilation were ineffective enough (Tr. 59). In such situations, the lack of a standby person becomes a matter of life or death. Trinity was in violation of § 1910.252(e)(4)(iv).
Item 1c
Alleged Violation of 29 C.F.R. § 1910.252(f)(4)(i)
The Secretary alleges Trinity violated § 1910.252(f)(4)(i) by having inadequate ventilation inside a tank. Section 1910.252(f)(4)(i) provides:
All welding and cutting operations carried on i n confined spaces shall be adequately ventilated to prevent the accumulation of toxic materials or possible oxygen deficiency. This applies not only to the welder but also to helpers and other personnel in the immediate vicinity. All air replacing that withdrawn shall be clean and respirable.
The standard requires adequate ventilation be provided to make certain that there is no accumulation of toxic materials and that an oxygen deficiency does not develop.
Sweeney observed Glacken welding inside a tank that was 27 feet long and approximately 9 feet in interior diameter. The ventilation system was as previously described: two holes in proximity and located at the front of the tank with a single box fan drawing the air out. Glacken stated that this "short-circuiting system" was the standard ventilation scheme for horizontal tanks (Exs. C-1, C-2; Tr. 62). The position of the fan remains stationary even though Glacken welded in the front, middle, and back of the tank (Tr. 300). Such an arrangement does not provide adequate ventilation, because air is entering and exiting at two holes that are in very close proximity to each other on the front end of the tank (Tr. 34, 298). Glacken has on occasions experienced dizziness and nausea while welding inside tanks (Tr. 298).
The tank entry program of April 1989 was written in general language such as, "ventilation shall be provided" (Tr. 64). It did not specify how to provide effective ventilation (Tr. 64). Sweeney stated that there are forced-air blowers that could be used to force clean air into the opposite end of a tank in which they were drawing out and exhausting contaminated air (Tr. 53). In instances where mechanical ventilation might not be adequate, another alternative would be to provide an atmosphere complying respirator to an employee working inside the tank (Tr. 53). Trinity was in violation of § 1910.252(e)(4)(iv).
THE VIOLATIONS WERE SERIOUS
Items 1a, 1b, and 1c were grouped, because they involved similar or related hazards. The violations were alleged to be serious within the meaning of section 17(k) of the Act. The evidence supports the allegation.
"To establish that a violation is 'serious' it must be shown that there is a substantial probability that death or serious physical harm could result from the violative condition and that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation." Wisconsin Electric Power Co., 76 OSAHRC 134/B2, 4 BNA OSHC 1783, 1976-77 CCH OSHD ¶ 21,234, at p. 25,132 (No. 5209, 1976), aff'd, 567 F.2d 735 (7th Cir. 1977). The Secretary does not have to establish the likelihood of an accident before a violation can be classified as serious. She "need only show that an accident is possible and that such an accident will most likely result in serious injury." Communications, Inc., 79 OSAHRC 61/A2, 7 BNA OSHC 1599, 1979 CCH OSHD ¶ 23,759, at p. 28,813 (No. 76-1924, 1979), aff'd in an unpublished opinion, No. 79-2148 (D.C. Cir. 1981). The facts meet the criteria established for a serious violation. The conditions resulting in the three violations exposed employees to dizziness, nausea, and the potential for an oxygen-deficient atmosphere, which could result in death. All three violations have been established to be serious violations.
Item 2
Alleged Violation of 29 C.F.R. § 1910.20(g)(1)
The Secretary alleges that Trinity was in violation of § 1910.20(g)(1), which provides:
Upon an employee's first entering into employment, and at least annually thereafter, each employer shall inform employees covered by this section of the following:
(i) The existence, location, and availability of any records covered by this section;
(ii) The person responsible for maintaining and providing access to records; and
(iii) Each employee's rights of access to these records.
This standard requires initial and annual training of employees, who are exposed to toxic substances or harmful physical agents. Employees are to be informed of the existence, location, and availability of any records, the identity of the person responsible for maintaining and providing access to these records, and each employee's right to gain access to these records.
Trinity's employees had been previously monitored for high noise levels and nickel exposures above the NIOSH recommended exposure limit of 15 micrograms per cubic meter (Tr. 73). Sweeney interviewed 20 employees, as well as management officials, during his inspection regarding this standard. None of them had been informed of the information as required by § 1910.20(g)(1) (Tr. 68).
Glacken testified that he had been given hearing tests and air sampling; but he was never told the results, the name of the person responsible for keeping the records, where the information is kept, or that he had a right to access to that information (Tr. 299, 301). Leotis Whitaker, a flange operator, had worked in the Mosteller Road facility for 20 years.[[1]] For 15 of those years, Whitaker had been given audiograms. He had never been furnished the results of the tests, the name of the person in charge of the records, the location of the records, or the fact that he had a right to access to the records (Tr. 241-242). Andy Irick, a mechanic in plant one, and Harry Sorgs, an inspector in plant two, were given audiograms but had been furnished no information regarding their test results (Tr. 278-279, 504).
Nine days after OSHA attempted to conduct an inspection of the 43 Complaint items, a Copy of § 1910.20 and a memo addressing the standard was posted on the premises near the section of the plant near the office of Robert Essex (Tr. 69). Sweeney was not permitted to make a photocopy of this memo, but he did read and make notes from the memo. The memo discussed the employees right to access but did not specify who was responsible for providing access to these records, where they were maintained or how they should go about getting access (Tr 68). Essex's office is located near the front of the plant with the other administrative offices. Employees generally do not go into the area where the posting was made by Trinity (Tr. 69).
Noise - induced hearing loss is a likely consequence from
exposure to high noise levels. Nickel is listed as a carcinogen capable of causing
damage to the lungs with symptoms appearing 5 to 20 years after exposure (Tr. 73).
Employees who are unaware of the requirements of the standard are prevented from knowing
the concentration levels and exposure levels they may have experienced in the past and are
continuing to experience (Tr. 72). They are less able to recognize the onset of
work-related illness when it does begin to occur (Tr. 72).
Exposure to high levels of noise can lead to hearing loss. Nickel is a carcinogenic
substance that has been linked to sinus cancer and lung cancer (Tr. 72-73). The
Secretary has established that Trinity was in serious violation of § 1910.20(g)(1).
Item 3
Alleged Violation of 29 C.F.R. § 1910.106(e)(2)(ii)
The Secretary asserts that Trinity was in violation of § 1910.106(e)(2)(ii), because Stoddard Solvent was not stored in tanks or closed containers. Section 1910.106(e)(2)(ii) provides:
Flammable or combustible liquids shall be stored in tanks or closed containers.
The language of the standard is clear in its wording and intent.
Sorgs testified that, prior to OSHA's April 10, 1989, attempt to inspect Trinity's facility, Trinity stored Stoddard Solvent in unlabeled five-gallon plastic containers with no lids (Tr. 505). Buckets of the solvent were stored throughout the plant for a week at a time. The solvent was thrown out when it became too dirty to use (Tr. 506). After OSHA's initial attempt to inspect the plant on April 10, Trinity brought in Neil Foreman, a corporate safety man, to go through the plant with a copy of the complaint and make corrections. One of the complaint items was the storage of the Stoddard Solvent. After Foreman's visit, the solvent was In 2 1/2-gallon buckets with flip-top lids operated by pedals (Tr. 482, 506).
Stoddard Solvent vapors can escape from an open-top Container (Tr. 75). The vapors are heavier than air and will Concentrate down near the floor level (Tr. 75). Sparks from welding and grinding operations could ignite the vapors and cause a fire (Tr. 75). There is also a furnace in one portion of plant two that heats metal up to approximately 2000 F. An open-top container of solvent was stored approximately ten yards away (Tr. 76). Unless a closed container is used, there exists the possibility that a container could be accidentally knocked over and allow the liquid to encounter an ignition source and start a serious fire (Tr. 76). This could result in serious burns. A serious violation of the standard has been established.
Item 4
Alleged violation of 29 C.F.R. § 1910.134(d)(2)(ii)
The Secretary alleges that breathing air was supplied to employees wearing hot suits from an oil-lubricated compressor without the safeguards required by § 1910.134(d)(2)(ii).[[2]] In such circumstances, the standard requires the employer to provide a high-temperature or carbon monoxide alarm, or both and frequent testing for carbon monoxide if only a high-temperature alarm is used.
Ronald Noel is a class "A" flange operator who operates flange number ten (Tr. 250, 252). When the metal head is running hot, it could reach temperatures between 1,600 and 2,000 F. Noel would wear a "hot suit," which consisted of a hood, jacket, pair of gloves, pants, and shoe covers. The purpose of the hot suit was to protect the employee from the intense heat coming off the head. During the first four months of 1989, air to the hot suit was supplied from a compressor. No alarm system for either carbon monoxide or high temperature was used. No monitoring of carbon monoxide was done while the flange was operating. A supervisor would generally be present to watch the operator (Ex. C-7; Tr. 253-257).
The compressor that supplied the breathing air was a Worthington Model 25D compressor. The compressor was lubricated with regular 20 weight oil (Tr. 81-82). There was no carbon monoxide monitor or alarm on the hot suit (Tr. 84). Management personnel conceded that there had never been any testing or sampling of air delivered to the hot suit to check for carbon monoxide concentrations. Trinity was aware of the standard's requirements. Page ten of its respirator program states, "when using shop air compressor to supply air to air line face masks or hoods, the air must be checked or monitored for carbon monoxide" (Ex. C-3; Tr. 84).
A hot spot can develop inside an oil-lubricated compressor.
If that occurs, thermal decomposition of the oil will produce carbon monoxide.
High levels of carbon monoxide can be produced and then delivered through the hose
to the employee wearing the hot suit. There is the potential for serious
overexposure to carbon monoxide or even death if a high dose of carbon monoxide were
delivered to the employee (Tr. 82). A serious violation under 17(k) of the Act has
been established.
Item 5a
Alleged Violation of 29 C.F.R. § 1910.1200(f)(5)(i)
The Secretary alleges that Trinity was in violation of § 1910.1200(f)(5)(i),[[3]] because Stoddard Solvent was stored in plastic buckets with no identity label affixed.
Prior to April 10, 1989, Trinity stored Stoddard Solvent in open-topped five-gallon buckets throughout plant two (Tr. 482, 506). Sorgs and Leaman Calhoun, a flange machine operator in plant two, both testified that the buckets of solvent were unlabeled. They also stated that nitric acid was stored in identical unlabeled open-topped five-gallon buckets. Employees used the solvent to clean the surface of the heads and to clean the grease off their hands (Tr. 235-236, 505, 507-508). The solvent and nitric acid in the buckets looked the same (Tr. 507).
The primary concern of § 1910.1200(f)(5)(i) is to make sure that no confusion develops among employees concerning which chemicals are present in which container (Tr. 90). In this situation of nitric acid and Stoddard Solvent being stored in identical unlabeled buckets, injuries that could result are serious burns from either an acid or a combustible liquid (Tr. 91).
Sweeney observed a red "Justrite Self Closing Rinse Tank" that contained approximately 2 1/2 gallons of Stoddard Solvent. It was unlabeled (Ex. C-8; Tr. 93-94). The material safety data sheet ("MSDS") for Stoddard Solvent states that the flash point is 100 F., one degree from the flammable category (Ex. C-3; Tr. 94). An employee could reasonably assume that the solvent was water-based or a noncombustible cleaning solution and fail to take precautions against its flammability. The rinse tank was located near an area where welding and grinding took place. The hazard is third-degree burns (Tr. 93-95).
Trinity was in serious violation of § 1910.1200(f)(5)(i).
Item 5b
Alleged Violation of 29 C.F.R. § 1910.1200(f)(5)(ii)
The Secretary alleges that the conditions set forth in item 5a were also in violation of § 1910.1200(f)(5)(ii), which states:
[T]he employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the following information:
(ii) Appropriate hazard warnings.
Sorgs and Calhoun testified that there were no warning labels on the open-topped buckets containing solvent or nitric acid (Tr. 236, 508). Sweeney observed no hazard information label of any kind attached to the tank containing Stoddard Solvent--a combustible liquid (Ex. C-8; Tr. 96, 98). It is an irritant to the eyes and inhalation of high concentrations of the vapor can cause central nervous system depression effects and damage to the kidneys (Tr. 97).
Trinity was in serious violation of § 1910.1200(f)(5)(ii).
Items 6a and 6b:
Alleged Violations of
29 C.F.R. §§ 1910.1200(h) and 1910.1200(h)(2)(ii)
Two, alleged violations of the hazardous communication standard have been grouped as subparts (a) and (b), because they involve similar or related hazards.
Subpart (a)
The Secretary alleges that Trinity violated § 1910.1200(h) due to the fact hazard communication training was not provided to employees at the time of their initial assignment. It is alleged that some, employees were not trained until 18 months after exposure. Section 1910.1200 (h) requires the employer to provide information and training as specified in 29 C.F.R. § 1910.1200(h)(1) and (2) on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard is introduced into their work area.
Sweeney determined that four employees had received no hazard communication information and training until more than one year after they were first hired and assigned to work as welders. Twenty-two other employees received no hazard communication training until more than six months after they were hired (Tr. 100). At the time of the inspection, Trinity was not providing hazard communication training to now employees (Tr. 101). Trinity initiated the showing of videotapes on the hazardous communication standard after the inspection.
Many of the employees perform welding or grinding or both,
which exposes then to metal fumes and metal dust (Tr. 101, 280). Sweeney made a list of 35
employee's names job titles, dates hired and dates trained, showing that they did not
receive training at the time of their initial assignment (Ex. C-3: Tr. 101). Chemicals
that the employees were exposed to included Stoddard Solvent, copper fume, manganese fume,
nickel, chromium, nitric acid, and silica sand (Tr. 104). The violation has been
established.
Subpart (b)
The Secretary alleges that Trinity violated § 1910.1200(h)(2)(ii) [[5]] by failing to
include in its hazardous communication training the physical and health hazards of the I
chemicals in the work area The cited standard requires that such training includes the
physical and health hazards of the Sweeney interviewed more than 20 employees and attached
air sampling equipment to many of them. He learned that they had received no training
about the specific potential health hazards, potential physical hazards, or the signs and
symptoms of exposure that were related to chemicals such as Stoddard Solvent, nitric acid,
and welding fumes from metals including copper, manganese, nickel. chromium (Tr. 104).
Trinity's written hazard communication program recognized requirements for training
employees about physical and health hazards of chemicals to which they are exposed in the
course of their employment (Ex. C-3, pp. 39, 41; Tr. 105). Despite this awareness,
employees were not trained as required by the standard (Tr. 302, 509). The violation has
been established.
Employees untrained as required by the cited standards will not be aware of the potential
health and physical hazards, signs and symptoms of exposure, precautions to be taken, and
able to recognize the onset of symptoms which are, in fact, job related (Tr. 106-107).
Employees at Trinity were exposed to silica dust which can cause a debilitating lung
disease called "silicosis." Nitric acid exposure can cause permanent tissue
damage. Employees were exposed to nickel, chromium, and methylene chloride which are
carcinogens. Sweeney recorded high employee exposures to copper fumes and manganese, which
present a number of different health hazards (Tr. 107- 110).
Items 6a and 6b were grouped for purposes of classification and penalty. The violations were serious.
"OTHER" CITATION
Item 1
Alleged violation of 29 C.F.R. § 1910.151(c)
The Secretary alleges Trinity was in violation of § 1910.1511(c) for failure to have suitable facilities for quick drenching or flushing of the eyes and body. This standard provides:
Where the eyes or body of any person may be exposed to
injurious corrosive materials, suitable facilities for quick drenching or flushing of the
eyes and body shall be provided within the work area for immediate emergency use.
Sweeney, through interviews with management, the union and employees, determined that the
eye wash fountains in both the packing room of plant two and the electroplating area of
plant one were shut off in January 1988, because there was a concern that an organic
solvent might be contaminating the water (Tr. 112). Beginning in February 1988, and up
until May 1, 1989, there were temporary eye wash stations installed, but they were only
capable of providing an eye flush for only two minutes (Tr. 111-112, 510-512).
Trinity was aware the temporary eye wash stations were
inadequate. The material safety data sheet for nitric acid maintained by Trinity states
that, if nitric acid does got into the eyes, an absolute minimum of 30 minutes of flush
should be provided to the eyes (Ex. C-2; Tr. 112). Nitric acid was used in both the
electropolishing area and in the pickling area (Tr. 113). The violation has been
established.
The violation was classified as other than serious since Trinity did have an eye wash
fountain which could provide some flushing for a couple of minutes. Having at least two
minutes of flushing might prevent permanent, irreversible damage to the eyes; but there
might be a reversible and temporary but painful irritation to the eyes (Tr. 113).
Item 2
Alleged Violation of 29 C.F.R. § 1910.1200(g)(1)
The Secretary asserts that Trinity was in violation of § 1910.1200(g)(1) for failure to
have a material safety data sheet for insulation from Owens-Corning Fiberglass
Corporation. Section 1910.1200(g)(1) provides:
Chemical manufacturers and importers shall obtain or develop a material safety data sheet
for each hazardous chemical they produce or import. Employers shall have a material safety
data sheet for each hazardous chemical which they use.
An employee was exposed to irritating fumes when he performed welding on metal which was
in contact with #703 insulation manufactured by Owens- Corning Fiberglass Corporation.
When Sweeney asked Robert Essex, the personnel manager, for the MSDS for this product,
Essex stated that Trinity did not have one. Owens-Corning faxed the MSDS to Trinity on May
17, 1989 (Ex. C-3; Tr. 115). The violation has been established.
The violation was classified as other than serious, because the
heat from welding causes some materials such as hydrogen chloride and carbon monoxide to
be released, resulting in irritation to the employee but no serious adverse effect (Tr.
116).
DOCKET NO. 89-2169
Dennis Collins has been a safety compliance officer with OSHA
since 1972 (Tr. 119). He conducted inspections of Trinity in 1988 and 1989 (Tr. 122). When
he arrived at Trinity on May 11, 1989, he calculated Trinity's LWDI to be 13.6. The
national average is 4.2 (Tr. 124).
SERIOUS CITATION
Item 1
Alleged Violation of 29 C.F.R. § 1910.22(c)
The Secretary contends Trinity was in violation of § 1910.22(c), because the guardrail
around a machine pit was missing a midrail on one section. The standard provides:
Covers and/or guardrails shall be provided to protect personnel from the hazards of open
pits, tanks, vats, ditches, etc.
There is a pit beneath the rear of flanger nine in plant two. At the time of the inspection, there was a guardrail around it, but there was no midrail on one section (Ex. C-11; Tr. 132). The pit was in excess of six feet in depth and the area around the pit was slick (Ex. C-10; Tr. 133-135).
Leaman Calhoun operated flanger nine. He verified that there was no midrail at the time of the inspection (Tr. 214-215). He further stated that the area around the pit was slippery because of the grease that was pumped onto the slide at the back of flanger nine (Tr. 216). A notice posted on the machine directed the operator to pump grease onto the slide at least once a day. The notice was posted by maintenance man Bob Otle, at the direction of Geoff Langford, the plant superintendent (Ex. C-9; Tr. 214-215). Due to the grease pump's location, Calhoun could only lubricate the machine by crawling inside the guardrail (Tr. 214). When inside the railing, he was not tied off or provided with any other form of fall. protection (Tr. 217).
Employees were exposed to a fall hazard because of the lack of a midrail around the slippery area of the pit of flanger nine (Tr. 135). The standard guardrail should have a 42-inch top rail and a midrail in between the rail and the floor (Tr. 132). Employees could suffer bone fractures if they fell Into the pit (Tr. 135). Trinity was in serious violation of § 1910.22(c).
Item 2
AlIeged Violation of 29 C.F.R. § 1910.157(g)(1)
The Secretary alleges Trinity was in violation of § 1910.157(g)(1) for failure to instruct employees in the general principles of fire extinguisher use.
Section 1910.157(g)(1) provides:
Where the employer has provided portable fire extinguishers for
employee use in the workplace, the employer shall also provide an educational program to
familiarize employees with the general principles of fire extinguisher use and the hazards
involved with incipient stage fire fighting.
Fire extinguishers were available for use throughout the facility (Tr. 137-138).
Production Manager Mark Lang and Manager Geoff Langford informed Collins that Trinity
expected employees to be able to fight minor fires using fire extinguishers. Lang and
Langford both admitted that Trinity employees were given no training in the use of fire
extinguishers (Tr. 138).
Sorgs, Calhoun, and Andy Irick all testified that there had been minor fires in plants one and two and that employees were expected to use fire extinguishers (Tr. 217, 267, 489). All three employees stated that they had not received any training in the use of fire extinguishers (Tr. 216, 267, 489).
There were three types of fire extinguishers in plant two: dry chemical, halon, and carbon dioxide. The lack of training in general principles of use could result in misuse of equipment, misjudgment of a hazardous situation, misapplication of equipment, and lack of awareness of the potential of the materials being exposed to heat. Potential injuries from this lack of training are serious burns (Tr.140-142).
Trinity was in serious violation of § 1910.157(g)(1).
Item 3
Alleged Violation of 29 C.F.R. § 1910.178(a)(4)
Section 1910.178(a)(4) of 29 C.F.P. provides:
Modifications additions which affect capacity and safe operation shall not be performed by
the customer or user without manufacturers prior written approval. Capacity, operation,
and maintenance instruction plates, tags, or decals shall be changed accordingly.
Trinity was using a diesel Clark lift truck with an auxiliary counterweight on the back end (Ex. C-13; Tr. 143). The weight was added on the back end to keep it from raising up. Collins explained that the added counterweight created a teeter-totter effect on the truck's capacity. According to Collins, an added counterweight can affect the safe operation in a number of ways, including truck design, truck capacity, and the vehicle's mast (Tr. 145-146).
Felan Roaden, a forklift operator in plant two used the lift truck to pick up the largest heads from flanger ten (Tr. 334-305. 308). Even with the added counterweight the back wheels of the truck occasionally went off the ground (Tr. 318).
The truck had a posted capacity of 10,000 pounds at a 24-inch load center (Tr. 146). Collins contacted Portman Equipment, the local Clark dealer, concerning this particular vehicle and the counterweight (Tr. 147). He received verbal confirmation and a May 25, 1989, letter, which Portman had sent to Geoff Langford, the plant manager, that it was not an approved counterweight and that the vehicle in question could not be upgraded without changing the steer axle (Ex. C-14, Tr. 147). Trinity was aware that the counterweight had been added in order to increase the load capacity. Trinity's failure to obtain prior written approval is evidenced by the May 25, 1989, letter (Ex. C-14).
Injuries which could result from the violation are fractures,
serious crushing injuries and death (Tr. 149). Trinity was in serious violation of §
1910.178(a)(4).
Item 4
Alleged Violation of 29 C.F.R. § 1910.178(1)
The Secretary alleges that Trinity violated § 1910.178(1) by failing to properly train
operators of powered industrial trucks. Section 1910.178(1) provides:
Only trained and authorized operators shall be permitted to operate a powered industrial
truck. Methods shall be devised to train operators in the safe operation of powered
industrial trucks.
According to Collins, while truck operators did receive some training, it was inconsistent
and "badly ineffective" (Tr. 151, 157). Training consisted of giving employees a
book issued by Clark Equipment, which contains rules for operating the truck. Employees
were then given a test that had a combination of multiple choice and true/false questions
and had to get a grade of 70% or higher on the test (Tr. 152).
None of the employees Collins interviewed knew how to calculate whether or not the load to be lifted would be within the load capacity of the vehicle (Tr. 153). Lift truck drivers Felan Roaden, Robby Smiddy, Richard Davidson, and Randall Gulley, all testified that they determined a truck's capacity by whether the rear wheels came off the ground when making a lift (Tr. 309, 328, 336, 343). By the time the rear wheels are lifted, the truck's capacity is far exceeded (Tr. 154). Collins observed several violations of safe truck procedures, including approaching persons with a load, loads elevated into the air, and modified vehicles (Tr. 154-155). Operators were unaware of the requirement of safety platforms when lifting personnel (Tr. 156). Trinity's training procedures in practice did not conform to Trinity's corporate safety training manual (Tr. 157-158). An adequate training in lift trucks would include safety operating rules, basic lift truck principles, and specific hands-on training (Tr. 159-160).
Accidents which could result from the failure to train employees in the safe operation of lift trucks include loss of control of the vehicle and tipping over the lift truck. Serious injuries and death could result from such accidents (Tr. 160-161). The Secretary has established that Trinity was in serious violation of § 1910.178(1).
Item 5
Alleged Violation of 29 C.F.R. § 1910.178(m)(1)
Section 1910.178(m)(1) provides:
Trucks shall not be driven up to anyone standing in front of a bench or other fixed
object.
While Collins was inspecting the weld bay of plant two, he observed Clark lift truck Y1191
carrying a large flat plate up to the Pandjiris seamer. The operator of the seamer was
positioned at the machine while the lift truck operator approached (Exs. C-15, C-16; Tr.
162). The operator of the was driving the truck at an angle to the unit. As he approached
the unit, the operator cut the truck to the right which made the large steel plate swing
around. The truck and large steel plate were driven toward the operator of the seamer (Tr.
163). The operator told Collins that he had never been instructed to do otherwise (Tr.
164).
Employees standing in front of a fixed object while a lift truck approaches are exposed to significant impact hazard, which could result in severe crushing injuries or death (Tr. 165). Trinity was in serious violation of § 1910.178(m)(1).
Item 6
Alleged Violation of 29 C.F.R. § 1910.178(o)(2)
The citation describes the alleged violation of § 1910.128(o)(2) as follows:
(a) In plant #2, the diesel Clark lift truck 667 (SN.
Y2030-52-3077) had a rated capacity of 20000# at 24" load center and a maximum
counterweighted capacity of 30000# at 24" center. The maximum lifts performed were
18000 # at 120" which exceeded the trucks present capacity and maximum capacity.
The cited standard provides:
Only loads within the rated capacity of the truck shall be handled.
The largest lift truck in plant two was the diesel Clark truck modified with an added counterweight, which was discussed in item three of this citation (Tr. 165-166). The largest lift that the truck would have to make was a head weighing approximately 18,000 pounds with a load center of 120 inches (Tr. 167). Prior to May 1989, there were no markings on the heads to indicate what their weight was, but the heads varied in size from one foot up to twenty feet Tr. 310-311). Roaden used the forklift with the unapproved counterweight to lift the heavier heads from flanger ten (Tr. 308).
In support of the allegation, the Secretary points out that on May 25, 1989, Portman Equipment informed Geoff Langford that the counterweight presently on the Clark C500-Y200, S/N:Y2030-52-3077, was unacceptable, and that an approved additional counterweight would give the truck a capacity of 8,000 pounds at 120-inch load center (Ex. C-14). She then states that the capacity was 10,000 pounds less than the heaviest head that Roaden was expected to lift using the truck with the unacceptable counterweight. The letter's reference to a capacity of 8,000 pounds has reference to increasing the rated capacity by that amount by changing the steer angle and adding 2,200 pounds of counterweight. In any that modifications is of no relevance since it had not been accomplished.
The posted capacity for the diesel Clark truck was 20,000 pounds at a 24-inch lead center (Tr. 146). The added counterweight, which was not acceptable to the manufacturer (Ex. C-14), would have affected the truck's actual lifting capacity. Collins testified (Tr. 145-146):
Then, the second problem you create by putting that counterweight on is if you don't know how much that weight is, and you don't do any calculations as to where you're placing that counterweight on that vehicle, then you really don't have any idea what your capacity is on the truck any longer.
You are required to have a chart on the vehicle which gives you the capacity of the vehicle. Once you've done that, the capacity chart is no longer valid.
The actual lifting capacity of the Clark truck is unknown as a result of the unacceptable modification. Roaden testified that, even when the counterweight was added, the back wheels of the truck would on occasions rise off the floor when lifting the larger heads (Tr. 318). This is a clear indication that the rated capacity of the truck was being exceeded. The violation has been established.
Overloading a vehicle results in a loss of good contact with the wheels on the back end of the truck, which steer the vehicle. This could cause the truck to strike a person or to lose a load which could strike a person. The stability of the vehicle is damaged because, if the operator has to stop or manuever or hits chuck holes or any other uneven surface, he may lose control of the vehicle or the load. This could result in death or serious injury if accident occurred (Tr. 172-173). Trinity was in serious violation of § 1910.178(o)(2).
Item 7
Alleged Violation of 29 C.F.R. § 1910.179(e)(4)
The Secretary alleges that the 7 1/2-ton Northern crane at the west end of plant two was not equipped with rail sweeps on its bridge. Section 1910.179(e)(4) provides:
Bridge trucks shall be equipped with sweeps which extend below the top of the rail and project in front of the truck wheels.
The 7 1/2-ton Northern crane located in the shear bay of plant two did not have a rail sweep extending below the top of the railing and in front of the truck wheels (Ex. C-18; Tr. 177). The sweep is intended to prevent the crane from riding over any material and jolting the crane and losing the load (Tr. 177). A violation has been established since § 1910.179(e)(4) requires that bridge trucks shall be equipped with sweeps which extend below the top of the rail and project in front of the truck wheels.
The lack of a sweep could cause cranes to jolt and dislodge the
load. In the event the load dislodged, any person struck by the load would sustain serious
fractures, crushing injuries, and possibly death (Tr. 180-181). Trinity was in serious
violation of 29 C.F.R. § 1910.179(e)(4).
Item 8
Alleged Violation of 29 C.F.R. § 1910.179(j)(3)
Trinity is charged with a violation of § 1910.179(j)(3)[[7]] for failure to have a
complete periodic inspection performed on the overhead cranes in plant two. Section
1919.179(j)(ii)(b) provides for "periodic inspection--1 to 12-month intervals."
Collins reviewed the inspection records for plants one and two
and discovered that in plant two, only monthly inspections of the running rope and hook
were being performed. Langford admitted to Collins that Trinity was performing monthly
inspections of high use items and was not conducting complete annual inspections (Tr.
182). The cranes were used by employees to change the chucks on the spin lathe, change the
rolls on flangers, line up heads, and flip heads over (Tr. 216-219, 492).
A complete periodic inspection includes checking for loose or damaged parts, that bolts
are tight, that contacts and controls are not pitted, and that brakes are in good
condition. It requires a thorough examination and recheck and a functional test of the
unit. (Tr. 183-184).
Failure to make complete periodic checks could result in problems with the crane not being discovered until there is a failure, exposing employees to being struck by a part of the crane if it fell or being struck by the load if the load fell. Results would be serious fractures, crushing injuries, and possibly death (Tr. 184).
Trinity was in serious violation of § 1910.179(j)(3).
Item 9
Alleged Violation of 29 C.F.R. § 1910.179(n)(4)(i)
Section 1910.179(n)(4)(i)[[8]] requires that, at the beginning
of each operator's shift, the upper limit switch of each hoist shall be tried out under no
load. The Secretary alleges that Trinity was in violation of the standard, because Trinity
had no procedures established to check the upper limit switch.
An upper limit switch is a shut-down device that prevents the hook from running up into
the drum of the crane. If the hook is run into the drum, the load could be displaced out
of the hook. Lang and Langford admitted that they had no procedure requiring employees to
check the switch (Tr. 187). Calhoun testified he had never been instructed to check
the switch at the beginning of his shift (Tr. 219). The violation has been established.
If the load fell on anyone, the results would be severe fractures, crushing injuries, or death (Tr. 188). Trinity was in serious violation of § 1910.179(n)(4)(i).
Item 10
Alleged violation of 29 C.F.R. § 1910.184(c)(9)
Section 1910.184(c)(9)[[9]] requires that, whenever any sling is used, all employees shall be kept clear of loads about to be lifted and of suspended loads. The Secretary alleges that Trinity was in violation of the standard during the process of moving and repositioning a welder in plant one, north bay.
During his inspection, Collins observed and photographed a crane operator walk beneath the Lincoln subarc welder a number of times while removing the extender from it in plant one (Exs. C-19, C-21; Tr. 190-192). The equipment was attached to the hook of an overhead crane using a single chain (Ex. C-20; Tr. 191).Because of the height of the equipment for virtually the entire time the employee was moving it,he was in a position where he could be struck by it if it fell (Tr. 191).
Andy Irick, a mechanic at plant one, testified that the employee shown Positioning the subarc welder in complainant's exhibits 19 and 21 was George Kitchen, who operates the welder, and it was common for employees to be under it while lining it into position (Ex. C-19, C-21; Tr. 269-270). Irick identified the man with the clipboard shown in the photograph as Bob Sexton, the foreman (Ex. C-19; Tr. 269). Collins testified that Mark Lang, production manager, agreed the condition was a hazard; but Lang did not think Trinity could position the welder without having a man under it (Tr. 194). Collins indicated that tag lines could be used to keep it from swaying while moving it into position (Tr. 194). Trinity was aware of the hazard, because the corporate safety manual had a rule that employees are to be kept clear of suspended loads (Tr. 195). The violation has been established.
The employee was exposed to the potential of having the
equipment fall on him. This could have resulted in very serious crushing injuries with a
very high likelihood of death. The violation was serious.
Item 11
Alleged volition of 29 C.F.R. § 1910.212(a)(1)
Section 1910.212(a)(1) [[10]] requires that one or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, fl ying chips and sparks. Collins discovered 12conditions which it is alleged were in violation of § 1910.212(a)(1). The 12 conditions were designated as (a) through (1).
Instance (a)
Collins observed an employee operating Southwork press 1421, a mechanical power press in plant one (Ex. C-38; Tr. 349-350). An ingoing nip point was created when the ram was moving back. The ram moves in a vertical direction into contact with a piece of material to form it and then retracts back up toward the frame of the machine. A nip point was created between the moving ram and the stationary frame of the machine during the upstroke of the machine (Tr. 350). The operator's hands would generally be within 10 to 12 inches of the nip point; but, on occasions, they would be closer (Tr. 400). The operator would be constantly turning the piece of metal on the press and sticking his hands within the part to feel how it was being pressed (Tr. 400). The hazard to which the operator was exposed was getting his fingers caught in the nip point. In such an event, the operator could severely crush or fracture his fingers. The operator could be protected by the use of barrier guards, pull-backs or some type of restraint device to hold the operator's hands away (Tr. 351-353, 404).
Instance (b)
Collins observed a San Angelo Foundry and Machine company roll
former in the Hamilton Bay of plant one. The roll former did not have guarding to prevent
the operator from being pulled into the inrunning nip points created by the rolls (Ex.
C-30; Tr. 353-354). Andy Irick and another operator both told Collins that the machine had
been operating without a panic bar and with no other guarding until a week before the
inspection (Tr. 354-355). The panic bar was not adequate to prevent an employee from being
exposed to the inrunning nip points created by the rolls (Tr. 355-356). The panic bar
would not prevent an injury from happening. It would allow the machine to shut down should
the employee get caught in the nip points (Tr. 356).
In the event of in accident, employees would likely experience finger fractures and severe
crushing injuries. Collins stated that barrier guards and restraints were methods of
guarding (Tr. 356-357).
Instance (c)
A belt sander was located on the blue seamer in the weld bay of plant two (Ex. C-22; Tr.
358). Leaman Calhoun told Collins during the inspection that an operator was grinding the
edge of a piece of metal by sticking it down into the belt. The employee confirmed this to
Collins and said that he had done it on other occasions as well (Tr. 359).
The belt and pulley were inadequately guarded. A nip point was created where the belt was riding over the pulley. Injuries that can occur from nip point accidents are lacerations, severe abrasions and fractures (Tr. 360).
Instance (d)
Collins observed a Webb roll former in the north bay of plant
one. The roll former was equipped with a panic bar but did not have any protection to
prevent access to the nip point created between the inrunning rolls (Ex. C-31; Tr. 363).
Irick stated that he and other employees had used the roll Former in the five months prior
to the inspection (Tr. 272).
Instance (e)
Trinity had Century Shear #1473 in plant one (Ex. C-32; Tr. 366). Collins observed an employee with his left hand under the awareness barrier on the shear (Tr. 367). The operator was exposed to two hazards: the actual blade of the shear and the "holddowns" [[11]] or clamps that come down and hold the metal in place (Tr. 366). Collins was told that an employee had been injured using the Century Shear (Tr. 369). On July 26, 1985, an employee had his left middle finger tip crushed by the "holddown" clamp on the metal shear in plant one (Ex. C-39). Collins stated that a full barrier guard would prevent contact with the blade and the "holddowns" (Tr. 371).
Instance (f)
Leotis Whitaker was operating flanger ten in plant two during
the inspection. The flanger generated long jagged pieces of metal (Exs. C-28, C-29; Tr.
371).
Whitaker stated that he had been cut an burned by curls and chips from the cutting tool on
flanger ten (Tr. 373). He had received lacerations in the hands and right temple area of
the head (Tr. 246). His positioning was restricted because of a nearby wall (Tr. 247).
Langford told Collins that he was aware of the problem and wanted to redesign the tooling
(Tr. 373)
Instance (g)
Flanger ten, which was in use at the time of the inspection, had no guarding for the inrunning nip point between the side between the side roll and the head (Tr. 382-383). Calhoun and Whitaker testified that, when using a grease stick or brush to grease the side rolls while the flanger was running, they had had the brushes or sticks caught and pulled through the roller (Tr. 224-225, 248). Employees could receive crushing injuries from being drawn into the nip points (Tr. 376-377).
Instance (h)
Flanger two also did not have guarding for the inrunning nip points between the side roll and the head, and the back roll and the head from the flanging side. The operator was exposed to severe crushing injuries (Tr. 382-383).
Instance (i)
Collins observed a Bullard edge trimmer #42 in plant two in
operation by an employee using a hand grinder. The employee was exposed to metal shavings
that were spinning out of the middle of the machine (Ex. C-26; Tr. 384-385). The operator
could have been struck by the metal shavings, resulting in severe lacerations (Tr. 384).
Langford told Collins that Trinity and a unit to contain the shavings. the operator
Collins observed was not the regular operator and he had not been informed that he was to
use the unit (Tr. 387).
Instance (j)
The #65 polisher had no guarding for the unused portion of the sanding belt, including the
incoming nip points created at each pulley (Ex. C-25; Tr. 387). Calhoun stated that the
operator does not stay in one place when operating the polisher but would go to the front
to get equipment or go to the right to run the other machine (Tr. 227). The operator would
be exposed to the contact with the inrunning nip point should he trip and fall within two
or three feet of the belt. In such an event, the employees would likely suffer broken
fingers and severe lacerations (Tr. 388-389).
Instance (k)
Flanger three in plant two had no guarding for the inrunning nip points created between
the side roll and the head between the back roll and the head from the flangingside of the
machine. The operator was exposed to contact with the inrunning nip points. The operator
has to lubricate the side rolls on a routine basis while the unit is operating.
Inadvertent contact could result in fractured fingers and lacerations (Ex. C-23; Tr.
375-379).
Instance (1)
Flanger one in plant two had no guarding on the inrunning nip points. Flanger one in plant two was different from flanger three but operated the same as flanger three (Tr. 376). The same nip points were created and were unguarded. The operator was exposed to contact with the inrunning nip points. As in the case of flanger three, inadvertent contact could have resulted in fractured fingers and lacerations (Ex. C-24; Tr. 375-379)
Section 1910.212(a)(1)[[12]] is a general, introductory standard setting forth guarding requirements to "all machines." Faultless Div., Bliss & Laughlin Industries, Inc. v. Secretary of Labor, 674 F.2d 1177 (7th Cir. 1981). In order to establish a violation of § 1910.212(a)(1), the Secretary must first prove the existence of a hazard which is revealed "by how the machine functions and how it is operated by the employees." Stacy Mfg. Co., 82 OSAHRC 14/B1, 10 BNA OSHC 1534, 1982 CCH OSHD ¶ 25,965 (No. 76-1656, 1982). The Secretary has proven in each instance that machine guarding was either not provided or was inadequate and that the absence of the guarding created a hazard for employees. A serious violation of § 1910.212(a)(1) has been established.
Item 12
Alleged violation of 29 C.F.R. § 1910.217(b)(3)(i)
The Secretary alleges that the Southwork press #1421 had no single stroke mechanism and was in violation of § 1910.217(b)(3)(i), which provides:
Machines using full revolution clutches shall incorporate a single stroke mechanism.
Collins observed the Southwork press and interviewed its operator, who showed Collins how the press would cycle over and over again. The press was a continuous mechanism but did not have a single stroke (Ex. C-38; Tr. 391-393). The Southwork press is a hand-fed operation, which exposes employees to having their fingers and hands crushed (Tr. 395). Trinity was in serious violation of § 1910.217(b)(3)(i).
Item 13
Alleged Violation of 29 C.F.R. § 1910.217(c)(1)(ii)
The Secretary asserts that the Southwork press #1421 had no
point of operation guarding as required by § 1910.217(c)(1)(i). This standard provides:
It shall be the responsibility of the employer to provide and insure the usage of
"point of operation guards" or properly applied and adjusted point of operation
devices on every operation performed on a mechanical power press. See Table O-10.
The standard requires the employer to provide and ensure the usage of "point of
operation guards" or properly applied point of operation devices on every operation
performed on mechanical power presses.
This item involves the same Southwork press discussed previously. The operator places the piece of metal between forming dies. The upper die is on a ram. As it comes down, it strikes the metal and presses it against the lower die forming the metal into a shape (Ex. C-38; Tr. 398). The part size Collins observed was 23 by 23 by 23 inches in a triangular shape. The operator's hands were held within 10 to 12 inches from the pinch point and within 20 inches of the die. On occasion, his hands would be closer. At times the operator would stick his hand within the part that he was forming to feel how it was being pressed. (Tr. 400). Collins stated that a pullback or restraint device could be used to prevent exposure to the point of operation. The operator was exposed to severe crushing injuries (Tr. 401). Trinity was in serious violation of § 1910.217(c)(1)(i).
Item 14
Alleged Violation of 29 C.F.R. § 1910.219(e)(3)(i)
The Secretary alleges that the inspection revealed three instances where belts were not enclosed by guards. The standard in issue, § 1910.219(e)(3)(i), provides:
Vertical and inclined belts shall be enclosed by a guard conforming to standards in paragraphs (m) and (o) of this section.
The Secretary cited three instances of conditions that she
asserts are violative of this standard. Instance (a) involves the Bullard edge trimmer #42
previously cited in item 11 as instance (i) The main drive of the trimmer is located to
its left of the trimmer as shown in Exhibit C-26. The drive belts have a three-sided
guard, covering the outside of the belt at the top and bottom along the edge. The belt was
open between the existing guard and the machine frame. Collins stated that the
configuration of the guard and belt created a false sense of security, because the belt is
not readily visible to anyone looking at the guard (Tr. 403-404).[[13]] Collins testified
that an employee near the belt drive is exposed to possible fractures, crushing injuries
of the fingers, and possible amputation. The belt drive could be guarded by adding
guarding to the inside section.
Instance (b) involves a flux vacuum in the weld bay of plant two. One side of the vacuum
was guarded and the edges were guarded, but the other side was open (Ex. C-40; Tr. 406).
The start switch is on the motor, which is directly in front of the belts. An employee
could inadvertently stick his fingers or hands into the belt while reaching in for the
switch (Tr. 408-409).
Although not in use when observed by Collins, Langford admitted that the flux vacuum was used (Tr. 409). The injuries to employees if their hands were caught in the belt drive would be fractures and crushing injuries (Tr. 410). The belt drive could be guarded by bringing the guard around to cover the inside section (Tr. 410).
Instance (c) involves the air compressor in plant two. Its belt drive was guarded with an expanded metal guard. The guard had one-inch openings in the mesh which were large enough that an employee's fingers could accidentally stick through. The guard was not supported along the bottom. The guard was close to the belt and pulley. It could be pushed into the belt and pulley if one fell against it (Ex. C-41; Tr. 410).
Collins stated that the hazard in each of these instances was
that employees could get their hands and fingers caught in the unguarded belts, resulting
in fractures and crushing injuries (Tr. 409, 410, 412).
The Secretary has failed to show sufficient employee exposure to the air compression to
reflect a hazard. Nothing in the testimony indicates that the method of operation of the
air compressor exposes employees to the unguarded belts. Collins observed maintenance men
within a few feet of the compressor. The Review Commission has stated, in addressing point
of operation guarding, the following [Rockwell International Corp., 80 OSAHRC
118/A2, 9 BNA OSHC 1092, 1097-1098, 1980 CCH OSHD ¶ 24,979 (No. 12470, 1980)]:
The mere fact that it was not impossible for an employee to insert his hands under the ram of a machine does not itself prove that the point of operation exposes him to injury. Whether the point of operation exposes an employee to injury must be determined based on the manner in which the machine functions and how it is operated by employees.
In the present case, employee exposure would most likely result
from an employee deliberately sticking his hands or fingers into the belts. The Secretary
has failed to establish that Trinity violated § 1910.219(e)(3)(i) with respect to the air
compressor. The two violations of § 1910.219(e)(3)(i) were serious.
Item 15
Alleged Violation of 29 C.F.R. § 1910.219(f)(1)
Section 1910.219(f)(1)[[14]] requires gears to be guarded by a complete enclosure or by one of the methods specified in 29 C.F.R. § 1910.210(f)(1)(ii) and (f)(1)(iii). The Secretary alleges that the guard for the cross feed drive gears on the spin lathe was not secured in place. The evidence supports the Secretary's determination.
There was a set of drive gears for the cross feed on the spin
lathe located in plant two which had a plate lying on top of the drive gears. It was not
secured in position. The guard had holes to permanently attach it, but it was not attached
(Ex. C-27; Tr. 413). Calhoun, who operated the spin lathe, testified that, when the
equipment was in operation, the guard was subject to slip off or slide. He was never told
by his supervisor to be sure the guard was secure (Tr. 233).
The unsecured guard created a false sense of security by simply lying in position rather
than being held in an appropriate manner (Tr. 414-416). The violation exposed employees to
the hazard of severe crushing injuries.
Item 16
Alleged Violation of 29 C.F.R. § 1910.303(b)(1)
Section 1910.303(b)(1) requires that electrical equipment shall be free from recognized
hazards that are likely to cause death or serious physical harm to employees. The
Secretary alleges a violation of the standard, because there was evidence of arcing at the
connection between the grinder's cord and the extension cord in the polish room.
In the polish room behind polisher #65, there was a wall receptacle, an extension cord, and a hand grinder covered with conductive metal dust generated by the polishing operations. At the connection between the grinder cord and the extension cord, there was observable electrical arcing going from the hot lead to the ground. It was shorting out due to having conductive metal dust in that area. When disconnected, there were observable burn marks in the connection between the two cords (Exs. C-41, C-43; Tr. 417-419). Exhibit C-42 (photograph) shows the accumulation of metal filings on top of the receptacle box and cord. Exhibit C-43 (photograph) shows the burn marks oft the three-prong plug on the ground connection.
An accident had occurred in plant one in February 1988. The
accident involved metal dust from polishing operations getting into 480-volt plugs, which
were not appropriate for use (Tr. 421). Employees reported that the plugs were smoking and
shorting out (Tr. 421). Despite this, some 15 months later in May 1989, Collins observed
visible arcing due to conductive metal dust. The violation has been established.
Employees were exposed to the hazard of having the electrical equipment shorting out and
receiving serious burns and shock. The violation was serious.
Item 17
Alleged Violation of 29 C.F.R. § 1910.303(b)(2)
Section 1910.303(b)(2)[[15]] requires that listed or labeled equipment shall be used or installed in accordance with any instructions included in the listing or labeling. The Secretary alleges that a trouble light rated for no more than a 75-watt bulb was used with a 200-watt bulb. The evidence supports the violation.
In plant one, north bay at column D6, a trouble light or drop light, which was marked as rated for no more than a 75-watt bulb, was being used with a 200-watt bulb. Collins did not observe the light in use, but the unit was still warm and the time he came into the area was the end of the shift (Tr. 422-423). Irick, who accompanied Collins as the union representative, testified that the drop lights were used regularly in the cylinders so that one can see how to weld. At the time of the inspection, 75-watt bulbs were not provided. It had previously been brought to Trinity's attention in safety walk-throughs that the bulbs were higher than the wattage for which the lights were rated. The violation has been established.
The base of the light looked as if it had gotten hot and melted. (Tr. 277, 424). The trouble light in use was not designed to have a 200-watt bulb. The metal shield, as a result of using a 200-watt bulb, is hotter than one would expect and could result in employees receiving burns. In addition, the use of the large bulb was deteriorating the equipment and, over an extended period of time, could cause the unit to malfunction or short out (Tr. 425).
The violation was serious.
Item 18
Alleged Violation of 29 C.F.R. § 1910.304(a)(2)
Section 1910.304(a)(2)[[16]] requires that no grounded conductor may be attached to any terminal or lead so as to reverse designated polarity. The Secretary alleges two instances where extension cords had reversed polarity. The evidence supports the violation.
Collins found two conditions in which extension cords had reversed polarity. The first condition was an extension cord in plant on, Hamilton bay at column B12, and second condition was an extension cord in plant two used to charge the scissor lift (Tr. 428, 431). Collins tested the cording Plant one, Hamilton bay, because its appearance showed it to be somewhat older (Tr. 429-430). He determined reversed polarity by the use of a circuit tester (Tr. 428).
The extension cord in plant two was also tested with a circuit tester. The extension cord had been used in the maintenance area of plant two to charge the scissor lift and was plugged in (Tr. 431).
In reversed polarity situations, the hot potential is placed on the case of the equipment rather than on the switch loop. If there is no effective ground, an employee could receive a serious shock or electrocution (Tr. 432). The violation was serious.
Item 19
Alleged violation of 29 C.F.R. § 1910.304(f)(4)
Section 1910.304(f)(41) [[17]] requires that the path to ground
from circuits, equipment, and enclosures shall be permanent and continuous. The Secretary
alleges two instances where the extension cord had its ground prong removed or broken off.
The evidence supports the violation.
Collins found two conditions in plant one in violation of § 1910.304(f)(4). In the
Hamilton bay at column B11, there was an extension cord in use which had the ground plug
broken off, In the north bay, west end, there was an extension cord which ran out to the
rail cars that had its ground plug broken off. Although the cord in the north bay was not
in use, it was plugged in and available for use. The violation has been established.
Due to this condition, any current leakage to the external case of the unit could result in serious shock and electrocution.
The violation was serious.
WILLFUL CITATION
Item 1
Alleged Violation of 29 C.F.R. § 1910.176(a)
The Secretary charged Trinity with a willful violation of 29 C.F.R. § 1910.176(a), which provides:
Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways must be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard. Permanent aisles and passages shall be appropriately marked.
It was alleged that lift trucks in the back pad area were
operated on a rough surface containing many potholes. The evidence supports the violation.
Collins inspected the back pad area, which is located to the rear of plant two (Tr. 436).
The condition of the back pad was extremely poor, with ruts and chuck holes (Tr. 437).
Collins measured one chuck hole as being 32 by 64 inches and 10 inches deep (Tr. 439).
Several lift trucks were in the area. The back pad was used as a storage area and the
materials were located in such a manner so as to define the operational aisles for the
area (Exs. C-34, C-35, C-36; Tr. 439). Section 1910.176(a) applies even though the area is
outdoors, because the "aisles" or "passageways" were permanent over a
period of years and material was handled by mechanical equipment. Titanium Metals Corp.
of America, 77 OSAHRC 21/A12, 5 BNA OSHC 1164, 1976-77 CCH OSHD ¶ 20,762 (No. 15051,
1976).
The back pad conditions had existed for approximately two years (Tr. 337). Forklift Operator Felan Roaden had complained often about the conditions. After complaining, Trinity would fill a couple of the holes with gravel. Roaden would usually have to complain again in about a week (Tr. 313). Robby Smiddy was a shipper and receiver in plant two. He complained to Dale Bishop, supervisor Ira Brockman's boss, about the conditions (Tr. 326-327). Richard Davidson, another shipper and receiver, complained to Brockman about the potholes and ruts that had been present in the back pad area for two years. Davidson stated that the "answer I got was that Trinity didn't like to spend money" (Tr. 337-338). Harry Sorgs stated that he had heard employees complaining about the back bad area for the past several years, and that management had no response to employee complaints (Tr. 494-495).
Roaden drove lift trucks in the back pad area with the Load elevated to avoid potholes. He never had a truck tip over but has lost a load after hitting a pothole. On several occasions, whenever he hit a hole, the back end of the truck would come up, tipping the truck forward (Tr. 315). Davidson experienced the same condition of having his truck tip forward and losing a load after hitting a hole (Tr. 338).
Collins questioned Langford about the back pad area. Langford responded by stating that he was not going to make any repairs until sometime in the summer. Langford conceded that no interim measures had been taken to protect the area by grading it out or by restricting it to only the rough terrain lift trucks. The lift trucks operating in the area were typical narrow-type trucks that operate in a plant on a concrete floor (Tr. 442-443). Langford's only positive response to the complaint was to instruct employees to be careful (Tr. 442-443).
Lift trucks operating in the back pad were overloaded. Overloaded lift trucks present serious hazards to the operators and people nearby. The overloading affects stability and gives less of a safety factor if the driver has to stop. The hazards are increased when the lift truck operates with numerous holes located on the surface on which the truck runs. The truck is more likely to overturn. When load is elevated to avoid the holes, some stability is lost and the likelihood of having a problem or losing the truck or losing the load increases (Tr. 447). The violation has been established.
The remaining question involves how the violation is to be classified. The Secretary argues that the violations should be classified as willful. The term "willful" is not defined by the Act. The Commission has held that "[a] violation is willful if it is committed voluntarily with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety." A. C. Dellovade, Inc., 87 OSAHRC 2/A3, 13 BNA OSHC 1017, 1987 CCH OSHD ¶ 27,786, p. 36,341 (No. 83-1189, 1987). Willfulness is conduct that results from a conscious, intentional or voluntary decision. Stone & Webster Engineering Corp., 80 OSAHRC 72/D11, 8 BNA OSHC 1753, 1980 CCH OSHD ¶ 24,646 (No. 15314, 1980). It is a state of mind that must be established by the Secretary.
The evidence shows a clear pattern of voluntary or intentional disregard for the requirements of the Act and plain indifference to employee safety. This determination is based on the overall condition of the back pad area over an extended period of time, the number of hazards created by the condition, the manner in which employees drove the trucks to avoid holes, the fact that employees had complained to management of personnel on a number of occasions, and the fact that the plant manager himself admitted his awareness of the condition yet chose to allow it to continue (Tr. 448-449). Trinity's actions must be considered as intentional neglect of the conditions.
The Secretary has established that Trinity chose consciously
and intentionally to disregard the requirement of the standard, and acted with plain
indifference to the safety of its employees. It is especially deplorable because of the
numerous employee complaints made to the supervisory personnel. Trinity was in willful
violation of § 1910.176(a).
Item 2
Alleged violation of 29 C.P.R. § 1910.178(m)(12)
The Secretary charged a willful violation of 29 C.F.R. § 1910.178(m)(12), which provides:
Whenever a truck is equipped with vertical only, or vertical and horizontal controls elevatable with the lifting carriage or forks for lifting personnel, the following additional precautions shall be taken for the protection of personnel being elevated:
(i) Use of a safety platform firmly secured to the lifting carriage and/or forks.
(ii) Means shall be provided whereby personnel on the platform can shut off power to the truck.
(iii) Such protection from falling objects as indicated
necessary by the operating conditions shall be provided.
Section 1910.178(m)(12) requires that industrial trucks used to lift personnel be provided
with a firmly secured safety platform and a means whereby personnel on the platform could
shut off power to the truck.
Prior to OSHA commencing the inspection, the lifting of personnel on either the forks or the Kelly jib, which is a lifting attachment and not a safety platform, was a routine general practice in the shipping and receiving department for many years. Employees were instructed by supervisors to engage in such procedure. It was the only method they knew to elevate employees to secure the chains on the heads to be shipped. The standard requires a safety platform with standard guardrail so as to protect an individual being lifted to prevent falling off the forks or falling back into the mast and becoming caught in it (Tr. 450-451).
On April 28, 1989, the company posted a notice to the effect that employees were not to be lifted on the forks of lift trucks (Tr. 451). This procedure was not changed until the warrant for inspection was issued which was based on the union's 43 complaints. The change cannot be construed as voluntary. It was done as a result of Trinity's realization that an inspection was going to be made of its facilities.
When Collins observed the employees during his inspection, he noted that they were loading "in kind of a confused manner and there were several comments to the effect that the reason they were having problems doing it was that they had never done it without riding up on the forks of a truck, and so they weren't really sure what they were doing" (Tr. 455). There was no safety platform at Trinity (Tr. 325, 334).
Windows of the lunch room and of Langford's office looked out upon the loading area (Ex. C-37; Tr. 500). Smiddy stated that it was not uncommon to have management personnel, including Brockman, Bishop, and Langford to watch the loading from the lunch room (Tr. 325-326).
Employees in maintenance were also lifted up on the forks of trucks (Tr. 454). Sorgs stated that, "Many times the maintenance man would have a forklift operator lift him up to the crane in the shop to do a minor adjustment or something" (Tr. 501). Sorgs observed an employee straddle the two forks and lean against a hook attachment on the front while he was lifted by the forklift operator (Tr. 501).
Employees elevated by lift trucks without a firmly secured safety platform are exposed to falling off. They are also exposed to getting caught in the mast of the truck and being pulled into the chains which raise the mast. Possible injuries include fractures, concussion, and crushing injuries (Tr. 45).
Trinity was in willful violation of § 1910.178(m)(12). Trinity
showed intentional disregard for the requirement of the Act and plain indifference to
employee safety in allowing, even instructing, employees to be elevated on forklifts
without safety platforms. This practice had continued for a number of years under the
observation of management personnel.
"OTHER" CITATION
Item 1
Alleged Violation of 29 C.F.R. § 1910.304(e)(1)(iv)
The Secretary charged Trinity with a violation of § 1910.304(e)(1)(iv) which provides:
Overcurrent devices shall be readily accessible to each employee or authorized building management personnel. These overcurrent devices may not be located where they will be exposed to physical damage nor in the vicinity of easily ignitable material.
This section requires overcurrent devices for circuits rated 600 volts, nominal, or less be readily accessible to each employee or authorized building management personnel.
The disconnect box for the flanging bay crane in the plant two maintenance department was in an area cluttered with pipe, machinery parts, boxes, and cartons (Tr. 461-462). The overcurrent devices were not readily accessible to employees. Trinity was in other-than-serious violation of § 1910.304(e)(1)(iv).
Item 2
Alleged Violation of 29 C.F.R. § 1910.305(b)(2)
Section 1910.305(b)(2) of 29 C.F.R. provides:
All pull boxes, junction boxes, and fittings shall be provided with covers approved for the purpose. If metal covers are used they shall be grounded. In completed installations each outlet box shall have a cover, faceplate, or fixture canopy. Covers of outlet boxes having holes through which flexible cord pendants pass shall be provided with bushings designed for the purpose or shall have smooth, well-rounded surfaces on which the cords may bear.
The standard requires that each outlet box in completed installations have a cover, faceplate or fixture canopy.
In the North Bay at the west end of plant one, an electrical box on the back side of the polishing roll transformer did not have a cover on it. The interior wiring was exposed (Tr. 464-465). The wiring was hot. An employee worked in the area. The missing cover had previously been reported by Irick (Tr. 467). Trinity was in other-than-serious violation of § 1910.305(b)(2).
PENALTY DETERMINATION
The Commission is the final arbiter of penalties in all contested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.23 438 (8th Cir. 1973). Under 17(j) of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of the previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ¶ 15,032 (No. 4, 1972).
Trinity employed approximately 300 employees at its facility (Tr. 66). There is a history of previous inspections. Seven citations have been issued to this facility (Tr. 66). Trinity's actions showed a lack of good faith. The gravity of the serious and willful violations is high.
Upon due consideration of the foregoing factors, the following penalties are determined to be appropriate:
DOCKET NO. 89-2168
Citation One (Serious)
| Item 1 | $ 800 |
| Item 2 | $ 800 |
| Item 3 | $ 700 |
| Item 4 | $ 800 |
| Item 5 | $ 700 |
| Item 6 | $ 800 |
No penalties are assessed for items one and two of citation two.
DOCKET NO. 89-2169
Citation One (Serious)
| Item 1 | $500 |
| Item 2 | $ 400 |
| Item 3 | $ 800 |
| Item 4 | $1,000 |
| Item 5 | S 600 |
| Item 6 | $ 800 |
| Item 7 | $ 600 |
| Item 8 | $ 800 |
| Item 9 | $ 800 |
| Item 10 | $ 700 |
| Item 11 | $ 800 |
| Item 12 | $ 600 |
| Item 13 | $ 600 |
| Item 14 | S 300 |
| Item 15 | $ 500 |
| Item 16 | $ 500 |
| Item 17 | $ 500 |
| Item 18 | $ 700 |
| Item 19 | $ 700 |
Citation Two (willful)
| Item 1 | $8,000 |
| Item 2 | $8,000 |
No penalties are assessed for items one and two of citation three.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings of fact and conclusions of law contained in this opinion are incorporated herein in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
In view of the foregoing and good cause appearing in support of the determinations, it is
ORDERED: That the issues and penalties in dispute in docket numbers 89-2168 and 89-2169 are affirmed, modified and vacated in the following manner:
DOCKET NO. 89-2168
Citation One (Serious)
| Item No. | Disposition | Assessed | Penalty |
| I | Affirmed | $ | 800 |
| 2 | Affirmed | $ | 800 |
| 3 | Affirmed | $ | 700 |
| 4 | Affirmed | $ | 800 |
| 5 | Affirmed | $ | 700 |
| 6 | Affirmed | $ | 800 |
Citation Two ("Other")
| Item No. | Disposition | Assessed Penalty |
| 1 | Affirmed | None |
| 2 | Affirmed | None |
DOCKET NO. 89-2169
Citation One (Serious)
| Item No. | Disposition | Assessed Penalty |
| 1 | Affirmed | $ 500 |
| 2 | Affirmed | S 400 |
| 3 | Affirmed | S 800 |
| 4 | Affirmed | $1,000 |
| 5 | Affirmed | S 600 |
| 6 | Affirmed | $ 800 |
| 7 | Affirmed | $ 600 |
| 8 | Affirmed | $ 800 |
| 9 | Affirmed | $ 800 |
| 10 | Affirmed | $ 700 |
| 11 | Affirmed | $ 800 |
| 12 | Affirmed | S 600 |
| 13 | Affirmed | $ 600 |
| 14 | Vacated - 1 | |
| Affirmed - 2 | $ 300 | |
| 15 | Affirmed | $ 500 |
| 16 | Affirmed | $ 500 |
| 17 | Affirmed | $ 500 |
| 18 | Affirmed | $ 700 |
| 19 | Affirmed | $ 700 |
Citation Two (Willful)
| Item No. | Disposition | Assessed Penalty |
| 1 | Affirmed | $8,000 |
| 2 | Affirmed | $80000 |
Citation Three ("Other")
| Item No. | Disposition | Assessed Penalty |
| 1 | Affirmed | None |
| 2 | Affirmed | None |
Dated this 6th day of December, 1990.
JAMES D. BURROUGHS
Judge
FOOTNOTES:
[[1]] Throughout these proceedings, Trinity has repeatedly asserted that there are "three separate plants" at the workplace in question. All of the record evidence, however, is consistent in indicating that the facility was divided administratively into only two plants. Moreover, there is no indication in the evidentiary record that there was a third building at the site.
[[2]] The complaint itself is not in the record although the record does include a summary of the complaint that was prepared by OSHA and attached to its warrant application, which we discuss infra. The complaint summary and the record as a whole are silent as to the identity of the person who filed the complaint. Nevertheless, we conclude that the record does establish that the person was an employee of Trinity at the time the complaint was filed. In support, we note that OSHA's warrant application contains a sworn statement by the OSHA Area Director that the complaint was filed by an employee of Trinity. We also note that OSHA's published procedural guidelines required it to determine whether the person filing the complaint was either a past or present Trinity employee. There is no allegation by Trinity and no reason to believe on this record. that OSHA failed to comply with its published procedures in its handling of this complaint.
[[3]] These "formality requirements," which are set forth in Chapter IX of the FOM are derived from the Act itself. Thus, section 8(f)(1) provides, in pertinent part, as follows:
(1) Any employees or representative of employees who believe
that a violation of a safety or health standard exists that threatens physical harm or
that an imminent danger exists, may request an inspection by giving notice to the
Secretary or his authorized representative of such violation or danger. Any such notice
shall be reduced to writing, shall set forth with reasonable particularity
the grounds for the notice. and shall be signed by the employees or
representative of employees, and a copy shall be provided the employer or his agent
no later than at the time of inspection, except that, upon the request of the person
giving such notice, his name and the names of individual employees referred to therein
shall not appear in such copy .... If upon receipt of such notification the Secretary
determines there are reasonable grounds to believe that such violation or danger exists,
he shall make a special inspection in accordance with the provisions of this section as
soon as practicable to determine if such violation or danger exists.
(Emphasis added).
[[4]] Specifically, the OSHA area director stated in his warrant affidavit: "In my opinion as an experienced safety and health investigator, the complaint alleges serious conditions that are covered by OSHA Standards 29 CFR §§ 1910.37, 1910.101, 1910.304, and other parts." He also averred that OSHA had "determined that there are reasonable grounds to believe that such violations exist or have existed during the last six months, so as to require an inspection under Section 8(f)(1) of the Act.
[[5]] OSHA attached to its warrant application pertinent provisions of Chapter III and IX of its FOM. As indicated previously, Chapter IX governs OSHA's evaluation and response to section 8(f)(1) complaints. Chapter III contains the principal guidelines governing OSHA's determination as to whether a resulting inspection will be a limited inspection or a full-scope inspection. However, other relevant provisions are found in Chapter II of the FOM, which was not attached to the warrant application. In particular, Chapter II contains the exemption for workplaces that, prior to OSHA's receipt of the 8(f)(1) complaint, have already been subjected to a comprehensive safety inspection, during the same fiscal year or the two preceding fiscal years. We note that, while Chapter II was not attached to the warrant application, the Chapter II exemptions are incorporated by reference into Chapter III, which are provided to the magistrate.
[[6]] In his July 29,1988 order, which we discuss fully herein, Magistrate Steinberg stated the following concerning OSHA's request for access to Trinity's records:
Trinity's LWDI Rate cannot be calculated without the data contained in its injury and illness records. OSHA is not seeking access to all of Trinity's files in order to obtain the data. The records OSHA seeks to inspect are those that Trinity, like every other employer, is required to keep and make available for inspection under the Act. See 29 U.S.C. § 657(c)(2); 29 CFR §§ 1904.1-4; id., § 1904.7(a).
Both the Secretary and Trinity, as well as Judge Burroughs,
have proceeded to analyze the issues in these cases on the basis of the same premise that
was expressly stated by the magistrate. We therefore will likewise proceed under the
premise that the authorization sought and obtained by the Secretary for access to
Trinity's records was an authorization limited to so-called "required records."
[[7]] Section 8(a) of the Act, 29 U.S.C. 657(a), provides, as follows:
(a) Authority of Secretary to enter, inspect, and investigate places of employment; time and manner
In order to carry out the purposes of this Act, the Secretary,
upon presenting appropriate credentials to the owner, operator, or agent in charge is
authorized-
(1) to enter without delay and at reasonable times any factory, plant, establishment,
construction site. or other area, workplace or environment where work is performed by an
employee of an ernployer; and
(2) to inspect and investigate during regular working hours and at other reasonable times,
and within reasonable limits and in a reasonable manner, any such place of employment and
all pertinent conditions, structures, machines, apparatus, devices, equipment, and
materials therein, and to question privately any such employer, owner, operator agent or
employee.
[[8]] As a result of the separation of the OSHA inspection into two distinct parts, one limited to the 8(f)(1) complaint and the other a full-scope inspection of the entire facility, the issue that was raised before Magistrate Steinberg and renewed before Judge Sparks in Docket No. 88-2691, of whether the warrant application provided sufficient probable cause a to conduct a "special inspection" under § 8(f)(1), is not before us in these proceedings.
[[9]] filed these motions with Judge Burroughs the day after the United States Court of Appeals for the Sixth Circuit issued a decision terminating Trinity's judicial challenge to the validity of the February 25, 1988 inspection warrant. In its order, the Sixth Circuit dismissed Trinity's appeal from the district court's decision upholding the validity of the warrant. The appellate court, however, did not determine the correctness of the district court's ruling. Instead, it dismissed the case on procedural grounds. Noting that inspection had been conducted under the warrant, that citations had been issue 1, and that administrative proceedings had been initiated before the Commission, it held in effect that Trinity was required to exhaust its administrative remedies in the Commission proceedings before it could continue to pursue its judicial challenge. The court expressly stated that its ruling "should not be construed to foreclose Trinity from pursuing any of its contentions pertaining to the validity of the warrant" in either proceedings.
[[10]] The Secretary attempts to frame the issue before us differently. She argues that Trinity's Fourth Amendment rights were not violated because the evidence she introduced in this consolidated proceeding was gathered by OSHA pursuant to two valid inspection warrants. The first of these warrants, the Secretary asserts, was the one issued by Magistrate Steinberg in February 1988, and the second administrative inspection warrant was obtained by OSHA, on the basis of two additional section 8(f)(1) employee complaints, on April 7, 1989, approximately five weeks before Trinity allowed OSHA into its workplace to conduct the full-scope inspection that led to these proceedings. However, while the Secretary has repeatedly made the factual assertion that the inspection was conducted pursuant to both warrants, she has made no effort whatsoever to incorporate the second warrant into her legal arguments. On the contrary, the legal arguments presented by the Secretary on review do not in any way rely on the existence of the second warrant. Instead, the Secretary's review brief is directed to precisely the same issue that was addressed by Magistrate Steinberg, by Judge Burroughs, and by Trinity in its review briefs. i.e., the question of whether the Secretary's February 25, 1988 warrant application established administrative probable cause to support a full-scope inspection of the Sharonville facility. Accordingly, since both parties have focused on the same legal issue in their review briefs, it is that issue and that issue alone that we will address in our decision.
[[11]] In this regard, it is significant that the full-scope
inspection is not triggered under the administrative plan by OSHA's receipt of any and all
complaints of unsafe working conditions. Instead, the full-scope inspection can only be
triggered by OSHA's receipt of a complaint that meets the "formality
requirements" of section 8(f)(1), as set forth supra in our statement of facts. The
application of these "formality requirements" has the effect of weeding out, for
example, anonymous complaints. unsigned complaints, nonspecific complaints. and complaints
of conditions that are not in violation of the Act. This results in significant protection
for employers against employees who seek to abuse the statutory complaint inspection
procedures.
In addition, section 8(f)(1) expressly requires OSHA to make a determination that there
are "reasonable grounds to believe" that the violations and hazards alleged in
the complaint in fact "exist" before undertaking an inspection of the employer's
workplace. Chapter IX of the FOM, which is part of the administrative plan at issue in
these cases, contains several provisions implementing this statutory requirement. For
example, the person evaluating the complaint is instructed to comply with the following
guidelines:
[The complainant will normally have to be contacted, when possible, either for additional facts or to verify facts supplied. The evaluator must exercise professional judgment on the basis of the information available to decide whether or not there are reasonable grounds to believe that a violation exists and, if so, how it should be classified.
This instruction is followed by a lengthy list of suggested questions for the evaluator to ask the complaining employee, which provides the evaluator with more detailed and specific information about the complaining employee's allegations so that the evaluator is better able to exercise his or her "professional judgment" in determining whether "there are reasonable grounds to believe that a violation exists."
[[12]] Another, less important, distinction is the fact that the complaining party in Sarasota Concrete was a recently-discharged former employee who "very well may have been motivated by revenge." 693 F.2d at 1070.
[[13]] In view of our conclusion. that Trinity Fourth Amendment
rights were not violated. we need not address the Secretary's alternative arguments
concerning the application of the exclusionary rule and the good faith exception to the
exclusionary rule in the context of this consolidated Commission proceeding.
[[1]] Trinity took over the Mosteller Road facility on January 1, 1987. Prior to that time, the facility was owned and operated by Brighton Corporation. Brighton Corporation apparently also manufactured tanks and pressure vessels, and many employees of Brighton Corporation stayed on to work for Trinity (Tr. 206, 477).
[[2]] Section 1910.134(d)(2)(ii) provides:
The compressor for supplying air shall be equipped with necessary safety and standby devices. A breathing air-type compressor shall be used. Compressors shall be constructed and situated so as to avoid entry of contaminated air into the system and suitable in-line air purifying sorbent beds and filters installed to further assure breathing air quality. A receiver of sufficient capacity to enable the respirator wearer to escape from a contaminated atmosphere in event of compressor failure, and alarms to indicate compressor failure and overheating shall be installed in the system. If an oil-lubricated compressor is used, it shall have a high-temperature or carbon monoxide alarm, or both. If only a high-temperature alarm is used, the air from the compressor shall be frequently tested for carbon monoxide to insure that it meets the specifications in paragraph (d)(1) of this section.
[[3]] Section 1910.1200(f)(5)(i) provides:
[T]he employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the following information:
(i) Identity of the hazardous chemical(s) contained therein; and
[[4]] Section 1910.1200(h) states:
(h) Employers shall provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area.
[[5]] Section 1910.1200(h)(2)(ii) provides:
(2) Employee training shall include at least:
(ii) The physical and health hazards of the chemicals in the work area.
[[6]] Sorgs testified that in December 1987, while he was washing up at work, he noticed that the water felt very filmy; and that by the time he got home, his face was swollen (Tr. 510). Trinity had the water tested and discovered that it was contaminated with chemicals. January 1988, Trinity shut the water off and instructed employees not to use it.
[[7]] Section 1910.179(j)(3) provides:
Periodic Inspection. Complete inspections of the crane shall be performed at intervals as generally defined in paragraph (j)(1)(ii)(b) of this section, depending upon its activity, severity of service, and environment, or as specifically indicated below. These inspections shall include the requirements of paragraph (j)(2) of this section and in addition, the following items. Any deficiencies such as listed shall be carefully examined and determination made as to whether they constitute a safety hazard:
[[8]] Section 1910.179(n)(4)(i) provides:
Hoist limit switch. (i) At the beginning of each operator's shift, the upper limit switch of each hoist shall be tried out under no load. Extreme care shall be exercised; the block shall be "inched" into the limit or run in at slow speed. If the switch does not operate properly, the appointed person shall be immediately notified.
[[9]] Section 1910.4184(c)(9) provides:
All employees shall be kept clear of loads about to be lifted and of suspended loads.
[[10]] Section 1910.212(a)(1) states:
One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are barrier guards, two-hand tripping devices, electronic safety devices, etc.
[[11]] The holddown is a clamping mechanism that comes down first and holds the metal in position so that it does not move before the shear blade comes down and cuts the metal (Tr. 366-367).
[[12]] Section 1910.212(a)(1) of 29 C.F.R. provides:
(a) Machine guarding--(1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are--barrier guards, two-hand tripping devices, electronic safety devices, etc.
[[13]] Collins noted that OSHA had had cases where employees rested their hands or leaned into that type of location and had their fingers caught on the drive belt (Tr. 403-404).
[[14]] Section 1910.219(f)(1) provides:
Gears shall be guarded in accordance with one of the following methods:
(i) By a complete enclosure;
[[15]] Section 1910.303(b)(2) of 29 C.F.R. provides:
Listed or labeled equipment shall be used or installed in accordance with any instructions included in the listing or labeling.
[[16]] Section 1910.304(a)(2) of 29 C.F.R. provides:
No grounded conductor may be attached to any terminal or lead so as to reverse designated polarity.
[[17]] Section 1910.304(f)(4) of 29 C.F.R. provides:
The path to ground from circuits, equipment, and enclosures
shall be permanent and continuous.