Osha citations

10103360
SPECIAL REPORT
OSHA
Citations:
Missteps to Avoid

10103300
SPECIAL REPORT
OSHA
Citations:
Missteps to Avoid

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OSHA Citations: Missteps to Avoid

©Business & Legal Reports,Inc.10103300
Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Requirements for a Citation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Applicability of the Cited Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Employer’s Noncompliance with the Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Employee Access to the Violative Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Employer’s Actual or Constructive Knowledge of the Violation . . . . . . . . . . . . . . 2
Types of Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Case No. 1: Secretary of Labor v. Wal-Mart Super Center . . . . . . . . . . . . . 4
(OSHRC Docket No.03-0392)
Case No. 2: Secretary of Labor v. C. F. McDonald
Electric, Inc. and IBEW, Local Union 716 . . . . . . . . . . . . . . . . . 6
Case No. 3: Secretary of Labor v. Structural Building Systems, Inc. . . . . . 9
Case No. 4: Secretary of Labor v. White Wave, Inc. . . . . . . . . . . . . . . . . . 12
Case No. 5: Secretary of Labor v. Native Textile Company . . . . . . . . . . . . 15
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Introduction
Most employers try,in the words of the General Duty Clause,“to furnish to each of
their employees employment and a place of employment which is free from rec-
ognized hazards that are causing or likely to cause death or serious physical harm
to those employees.”They also try to comply with the OSHA standards that apply
to their business operations.However,when OSHA inspections occur,or when an
accident happens and OSHA investigates,compliance officers (CO) often feel that
employers have not done an adequate job of training workers,removing physical
hazards,and enforcing safety rules.If so,they may issue citations carrying heavy
penalties.
If a company believes that a citation is in error,or that the penalty is excessive,it
has 15 working days after receipt of the citation to file an intention to contest it
before the independent Occupational Safety and Health Review Commission
(OSHRC).This report will attempt to identify some of the factors the OSHRC takes
into account in determining whether a company should be cited and how severe
the penalty should be if a citation is upheld.
The facts of the five cases have been condensed and paraphrased but much of
the original wording has been used to ensure accurate reporting.Quotation marks
have been used only for language from the decisions themselves,other court
decisions,or sections from the regulations.
Requirements for a Citation
The Secretary of Labor has the burden of proving the alleged violations are valid
by a preponderance of the evidence.In order to establish a violation of an occu-
pational safety or health standard,the Secretary has the burden of proving all four
of the following:
N “The applicability of the cited standard
N “The employer’s noncompliance with the standard’s terms
N “Employee access to the violative conditions
N “The employer’s actual or constructive knowledge of the violation”
1

Applicability of the Cited Standard
There are several ways in which applicability may be an issue.In most instances,
an employer will agree that it is subject to OSHA’s regulation,but consider these
possibilities:
N You are a general contractor on a construction site when one of the subcon-
tractor’s employees is injured.Do you have any responsibility?
N You are a subcontractor but the general contractor neglected to inform
you about an important safety hazard on the worksite.Should you be the
one cited?
N You are an employer who hires an outside contractor to make repairs and
one of the contractor’s employees is injured.Could OSHA blame you?
N You use temporary workers hired from an agency—who is responsible for
their training?
N Did the conditions covered by the standard exist? If they don’t exist,there
cannot be a question of compliance or noncompliance.
Employer’s Noncompliance with the Standard
N Often an employer will think that it is in compliance,but OSHA will disagree.
N Sometimes an OSHA regulation cannot be followed because of an unusual
set of facts,but the employer will have attempted to use a safe alternative.
N An employer may agree that a standard was violated but contend that it was
because of unpreventable employee misconduct.
Employee Access to the Violative Conditions
N What if there is a hazardous chemical somewhere on-site but most workers
are in no danger of possible exposure?
N How about a machine without a guard but workers will never get close to it?
Employer’s Actual or Constructive Knowledge
Of the Violation
N If a supervisor knew about the violation or was responsible for it,the courts
will consider that the employer had knowledge.
N If there were supposed to be inspections that would have revealed the situa-
tion,the employer can be held responsible.
N If the employer could have known by exercising reasonable diligence,the
court will consider that there was knowledge.
2 OSHA Citations: Missteps to Avoid

All of these criteria must be met before a citation will be upheld.The facts of the
case are used to determine whether these conditions exist.The defenses that can
be offered by an employer also depend on the facts.In the cases that follow we
will see examples of some of the arguments that can be put forth by an employer
to prevent an OSHA citation.
Types of Violations
There are several different types of violations defined under the OSH Act and the
range of penalties varies accordingly.Most serious is a willful violation,defined by
OSHA as one committed with an intentional disregard of,or plain indifference to,
the requirements of the OSH Act and regulations.An employer may be assessed a
civil penalty of not more than $70,000 for each violation,but not less than $5,000
for each willful violation.
A serious violation is one in which there is substantial probability that death or
serious physical harm could result,and the employer knew,or should have
known,of the hazard.Any employer who has received a citation for a serious
violation shall be assessed a civil penalty of up to $7,000 for each such violation.
Any employer that has received a citation for a violation specifically determined
not to be of a serious nature may be assessed a civil penalty of up to $7,000 for
each violation.
“A violation should be classified as de minimis when there is technical noncom-
pliance with a standard but the violation has such a negligible relationship to the
safety or health of employees that it is not appropriate to order abatement or
assess a penalty.”
In addition to classifying the violation,the Review Commission looks at whether
the violation is determined to be a repeat offense.The Commission holds that the
“principal factor to be considered in determining whether a violation is repeated
is whether the prior and instant violations resulted in substantially similar haz-
ards.”Citations involving the same standard and applied to similar conditions of
employee exposure to similar hazards are repeat violations.The Commission has
held that a violation can be considered repeat even if the same or substantially
similar violation occurred at different locations.In addition,employers can receive
failure to abate citations when they have not corrected violations by the period of
time required in earlier OSHA citations they have received.Both repeat and failure
to abate violations are factors that increase the amount of penalties assessed.
The cases that follow have been excerpted from final decisions by the administra-
tive law judges of the Review Commission.
3

Case No. 1: Secretary of Labor v.
Wal-Mart Super Center
(OSHRC Docket No. 03-0392)
Facts of the Case
Wal-Mart Super Center is a retail sales store in Hoover,Alabama.On November 21,
2002,based on a formal complaint regarding possible hazardous conditions in
the receiving area,OSHA CO Gwendolyn Marino conducted an inspection of the
stockroom/receiving area of the store and took photographs.She observed and
interviewed seven employees working in the area stacking boxes and unloading
trucks.The boxes,which blocked the aisles,were in plain view.
She spoke with Manager Glen Smith,who admitted that the receiving/stockroom
area had been full of boxes for the previous 3 or 4 weeks (since the beginning of
November) because of the upcoming holiday season.Previous decisions have
established that when a supervisory employee has actual or constructive knowl-
edge of the violative conditions,that knowledge is imputed to the employer.
The Secretary alleges a repeat violation of 29 CFR 1910.37(k)(2) and
proposes a penalty of $25,000.
On or about November 21,2002,in stockroom/ receiving area,boxes were being
stored in the aisle ways allowing minimal or no access to the exit throughout the
stockroom/receiving area.Wal-Mart Stores,Inc.,was previously cited for a violation
of the OSH standard which was contained in OSHA inspection number
300652641,Citation 1,Item 1,issued on 05/23/00,to the Waycross,GA,store #0556.
29 CFR 1910.37(k)(2) provides:
“(k) Maintenance and workmanship. (2) Means of egress shall be continu-
ously maintained free of all obstructions or impediments to full instant use in
the case of fire or other emergency.”
Section 1910.35(a) defines means of egress as“a continuous and unob-
structed way of exit travel from any point in a building or structure to a public
way and consists of three separate and distinct parts: the way of exit access,
the exit,and the way of exit discharge.”
The Secretary contends that the means of egress to the one emergency exit door
in the stockroom/receiving area was blocked by various obstructions.Of the four
aisles in the stockroom/receiving area,it was undisputed that Aisles 1,2,and 3 were
totally blocked by boxes of merchandise,a forklift truck,and part of a conveyor rail
system.Aisle 4 was partially blocked with boxes,but there was a 44-inch-wide path-
way (as measured by Marino) through the aisle.The regulations require a minimum
width of 28 inches for a single way of exit access (29 CFR 1910.37(f)(6)).

Wal-Mart contends that there is no violation because Aisle 4 was never completely
blocked,and it was the designated means of egress for employees.Smith stated
that employees are instructed to keep Aisle 4 open,although he admitted that
there was no rule against blocking the aisles.Smith said he has never seen Aisle 4
completely blocked.Furthermore,Wal-Mart claims that all aisles would be cleared
at the end of the shift at 1:00 a.m.because boxes would be moved out to the
sales floor.
The standard requires a continuous and unobstructed means of egress.It is undis-
puted that three aisles were totally blocked.The short duration of exposure to a
violative condition is no defense against the evidence of a violation.
Wal-Mart argues that the violation is not serious because employees have had
emergency evacuation training; there is a sprinkler system in the stockroom/
receiving area; and the fire department is located only 1 mile away.Again,Wal-
Mart misses the point that the means of egress to the exit must be continuous and
unobstructed so that in an emergency,employees may quickly access the exit.In
such an emergency,employees could panic and forget their training.In case of a
fire,the sprinkler system might not be activated quickly enough and might not dis-
sipate the smoke.Also,the fire department could be delayed.Where every second
counts,employees could be seriously injured by any delay.
In this case,it cannot be concluded that Wal-Mart’s failure to comply with the stan-
dard has a“negligible relationship to the safety or health of employees.”Because
the means of egress was not continuous and unobstructed,employees’ safety was
compromised.As noted previously,employees could be subject to serious injury
or even death.Accordingly,the violation of 29 CFR 1910.37(k)(2) is AFFIRMED.
The Commission holds that the“principal factor to be considered in determining
whether a violation is repeated is whether the prior and instant violations resulted
in substantially similar hazards.”Both of these violations involve the same hazards
to employees of a blocked means of egress in case of fire or other emergency.
Accordingly,these two violations are substantially similar.In short it is not unrealis-
tic to require that an employer observe the law (as with any other statute) in all
locations where it transacts business.The violation of 29 CFR 1910.37(k)(2) is
AFFIRMED as a repeat violation.
Penalty Assessment
Section 17(j) of the Act requires that when assessing penalties,the Commission
must give“due consideration”to four criteria:
N The size of the employer’s business
N The gravity of the violation
N The good faith of the employer
N The prior history of violations
Generally,the gravity of the violation is the primary consideration in assessing
penalties.The gravity of a particular violation“depends upon such matters as the
number of employees exposed,the duration of the exposure,the precautions
taken against injury,and the likelihood that any injury would result.”
5

Wal-Mart Stores,Inc.,is an extremely large company employing over 1 million
employees,including 500 at this location.OSHA’s recommended penalties did not
include any reduction for gravity or good faith because the violation was repeat.
Wal-Mart,however,exhibited good faith and was cooperative during the inspec-
tion.After due consideration of the factors discussed above,it is determined that a
penalty of $5,000 is appropriate for this violation.
C. F. McDonald Electric, Inc. and
IBEW, Local Union 716
Facts of the Case
The citations were issued following the investigation of an accident in which a
worker was electrocuted.McDonald Electric has been in business as an electrical
contractor since 1956 and on NASA’s approved list of electrical contractors for
over 25 years.NASA awarded McDonald the contract to renovate the electrical
work for Building 37 at NASA’s Johnson Space Center in Houston,TX.
One phase of the project required the relocation of two generators at Building 37
to a new location across the parking lot.On August 29,2002,McDonald began to
physically relocate the generators.To move the generators,McDonald employees
had to disconnect them from the line that connected them to two separate junc-
tion boxes (J-boxes),move them by crane 25 to 30 feet,and reconnect them to
the J-boxes with the newly laid wires.The J-boxes contained power lines that con-
nected several different circuits.These circuits were connected to several different
power sources,including to Houston Utility Power inside the building,to the gen-
erators themselves,to battery chargers,to battery charger heaters,and to
crankcase heaters.
At approximately 7:30 a.m.,the project foreman,Steve Lovelace,tested the circuits
at both J-boxes with a voltage meter known as a“Wiggie.” The Wiggie measured
zero voltage.Lovelace told the crew to begin disconnecting the generators.After a
crew finished disconnecting the generators from their J-boxes,the crane operator
moved the generators to the new location.
Lovelace informed two electricians,Horace Blackmon and Ryan Henderson,that
he had already tested the circuits and found no voltage,and instructed them to
reconnect the larger generator to the J-box.While working at the generator,
Henderson had to reach over the plate and place his hand into the generator so
that he could see the wires.When he was placing the wires on the terminal strip
inside the generator,Henderson received an electrical shock,which caused him

to slam his nose into the plate.Blackmon and Henderson walked to the J-box and
Blackmon tested the circuits at the J-box.He detected voltage and disconnected
two wires at the J-box.Blackmon instructed Henderson to go to the bathroom to
tend to his bleeding nose.
A minute later Henderson heard Blackmon yell.Henderson rushed to the J-box,
where Blackmon was leaning with his left arm on top of the J-box cover,obviously
in distress.Henderson tried to push Blackmon away from the J-box by his waist,
but received an electrical shock.Henderson then grabbed Blackmon by the ankle
and pulled him away from the J-box.Paramedics arrived and took Blackmon to
the hospital,where he died 2 days later.
McDonald’s electrical expert,Dr.Edsil Hamilton,Ph.D.,subsequently traced the
energized circuit.He speculated that the circuit to the battery charger heater was
energized.How it became energized is unknown.
The Secretary alleges that McDonald committed a serious violation
of 29 CFR 1926.20(b)(2), which provides:
“Such [safety] programs shall provide for frequent and regular inspections of
the job sites,materials,and equipment to be made by competent persons des-
ignated by the employers.”
Section 1926.32(f) defines“competent person”as“one who is capable of
identifying existing and predictable hazards in the surroundings or working
conditions which are unsanitary,hazardous,or dangerous to employees,and
who has authorization to take prompt corrective measures to eliminate them.”
The citation alleges that McDonald’s employees“were working on energized
equipment while terminating conductors at a junction box without a competent
person present.”It is noted that the cited standard does not require that a compe-
tent person be present while employees are working,only that the competent per-
son make frequent and regular inspections of the worksite and equipment.
Lovelace was McDonald’s designated competent person at the Building 37 site.
Lovelace is a licensed electrician who was trained in the recognition of hazards
during his apprenticeship.McDonald trained its foreman in recognition of hazards
at the NASA worksites.The Secretary does not dispute Lovelace’s qualifications as
a competent person.
Section 1926.20(b)(2) requires that the competent person conduct frequent
and regular inspections of the site,but it does not set a specific schedule for the
inspections.Inspections do not have to be documented,and the competent per-
son is not required to maintain a continuous presence on the site.Lovelace con-
ducted a full hazard assessment on a weekly basis,and walked the jobsite daily
looking for potential hazards and unsafe conditions.
The Secretary contends that Lovelace did not conduct an adequate inspection on
the day of Blackmon’s fatality and that Lovelace was not present when Blackmon
and Henderson were reconnecting the generator.Section 1926.20(b)(2) does not
impose either of these requirements.
7

The Secretary alleges a serious violation of 29 CFR 1926.21(b)(2),
which provides:
“The employer shall instruct each employee in the recognition and avoidance
of unsafe conditions and the regulations applicable to his work environment
to control or eliminate any hazards or other exposure to illness or injury.”
“An employer complies with 1926.21(b)(2) when it instructs its employees about
the hazards they may encounter on the job and the regulations applicable to those
hazards.”McDonald’s electricians are members of International Brotherhood of
Electrical Workers (IBEW) Local 716,whose apprenticeship program is conducted
by the National Joint Apprenticeship Training Committee.McDonald develops a
specific Hazard Communication Plan for each project site at NASA.McDonald has a
written safety program,which requires regular safety meetings.Lovelace conducted
weekly safety meetings on the NASA jobsite.During these meetings,Lovelace
instructed the employees in the recognition of hazards on the jobsite.On June 10,
2002,Lovelace held a safety meeting (which Blackmon and Henderson attended)
where he addressed the use of personal protective equipment (PPE) and what to
do in the event of an unsafe situation.
McDonald has demonstrated that it instructed its employees specifically in the
recognition and avoidance of hazards they were likely to face on the project.The
Secretary has failed to establish a violation of 1926.21(b)(2).
Alleged serious violations of 1926.28(a), 95(a), and 102(a)(1) all cite
standards requiring the use of PPE.The cited standards provide:
1926.28(a): “The employer is responsible for requiring the wearing of appro-
priate PPE in all operations where there is an exposure to hazardous condi-
tions or where this part indicates the need for using such equipment to
reduce the hazards to employees.”
1926.95(a): “Protective equipment,including PPE for eyes,face,head,and
extremities,protective clothing,respiratory devices,and protective shields and
barriers,shall be provided,used,and maintained in a sanitary and reliable
condition wherever it is necessary by reason of hazards of processes or envi-
ronment,chemical hazards,radiological hazards,or mechanical irritants
encountered in a manner capable of causing injury or impairment in the
function of any part of the body through absorption,inhalation,or physical
contact.”
1926.102(a)(1): “Employees shall be provided with eye and face protection
equipment when machines or operations present potential eye or face injury
from physical,chemical,or radiation agents.”
It is undisputed that neither Blackmon nor Henderson,nor any of the other mem-
bers of Lovelace’s crew,were wearing any form of PPE,including lineman’s
sleeves,low voltage gloves,or eye and face shields.
McDonald furnishes PPE for its employees working on circuits that could be reen-
ergized,including lineman’s sleeves,low voltage gloves,and face and eye equip-
ment.The PPE was available in McDonald’s gang box on the site and in
McDonald’s truck parked at the site.

McDonald argues that Blackmon and Henderson were working on a deenergized
circuit,and thus were not required to wear PPE.The Secretary presented no evi-
dence to show that PPE was“necessary by reasons of hazards of processes or
environment,”or“where there was exposure to hazardous conditions,”or that
“machines or operations present potential eye or face injury.”
McDonald’s witness,Dr.Hamilton,is a professional electrical engineer who testi-
fied as an expert on electrical circuitry and the causes of electrical shock.He tes-
tified without contradiction that Lovelace’s assumption that the circuits were
deenergized because of the“no voltage”reading on the Wiggie was in line with
the custom of the electrical industry.Up until the time of Henderson’s initial
shock,McDonald had no actual or constructive knowledge that PPE was required
for its employees.
The Secretary alleges a serious violation of 1926.416(a)(1),
which provides:
“No employer shall permit an employee to work in such proximity to any part
of an electric power circuit that the employee could contact the electric
power circuit in the course of work,unless the employee is protected against
the electric shock by deenergizing the circuit and grounding it or by guarding
it effectively by insulation or other means.”
McDonald thought it had fully disconnected the equipment.Because Lovelace
had tested the generators and J-box and had found no voltage,McDonald con-
tends it was reasonable to assume that the circuits were already deenergized and
that the actions required by 1926.416(a)(1) were already complied with.
McDonald argues that once the Wiggie measured zero voltage,there was nothing
to deenergize or insulate.
The Secretary failed to establish a violation of any of these standards.Therefore,
the citations are VACATED and no penalty is assessed.
Structural Building Systems, Inc.
Unpreventible Employee Misconduct
In some situations,employers may agree that a violation of a standard has
occurred but argue that they could not have prevented it—rather it was a case of
unpreventible employee misconduct.
9

In order to establish unpreventible employee misconduct,the Review
Commission requires an employer to prove that it has:
N “Established work rules designed to prevent the violation
N “Adequately communicated these work rules to its employees
N “Taken steps to discover violations
N “Effectively enforced the rules when violations are discovered”
Facts of the Case
Structural Building Systems,Inc.(SBS) supplies labor to contractors for concrete
placement,carpentry,and steel erection work in Ohio.On December 31,2002,SBS
employees were engaged in steel erection work for a new middle school in Bay
Village,OH,when an ironworker sustained head and other injuries after falling
approximately 20 feet.The ironworker was not utilizing any fall protection.
On New Year’s Eve,December 31,2002,a crew of six ironworkers started work at
approximately 7:00 a.m.The weather was misty and hazy.The temperature was
approximately 35 degrees Fahrenheit.As the morning progressed,it began to rain
and sleet.
Because the steel was becoming“pretty wet and slippery,”superintendent Michael
Cooper and foreman Anthony Hejl elected to“wrap it up”after the morning break
and not lay any roof decking.Before going home,foreman Hejl directed the crew
to tie down the decking bundles and secure the job.
While other employees were securing the materials,foreman Hejl asked employee
Troy Yates,who was also on the roof,to assist him in moving a 20-foot piece of
2-inch x 2-inch steel tubing several feet over steel joists to be welded before the
roof decking was installed.The tube weighed approximately 200 pounds and was
lying on a piece of unsecured steel decking next to a mason wall.The roof was
otherwise framed in joists and trusses.No other pieces of roof decking were in the
area.The roof was approximately 20 feet above ground level.
AsYates,who was in the lead,moved the steel tube over the steel joists,the end of
the steel tube Hejl was holding struck the mason wall which caused the tube to
vibrate and Yates to lose his balance.Yates fell approximately 20 feet to the con-
crete floor.Although both men were wearing harnesses and lanyards,neither Yates
nor Hejl was tied off or utilizing any fall protection.Hejl testified that he was sim-
ply in a hurry to move the steel tube and end the work for the day.
As a result of the fall,Yates sustained head,face,and arm injuries and was in the
hospital for several weeks.At the time of the hearing in this case,he had still not
returned to work.
Citation
The citation alleges that SBS’s ironworker was not protected from a fall hazard
while working on a single sheet of steel deck approximately 20 feet above the
ground.The citation proposes a penalty of $4,200.SBS contested the citation.

Section 1926.760(a)(1) provides:
“Except as provided by paragraph (a)(3) of this section,each employee
engaged in a steel erection activity who is on a walking/working surface
with an unprotected side or edge more than 15 feet (4.6 m) above a lower
level shall be protected from fall hazards by guardrail systems,safety net
systems,personal fall arrest systems,positioning device systems,or fall
restraint systems.”
SBS concedes that Yates and Hejl were not utilizing fall protection at the time of
the accident.They also agreed that fall protection was available and should have
been utilized by them.SBS asserts that any violation of 1926.760(a)(1) was the
result of supervisor and employee misconduct.
SBS agrees that employer knowledge is established by the presence and participa-
tion of Hejl,a foreman for SBS for 4 years.He supervised the employees in the
steel erection crew.He had the authority to discipline the employees and direct
their work activities,and was responsible for their safety.Hejl directed Yates to
move the steel tube,knowing that fall protection was not being utilized.An
employee such as Hejl,who had been delegated authority over other SBS employ-
ees,even if only temporarily,is considered to be a supervisor for purposes of
imputing knowledge to an employee.
The 6th Circuit has further held that“an employer must show that:
N “It has a thorough safety program.
N “It has communicated and fully enforced the program.
N “The conduct of the employee was unforeseeable.
N “The safety program was effective in theory and practice.”
“An employer that relies on the presence of an effective safety program to establish
that it could not have reasonably foreseen the aberrant behavior of its employee
must demonstrate the program’s effectiveness in practice as well as theory.Where
a supervisory employee is involved,the proof of unpreventible employee miscon-
duct is more rigorous and the defense is more difficult to establish since it is the
supervisor’s duty to protect the safety of employees under his supervision.A super-
visor’s involvement in the misconduct is strong evidence that the employer’s safety
program was lax.”
As an essential element of the employee misconduct defense,the employer needs
to establish that it has a work rule designed to prevent the violation.A work rule is
defined as“an employer directive that requires or proscribes certain conduct,and
that is communicated to employees in such a manner that its mandatory nature is
made explicit and its scope clearly understood.”
Having reviewed the record and its safety program,SBS’s employee misconduct
defense is rejected.SBS failed to show that it had a specific work rule addressing
the hazard confronting the employees on December 31,2002,which was ade-
quately communicated and enforced.Although a supervisor’s participation in the
violation does not itself establish that a safety program is inadequate,safety infrac-
tions by supervisors are evidence of poor communication and implementation of
a safety program.
11

Adequate enforcement is also viewed as a critical element of the employee mis-
conduct defense.To show that an employer’s disciplinary system is more than a
paper program,an employer must have evidence of actually administering the dis-
cipline outlined in its policy and procedures.There should be a showing that dis-
ciplinary action progressed to higher levels of punishment designed to provide
deterrence.Besides receiving verbal and written reprimands,there is also no
showing that any employee received a suspension,lost pay,or was terminated for
safety infractions.Evidence showing a failure to progress to higher levels of disci-
pline may show ineffective enforcement.Also,the repeated noncompliance of
work rules and the number of employees involved in misconduct are indications
of ineffective enforcement.
Based on the presence of foreman Hejl and the exposure to a fall hazard of
approximately 20 feet without fall protection,the violation was properly classified
as serious.Hejl’s knowledge of the unsafe condition is imputed to SBS.Also,Yates’s
injuries show the serious nature of the violation.Employee Yates suffered head
and face injuries.He spent several weeks in the hospital,received worker’s com-
pensation,and as of September 20,2003,has been unable to return to work even
in a plant job.
A serious violation of 1926.760(a)(1) is AFFIRMED and a penalty of $4,000 is
assessed.
White Wave, Inc.
Facts of the Case
On February 26,2003,OSHA CO Todd Zentner conducted an inspection of White
Wave’s worksite.Zentner testified that he spoke with Charles Turner,an employee
who worked both in White Wave’s formulations and tempeh cooker area,regard-
ing his use of Daybright Bleach in the course of his work.Approximately four
times a week,Turner adds half of a 1-gallon bottle of bleach to a stainless steel
“hopper”; he then fills the hopper with 20-25 gallons of water and attaches it to a
steam kettle in the area.
Zentner testified that bleach,which is comparable to the Clorox one would buy at
any grocery store,contains sodium hyperchloride,an eye and skin irritant.The
concentrations in which the bleach was used were lower than those used by ordi-
nary consumers of such bleach.Zentner stated that White Wave’s use of the
bleach differed from that of an ordinary consumer in that Turner poured the
bleach directly from the bottle into the hopper,creating a splashing hazard.The
CO felt,therefore,that PPE was required for performance of the task.

At the hearing,Turner testified that when sanitizing the hopper,he poured a meas-
ured 21⁄2 cups of bleach into the hopper using a 2-cup container with a handle
and spout.Turner did not believe that the operation posed any hazard requiring
gloves or goggles,though he did wear gloves and safety glasses at all times in the
tempeh area.Turner stated that he did not and,in fact,could not,turn his head
because of a medical condition.
The Secretary alleges violations of 1910.132(d).
Serious citation 1, item 1a, alleges:
29 CFR 1910.132(d)(1): “The employer did not assess the workplace to
determine if hazards are present,or are likely to be present,which necessitate
the use of PPE:
“The employer did not ensure that the workplace hazard assessment was
complete in that the task of handling and pouring Daybright Bleach was not
included,which necessitated the use of PPE.This condition exposed employ-
ees to eye and skin irritation.”
Serious citation 1, item 1b, alleges:
29 CFR 1910.132(d)(2): “The employer did not verify that the required work-
place hazard assessment has been performed through a written certification.”
Section 1910.132(d) requires that the employer determine if hazards are present
or likely to be present in the workplace that necessitate the use of PPE.The evi-
dence establishes that White Wave conducted such a hazard assessment.
Complainant maintains,however,that Respondent failed to include sterilization of
the tempeh cooker with bleach in its hazard assessment.The uncontradicted dep-
osition of White Wave’s plant manager establishes that Respondent considered the
task,but found no hazard requiring the use of PPE.The cited standard does not
require the documentation of every determination made while conducting the
hazard assessment.It requires only that hazards requiring PPE be identified.On
this record this judge cannot find a violation of 1910.132(d).Citation 1,item 1a,
is VACATED.
Because the hazard assessment did not identify the individual certifying the eval-
uation,Citation 1,item 1b,is AFFIRMED as a de minimis violation.“Though in tech-
nical noncompliance with the standard,White Wave’s departure from strict com-
pliance bears such a negligible relationship to employee safety or health as to
render inappropriate the assessment of a penalty or the entry of an abatement
order.”
The Secretary alleges a serious violation of 1910.134.
29 CFR 1910.134(c)(1): “A written respiratory protection program with
worksite-specific procedures,as specified in subparagraphs (c)(1)(i) through
(ix) of this section,was not established and implemented where respirator(s)
were necessary to protect the health of the employee or whenever respirator(s)
were required by the employer:”
The Secretary also claims that a written respiratory protection program with
worksite-specific procedures was not established and implemented whenever
respirators were required by the employer.The employer required the use of a
13

North 7700 half-face negative pressure,air-purifying respirator during the addi-
tion of chicken mix because employees were exposed to dust from the addi-
tion of food ingredients.
At the hearing Turner testified that,as part of his job in White Wave’s formulation
area,he pours powdered products into a tub,which is part of a machine that
mixes the ingredients,weighs them out,and packages the resulting product.
According to Turner,White Wave requires him to wear some kind of mask to cover
his nose and mouth while working in formulations.Turner stated that when he
first started working in the area,he used a paper dust mask.Shortly thereafter,Bill
Holden,the plant manager,offered to provide him with a 1⁄2-mask respirator with
disposable filters.Turner felt that the 1⁄2-mask did a better job of keeping out the
dust particles,and decided to continue using it.White Wave provided him with,
but did not require him to use,the 1⁄2-mask respirator.
White Wave’s October 2002 Hazard Assessment Respondent identifies dust as a
risk present in the formulations area.The assessment states that dust masks shall
be used when mixing dry ingredients.CO Turner stated that if a dust mask,rather
than a respirator,was required in the formulations area,there would be no viola-
tion of the cited standard.
The evidence in this case establishes that White Wave’s employee Turner was not
required,but voluntarily chose,to wear the cited 1⁄2-mask respirator.The cited
standard is inapplicable to the facts established at the hearing; therefore,this item
will be VACATED.
The Secretary alleges a repeat violation of 1910.1200(h).
29 CFR 1910.1200(h)(1): “Employees were not provided with effective infor-
mation and training as specified in 29 CFR 1910.1200 (h)(1) and (2) on haz-
ardous chemicals in their work area at the time of their initial assignment and
whenever a new hazard was introduced into their work area.”
The Secretary further alleges that the employer did not ensure employees
were provided effective information and training pertaining to hazardous
chemicals used in the workplace.Therefore,employees were exposed to skin
and eye irritation from contact with chemicals such as,but not limited to,
Daybright Bleach.
At the hearing,Turner testified that the day he was hired by White Wave,he went
through an orientation program that included training in hazard communication,
and was informed about the hazards associated with chemicals he would be
working with,including bleach.On June 6,2002,Charles Turner signed off on
White Wave’s new employee packet,indicating that he had received the hazard
communication orientation.
White Wave’s evidence establishes that employees in the tempeh department
did not use bleach significantly more frequently than a consumer with a lot of
laundry.

1910.1200(b)(6): Scope and application at subparagraph (ix) exempts from cov-
erage:“Any consumer product or hazardous substance … where the employer can
show that it is used in the workplace for the purpose intended by the chemical
manufacturer or importer of the product,and the use results in a duration and fre-
quency of exposure which is not greater than the range of exposures that could
reasonably be experienced by consumers when used for the purpose intended.”
Because White Wave’s use of bleach did not exceed the range of exposures that
could reasonably be experienced by consumers using the same kind of bleach,
this item is VACATED.
Native Textile Company
Facts of the Case
OSHA’s Albany office received a complaint alleging that the Native Textile
Company (NTC) knitting machines had missing covers and guards that exposed
employees to chains,sprockets,belts,and pulleys.CO Richard Yurczyk inspected
the mill on June 11,2001,and observed that while the faster-moving parts of the
machines were covered,the machines had slower-moving chains and sprockets,
many of which were not covered.He and plant manager Don Williams estimated
that about 60 of the 80 knitting machines that were running were missing at least
one guard or cover on the chains and sprockets,and some of the machines had
no guards at all on those parts.
He further observed six to seven employees working in the knitting machine area
while the machines were running,i.e.,operators checking fabric,mechanics work-
ing on machines,and individuals operating forklifts to remove rolls of fabric.The
CO determined that employees in the area could have gotten hair,fingers,or cloth-
ing caught in the moving chains and sprockets,which could have caused serious
injuries.An operator feeling the fabric,hitting a stop button,or retrieving a
dropped item could inadvertently get into the equipment,or a mechanic working
on one machine could accidentally contact the moving chains and sprockets of
another machine.The CO also determined that the violation was willful,because
of NTC’s knowledge of the condition,its efforts to guard the equipment,and a pre-
vious citation it had received for a similar condition.
The complaint alleges a willful violation of 29 CFR 1910.219(f)(3), which
provides,in relevant part,as follows:
“Sprockets and chains. All sprocket wheels and chains shall be enclosed
unless they are more than seven (7) feet above the floor or platform.”
15

“A willful violation is differentiated by a heightened awareness—of the illegality of
the conduct or conditions—and by a state of mind—conscious disregard or plain
indifference.There must be evidence that an employer knew of an applicable
standard or provision prohibiting the conduct or condition and consciously disre-
garded the standard.Without such evidence,there must be such reckless disre-
gard for employee safety or the requirements of the law generally that one can
infer that if the employer had known of the standard or provision,the employer
would not have cared that the conduct or conditions violated it.It is therefore not
enough for the Secretary simply to show carelessness or lack of diligence in dis-
covering or eliminating a violation.A willful charge is not justified if an employer
has made a good-faith effort to comply with a standard or eliminate a hazard
even though the employer’s efforts are not entirely effective or complete.”
COYurczyk testified that the willful classification was based on the fact that the
company had been previously cited under the same standard,and on the fact
that NTC had made efforts to obtain guards but had not gotten all of the guards
needed for the knitting machines.Cheryl Eldridge,a threader,operator,and union
steward,testified that a Safety Guard Team was formed and had recommended to
management that they obtain guards for two reasons—one,to prevent dirt,oil,and
grease from getting on the knitted fabric,and two,safety.William Paculavich,NTC’s
president,testified that he did not believe that the chains and sprockets were a
hazard and that they had never caused any injuries.
Mr.Paculavich appeared to be a sincere and credible witness.Because citations in
1996 (5 years ago) based on similar conditions were withdrawn,he did not
believe the mill was required to have guards on the take-up and selvage puller
chains and sprockets.On the basis of the evidence of record and all the circum-
stances in this case,the administrative judge concluded that the Secretary had not
shown the“heightened awareness,”“conscious disregard,”or“plain indifference”
required to demonstrate a willful violation.The violation is accordingly AFFIRMED
as serious.
In determining an appropriate penalty,the CO considered the violation to be of
medium severity and the probability of a resulting accident or injury to be low.As
such,the penalty was set at $2,000,but credits were given based on the size of the
company (220 employees),good faith,and the fact that there had been no OSHA
violations in the past 3 years.The resulting penalty after these factors was $900.

Conclusions
These cases clearly show that OSHRC takes very seriously both an employer’s atti-
tude toward safety and the quality of their efforts to achieve a safe workplace.
All of these factors affect whether a company will be cited and,if so,the severity
of the penalty for any violation:
N Knowledge of OSHA standards
N Inspection of the worksite by competent persons to ensure that there are no
hazards or violations of the standards
N Communication of the importance of safety to all supervisors and employees
N Development of safety rules and procedures
N Adequate training of employees
N Progressive discipline for violation of safety rules by employees
N Safety record and accident history
N History of previous OSHA violations
The benefits of a good safety program are many:
N Reduced injury and illness rates
N Reduced workers’ comp rates
N Improved employee morale
N A positive result on the bottom line
Add the benefit of better relations with OSHA,and safety is a win-win situation for
everyone.
17

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