BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH-95018
)
Plaintiff, )
)
vs. ) Citation No: G6017-050-94
)
PARKROSE MACHINE )
)
Defendant. ) OPINION AND ORDER
Hearing was held in Portland, Oregon, on November 1, 1995.
OR-OSHA was represented by Rochelle A. Nedeau, Assistant
Attorney General. Stanley R. Thompson, the sole proprietor of
Parkrose Machine represented the defendant. Exhibits 1-11 were
received in evidence. The case was closed on November 7, 1995,
after receipt of exhibits 12 and 13, copies of the relevant
standards.
ISSUES:
Defendant appeals all five items of Citation No. G6017-050-94,
including the penalties.
FINDINGS OF FACT:
The defendant is a machine and metal fabrication shop with four
employees, including the owner. Dianna Kay Gray, a Safety
Compliance Officer with Or-OSHA first went to Parkrose Machine
on March 8, 1994, to conduct a safety inspection that was
generated by an anonymous complaint. As a result of the
inspection, a 20 item Citation No. G6017-029-94 was issued on
March 28, 1994, for various violations observed by the
compliance officer. Some of the items were corrected at the
time of the inspection but the defendant was allowed additional
time or until April 4, 1994, to correct the following items:
1. Item 1-7 involving the failure to guard the
unused portions of a saw blade in violation of OAR 437-02-240, a
serious violation with a $180.00 fine.
2. Item 1-8 involving the failure to guard belts and pulleys
on the "jet" drill press, in violation of OAR 437-02-240, a
serious violation with a $300.00 fine.
3. Item 1-9 involving the failure to use a guard on the Bosch
#1353 portable right angle head grinder with abrasive wheel in
violation OAR 437-2-242 (7) (a), a serious violation with a
$300.00 fine.
4. Item 1-10 involving the employer's failure to establish a
energy control procedure and employee training for employees
performing any servicing or maintenance on a machine or
equipment where the unexpected energizing, start up or release
of stored energy could occur and cause injury, in violation of
OAR 437-02-320, a serious violation with a $180.00 fine.
5. Item 2-14 involving the employer's failure to develop or
implement a written Hazard Communication Program in violation of
OAR 437-02-360, a general violation with no fine.
In addition, defendant was cited as violating OAR 437-02-040 in
not locking a door in the back of the lower shop area during
business hours, a general violation with no penalty, but not
corrected at the time of the inspection. At the conclusion of
the inspection, the compliance officer gave Mr. Thompson, who
assisted in setting the correction times, a letter of
correction action to prepare and send to her when the various
items were corrected. The compliance officer told Mr. Thompson
that if the items were not corrected by the correction date,
penalties would accrue daily.
The defendant did not appeal Citation No. G6017-029-94, issued
on March 28, 1994. When the compliance officer did not get the
letter of correction as requested, she made another visit to the
Parkrose Machine on June 2, 1994. At the beginning of the
inspection, the compliance officer told Mr. Thompson that the
purpose of the inspection was to verify compliance with the
previously cited violations. He said that he had not had time
to do the paper work and gave the compliance officer permission
to check the shop. Several employees were working at the time.
As a result of her inspection, the compliance officer found
items from the March citation that had not been corrected by the
April 4, 1994, correction date and were not corrected at the
time of her June 1994 visit. She issued a new citation No,
G6017-050-94, the citation involved in this case, for the
non-correction of the following items:
1. Item 1-7 the horizontal metal cutting band saw
was not guarded on the unused portions of the saw blade, in
violation of OAR 437-02-240, with an additional penalty of
$3600.00.
2. Item 1-8 the belts and pulleys were unguarded on the "Jet"
drill press, in violation of OAR 437-02-240, with an additional
penalty of $6,000.00.
3. Item 1-9 the safety guard was not used on the Bosch #1353
portable right angle head grinder with abrasive wheel for
grinding metal surfaces, in violation of OAR 437-2-242 (7) (a),
with an additional penalty of $6,000.00
4. Item 2-14 the employer had not developed or implemented a
written Hazard Communications Program, in violation of OAR
437-02-360, with an additional penalty of $500.00.
In addition, the compliance officer noted that the employer had
not posted the March 1994, citation in violation of OAR
437-1-275 (2) (b) and she cited the employer for that violation
as a mandatory violation with a $200.00 penalty. In her closing
conference, she asked Mr. Thompson if had a copy of the March
citation and he said he had it at home. The compliance officer
notified the defendant about the items that had not been
corrected and again told him that penalties would be accruing
daily until compliance. She placed a failure to correct notice
on the wall.
The compliance officer visited the site again ten days later on
June 13, 1994, as she had not heard from Mr. Thompson. Three
items were still not corrected, so she posted a second notice of
a failure to correct on Items 1-7, 1-8 and 1-9. Mr. Thompson
said that he had no time to make the corrections. The
compliance officer helped Mr. Thompson prepare a written Hazard
Program so that he would be in compliance with Item 2-14. She
returned to her office and spoke to her supervisor, who called
Mr. Thompson. Mr. Thompson said that he would correct the
items. On June 15, 1994, the compliance officer had still not
heard from Mr. Thompson so she started an injunction procedure.
Within a few hours, Mr. Thompson called and said that he had
corrected the items. She removed the notices of non-correction
and left. The injunction procedures were halted and the safety
supervisor decided to issue citation #G6017-050-94 and figured
the penalties in accordance with OAR 437-01-135 through 203.
OPINION:
Parkrose Machine was an Oregon employer subject to the OR-OSHA
standards.
1. Item 1-1, violation of OAR 437-1-275 (2) (b), completed
time of inspection, $200 penalty.
OR-OSHA alleges that the employer did not post citation
#G6017-0f29-94 for three days or until the violations were
corrected, whichever occurred last. The standard provides that
a copy of any citation received by the employer shall be posted
for three days or until the violation is corrected, whichever
occurs last in order to inform the affected employees of safety
problems in their work place. According to compliance officer
Gray, a number of the items in Citation # G6017-029-94 were not
corrected when she revisited Parkrose Machine on June 2, 1994.
The shop was open and employees were working there on June 2,
1994. The compliance officer did not see that Citation #
G6017-029-94 was posted. She asked Mr. Thompson, if he had
received a copy of the citation and he responded that it was at
home. OR-OSHA has to assess a civil penalty of no more than
$1000 for failure to post a citation. The amount of $200 was
determined in the usual manner by her supervisor. Mr. Thompson
offered no explanation or argument on this violation. This
violation is sustained.
2. Item 1-7, violation of OAR 437-02-240, 1-8, violation of
OAR 437-02-240, 1-9, violation of OAR 437-2-242 (7) (a), and
2-14, violation of OAR 437-02-360, all with additional penalties
assessed.
OR-OSHA alleges that Parkrose Machine did not correct
violations cited in the original Citation #G6017-029-94, all
resulting in additional penalties ranging from $500 to $6000 per
violation. OR-OSHA proved that violations were not corrected in
the designated times. According to the testimony of the
compliance officer who performed the original inspection in
March 1994, that led to the issuance of Citation No.
G6017-029-94, Mr. Thompson was given until April 4, 1994, to
correct a number of safety violations, including items 1-7, 1-8,
and 1-9. He was to complete the correction in item 2-14
immediately but did not do so at the time of inspection. Mr.
Thompson assisted in setting the correction times. The
compliance officer told him in her closing conference at the
March 8, 1994, inspection that he was to send her a letter of
correction action when the items were corrected and that
penalties would be accruing daily after the correction date.
Mr. Thompson did not appeal the March 1994, citation.
The same compliance officer conducted the inspection on June 2,
1994, that resulted in the citation involved in this case
because she did not receive Mr. Thompson's letter of corrected
action. When she returned on June 2, 1994, Mr. Thompson did not
seem surprised. He admitted that he had not filled out the
paper work. On inspection, the saw the blade was not guarded or
corrected in item 1-7, even though employees were using the saw
and Mr. Thompson said that it was being used. He admitted that
this item had not been corrected. In a similar manner, Mr.
Thompson agreed that the belts and pulley guarding violation in
item 1-8 was not corrected and said that the guards were laying
around somewhere. On item 1-9, the compliance officer noticed
that the guard was still not on the portable grinder and she saw
employees using this machine. Mr. Thompson also said that the
guards were in the shop, but argued with the necessity of
correcting the item as he felt the machine unguarded would not
pose a safety hazard.
In regard to item 2-14, in March 1994, the compliance officer
informed Mr. Thompson about the Hazardous Communication Program
requirement and the necessity of having a written Hazard
Communication Program. She gave him a sample program and told
him to fill in the blanks. She informed him about the necessity
of having employee training. On June 2, 1994, the compliance
officer noted that nothing had been done. She saw that the
employer was still using hazardous chemicals and Mr. Thompson
and his employees said that they were using them daily.
At her closing conference on June 2, 1994, the compliance
officer informed Mr. Thompson about the items that were still
not corrected and told him that penalties would be accruing
daily, so he needed to call her to say that the violations were
corrected. She posted a failure to correct notice. In response
to the compliance officer's question about the non-compliance,
Mr. Thompson said that OR-OSHA was ridiculous, no employees were
exposed to dangers and he had no time to correct the items. He
also argued that he could not use the machines with guards and
seemed to think that he should be the one who decided what was
safe or not, despite his having several accidents. He again
tried to argue with the substance of the violations in the March
1994, citation. It is too late for him to now argue about the
violations themselves because he did not appeal the March 1994,
citation. The OR-OSHA standards are adopted from federal law as
to what is safe or not safe in the workplace and Mr. Thompson
cannot substitute his judgment on these standards.
The compliance officer did not hear from Mr. Thompson in ten
days following her June 2, 1994, so she visited him again on
June 13, 1994, at which time, three items were still not
corrected so she posted a second notice of non-correction. She
assisted him with compliance with item 2-14. It was not until
he was faced with an injunction that Mr. Thompson corrected all
of the items by June 15, 1994. His behavior and discussions
with the compliance officer show that he was aware of the
violations, but chose not to comply with them.
In regard to the penalties for items 1-7,1-8, 1-9 and 2-14,
penalties are mandatory for failure to correct items under OAR
437-01-155, are mandatory and can go as high as $7000 a day.
The various penalties imposed on Parkrose Machine were
determined in accordance with the rules set forth in OAR
437-01-135 through 203. Mr. Thompson argued that the various
items on the March 1994, citation should not have been
classified as serious or the way they were for purposes of
establishing the penalty, but he did not appeal that citation so
OR-OSHA was justified in using the classifications established
by the March 1994, citation in determining the penalties in the
citation involved in this case.
Based upon the testimony of the compliance officer, I have no
basis to adjust the penalties. Given Mr. Thompson's failure to
correct items on the March 1994, citation that he was told
needed to be corrected, as established by the testimony of the
compliance officer and the exhibits admitted at hearing, and his
failure to offer any excuse for his non-correction other than
his belief that the standards are burdensome and unnecessary, I
find that OR-OSHA has proved that citation # G6017-050-94 was
proper in its entirety. There is no evidence that OR-OSHA
treated Parkrose Machine any different than any other business
subject to OR-OSHA standards and it appeared from the testimony
of the compliance officer that OR-OSHA did try try to help Mr.
Thompson with compliance, by providing him with information on
the hazardous material program and actually helping him come
into compliance on that item in mid June 1994. The inspection
appeared to be reasonable and professionally conducted. Mr.
Thompson admitted that if he had corrected the items by April 4,
1994, as he did by June 15, 1994, he could have saved a lot of
money in fines. His failure to perform the corrections because
he disagreed with them and did not like OR-OSHA telling him what
to do, is misplaced.
ORDER:
IT IS THEREFORE ORDERED that Citation G6017-050-94 is affirmed
in its entirely.
NOTICE TO ALL PARTIES: You are entitled to judicial
review of this Order. Proceedings for review are to be
instituted by filing a petition in the Court of Appeals, Supreme
Court Building, Salem, Oregon 97310, within 60 days following
the date this Order is entered and served as shown hereon. The
procedure for such judicial review is prescribed by ORS 183.480
and ORS 183.482.
Entered at Portland, Oregon, November 14, 1995
Workers' Compensation Board
VINITA J. NEAL
Administrative Law Judge