The staffing company contests a two-item Citation and Notification of Penalty (Citation) issued March 20, 2017, by the Secretary. The Secretary issued the Citation following an inspection by OSHA on November 21, 2016, of a steel fabrication facility, in response to a report of a serious employee injury. The injured employee was one of several employees provided to steel fabrication facility by the staffing company. After inspecting the facility, a compliance safety and health officer (CSHO) recommended issuing citations to both the steel fabrication facility and the staffing company for failing to provide guards for four machines used by the staffing company-supplied employees in the steel fabrication facility, exposing the employees to struck-by and caught-by hazards.
Item 1 of the Citation alleges a serious violation of 29 C.F.R. § 1910.212(a)(1) for failing to provide a guard for the point of operation of a punch station on a Piranha P-90 ironworker machine.
Item 2 alleges a serious violation of 29 C.F.R. § 1910.212(a)(3)(ii) for failing to provide guards for points of operation on two press brakes and a bending roll.
The Secretary proposes a penalty of $12,675.00 for each item, for a total proposed penalty of $25,350.00.
The staffing company argues the Secretary failed to establish its employees were exposed to struck-by or caught-by hazards when using the unguarded machines. The staffing company asserts the affirmative defense of unpreventable employee misconduct with respect to Instance (c) of Item 2. The staffing company also argues it lacked control of the worksite such that it could abate the alleged violative conditions.
For the reasons discussed below, the Court AFFIRMS Items 1 and 2 and assesses a total penalty of $20,000.00 for the two items.