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.
JURISDICTION AND COVERAGE
The staffing company timely contested the Citation and Notification of Penalty on March 28, 2017. The parties stipulate the Commission has jurisdiction over this action and The staffing company is a covered business under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (Act) (Tr. 16-17). Based on the stipulations and the record evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the Act and The staffing company is a covered employer under § 3(5) of the Act.
BACKGROUND
The steel fabrication facility owns and operates a steel fabrication facility in Houston, Texas. The company primarily serves the gas compression market. It has been in business for approximately 25 years and has hired workers supplied by the staffing company since it began operating. The steel fabrication facility directly employs five workers (including secretaries) and employs the remaining 10 or 11 workers through the staffing company.
The staffing company-supplied employees operate the steel fabrication machines daily. The The steel fabrication facility operates its manufacturing shop five days a week, from 6:00 a.m. to 4:30 p.m. Depending on the workload, it may operate the shop a sixth day.
On Saturday, October 29, 2016, staffing company Employee #1 was operating a Wysong bending roll (also referred to as the “plate roll” at the hearing), which is used to roll metal sheets into circular shapes. Employee #1 inserted a sheet of stainless steel between the rollers of the plate roll to make a pipe. The rolls caught his left glove and pulled his left index finger into the point of operation, crushing it. Emergency personnel transported Employee #1 to a hospital, where he received medical treatment. Later that week, medical personnel amputated his finger due to complications. Employee #1 had worked at the facility for 14 years at the time of the hearing. He was on medical leave for two months and performed light duty at the staffing company’s office for two weeks. He then returned to operating machines at the steel fabrication facility.
The CSHO inspected the facility on November 21, 2016. After photographing the shop machines and conducting employee interviews, the CSHO recommended the Secretary issue citations to the steel fabrication facility, as the creating and controlling employer, and to the staffing company, as the exposing employer; the Secretary followed his recommendations. The steel fabrication facility entered into an informal settlement with the Secretary and abated the cited violations.
The four machines cited in this proceeding are:
(1) The Piranha P-90 ironworker, used to punch holes, cut flat bars and angle, and notch metal. The steel fabrication facility bought the ironworker four or five years before the November 2017 hearing. The punch station of the ironworker was not guarded at the time of the OSHA inspection. Following the inspection, they installed a Plexiglas guard on the punch station (Item 1);
(2) The H.T.C. 160G press brake, used to bend sheets of metal. After placing a sheet of metal in the machine, the operator steps on a pedal to activate the machine. The H.T.C. press brake was already in the manufacturing shop when the owners bought the facility in 1992. It was not guarded at the time of the OSHA inspection. Subsequent to the inspection, they installed a light curtain guard on the press brake (Item 2, Instance (a));
(3) The Piranha 65 press brake, also used to bend sheets of metal. It is activated using a computer controller. They bought the Piranha press brake in 2005 or 2006. It was not guarded at the time of the OSHA inspection. They installed a light curtain guard after the inspection (Item 2, Instance (b)); and
(4) The Wysong bending roll or plate roll, used to roll metal sheets into round shapes. The point of operation of the plate roll was not guarded, but a wire cable ran around the machine that would halt operation if the operator touched it. This is the machine on which Employee #1 was injured. They did not guard the point of operation of the plate roll after the OSHA inspection, but it placed a guardrail on the back of the machine to prevent employees accessing that area (Item 2, Instance (c))
THE CITATION
The Secretary’s Burden of Proof
To establish a violation, “the Secretary must show by a preponderance of the evidence that:
(1) the cited standard applies;
(2) there was a failure to comply with the cited standard;
(3) employees had access to the violative condition; and
(4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence.
Item 1: Alleged Serious Violation of § 1910.212(a)(1)
Item 1 of the Citation alleges,
On or about November 21, 2016, and at times prior thereto, employees in the manufacturing shop were exposed to struck-by and caught-by hazards when operating a punch station on a Piranha P-90 ironworker without a point of operation guard.[2]
Section 1910.212(a)(1) provides:
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.
The staffing company argues the Secretary failed to establish its employees were exposed to struck-by or caught-by hazards created by the point of operation of the punch station.
(1) The Cited Standard Applies
Section 1910.212(a)(1) is found in Subpart O—Machinery and Machine Guarding of the general industry standards. Section 1910.212 is captioned “General requirements for all machines.” This standard applies to all machines not covered by a more specific standard. The staffing company does not dispute the applicability of the standard. The Piranha P-90 ironworker is a machine. Section 1910.212(a)(1) applies to the cited condition.
(2) Failure to Comply with § 1910.212(a)(1)
The punch station of the Piranha P-90 ironworker was not guarded. The facility owner testified his company purchased the machine four or five years before the hearing, and the the staffing company employees operated it in its unguarded condition until after the November 21, 2016, OSHA inspection.
The Secretary has established the staffing company failed to comply with § 1910.212(a)(1).
(3) Employees Had Access to the Violative Condition
“In order to establish a violation of section 1910.212(a)(1), the Secretary must first prove the existence of a hazard… . Whether a machine exposes an employee to a hazard must be determined based on the manner in which the machine functions and how it is operated by the employees.”
The owner explained the manner in which the punch station of the Piranha P-90 ironworker functions and how it is operated.
The actual punch of the machine is—you lay your piece of metal up there, you’re bringing the punch down, and you’re lining it up with the hydraulic foot pedal. It comes down slow, and you line that center punch up in the middle, you let go, and you punch it.
He stated it is dangerous for operators to place their hands in the zone of danger of the punch station. “You don’t want to put your fingers in there… It’s where it punches a hole. It would punch—you know, it would crush your hand.” His testimony establishes operation of the punch station exposed its operators to a hazard.
To establish access under Commission precedent, the Secretary must show either that Respondent’s employees were actually exposed to the violative condition or that it is “reasonably predictable by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.”
The staffing company’s primary defense is the Secretary failed to establish its employees had access to the unguarded points of operation of the cited machines. The Court disagrees and finds the record establishes operators of the punch station on the Piranha P-90 were required to place their hands 2 to 3 inches from the point of operation, placing them within the zone of danger.
Employee #1 and Employee #2 of the staffing company testified at the hearing. Employee #1 stated he uses the punch station of the Piranha P-90 ironworker every day. He stands “[a]bout 2 feet” from the point of operation of the punch station when operating it. Employee #2 likewise testified he operates the punch station daily, usually three or four times a day. He stands “a foot and a half—2 feet away” from the point of operation when using the punch station. The employee witnesses did not state how far their hands were from the point of operation as they operated the machine.
The owner was the only witness who testified regarding the position of the operator’s hands when operating the punch station.
Q. Before you . . . do the actual punch, what do you do?
Owner: Let go of it and take your hands out.
Q. How far away are your hands from the actual point of operation?
Owner: You’re never underneath your point of operation. Your hands are always 2 or 3 inches away on the punch.
The staffing company argues this case is similar to Safeway #2555, & Its Successors, 2005 WL 858056 (No. 03-1072, 2005), in which the Commission reversed the ALJ’s decision affirming a violation of § 1910.212(a)(1). The Commission found the Secretary failed to establish respondent’s employees had access to the points of operation of industrial bakery mixers. Of particular concern to the Commission was the fact the CSHO “took no measurements to determine the possibility or likelihood of exposure at Safeway. In fact, the bowl was not even in place on the M-802 mixer, and his inspection of the A-200 mixer was limited to the question regarding whether any employee operated it.” As in Safeway, the CSHO in this case took no measurements to ascertain the distance between the operator’s hands and the point of operation of the punch station. The Secretary’s case is not limited to the inspection of the CSHO, however. The undisputed testimony of Mr. Hightower establishes the operator’s hands come within 2 or 3 inches of the unguarded point of operation. At this distance it is “more than theoretically possible” the hands of the machine’s operators would be in the zone of danger.
The Secretary need not show it was certain that employees would be in the zone of danger, but he must show that exposure was more than theoretically possible.
The Court finds the positioning of the punch station operator’s hands 2 to 3 inches from the point of operation places them within the zone of danger. It is not sufficient personnel instructed the staffing company employees to “Let go and take your hands out of it” before activating the pedal. The staffing company cannot rely on training to protect employees from the hazards addressed in the machine guarding standard. The Commission has also long-recognized that OSHA’s machine guarding standards were designed to protect employees from human error, such as “neglect, distraction, inattention or inadvertence of an operator… . The standard was designed to provide against such human weakness.” “This requirement implicitly recognizes that human characteristics such as skill, intelligence, carelessness, and fatigue, along with many other qualities play a part in an individual’s job performance, and it avoids dependence on human conduct for safety.” “It is clear from the examples provided [in § 1910.212(a)(1)] that the method of machine guarding should not be predominantly dependent upon human behavior. The plain purposes of the standard are to avoid dependence upon human behavior and to provide a safe environment for employees in the machine area from the hazards created by the machine’s operation.” Akron Brick & Block Co., 3 BNA OSHC 1876, 1878 (No. 4859, 1976).
The Court finds the staffing company’s employees were assigned to operate the punch station of the Piranha P-90 ironworker on a daily basis, which would bring their hands within the zone of danger posed by the unguarded point of operation. It was reasonably predictable the staffing company’s employees would have access to the struck-by and caught-by hazards.
(4) Employer Knowledge
The staffing company conducts quarterly worksite evaluations for every client. XXXXXXXX worked for the staffing company for six years. The last four years she worked there, she was a senior staffing specialist. One of her duties was conducting site inspections of workplaces to which the staffing company supplied employees. She would accompany a staffing company branch manager as they inspected the site and complete paperwork as instructed by the branch manager. As part of the inspection, she filled out a form titled Quarterly Work Site Evaluation. The form is a checklist for specific items listed under the topics of housekeeping, personal protective equipment, training, ergonomics, first aid, work practices, fire protection, material handling, tools, machinery, contact agents, pressure equipment, and accidental management information. The machinery section of the checklist provides:
Page 30 of Exhibit C-6 is a copy of the staffing company’s Quarterly Work Site Evaluation for the steel fabrication facility, completed by her as instructed by a branch manager identified as XXXXXXX on the line for “Service Rep.” (Her last name was not given at the hearing.) The date written by XXXXXXXX appears to be “4/14/16.”[4] Of the four boxes, she checked only “Good working condition” for the machinery items. She did not check “Guarded at point of operation.”
The Secretary has established a prima facie case that the staffing company had actual knowledge the cited machines were not guarded.[6] The staffing company states it could not “be expected to know that the machines were not in compliance with the standards, given that the fabrication facility, not the staffing company, is in the metal working business.” The senior staffing specialist testified she wrote on the form only what the branch manager told her to write. The staffing company did not train her to conduct worksite evaluations or provide her with training in machine guarding.
Neither the branch manager nor any other branch manager testified. The record is, therefore, silent regarding the training and duties of branch managers relating to worksite evaluations and expertise on machine guarding. The staffing company failed to rebut the Secretary’s documentary evidence of the branch manager’s actual knowledge of the unguarded machines. “It is well established that when one party has it peculiarly within its power to produce witnesses whose testimony would elucidate the situation and fails to do so, it gives rise to the presumption that the testimony would be unfavorable to that party. Graves v. United States, 150 U.S. 118, 121 (1893). The Commission also has noted that when one party has evidence but does not present it, it is reasonable to draw a negative or adverse inference against that party, i.e., that the evidence would not help that party’s case. The staffing company provided no rebuttal to the Secretary’s evidence the staffing company supervisors inspected the worksite and observed the machines were not guarded.
The Secretary has established the staffing company had actual knowledge of the violative condition of the unguarded punch station of the Piranha P-90 ironworker. The staffing company conducted quarterly inspections of the worksite and specifically looked at the machines its employees operated to determine whether they were guarded. In 2016 (after the purchase date of the Piranha P-90 ironworker) the branch manager instructed the senior staffing specialist to omit checking the box for “Guarded at point of operation” for the facility’s machines. The branch manager is a supervisory employee whose actual knowledge is imputed to the staffing company.
The Secretary has established the staffing company had actual knowledge of the violative condition. The staffing company violated § 1910.212(a)(1).
Characterization of the Violation
The Secretary characterized the violation of § 1910.212(a)(1) as serious. A serious violation is established when there is “a substantial probability that death or serious physical harm could result [from a violative condition] . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k).
As noted, the owner of the facility testified it is dangerous for operators to place their hands in the zone of danger of the punch station because “it would crush your hand.” The Court determines the Secretary properly characterized the violation as serious.
Item 2: Alleged Serious Violation of § 1910.212(a)(3)(ii)
Item 2 of the Citation alleges,
On or about November 21, 2016, and at times prior thereto;
a. Employees in the manufacturing shop were exposed to struck-by and caught-by hazards when operating a H.T.C. 160G press brake without a point of operation guard.
b. Employees in the manufacturing shop were exposed to struck-by and caught-by hazards when operating a Piranha 65 Ton press brake without a point of operation guard.
c. Employees in the manufacturing shop were exposed to caught-by hazards when operating a Wysong bending roll without a point of operation guard.
Section 1910.212(a)(3)(ii) provides:
The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.
The staffing company argues the Secretary failed to establish its employees were exposed to struck-by or caught-by hazards created by the points of operation of the press brakes and the press roll.
(1) The Cited Standard Applies
Section 1910.212(a)(3)(ii) is found in Subpart O—Machinery and Machine Guarding of the general industry standards. It is undisputed the cited the press brakes and press roll are machines. Section 1910.212(a)(3) applies to the cited conditions.
(2) Failure to Comply with § 1910.212(a)(3)(ii)
It is undisputed the two cited press brakes and the bending roll were not guarded. The staffing company failed to comply with § 1910.212(a)(3)(ii).
(3) Employees Had Access to the Violative Condition
“With a general standard such as the point of operation guarding standard in this case (§ 1910.212(a)(3)(ii)), the Secretary must prove that the violation of the standard presents a hazard.” The facility owner testified the cited press brakes presented amputation hazards to the operators. The injury to Employee #1 while operating the bending roll establishes use of the unguarded machine presents a hazard. The Secretary has proven the violation of § 1910.212(a)(3)(ii) with regard to the cited machines presents hazards.
The staffing company focuses on the placement of the operators’ feet while operating the press brakes, in arguing its employees are guarded by distance. Although the operators stand approximately a foot from the press brakes, they must place their hands much closer to perform their assigned tasks. Referring to OSHA Instruction CPL 02-01-025, the staffing company states, “[W]hile OSHA recognizes guarding by distance, where applicable, requires only four inches of clearance to be safe, here the witnesses testified their normal practice was to maintain one to two feet of clearance in all cases.” (The staffing company’s brief, p. 13) The section of the OSHA Instruction cited by the staffing company provides:
For the purpose of maintaining a “safe distance” as discussed in this instruction, the operating employee and helping employee(s) must not approach closer than necessary and in no case, closer than 4 inches (10.16 centimeters) to the power press brake point of operation. The minimum safe distance of 4 inches (10.6 cm) shall be measured from the exterior point of contact of the power press brake die closest to an employee.
This argument misses the mark for two reasons.
First, The staffing company ignores the previous language of the OSHA Instruction mandating safe distance guarding is allowed ONLY in the event guarding is not feasible and it is limited to one-time only fabrication.
5. Because of constraints imposed by certain manufacturing or fabricating processes, safeguarding by maintaining a safe distance from the point of operation may be acceptable but only when safeguarding by physical barrier or physical devices is not feasible. “Safe distance” means the clearance between an employee (typically his or her fingers holding and supporting a piece part) and the power press brake point of operation.
6. Safeguarding by maintaining a “safe distance” is acceptable if:
a. The employer demonstrates that physical barriers and physical devices are not feasible to guard the power press brake point of operation. Physical devices typically include: two hand controls, holdouts or restraints and presence sensors.
b. The employer demonstrates that power press brake point of operation guarding by maintaining a safe distance is limited to one-time only fabrication of made-to-order or custom-made piece parts. Small quantity runs, typically performed in job shop or model shop establishments may be affected by this provision; high volume piece part rates of production will not. A “small quantity run” means fabrication of more than one of the same piece parts over a continuous timeframe of no more than four hours per month.
Here, guarding by physical devices is feasible, as demonstrated by the facility’s subsequent guarding of the press brakes using light curtain guards.
Second, the OSHA Instruction states the minimum safe distance is 4 inches. The owner testified credibly the operators’ hands could be as close as 2 inches when positioning the metal. He testified, “[W]hen you’re using the press brake, you’re going to have to have your hand right up under there until you get it on the line, and then you’re going to move your hands and come on down.” The staffing company’s counsel asked the facility owner how far the operator’s hands are from the point of operation of the H.T.C. press brake when positioning the metal piece. He stated, “[A] couple of inches, 4 inches, when you’re lining the line up. But your hand is still not in the pinch point.” The distance of the hands of the Piranha press brake operator from the point of operation is “[i]dentical” to that of the operator’s hands from the H.T.C. press brake’s point of operation”
As with Item 1, the Court finds a distance of 2 to 4 inches from the point of operation to be within the zone of danger of the two press brakes. The Secretary has established The staffing company’s employees had access to the violative condition.
The owner testified the bending roll is operated by placing the metal sheet between the machine’s rollers. “You feed the material into the front, turn it on, and it rolls it.” The operator stands “a foot or more” away from the front of the machine when it is activated. The staffing company’s employees operated the plate roll daily.
Employee #1 explained how his finger was pulled into the rollers of the machine.
As I was operating the roller and I was putting in a piece of stainless steel to make a pipe, when I put it in, my glove—my left-hand glove slipped. As I was operating it, it caught my—it caught it, and I automatically stopped it, and it crushed my finger.
Employee #2 was working next to Employee #1 at the time of the accident. He stated Employee #1 was rolling a metal sheet. “Looking at 2 and a half feet. Not that big. A little piece of stainless steel.” The staffing company took a statement from Employee #1 as part of its Accident/Injury Report. A staffing company representative reported, “The material went slanted he wanted to fix and that is when this happened.”
It is one of the responsibilities of the plate roll operator to insert the metal sheet correctly. In inserting the stainless steel, Employee #1 was performing an assigned duty. When he reached out to straighten the metal sheet, he was engaging in reasonably predictable behavior. The Secretary has established it was reasonably predictable by operational necessity that the staffing company’s bending roll operators were in the zone of danger of the point of operation when operating the machine.
(4) Employer Knowledge
Page 30 of Exhibit C-6 is a copy of the staffing company’s Quarterly Work Site Evaluation, completed in April of 2016 at the instruction of a the staffing company branch manager. As noted regarding Item 1, the box indicating machinery is guarded is not checked. The knowledge of the staffing company’s branch manager is imputed to the staffing company. The Secretary has established the staffing company knew of the violative condition of the cited machines.
Unpreventable Employee Misconduct Defense
The staffing company contends the injury to the hand of Employee #1 was the result of his unpreventable misconduct. To establish that a violation was the result of unpreventable employee misconduct an employer is required to show that it:
(1) established work rules designed to prevent the violative conditions from occurring;
(2) adequately communicated those rules to its employees;
(3) took steps to discover violations of those rules; and
(4) effectively enforced the rules when violations were discovered.
The unpreventable employee misconduct defense applies in situations where the behavior of the employee, not the existence of a violative condition, is at issue. OSHA’s machine guarding standards were designed to protect employees from common human errors such as “neglect, distraction, inattention or inadvertence of an operator[.]” Here, the violative conduct is the failure to guard the bending roll, not the inadvertent action of the employee.
The staffing company’s reliance on the unpreventable employee misconduct defense regarding Employee #1 is misplaced. Even without the occurrence of his injury, the record establishes the staffing company employees routinely operated the bending roll while it was in noncompliance with § 1910.212(a)(3)(ii).
Neither the staffing company nor the facility installed guards on the cited machines. Neither company had a work rule designed to prevent employees from using unguarded machines; it follows the companies could not then adequately communicate such a rule or takes steps to discover its violation or enforce the nonexistent rule. The staffing company’s unpreventable employee misconduct defense fails.
Lack of Control Defense
The staffing company cites Central of Georgia Railroad Company v. OSHRC, 576 F.2d 620 (5th Cir. 1978), in support of its argument it lacked control of the worksite. In Central, the Court of Appeals for the Fifth Circuit discussed the emergent multi-employer worksite defense as set out in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975). The Fifth Circuit stated,
We regard the Commission’s position at least in part as an allocation of burdens of proof. Under this allocation the Secretary must first make out a prima facie case; the burden then shifts to the employer to rebut this prima facie case; or if he does not do so, he may establish an affirmative defense by showing his own lack of control over the hazard, and according to the Commission his protection of the employees through alternative measures.
Central, 576 F.2d at 624.
The staffing company argues it lacked control over the hazard:
The staffing company has no supervision on site at the facility. The staffing company visited the facility only two to four times per year for site inspections. Further, the staffing company left training of proper use of the iron worker, press brakes, and plate roll to the facility. The staffing company had no contractual right to insist on changes being made to the machines. [The staffing company claims administrator] XXXXXXXX testified that documents in the record at C-6 constitute the only contract between the staffing company and the facility. Those documents do not give the staffing company any right to access or alter the machines at the facility, nor do they include any contractual covenants that the staffing company could enforce to force the facility to change its machines. Furthermore, the facility, and not the staffing company, investigated guarding options and collaborated with OSHA to implement guards on the equipment at issue.
The Court agrees with the facts set out in the staffing company’s argument. The staffing company overlooks, however, the second step of the formulation of the defense: the exposing employer must protect its employees through alternative means.
“Under Commission precedent… the focus of the Secretary’s burden of proving that the cited standard applies pertains to the cited conditions, not the particular cited employer.” An employer whose own employees are exposed to a hazard or violative condition (an exposing employer) has a statutory duty to comply with a particular standard even where it did not create or control the hazard. See Anning-Johnson Co., 4 BNA OSHC 1193, 1198-99 (No. 3694, 1976) (consolidated) (holding that the exposure of a subcontractor’s “employees to a condition that the employer knows or should have known to be hazardous, in light of the authority or ‘control’ it retains over its own employees, gives rise to a duty under section 5(a)(2) of the Act[.]”). Thus, even if the staffing company had no control over the worksite, it still had an obligation to comply with the standard, either by requesting the facility to provide guards for the machines, or, if the facility refused the request, prohibiting its employees from operating the machines.
[E]ach employer has primary responsibility for the safety of its own employees. Simply because a subcontractor cannot himself abate a violative condition does not mean it is powerless to protect its employees. It can, for example, attempt to have the general contractor correct the condition, attempt to persuade the employer responsible for the condition to correct it, instruct its employees to avoid the area where the hazard exists if this alternative is practical, or in some instances provide an alternative means of protection against the hazard…. In the absence of such actions, we will still hold each employer responsible for all violative conditions to which its employees have access.
Grossman Steel & Alum. Corp., 4 BNA OSHC 1185, 1189 (No. 12775, 1975) (emphasis added) “[S]uch a requirement is consistent with Commission precedent requiring an employer to detect and assess the hazards to which its employees may be exposed, even those it did not create.” Associated Underwater Servs, 24 BNA OSHC 1248, 1251 (No. 07-1851, 2012).
As the Secretary points out, the staffing company could have included language in its contract with the facility requiring machines to be guarded. In its existing contract, the staffing company prohibits its employees from operating forklifts.
In Central, on which the staffing company relies, the Fifth Circuit upholds the primacy of the Act over any contractual terms to which the employers agreed.
[A]s the Commission has noted, an employer may not contract out of its statutory responsibilities under OSHA. Anning-Johnson, 4 OSHC at 1198 n. 8 (BNA), and cases cited therein. If an employer does contract with a third party to maintain safe conditions, it is to be presumed that the employer can enforce the contract. We are unimpressed by Central’s arguments that it could not enforce the present contract… [I]t was Central’s burden to show the unavailability of such means, and it has not met its burden to show lack of control.
We stress that the Act, not the contract, is the source of Central’s responsibilities. See Frohlick Crane Service, Inc. v. OSHRC, 521 F.2d 628, 631 (10th Cir. 1975). An employer may carry out its statutory duties through its own private arrangements with third parties, but if it does so and if those duties are neglected, it is up to the employer to show why he cannot enforce the arrangements he has made. If he cannot make this showing, he must take the consequences, and his further remedy lies against the private party with whom he has contracted and whose breach exposes the employer to liability.
The Court determines the staffing company’s defense it lacked control over the worksite fails.
Characterization of the Violation
The Secretary characterized the instances of the violation of § 1910.212(a)(3)(ii) as serious. With regard to the cited press brakes, the owner stated, “It wouldn’t be a smushed finger there; it would be a cut-off finger. It would cut it off in the press brake.” The injury to Employee #1 while operating the plate roll establishes the risk of serious physical harm of operating that unguarded machine. The violation of § 1910.212(a)(iii) is properly characterized as serious.
PENALTY DETERMINATION
The staffing company has approximately 1,000 employees. CSHO conceded he erred when he calculated its history of violations— he factored in six citations resulting from three inspections in 2014 and 2015. The Secretary deleted these citations in a final settlement agreement. The Secretary states that, had the CSHO correctly calculated the the staffing company’s history of violations, “the penalty would have been reduced by only ten percent” (Secretary’s brief, p. 14). The staffing company had a written safety and health program and its employees received safety training. It is entitled to penalty reductions for history and good faith.
The gravity of the violations for Items 1 and 2 is high. Two employees were exposed on a daily basis to unguarded points of operation on four machines. The likelihood of injury if they were struck or caught by the points of operation was great. The staffing company took no precautions against such injuries.
Based on the factors of size, history, good faith, and gravity, the Court assesses a penalty of $10,000.00 each for Items 1 and 2.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52(a).
ORDER
Based on the foregoing decision, it is hereby ORDERED:
1. Item 1 of Citation No. 1, alleging a serious violation of § 1910.212(a)(1), is AFIRMED and a penalty of $10,000.00 is assessed; and
2. Instances (a) and (b) and (c) of Item 2 of Citation No. 1, alleging a serious violation of § 1910.212(a)(3)(ii) are AFFIRMED and a penalty of $10,000.00 is assessed.
SO ORDERED