4-1901-11136-2

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY

 

Gary W. Bastian, Commissioner, Department of Labor and Industry, State of Minnesota,                                     Complainant,               vs.   Banker’s Marketing Group, d/b/a Varnado Printing Center,                                     Respondent.

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION

            The above-entitled matter came on for hearing before Administrative Law Judge Bruce H. Johnson commencing at 9:30 a.m. on Thursday, June 19, 1997, at the Minnesota Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota.

           

            Donald E. Notvik, Assistant Attorney General, Suite 200, 525 Park Street, St. Paul, Minnesota 55103-2106, appeared on behalf of the Minnesota Department of Labor and Industry (hereinafter sometimes the “Department”).  The Respondent Banker’s Marketing Group, d/b/a Varnado Printing Center appeared pro se through its President, Curtis Varnado, 1017 W. Broadway, Minneapolis, Minnesota 55411.  The record closed on June 19, 1996, at the close of the hearing.

 

 

NOTICE

 

            Notice is hereby given that under Minnesota Statutes, section 182.664, subdivision 5 (1996), this decision may be appealed to the Minnesota Occupational Safety and Health Review Board by the employer, employee, their authorized representatives, or any party within 30 days following the service of this decision by mail.  The procedures for appeal are set out in Minnesota Rules, chapter 5215 (1995).

 

 

STATEMENT OF THE ISSUE

 

            The issue in this case is whether or not the Respondent was in violation of eleven OSHA standards at its workplace at 1017 W. Broadway, Minneapolis, Minnesota, on June 24, 1996, and of two OSHA standards on August 5, 1996, and if so, what penalty is appropriate.

 

 

            Based upon the record in this matter, the Administrative Law Judge makes the following:

 

 

FINDINGS OF FACT

 

            1.  The Respondent is a Minnesota corporation which owns and operates a printing business known as Varnado Printing Center located at 1017 W. Broadway, Minneapolis, Minnesota 55411.

 

            2.         Sometime prior to June 24, 1996, one or more of the Respondent’s employees made complaints to the Occupational Safety and Health Division of the Minnesota Department of Labor and Industry (hereinafter the “Department”) alleging that the Respondent was in violation of a number of the Occupational Safety and Health Standards established by federal and state law for businesses such as the Respondent’s.  (Testimony of Mr. Wollan)

 

            3.         In response to the employee complaints, on June 24, 1996, Senior Occupational Safety and Health Inspector Michael Wollan conducted an unannounced inspection of Respondent’s premises at 1017 W. Broadway, Minneapolis, Minnesota.  After an opening conference with Mike Gerken, the Respondent’s Vice President for Sales, Mr. Wollan proceeded to conduct a visual inspection of the premises and to interview some of the Respondent’s employees.  (Testimony of Mr. Wollan; Exhibits 23 and 24)

 

            4.         On June 24, 1996, no “Exit” signs were located at the two stairwells located at both ends of the basement area, which was approximately 50 feet long.  That area was occupied by two to three employees during a normal workday.  The two exits provided adequate egress from the basement and were not obstructed by abnormal hazards.  The basement of Respondent’s premises was provided with emergency lighting that was sufficient to have provided a lighted way to an exit in the event of an emergency.  (Testimony of Messrs. Wollan and Varnado; Exhibits 1, 23 and 24)

 

            5.         On June 24, 1996, the Respondent’s employees were using a plate fix solution with a pH of 14 (highly alkaline) to clean the rollers of the offset duplicating presses in the printing area.  Two employees used the solution from a squeeze bottle and applied it from the bottle onto the press rollers.  No eyewash of any kind was available for the employees who used that solution.  This solution was in use less than 15 to 30 minutes per day, and safety glasses were available.  There was no history of employees having been injured by this solution.  (Testimony of Mr. Wollan; Exhibits 23 and 24)

 

            6.         On June 24, 1996, five offset duplicating presses located in the printing shop area had exposed rotating print drums with unguarded, in-running nip points.  The main plate rollers were made of metal and had an open section that could cause a serious hand or finger injury if touched.  The units were normally cleaned while the rollers were rotating.  No guards were installed on the presses on June 24, 1996, and no guards elsewhere on the premises were pointed out to Mr. Wollan as being available for use.  There was no history of employees having been injured by the nip points.  (Testimony of Mr. Wollan; Exhibits 3C7, 23 and 24)

 

            7.         On June 24, 1996, the safety devices designed to prevent operators’ hands from being inserted into the cutting area of two paper cutters used in the printing area were not operational.  The cutters were used intermittently C one-half to one hour Cduring a normal work day.  (Testimony of Messrs. Wollan and Bebeau; Exhibits 8C11, 23 and 24)

 

            8.         On June 24, 1996, a 240-volt power cord to a wall mounted air conditioner located in the rear of the first floor printing shop was connected with wire nuts located behind a desk and about 30” above the floor rather than being contained in a junction box.  Also, the 120-volt wiring supplying power to a forced air furnace ran down from the ceiling along the sheet metal side of the furnace and had connections not contained in a junction box.  Finally, the Romex-type 120-volt wiring supplying power to fluorescent ceiling lights was connected with wire nuts rather than being contained in a junction box.  The concrete floor of the basement was potentially conductive of electricity because of severe leaking of the roof that caused the basement floor to become wet after heavy rains and snows.  (Testimony of Mr. Wollan; Exhibits 12, 13, 14, 23 and 24)

 

            9.         On June 24, 1996, extension cords were fastened and wrapped on the structure of the building and used as permanent wiring for lighting fixtures and equipment in the first floor shop and basement area.  These flexible cords were located in or near work areas accessed by the Respondent’s employees, and some were exposed to foot traffic.  (Testimony of Mr. Wollan; Exhibits 15, 16, 23 and 24)

 

            10.       Prior to June 24, 1996, the Respondent’s employees were occasionally asked, or they volunteered with the Respondent’s acquiescence, to unload trucks parked in a travel lane of West Broadway because the alley behind the Respondent’s place of business was too narrow to accommodate some delivery trucks.  When such unloading occurred, the employees were not provided with high visibility cones and vests to protect them against the hazards of vehicular traffic.  Such work occurred no more frequently than 1 to 2 times per week, and when it occurred, it lasted between 15 to 45 minutes.  On occasions, the large delivery trucks were able to park in designated parking places in front of the Respondent’s building while they unloaded.  There was no history of employees having been injured while unloading trucks parked on West Broadway.  (Testimony of Messrs. Wollan and Bebeau; Exhibits 23 and 24)

 

            11.       There were two window air conditioning units located at the rear of the shop on the first floor of the Respondent’s premises.  Those units were not turned on while Mr. Wollan made his inspection on June 24, 1996, and it is unknown whether those air conditioning units were capable of delivering outside air into the interior of the Respondent’s premises.  There was also a 16” x 4’ air vent opening out onto the front part of the roof.  At no time relevant to this proceeding did the Department take any volumeter readings to determine the rate of outside air flow into the building.  It is uncertain whether on June 24, 1996, the rate of outside air flow into the Respondent’s building was less that 15 cubic feet per minute per person.  (Testimony of Messrs. Wollan and Varnado; Exhibits 23 and 24)

 

            12.       Although the Respondent’s employees worked on a daily basis in the print shop with printing solvents, inks and plate fix chemicals and in the basement with photographic developer chemicals, the Respondent had no Right to Know program for those employees.  Although issues relating to working with such chemicals may have been discussed at employee meetings, there was no evidence of the frequency, nature or substance of those discussions.  Respondent’s employees were familiar with MSDS’s, but none were on file and available for review.  (Testimony of Mr. Wollan; Exhibits 23 and 24)

 

            13.       As of June 24, 1996, the front half of the roof section of the building was leaking sufficiently to cause damage to the interior plaster and suspended ceiling components.  Although some of the observable damage on June 24, 1996, may have been due to a recent violent rain storm, the leaking roof had been a problem for the Respondent for several years.  Water leaking through the roof loosened the plaster in the original ceiling, causing it to fall onto and through a suspended tile ceiling below and onto the duplicating presses and work areas.  The plaster ceiling was located about 12 feet above the floor, and there was evidence of recently fallen plaster.  The rear half of the roof appeared to have been repaired.  On June 24, 1997, there was also evidence that water leaking from the roof had leaked into the basement and had accumulated on the basement floor.  (Testimony of Messrs. Wollan. Bebeau and Varnado; Exhibits 17, 18, 19, 23 and 24)

 

            14.       On June 24, 1996, the Respondent did not have A Written Workplace and Injury Reduction (AWAIR) Program for its employees.  (Testimony of Mr. Wollan; Exhibit 25)

 

            15.       On August 5, 1996, Stephanie Waisanen, an Industrial Hygiene Engineer employed by the Department, conducted an additional inspection of Respondent’s premises at 1017 W. Broadway, Minneapolis, Minnesota.  After an opening conference with Mr. Varnado, Ms. Waisanen proceeded to conduct a visual inspection of the premises and to take samples of some insulating materials found on pipes.  (Testimony of Ms. Waisanen; Exhibits 20, 21, 22, 26 and 28)

 

 

            16.       The samples of insulating materials, which Ms. Waisanen took from the Respondent’s building, were tested for the presence of asbestos, and testing revealed that samples contained between 40 and 50% chrysotile asbestos.  (Testimony of Ms. Waisanen; Exhibits 27 and 28)

 

            17.       On August 5, 1996, pipe insulation in the basement of the Respondent’s building contained 40 to 50% chrysotile asbestos, and there were no signs or labels to that effect posted.  (Testimony of Ms. Waisanen; Exhibits 27 and 28)

 

            18.       On August 5, 1996, certain pipe insulation in the basement of the Respondent’s building, containing 40 to 50% chrysotile asbestos, was exposed and friable.  The covering over the insulation was in poor condition and displayed numerous tears.  (Testimony of Ms. Waisanen; Exhibits 20, 21, 27 and 28)

 

            19.       On August 18, 1996, the Department issued a Citation and Notification of Penalty to the Respondent alleging violations of eleven separate OSHA standards, based upon the facts set forth in paragraphs 4 through 14, above, and proposing unadjusted penalties totaling $23,000.  Under the system used by the Department for calculating penalties, credit is given for the size of the business, for the employer’s good faith, and for its compliance history.  In the Respondent’s case, this resulted in a downward adjustment of each of the penalties assessed on August 18, 1996, of 75%, yielding a total of adjusted penalties of $5,750.  (Testimony of Mr. Wollan; Exhibit 25)

 

            20.       For the Respondent’s failure to provide exit signs in the basement, as described in paragraph 4, above, resulting in an alleged violation of 29 C.F.R. 1910.37(q)(1), the Department determined the severity of a potential injury at “C” on scale of “A” (most severe) through “F” (least severe).  The employee exposure to the potential hazard was assessed at 2 because the basement area was only occupied by 2-3 employees during a normal work day, and the proximity, or length of exposure to the hazard was rated at a 1.  The duration of the potential hazard, the work conditions, and the additional instance of hazard were all rated at zero.  This all yielded a penalty rating of C3, for which the Department’s rating system yielded an unadjusted penalty of $1,500.  When the 75% penalty credit was applied, the result was an adjusted penalty of $375.  (Testimony of Mr. Wollan; Exhibit 25)

 

            21.       For the Respondent’s failure to make an emergency wash for chemical eye injuries available, as described in paragraph 5, above, resulting in an alleged violation of 29 C.F.R. 1910.151(c), the Department determined the severity of a potential injury at “E.”  The employee exposure to the potential hazard was assessed at 2 because two employees were engaged in cleaning offset press rollers during a normal work day, and the proximity, or length of exposure to the hazard was rated at a 1.  The duration of the potential hazard, the work conditions, and the additional instance of hazard were all rated at zero.  This all yielded a penalty rating of E3, for which the Department’s rating system yielded an unadjusted penalty of $2,500.  When the 75% penalty credit was applied, the result was an adjusted penalty of $625.  (Testimony of Mr. Wollan; Exhibit 25)

 

            22.       For the Respondent’s failure to have guards installed for the in-running nip points on the rotating print drums of five offset presses, as described in paragraph 6, above, resulting in an alleged violation of 29 C.F.R. 1910.212(a), the Department determined the severity of a potential injury at “D.”  The employee exposure to the potential hazard was assessed at 2 because two operators normally used the presses on a daily basis, and the proximity, or length of exposure to the hazard was rated at a 1.  The duration of the potential hazard was rated at 1, work conditions that might aggravate the potential hazard at 0, and the additional instances of hazard at 4 because there were five presses on the premises.  This all yielded a penalty rating of D8, for which the Department’s rating system yielded an unadjusted penalty of $3,000.  When the 75% penalty credit was applied, the result was an adjusted penalty of $750. (Testimony of Mr. Wollan; Exhibit 25)

 

            23.       For having inoperable safety devices on two paper cutters, as described in paragraph 7, above, resulting in an alleged violation of 29 C.F.R. 1910.212(a)(3)(ii), the Department determined the severity of a potential injury at “E.”  The employee exposure to the potential hazard was assessed at 1 because on average there was only one employee using the paper cutters during a normal work day, and the proximity, or length of exposure to the hazard was also rated at a 1.  The duration of the potential hazard, the work conditions, and the additional instance of hazard were all rated at zero.  This all yielded a penalty rating of E3, for which the Department’s rating system yielded an unadjusted penalty of $2,500.  When the 75% penalty credit was applied, the result was an adjusted penalty of $625.  (Testimony of Mr. Wollan; Exhibit 25)

 

            24.       For the Respondent’s failure to contain electrical connections within junction boxes, as described in paragraph 8, above, resulting in an alleged violation of 29 C.F.R. 1910.0303(b)(1), the Department determined the severity of a potential injury at “E.”  The employee exposure to the potential hazard was assessed at 1 because of the inspector’s judgment that only one employee would be in the vicinity of a hazard during a normal work day, and the proximity, or length of exposure to the hazard was also rated at a 1.  The duration of the potential hazard was rated at 0; the work conditions at 1 because of water accumulations on the floor, and the additional instances of hazard were rated at 3.  This all yielded a penalty rating of E6, for which the Department’s rating system yielded an unadjusted penalty of $4,000.  When the 75% penalty credit was applied, the result was an adjusted penalty of $1,000.  Although the evidence showed only two additional instances, which would have yielded a rating of E5, the unadjusted penalty would have remained at $4,000.  (Testimony of Mr. Wollan; Exhibit 25)

 

            25.       For the Respondent’s use of extension cords as permanent wiring for light fixtures and equipment, as described in paragraph 9, above, resulting in an alleged violation of 29 C.F.R. 1910.305(g)(1)(iii)(a) and (b), the Department determined the severity of a potential injury at “D.”  The employee exposure to the potential hazard was assessed at 2 because of the inspector’s judgment that two employees would be in the vicinity of a hazard during a normal work day, and the proximity, or length of exposure to the hazard was rated at a 1.  The duration of the potential hazard was rated at 0; the work conditions at 1 because of water leakage and accumulations, and the additional instances of hazard were rated at 1.  This all yielded a penalty rating of D5, for which the Department’s rating system yielded an unadjusted penalty of $3,000.  When the 75% penalty credit was applied, the result was an adjusted penalty of $750.  (Testimony of Mr. Wollan; Exhibit 25)

 

            26.       For the Respondent’s failure to provide employees with high visibility cones and garments while unloading trucks on West Broadway, as described in paragraph 10, above, resulting in an alleged violation of Minn. Rules, pt. 5205.0030, subp. 1 (1995), the Department determined the severity of a potential injury at “D.”  The employee exposure to the potential hazard was assessed at 2 because two employees were normally involved in unloading trucks, and the proximity, or length of exposure to the hazard was also rated at 2.  The duration of the potential hazard, the work conditions, and the additional instances of hazard were all rated at 0.  This all yielded a penalty rating of D4, for which the Department’s rating system yielded an unadjusted penalty of $2,000.  When the 75% penalty credit was applied, the result was an adjusted penalty of $500.  (Testimony of Mr. Wollan; Exhibit 25)

 

            27.       For the Respondent’s failure to provide adequate ventilation in the work place, as described in paragraph 11, above, resulting in an alleged violation of Minn. Rules, pt. 5205.0110, subp. 1 (1995), the Department determined the severity of a potential injury at “C.”  The employee exposure to the potential hazard was assessed at 2.  The proximity, or length of exposure to the hazard and the duration of the potential hazard were rated at 1.  The work conditions and the additional instances of hazard were both rated at 0.  This all yielded a penalty rating of C4, for which the Department’s rating system yielded an unadjusted penalty of $1,500.  When the 75% penalty credit was applied, the result was an adjusted penalty of $375.  (Testimony of Mr. Wollan; Exhibit 25)

 

            28.       For the Respondent’s failure to develop and implement a Right-to-Know training program in paragraph 12, above, resulting in an alleged violation of Minn. Rules, pt. 5206.0700, subp. 1 and 2 (1995), the Department determined the severity of a potential injury at “C.”  The employee exposure to the potential hazard was assessed at 2.  The proximity, or length of exposure to the hazard and the duration of the potential hazard were rated at 1.  The work conditions and the additional instances of hazard were both rated at 0.  This all yielded a penalty rating of C4, for which the Department’s rating system yielded an unadjusted penalty of $1,500.  When the 75% penalty credit was applied, the result was an adjusted penalty of $375.  (Testimony of Mr. Wollan; Exhibit 25)

 

            29.       For the Respondent’s failure to repair a water-damaged and leaking roof as described in paragraph 13, above, resulting in an alleged violation of Minn. Rules, pt. 5205.0660, subp. 1 (1995), the Department determined the severity of a potential injury at “C.”  The employee exposure to the potential hazard was assessed at 2.  The proximity, or length of exposure to the hazard, was rated at 1.  The duration of the potential hazard, the work conditions, and the additional instances of hazard were all rated at 0.  This all yielded a penalty rating of C3, for which the Department’s rating system yielded an unadjusted penalty of $1,500.  When the 75% penalty credit was applied, the result was an adjusted penalty of $375.  (Testimony of Mr. Wollan; Exhibit 25)

 

            30.       The Department determined the Respondent’s failure to have a Written Workplace Accident and Injury Reduction program, as described in paragraph 13, above, resulting in an alleged violation of Minn. Stat. § 182.653, subd. 8 (199), to be a non-serious violation and did not impose a penalty for that.  (Testimony of Mr. Wollan; Exhibit 25)

 

            31.       On August 27, 1996, the Department issued a Citation and Notification of Penalty to the Respondent alleging violations of two additional OSHA standards, based upon the facts set forth in paragraphs 16 and 17, above, and proposing unadjusted penalties totaling $3,500.  Under the system used by the Department for calculating penalties, credit is given for the size of the business, for the employer’s good faith, and for its compliance history.  In the Respondent’s case, this resulted in a downward adjustment of each of the penalties assessed on August 27, 1996, of 65%, yielding a total of adjusted penalties of $1,225.  (Testimony of Ms. Waisanen; Exhibits 27 and 28)

 

            32.       For the Respondent’s failure to post signs and labels indicating the presence of chrysotile asbestos as described in paragraph 16, above, resulting in an alleged violation of 29 C.F.R. 1926.1101 (k)(8)(vii) the Department determined the severity of a potential injury at “C.”  The employee exposure to the potential hazard was assessed at 2.  The proximity, the duration of the potential hazard, the work conditions, and the additional instances of hazard were all rated at 0.  This all yielded a penalty rating of C2, for which the Department’s rating system yielded an unadjusted penalty of $1,500.  When the 65% penalty credit was applied, the result was an adjusted penalty of $525.  (Testimony of Ms. Waisanen; Exhibits 27 and 28)

 

            32.       For the Respondent’s failure to repair, remove or enclose asbestos pipe insulation that was exposed and friable, as described in paragraph 16, above, resulting in an alleged violation of Minn. Rules, pt. 5205.0660, subp. 3 (1995), the Department determined the severity of a potential injury at “D.”  The employee exposure to the potential hazard was assessed at 2, and the work conditions were rated as 1.  The proximity, the duration of the potential hazard, and the additional instances of hazard were all rated at 0.  This all yielded a penalty rating of D3, for which the Department’s rating system yielded an unadjusted penalty of $1,500.  When the 65% penalty credit was applied, the result was an adjusted penalty of $700.  (Testimony of Ms. Waisanen; Exhibits 27 and 28)

 

            33.       A representative of the Respondent filed a timely Notice of Contest in this matter on September 9, 1996.  The citations, types of violations and proposed penalties set forth in both the August 19 and 27, 1996, Citations were contested with the following exceptions:  The citations for Items 1 and 2 of the August 27th Citation were not contested, and the proposed penalty for the second August 19th Citation was not contested.

 

            34.       On December 9, 1996, the Department served a Summons and Notice to Respondent and also a Complaint upon the Respondent.  The Respondent served its Answer on December 30, 1996.  On May 7, 1997, the Department served a Notice of and Order for Hearing and Notice to Employees, which set the hearing date for June 19, 1997.

 

            35.       Any Finding of Fact more properly termed a Conclusion is hereby adopted as such.

 

 

            Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

 

CONCLUSIONS

 

            1.         The Minnesota Occupational Safety and Health Review Board and the Administrative Law Judge have jurisdiction in this matter and have authority to act with respect to this matter pursuant to Minn. Stat. §§ 182.661, subd. 3, 182.664, and 14.50 (1996).

 

            2.         The Department gave proper notice of the hearing in this matter and has fulfilled all relevant substantive and procedural requirement of law or rule.

 

            3.         The Respondent is an employer as defined by Minn. Stat. § 182.651, subd. 7 (1996).

 

            4.         The Department must establish the violations alleged and the appropriate monetary penalties for serious violations by a preponderance of the evidence.  Minn. Rules, pt. 1400.7300 (1995).

 

            5.         Minn. Stat § 182.653, subd. 3 (1996) requires each employer to comply with Occupational Safety and Health Standards promulgated pursuant to Minnesota Statutes, Chapter 182 (1996).

 

            6.         A preponderance of the evidence established that on June 24, 1996, the Respondent was in violation of the following Occupational Safety and Health Standards promulgated pursuant to Minn. Stat. ch. 182 (1996):

 

            a.         29 C.F.R. 1910.37(q)(1);

 

            b.         29 C.F.R. 1910.151(c);

 

            c.         29 C.F.R. 1910.212(a);

 

            d.         29 C.F.R. 1910.212(a)(3)(iii);

 

            e.         29 C.F.R. 1910.0303(b)(1);

 

            f.          29 C.F.R. 1910.305(g)(1)(iii)(a) and (b);

 

            g.         Minn. Rules, pt. 5205.0300, subp. 1 (1995);

 

            h.         Minn. Rules, pt. 5206.0700, subp. 1 and 2 (1995); and

 

            i.          Minn. Rules, pt. 5205.0660, subp. 1 (1995).

 

            7.         A preponderance of the evidence did not establish that on June 24, 1996, the Respondent was in violation of Minn. Rules, pt. 5205.0110, subp. 1 (1995).

 

            8.         On August 5, 1996, the Respondent was in violation of the following Occupational Safety and Health Standards promulgated pursuant to Minn. Stat. ch. 182 (1996):

 

            a.         29 C.F.R. 1926.1101 (k)(8)(vii); and

 

            b.         Minn. Rules, pt. 5205.0660, subp. 3 (1995).

 

            9.         Under Minn. Stat. § 186.666, subd. 6 (1996), the Commissioner has authority to assess fines giving due consideration to the appropriateness of the fine with respect to the size of the business and the employer, the gravity of the violation, the good faith of the employer and the history of previous violations.

 

            10.       The penalties assessed by the Commissioner as set out in the Citations and Notifications of Penalty dated August 19 and 27, 1996, considered these factors and are appropriate.

 

            11.       Any Conclusion more properly termed a Finding of Fact is hereby adopted as such.

 

 

            Based upon the foregoing Conclusions, the Administrative Law Judge make the following:

 

 

ORDER

 

            IT IS HEREBY ORDERED that:

 

            1.         With the exception of the citation issue by the Department to the Respondent on August 19, 1996, for an alleged violation of Minn. Rules, pt. 5205.0110, subp. 1 (1995), the citations issued by the Department to the Respondent on August 19 and 27, 1996, are AFFIRMED.

 

            2.         The citation issued by the Department to the Respondent on August 19, 1996, for an alleged violation of Minn. Rules, pt. 5205.0110, subp. 1 (1995) is VACATED, and the penalty of $375.00 assessed by the Department for that violation is DISMISSED.

 

            3.         The Respondent, Banker’s Marketing Group, d/b/a Varnado Printing Center, shall pay to the Commissioner of the Minnesota Department of Labor and Industry the sum of $6,600.00 for the affirmed citations.  If the penalty is not paid within 60 days after the fine becomes a final Order, it must be increased to 125 percent of the originally-assessed amount.  Furthermore, after 60 days, the unpaid fine shall accrue an additional penalty of 10 percent per month compounded monthly until the fine is paid in full, as required by Minn. Stat. § 182.666, subd. 7 (1996).

 

 

Dated this

day of

June

1997.

 

 

BRUCE H. JOHNSON

Administrative Law Judge

 

Reported:  Tape Recorded (three tapes); no transcript prepared.

 

 

MEMORANDUM

 

            The essence of the first defense raised by the Respondent is that prior to the date of the inspections, the Department never specifically informed the Respondent about which of Minnesota’s Occupational Safety and Health Standards applied to its business and that the Respondent would be liable for penalties if it did not comply with applicable standards.  Although there may well be truth in Respondent’s argument that ascertaining the applicable standards represents a burden on small businesses like itself, the legislature has balanced the competing policy considerations and in Minn. Stat. § 182.653, subd. 3 (1996) decided to place that burden on employers:

 

            Subd. 3.  Each employer shall comply with occupational safety and health standards or rules promulgated pursuant to this chapter.

 

            A second defense raised by the Respondent is that two disgruntled former employees intentionally made misrepresentations and false statements about the Respondent’s business in the complaints they had submitted to the Department.  But the citations which the Respondent received were not based on statements by former employees, even though such statements may have prompted the inspections of the Respondent’s premises.  The citations were based on what the Department’s inspectors personally observed and what current employees of the Respondent related to them on the dates the inspections were conducted.  In fact, it was Mr. Wollan’s testimony that his inspection did not substantiate several of the complaints that former employees had made against the Respondent and that no citations were issued or penalties assessed for unsubstantiated violations.

 

            At the hearing, the evidence presented by the Respondent raised genuine issues of material fact bearing on only four of the thirteen citations made by the Department.[1]  The Respondent presented evidence relating to the absence of guards around in-running nip points on the rotating print drums on five offset duplicating presses located in the printing shop.  Specifically, Messrs. Bebeau and Varnado testified that the guards had simply been removed for cleaning when Mr. Wollan inspected the Respondent’s premises on June 24, 1996, and Mr. Bebeau testified that he recalled showing Mr. Wollan the guards during the course of the inspection.  Mr. Wollan, on the other hand, testified that no one had pointed out any such guards to him while he was making his inspection of the premises and that Respondent’s employees had told him that guards had not yet been fabricated.  The absence of such guards had also been the subject of earlier employee complaints to the Department.  When this is coupled with the fact that Mr. Wollan has no personal or financial interest in the outcome of this proceeding, it was the Administrative Law Judge’s conclusion that Mr. Wollan’s version of the facts concerning the availability of guards for the offset presses was the most reliable.[2]

 

            With regard to alleged inappropriate use of flexible extension cords as permanent wiring for fixtures and equipment, Mr. Varnado testified that those flexible cords belonged to a tenant who operated an engraving shop on part of the premises.  But even taking Mr. Varnado’s testimony as true, the evidence also showed that the Respondent’s employees also had unrestricted access to those parts of the premises.  The unsafe conditions therefore represented a potential hazard to the Respondent’s employees, as well as to any of the tenant’s employees.  Minn. Stat. § 182.653, subd. 2 (1996) requires the Respondent to act affirmatively to provide a safe workplace for its employees:

 

            Subd. 2.  Each employer shall furnish to each of its employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or harm to its employees.

 

In short, it was the incumbent upon the Respondent either to restrict any access its employees may have had to the hazardous conditions or to ensure that its tenant corrected the hazards.

 

            In its Answer, the Respondent denied that any of its employees were required to unload trucks on West Broadway.  At the hearing, however, while Messrs. Bebeau and Varnado denied requiring employees to unload trucks parked in a travel lane of the street, they conceded that employees of the Respondent did occasionally unload trucks there, possibly of their own volition, but clearly with the knowledge and acquiescence of the Respondent’s management.  As with the hazards posed by a tenant’s use of portable extension cords, Minn. Stat. § 182.653, subd. 2 (1996) requires the Respondent to act affirmatively to provide a safe workplace for its employee.

 

            Another defense raised by the Respondent C apparently with reference to the citations for loose plaster falling from the ceiling, for improper electrical connections, and for loose asbestos insulation around piping near a furnace C was that the conditions observed by Mr. Wollan and Ms. Waisanen were only temporary conditions that resulted from a remodeling project.  But the evidence established that roof leakage and resultant loose ceiling plaster had been a problem for several years.  Moreover, the furnace in question had been replaced in February of 1996, some four months prior to Mr. Wollan’s inspection and some six months prior to Ms. Waisanen’s inspection. Regardless of whether the Respondent was doing work on its building that could be characterized as “remodeling,” the fact remains that these conditions were potential hazards to which the Respondent’s employees were being regularly exposed for an extended period of time.

 

            Finally, there remains the question of whether the Respondent violated Minnesota’s Occupational Safety and Health Standards by failing to provide adequate ventilation in its workplace.  Minn. Rules, pt. 5205.0110, subp. 1 (1995) provides:

 

            Subpart 1.  Air.  Air shall be provided and distributed in all workrooms as required in this code, unless prohibited by process requirements.

 

            Outside air shall be provided to all workrooms at the rate of 15 cubic feet per minute per person.

 

            Air circulated in any workroom shall be supplied through air inlets arranged, located, and equipped so that workers shall not be subjected to air velocities exceeding 200 feet per minute except under special circumstances specified in this code or where approved by the Department of Labor and Industry.

 

Mr. Wollan’s conclusion that the ventilation available in the Respondent’s premises fell short of the requirements of the rule was based on the assumption that two air conditioning units located in the rear of the shop on the first floor did not provide circulation of outside air.  (Exhibit 25)  Mr. Wollan, however, did not inspect them and specifically determine that this was the case.  Moreover, at the hearing Mr. Bebeau testified that a 16” x 4’ vent was located on the roof near the front of the building.  Mr. Wollan indicated that he had no knowledge of that.  Mr. Wollan also testified that air circulation, in terms of cubic feet of air per minute, can be measured by an instrument called a volumeter, thereby providing an objective assessment of whether the ventilation requirements of the rule are being met.  But Mr. Wollan testified that he took no volumeter readings on the Respondent’s premises when he inspected them on June 24, 1996.  In short, the record contains an insufficient factual basis to support Mr. Wollan’s opinion that ventilation of the Respondent’s premises fell short of the  15 cubic feet per minute per employee standard. The Administrative Law Judge therefore concluded that the Department failed to meet its burden of proving a violation of Minn. Rule, pt. 5205.0110, subp. 1 (1995).

 

B. H. J