OSHA-88-010-HK

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STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA OCCUPATIONAL SAFETY AND HEALTH REVIEW BOARD

Ray Bohn, Commissioner,

Department of Labor and Industry,

State of Minnesota,

FINDINGS OF FACT,

Complainant, CONCLUSIONS AND

ORDER

v s

S.B. Foote Tanning Company,

Respondent.

The above-entitled matter came on for hearing before Administrative Law

Judge Howard L. Kaibel, Jr., commencing in Minneapolis at 9:30 A.M. on January

5, 1988 pursuant to notice and was completed the following day. The record

closed on March 25, 1988, upon receipt of reply briefs.

Mark Rotenberg, of Dorsey & Whitney, Attorneys at Law, 2200 First Bank

Place East, Minneapolis, Minnesota 55402, appeared on behalf of the

Respondent. Jeffrey Baker, Special Assistant Attorney General, Suite 200, 520

Lafayette Road, St. Paul, Minnesota 55155, appeared on behalf of the

Complainant.

Notice is hereby given, pursuant to Minn. Stat. 182.664, subd. 5, that

the Findings of Fact and Order of the Administrative Law Judge may be appealed

to the Minnesota Occupational Safety and Health Review Board by the employer,

employee or their authorized representatives within 30 days following the

publication of said Findings and Order. The procedures for appeal are set out

at Minn. Rule part 5215.5000.

STATEMENT OF ISSUES

(1) Did Respondent establish adequate procedures to provide its employees

with a work place and working conditions free from recognized hazards

which caused or were likely to cause death or serious injury as

required in Minn. Stat. 182.653, subd. 2?

(2) Did Respondent reasonably endeavor to communicate its safety

precautions to the relevant employees?

(3) Did Respondent take adequate steps to discover and prevent violations

of its safety rules?

(4) Were the alleged violations of the OSHA statute primarily the result

of unforeseeable, hidden, deliberate employee misconduct?

Based upon all of the proceedings herein, the Administrative Law Judge

makes the following:

FINDINGS OF FACT

1. On December 4, 1986 and at all other relevant times herein,

Respondent was engaged in the business of tanning and processing leather hides

for use in finished leather goods at its plant located on Bench Street in Red

Wing, Minnesota.

2. The splitting department at this facility contained a five-inch

sub-floor horizontal auger that was used to convey leather shavings and scraps

through the splitting department to a vertical auger and on to a collecting

area. This horizontal auger was powered by a three-horsepower motor.

3. The auger was located in the floor directly underneath three Polletto

whole side shavers. These machnes shaved down leather hides to a uniform

thickness, producing waste leather shavings and scraps that had to be

collected for disposal. The sub-floor auger expedited collection.

4. The auger is covered by the shaver machines themselves, or by

protective metal gratings, so that no part of it is exposed to the operators.

The metal gratings are recessed into the floor, so the top of the gratings are

level with the floor.

5. This sub-floor auger was installed in the splitting department in the

spring of 1986. Management personnel met to discuss safety issues concerning

the operation of this new equipment. -these managers concluded that safety

hazards created by the auger's operation could be adequately addressed through

the following safety program:

(a) The mechanism is completely enclosed so there is no exposure to the

auger itself , unless a shaver- machine or gratings are moved from

their normal position.

(b) Clean-up procedures require an operator to leave the gratings in

place at all times. First, operators shut off their machines and use

an air blower to clean the machnes and the surrounding armas of

leather shavings. Operators then are to use a broom to sweep the

shavings over the protective metal gratings, through which they fall

into the auger. Operators are instructed that shavings which do not

f a 1 1 through the protective grating must be swept up, put into a

shovel, and taken to a nearby disposal cart. Each operator is given

a vacuum blower, broom, and shovel for the clean-up procedure.

Operators are allowed adequate time for this cleaning.

auger, accompanied by explicit warnings, to prevent any exposure by

shaver operators to the auger while it was operating. The lockout

procedure required that the auger must never be operated unless it is

covered by the protective gratings. A shut-off button locking down

the auger system is on a wall directly facing the whole side shaver

machines.

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( d Respondent also installed automatic shut-off buttons on each of the

whole side shaver machines which immediately deactivated the

sub-floor auger mechanism.

(e) Respondent posted safety warnings concerning lockout of the sub-floor

auger mechanism on the wall facing the whole side shave machines.

The warning poster stated, in pertinent part:

Lock out power before removing cover on guard.

TO AVOID UNSAFE OR HAZARDOUS CONDITIONS, THE FOLLOWING

MINIMUM PROVISIONS MUST BE STRICTLY OBSERVED.

1.(A) SCREW CONVEYORS SHALL NEVER BE OPERATED UNLESS THE

CONVEYOR HOUSING COMPLETELY ENCLOSES THE CONVEYOR

MOVING ELEMENTS. All necessary housings, covers,

safety guards, railings, gratings and power

transmission guards must be in place. If the

conveyor is to be opened for inspection, cleaning or

observation, the motor driving the conveyor is to be

locked out electrically in such a manner that it

cannot be started by anyone, however remote from the

area unless the conveyor housing has been closed and

all guards are in place. THE HOUSINGS, COVERS, AND

GUARDS ARE NECESSARY T 0 PREVENT ANYONE FROM

ENTERING, REACHING, OR FALLING INTO THE MACHINERY,

WHICH MAY RESULT IN SERIOUS PERSONAL INJURY.

b. Dayle Banitt, Bill Benson and Larry Wahlund frequently operated the

whole side shavers together on the same shift. Burton Christianson was the

supervisor of the Splitting Department on the morning shift. On December 4,

1986, all four worked the morning shift.

7. The Company's safety policies regarding the sub-floor auger were

communicated to the whole side shaver operators through safety meetings held

by the splitting department supervisor or his assistant. Larry Wahlund, Bill

Benson and Dayle Banitt all "signed-off" on "Supervisor's Personal Contact"

cards that they attended a safety meeting regarding proper operation of the

sub-floor auger. Larry and Bill signed-off on cards dated April 18, 1986.

Dayle signed-off on a card dated June 23, 1986. Al 1 three of these cards

stated that the employee was contacted by a supervisor about the "[I lock out

procedure on [the] Auger System" The personal contact card was part of S.B.

Foot's procedure for recording the occurrence of safety meetings.

8. The safety meetings regarding the sub-floor auger consisted of a

supervisor or assistant supervisor taking employees to the warning sign posted

near the power switches for the sub-floor auger and asking them to read the

sign. The employees were then asked if they had any questions or did not

understand this warning sign. The employees then signed the "Supervisor's

Personal Contact' cards and returned to work. Aside from this meeting, safe

operation of the sub-floor auger was not discussed with employees from the

time it was installed until after Larry Wahlund's accident.

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9 . Sometime in 1986, because of problems with spotting on the leather

hides, the Company directed the whole side shaver operators to improve their

efforts in cleaning their machines and adjacent areas.

10. Shortly after the whole side shavers were admonished to keep the area

cleaner, they began to lift the metal grates covering the auger during their

clean-up procedure. They found that lifting the grates was the most

expeditious way to keep leather shavings and scraps from clogging the holes in

the grates.

11. Dayle Banitt and Bill Benson often worked together on their

clean-up. One would sometimes lift up one side of the grate stile -the other

swept debris into the auger. Larry Wahlund often had no assistance and would

sometimes remove the grate while he swept waste into the auger.

12. Dayle Banitt and Bill Benson had been lifting the grate and Larry

Wahlund had sometimes removed the grate during the cleaning process,

frequently for one-to-two months prior to Larry Wahlund's injury on December

4, 1986.

13. Each of the operators was aware of, and understood, the posted

warnings and procedures.

14. Employees were cautioned by Respondent that violations of the

Company's safety rules and procedures would lead to discipline.

15. Respondent's supervisors' top priority was to assure compliance with

the Company's safety rules and procedures. Supervisors were specifically

required to be vigilant for improper safety practices, and were instructed by

the personnel manager with respect to potential safety problems they might

encounter in their areas.

16. On a typical day, the principal supervisor of the whole side shaver

area was often present in that area, including specifically during the

clean-up period.

17. Wahlund admitted to hiding his practice of removing the grating in

order that no one would see him doing so. He also admitted fearing discipline

if his misconduct were observed by the supervisors.

18. No supervisor ever saw, or was otherwise aware of, any whole side

shaver operator removing or lifting the grating for clean-up purposes without

shutting off the auger. Respondent's supervisors had never noticed the auger

running with the grating open during clean-up, and there were no reports of

such violations. They had never encountered any safety problem with the

sub-floor auger system, the lockout procedures, or the gratings.

19. Respondent's supervisors had no reason to mistrust the ability or

willingness of the experienced operators on the whole side shaver machines to

follow the clean-up procedures and lockout safety measures. None of these

operators had a record of safety infractions.

20. Respondent has never been cited for any serious or non-serrious OSHA

violations with respect to either the whole side shaver machines or the

sub-floor auger mechanism.

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21. On December 4, 1986, Dayle Banitt and Bill Benson cleaned up

together. At the moment the accident happened they were wiping down their

machines with rags, and Bill Benson was talking with their supervisor, Burton

Christianson. Meanwhile, Larry Wahlund had begun his clean-up routine by

himself. He had cleaned off -the whole side shaver with the airhose, and

removed the metal grate to sweep the debris arond his machine into the

running auger. He then began to wipe down the machine without replacing the

metal grate. A few moments later, he accidently stepped into the running

auger.

22. He began screaming and Bill Benson and Day le Banitt simultaneously

punched the auger shut-off buttons on their machines. He had wedged his foot

in the auger. Maintenance personnel had to cut some of the iron away to

remove it. As a result of the accident, his right foot was amputated below

the ankle.

23. On January 5, 1987, Jim Emmons inspected Respondent's facility in his

capacity as a Senior Safety Investigator for Complainant. The accident

precipitated the inspection which was limited to the area and

instrumentalities involved in the injury.

24. Mr. Emmons held an opening conference with David [- Diercks, Plant

Superintendent, Jerry Dietzman, Personnel Manager, and Bernard Carlen, Union

President.

25. Mr. Emmons then conducted a walkaround inspection of relevant areas

and interviewed Larry Wahlund, Dayle Banitt and Bill Benson.

26. At a closing conference, Inspector Emmons informed Mr. Diercks, Mr.

Dietzman and Mr. Carlen that his investigation was complete and that citations

might be issued. Mr. Dietzman stated that any citation issued as a result of

Mr. Wahlund's accident would be contested.

2 7 . On January 13, 1987, the OSHA Director cited Respondent for violating

Minn. Stat. 182.653, subd. 2. This statutory section is commonly referred

to as the General Duty Clause.

28. The citation alleged that:

Minn. Stat. 182.653, subd. 2 (1984): The employer failed

to furnish I= o each o f h is employees conditions of

employment and a p I ace of employment free from recogn i zed

hazards which caused or were likely to cause death or

serious injury to his employees; specifically: Inadequate

instruction and supervision were not (sic) provided for

employees during cleanup operations on the three whole side

shavers in the splitting department so that employees were

not (sic) exposed to the sub-floor auger system on December

4, 1986. The metal floor grate was not secured in place

nor was the lock-out procedure used by employees on several

previous occasions.

2 9 . On February 13, 1987, the Respondent duly contested the citation

causing Complainant to issue a complaint on March 13, 1987.

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30. In his Personal Interview Statement executed soon after the incident

took place, Wahlund stated that he knew the auger was supposed to be shut off

anytime the protective grating was raised. Five days after the incident,

Wahlund similarly admitted to Respondent's personnel manager that he knew he

had been told not to remove the grating while the auger was operating, but did

so nevertheless because he thought it would make the clean-up process

"quicker." He admitted removing the gratings was a "stupid shortcut."

31. Another OSHA inspector had inspected Respondent's facility three

months before the Wahlund incident, including the whole side shaver area. No

citation was made with respect to the sub-floor auger, the posted safety

instructions, or the whole side shaver machines.

3 2 . The National Safety Council's survey of frequency of lost time

injuries indicates that Respondent had less than half the lost time injury

rate of the average tannery in Respondent's business category.

33. Complainant gave Respondent the maximum credit in calculating the

citation penalty herein because Respondent had a good overall safety record.

34. Respondent has disciplined employees when necessary for safety

infractions, and employees are aware that safety violations may lead to

disciplinary measures. In 1978, a disciplinary layoff of an employee for a

safety violation led to a company-wide union walkout. All of the employees

involved herein were employed at that time and understood the emphasis the

company places on safety.

Based upon the foregoing Findings of Fact, the Administrative Law Judge

makes the following:

CONCLUSIONS

1. That the Minnesota Occupational Safety and Health Review Board and

the Administrative Law Judge have jurisdiction herein and authority to take

the action proposed pursuant to Minn. Stat. 182.661, subd. 3, 182.664 and

14.50.

2. That the Board gave proper notice of ithis hearing and that the

Complainant and the Board have fulfilled all relevant substantive and

procedural requirements of law and rule.

3. That the Respondent is an employer as defined by Minn. Stat.

182.651, sub. 7.

4. That the employees involved are employees as defined by Minn. Stat.

182.651, subd. 9.

5. That Complainant bears the burden of proof by a fair preponderance of

reliable and probative evidence with respect to the alleged violation of the

general duty clause and Respondent bears that burden on the affirmative

defense of employee misconduct.

6. That the Respondent recognized that the sub-floor- auger system posed

a hazard and foresaw that splitting department employees would be exposed to

it.

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7 . That the Respondent recognized the hazard was likely to cause serious

physical injury.

8. That Respondent's safety procedures were adequate to prevent exposure

to the recognized hazard in this case.

9. That Complainant has not shown by a preponderance of the evidence

that Respondent failed to render its workplace free of the recognized hazard.

10. That there may have existed other feasible means by which the

Respondent could have abated the recognized hazard of the sub-floor auger.

Such feasibility was not contested by Respondent.

11. That Respondent's clean-up procedures and lockout rules were

adequately communicated to its employees.

12. That Respondent took legally adequate steps to assure compliance with

the clean-up and lockout safety rules.

13. That the Wahlund incident was not legally reasonably "foreseeable".

14. That Larry Wahlund's actions leading up to the accident on December

4, 1986 constituted employee misconduct.

15. That Citation 1, Item 1, for which the Complainant proposed a

penalty, properly alleged that the conduct, if proven, would constitute a

serious violation for purposes of Minn. Stat. 182.651, subd. 12.

16. That the penalty proposed for the Respondent's alleged violation of

Minn. Stat. 182.653, subd. 2 was properly computed using the factors set

forth in Minn. Stat. 182.666, subd. 6.

Based upon the foregoing Conclusions, the Administrative Last Judge makes

the following:

ORDER

IT IS HEREBY ORDERED: that the citation be, and the same hereby is,

DISMISSED.

Dated: April 2 1988.

HOWARD L. KAIBEL, JR.

Administrative Law Judge

Reported: Taped. Transcribed by Mary Ann Hintz.

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MEMORANDUM

Although able counsel on both sides of this dispute "touch every base" in

arguing the legalities, only two legal conclusions required research and

elaboration here:

(1) Did Complainant [)rove that Respondent's safety practices and

procedures were inadequate?

(2) If the policies and work rules were adequate to ensure a safe place

of employment, did Respondent fail to adequately enforce them?

There was no dispute here over whether the auger was a recognized hazard

capable of causing serious injury. Company posters graphically depicted this

recognition and unambiguously described protective work rules and procedures.

Special safety equipment was installed including grates, shutoff switches

within reach of each employee and a lockout mechanism, which were all in

perfect working order The rules and procedures were fully communicated tco

and understood by the relevant employees. This case was not comparable to the

cited decision in Brown & Root, Inc.-, 1980 OSHRC 24,853, 8 OSHC (BNA) 2140

where a general oral work rule was not specific enough and was not effectively

communicated to the employees.

Here, the employees knowingly and deliberately violated these policies and

rules with the predictable consequence that one of them was seriously

injured. It is well settled that "Actual occurrence of hazardous conduct is

not, by itself, sufficient evidence of a violation, even when the conduct has

led to injury." National Realty and Construction Company v. OSHRC, (D.C.Cir.

1973) 489 F.2d 1257 at 1267. Complainant still has the burden of establishing

that Respondent's policies and/or enforcement of them were inadequate.

Adequate Safety_Measures?

Respondent does not dispute the feasibility of alternative approaches to

abating the recognized hazard. After the accident, Respondent took additional

measures to r-ender the area safer for employees. Respondent properly made an

evidentiary objection to any consideration of its subsequent remedial actions

which is herewith SUSTAINED. However, the evidence was admitted at the

hearing because of the recent OSHA Review Board decision in CECO Corp., OAH

Docket No. OSHA-87-006-HK. The Administrative Law Judge in that case excluded

such evidence, expressing concern that allowing such evidence would ultimately

harm worker safety by discouraging employers from making improvements whenever

an OSHA citation was pending or anticipated. The Review Board reversed,

contending that the evidentiary rule (407) was for the protection of juries

rather than Administrative Law Judges who should be able to overlook the

prejudicial nature of such evidence because they are learned in the law. In

judicial proceedings, the exclusionary rule for such evidence is applied

equally, whether the case is tried by a judge or to a jury, recognizing that

both are human and potentially swayed by improper or unfair evidence. The

Review Board decision does not explain why administrative hearing records

which are ordinarily reviewed by agency commissioners or other reviewers who

are not necessarily learned in the law should contain such evidence.

The evidentiary rule has a permissive exception where "feasibility" is an

issue and "feasibility" was specifically raised in that case as an affirmative

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defense. He re, Respondent has exp I ic it 1y st ipu Iated that the f ea s i b i 1 ity of

alternative abatement procedures or methods is not an issue. Under these

circumstances, if the rule is to have any meaning at all, the evidence must be

excluded. However, because of the CECO decision, Complainant was allowed to

make a record on the matter which has been and ought to continue to be duly

disregarded herein.

Respondent requests only that the protective methods, procedures,

equipment and work rules that it selected and installed be judged adequate.

Where the employer has a mechanism designed to eliminate a

hazardous condition, the burden is on the secretary to

establish that the employer's measures were inadequate.

Inland Steel, 1986 OSHD 27,647, 12 OSHC (BNA) 1986.

Inland was a case where an employee was killed in a railroad car accident.

The respondent proved that it had adopted rules which were adequate to prevent

the accident and that those rules were properly communicated tco the relevant

employees, were posted and were understood by those employees who filled out

safety contact cards which were maintained by the company in its safety

records. Although some switchmen had sometimes clearly violated these safety

rules, the Commission decided that there was no general duty violation.

Inland had monitored compliance and disciplined employees for past

infractions. The Commission upheld the Administrative Law Judge's

determination that the rules were adequate and properly communicated tc) the

employees and that the evidence did not sustain the allegation that the

employer failed to adequately enforce its rules. There was no evidence there

(as here) to indicate that any other industry anywhere had adopted more

rigorous abatement measures to deal with this commonly recognized danger.

In this case, the Employer's carefully selected hazard abatement

procedures ware manifestly adequate, including the "lock-out" mechanism where

employees put the key in their pocket to ensure that the auger could never be

energized whenever the protective grating was removed. The equipment and

"fail-safe" redundant work rules and procedures were more than adequate to

provide a safe work place, absent deliberate disobedience. As in Pelron

Corp., 1986 OSHD 27,605, where the employer adopted a 4-step safety

procedure and adequately communicated those precautions to thE employees,

complainant must do more than merely assert that respondent's safety method is

inadequate. He must produce evidence substantiating such a conclusion. Here,

Complainant did not introduce evidence that the safety procedures were

substandard or somehow inherently unsafe. Consequently, Complainant has not

established by a preponderance of the evidence that Respondent's hazard

abatement program was inadequate.

Adequaty Enforcement?

"Paper" work rules and procedures do not render 3 workplace safE- from

recognized hazards. Employers cannot "look the other way" when employees

violate work rmles and subsequently hide behind the employee "misconduct".

Employers mwst take reasonably adequate steps to ensure that their programs

and rules are enforced.

The adequacy of an employer's "hands-on" enforcement protocol is difficult

to second guess. The question arises infrequently because it only needs to be

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addressed when a conscientious employer has legally come four-f ifths of the

way to unquestionable compliance: (1) It recognized the hazard; (2) it

adopted adequate precautionary policies and rules to eliminate the hazard; (3)

it adequately communicated these policies and rules to the employees; and (4)

it made it clear generally to both employees and supervisors that infractions

of safety rules would be important enough to the company to result in

meaningful discipline.

The last one-fifth of -this formulation involves enforcement of safety

rules. Employers are not required to have a supervisor-enforcer constantly

looking over the shoulder of every employee at all times, particularly where

the employees are skilled and experienced. Brennan v. OSHRC (Hanovia Lamp

Division), (3rd.Cir. 1974) 502 F Ad 946. The more a respondent looks over

employees' shoulders however, the more likely it is that supervisors

overlooking misconduct will be found guilty of inadequate enforcement. On the

other hand, they must look over employees' shoulders with at least enough

frequency to properly enforce the company safety rules. If the company

doesn't employ adequate trained, conscientious supervisors in the worksite to

insure safety, it would also be guilty of negligent enforcement. The ultimate

question presented is always consequently whether Respondent adequately

supervised its worksite, without being impliedly negligent for failure to

discover any breaches of its safety rules.

Here, the question must be answered affirmatively. The employees were

skilled, experienced and had no record of safety violations. Safety personnel

regularly inspected the workplace, including OSHA inspectors recently and

supervisors (who knew that safety was the most important part of their job) on

a daily basis. There was not the slightest hint to the company that

enforcement supervision was inadequate.

Complainant cites Jensen Construction Company, 1979 OSHD 1 23,664 for the

proposition that Respondent's enforcement was inadequate. This is not Jensen,

where there was evidence that the supervisor was aware of several instances of

recent violations of -the work rule including one where a worker at the same

site had recently fallen to his death and the supervisor had himself breached

the company safety policy.

Likewise, this is not the second case cited by Complainant, Ted Wilkerson,

Inc . , 1 981 OSHD 25,551. There, three employees working in different parts

of the worksite were working without fall protection in plain view of both the

supervisor responsible for enforcing the work rule and the OSHA inspector.

Respondent had been twice cited before for failure to require safety belts,

causing the Commission to conclude that Respondent was legally on-notice of

the need for more effective enforcement of its work rule. In this case, the

employee acknowledged hiding his violations from supervisors and there was

nothing to put Respondent on notice of the need for more effective enforcement

of auger safety precautions.

The only other case cited by Complainant is New England Telephone and

Telegraph Company, 1983 OSHD 26,535. This case highlights the difficulty of

judging the employer's hands-on enforcement efforts. -We employer had a work

rule requiring the use of plainly visible pole-guards which had never been

enforced. One employee testified that he did not use pole-guards on more than

50 previous occasions. The rule had not been effectively communicated to

another employee.

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A divided Commission nonetheless vacated a citation for failure to use

pole-guards. One Commissioner felt that the employer did not have effective

legal knowledge of the violation and another concluded that this was a case of

employee misconduct. However, the Commission affirmed a citation for failure

to enforce use of insulated gloves, contending that more rigorous enforcement

of this rule was required because the failure to use gloves could not be

detected by ordinary observation.

The attached Report concludes that this is a case of unforeseen misconduct

by employees who all admitted that they knew better. It is similar to

Consolidated Edison Company of New York, 1980 OSHD 24,406 8 OSHA (BNA) 1550,

where respondent was not held liable for the unforeseeable recklessness of

three employees who removed a protective barrier, ignoring prohibitive work

rules. C.F. 2nd Montclair 1979 OSHD 23,697, 70 OSHC (BNA) 1698.

The most strikingly similar legal precedent encountered in researching

this matter was not cited by either party, but appears indistinguishable. In

Cerro Metal Products Division._ Marmon Group Inc., 12 BNA OSHC 1822, 1986 OSHD

27,579, employees performed maintenance on a recognized hazard without

de-energizing it. The de-energization rule was communicated to all of the

relevant employees and was posted at the site of the hazard. One employee was

killed. The surviving employee was an experienced worker with specialized

knowledge of the operation to be performed. There was no history of accidents

involving the hazard and all of the employees fully understood the

precautionary work rule. nonetheless, employees testified that short

maintenance operations of 15 to 20 minutes were sometimes made without

de-energization and no employee had ever been disciplined for a violation of

the rule. There was no evidence that supervisors were aware of these

violations. A shift foreman who spent about one-third of his time supervising

maintenance and repairs on the hazardous equipment testified that he had never

seen maintenance or repair work performed while the hazardous equipment was

energized. There had been ro previous accidents or injuries caused by failure

to de-energize or any reports of any rule violations. Both operators had

perfect safety records. The evidence did not establish that supervisory

personnel could have foreseen the need for additional precautions at the time

of the accident. Noting that there was a "clear admission of employee

misconduct" by one of the employees, the Review Commission reversed an

Administrative Law Judge's decision and vacated the citation. The same result

is appropriate in this case.

H.L.K., Jr.