EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of F.W. Spencer and Son, Inc. - DAR


The Division established a serious violation of section 4187(a) [failure to guard in-running rolls]. On reconsideration the Board upheld the serious violation finding that an employer may not provide guarding other than that specified in section 4187 as equivalent protection under section 4184; the Division established that it was a serious violation because of the likelihood of a serious injury and because Employer could have, with reasonable diligence, learned that its employees were exposed to unguarded rolls; Employer had notice of the alleged violation despite a typographical error as to the date of the accident; the ALJ did not err in allowing the Division to call witnesses not disclosed to Employer because Employer did not move to compel discovery under section 372.6; section 4187 was not selectively enforced against Employer since Employer failed to establish that the Division was motivated by any discriminatory motive in issuing the citation; and Employer failed to establish the ALJ was biased against it.

The Board did find that the ALJ made a clear error of law vis--vis a hearing on a petition for costs, but the Board is without jurisdiction to address that issue now because Employer did not include it in its petition for reconsideration. The abatement order included in the decision by the ALJ was inappropriate, but that issue is moot since the Board issued an order striking the ALJ’s abatement order on May 16, 1995.

F.W. SPENCER AND SON, INC. 94-R1D3-407
May 10, 1999