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The Occupational Safety and Health Review Commission vacated a general duty clause citation against a Waffle House owner, although the underlying analysis in the split decision triggered a disagreement among the three commissioners in which one accused her colleagues of “Monday-morning quarterbacking.”
The commissioners also affirmed certain violations for failure to use personal protective equipment and assessed a $3,000 penalty against the employer in the case, according to review commission documents in Secretary of Labor v. Mid South Waffles Inc. doing business as Waffle House #1283, released on Tuesday.
Mid South Waffles Inc. operates a Waffle House restaurant located in Florence, Alabama. The Waffle House kitchen has two gas-fired griddles, each equipped with a removable grease drawer that collects grease, oil and food waste. At the time of the alleged violations, Mid South Waffles had a work rule requiring the grill operator, who also acts as the manager when one is not present, to clean each grease drawer once per shift, according to review commission documents.
In February 2013, a fire started under the surface of the larger of the two griddles. The local fire department extinguished the fire and later determined it was likely caused by not properly disposing of cooking oil and waste, according to the documents. The U.S. Occupational Safety and Health Administration conducted an inspection and issued a six-item serious citation alleging a violation of the general duty clause of the Occupational Safety and Health Act and several violations of the general industry personal protective equipment standards.
An administrative law judge affirmed the general duty clause violation based on the company’s failure to protect employees from burn hazards and two of the PPE items based on its failure to provide employees using cleaning solutions with eye protection and gloves and assessed a total penalty of $20,000, according to review commission documents. Mid South Waffles petitioned for review of the affirmed violations.
The administrative law judge found that the Secretary of Labor established that a full grease drawer constitutes a hazard and that recognition of that hazard was established by the company’s work rule to clean the drawers once per shift, and that the grill operator and acting manager’s knowledge of his failure to clean the grease drawer for the griddle that caught fire could be imputed to the company. The law judge also determined that Mid South Waffles had a feasible and effective means of abatement: inspecting the grease drawer and cleaning it when accumulation is present.
Commissioners Cynthia L. Attwood and James Sullivan agreed with the law judge that the secretary met the burden of proving hazard, recognition and knowledge, including that the full grease drawer was the hazard and that the company lacked a sufficient work rule to prevent the hazard of a full grease drawer, which established constructive knowledge.
However, Chairman Heather MacDougall and Mr. Sullivan determined that neither the griddle’s operation manual, which does not mention inspecting, nor the National Fire Protection Association’s NFPA 96 standard, which calls for grease-collecting cooking equipment to be inspected and cleaned, specify a frequency for inspecting or cleaning a grease drawer.
“Absent such specificity, MSW lacked adequate notice as to what the Secretary was claiming was the extent of MSW’s obligation under the general duty clause,” the commissioners stated in vacating the citation. “In short, the Secretary has merely identified the result it asserts MSW must achieve, but not the additional steps — beyond those the company already had in place — it should have taken to achieve this result and, consequently, abate the hazard.”
But Ms. MacDougall expressed concern about the analysis of her colleagues “regarding the alleged general duty clause violation because, unfortunately, my colleagues both sow new confusion into section 5(a)(1) doctrine and draw inferences not supported by the record.”
Specifically, Ms. MacDougall said she was “troubled” by their conclusions regarding the secretary’s burden on the first two elements of the general duty clause citation: the failure to render a workplace free of hazards and that the company or industry recognized the hazard.
“Their analysis of these two elements unnecessarily complicates the rather simple issue of common sense presented in this case: would a reasonable employer have known it was required to do more to ‘properly maintain’ the grease drawer before it caught fire?” she said. “Where MSW was emptying the grease drawer three times more frequently than the minimum recommended by the operation manual for the grill and had never experienced an overflowing grease drawer, the answer is no. By accepting the judge’s redefinition of the hazard and finding recognition of that hazard, my colleagues have chosen to engage in Monday morning quarterbacking.”
But Ms. MacDougall agreed with Mr. Sullivan in finding that the general duty clause citation must be vacated because the secretary failed to prove the feasibility of the proposed abatement measure.
However, Ms. Attwood dissented from the decision to vacate the general duty clause citation after determining that the secretary established all the requisite elements of the alleged violation, including establishing both the feasibility and effectiveness of the proposed abatement method, according to the decision.
“My colleagues conclude this proposed abatement method is deficient because in their view, it fails to ‘identify’ any ‘additional steps” MSW must take beyond its own existing work rule,” she said. “I disagree.”
At the time of OSHA’s inspection, Mid South Waffles’ work rule contained only one requirement: that employees empty and clean each grill’s grease drawer once per shift. The secretary proposed the company ensure that the grease drawer is inspected, emptied and cleaned on a regular and timely basis as a means of abatement, which identifies at least one step additional step, she said.
“Because the citation contains this ‘additional step,’ the only remaining question is whether it is feasible and effective,” she said. “I find that it is.”
J. Larry Stine, senior principal with Wimberly, Lawson, Steckel, Schneider & Stine P.C. in Atlanta and one of the attorneys for the employer, said he was pleased by the decision to vacate the general duty clause violation, particularly the review commission’s analysis with regard to the abatement issue.
When OSHA considers whether to issue a general duty clause citation, it typically reviews NFPA or other standards and the manual for the equipment in question, but the manual for the drawer only states that it should be cleaned once a day, he said. The company issued its own work rule that the drawer should be cleaned once a shift — with three shifts per day — and the employee was planning to clean it out later during the shift in which the fire occurred, he said.
“OSHA could never articulate what it was that we were supposed to do that we didn’t do,” Mr. Stine said. “When an employer is doing abatement or taking measures to abate the hazard, the burden of the secretary is to show what additional steps can be taken to reduce the hazard. OSHA failed to carry that burden.”
The commissioners rejected Mid South Waffles’ challenge to the application of the cited PPE standards, arguing that there was no history of eye or hand injuries and that the secretary failed to show that the hazards were recognized by the company or industry. The commissioners affirmed both PPE violations as serious based on the lack of hand protection and eye protection when employees use the Spartan cleaner, which is used a few times per week to clean the three sets of waffle irons at the restaurant. But the commissioners vacated a citation for the lack of eye protection when the employees used ZEP cleaners in the post-fire cleanup because the secretary failed to prove the applicability of the cited standard.
The company has been requiring the use of gloves and goggles in such cleanup activities since the citation was issued, Mr. Stine said.
“That’s a very limited issue,” he said. “I thought we were right, but we lost.”
An independent agency may be ready to curtail the U.S. Occupational Safety and Health Administration’s perceived overuse of the Occupational Safety and Health Act’s general duty clause to cite employers for failing to provide safe workplaces to their employees, according to some legal experts.