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These cases are not final orders of the Review Commission as they are pending Commission Review

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1924 Building – Room 2R90, 100 Alabama Street SW

Atlanta, Georgia 30303-3104

Secretary of Labor,

Complainant,

v. OSHRC Docket No. 13-1022

Mid South Waffles, Inc., d/b/a Waffle House #1283,

Respondent.

Appearances: Matt S. Shepherd, Esquire and Joseph B. Luckett, Esquire, U.S. Department of Labor, Nashville, Tennessee

J. Larry Stine, Esquire and Peter Steckel, Esquire, Schneider & Stine, P.C., Atlanta, Georgia

Before: Administrative Law Judge Sharon D. Calhoun

DECISION AND ORDER

Mid South Waffles, Inc., d/b/a Waffle House #1283 (Waffle House) contests a six-item

Citation and Notification of Penalty issued to it by the Secretary of Labor (Secretary) on May 15,

2013. The Secretary issued the Citation and Notification of Penalty (Citation) following an

inspection conducted by the Occupational Safety and Health Administration (OSHA) during the

period February 21, 2013, through May 15, 2013, as a result of a complaint filed after a fire at

the worksite located at 2501 Florence Boulevard, Florence, Alabama. The Citation alleges a

serious general duty clause violation under section 5(a)(1) of the Act, contending Waffle House

failed to properly maintain the grease drawer of a natural gas griddle, exposing employees to

burn hazards. The Secretary proposed as a feasible means of abatement that Waffle House

ensure the grease drawer is inspected, emptied, and cleaned on a regular and timely basis in

accordance with the Operator’s Manual for the griddle and NFPA 96, “Standard for Ventilation

Control and Fire Protection of Commercial Cooking Operations,” 2011 Edition. The Citation

also alleges serious violations of section 5(a)(2) of the Act and the standards thereunder found at

29 C.F.R. §§ 1910.133(a)(1), 1910.151(c), 1910.138(a), 1910.157(g)(1), and 1910.1200(e)(1).

The Secretary proposed penalties in the total amount of $34,000.00 for the alleged violations.

Waffle House timely contested the Citation.

A hearing was held in this matter January 21-22, 2014, in Florence, Alabama. Both

parties filed post-hearing briefs.

For the reasons that follow, Citation 1, Items 1, 2a, and 3 instance (a) are affirmed and a

penalty in the total amount of $20,000.00 is assessed as set forth herein. Citation 1, Items 2b, 3

instance (b), 4 and 5 are vacated.

Jurisdiction

The parties stipulated jurisdiction of this action is conferred upon the Commission

pursuant to Section 10(c) of the Act (Tr. 11-12). Waffle House also admits that at all times

relevant to this action, it was an employer engaged in a business affecting interstate commerce

within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 12).

Background

Waffle House Structure

Waffle House, a limited service restaurant, is a subsidiary of Mid South Waffles, Inc. (Tr.

126, 128). Mid South Waffles, Inc., was incorporated in 2009 (Tr. 129). It purchased Southeast

Waffles which had several restaurant locations in Mississippi, Alabama, Tennessee, and Georgia

(Tr. 129). In February 2013, Mid South Waffles, Inc., consisted of 124 to 126 restaurants and

employed approximately 25 employees per restaurant, 2600 employees company-wide (Tr. 25,

129, 334). Twenty-five employees worked for Waffle House during the period covered by the

inspection (Tr. 129). Anna Risner was District Manager, and supervised three stores. Shequetta

Johnson was Restaurant Manager, and only supervised this Waffle House restaurant (Tr. 262,

352, 353, 354). When Johnson was not at the restaurant, the grill1 operator for the shift

managed the restaurant (Tr. 352, 353, 354).

Waffle House is a 24-hour restaurant, where employees work in three shifts (Tr. 128).

The first shift is from 7:00 a.m. to 2:00 p.m.; the second shift is from 2:00 p.m. to 9:00 p.m.; and

the third shift is from 9:00 p.m. to 7:00 a.m. (Tr. 59, 426).

Fire

1 T he terms “grill” and “griddle” were used interchangeably at the hearing to refer to W affle H ouse’s cooking

appliance.

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On the night of February 16, 2013, a fire started on the griddle at Waffle House as

Cameron Cunningham was cooking on it. Cunningham was the grill operator and night shift

manager at the time (Tr. 42, 61, 95, 138). He and server Victoria Batts attempted to extinguish

the fire (Tr. 61-62, 64). Cunningham apparently used salt in his attempt to put out the fire, but

the fire quickly escalated (Tr. 52, 61-62, 64-65). Patrons and employees were evacuated from

the restaurant and the fire department arrived (Tr. 65, 66). Once the fire department arrived, the

fire was extinguished (Tr. 31, 362). Batts called manager Johnson, who is her sister, and

informed her of the fire at the restaurant. Afterwards, Johnson called District Manager Risner

and left a message for her about the fire (Tr. 67, 361). Both Johnson and Risner went to the site

the night of the fire. Johnson arrived first and Risner arrived at approximately 11:30 p.m. (Tr.

361). Waffle House employees were still on site, but remained outside of the restaurant (Tr.

362-363).

Fire Investigation

Lt. Ryan Orrick, Fire Investigator for the Florence Fire Department, was dispatched to

the fire at 10:52 p.m. that night to conduct an investigation of the fire (Tr. 27, 30). The fire had

been extinguished by the fire department before he arrived at the site (Tr. 31). As a part of his

investigation Lt. Orrick talked to the fire department officer in charge and then entered the

restaurant to inspect and take pictures (Tr. 31). Once inside, he observed two griddles: on the

left, a gas operated griddle with a slide-out drawer; and on the right, a smaller griddle.

According to Lt. Orrick, the larger griddle had four gas burners which burned “pretty hot.” He

also observed a waste collection tray, known as the grease trap or grease pit2, which slides inside

the griddle and fits underneath, next to the controls (Tr. 43). The grease trap was not inside the

griddle when he arrived, but instead had been removed and was placed on the top of the griddle

(Tr. 34).

Lt. Orrick inspected the griddle and found the gas griddle on the left-hand side had a lot

of damage from the heat from the fire (Tr. 43). His inspection of the grease traps revealed the

trap on the left was filled with food waste (Tr. 43-44). According to Lt. Orrick, from all

indications, including burn patterns present on the griddle and the adjacent wood plank, and rust

indicators on the metal discolored from the heat, most of the damage was on the griddle and

grease trap area on the left side (Tr. 40, 44). He observed that the edge of the wood where they

2 T he terms “grease trap” and “grease pit” were used interchangeably with the term “grease drawer” at the hearing.

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set plates was charred. Lt. Orrick testified this indicated the fire was below there at some point.

According to him, there was not as much damage to the top of the wood, however, the edge of

the corner above the grease trap had the most damage. Lt. Orrick testified this means the fire

likely started in the grease trap area (Tr. 35-36, 40).

Lt. Orrick interviewed Cunningham, night shift manager at the time of the fire.

Cunningham told him he was at the griddle on the left-hand side when the fire occurred, and that

he saw flames coming from the area where the grease trap was located (Tr. 42). Further, he

stated the fire started “under the grill by the grill controls,” which is the area near the grease trap

(Tr. 43, Exh. C-1). Lt. Orrick believed the griddle caught on fire at or near the grease trap,

which was full of food and oil materials (Tr. 44-45).

Lt. Orrick’s interviews revealed the grease traps were to be changed every shift (Tr. 49).

As a result of his investigation, Lt. Orrick concluded the grease trap he observed during his

investigation had been emptied somewhere around the start of the shift during which the fire

occurred (Tr. 50). According to him, oil and grease possibly came over the side of the grease

trap. Over time, grease or oil gets heated up and ignites (Tr. 45). Lt. Orrick determined the fire

was accidental in nature, and the waste container probably should have been emptied again. Lt.

Orrick concluded because the grease drawer was not emptied, this caused or contributed to the

fire (Tr. 48-49; Exh. C-1).

Griddle

The griddle where the fire started is used at Waffle House to cook food for customers. It

is manufactured by Wells Manufacturing Company. The griddle operates on natural gas and has

several features, including a “grease drawer” and a “grease trough.” The “grease drawer” feature

is a large-capacity drawer, removable from the front, and includes a reminder hole in the center

of the drawer to indicate when the drawer is full. It is located on the left side of the front of the

griddle, above the griddle legs, and is adjacent to the gas safety valve and thermostat controls

which are accessible through the fold-down front control panel (Tr. 43; Exhs. C-11, p. 2; C-6 and

C-7). The “grease drawer” contains a spigot in the bottom of the drawer for draining oil (Exhs.

C-11, p. 2, C-6 and C-7; Tr. 39, 114, 325, 378). The “grease trough” feature is located at the top

of the griddle, above the grease drawer. It slopes to a large waste hole in the center, which

empties into the removable grease drawer (Exh. C-11, p.2).

The cleaning instructions for the “grease drawer” and “grease trough” features provide:

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5. At least once each day, the grease trough must be thoroughly cleaned. Using a scraper, remove all grease and food waste from the grease trough by pushing it

down the waste hole and into the grease drawer.

6. After scraping all cooking waste from grease trough into the grease drawer, take the grease drawer to kitchen cleaning area and properly dispose of all

waste.

a. Clean drawer with hot water and a mild detergent.

b. Dry drawer thoroughly and reinstall in griddle.

(Exh. C-11, p. 11)

Waffle House Cleanup

The cleanup after the fire was initiated during the early morning hours of February 17,

2013, and continued for several days. By the time of the OSHA inspection, all cleanup had been

completed. The cleanup on February 17th occurred in two phases that day. The first phase

occurred immediately after the fire investigation was completed on February 17th and continued

until approximately 4:00 that morning. Johnson and Risner were managers present during the

first phase. The second phase began sometime later during that day. The evidence reveals

District Manager Tina Miller was present during that phase.

During the initial phase of the cleanup District Manager Risner assessed the site, after

which she went to Walmart and purchased dust masks and Krud Kutter3 for the cleanup (Tr.

364). Management and employees immediately began cleanup by clearing tables, discarding

food, stacking dishes in the sink area and taking out garbage. Dishes were washed in the dish

washer until there was no more hot water. At that point, the employees and managers stopped

cleaning. Employees went home, but Risner and Johnson remained at the restaurant for a

locksmith to arrive to make a key so the doors of the restaurant could be locked. Since Waffle

House never closes, there was no key to lock the door. After the key was made, Johnson and

Risner locked the door and left at approximately 4:00 a.m. (Tr. 363, 365).

During the second phase later that day, Division Manager Tina Miller provided gloves

she purchased from Lowes for employees to use during the cleanup (Tr. 419). During that

phase, employees used Dawn dishwashing liquid, Windex and Krud Kutter to clean (Tr. 419).

Miller testified she diluted the Krud Kutter in spray bottles, and the only degreasers used were

Tuf-Enuf and Krud Kutter (Tr. 428). According to her, ZEP was not used during the cleanup.

3 T he transcript reflects the spelling of this cleaner as “Crud Cutter.”

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Jacson White, second shift grill operator testified, however, ZEP was used during the cleanup

(Tr. 396). According to Miller, employees who cleaned with the Krud Kutter wore gloves which

extended up their arms, and the other employees engaged in the cleanup used latex gloves (Tr.

421).

The evidence does not detail the specifics involved in the remaining days during which

the restaurant was being cleaned before it re-opened for business.

OSHA Inspection

As a result of a complaint following the fire at Waffle House, OSHA Industrial Hygienist

Joselito Sto Tomas (CSHO Tomas) initiated an inspection of the restaurant on February 21,

2013. The complaint alleged hazardous conditions due to a grease trap overflowing with grease,

and the use of hazardous chemicals without proper protective equipment (Tr. 121, 126, 127).

CSHO Tomas testified that when he arrived for the inspection, everything in the restaurant had

been cleaned up from the fire and the restaurant was “spic and span” (Tr. 130-131). During the

inspection, he interviewed employees and management, spoke with the fire investigator,

reviewed portions of the surveillance video, and reviewed documentation (Tr. 131, 132, 133).

CSHO Tomas determined the fire began approximately two hours into the second shift (which

started at 9:00 p.m.) between 10:30 and 11:00 and, because it was a weekend night, restaurant

traffic was heavy (Tr. 137). CSHO Tomas concluded the grease drawer had not been emptied

during the third shift. He also determined employees involved in the cleanup and who operated

the waffle iron did not have appropriate personal protective equipment or an eye wash station

available. In addition, CSHO Tomas found employees were not trained on how to use fire

extinguishers, and Waffle House did not have a hazard communication program at the site.

Accordingly, he recommended the issuance of the Citation at issue in this proceeding.

DISCUSSION Credibility

Ten witnesses testified at the two-day hearing in this matter. The undersigned observed

the demeanor of each and assessed their credibility, considering their motivation, and whether

the testimony was plausible, consistent and corroborated. Four employees with management

responsibility testified at the hearing: Elizabeth Baily, Vice President of Workers Compensation

and Safety; Tina Miller, Division Manager; Dan Worrell, Division Manager; and Anna Risner,

District Manager. Each management witness testified with confidence, specificity, and certainty.

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They reflected a forthright and truthful demeanor. The testimony of each was consistent and

favorable to Waffle House, which is not surprising considering Waffle House was contesting the

citation. Importantly, however, their testimony generally was not contradicted by testimony

elicited at the hearing from other witnesses subject to cross-examination whom the undersigned

found credible. Accordingly, the undersigned credits the testimony of each of the management

witnesses, unless it was contradicted by reliable evidence adduced at the hearing.

Four employee witnesses testified at the hearing: Lisa Hazelip, Cook/Server; Roger

Spires, Grill Operator; Jacson White, Cook; and Victoria Batts, Server. The cooks and grill

operators testified confidently and candidly. Their testimony was generally consistent and

corroborated by the credible evidence elicited at the hearing from other witnesses subject to

cross examination. Accordingly, the undersigned credits the testimony of Hazelip, Spires, and

White regarding operations at the restaurant in general and regarding their participation in the

cleanup after the fire. None were present when the fire started.

Server Victoria Batts was working at the restaurant when the fire started. During her

testimony, Batts displayed a hostile demeanor and appeared to have an ax to grind with Waffle

House. The undersigned’s assessment of her demeanor and motivation was substantiated by

testimony at the hearing that Batts had been involuntarily separated from her employment with

Waffle House and had filed legal action against them (Tr. 58, 72, 98, 295). Batts’s testimony

seemed disingenuious, self-serving, and designed to support the charges she had brought against

Waffle House. Rarely was Batts’s testimony corroborated by the testimony of other witnesses.

Accordingly, the undersigned discredits Batts’s testimony and credits it only where it was

corroborated by witnesses who were subject to cross examination.

Fire Investigator Lt. Ryan Orrick’s testimony at the hearing was certain, specific and

supported by his investigation findings. He was a neutral witness with no stake in the outcome

of the proceedings. Lt. Orrick’s conclusion as to the cause of the fire was not challenged at the

hearing, nor were his investigation findings. The undersigned fully credits the testimony of Lt.

Orrick.

CSHO Tomas’s testimony regarding his inspection of Waffle House was in many

instances conclusory and not specific. For example, when questioned about the employees he

interviewed, he could not specify with certainty the number of employees he interviewed or

recall which employees provided him information to substantiate the alleged violations.

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Although the identity of the persons who did not testify was protected from disclosure pursuant

to the informer’s privilege, the CSHO’s lack of recall did not appear to have been to protect the

identity of those who provided information to him. Rather, it appeared he did not know who

they were, or they did not exist at all. In addition, specifically regarding documents CSHO

Tomas requested during the inspection, the evidence adduced, including his own testimony,

indicates he was not specific when requesting Waffle House’s hazard communication program.

Further, CSHO Tomas’s inspection findings appear to be based substantially on the information

gathered from server Batts, whose testimony the undersigned finds unreliable and discredits.

CSHO Tomas’s uncertainty, lack of specificity and reliance on information from a biased

employee leads the undersigned to question the veracity of his findings. Accordingly, the

undersigned discredits any testimony of CSHO Tomas not corroborated by credible evidence.

Alleged Violation of § 5(a)(1) of the Act

The Secretary alleges Waffle House violated § 5(a)(1) of the Act, also known as the

general duty clause. Section 5(a)(1) of the Act mandates that each employer “furnish to each of

his employees employment and a place of employment which are free from recognized hazards

that are causing or are likely to cause death or serious physical harm to his employees.” 29

U.S.C. § 654(a)(1).

To establish a violation of the general duty clause, the Secretary must show that: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; and (4) a feasible means existed to eliminate or materially reduce the hazard. Pegasus Tower, 21 BNA OSHC 1190, 1191, 2005 CCH OSHD ¶ 32,861, p. 53,077 (No. 01-0547, 2005).

Erickson Air-Crane, Inc., 2012 WL 762001 at *2 (No. 07-0645, 2012).

In addition to the above-quoted elements of a § 5(a)(1) violation, the Secretary also must

establish the employer had either actual or constructive knowledge of the hazardous condition.

Deep South Crane & Rigging Co., 23 BNA OSHC 2099 (No. 09-0240, 2012), aff’d Deep South

Crane & Rigging Co. v. Seth D. Harris, 24 BNA OSHC 1089 (5th Cir. 2013).

Citation 1, Item 1

Citation 1, Item 1 alleges a violation of section 5(a)(1) as follows:

On or about 02/16/13- In the kitchen area, the grease drawer of a 3-foot Wells natural gas griddle, Model #WG-3036G, SN #JJ09810101, the grease drawer was not properly maintained to prevent a grease fire.

As a feasible means of abatement, the Secretary proposes Waffle House:

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[E]nsure that the grease drawer is inspected, emptied, and cleaned on a regular and timely basis in accordance with the Operator’s M a n u a l f o r t h e gr i d dl e a s well as NFPA 96, “Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations”, 2011 Edition.

Whether an Activity or Condition at the site Constituted a Hazard

The Secretary contends Waffle House allowed the grease drawer to fill up with oil and

waste and that this was a hazard, alleging in the citation the grease drawer was not properly

maintained to prevent a grease fire (Secretary’s brief, pp. 6, 7; Citation). Cooks and servers

worked in proximity to the griddle and therefore had access to the alleged violative conditions

(Tr. 153).

Waffle House does not dispute that a full grease drawer constitutes a hazard. Elizabeth

Bailey, Vice President of Workers’ Compensation and Safety, testified it is hazardous to have a

grease drawer fill up with grease on a natural gas griddle (Tr. 321-322, 345). Bailey’s testimony

is substantiated by that of Lt. Orrick who conducted the fire investigation. His investigation

revealed the grease trap on the left side of the grill was filled with oil and food, and the griddle

received the most damage during the fire (Tr. 43-44). It was in this area Cunningham told Lt.

Orrick he was at when he saw flames coming from the grease trap area, starting out small but

quickly escalating (Tr. 42).

Lt. Orrick concluded the griddle caught on fire at or near the grease trap. According to

him, over time grease or oil gets heated up and ignites (Tr. 45). He concluded the grease drawer

probably should have been emptied again, and because of not being emptied, caused or

contributed to the fire (Tr. 48-49). The Secretary has established a grease drawer filled with

grease and waste constitutes a hazard.

Whether Waffle House or its Industry Recognized the Activity or Condition was Hazardous

A recognized hazard is a practice, procedure or condition under the employer’s control

that is known to be hazardous by the cited employer or the employer’s industry. Pelron Corp.,

12 BNA OSHC 1833, 1835 (No. 82-388, 1986). The Secretary contends Waffle House

recognized the hazard because it established a work rule requiring the grease drawer to be

emptied once per shift (Secretary’s brief, p. 7).

Waffle House disputes it recognized the hazard. It contends the general duty clause item

should be vacated because “there is no hazard recognized by the industry or the Respondent that

cleaning the grill three times in a day -- three times as often as the manufacturer recommends --

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would result in serious injury or death” (Waffle House’s brief, p. 13)(emphasis in original).

Waffle House misses the point. At issue is whether Waffle House implemented a work rule to

prevent hazardous conditions resulting from a grease drawer filled with oil and waste, and if it

did, such rule would demonstrate its recognition of the hazard. As noted by the Secretary, the

Commission has held issuance of a work rule specifically addressing a hazard equates to

employer recognition of the hazard under section 5(a)(1). Ted Wilkerson, Inc., 9 BNA OSHC

2012 (No. 13390, 1981).

As Bailey’s testimony indicates, a full grease drawer is a hazard. Waffle House does not

disagree it has a policy or work rule addressing cleaning the grease drawer. In fact, Waffle

House asserts its policy requires the grease drawer to be emptied once per shift, which it

contends, is more than what the manufacturer recommends. Both management and employees

of Waffle House testified cleaning the grease drawer once per shift was the requirement.

Dan Worrell, Division Manager,4 testified the policy is uniform for all the stores in the

region to clean out the grease trap at least three times a day. According to Worrell there was no

set time to clean the grease trap, but because the rush begins at 7:30 p.m. and carries into the

third shift, cleanup is typically done before the rush (Tr. 436). Elizabeth Bailey, Vice President

of Workers Compensation and Safety, testified it is hazardous to have a grease drawer fill up

with grease on a natural gas griddle and the process is to check it three times a day (Tr. 345).

District Manager Anna Risner testified the grease drawer is cleaned and emptied every day on

every shift, but there is no practice or policy regarding the particular time to empty it (Tr. 355,

356). Manager Johnson told CSHO Tomas the grease trap is to be cleaned at the end of the shift

and then the next cook is supposed to check it upon arrival to make sure it has been done. If not,

that person is supposed to clean it (Tr. 136-137). According to Jacson White, cook, the grease

drawer is cleaned every shift at least once a shift unless it was busier, then it was done twice (Tr.

388). Lisa Hazelip, cook and server, testified the grease drawer is cleaned every shift (Tr. 400).

And server Victoria Batts testified the policy is to empty the grease trap after every shift and the

cook is responsible for cleaning out the grease trap (Tr. 63, 78).

Waffle House was so cognizant of the hazard of a full grease drawer, it implemented a

policy requiring the grease drawer to be cleaned during every shift. The undersigned finds

Bailey’s testimony establishes the policy was implemented to prevent hazardous conditions

4 At the time of the fire, W orrell was Regional M anager for M id South W affles (T r.433)

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created by a full grease drawer on a natural gas griddle. Employer recognition of the hazard is

established.

Whether the Hazard Caused or was Likely to Cause Death or Serious Physical Harm

There is no dispute a fire started on the griddle in the area of the grease drawer. Grill

operator Cunningham was at the grill when the fire began. There were four other employees in

the restaurant (Tr. 62-63). The fire escalated quickly and the fire department came to extinguish

it (Tr. 65,66 ). CSHO Tomas testified employees were exposed to burns and smoke inhalation

and the possibility of the gas line exploding. He further testified such injuries would likely cause

death or serious physical harm (Tr. 143, 144, 153). Although the record does not indicate any

serious harm resulting to the five employees onsite at the time of the fire, the fire resulting from

the grease drawer filled with oil and waste was likely to cause death or serious physical harm.

The violation is properly characterized as a serious violation. The Secretary has established the

third element of his burden of proof.

Whether Feasible Means Existed to Eliminate or Materially Reduce the Hazard

A method of abatement is feasible under section 5(a)(1) if the Secretary “demonstrate[s]

both that the measure[] [is] capable of being put into effect and that [it] would be effective in

materially reducing the incidence of the hazard.” Beverly Enters., Inc., 19 BNA OSHC 1161,

1190 (No. 91-3344, 2000) (consolidated); see Champlin Petroleum Co. v. OSHRC, 593 F.2d

637, 640 (5th Cir. 1979) (“It is the Secretary’s burden to show that demonstrably feasible

measures would materially reduce the likelihood that such injury as that which resulted from the

cited hazard would have occurred.”). The Secretary is not required to show that the proposed

abatement would completely eliminate the hazard. Acme Energy Servs., 23 BNA OSHC 2121,

2127 (No. 08-0088, 2012), aff’d, 542 F. App’x. 356 (5th Cir. 2013); Morrison-Knudsen

Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1122 (No. 88-572, 1993).

The Secretary asserts the grease drawer was not properly maintained to prevent a grease

fire. As a feasible means of abatement, the Secretary proposes Waffle House ensure the grease

drawer is inspected, emptied, and cleaned on a regular and timely basis in accordance with the

Operator’s Manual for the griddle and NFPA 96 (Citation).

The Operation Manual provides instructions for cleaning the grease drawer; however, as

the Secretary concedes it does not indicate how often the grease drawer should be cleaned

(Secretary’s brief, p. 8, n. 8). NFPA (National Fire Protection Association) 96, which is the

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Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations also

relied upon by the Secretary to establish abatement feasibility, also provides guidance on

cleaning the grease drawer. NFPA 96 provides:

11.7.2 Cooking equipment that collects grease below the surface, behind the equipment, or in cooking equipment flue gas exhaust, such as griddles or charbroilers, shall be inspected and if found with grease accumulation, cleaned by a properly trained, qualified, and certified person acceptable to the authority having jurisdiction.

Neither the Operation Manual nor NFPA 96 specifies the frequency for cleaning the grease

drawer. They do support it should be inspected for grease accumulation and cleaned if

accumulation is found (Exhs. C-11, C-12). The testimony reveals that when the restaurant was

busier, the grease drawer was changed more than once during the shift to remove the

accumulation (Tr. 388). This shows Waffle House could accomplish inspecting and cleaning the

grease drawer when grease accumulation was present. Waffle House does not dispute feasibility

of compliance with the Operation Manual or NFPA 96. Further, as Lt. Orrick’s testimony

demonstrates, had the grease drawer been emptied, the fire would have not occurred (Tr. 45, 48-

49). The undersigned finds the Secretary has established a feasible means of abatement which

would materially reduce the hazard.

Whether Waffle House had Knowledge of the Violative Condition

An essential requirement for meeting the Secretary’s burden of proof is establishing the

employer had knowledge of the hazard. “As part of the Secretary’s prima facie case, [he] must

show that the employer had actual knowledge of the violation or could have discovered it with

the exercise of reasonable diligence.” Otis Elevator Co., 21 BNA OSHC at 2207. The Secretary

must establish actual or constructive knowledge of the violative conditions by Waffle House in

order to prove a violation of the standard. It is the Secretary’s burden to adduce sufficient

evidence to establish the knowledge element of his case.

The Court of Appeals for the Eleventh Circuit recently discussed the Secretary’s

knowledge element in the ComTran Group, Inc. decision:

As for the knowledge element [ ], the Secretary can prove employer knowledge of the violation in one of two ways. First, where the Secretary shows that a supervisor had either actual or constructive knowledge of the violation, such knowledge is generally imputed to the employer (citations omitted). An example of actual knowledge is where a supervisor directly sees a subordinate’s misconduct. See e.g., Secretary of Labor v. Kansas Power & Light Co., 5 O.S.H.

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Cas. (BNA) 1202, at *3 (1977) (holding that because the supervisor directly saw the violative conduct without stating any objection, “his knowledge and approval of the work methods employed will be imputed to the respondent”). An example of constructive knowledge is where the supervisor may not have directly seen the subordinate’s misconduct but he was in close enough proximity that he should have. See, e.g., Secretary of Labor v. Hamilton Fixture, 16 O.S.H. Cas. (BNA) 1073 *17-19 (1993) (holding that constructive knowledge was shown where the supervisor, who had just walked into the work area, was 10 feet away from the violative conduct). In the alternative, the Secretary can show knowledge based upon the employer’s failure to implement an adequate safety program, see New York State Elec. & Gas Corp., 88 F.3d 103, 105-06 (2d Cir. 1996) (citations omitted), with the rationale being that ---in the absence of such a program ---the misconduct was reasonably foreseeable.

ComTran Group Inc., 722 F.3d 1304, 1307-1308 (11 th

Cir. 2013).

Further, in Comtran, id. the court held for the first time in the Eleventh Circuit that “if

the Secretary seeks to establish that an employer had knowledge of misconduct by a supervisor,

[he] must do more than merely point to the conduct itself. To meet [his] prima facie burden, [he]

must put forth evidence independent of the misconduct.” Id. at 1318. Previously, a supervisor’s

actual or constructive knowledge of a violation could be imputed to the employer. “[W]hen a

supervisory employer has actual or constructive knowledge of the violative conditions, that

knowledge is imputed to the employer, and the Secretary satisfies his burden of proof without

having to demonstrate any inadequacy or defect in the employer’s safety program.” Dover

Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).

The Secretary does not contend Waffle House had actual knowledge of the violative

conditions on the night of the fire. The evidence demonstrates the grease drawer was not

inspected to determine if it should be emptied. Cunningham, who was responsible for cleaning

the grease drawer, testified he was too busy and had not done it during his shift (Tr. 138).

Instead, the Secretary contends Waffle House had constructive knowledge, arguing it should

have known of the violative conditions. The Secretary contends because the restaurant was

busier that shift, Cunningham should have known the grease drawer was potentially a hazard,

and if effective procedures for checking and timely cleaning the grease drawer were in place, the

fire would not have occurred (Secretary’s brief, p. 9).

The evidence at the hearing is uncontroverted that the restaurant was busy on the night of

the fire. It was third shift on Saturday night, and the restaurant being busy was not unusual.

Worrell testified that the restaurant was usually very busy from 7:30pm., into the third shift (Tr.

436). Cook and shift manager Cunningham told CSHO Tomas he was extremely busy on the

13

night of the fire and because he was busy setting up for the shift, he did not check the grease

drawer or empty it (Tr. 138). Although surveillance video shows the grease drawer purportedly

being emptied on the night of the fire, the evidence after the fire shows the grease drawer

contained a significant amount of grease and waste (Tr. 43-44, 45). Therefore, even if it had

been emptied, it needed to be emptied again prior to the fire. If Cunningham, shift manager, had

checked the grease drawer he could have known it was full. The undersigned credits Lt. Orrick’s

testimony regarding his findings after the fire, over the speculative testimony that the

surveillance video showed the grease drawer being emptied. The evidence fails to show

Cunningham inspected the grease drawer or emptied it prior to the fire.

The evidence reveals it was Cunningham’s responsibility to clean the grease drawer;

however, he failed to do so. As shift supervisor in charge at the time of the fire, his knowledge

could be imputed to Waffle House. Under ComTran, supra, Cunningham’s knowledge of his

own misconduct as a supervisory employee is imputed to Waffle House where the Secretary puts

forth evidence independent of the misconduct demonstrating the misconduct was foreseeable.

However, such evidence is not necessary here, because although Waffle House alleged employee

misconduct as an affirmative defense in its Answer, it abandoned the issue by failing to brief it.

The briefing order in this matter issued February 18, 2014, provides that “any issues not briefed

will be deemed abandoned.” (Notice of Receipt of Transcript).

Rather than relying on employee misconduct, Waffle House relies heavily on evidence

that the grease drawer was emptied consistently with its policy on the day of the fire, arguing

“even if the grease drawer had not yet been emptied at the time of the fire, the shift had not

ended and Respondent was still in compliance with the Waffle House policy.” (Waffle House

brief, p. 16). Compliance with Waffle House’s policy is not the issue. Waffle House was not

cited for failing to comply with its policy. It was cited for failing to maintain a grease drawer to

prevent hazards of a full grease drawer, thereby failing to furnish to each of its employees

employment and a place of employment which was free from recognized hazards that are

causing or are likely to cause death or serious physical harm as required by § 654(a)(1) of the

Act.

Although Waffle House abandoned its employee misconduct defense, the undersigned

feels it is important to note that despite implementing a work rule addressing the hazard, Waffle

House failed to effectively establish and communicate its work rule. Employees were aware of

14

the requirement to clean and empty the grease drawer once every shift, however, testimony at the

hearing demonstrated confusion as to whether it was to be done at the beginning or end of the

shift, and even whether it should be emptied more than once during a shift. Such confusion

indicates an ineffective safety program from which it would be foreseeable that violations could

occur.

With reasonable diligence, Waffle House could have known of the condition of the

grease drawer. “Reasonable diligence” includes the employer’s “obligation to inspect the work

area, to anticipate hazards to which employees may be exposed, and to take measures to prevent

the occurrence.” Frank Swidzinski Co., 9 BNA OSHC 1230, 1233 (No. 76-4627, 1981). The

Commission has held that “[r]easonable steps to monitor compliance with safety requirements

are part of an effective safety program.” Southwestern Bell Tel. Co., 19 BNA OSHC 1097, 1099

(No. 98-1748, 2000 (citations omitted), aff’d without published opinion, 277 F.3d 1374 (5th Cir.

2001). Waffle House failed to exercise reasonable diligence in inspecting the worksite and

taking measures to prevent hazards to its employees. Constructive knowledge is established.

For the foregoing reasons, the undersigned finds the Secretary has met his burden of

proving a violation of the general duty clause. The violation is affirmed.

Alleged Violations of Citation 5(a)(2) of the Act

The Secretary alleges Waffle House violated standards found in 29 C.F.R. Part 1910,

Subpart I - Personal Protective Equipment; Subpart K- Medical and First Aid; Subpart L- Fire

Protection; and Subpart Z- Toxic and Hazardous Substances. The Secretary has the burden of

establishing the employer violated each cited standard.

To prove a violation of an OSHA standard, the Secretary must show by a

preponderance of the evidence that (1) the cited standard applies; (2) the

employer failed to comply with the terms of the cited standard; (3) employees had

access to the violative condition; and (4) the cited employer either knew or could

have known with the exercise of reasonable diligence of the violative condition.

JPC Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

Citation 1, Item 2(a)

The Secretary cited Waffle House for a serious violation of 29 C.F.R. §1910.133(a)(1),

alleging violations on February 17, 2013, during the cleanup the day after the fire, and on

February 21, 2013, the day of the OSHA inspection. Citation 1, Item 2(a) alleges “protective eye

15

equipment was not required where there was a reasonable probability of injury that could be

prevented by such equipment” in that:

(a) On or about 02/21/13 -2501 Florence Boulevard, Florence, AL, employees were exposed to eye injuries while using Spartan Waffle Iron Cleaner to clean waffle irons.

(b) On or about 02/17/13 -2501 Florence Boulevard, Florence, AL, employees were exposed to eye injuries while using commercial cleaners and degreasers to clean fire and smoke damage following a grease fire.

(Citation).

The standard found at 29 C.F.R. § 1910.133(a)(1) provides:

(a) General requirements. (1) The employer shall ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards from flying particles, molten metal, liquid chemicals, acids or caustic liquids, chemical gases or vapors, or potentially injurious light radiation.

Instance (a)

Waffle House does not dispute that managers and employees of Waffle House used

Spartan Waffle Iron Cleaner, a caustic chemical substance, approximately three times a week to

clean waffle irons used in the restaurant. The mangers’ office was only two to three feet from

the area where the waffle irons were cleaned (Tr. 173). The cited standard is a general industry

standard and the type of industry Waffle House was engaged in as a restaurant and the type of

hazard involved falls under the general industry standards (Tr. 161-162). Applicability,

exposure, and knowledge are established. The only issue for determination is whether the terms

of the standard were violated.

Waffle House utilizes three sets of waffle irons which are rotated for cooking and

cleaning (Tr. 376). The waffle irons are cleaned with Spartan Waffle Iron Cleaner, a spray

cleaner, which includes instructions on spraying it onto the waffle iron (Tr. 83; Exhs. C-9, C-10).

District Manager Risner described the Waffle Iron Cleaning procedure as follows:

Take it to the back. We have a rolling cart that we sit on. You spray the bottom griddle with your waffle spray, close it, plug it in and let it sit for maybe 20 or 30 minutes, depending on how bad it is. You rinse it out, turn it upside down to drain and it dries for 24 hours.

(Tr. 357). Risner testified she has used the waffle iron cleaner for 15 years, and has never heard

of an employee taking the spray top off and pouring the cleaner on the hot waffle iron (Tr. 359,

360). She stated step-by-step instructions on cleaning the waffle iron are on the bulletin board in

16

the back of the restaurant. This was not disputed. According to Risner, these instructions were

on the bulletin board on February 16, 2013, and have been up for a while (Tr. 359-360).

With the exception of Batts and White, witnesses described the waffle iron cleaning

procedure similarly and denied pouring the cleaner onto the waffle iron (Tr. 390, 421). Batts

testified she poured the cleaner onto the waffle iron (Tr. 83-84). She and White testified the

cleaner was applied to the waffle iron while it was hot (Tr. 83-84, 85-86, 389). CSHO Tomas

testified employees told him they poured the cleaner directly onto the waffle iron while the

waffle iron was hot (Tr. 165). On cross examination he testified Batts was the only one who said

it was poured (Tr. 276). The evidence reveals waffle iron cleaning was done by managers and

cooks. Batts was neither. However, her testimony revealed she cleaned it 6 to 8 times during

her employment. Testimony that the Spartan Waffle Iron Cleaner was poured onto the waffle

iron is outweighed by a preponderance of the credible evidence which shows the Spartan Waffle

Iron Cleaner was sprayed onto the waffle iron which was then heated for the cleaner to work.

However, whether the waffle iron cleaner was sprayed or poured does not impact whether the

standard was violated.

The Spartan Waffle Iron Cleaner contains sodium hydroxide, which CSHO Tomas

testified is known as Lye or caustic soda and can cause severe irritation, burns of the cornea, or

blindness (Tr. 167, 196). The manufacturer of the Spartan Waffle Iron Cleaner recommends

splash goggles to prevent contact (Tr. 171; Exh. C-10). Evidence adduced at the hearing

demonstrates employees who cleaned the waffle irons did not wear any eye protection (Tr. 163-

164, 173). Waffle House asserts that since they were spraying the waffle iron cleaner and not

pouring it, there was no splash hazard warranting the splash goggles recommended by the

manufacturer. Waffle House’s argument is not persuasive. The Spartan Waffle Iron Cleaner

manufacturer’s recommendation of wearing splash goggles when using indicates the

manufacturer anticipated a splash hazard for which eye protection was necessary even

considering the cleaner was dispensed from a spray bottle. The cited standard requires

appropriate eye or face protection when exposed to hazards such as liquid chemicals, acids or

caustic liquids, or chemical gases or vapors such as those posed by the Spartan Waffle Iron

Cleaner. The evidence adduced at the hearing demonstrates whether spraying or pouring the

Spartan Waffle Iron Cleaner, employees were exposed to the caustic chemicals in the cleaner as

17

well as any vapors produced during the cleaning process. The Secretary has established a

serious violation of instance (a).

Instance (b)

Waffle House admits its employees did not wear goggles during the cleanup from the fire

(Waffle House’s brief, p. 17). Managers supervised employees during the cleanup (Tr. 193).

Division Manager Miller testified Waffle House employees used Dawn dishwashing liquid,

Windex, and Krud Kutter when cleaning the restaurant during the second phase of the cleanup

on February 17, 2013 (Tr. 419). She further testified she diluted the Krud Kutter in spray

bottles. According to Miller, ZEP was not used during the cleanup. She testified the only

degreaser used was Tuf-Enuf5 and Krud Kutter (Tr. 428). Jacson White testified on cross

examination that ZEP was used during the cleanup (Tr. 396). When shown Exhibit C-14, he

identified it as the products he used during the cleanup. He testified confidently and believably

regarding having used ZEP. CSHO Tomas testified other employees told him they used ZEP

during the cleanup, and while he was at the site, they retrieved the ZEP containers and brought

them to him (Tr. 191). Two ZEP products were presented to CSHO Thomas: one was ZEP 505

Industrial Cleaner & Degreaser; the other was ZEP All-Purpose Cleaner & Degreaser (Tr. 191;

Exhs. C-14, C-15 and C-16). The labeling on both products cautions to “avoid contact with the

eyes” (Exhs. C-16 and C-17).

The Material Safety Data Sheets for the ZEP All-Purpose Cleaner & Degreaser also

cautions against eye contact providing such contact “Causes eye irritation. Inflammation of the

eyes is characterized by redness, watering and itching.” (Exh. C-17). It further provides safety

glasses with side shields should be used (Exh. C-17). The Material Safety Data Sheets for the

ZEP 505 Industrial Cleaner & Degreaser cautions against eye contact providing such contact

“Causes eye irritation. Liquid in eye may cause irritation with possible damage if not rinsed

immediately.” (Exh. C-18). It recommends wearing safety glasses (Exh. C-18). The Material

Safety Data Sheets for these products provides the pH levels for the products as being 8.5 – 9.5

for the All Purpose Cleaner and 12.75 – 13.25 for the Fast 505 (Exhs. C-17 and C-18). A

corrosive chemical is one with a pH greater than 7 (Tr. 166, 169-170).

A preponderance of the evidence shows ZEP, a caustic or corrosive chemical, and Krud

Kutter were used during the cleanup. Although Waffle House disputes using ZEP, it does not

5 N o evidence was adduced at the hearing regarding the chemical compounds of T uf-Enuf or whether it was caustic.

18

dispute employees used diluted Krud Kutter, during the cleanup, suggesting that dilution reduces

the hazards. The record is void of evidence regarding whether dilution reduces the hazard.

Regardless, the standard is violated where the evidence demonstrates employees without

wearing required eye protection during the cleanup used ZEP which posed eye hazards. The

undersigned finds the terms of the standard were violated. The Secretary has established a

violation of the standard alleged in instance (b).

Citation 1, Item 2(a) is affirmed as issued.

Citation 1, Item 2(b)

The Secretary cited Waffle House for a serious violation of §1910.151(c), alleging

“[w]here employees were exposed to injurious corrosive materials, suitable facilities for quick

drenching or flushing of the eyes and body were not provided within the work area for

immediate emergency use” in that:

(a) On or about 02/21/13 - 2501 Florence Boulevard, Florence, AL, employees were exposed to a corrosive chemical while cleaning waffle irons (Spartan Waffle Iron Cleaner) and suitable facilities for quick drenching of the eyes and body were not provided.

(Citation).

The Standard found at 29 C.F.R. § 1910.151(c) provides:

(c) Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.

Management of Waffle House was aware that managers and employees of Waffle House

used Spartan Waffle Iron Cleaner, a caustic chemical substance, approximately three times a

week to clean waffle irons used in the restaurant. Applicability, exposure, and knowledge are

established. Whether the terms of the standard were violated is at issue.

The evidence substantiates the Secretary’s contention that while cleaning the waffle

irons, employees and management do not use eye protection. While cleaning, they are exposed

to contact and vapors from the caustic Spartan Waffle House Cleaner (Tr. 163, 167, 196). There

was no dedicated eye-wash station in the restaurant. However, Waffle House contends there are

six sinks with faucets (a hand washing sink in the kitchen area, a 3-bay sink in the back room

and a sink in each bathroom) in the restaurant within arm’s reach, arguing the standard does not

require a dedicated eye-wash station (Waffle House brief, p. 22). The undersigned agrees.

19

As both parties argue in their briefs, under Commission precedent, whether an employer

has provided suitable facilities depends on the totality of the relevant circumstances, including

the nature, strength, and amounts of corrosive material to which employees are exposed, the

configuration of the work area, and the distance between the area where any corrosive chemicals

are used and the eye-wash facilities. Atlantic Battery Company, Inc. 16 BNA OSHC 2131 (No.

90-1747, 1994).

The Spartan Waffle Iron Cleaner indisputably is caustic and can cause serious injuries

such as burns and blindness. It is used undiluted and is sprayed directly onto the waffle iron,

which is closed after spraying and turned on so the chemical can work. Employees then return to

their regular duties for the approximately twenty minutes it takes for the waffle iron to clean.

The duration of exposure to the chemical is brief. Cleaning occurs in the back room of the

restaurant in proximity to the food prep area and sink, and bathrooms with sinks (Tr. 173, 357).

There is no evidence that the sinks in proximity to the area where the waffle irons were cleaned

were inoperable. CSHO Tomas testified only that they were unsuitable because it would be

difficult for an employee to position their head under one of the sinks (Tr. 202-203). He did not

however testify it could not be done.

Waffle House is a small restaurant. CSHO Tomas agreed on cross examination, the

dimensions of the restaurant are 25 by 756, and water sources were only two to three feet away

from where the waffle iron is cleaned (Tr. 292, 293). The number of sinks in the restaurant and

proximity to the waffle cleaning area, for the size of the restaurant must be taken into

consideration. Further, the evidence fails to reveal any injuries sustained by employees during

the cleaning of the waffle iron. The undersigned finds the totality of the circumstances

demonstrates Waffle House provided suitable eye washing facilities for employees potentially

exposed to hazards which could affect their eyes while cleaning the waffle iron with the Spartan

Waffle Iron Cleaner. The terms of the standard were not violated. Item 2b is vacated.

Citation 1, Item 3

The Secretary cited Waffle House for a serious violation of 29 C.F.R. §1910.138(a),

alleging violations on February 17, 2013, during the cleanup the day after the fire, and on

February 21, 2013, the day of the OSHA inspection. Citation 1, Item 3 specifically alleges “[t]he

employer did not select and require employee(s) to use appropriate hand protection when

6 T he dimensions of the restaurant were not stated in feet; however, the context of the testimony indicates the

reference was to feet.

20

employees' hands were exposed to hazards such as those from skin absorption of harmful

substances; severe cuts or lacerations; severe abrasions; punctures; chemical burns; thermal

burns; and harmful temperature extremes” in that:

(a) On or about 02/21/13- 2501 Florence Boulevard, Florence, AL, employees were exposed to skin injuries while using Spartan Waffle Iron Cleaner to clean waffle irons.

(b) On or about 02/17/13 -2501 Florence Boulevard, Florence, AL, employees were exposed to skin injuries while using commercial cleaners and degreasers to clean fire and smoke damage following a grease fire.

(Citation).

The standard found at 29 C.F.R. § 1910.138(a) provides:

(a) General requirements. Employers shall select and require employees to use appropriate hand protection when employees’ hands are exposed to hazards such as those from skin absorption of harmful substances; severe cuts or lacerations; severe abrasions; punctures; chemical burns; thermal burns; and harmful temperature extremes.

Instance (a)

Management of Waffle House was aware that managers and employees of Waffle House

used Spartan Waffle Iron Cleaner, a caustic chemical substance, to clean waffle irons used in the

restaurant. Applicability, exposure, and knowledge are established. Violation of the terms of

the standard must be determined.

The evidence adduced at the hearing shows that while cleaning the waffle irons,

employees did not use hand protection such as gloves, and were exposed to contact from the

caustic Spartan Waffle House Cleaner (Tr. 87-88, 89, 207-208, 221). Waffle House does not

dispute that its employees did not wear gloves when cleaning the waffle irons.

The Spartan Waffle Iron Cleaner undeniably is caustic and can cause serious injuries

such as burns. It was used undiluted. Waffle House contends that Batts’s testimony regarding

irritation and injuries to her hands from the Waffle Iron Cleaner should not be credited. The

undersigned agrees. Batts’s testimony regarding her alleged injuries and those she alleges were

sustained by other employees, appeared self-serving and is determined to be unreliable.

Accordingly, no weight is put on her testimony on those matters. CSHO Tomas testified the

Spartan Waffle Iron Cleaner could cause chemical burns (Tr. 222). The Material Safety Data

Sheet for the Spartan Waffle Iron Cleaner provides rubber gloves or other impervious gloves are

21

recommended to prevent skin contact (Tr. 213). None were used by Waffle House employees.

The Secretary has established a serious violation of Item 3, instance (a).

Instance (b)

The Secretary contends Waffle House employees were exposed to skin injuries while

using commercial cleaners and degreasers to clean the restaurant following the fire. Waffle

House contends during the cleanup its employees were provided two types of gloves: kitchen

gloves and latex gloves (Waffle Houses’ brief, p.18). However, it asserts chemical-resistant

gloves were not necessary when using household cleaners. The credible evidence shows ZEP

and Krud Kutter, caustic and corrosive chemicals, were used during the cleanup on February 17,

2013, during phase two.

The Material Safety Data Sheets for the ZEP All-Purpose Cleaner & Degreaser Does not

caution against skin contact and does not provide that impervious or any other gloves are

required when using it (Exh. C-17). However, the Material Safety Data Sheets for the ZEP 505

Industrial Cleaner & Degreaser cautions against skin contact and provides: “wear appropriate

protective clothing to prevent skin contact. Chemical-resistant gloves.” (Exh. C-18). Both of

these products are considered corrosive chemicals because they each have a pH greater than 7

(Tr. 166, 169-170). Jacson White testified he used gloves during the cleanup when using the

ZEP products (Tr. 391-392). CSHO Thomas testified the kitchen gloves used were chemical

resistant (Tr. 221). However, according to CSHO Tomas at least four employees were not

provided chemical-resistant gloves, and employees told him they experienced skin irritation as a

result of the cleanup (Tr. 209, 218, 221). Miller testified employees who used Krud Kutter

during the cleanup wore the kitchen type gloves (Tr. 421). Her testimony is corroborated by

Whites’. Although Miller disputes employees used ZEP during the cleanup, it was clear from

her testimony that employees who used the corrosive chemicals were provided the kitchen

gloves, which CSHO Tomas testified were appropriate, to protect them. The undersigned credits

Millers’ and Whites’ testimony over that of the CSHO which was not specific regarding the use

of the gloves. The undersigned finds the terms of the standard were not violated. The Secretary

has not established a violation of the standard alleged in instance (b). Instance (b) of Item 3 is

vacated.

Citation 1, Item 3 instance (a) is affirmed.

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Citation 1, Item 4

The Secretary cited Waffle House for a serious violation of 29 CFR 1910.157(g)(l)

alleging “[a]n educational program was not provided for all employees to familiarize them with

the general principles of fire extinguisher use and the hazards involved with incipient stage fire

fighting” in that:

(a) On or about 02/16/13 -In the kitchen area, the grease drawer of a 3-foot natural gas griddle caught fire and employee(s)[sic] had not been trained on how to operate the portable Class K fire extinguisher provided.

(Citation).

The standard found at 29 C.F.R. § 1910.157(g)(1) provides:

(g) Training and education. (1) Where the employer has provided portable fire extinguishers for employee use in the workplace, the employer shall also provide an educational program to familiarize employees with the general principles of fire extinguisher use and the hazards involved with incipient stage fire fighting.

Waffle House contends it provided fire extinguisher training to its employees. The

record evidence reveals there were two portable fire extinguishers in the restaurant. One was a

Class K fire extinguisher and was mounted inside the kitchen. The other was an ABC Chemical

fire extinguisher and was located in the rear of the restaurant (Tr. 46, 47, 337).7

Bailey, Vice President of Workers Compensation and Safety, testified she oversees,

among other departments, the training department (Tr. 321-322). According to Bailey,

employee safety training consists of safety videos for new hires, a safety and Security Manual,

Ops Planning Calendar featuring a safety topic, the Waffle House Way which contains the fire

safety system regarding the type of equipment and how to use the extinguishers, and the Coach

N Train binder which is rotated every two weeks and covers 14 topics (Tr. 335-336; Exh. R-9).

Bailey testified fire safety is one of the topics included in Coach N Train. It covers the types of

extinguishers to use (Tr. 336).

According to server Batts, on the night of the fire she grabbed a fire extinguisher but

nothing happened, so she asked customers for help (Tr. 64). Batts further testified she was not

trained on how to use fire extinguishers when she first started working at the restaurant, and she

was not aware of any coworkers receiving training on how to use portable fire extinguishers (Tr.

7 An additional fire extinguisher was installed in the hood over the grill (T r. 225, 367). T his fire extinguisher was

not a portable fire extinguisher; it was a component of the hood over the grill (T r. 51-52).

23

65). CSHO Tomas testified Cunningham told him he had not been trained regarding the use of

fire extinguishers (Tr. 226-227). He also testified that Manager Johnson told him she had not

done any fire extinguisher training, and she could not remember the last time they were trained

(Tr. 227, 230). Johnson’s testimony does not establish fire extinguisher training was not done.

Batts’s testimony is discredited; Cunningham and Johnson did not testify at the hearing,

therefore they were not subject to cross examination. Further, CSHO Tomas’s recollection of

events relating to his inspection were not detailed, was conclusory and inconsistent and he did

not appear certain when testifying. The undersigned finds his testimony regarding Johnson and

Cunningham as it related to fire safety training unreliable and places no weight on it.

The Secretary argues that since Batts was unable to operate the fire extinguisher during

the fire and since neither Batts nor Cunningham knew how to put out the fire shows that they had

not been trained. The undersigned is not willing to make this leap because of the unreliability of

the testimony regarding fire extinguisher training. The reliable evidence shows Waffle House

trained its employees regarding the use of fire extinguishers. The Secretary has failed to

establish a violation as alleged. Item 4 is vacated.

Citation 1, Item 5

The Secretary cited Waffle House for a serious violation of 29 CPR § 1910.1200(e)(1)

alleging “[t]he employer did not develop, implement, and/or maintain at the workplace a written

hazard communication program which describes how the criteria specified in 29 CFR

1910.1200(f), (g), and (h) will be met” in that:

(a) On or about 02/17/13 – 2501 Florence Boulevard, Florence, AL, a written hazard communication program was not maintained at the establishment, material safety data sheets were not available for materials covered by the standard such as, but not limited to, Zep Fast 505 Industrial Cleaner and Degreaser, Zep All Purpose Cleaner and Degreaser, and Spartan Waffle Iron Cleaner, nor were employees trained in accordance with the requirements of 29 CFR 1910.1200 (h).

(Citation).

The standard found at 29 C.F.R. § 1910.1200(e)(1) provides:

(e) Written hazard communication program. (1) Employers shall develop, implement, and maintain at each workplace, a written hazard communication program which at least describes how the criteria specified in paragraphs (f), (g), and (h) of this section for labels and other forms of warning, safety data sheets, and employee information and training will be met, and which also includes the following:

24

(i) A list of the hazardous chemicals known to be present using a product identifier that is referenced on the appropriate safety data sheet (the list may be compiled for the workplace as a whole or for individual work areas); and,

(ii) The methods the employer will use to inform employees of the hazards of non-routine tasks (for example, the cleaning of reactor vessels), and the hazards associated with chemicals contained in unlabeled pipes in their work areas.

Waffle House contends its hazard communication program and material safety data

sheets were located in a wire basket hanging on the commissary door of the restaurant (Tr. 367).

According to Bailey, the hazard communication program is maintained in most restaurants in a

hanging basket/folder with the Safety and Security Manual (Tr. 338, 339). CSHO Tomas

testified that during his inspection on February 21, 2013, he asked Hazelip, who was the lead

supervisor at the time, if they have any documentation such as any “Health and Safety

Programs” (Tr. 130, 131). According to CSHO Tomas, she said “no idea” (Tr. 234). He testified

he also asked manager Johnson “what Safety and Health program do you have onsite, and she

said ‘no programs’” (Tr. 233). He also testified he asked the same question of District Manager

Risner and she also said “no” (Tr. 234). At the hearing, CSHO Tomas testified “safety and

health programs would include the hazard communication program” (Tr. 233). However, he did

not testify he provided this explanation to the Waffle House staff during his inspection on

February 21, 2013.

CSHO Tomas’s testimony during direct examination regarding the hazard

communication program was confusing at best. Despite testifying, Risner responded “no” when

he asked her what Safety and Health program Waffle House had onsite, he later testified during

direct examination that he telephoned Risner regarding the location of the hazard communication

program and she told him she did not know where it was located (Tr. 234, 442). CSHO Tomas’s

testimony was inconsistent and as a result, the undersigned concludes he did not specifically ask

for the Waffle House Hazard Communication Program. Even if the evidence can be construed to

find he asked for it, the evidence adduced at the hearing fails to show he asked anyone whether

the Hazard Communication Program was present on February 17, 2013, the date specified in the

Citation for the alleged hazard communication program violation.

Assuming arguendo the alleged violation description in Item 5 can be construed to

include February 17, 2013, Risner testified the written hazard communication program was in

the basket where she told CSHO Tomas it could be found, which according to her is where it

25

was always located (Tr. 368). Moreover, the Waffle House Hazard Communication Program

and the specific material safety data sheets sought by CSHO Tomas were subsequently provided

to him by Bailey (Tr. 340; Exh. R-10). CSHO Tomas’s recollection of events relating to his

request for documentation regarding the hazard communication program was conclusory and

inconsistent. The undersigned finds his testimony regarding the hazard communication program

unreliable and places no weight on it.

Contrary to CSHO Tomas, the employees and management testified consistently about

training and instruction materials, and safety related documents including its hazard

communication program being located in the basket in the back of the restaurant. The Secretary

has not established the hazard communication program was not present on the date alleged or on

the date of the inspection. Accordingly, the Secretary has not established a violation of Item 5.

Item 5 is vacated.

Penalty Determination

The Secretary proposed a penalty of $34,000.00 for the alleged violations cited. As set

forth herein, however, the undersigned vacates Items 2(b), 3 instance (b), 4 and 5. For the

remaining Items, the penalty proposed by the Secretary is $20,000.00.

Under § 17(j) of the Act, the Commission must give “due consideration to the

appropriateness of the penalty with respect to the size of the business of the employer being

charged, the gravity of the violation, the good faith of the employer, and the history of previous

violations.” The principal factor in a penalty determination is gravity, which “is based on the

number of employees exposed, duration of exposure, likelihood of injuries, and precautions

against injuries.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-

1052, 2005).

Waffle House, owned by Mid South Waffles, employed 25 employees (Tr. 129). Mid

South Waffles, company-wide, employs approximately 2600 people (Tr. 25). On the night of the

fire, 5 employees were at work at the Waffle House restaurant (Tr. 62-63). Approximately 6

employees were onsite during the cleanup after the fire (Tr. 221).

Citation 1, Item 1 is directly related to the fire which occurred on February 16, 2013, and

alleges a serious violation of section 5(a)(1) of the Act. In assessing the gravity of the violation,

CSHO Tomas testified it was high severity because serious injuries could result including burns,

smoke inhalation or death if there were an explosion (Tr. 156). He rated the probability as

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greater because of the number of employees present at the time of the fire and the circumstances

which were present which would make it more likely that the fire was going to occur (Tr. 156).

The undersigned concurs with this high gravity assessment for item 1.

Citation 1, Item 2a alleges a violation for failure to provide eye protection when cleaning

the waffle iron with caustic chemicals and during the cleanup following the fire. In assessing the

gravity of this violation, CSHO Tomas testified it was high severity because of the possibility of

eye injuries which would result in blindness or other serious physical harm (Tr. 194). He

assessed the probability as greater due to the number of people exposed during the cleanup (Tr.

195). A high gravity assessment is appropriate.

Citation 1, Item 3 instance (a) alleges a serious violation for Waffle House’s failure to

provide hand protection for employees using the caustic waffle iron cleaner. Employees could

sustain chemical burns and other skin irritation when using the Spartan Waffle Iron Cleaner.

Several employees used the cleaner. High gravity is appropriate.

Waffle House acted in good faith, as demonstrated by its cooperation during the

inspection. Good faith supports a smaller penalty. However, it has a history of OSHA violations

resulting in the issuance of serious violations during the five year period prior to issuance of the

instant citation (Tr. 202). This history supports a high penalty.

In consideration of the statutory penalty factors, the undersigned finds the Secretary’s

proposed penalty of $20,000.00 for the items affirmed herein is appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is ORDERED that:

1. Item 1 of Citation 1, alleging a serious violation of Section 5(a)(1) of the Act,

is affirmed, and a penalty of $7,000.00 is assessed.

2. Item 2a, of Citation 1, alleging serious violations of 1910.133(a)(1) is

affirmed, and a penalty of $7,000.00 is assessed.

3. Item 2b of Citation 1, alleging a serious violation of 1910.151(c) is vacated,

and no penalty is assessed.

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4. Item 3 of Citation 1, instance(a) alleging serious violations of 1910.138(a) is

affirmed; instance (b) is vacated. A penalty of $6,000.00 is assessed for item

3 instance (a).

5. Item 4 of Citation 1, alleging a serious violation of 1910.157(g)(1) is vacated, and no

penalty is assessed.

6. Item 5 of Citation 1, alleging a serious violation 1910.1200(e)(1) is vacated,

and no penalty is assessed.

SO ORDERED. /s/ SHARON D. CALHOUN

Date: November 24, 2014 Judge Atlanta, Georgia

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