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An OSHA inspection is something nightmares are made of. And for one New Jersey shop owner, the nightmare was reoccurring because OSHA kept coming back, and back, and back …
During the course of a busy work day when customers are clamoring for their cars and techs are demanding to know where their parts are, in walks a well-dressed young man with a briefcase in one hand and a clipboard in the other. Smiling, he says, "Hi, I’m from OSHA, and your business has been randomly selected for a safety audit."
As your blood pressure rises and beads of sweat develop on your forehead, you say to yourself, "What do I do now?"
If this happens once in your life, it would be an experience long remembered. But what if it happened three times? That’s exactly what happened to Sam Mikhail of Prestige Auto Body in Garwood, N.J.
When I learned of his encounters with OSHA, I thought his story would make for interesting and educational reading for the many shop owners who read this publication and have gone through — or live in fear of — an OSHA visit.
This is his story …
A Little Background
Prestige Auto Body was established in 1978 and has since grown to 11,000 square feet. Currently, Prestige employs nine people, although at its height (before the advent of steering and DRPs), it had 22 employees. Mikhail prides himself not only on keeping his shop up to date with current technology and equipment but with keeping it clean and orderly. "You can almost scrape off and eat whipped cream from the floor," he says. "We keep the shop immaculate. The floor is swept several times a day. Nothing is left on the floor."
He’s also proud that during 20 years of operation, he’s never had any serious injury in his shop. In the last five years, in fact, no one has had even a minor injury.
Initial OSHA Contact
About six years ago, a young girl came to Mikhail’s shop announcing she was from OSHA. Mikhail greeted her in a friendly manner, "and since we keep a clean and organized shop, I felt I had nothing to be concerned about so I let her into the shop," he says.
She took out a notebook and started writing things down. After about 30-45 minutes, she went to Mikhail and started talking about infractions she found and that she would send him a report. She didn’t inform him of all the infractions but did talk to him about the gas tanks he had along the wall. She told him that these tanks shouldn’t be next to each other — that they should be separated by at least 10 feet. He told her the acetylene and oxygen tanks were empty and strapped to the concrete wall.
She also listed that the bench grinder didn’t have a guard and told him the fine for that would be large — probably amounting to $450. He explained to her that the bench grinder hadn’t been used in years.
Another infraction she noted was that the light switch for the vent room was on the concrete wall outside the vent room. She said that it should be placed 10 feet away from the vent room to prevent explosions. Somewhat dumbfounded, he disputed the issue and asked her what sense it made to have to walk 10 feet to turn on the light in that room. She then said she wasn’t sure about the regulation and would ask her supervisor. Now exasperated, Mikhail told her to go ask her supervisor about all these things.
When Mikhail received her report, he saw he’d been assessed $2,100 in fines — mainly for "stupid stuff," as he calls it. "Stuff that actually wouldn’t cause any problems in a body shop if you’re careful with what you’re doing."
He later discovered she was new to the agency and this had been her first inspection.
Fight for Your Rights
Mikhail appealed by going to the OSHA conference to protest the report and the fines. He went alone and met with the head of the OSHA local office. The conference lasted about three hours, and after negotiating, they "took off" some of the infractions and reduced others. In regard to the gas tanks, he again noted they were empty and not being used. The OSHA rep countered that the tanks can never be completely empty — "empty doesn’t mean empty" — and they could have a "pin-hole" and leak or explode since they were "explosives and corrosives" located next to each other. Mikhail responded that the tanks get tested each time they’re filled and get hydro and pressure tested every couple of years. They were also strapped to the wall with their tops off — and the tanks were empty. The OSHA rep responded, "Are you here to discuss, to argue or to listen?"
After the negotiations — "pure bureaucratic nonsense," as Mikhail calls them — OSHA brought the fine down to $900. Mikhail told them he didn’t have the money to pay them and fix the infractions, so they suggested a payment schedule of six months. He decided that if he had to hire a lawyer and go to court, it would cost him several thousand dollars, so he chose to just pay the fines.
About a week after sending in his first payment, he got a call from OSHA telling him they’d lost his file and requesting that he fax them copies of all the reports, correspondence and anything else related to the case. He complied.
The Second Incident
Two months later, another OSHA rep came into Mikhail’s office saying that the agency’s computer system had randomly selected his business for an audit. Sam told him he just went through an audit and to "go find another place to audit." Losing his temper, Mikhail took out a key chain he kept in his desk, which held about 200 keys, and threw them at the rep saying, "You know what? Now you own the shop. I’m outta here. What do you people want from me?"
The inspector asked Sam what the problem was, so he proceeded to tell the young man the story. Apologies were made and the two made "friendly chitchat" for about an hour. It was through this inspector that Mikhail found out the woman who inspected his shop was new and that Prestige was her first inspection.
Mikhail also informed the OSHA inspector that the shop now has only nine employees and, therefore, OSHA cannot audit his shop (shops with nine or less employees aren’t under OSHA jurisdiction unless a complaint has been filed or an injury has occurred).
The Third Incident
About a year later, the same OSHA inspector came into Mikhail’s shop saying they were working with Ford on a study regarding de-lamination and that Ford gave OSHA his name.
OSHA was studying the effect of painting on the environment and employees (blood pressure, breathing, etc.). For that reason, OSHA was requesting that shop owners allow them to be in the shop on several projects from start to finish so they could monitor the employees. Sam agreed and later called the OSHA rep when he had a Ford job in the shop. The rep never showed up.
Several months later, the same OSHA rep showed up telling Sam that he was too busy to come before. Mikhail informed him that the shop no longer took on any Ford cars because they were losing money on jobs since Ford went to a flat rate. The OSHA rep then asked if he could talk to the painters while he was there to get some information for the study.
As the rep was leaving the shop, he told Mikhail that he’d be sending him a report on some infractions he saw in the shop and then bolted out the door before Sam could talk to him. Soon after, Sam received an OSHA report with fines totaling $1,100. Infractions included the fact that the painter wasn’t shaved and therefore a respirator wouldn’t fit properly and also that the painter wasn’t wearing a respirator.
Mikhail was furious. They didn’t have any paint work that day — which was why the painter wasn’t wearing a mask.
Fight for Your Rights — Again!
Mikhail called Bob Franks, his congressional representative, and complained about the OSHA harassment and the fact that the OSHA rep came to his shop under false pretenses. Rep. Franks recommended that Mikhail send him a written complaint. So Mikhail proceeded to write a seven-page report that Rep. Franks sent to OSHA headquarters in Washington D.C. Within 10 days, Mikhail received a phone call from the head of the regional OSHA office, which was in New York. The phone call lasted from 4 p.m. to 7 p.m.
The next day, the second in command at the New Jersey office called and set up an appointment to discuss the report. Mikhail met with the New Jersey rep for about an hour, and his fine was brought down to $100. Was Mikhail pleased? No way. He wanted the OSHA rep fired and didn’t think he should have to pay any fines, but the OSHA rep said he wanted to create a win/win situation for both Mikhail and OSHA. To do that, some fines had to be paid, although the fines for each infraction were brought down to nominal amounts — in one case, down to $1. About 11 infractions were listed and were all, according to Mikhail, "nonsense" items that didn’t need to be fixed (like the unshaven painter).
To keep a good relationship with this OSHA rep, Mikhail agreed to pay the $100 fine. He also asked the rep to recommend someone who could speak about OSHA inspections at a meeting of the Garden State Automotive Association — of which Mikhail was the chairperson. The rep recommended a director of the office.
The Saga Continues …
A few months ago, another OSHA rep showed up at Mikhail’s shop. Supposedly, a complaint has been filed stating the building is unsafe. (Mikhail admits that there was damage to the roof and that he was currently suing his insurance company regarding the dispute over the claim.)
"When the OSHA rep appeared, I told him I wasn’t going to let him in and that if he wanted to enter the building, he’d have to get a court order," says Mikhail.
The very next day, Mikhail got a phone call from the head of the New Jersey OSHA office (the same rep he met with regarding the $100 fine) asking him to let the inspector into his shop. Mikhail responded that he wouldn’t allow anyone from OSHA into his shop to do to him what they’ve done to him in the past. Moreover, Mikhail questioned what an OSHA rep knows about construction or engineering.
Mikhail also stated that since this roof issue was in litigation, he had engineering reports in which the building was deemed safe. The OSHA director said he’d send an engineer with the OSHA rep and promised Mikhail that all they would do is inspect the roof. Mikhail complied, allowing the engineer and the OSHA inspector in to look at the roof.
So far, he hasn’t heard anything else from OSHA.
Advice for Shop Owners
If you come face to face with an OSHA inspector — or even if you don’t — the following advice is good to know:
• You don’t have to let an OSHA inspector in whenever he shows up at your door. You can say you’re busy and schedule a better time.
• If you have nine or less employees, you aren’t under OSHA jurisdiction unless a complaint has been filed or an injury has occurred.
• Most OSHA infractions are for "little stuff," such as having frayed extension cords, not having fire-proof containers for hazardous materials, etc. Common sense and regular sweeps of the shop can handle these issues. For example, one OSHA requirement is that each shop must have an "eye wash station."
"It was too expensive to set up a separate area," says Mikhail, "so we found an adapter kit, which can be put on the faucet in the washroom."
• OSHA now has new rules. After a report is filed, the shop has 30 to 60 days for compliance. Fines aren’t levied immediately.
• Get to know and build relationships with your elected officials and use them when you need help. They’re usually sensitive to the complaints from small businesses. "It’s a free resource," says Mikhail, adding, "Well, not free; we pay for them."
• Don’t take what OSHA says as the Bible. "Fight for what you think is right," says Mikhail.
Don’t Live the Nightmare
If, during the course of a busy afternoon, a well-dressed young man with a briefcase in one hand and a clipboard in the other walks in your shop, beware. If he smiles and says he’s from OSHA, don’t loose your composure. Remain calm and remember that you don’t have to live the nightmare Mikhail did if you know your rights.
Being familiar with OSHA’s rules and with your rights as a shop owner won’t eliminate the chances of an OSHA safety audit, but it will help alleviate the stress Mikhail suffered. You may still have nightmares about OSHA in your sleep, but at least you’ll wake up from them still owning and operating your repair shop.
Writer Henry Netter has worked in the collision repair industry for more than 36 years, is an ASE Master Certified Collision/Refinish Technician and works at Auto Tech Collision in Philadelphia as the senior repair technician.
Avoiding Inspection Nightmares
Bosak also mentioned that he found the consulting division of OSHA in the state’s listings in the phone book, not the federal.
According to the OSHA Web site, state OSHA consultation programs generally are listed in the state government section of the telephone directory under Department of Labor and Industry. A complete listing of all OSHA consultation programs may be found in the OSHA booklet #3047 (1996 revised), "Consultation Services for the Employer," or on the OSHA home page, (www.osha.gov) under "Directory." I found the OSHA consultation Web pages (www.osha.gov/ashprogs/consult.html) and (www.osha-slc.gov/OshDoc/Fact_data/FSNO97-04.html) very informative.