Docket Nos. 1012; 1101

SEQUOYAH SPINNING MILLS, INC.

OSHRC Docket Nos. 1012; 1101

Occupational Safety and Health Review Commission

July 3, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: This matter is before this Commission for review of a January 27, 1973, decision of Judge Ernest C. Winfrey pursuant to 29 U.S.C. § 661(i). At issue is whether the citation was issued with reasonable promptness as required by 29 U.S.C. § 568(a). We hold that the respondent waived consideration thereof at this level because that defense was not raised in the proceedings below. Chicago Bridge and Iron Company, We therefore affirm the Judge's decision.

Chairman Moran would reverse for the reasons set forth in his dissenting opinions in Secretary v. Plastering, Incorporated, Secretary v. Advanced Air Conditioning, Inc.,

[The Judge's decision referred to herein follows]

WINFREY, JUDGE, OSAHRC: These causes came on to be heard at Oklahoma City, Oklahoma, on November 1, 1972. The parties were duly represented by counsel who subsequently filed briefs. The Complainant also filed proposed findings of fact and conclusions of law.

The proceedings arose pursuant [*2] to Section 10 of the Occupational Safety and Health Act of 1970 [29 USC 651 et seq., hereafter called the Act], protesting citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of the Act.

Though due notice had been given, no affected employee elected to participate as a party, nor was there intervention in the procedure pursuant to the Rules of Procedure lawfully promulgated by the Occupational Safety and Health Review Commission, [29 CFR 2200.20 and 21]. At the hearing conducted, the Complainant's Exhibits C-1 through C-13 were duly marked and admitted into evidence.

The controversy arose by virtue of citations issued by the Complainant in two cases which are hereinafter more fully set forth. In both cases the Respondent filed notices of contest and certified to service thereon pursuant to the Rules of Procedure [29 CFR 2200.07]. Thereafter, the cases were duly docketed, complaints were filed by the Complainant, answers were filed by the Respondent, and upon motion duly made, the causes were duly consolidated pursuant to the Rules of Procedure [29 CFR 2200.09]. The consolidated causes were then assigned [*3] to the undersigned by the Occupational Safety and Health Review Commission whereupon, after timely notice, a hearing was conducted as aforestated.

The Act provides in Section 5(a)(2) that each employer shall comply with occupational safety and health standards promulgated under the Act. This proceeding involves alleged violations of standards duly promulgated and specifically hereinafter referred to. In the event it is determined that any of such standards were violated, then it becomes necessary to determine the appropriateness of the civil penalty to be assessed.

All of the pleadings, evidence, arguments, and briefs have been carefully considered, and it is considered appropriate to make the following comments, findings, conclusions of law, and order. Each case will be discussed separately and in numerical order.

DISCUSSION OF DOCKET NO. 1012

The record reflects that the first citation was issued on May 24, 1972. The citation alleges that as a result of an inspection conducted March 22, 1972, of the Respondent's workplace as carpet yarn manufacturers, located approximately 3 blocks east from center of city on State Highway 33 at Watonga, Oklahoma, violations of [*4] the Occupational Safety and Health Act of 1970, 29 USC 651, had occurred in the following respects:

Item No. -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

1 -- 29 CFR 1910.22(a)(2) -- The floor of the tint room was not maintained in a clean and dry condition; i.e., sinthospin and spinrite liquids are dispensed from barrels, and spills create a slipping and tripping hazard. -- Immediately upon receipt of citation

2 -- 29 CFR 1910.22(b)(2) -- Permanent aisles and passageways in the work and storage areas were not designated by appropriate markings. -- June 16, 1972

3 -- 29 CFR 1910.106(e)(2)(ii)(b)(2) -- The storage of combustible liquids that was incidental to the principal business and located outside of an inside storage room was in excess of 120 gallons; i.e., five 55-gallon barrels of motor oils and other smaller containers of flammable or combustible liquids. -- June 16, 1972

4 -- 29 CFR 1910.106(e)(9)(iii) -- Combustible waste materials; i.e., oil and solvent soaked rags, were stored on barrels of oil and not stored in containers and located in the southwest end of workplace. Combustible [*5] materials (trash, papers and other materials) were stored in cardboard fiber containers and located on the covered area of dock at southwest end of building. -- Immediately upon receipt of citation.

5 -- 29 CFR 1910.110(h)(14) -- The propane storage and dispensing tank area that was located approximately 100 feet from the southwest corner of loading dock was not provided with at least one approved portable fire extinguisher having at least an 8-B, C rating. -- Immediately upon receipt of citation.

6 -- 29 CFR 1910.133(a)(1) -- Protective eye and face equipment; i.e., face shield, was not provided or available in the boiler room where sulphuric acid and caustics were stored and and caustics. -- Immediately upon receipt of citation.

7 -- 29 CFR 1910.151(c) -- Suitable facilities for quick drenching or flushing of the eyes and body were not provided for in the boilder room where suphuric acid and caustics were stored and dispensed. -- Immediately upon receipt of citation.

8 -- 29 CFR 1910.158(b)(1)(i) -- Standpipe hose outlet for 1-1/2 inch firehose for occupant use located on column between loading doors 4 and 5 was partially obstructed from view by coat that was hung [*6] on hose rack and outlet valve. -- Immediately upon receipt of citation.

9 -- 29 CFR 1910.158(b)(5)(i) -- Standpipe hose outlet for 1-1/2 inch firehose provided for occupant use and located on column between loading doors 4 and 5 was not equipped with approved lose valve; i.e., hand valve broken. -- Immediately upon receipt of citation.

10 -- 29 CFR 1910.219(d)(1) -- The pulleys that were less than 7 feet above the floor and located on each of the four carding machines and the two Worthington air compressors, Serial Nos. BN2763A and BN2783A, and the three Belmont friction winders were not provided with guards as required by location. -- June 16, 1972

11 -- 29 CFR 1910.219(e)(3)(i) -- The inclined flat belts that were approximately 2-1/2 inches in width and located on the three Belmont friction winders, and the inclined V-belts that were approximately 1/2 inch in width and located on the four carding machines, the inclined 1/2 inch V-type gang belts on the two Worthington air compressors, Serial Nos. BN2763A and BN 2783A were not provided with guards as required for location. -- June 16, 1972

12 -- 29 CFR 1910.219(f)(3) -- The sprocket and chain at delivery end of Davis and Fruber [*7] carding machine and also the chain and sprocket of the No. 3 Harwood-Braumwell feeder machine were not provided with guards. -- 5 days from receipt of citation.

13 -- 29 CFR 1910.242(b) -- Compressed air used for cleaning purposes was not reduced to less than 30 psi and located at spun yarn twisting area near Warner and Swassey pin drifter machines, Models M-4700, and between blend machines 3 and 4 on blend line. -- 5 days from receipt of citation.

14 -- 29 CFR 1910.252(a)(2)(v)(b)(7) -- The cylinder valves of oxygen and acetylene cylinders that were used for cutting and welding operations were in the open position. Cylinders were located near the air conditioning area and unattended. -- Immediately upon receipt of citation.

15 -- National Electrical Code, NFPA 70-1971, Article 110-22 as adopted by 29 CFR 1910.309(a) -- The control and breaker box panel for the press and blend lines was not marked to indicate its purpose. -- Immediately upon receipt of citation.

16 -- National Electrical Code, NFPA 70-1971, Article 250-45(d), as adopted by 29 CFR 1910.309(a) -- The exposed noncurrent-carrying metal parts of cord- and plug-connected equipment which was liable to become [*8] energized was not provided with ground; i.e., water-type window fan, and was located on the floor near aisleway leading to air conditioning area. It was equipped with a damaged attachment plug and a flexible cord that was taped and was hot to touch and on floor across passageway. -- Immediately upon receipt of citation.

There is no controversy in this proceeding concerning the referenced standards, thus it is deemed unnecessary to quote same; however, each standard above cited is incorporated herein by reference as if same were set forth en haec verba.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated May 24, 1972, from J. T. Knorpp, Area Director of the Sixth Region, Occupational Safety and Health Administration, U.S. Department of Labor, that it was proposed to assess penalties for the violations alleged in the aggregate amount of $380.00, which are specifically set forth as follows:

Item No. and Description -- Proposed Penalty

1 -- Floor not maintained in clean and dry condition. -- None

2 -- Aisle and passageways not marked. -- $45.00

3 -- Combustible liquids improperly stored. -- $65.00

4 -- [*9] Combustible waste materials improperly stored. -- $30.00

5 -- Lack of fire extinguisher in propane area. -- $30.00

6 -- Lack of protective eye and face equipment. -- $30.00

7 -- Lack of facilities for drenching or flushing of eyes and body. -- $30.00

8 -- Standpipe hose outlet of firehose obstructed. -- None

9 -- Standpipe hose outlet of firehose not equipped with approved hose valve. -- None

10 -- Pulleys not provided with guards. -- $30.00

11 -- Inclined flat belts not provided with guards. -- $30.00

12 -- Carding and feeder machines not provided with guards. -- $30.00

13 -- Compressed air not reduced to 30 psi. -- $30.00

14 -- Oxygen & acetylene cylinder valves in open position. -- None

15 -- Control and breaker box panel not marked. -- None

16 -- Electrical equipment having defective cords was not grounded. -- $30.00

The record further reflects that the Respondent gave notice of contest, certifying to service of same, and a complaint was duly filed by Complainant on June 21, 1972. Such complaint did not vary materially from the allegations of violations set forth in the citation and letter of proposed penalty. Thereafter, by document served on September [*10] 22, 1972, the Respondent duly answered the complaint. Such answer admitted all matters alleged in the complaint, including the alleged violations and proposed penalties, and further alleged that each and every alleged violation had been remedied by the Respondent. At the hearing, Respondent stipulated that the alleged violations had been remedied and asked that the proposed penalties be waived.

The uncontroverted evidence conclusively establishes that the 16 violations of standards alleged in the citation existed on March 22, 1972. In this connection, Otto B. Medlin, Compliance Officer for the Occupational Safety and Health Administration, Department of Labor, testified that he inspected Respondent's workplace on March 22, 1972, and observed such violations. It seems clear therefore that this entire record establishes such violations and there is no evidence to the contrary.

The only question remaining for resolution is whether the penalties proposed should be affirmed, vacated or modified. In substance and pertinent part, the witness, Medlin, testified that Respondent employed 246 employees in three shifts; that the plant operated 24 hours a day and contained approximately [*11] 88,000 feet of floor space therein. He testified further that he did the preliminary work for penalty assessment and based his decision on the probability that an injury or accident could occur causing harm to an employee, and the number of employees so exposed.

James T. Knorpp, Area Director for the Tulsa, Oklahoma office of the Occupational Safety and Health Administration, testified that, among other things, he was responsible for the issuance of citations and notification of proposed penalties. In substance and pertinent part, he testified that in the process of proposing penalties, the factors required by law are used. He enumerated such factors as severity of the violation, history of the employer, good faith exhibited by the employer and the size of the employer. He stated further that the unadjusted penalty total was $1,675.00, and that after reductions were made for good faith, history and abatement, the total adjusted proposed penalty was $380.00. He testified also that no reduction was made for size as the Respondent employed more than 99 persons.

As hereinabove set forth, the Respondent contends that the proposed penalty should be "waived," in that the violations [*12] were timely "remedied." Such contention does not appear to be well-founded.

Under the Act the Commission is charged with affirming, modifying or vacating citations and proposed penalties issued by the Secretary. The Commission, by Section 17(j) of the Act, is expressly required to find and give due consideration to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty.

After due consideration of this entire record, as well as the Act and regulations, it is concluded that the proposed civil penalties against the Respondent are reasonable, fully justified and in accordance with law. The violations were not minor even though the criteria for a serious violation required by the Act were not met. The employees were exposed to unnecessary hazards and the proposed penalty for each citation is not unreasonable. Furthermore, the Respondent is a relatively large employer of people and the small civil penalties proposed should not materially affect its financial capacity to remain in business. Moreover, the proposed penalty should properly [*13] effectuate the intent of Congress when it passed the instant Act.

DISCUSSION OF DOCKET NO. 1101

The record further reflects that the second citation was issued June 27, 1972. The citation alleges that as a result of an inspection conducted April 12, 13 and 14, 1972, of the Respondent's workplace, spinning nylon fiber into thread, located at Highway 33 in Watonga, Oklahoma, violations of the Occupational Safety and Health Act of 1970, 29 USC 651, had occurred in the following respects:

Item No. -- Standard or regulation alleged violated -- Description of alleged violation -- Date on which alleged violation must be corrected

1 -- 29 CFR 1910.95(a) -- Employees working at the following locations are exposed to noise levels for time periods in excess of the values in Table G-16. 1. Spinners No. 1-10 2. Twisters 3. Abbott winders 4. Carding machines Employer has failed to provide these employees with hearing protection which must be used until noise levels are reduced to or below 90 dBA. -- 5 days from receipt of citation.

2 -- 29 CFR 1910.95(b)(1) -- Employer failed to provide feasible administrative or engineering controls to reduce sound level exposures of employees [*14] below the levels in Table G-16 (same locations as Item 1.) -- Evaluation & Planning Aug., 1972 Abatement May, 1972

29 CFR 1910.95 has to do with occupational noise exposure and provides in pertinent part that:

(a) Protection against the effects of noise exposure should be provided when the sound levels exceed those shown in Table G-16 when measured on the A scale of a standard sound level meter at slow response. When noise levels are determined by octave band analysis, the equivalent A-weighted sound level may be determined as follows:

(b) (1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

(2) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous.

(3) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.

TABLE G-16 -- Permissible Noise
Exposures

Duration per day,	Sound level dBA
hours	slow response
8	90
6	92
4	95
3	97
2	100

[*15]

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated June 27, 1972, from Robert A. Griffin for Area Director of the Sixth Region, J. T. Knorpp, Occupational Safety and Health Administration, U.S. Department of Labor, that it was proposed to assess penalties for the violation alleged in the aggregate amount of $90.00, which is specifically set forth as follows:

Item No. and Description -- Proposed Penalty

1 -- Failure to provide hearing protection. -- $45.00

2 -- Lack of administrative or engineering controls to reduce sound level exposure. -- $45.00

The record further reflects that the Respondent gave notice of contest, certifying to service of same, and a complaint was duly filed by Complainant on July 2, 1972, which did not materially vary from the citation other than for amending an abatement date to reflect March 14, 1973, instead of March 14, 1972. Thereafter by document served on July 14, 1972, the Respondent duly answered the complaint. Such answer admitted most allegations contained in the complaint; however, the Respondent specifically denied the violations alleged and prayed that an order [*16] affirming ths citation and proposed penalties be denied.

The Complainant contends that there was established in the evidence excessive noise levels at the twisters and at the Abbot winders. The Complainant concedes that there were no violations at the spinners No. 1-10 and at the carding machines.

The Respondent contends that Respondent was aware of the excessive noise conditions, advised employees of the potential danger, provided ear protection and instituted a program of engineering and administration to find feasible ways to reduce the noise levels.

The uncontroverted evidence discloses that the noise levels measured by Henry R. James, a compliance officer and physical hygienist, on the dates in question exceeded those set forth in Table G-16 [supra].

Mr. James testified that the levels measured were as follows:

1. Spinners No. 1-10 -- 90.5 db.

2. Twisters -- 95 db. [when hose in use more than 100 db.]

3. Abbott winders -- 95 db.

4. Carding machines -- 94 db.

The credible evidence further discloses that all eight employees at the carding machines wore acceptable ear protection which would reduce the noise level approximately 20 decibels. Moreover, [*17] the credible evidence discloses that the employees worked eighthour shifts and were away from their stations for at least 40 minutes of each shift [i.e., 20 minutes for lunch and two 10-minute rest breaks]. In view of the foregoing it appears that the Complainant failed to show in the evidence violation of the standards at the spinners No. 1-10 and carding machines as alleged. The employees at the carding machines were not exposed to the noise level required by Table G-16 as they each wore ear protection and the employees at the spinners No. 1-10 were exposed to 90.5 db for less than 8 hours as is permitted by such standard.

As aforestated the noise level measured at the twisters and Abbott winders was 95 db. No employees wore the ear protection provided and it seems reasonable to conclude that each employee was at their station each shift for a period of time in excess of 6 hours. It seems apparent that the Respondent was in violation of the regulations and thus citations were, and are, proper and in accordance with law.

It is acknowledged that engineering and administrative action had been taken in an effort to reduce the noise levels; however, sufficient reduction [*18] had not been accomplished upon the occasion in question to reduce the noise to a level specified in the regulations. It is also acknowledged that ear protection devices had been provided but obviously many employees did not use such devices. Consequently, some employees were subjected to noise levels in excess of those permitted in the law.

The question remains as to the appropriateness of the proposed penalties. The Complainant contends that the proposed penalty of $45.00 for each of the two violations should be reduced by fifty (50) percent. The basis for such contention was by virtue of the numbers of employees directly affected by each violation. In substance, the total penalty of $90.00 was computed on a certain number, and since the violations affected approximately one-half of the number used, the penalty should be reduced as much.

The Respondent contends, as above set forth, that it should not be penalized, as proposed, because it had effected engineering and administrative actions, advised the employees of potential danger, and had provided ear devices.

The evidence seems clear that a violation of the pertinent standard did occur. It seems equally clear that the [*19] gravity of such violations was of low level and, in view of all the evidence of record, should be vacated.

There is no question in this cause concerning the good faith of Respondent. The evidence is clear that the Respondent recognized the problem, took engineering and administrative action to solve it, and advised employees of the potential danger. Moreover, hearing devices were provided and a continuing program has been in effect to alleviate excessive noise to the end that certain machinery has been replaced. Furthermore, there is no showing that Respondent's history of previous violations is other than good. It is acknowledged that the Respondent is a rather large employer, but when this is considered with the gravity of the violations shown, it is deemed appropriate to conclude that a greater weight be given to the likelihood of injury and disease by virtue of the existence of the situations causing the violations. The evidence dictates the conclusion that a nonassessment of penalty for the violations shown in this cause is proper and will not fail to enforce the Act in its purpose of securing a safe and healthful workplace for employees.

To the extent that it [*20] may be contended that the conclusion reached in this cause is inconsistent with that reached in cause No. 1012, it is to be noted that these violations are basically caused by the machinery utilized in Respondent's business. Solution of such problems are primarily engineering in nature which has been recognized by setting an abatement date which is still in the future. Moreover, the harm to employees requires long exposure to such noise levels. As to the situations found in cause No. 1012, each of them posed a possible immediate danger to employees exposed thereto.

FINDINGS OF FACTS

The entire record in this cause has been considered, and based thereupon, the following findings fo specific facts are hereby made:

1. On March 22, 1972, and at all pertinent times thereafter, Sequoyah Spinning Mills, Inc., hereinafter referred to as Respondent, was a corporation engaged in a business affecting commerce.

2. On March 22, 1972, and at all pertinent times thereafter, Respondent employed persons in a workplace, hereinafter referred to as Respondent's workplace, at Highway 33, Watonga, Oklahoma.

3. On March 22, 1972, and at all pertinent times thereafter, Respondent had [*21] approximately 246 employees working in and about its workplace, which employees were engaged in production line work in the manufacturing of carpet yarn.

4. Respondent, at its workplace on March 22, 1972:

a. Failed to keep the floor of its tint room in a clean and dry condition.

b. Failed to designate permanent aisles and passageways in the work and storage areas by appropriate markings.

c. Stored combustible liquids, the use and handling of which was incidental to the principal business, and located outside of an inside storage room, in excess of 120 gallons of Class III liquids.

d. Stored oil- and solvent soaked rags on barrels of oil and not in containers and stored trash, papers and other combustible materials in cardboard fiber containers.

e. Failed to provide at least one approved portable fire extinguisher having at least an 8-B, C rating in the propane storage and dispensing area that was located approximately 100 feet from the southwest corner of the loading dock.

f. Failed to provide eye and face equipment in the boiler room for use by employees when dispensing sulphuric acid and caustics.

g. Failed to provide suitable facilities for quick drenching or flushing [*22] of the eyes and body in the boiler room where sulphuric acid and caustics were stored and dispensed.

h. Failed to provide an unobstructed hose outlet for the 1-1/2 inch firehose located on the column between loading doors 4 and 5 in that such standpipe hose outlet was partially obstructed from view by a coat that was hung on the hose rack and outlet valve.

i. Failed to provide an approved hose valve to the standpipe hose outlet for the 1-1/2 inch firehose provided for occupant use and located on column between loading doors 4 and 5 in that the hand valve thereof was broken.

j. Failed to provide guards for the pulleys that were less than 7 feet above the floor and located on each of the four carding machines and the two Wcrthington air compressors, Serial Nos. BN2763A and BN2783A, and failed to provide guards in the three Belmont friction winders.

k. Failed to provide guards for the inclined flat belts that were approximately 2-1/2 inches in width and located on the three Belmont friction winders, and the inclined V-belts that were approximately 1/2 inch in width and located on the four carding machines and on the inclined 1/2 inch V-type gang belts on the two Worthington [*23] air compressors, Serial Nos. BN2763A and BN 2783A.

l. Failed to provide guards for the sprocket and chain and delivery end of Davis and Fruber carding machine and for the chain and sprocket of the No. 3 Harwood-Braumwell feeder machine.

m. Failed to reduce compressed air used for cleaning purposes and located at spun yarn twisting area near Warner and Swassey pin drifter machines, Models M-4700, and between blend machines 3 and 4 on blend line to less than 30 psi.

n. Failed to close the cylinder valves of oxygen and acetylene cylinders that were used for cutting and welding operations which cylinders were located near the air conditioning area and unattended.

o. Failed to mark the control and breaker box panel for the press and blend lines to indicate its purpose.

p. Failed to provide ground for the exposed noncurrent-carrying metal parts of cord- and plug-connected equipment which was liable to become energized, to wit: water-type window fan located on the floor near aisleway leading to air conditioning area was equipped with a damaged attachment plug and a flexible cord that was taped and was hot to touch and on the floor across passageway.

5. On April 12, [*24] 1972, at Respondent's workplace,

a. There was a noise level of 90.5 decibels at Spinners No. 1-10. Employees working at these locations were exposed to such noise level less than 8 hours.

b. There was a noise level of 95 decibels at the twisters. At one of the twisters one of the employees was operating an air hose to blow off lint and at that point the noise level during intermittent periods totalling approximately 30 minutes per 8-hour shift was in excess of 100 decibels. At least one employee in each of the other two shifts was similarly exposed. None of the employees working at the twisters were wearing ear protection.

c. There was a noise level of 95 decibels at the Abbot winders. Four employees per shift, totalling 12 per 24-hour workday were exposed to such noise level for approximately 7 hours and 20 minutes per day and none were wearing ear protection.

d. There was a noise level of 94 decibels at the carding machines. All employees working at such locations were wearing ear plugs which had the effect of lowering the noise exposure by at least 20 decibels.

6. The employees who were exposed to the noise levels referred to above, worked in 8-hour shifts, [*25] and the plant operated 24 hours a day. The shifts were from 8 a.m. In each shift, employees were allowed one 20 minute lunch break and two 10-minute rest breaks.

7. Respondent's management first became aware of a noise level condition that it felt required some action on Respondent's part in July of 1971.

8. In the fall of 1971 ear protection devices were provided to the employees on a voluntary basis. Respondent purported to make the wearing of such ear protection by its employees mandatory in January of 1972, but failed to effectively enforce such requirement.

9. Sinclair Oil Company conducted a noise-level survey for Respondent in the fall of 1971 and Texaco Oil Company conducted a similar survey in the spring of 1972.

10. Some of the machinery was undercoated with a hard-type undercoating and some carpeting was installed under some of the machinery, all since July of 1971. Respondent's insurance carrier, Liberty Mutual, conducted noise surveys in July 1971 and May 1972.

11. A noise survey was conducted in the latter part of October 1972, approximately one week prior to the date of hearing in this proceeding, by an acoustical engineering firm.

CONCLUSIONS OF LAW [*26]

It is therefore concluded as a matter of law that:

1. Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.

2. On March 22, 1972, and at all times thereafter, Respondent was an employer within the meaning of Section 3(5) of the Act.

3. On March 22, 1972, and at all times thereafter, Respondent's workplace was a workplace within the meaning of Section 4(a) of the Act.

4. (a) On March 22, 1972, Respondent at its workplace, failed to keep the floor of its tint room in a clean and dry condition in violation of Section 5(a)(2) of the Act and 29 CFR 1920.22(a)(2) promulgated pursuant to Section 6 of the Act.