OSHRC Docket No. 1285

Occupational Safety and Health Review Commission

May 1, 1975


Before VAN NAMEE and CLEARY, Commissioners



  VAN NAMEE, COMMISSIONER: This contested matter involved five items of a citation for non-serious violations.   The matter was decided after a hearing by Judge Robert P. Well.   Chairman Moran directed review of that decision to the extent Judge Weil determined that Respondent violated 29 C.F.R. 1910.107(d)(2) because it did not adequately vent a spray paint booth and to the extent that Judge Weil assessed an $80 penalty instead of the $40 proposed for another alleged violation also involving the booth. n1

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n1 Error has not been assigned by the parties to any other aspect of the judge's decision.   Our review of the record indicates that he correctly disposed of all other issues.

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As to the 1910.107(d)(2) matter the Chairman asked five specific questions which may be fairly summarized as being directed to the question of whether the cited standard is impermissibly vague.   The question was first introduced into the case by the direction for review.   Consequently,   [*2]   we are without the benefit of a judge's decision since it was not raised before him.   Moreover, Respondent has not filed a brief on review so we do not have its views on the question.   In the circumstances we think it inappropriate to decide the issue raised by the direction for review.

Judge Weil rendered his decision on the evidence of record and on review we find that he correctly evaluated the evidence.

Turning now to the matter of the increased penalty we note that the judge assessed a higher figure than had been proposed by disallowing an abatement credit.   Specifically, Respondent had been cited n2 because excessive accumulation of paint was observed on the walls and floor of the spray booth and the floor was covered with debris.   The judge found the violation principally because he did not believe Respondent's testimonial evidence in   rebuttal.   He noted that Complainant would have proposed a penalty of $80 had he not allowed Respondent a credit of 50 per cent on the presumption that Respondent would abate the violation.   He noted further that Respondent had not abated as of the hearing date.   Accordingly, he disallowed the credit and assessed $80.   In addition,   [*3]   the record shows that Complainant refused to credit Respondent with good faith when he calculated his proposed penalty.

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n2 Item 5 of the citation.

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In a recent decision we indicated that a credit for prompt abatement may be appropriate depending on the facts of each case.   We also rejected Complainant's rigid approach of allowing such credit for all non-serious violations.   J.M. Roofing Co., Dkt. No. 1759 (December 24, 1974).   The judge's approach herein, if used in all cases, is equally rigid and must therefore be rejected.   Accordingly, we will make our own assessment.

We note that Respondent is a very small employer (15 employees), and that it has no history of prior violations.   The only evidence of record concerning the gravity is the compliance officer's conclusion that a fire hazard existed.   He considered the hazard to be of low gravity and that appears to be the case.   Finally, we cannot say that Respondent acted in bad fatih.   With respect to other alleged violations he took corrective action as Judge [*4]   Weil indicated.   Moreover, we note that standard cited for item 5 leaves room for doubt as to what may be considered violative conditions.   Respondent did contest; the Act tolls abatement when a contest is filed in good faith; and on the facts Respondent was entitled to think he had not violated the standard.   In the circumstances, we think the $40 proposed penalty is appropriate.

Accordingly, the judge's decision is modified to assess a penalty of $40 for item 5 of the citation and is affirmed as modified.   It is so ORDERED.  



  CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case with the following comments:

(1) The Commission lacks the authority to refuse to apply a standard because of a challenge to its validity.   U.S. Steel Corp., Nos. 2975 & 4349 (Cleary, Commissioner, concurring).

  (2) Assuming, arguendo, that the Commission has the authority to invalidate a standard, the cited standard is not unenforceably vague.   It provides a resonable notice of the proscribed conduct in light of common understanding and practices.   Cf.   Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974).

(3) The issue of the   [*5]   standard's asserted vagueness is not properly raised for the first time in the direction for review.   See Puterbaugh Enterprises, Inc., No. 1097 (July 1, 1974).

[The Judge's decision referred to herein follows]

WELL, JUDGE: This is a proceeding by the Secretary of Labor under the Occupational Safety and Health Act of 1970, 29 USC Section 651 et seq., for an order affirming a citation and penalties.   The case presents an important question of jurisdiction, namely whether the sweep of the Act includes a small corporation which manufactures and sells, intrastate, parts made to order for the Nation's largest communications system.


Respondent operates a plant in Canfield, Ohio, where, with about fifteen employees, it carries on metal fabricating, welding and painting. In the two and a half year period preceding an OSHA inspection in July, 1972, Western Electric Company, the manufacturing arm of American Telephone and Telegraph Company, purchased from respondent through Western Electric's plant in Columbus, Ohio, parts for switching equipment, which parts respondent manufactured to the drawings and specifications of Western Electric; and this switching equipment Western Electric [*6]   then sold and shipped to constituent companies for use in conducting the Bell System, which I judicially notice to be a nationwide network for interstate and foreign communication.

Interstate communication is interstate commerce.   Associated Press v. NLRB, 301 U.S. 103, 128 (1937). And respondent, in manufacturing, selling and delivering in Ohio materials which   were to become components in the system, came within the reach of the plenary power of Congress over commerce, including the power to regulate intrastate activities which, like respondent's operation described above, affect commerce.   Consolidated Edison Co. v. NLRB, 305 U.S. 197, 219-221 (1938): Amalgamated Association v. Wisconsin Employment Relations Board, 340 U.S. 359, 391 (1951); Newport News Shipbuilding & Dry Dock Co. v. NLRB, 101 F 2d 841, 843 (CCA 4, 1939).   Where, as here, the furnishing of a kind of goods or services has in the aggregate a substantial impact on commerce, the power to regulate necessarily extends to a corporation or an individual even though the transactions of such corporation or individual, if considered as if they existed in an economic vacuum, might [*7]   be of relatively small concern.   NLRB v. Fainblatt, 306 U.S. 111, 118 (1942); Wickard v. Filburn, 317 U.S. 111, 118 (1942); NLRB v. Gulf Public Service Co., 116 F 2d 852, 854-5 (CCA 5, 1941).   The power of Congress in the premises "is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." U.S. v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942).

In the Occupational Safety and Health Act, Congress made it clear that it intended to exercise its commerce power to the maximum extent.   As stated by Mr. Steiger to the House of Representatives in setting forth the intended scope of the bill which became the Act,

The coverage of this bill is as broad, generally speaking as the authority vested in the Federal Government by the commerce clause of the Constitution.   The terms of this bill will apply to all businesses having an effect on commerce except where another federal agency other than the Department of Labor is exercising statutory authority to prescribe or enforce occupational safety and health standards or regulations (116 Cong. Record p. 42206, Dec. 17,   [*8]   1970; emphasis added).

And so in Section 2(b) of the Act,

The Congress declares it to be its purpose and policy through the exercise of its powers to regulate commerce among the several states and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . (emphasis added).

  It its letter form of notice of contest, respondent, not represented by counsel, in layman's language effectively raised the jurisdictional objection.   It said:

There is further doubt that in the right of Congress to control interstate commerce that we come under that jurisdiction of engaging in that interstate commerce.

For the reasons indicated above, respondent's objection fails.


Respondent had a second preliminary objection to the proceeding, this one interposed at a pretrial conference held just before the trial.   The inspection of respondent's plant, made July 14, 1972 by OSHA Compliance Officer Ruble, was instigated by an anonymous "employee" complaint; and respondent challenged the Secretary to show, without disclosing the identity of the complainant, that the complainant [*9]   was in fact an employee or employee representative, and so authorized by Section 8(f) of the Act to file with the Secretary such a complaint.   Respondent argued that an "employee" complaint by one not in fact authorized by the statute to make such a complaint is invalid and renders the ensuing inspection and citation invalid.   See OSHA Compliance Operations Manual, Chapter VI, Section A, Paragraph 3(c).   What little evidence there was came from Mr. Bowman, the OSHA Area Director.   He said that he believed the complainant to be a former employee of respondent, and so by construction within the statutory description of persons authorized to make such complaints.   He stated that he based this solely on the statement to that effect in the document itself; that he had caused no investigation to be made to verify the complainant's status; that no fact had come to his attention or to the attention of his staff which would tend to negate such status; and that on the inspection a management representative told Mr. Ruble that management knew who had made the complaint.   Since there was no objection to the inspection at that time, this was inconsistent with the claim now made, or it may have [*10]   constituted   a waiver of the objection.   At any rate, the objection was in the nature of an affirmative defense, as to which the burden of proof was on respondent.   Since respondent did not meet that burden, the defense was dismissed.


The inspection of respondent's plant resulted in a citation for non-serious violation in five items, in respect of which the Secretary proposed four penalties aggregating $145.   The items will be considered seriatim.

Item 1 alleges that respondent failed to supply to its two spray painters, and failed to require them to use, Bureau of Mines approved respirators, in violation of 29 CFR Section 1910.134(b)(11).   It required abatement by August 18, 1972, and carried a suggested penalty of $35.00.

When he made his inspection, Mr. Ruble found that respondent's West Spray Booth was being used by two painters. They were wearing hoods and gauze masks.   These were ineffective to protect the painters from inhaling paint "particulates" and fumes which are dangerous to health.   The standard may be complied with by the use of respirators of two types: the airline respirator and the canister-type if approved by the Bureau of Mines.   The airline [*11]   respirator consists of an airtight mask, to which fresh air is fed under pressure through a pipe.   The canister-type also has an airtight mask, to which is attached a canister containing a chemical filter which enables the wearer to breathe the ambient air with safety.   The airline type is more effective while the canister-type is much less expensive; and either is available from suppliers of safety equipment in about three weeks.

Mr. Cooper testified that he had acted in good faith throughout.   He had never heard of Bureau of Mines approved respirators for spray painters. Through a dealer in safety supplies he bought masks marked by 3M for spray painting. But as soon as he was apprised of the danger by Mr. Ruble at the conference after the inspection, he ordered airline and canister-type respirators. The canister-type took three to four weeks to arrive,   while the airline-type could not be made operative for an even longer period, since they required, for clean, cool air, a special type of compressor.   Since they have been received, the men use the respirators at all times while spray painting, under company work rule.

I find the facts as above set forth and I affirm [*12]   Item 1 of the citation.


Item 2 alleged that respondent failed to provide a stable railing of the required height around its dip tank, in violation of 29 CFR 1910.23(c)(1).

To facilitate its painting operations respondent has a pit ten feet wide, twenty feet long and twelve feet deep.   The length of the pit extends north and south.   Over the center of the pit there is a conveyor by which parts to be painted are carried along horizontally, above floor level, then down into the pit, then along the length of the pit, and then raised and carried away.   The pit has tracks along its upper edges.   On these tracks a tank containing paint of the desired color can be rolled into position in the pit and later rolled away when its function has been performed.   The actual painting is performed when the conveyor dips the part into the tank.   Along the sides of the pit there are railings supported by metal stanchions; and at the ends the railing bends around the northerly and southerly ends of the pit to points in the center where there is a three-foot gap through which the material passes on its way in and out of the tank.   Mr. Ruble found the railing along the westerly side and its extensions [*13]   at the north and south ends of the pit non-conforming in two respects: the top rail was 42 inches high instead of 30; and the railing at the ends felt insecure.   As evidence that this condition affected respondent's workforce, Mr. Ruble found two or three men working directly to the west of the westerly railing.

According to Mr. Cooper, respondent did not know of the requirement that the top rail be 42 inches high.   Within two weeks after learning of the requirement, respondent fabricated a new railing of the proper height.   Mr. Cooper ascribed the movement in the railing at the ends to the fact that the stanchions which supported the railing were removable.   As an engineer he   believed that the railing would resist a force equivalent to a weight of 200 pounds; and he stated that the railing had been in place for six years without an accident.

Again, I find the facts in accordance with the evidence summarized above; and based thereon I affirm Item 2 of the citation.


Item 3 alleged that respondent failed to equip its forklift truck with a horn, in violation of 29 CFR Section 1910.178(n)(4).   This standard does not require every forklift truck to have a horn.   It requires [*14]   only that

The driver shall be required to slow down and sound the horn at cross aisles and other locations where vision is obstructed (emphasis added).

Mr. Ruble was eminently fair in his testimony.   He stated that the driver was not driving recklessly; that the truck traversed no cross aisle in respondent's small plant; and that along its route there was no point at which the driver's view was obscured or where workmen in the area could not see the truck as it approached.   This was a "stand-up" truck, which would move more slowly than one in which the driver sits.   Prior to the trial respondent had purchased a new horn for the truck.

On complainant's evidence, I dismiss Item 3.


Items 4 and 5 are related.   On his inspection Mr. Ruble found the two men working in respondent's West Spray Booth with their faces, hoods and clothing soaked with paint; he found the booths heavy with spray and encrusted with residue; and he found the floor littered with paint soaked rags, waste, ald gloves and paper, far in excess of the expected accumulation of a shift or a day; and that Mr. Davis, respondent's painting superintendent, had told him the West Booth was cleaned every four to six [*15]   weeks.   Accordingly respondent was cited for noncompliance with two standards: in Item 4, for failure to provide

mechanical vents adequate to remove flammable vapors, mists, or powders to a safe location and to confine and control combustible residues so that life or property is not endangered,

  as required by 29 CFR Section 1910.107(d)(2), and in Item 5, for failure to conform to Subparagraphs (2) and (3) of Paragraph (g) of Section 1910.107, which provide that:

(2) All spraying areas shall be kept as free from the accumulation of deposits of combustible residues as practical, with cleaning conducted daily if necessary . . . .

(3) Residue scrapings and debris contaminated with residue shall be immediately removed from the premises and properly disposed of.   Approved metal waste cans shall be provided wherever rags or waste are impregnated with finishing material and all such rags or waste deposited therein immediately after use.   The contents of waste cans shall be properly disposed of at least once daily or at the end of each shift.

Referring first to Item 4, Mr. Cooper stated that there are two types of spray booth: dry and wet.   Influenced by the example of the [*16]   automobile manufacturers, who carry on extensive painting operations, respondent chose the wet type, purchasing two booths from Gyroclean Gallagher Co.   Thus in each of respondent's booths there is a waterfall against which the spray painting is performed.   Part of the paint and fumes are trapped and disposed of by the waterfall. Those which penetrate the waterfall are drawn by suction into three vertical cylinders inside which the air which carries them is "scrubbed" by jets of chemically treated water, and then exhausted to the atmosphere.

After the inspection Mr. Cooper sought the aid of the manufacturers of the booths, but they never came to view the installation.   Then he talked to the suppliers who sold him paint, painting equipment and ventilation equipment.   But he got no help: ". . . frankly, there is no one who knows the solution . . . . frankly, there's no place to go for the information." Meanwhile Mr. Cooper took three measures to increase the efficiency of the ventilating and scavaging in the spray booth. He increased the speed of the fans which drew the overspray-laden air through the waterfall and through the scrubbing cylinders.   He built ducting around the plant's [*17]   main ventilating fan in order to create positive pressure at the spray booths and so indirectly increase the effectiveness of the suction in the booths; and he added an additional intake fan in the roof to further increase the positive pressure in the factory building generally.   The first two steps did   not have much effect; and the last could not be judged because at the time of trial the additional fan was not yet operative.

Mr. Ruble considered respondent's booths to be of an up-to-date type.   He felt that what respondent had to do was to give the equipment a thorough cleaning and if necessary to modify it further.   Mr. Cooper had asked for an extension of time to effect abatement regarding Item 4 and it had been granted by the issuance of an amended citation postponing the abatement date from August 25, 1972 to September 29, 1972, about two and one-half months from the date of the inspection. According to Mr. Ruble, this was an adequate period for the purpose intended.

As to Item 4, I find the facts as stated above and affirm that item of the citation.

As to Item 5, the evidence for respondent was far from clear.   Mr. Cooper admitted that he had heard Mr. Ruble's [*18]   testimony that he, Mr. Ruble, had found the floor of the West Spray Booth littered with rags and gloves and that Mr. Davis had said that the booth was cleaned only once a month.   Asked to comment on this testimony, Mr. Cooper said that respondent's management exerted on the foremen as much pressure as it could get the job done, and they, the foremen, in turn do the best they can with the workmen; that Mr. Cooper would like the painting area to look like a laboratory, since respondent holds itself out as a painting specialist and would like this as a demonstration to customers of its superior equipment and expertise.

But the difference between what I want and what we're able to accomplish through people today, is, you know -- there's a big difference.

He continued:

. . . we have an opportunity to provide employment for unskilled workers and to try to train them, but trying to train young workers today is a real problem and we keep after it as best we can, but it is very, very difficult to apply the policies of management to get them to do it because it means staying afterwards, overtime at night.

Now, you'd think they would want overtime to boost their earnings.   No way.   They [*19]   want to get out of there.

Mr. Cooper agreed with me as to the significance of his evidence on this point.

  The Judge:

The importance of this testimony is, and I want you to correct me if I misinterpreted your testimony, you appreciate the importance of keeping these areas clean. You would like to have them spotlessly clean. You've given directions from your own level of management and, due to the organization which you have, these instructions simply have not produced clean point booths.

Now, what you're telling me, as I understand it, is that this is not because you don't want clean point booths and that you don't agree with the importance of having clean paint booths, but that under the circumstances with which you are faced, you haven't been able to find a way to get them clean.

Now, is that the sum and substance of your testimony?

The Witness: Yes, that's correct.

This was reiterated in a further exchange between Mr. Cooper and me as follows:

The Witness:

. . . I relied on our supplier to set up standards of cleaning the booths and I buy from him because he helps me supervise my supervisors. He made out a check list of when this cleaning is done so I have [*20]   a check on my supervisors through him and they can come to me and say, 'It's just not getting done,' and I can in turn, apply pressure back, and its very hard to have time to do everything that is necessary in a small company, but we try our best.

I rely on as much help as I can get from supervisors and from suppliers to check on my supervisors, and I think that a spray booth can only be so clean, and that we are at least as clean as most plants, which maybe doesn't mean anything under the law, but what we do for our size is probably more effort than plants bigger than us.

The Judge: Do you agree, in substance, with the way I summarized your testimony?

The Witness: Yes.

The Judge: Now I don't want you to be misled.

You understand that when the standard says that this is the way you have to do it, if you don't do it in spite of all the difficulties, you are in violation?

The Witness: Yes, I agree.

Referring to the provision of Section 1910.107(g)(2), that the spray areas be kept as free from deposits of combustible residues "as practical," Mr. Cooper next complained that he impermissible residue should be stated in terms of a measurement -- a thirty-second, a sixteenth, or [*21]   a quarter of an inch -- and that the present   wording leaves the amount which is forbidden in effect to the subjective judgment of the individual compliance officer.   I do not agree that the standard is so vague as to be invalid; but at least the contention was consistent with Mr. Cooper's plea that while respondent was in violation with respect to keeping the booths free of residues, it was doing the best it could with its labor force.   But on cross examination, Mr. Cooper went further and gave evidence completely inconsistent with the line of testimony above set forth and completely inconsistent with Mr. Ruble's evidence that the accumualtion which he saw on the floor of the West Booth were much more than those of a shift or a day.   Mr. Cooper testified that the booths were cleaned daily, weekly and monthly. Mr. Cooper was directly offered an opportunity to clear up this inconsistency:

The Judge:

Mr. Ruble testified that when he looked at the West Booth there was an accumulation of paint there on the men who were working in it, and that there were old gloves there and the floor of the booths, he said, had a lot of old gloves and dirty papers and dirty rags, paint impregnated.   [*22]  

Now, as I understand it, your testimony was that you wanted these booths to look like a laboratory and you tried to bring that about, but due to the various conditions which you cited, the effort just didn't succeed.

Then, afterwards, you testified that you had procedures for cleaning the booths daily, weekly and monthly, and what Mr. Davis had been referring to when he talked to Mr. Ruble was stripping the walls of the booths, which was done monthly.

Now, an accumulation of dirty, paint-impregnated gloves and rags and paper on the floor of the booth is absolutely inconsistent with an effective daily procedure for cleaning these booths, and you've got me to the point where I simply don't know what part of your testimony to believe.

Now, this is very important to this case, believe me, and if you think you can clarify the thing in any way, for me, in a few words, I'd be very happy to hear what you have to say.   Otherwise I'll just deal with it as best I can.

Disappointingly, there was no effort to reconcile the two inconsistent lines of testimony.   Instead, there was evidence inconsistent with the idea that respondent's cleaning procedure was admittedly insufficient but all   [*23]   that could be mustered from the work force, and inconsistent with the idea that respondent had an effective program of daily cleaning. Mr. Cooper's comment was as follows:

  I would like to say that no matter even with daily cleaning that you have some continual accumulation on the floors and on the walls.   This is over a period of time.   It builds up on the floor and on the walls and you can take a little bit off and a little bit off, but you still get a continual accumulation which, over a longer period of time, then is removed by stripping all the coating and everything, and this is true of the wall under the floor.

The Judge: Are you telling me that the spray booths are cleaned daily and weekly?

The Witness: Yes, but even with that you get some accumulation that's not scrubbed down.   The strip coating is not stripped off every day because that's a four to six-week maintenance job.

When asked why, then, Mr. Ruble had been told then that the booths were cleaned only once a month, Mr. Cooper said that the booths were cleaned daily and weekly but that the water in the washtank was changed once a month or six weeks.   This seems like an odd mistake for the painting foreman [*24]   to have made in his statement to Mr. Ruble, the OSHA compliance officer inspecting respondent's painting operation; and that it was only a guess on Mr. Cooper's part that Mr. Davis made it.   A little later Mr. Cooper changed his mind and guessed that what "they" -- apparently Mr. Ruble and Mr. Davis -- were referring to as occurring every four to six weeks was stripping the accumulated residue off the spray booths. These guesses do not effectively contradict Mr. Ruble's direct testimony that Mr. Davis, the painting foreman, told him the booths were cleaned every four to six weeks when he, Mr. Ruble, challenged Mr. Davis about the condition of the booths.

Mr. Davis, who would have been able to testify as to what he told Mr. Ruble is no longer with respondent; and Mr. Cooper's attempted explanation of the absence of Mr. Davis was likewise difficult to follow.   At first, Mr. Cooper said that Mr. Davis left because he was frightened by the circumstance that his name was set forth in the citation as one of the parties liable for the penalties.   When Mr. Cooper was forced to admit that Mr. Davis was not mentioned in the citation or notice of proposed penalties, he then guessed that Mr.   [*25]   Davis was mentioned in the employee complaint.   Then it was pointed out to Mr. Cooper that no representative of respondent was ever shown the employee complaint, and he admitted that Mr. Davis never told him that he, Mr. Davis, had seen the employee complaint.   At   that point I looked at the employee complaint and noted that it contained no reference to Mr. Davis.

I do not find worthy of belief the testimony of Mr. Cooper, an interested witness, as to daily and weekly cleaning of the West Spray Booth and as to the circumstances under which Mr. Davis left respondent's employ.

As to Item 5, I find the facts in accordance with the evidence set forth above, except that portion of Mr. Cooper's testimony rejected as unworthy of belief, and I affirm Item 5 of the citation.


I have considered the evidence hearing on the appropriate amount of the penalties herein, that is to say, especially Mr. Ruble's testimony at pps. 142-161 and all of Mr. Cooper's testimony.   Based thereon, I assess the penalties in the amounts proposed by the Secretary in respect of Items 1, 2 and 4.   As to Item 5, prior to the trial Mr. Ruble computed a proposed penalty at $80.00 and then allowed respondent [*26]   a 50% penalty based on assumed compliance.   The evidence supports the $80.00 amount but not the assumption of compliance.   On the contrary, respondent's final position was that at the time of the inspection, it had in force a daily, weekly, and monthly schedule of cleaning; and there was no evidence that the schedule had been changed, either as to frequency or effectiveness.   Hence as to Item 5, the penalty is assessed in the amount of $80.00.