Docket Nos. 199; 215 (consolidated)

THE BUDD COMPANY

OSHRC Docket Nos. 199; 215 (consolidated)

Occupational Safety and Health Review Commission

March 8, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision of Judge David H. Harris. Judge Harris, inter alia, refused to allow Respondent to withdraw its notice of contest with respect to alleged violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act") and 29 C.F.R. 1910.132(a), and also vacated Complainant's citation charging that Respondent violated 29 C.F.R. 1910.252(a)(2)(v)(c)(1). n1

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n1 The cited standards provide:

1910.132(a): Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards or processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

1910.252(a)(2)(v)(c)(1): Fuel-gas cylinders shall be placed with valve end up whenever they are in use. Liquified gases shall be stored and shipped with the valve end up.

[*2]

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Having considered the entire record, we conclude that the Judge erred in the above-mentioned dispositions. Accordingly, we adopt the decision of the Judge only to the extent it is consistent with the following decision.

VIOLATION OF 29 C.F.R. 1910.132(a) (NON-SERIOUS)

It is undisputed that some of Respondent's employees who were engaged in work requiring foot, i.e. toe, protection at its Huntington Park plant were not wearing such protective equipment at the time of Complainant's inspection. Likewise, it is undisputed that none of Respondent's employees at its Red Lion plant engaged in such work were wearing the required toe protection.

Respondent does not deny it violated the cited standards at both plants as alleged by Complainant. Indeed, it moved to withdraw its notice of contest with respect to these items and assured that the small penalties proposed by Complainant would be paid. Respondent's motion was conditioned upon a requested finding that it is not obliged to pay for the required equipment.

Complainant did not and does not object to the withdrawal. Objection to the withdrawal [*3] is made by the authorized representatives of Respondent's affected employees. n2 They insist that Respondent is obliged to provide and pay for the required personal protective equipment. We cannot agree.

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n2 Locals 813 and 92, United Auto Workers

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The standard in question consists of three subparts. It must be construed as a whole.

Reasonably interpreted, we think subpart (a) imposes no duty on the employer to provide or pay for the equipment. We reach this conclusion because of the provisions of subparts (b) and (c). n3 Subpart (b) imposes a duty on an employer to insure that employee provided equipment is adequate, is maintained properly, and is sanitary. Subpart (c) requires that all personal protective equipment be of safe design and construction. Since subpart (b) contemplates the use of employee provided equipment, it would be anomalous to read subpart (a) as requiring that the employer provide the equipment. Were we to so construe subpart (a), we would render subpart (b) meaningless or superfluous. [*4] By so doing we would act in contravention of wellsettled principles of statutory construction. Cf. FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 514 (1949); Great Northern Ry. Co. v. United States, 315 U.S. 262, 272 (1942); Montgomery Charter Serv., Inc. v. Met. A.T. Com'n, 325 F. 2d 230, 234 (C.A.D.C. 1963); Korte v. United States, 260 F. 2d 633, 636 (9th Cir. 1959), cert. denied, 358 U.S. 925.

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n3 Subparts (b) and (c) provide:

(b) Employee owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.

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Construing the standard as a whole, we think subpart (a) means that where personal equipment is necessary, the employer shall insure that it is used. If he provides such equipment, he is responsible for insuring that it is "provided, [*5] used, and maintained in a sanitary and reliable condition."

Because subpart (a) does not demand that the employer provide the equipment, subpart (b) makes the employer responsible for insuring the adequacy, proper maintenance, and sanitation of employee provided equipment. Subpart (c) requires the employer to insure that all personal protective equipment, whether employer or employee provided, is of safe design and construction.

Our interpretation comports, not only with settled rules of statutory construction, but, also, with the basic objective of the Act. The purpose of the Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions" (Act, sec. 2(b)). Unlike other labor statutes with essentially economic purposes (e.g. Fair Labor Standards Act), the Act is concerned solely with safety and health in the work situation. n4 Prescription of cost allocations is not essential to the effectuation of the Act's objectives. n5 It is irrelevant for purposes of the Act who provides and pays for the equipment. Either employer or employee provision is consistent with the purpose of the Act.

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n4 We are not unaware of the economic impact of job related injuries and illnesses. Our point is that the Act does not impose any obligations on the employer which directly affect employees' economic status.

n5 We do not imply that an employer is not obliged to bear the cost of things such as capital equipment which it is ordinarily his responsibility to assume. We are here considering the cost allocation of personal equipment. While there are other types of protective equipment used for foot (toe) protection which are fully permissible and which fully satisfy the standard, we note that the most universally used foot protective equipment is the steel-toed shoe. Thus, the most universally used type of protection is uniquely personal and may be used by the employee when he is away from the job.

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The question of cost allocation, on the other hand, is a question to be resolved between employer and employee. In our judgment, it is an appropriate subject for collective bargaining. Cf. Fiberboard Paper Products Corp. v. NLRB (concurring [*7] opinion), 379 U.S. 212, 222 (1964); NLRB v. Miller Brewing Co., 408 F 2d 12, 14 (9th Cir. 1969); NLRB v. Gulf Power Co., 384 F. 2d 822, 824-825 (5th Cir. 1967).

Based on the foregoing, we conclude that the Judge erred in refusing to permit Respondent to withdraw its notice of contest with respect to these items and finding, by implication, it must pay for the equipment. We also conclude that the difference in the civil penalties assessed for violations at the two plants comports with the mandate of section 17(j) of the Act.

At Huntington Park there was a failure to use required foot protection in some instances. At Red Lion the failure was general and pervasive. Considering the size of Respondent's business, the gravity of the violations, Respondent's good faith, and its history of previous compliance, we conclude that a $15 penalty for the violation at Huntington Park is appropriate and that a $30 penalty at Red Lion is appropriate.

VIOLATION of 29 C.F.R. 1910.252(a)(v)(c)(1) (NON-SERIOUS)

It is undisputed that Respondent was using acetylene cylinders in an inclined position -- the valves of the cylinders were raised above horizontal 30 to 45 degrees. [*8] The cited standard provides, in relevant part, that "[f]uel gas cylinders shall be placed with valve end up whenever they are in use." The standard does not distinguish between various types of fuel gas. n6 It applies, broadly, to all fuel gas cylinders.

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n6 Acetylene is a fuel gas. N.F.P.A., Welding and Cutting Oxygen Fuel Gas Systems, 51.11 (1969).

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Respondent contends that there is no hazard created by using acetylene cylinders in an inclined position such as exists with liquid petroleum gas (LPG). n7 It contends that "valve end up" means whatever position above horizontal which is safe for the particular fuel being used.

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n7 Use of an LPG cylinder in an inclined position creates hazards of fire or explosion. Thus, when the cylinder is in an inclined position the valve stem is exposed to damage from solid objects, industrial trucks, and the like. Additionally, such position may cause the safety valve, the regulator, or both, to malfunction. Occurrence of any of the foregoing may result in the uncontrolled release of highly flammable fuel.

[*9]

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Complainant contends that "valve end up" means straight up or vertical. His contention is that some fuel gases must be used with the cylinder in a vertical position, that the standard does not distinguish between types of fuel gases, and that the standard thus applies to all fuel gases. We agree.

"The meaning of a term used in a statute [or in legislative regulations] cannot mean one thing for one situation and something else for a different situation else the law would not have that reasonable certainty which the people have a right to expect." Gonzalez v. Barber, 207 F. 2d 398, 402 (9th Cir. 1953), aff'd 347 U.S. 637. Here, the regulation applies to all fuel gases. If some gases are not used with the valve end perpendicular to the horizontal plane, a hazard is created. While a hazard may not be created by the use of acetylene cylinders in an inclined position, the regulation does not make special provision for the use of such cylinders. Such special provision might be appropriate; however, it is not our function to review the wisdom of the standard. See A.T. & T. v. [*10] United States, 299 U.S. 232, 236-237 (1936).

So long as the standard is "(a) within [Complainant's] granted power, n8 (b) issued pursuant to proper procedure, n9 and (c) reasonable" n10 we must enforce it (Davis, Administrative Law, § 5.03, p. 299 (1966), unless it is unenforceably vague. n11 We conclude that the standard before us is proper in all legal respects and that we must enforce it.

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n8 Respondent does not contend that the standard is without "the limits of [Complainant's] statutory delegation." Seattle First National Bank v. United States, 44 F. Supp. 603, 607 (D.D.C. 1942), aff'd 136 F. 2d 676, aff'd 321 U.S. 583.

n9 Respondent does not contend the standard was not validly promulgated. As discussed, infra, the standard was duly published in the Federal Register.

n10 We cannot find the standard unreasonable. It applies to all fuel gas cylinders. Use of fuel gas in an inclined position is hazardous (see note 7, supra ). We cannot invalidate the standard solely because it fails to single out acetylene.

n11 Respondent does not contend the standard is vague, and we find no basis for such a contention. See Secretary of Labor v. Tilo Company, Inc.,

[*11]

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Respondent is not without a remedy. Under section 6(f) of the Act it could have challenged the standard in the court of appeals following its promulgation. It did not do so. Even so, it may now apply to Complainant under section 6(d) of the Act for a variance from the standard, n12 or it may make application under section 6(b) for an abatement of the standard.

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n12 Respondent evidently is familiar with the procedure for seeking a variance. During the pendency of this proceeding, it obtained a variance from a standard published at 29 C.F.R. 1910.141(d)(3).

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In his decision, Judge Harris held that "valve end up" does not necessarily mean vertical. He also held that Complainant's interpretation of the standard, while reasonable, could not be binding on Respondent prior to October 20, 1971, the date of the inspection. The Judge based the latter holding on section 2(a)(1)(E) of the Administrative Procedure Act (APA), 5 U.S.C. 551, et [*12] seq. This was in error because that section applies only in cases where an agency has failed to publish a regulation in the Federal Register. The regulation here in question was published on May 29, 1971. The section does not require, as Judge Harris thought, that the interpretation of the standard be published in the Federal Register. Such interpretation is not a statement of general policy or interpretation of general applicability within the meaning of section 2(a)(1)(E) of the APA.

We turn now to the assessment of an appropriate civil penalty. Considering the size of Respondent's business, the gravity of the violation, Respondent's good faith, and its history of previous compliance, we conclude that the assessment of a civil penalty is inappropriate.

Accordingly, it is ORDERED that the Judge's decision is modified so as to affirm Complainant's citations and proposed penalties of $15 and $30 for violation of 29 C.F.R. 1910.132(a). It is FURTHER ORDERED that the Judge's decision is modified so as to affirm Complainant's citation for violation of 29 C.F.R. 1910.252(a)(2)(v)(c)(1) and so as to vacate Complainant's proposed penalty of $24 for such violation. As [*13] so modified the Judge's decision is affirmed.

CONCURBY: CLEARY; MORAN (In Part)

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in Commissioner Van Namee's conclusion concerning the application of section 1910.252(a)(2)(v)(c)(1) for the reasons that he has stated, and I concur in the conclusion that section 1910.132(a) was violated.

It is my view, however, that section 1910.132(a) imposes a duty upon an employer to provide directly or indirectly equipment that it requires. Paragraph (a) of the section expressly prescribes that protective equipment be "provided." Regrettably, the requirement is stated in the passive voice, and it does not specify who shall do the providing. The standard, however, is one that was initially adopted under the Walsh-Healey Act. It is separately published in 41 C.F.R., Part 50-204.7. In this regard, see section 1910.139. It was adopted without change under OSHA 36 FR 10590 (May 29, 1971).

The Walsh-Healey Act places a contractual duty upon government contractors to comply with its safety requirements. See 41 C.F.R., Part 50-201. It places no duty upon employees. It has no counterpart of section 5(b) of OSHA. Accordingly, I conclude that under OSHA [*14] it is exclusively the duty of the employer to provide the protective equipment in question, because it is exclusively the duty of the employer to provide it under the identical rule under the Walsh-Healey Act that is its source.

Safety shoes (protection for extremeties) may present a hard case. But the general tenor or paragraph (a) should be considered under the noscitur a sociis rule. Certainly, there can be no reasonable expectation that employees provide protective shields, barriers, or expensive respiratory devices.

Because the Walsh-Healey Act is the source of the standard, the work "provide" in paragraph (b) of section 1910.132 is not read as reflecting any regulatory duty placed upon employees to furnish protective equipment. Employees have no contractual duties under the Walsh-Healey Act. Rather, what paragraph (b) seems to recognize is that protective equipment which is owned by employees may sometimes be used by the employees themselves, perhaps as a matter of custom or practice. When this occurs, the the paragraph establishes a duty upon the employer to assure its adequacy. Under its express terms, paragraph (b) does not require employees to provide [*15] the equipment in the first instance.

Section 1910.132, however, stops short of requiring by its terms an employer to assume the cost of the protective equipment. Standards requiring this assumption have done so expressly. See, for example, section 1910.93a(g), the asbestos standard, and section 1910.93c(g), the new standard for nitrobiphenyl. The Secretary may be empowered to go further and prescribe appropriate rules dealing with the cost of protective equipment. This seems within the breadth of the definition of the term "occupational safety and health standard" in section 3(8) of the Act. Indeed, section 6(b)(7) expressly requires that standards issued thereunder provide that the employer will assume the cost of medical examinations. In this regard, see the aforementioned examples in section 1910.93a(j), the asbestos standard and section 1910.93c(g) (39 FR 3755, January 29, 1974), the new standard for nitrobiphenyl.

Unless a standard or other rule of the Secretary of Labor prescribes that the employer will assume the cost of the protective equipment, in my view the Commission lacks jurisdiction to provide relief as to costs. The jurisdiction of the Commission [*16] is confined to the review of citations (and penalties) arising from violations by an employer that are recognized under section 9(a) of the Act.

This is not to say that relief is not otherwise available under the Act. The Act clearly contemplates that an employer will generally assume the costs of complying with its terms. If this were not so, section 28 of the Act providing for economic assistance to small business would be redundant. Also, one of the objectives of the Congress in enacting the Act was to prevent wage loss to employees resulting from personal injury or illness arising out of work situations. It would be ironic, and hence not reasonable to expect, that Congress contemplated that employees would be permitted to suffer wage loss because of the use of devices for their protection on the job. On the other hand, however, it is not reasonable to construe the Congressional statement of purpose, or the Act in its totality, as suggesting that an employee should receive a windfall or unjust enrichment as a consequence of the protection which the employer is compelled to provide.

These would seem to be the likely considerations in rules on the subject. Presently, however, [*17] whether in a particular case employees may be suffering an unfair wage loss is something that might be litigated as a matter of possible discrimination under section 11(c) of the act. n13 Section 11(c), enforced by the Secretary of Labor directly in the Federal district courts, provides broad protection to employees who suffer discrimination because they have exercised any right afforded under the Act. Employees have a duty to comply with any standard under section 5(b) of the Act, and they would seem, therefore, to have a correlative right to have available to them whatever equipment may be required by a standard. It remains to be seen whether the cost issue can be litigated within the framework of this right and whether a distinction can be made between protection afforded from capital equipment as distinguished from personal equipment that would constitute a discriminatory act. n14

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n13 There is not enough to leave the disposition of the cost issue to collective bargaining for two reasons. First, there may be no collective bargaining agreement. In an "open-shop" situation, the employees may be in an unfavorable bargaining position in their individual employment contracts. Second, even when there is a collective bargaining agreement, the parties should be able to know, or reasonably predict, what the employer is obligated to provide as a matter of law.

n14 To Illustrate the difficulty of the problem, it may be hard to distinguish under the Act between the cost of providing a "closed system" for handling naphthylamine and the cost of providing protective garments for use by employees in repairing a contaminated system. See 29 C.F.R. section 1910.93d (39 FR 3755, January 29, 1974), one of the new carcinogen standards.

[*18]

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In sum, my views concerning the application of section 1910.132 and the cost issue are as follows:

(1) Section 1910.132(a) imposes upon an employer a duty to provide the equipment required by its terms. It is clear from the section as a whole, however, that an employer can provide the safety shoes directly or indirectly by having employees use their own, as contemplated by paragraph (b).

(2) Section 1910.132 cannot reasonably be said to address itself to the matter of costs. When the Secretary has intended to regulate the matter of costs, he has done so expressly. See, for example, the rules relating to medical examination costs in section 1910.93a(j), the asbestos standard, and section 1910.93c(g), the new standard for nitrobiphenyl.

(3) The Secretary may have the power to prescribe appropriate rules dealing with the cost of providing protective equipment. The definition of the term "occupational safety and health standard" in section 3(8) seems broad enough to permit this. The definition must be conceptually consistent with section 6(b)(7) requiring, among other things, that standards [*19] issued thereunder provide that an employer will assume the costs of medical examinations.

(4) Unless a standard or other rule of the Secretary of Labor prescribes that an employer will assume the cost of protective equipment, the Commission lacks jurisdiction to provide relief as to costs.

(5) Even though a standard or other rule of the Secretary of Labor does not deal with the costs, whether or not an employee may be required to assume the costs of his own protection may be an issue for litigation under section 11(c) of the Act, the provision in the Act protecting employees against discrimination because of the exercise of their rights thereunder.

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part and dissenting in part: I concur with the determination that the Judge erred in refusing to permit the respondent to withdraw its notice of contest as to two violations resulting from its failure to comply with the requirements of 29 C.F.R. § 1910.132(a).

I dissent from the finding that respondent failed to comply with the requirements of 29 C.F.R. § 1910.252(a)(2)(v)(c)(1). In my opinion, the respondent complied with this standard by placing its valve ends up.

[*20] Webster defines the word "up" in many ways. However, these definitions make it clear that the word is commonly understood to mean moving an object towards a higher position or to elevate something above the horizontal. Webster's Third New International Dictionary (Unabridged 1971). This decision states that an employer should understand "up" to mean "vertical." To paraphrase Winston Churchill, this is the sort of interpretation up with which I will not put.

The two words are different and each has its own meaning.

In Secretary of Labor v. California Stevedoring Company, In Secretary of Labor v. Tilo Company, Inc., Those rules are based on the notion that the purpose of a standard is to provide for a safe and healthful work environment by telling employers what they must do to eliminate, reduce, or prevent a specific hazardous condition. Such a purpose cannot be achieved if [*21] the standard does not clearly state what is required of an employer.

This Commission has been confronted with similarly imprecise terms in the past, and we have taken the position that we will not enforce them if employers of common intelligence are left to guess as to the conduct required of them. Secretary of Labor v. These decisions are controlling in this case.

If ordinary prudent employers are to be expected to read this standard and implement its requirements, we must base our decision upon what it means to a reasonable employer charged with the duty of complying with the standard as written. In my opinion, it was logical for the respondent to contend that it complied with the standard's requirement that it place the "valve end up" when it raised the valves of the cylinders 30 to 45 degrees above the horizontal.

Additionally, I note that the citation described the violation as follows: "Acetylene cylinders not mounted on welding carts valve end up. " (Emphasis added.) Since the respondent was not charged with a failure to have the cylinders in a "vertical" position, it is [*22] improper to affirm a violation therefor. Engineers and Fabricators, Inc., v. National Labor Relations Board, 376 F. 2d 482 (5th Cir. 1967); National Labor Relations Board v. I.B.S. Mfg. Co., 210 F. 2d 634 (5th Cir. 1954). The Act requires that the nature of the violation alleged be stated with particularity in the citation 29 U.S.C. § 658(a). It was the intent of Congress that the issues to be adjudicated before this Commission be framed by the citation. One of the principal purposes of this Act is to effect the abatement of conditions which are hazardous to employees. The citation is the only place where employers and employees may find out what those hazardous conditions or practices are, so that they can proceed to abate them. They must be able to rely on the citation for this information. Secretary of Labor v. Koppers Company, Inc.,

Judge Harris found that the respondent was notified on the date of the inspection that the Secretary of Labor interpreted the word "up" to mean "vertical." Apparently, he concluded that this provided the necessary actual notice which, under 5 U.S.C. § 552(a)(1), may be substituted [*23] for the publication of a revision to a regulation in the Federal Register. Insofar as his opinion indicates that this respondent should be on notice after the date of the inspection that 29 C.F.R. § 1910.252(a)(2)(v)(c)(1) means "valve end vertical," I disagree. In my view, to interpret the word "up" to mean "vertical" constitutes a substantial change in the standard. When such a modification is made in a standard, the Secretary must fully comply with the rule-making procedures provided in 29 U.S.C. § 655(b). See Secretary of Labor v. Oberhelman-Ritter Foundry, Inc., Accordingly, the respondent cannot be held responsible under the more stringent requirement until the standard is so modified. It follows, a fortiorari, that I do not concur with the Commission's determination that this standard be so applied against all employers without any further action by the Secretary of Labor.

What the Commission is saying here, is that complainant can make an ad hoc interpretation which varies the meaning of a word used in a regulation without observing the prior notice requirements of the Administrative Procedure Act. 5 [*24] U.S.C. § 552(a)(1). This cannot be done. This concept was recently referred to by the Court of Appeals for the 2d Circuit as ". . . the perhaps simplistic thought that the meaning of a regulation might best be fathomed by its author, here the Secretary," Brennan v. OSAHRC and Gerosa, Incorporated, 491 F.2d 1340 (2nd Cir. 1974).

[The Judge's decision referred to herein follows]

HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act), to review two citations issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to Section 10(a) of the Act. Each of the said citations were issued against Respondent, The Budd Company (hereinafter Budd), the first, on November 4, 1971 and the second, on November 9, 1971.

The first citation alleges 33 specific violations of standards in 29 C.F.R. Part 1910 and requires the abatement thereof at times stated in the citation. Served with the said citation was a Notice of Proposed Penalty, also issued on November 4, 1971, wherein the [*25] Secretary proposed penalties for each of the alleged violations ranging from $6 to $30 and aggregating $561. All of these alleged violations are located in a workplace alleged to be owned or controlled by Budd at 2540 Hunting Park Avenue, Philadelphia, Pennsylvania. Budd, in its answer to the complaint filed by the Secretary on November 29, 1971, points out that the correct street number is 2450 Hunting Park Avenue (Answer, para. I-III). On November 19, 1971 Budd served a Notice of Contest upon the Secretary who filed the same with the Occupational Safety and Health Review Commission (hereinafter Commission) on November 22, 1971, wherein Budd interposes specified contests with regard to Items numbered 1, 3, 5, 8, 15, 18, 20 and 28 in the citation. Budd's answer to the Secretary's complaint was filed on December 6, 1971 whereby:

1. (a) It is admitted that no cleansing agent or soap was provided in some washrooms in violation of the standard at 29 C.F.R. 1910.141(d)(2) and that the violation has been abated (Item No. 1; Compl. para. IV(a));

(b) It is admitted that fire extinguisher locations were obstructed in 3G Column #56 and 2S Column #150, in violation of the standard at [*26] 29 C.F.R. 1910.157(a)(2) and 1910.157(a)(5) (Item No. 3; Compl. para. IV(b));

(c) It is admitted that some five extinguishers showed no evidence of testing and that some did not bear test dates on their shells, in violation of the standards at 29 C.F.R. 1910.157(d)(4)(iii) and (d)(4)(viii). However the abatement date of December 4, 1971 fixed in the citation is alleged to be inappropriate (Item No. 5; Compl. para. IV(c));

(d) It is admitted that some exits were not marked as required by the standard at 29 C.F.R. 1910.37(q)(1). However this abatement date fixed in the citation, November 19, 1971, is alleged to be inappropriate (Item No. 15; Compl. para. IV(e));

(e) It is admitted that some electrical fans were not grounded in accordance with the requirement of the standard at 29 C.F.R. 1910.314(d)(4) (Item No. 18; Compl. para. IV(f)); and

(f) It is admitted that some fork lift trucks in use had defective horns and some covers on controllers of hand industrial trucks were missing, in violation of the standard at 29 C.F.R. 1910.178(p)(1). However this abatement date fixed in the citation, November 14, 1971, is alleged to be inappropriate (Item No. 20; Compl. para. IV(g)). [*27]

2. (a) It is denied that the abatement dates fixed by the citation for the contested items are reasonable (Ans. para. VI; Compl. para. VI; the complaint omits reference in paragraph VI to the abatement date fixed for Item No. 18 which is December 4, 1971);

(b) It is denied that Budd violated the standard at 29 C.F.R. 1910.252(a)(2)(v)(c)(1), Item 8 (Ans. para. IV; Compl. para IV(d)), or the standard at 29 C.F.R. 1910.132(a), Item 28 (Ans. para. IV; Compl. para. IV(h)); and

The second citation alleges 22 specific violations of standards in 29 C.F.R. Part 1910 and requires their abatement at times therein specified which occurred at Budd's premises at Red Lion and Verree Roads in Philadelphia, Pennsylvania. Served with this citation was a Notice of Proposed Penalty, issued on November 19, 1971, wherein the Secretary proposed individual penalties ranging from $6 to $45 and aggregating $465. Budd served a Notice of Contest upon the Secretary on November 23, 1971 which was filed with the Commission on November 26, 1971, wherein it raised issue as to Items No. 1, 2, 4, and 8. [*28]

The Secretary's complaint, filed December 6, 1971, alleges violation of the standard at 29 C.F.R. 1910.157(d)(4)(iii), Item No. 1 (Compl. para. V(a)); violation of the standard at 29 C.F.R. 1910.132(a) Item No. 2 (Compl. para. V(b)); violation of the standard at 29 C.F.R. 1910.22(a)(1) and (a)(2), Item No. 4 (Compl. para. V(c)); and violation of the standard at 29 C.F.R. 1910.252(b)(4)(ix)(c), Item No. 8 (Compl. para. V(d)). n1

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n1 As Budd's answer points out, the Secretary's complaint contains two paragraphs numbered "V" and it is the first of these paragraphs which charges the violations alleged in Items No. 1, 2, 4 and 8 of the citation.

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Budd's answer filed December 13, 1971:

1. (a) Admits that some fire extinguishers showed no evidence of testing in violation of the standard at 29 C.F.R. 1910.157(d)(4)(iii), Item No. 1(Ans. para. IV(a));

(b) Admits the violation of the standard at 29 C.F.R. 1910.22(a)(1) and (a)(2) as charged in paragraph V(c) of the complaint (Ans. para. IV(c); Item No. 4);

(c) Admits violation [*29] of the standard at 29 C.F.R. 1910.252(b)(4)(ix)(c) as charged in paragraph V(d) of the complaint (Ans. para. IV(d); Item No. 8).

2. (a) Denies that the abatement dates fixed in the citation, as alleged in paragraph VI of the complaint, are reasonable (Ans. para. VI);

(b) Denies the violation of the standard at 29 C.F.R. 1910.132(a) as charged in paragraph V(b) of the complaint (Ans. para. IV; Item No. 2); and

The Commission assigned Case Docket No. 199 to the first citation, issued, as aforesaid, on November 4, 1971 and Case Docket No. 215 to the second citation, issued, as aforesaid, on November 9, 1971.

The affected employees of Budd at the Hunting Park Avenue plant, are represented by Local Unions 757 and 813 of the International Union, United Automobile Aerospace and Agricultural Implement Workers of America (hereinafter UAW). The affected employees working in the Red Lion and Verree Roads plant are represented by Local Union 92 and 1287, UAW (Ans., Docket No. 199, para. V; Ans. Docket No. 215, para. V).

On December 21, 1971, on motion of the Secretary, with the consent [*30] of Budd's attorneys, Docket Nos. 199 and 215 were consolidated for trial and on the same day assigned to me for hearing pursuant to Section 12(e) of the Act.

Pursuant to notice and by agreement of the parties, a pre-hearing conference and the hearing were held on April 19, 1972, in Philadelphia, Pennsylvania.

All of the parties hereto, including Local Unions 92, 757, 813 and 1287, UAW, were given timely notice of the time and place of said hearing. Local Unions 92 and 813 appeared and participated in these proceedings.

It was stipulated by the parties that Respondent's corporate name is the Budd Company, that it is a corporation organized under the laws of the State of Pennsylvania with its principal office in the city of Philadelphia, in that State (Tr. 6); that it is engaged in the manufacture of automotive parts and supplies and ships substantial quantities of such goods in interstate trade to points outside the state of Pennsylvania (Tr. 6); that it employs in excess of 3000 persons at its plant at 2450 Hunting Park Avenue and more than 1000 at its plant at Red Lion and Verree Roads, in Philadelphia, Pennsylvania (Tr. 8); that it owns all of the equipment in use [*31] at both said plants (Tr. 7); that $140 million of its total annual sales, which are in excess of $400 million, are attributable to the two said plants (Tr. 7-8); that the citations herein, or pertinent pages thereof were posted at the locations where the alleged violations occurred and upon central bulletin boards for at least two weeks following receipt thereof by Budd (Tr. 8-9).

Budd applied orally for leave to withdraw its Notice of Contest in connection with Item 28 in the citation November 4, 1971 (Compl. para IV(h)), alleging that it failed to provide certain employees at its Hunting Park plant with foot protection and in connection with Item 2 in the citation dated November 9, 1971 (Compl. para V(b)), alleging that it failed to provide certain employees at its Red Lion plant with foot protection, in violation of the standard at 29 C.F.R. 1910.132(a), upon the condition however "that the obligation to provide this foot protection does not include the obligation to pay for the protection" and that a period of 30 days be allowed to comply with the standard by requiring its employees in certain classifications to wear foot protection; it being stipulated that the footwear to be [*32] provided will comply with the standard at 29 C.F.R. 1910.136. The Secretary did not object to Budd's motion or the form in which it was made. Objection was made thereto by Local Unions 92 and 813, UAW (Tr. 10; 11; 13; 15-22). Decision upon Budd's motion was reserved (Tr. 24).

After hearing the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact.

FINDINGS OF FACT

1. Budd is a corporation organized under the laws of the State of Pennsylvania with its principal office in the City of Philadelphia in said state (Tr. 6). It is engaged in the business of manufacturing and selling automotive parts and supplies and regularly ships substantial quantities thereof in interstate trade to points outside the State of Pennsylvania (Tr. 6).

2. Budd maintains and has under its control two [*33] workplaces in the City of Philadelphia, aforesaid, to wit, at 2450 Hunting Park Avenue and at Red Lion and Verree Roads. It employs in excess of 3000 persons at the Hunting Park Avenue plant and over 1000 persons at the Red Lion and Verree Roads plant (Tr. 6; 8) and owns or controls all of the equipment located in and used at said plants (Tr. 7).

3. Budd's total annual sales are in excess of $400 million of which more than $140 million is attributable to the two said plants in the City of Philadelphia, aforesaid (Tr. 7-8).

4. Budd failed and omitted to supply a suitable cleansing agent in lavatories at the plant at 2450 Hunting Park Avenue, aforesaid, (hereinafter Hunting Park) and the said condition has been abated (Tr. 99-100).

5. Budd applied for and was granted a variance by the Occupational Safety and Health Administration, United States Department of Labor (hereinafter OSHA) permitting the use of electrically operated hot air drying machines in lieu of the hand towels required by the standard at 29 C.F.R. 1910.141(d)(3); by letter dated December 13, 1971 (Tr. 100-102; R-4).

6. Budd permitted two fire extinguisher locations to be obstructed and failed to mount [*34] several fire extinguishers at Hunting Park. The said conditions have been abated (Tr. 102-103).

7. Budd failed and omitted to hydrostatically test portable fire extinguishers and to record the test dates on the shell of said fire extinguishers at its Hunting Park plant, aforesaid (Ans. para. IV(c); Tr. 106-107).

8. Budd failed and omitted to mark exits at its said Hunting Park plant by readily visible signs. This condition has been abated (Ans. para. IV(e); Tr. 103).

9. Budd failed and omitted to ground the cords and plugs of electrical fans at its said Hunting Park plant. This condition has been abated (Ans. para. IV(f); Tr. 104). The Secretary conceded that said condition was not general thruout said plant as alleged in the citation (Item 18) and in the complaint (para. IV(f)) and moved to strike said language from the complaint (Tr. 105).

10. Budd failed and omitted to keep the horns on fork lift trucks in operating condition and to keep controllers on hand trucks covered, all at its said Hunting Park plant. These conditions have been abated (Ans. para. IV(g); Tr. 105).

11. Budd failed and omitted to hydrostatically test fire extinguishers at its said plant [*35] at Red Lion and Verree Roads (hereinafter Red Lion) (Ans. para. IV(a); Tr. 105).

12. Budd failed and omitted to maintain clean and orderly conditions in its said Red Lion plant. This condition has been abated (Ans. para. IV(c); Tr. 107-108).

13. Budd failed and omitted to replace electrode lead cables at its said Red Lion Plant, which were cut, torn, and had exposed places in the insulation. This condition has been abated (Ans. para. IV(d); Tr. 108-109).

14. There are a great number of portable fire extinguishers in the Hunting Park and Red Lion plants and the testing and tagging process must be restricted to small numbers at any one time. Budd's request that the dates for abatement fixed in the respective citations as December 4, and 16, 1971, be extended to June 9, 1972, is not objected to by the Secretary (Tr. 105-107).

15. Budd has no history of prior violations (Tr. 8) and has evidenced cooperation in proceeding promptly to abate the violations of established standards referred to herein above.

16. It is not disputed that Budd permitted and required employees in its Hunting Park plant to use acetylene cylinders not placed or mounted on carts in a vertical position [*36] (Tr. 28-29, 89; 95-96; R-1, R-2, R-3).

17. The term fuel-gas cylinders includes acetylene, LP gases and fuel-type cylinders (Tr. 39; 41; 29 C.F.R. 1910.252(a)(2)(iii)(a-b)).

18. The Secretary interprets the phrase "valve end up" in the standard at 29 C.F.R. 1910.252(a)(2)(V)(c) (1) to mean "upright" or "vertical" (Tr. 44-45).

19. There is little or no hazard created by the use of an acetylene cylinder in a horizontal or nearly horizontal position (Tr. 53-55); 60; 120; 134-135, 136).

20. LP gas cylinders, if inclined from the vertical, are subject to rupture if the safety control valve is covered by liquid inside the cylinder and the pressure builds up or the liquid enters the regulators (Tr. 42-43).

21. The phrase "valve end up" is not a term of art and has no special meaning other than the common ordinary meaning usually associated therewith (Tr. 61; 71-72).

22. The term or word "up" when used to indicate direction or the relative position of an object does not exclusively indicate the vertical or upright position nor does it exclude meanings other than a direction contrary to the direction of gravity or radially away from the center of the earth (R-6; R-7; [*37] R-8).

23. No evidence appears of record that the Secretary's interpretation of the word "up" as used in the standard at 29 C.F.R. 1910.252(a)(2)(v)(c)(1) was published in any official communication, disseminated to persons or firms who are or may be subject to the said regulation or that Budd had any knowledge of the said interpretation prior to October 20, 1971, the date of the inspection of its Hunting Park plant by compliance officers of OSHA (Compl. para. III; Ans. para. IIII).

24. The source material for the standard at 29 C.F.R. 1910.252 does not indicate that the word "up" means "vertical" or that the words "up" and "upright" are used interchangeably (Tr. 70-71).

25. On August 28, 1972, Budd's motion to withdraw its Notice of Contest, as aforesaid, was denied and a hearing on the issues remaining for determination was fixed for Thursday, October 19, 1972, in Philadelphia, Pennsylvania pursuant to notice and by agreement of the parties.

26. On October 16, 1972 Budd renewed its application to withdraw its Notice of Contest in connection with Item 28 in the citation dated November 4, 1971 (Hunting Park Plant) and Item 2 in the citation dated November 9, 1971 (Red [*38] Lion Plant), subject however to the proviso that it be allowed 30 days in which to comply with the standard at 29 C.F.R. 1910.132(a) and that "the matter of who shall be liable for the cost of such foot protection is not a proper subject for determination under the Act." This application was denied by order dated October 16, 1972.

27. On October 19, 1972, at the hearing held in Philadelphia, Pennsylvania, Budd stipulated that at its said Hunting Park Plant and at its said Red Lion Plant, foot protection for certain of its employees was necessary by reason of hazards of their employment therein. Budd further requested that it be allowed a period of thirty (30 days in which to comply with the standard at 29 CFR 1910.132(a) by requiring its said employees to wear adequate foot protection. The complainant and Local Unions 92 and 813, UAW, raised no objection to the reasonableness of Budd's request and did not offer any evidence thereon.

CONCLUSIONS OF LAW

1. At all times mentioned herein Budd was and is an employer engaged in a business affecting commerce within the meaning of Section 3 of the Act and the Occupational Safety and Health Review Commission has jurisdiction [*39] of the parties and of the subject matter herein pursuant to Section 10(c) of the Act.

2. On or about October 20, 1971, Budd, at its Hunting Park Avenue plant, violated section 5(a)(2) of the Act, and the Safety and Health Regulations issued pursuant to Sections 8(g)(2) and 6(a) of the Act, to wit: 29 C.F.R. 1910.141(d)(2); 29 C.F.R. 1910.157(a)(2) and (a)(5); 29 C.F.R. 1910.157(d)(4)(iii) and (d)(4)(viii); 29 C.F.R. 1910.37(q)(1); 29 C.F.R. 1910.314(d)(4) and 29 C.F.R. 1910.178(p)(1).

3. On or about October 27, 1971, Budd, at its Red Lion plant, violated section 5(a)(2) of the Act, and the Safety and Health Regulations issued pursuant to sections 8(g)(2) and 6(a) of the Act, to wit: 29 C.F.R. 1910.157(d)(4)(iii); 29 C.F.R. 1910.22(a)(1) and (a)(2), and 29 C.F.R. 1910.252(b)(4)(ix)(e).

4. Budd's request that the abatement dates fixed in the citations herein respecting the testing and marking of portable fire extinguishers at its Hunting Park and Red Lion plants (December 4 and 9, 1971 respectively) be extended to June 9, 1972, is under the circumstances herein above reasonable. No objection there-to was made by the Secretary.

5. The sources of the standard at 29 C.F.R. 1910.252 [*40] are given as NFPA-51-1969, Welding and Cutting Oxygen Fuel Gas Systems; ANSIZ-49.1, 1967, Safety in Welding and Cutting; NFPA 51B 1962 Cutting and Welding Processes and 49 C.F.R. 50-204.7 n2 however, the standard at 29 C.F.R. 1910.102, Acetylene, provides:

(a) Cylinders.

The in-plant transfer, handling, storage, and utilization of acetylene in cylinders shall be in accordance with Compressed Gas Association Pamphlet G-1-1966. n3

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n2 C.F.R. 1910.253

n3 Page 9 thereof was received in evidence as P-2.

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6. The Compressed Gas Association Pamphlet G-1-1966 (p-2) provides:

5.3 Rules for Withdrawing Acetylene from Cylinders.

5.3.3.1 It is always preferable to use acetylene cylinders in an upright position to avoid loss of solvent and accompanying reduction in flame quality. However, use in a horizontal position, with or without the loss of solvent, does not make the acetylene less stable or less safe.

7. Although 29 C.F.R. 1910.252(a)(2)(iii)(b) requires that acetylene cylinders shall be stored value end [*41] up, 29 C.F.R. 1915.35(a)(q) and 29 C.F.R. 1917.35(a) (9) require that when being transported, moved or stored; acetylene cylinders shall be secured in an upright position, however both of these standards, as does 29 C.F.R. 1910.252(a)(2)(v)(c)(1), require that fuel gas cylinders be placed with value end up when in use (1915.35(b)(3) and 1917.35(b)(3)). In 29 C.F.R. 1910.252(a)(3)(v)(g) acetylene cylinders and liquified fuel-gas cylinders are required to be manifolded in a vertical position (all emphasis added).

8. The standard at 29 CFR 1910.252(a)(2)(v)(c)(1) provides:

Fuel gas cylinders shall be placed with valve end up whenever they are in use.

In spite of the fact that fuel gas cylinders containing acetylene present little or no hazard when used in positions varying from the upright or vertical the Secretary's interpretations of the phrase "value end up" as it appears in the standard cannot be said to be unreasonable or capricious in view of the fact that fuel-gas cylinders chargeed with gas other than acetylene are hazardous when used in positions other than vertical or upright. Norweigian Nitrogen Products Co. v. U.S., 288 U.S. 294 (1933); White [*42] v. Winchester Country Club, 315 U.S. 32 (1942); Skidmore v. Swift & Co., 323 U.S. 134 (1944); Cf. Secretary v. California Stevedoring Co.,

9. Under the facts of this case, the Secretary's interpretation of the meaning of the phrase in question cannot be held to be binding upon Budd prior to October 20, 1971. 5 U.S.C. Section 552(a)(1)(E); U.S. v. Aarons, 310 F-2d 341 (2 Cir. 1962); Kessler v. F.C.C., 326 F-2d 673 (DCCA 1962); Wyman-Gordon Company v. NLRB, 397 F-2d 394 (1 Cir. 1968). See also, Secretary v. California Stevedoring Co., supra.

10. Section 5(a)(2) of the Act requires each employer to "comply with occupational safety and health standards promulgated under this Act." 29 C.F.R. 1910.2(f) defines "standard" to mean "a standard which requires conditions or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."

11. 29 C.F.R. 1910.132 is a standard, promulgated pursuant to the authority in sections 6(a) and 8(g) of the Act, which became effective on August [*43] 28, 1971, and it provides, in pertinent part:

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment . . . .

(b) Employee-owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.

12. It is clear that the standard at 29 C.F.R. 1910.132 requires the employer to provide, require the use of, and maintain in a sanitary and reliable condition, protective equipment, in this case, safety shoes, wherever the same becomes necessary by reason of hazards of the employment. In addition, the employer is held responsible for the adequacy, proper maintenance and sanitation of such equipment where the employee elects to provide it.

13. Unlike the standards at 29 C.F.R. 1915.83(d) (Ship Repairing), 29 C.F.R. 1916.83(d) (Shipbuilding), 29 C.F.R. 1917.83(d) (Shipbreaking) [*44] and 29 C.F.R. 1918.104 (Longshoring), where the employer is merely required to make safety shoes readily available to his employees, the standard sub judice, requires the employer to provide such shoes where necessary. Reasonably construed the standard herein requires that where foot protection is necessary by reason of hazards of the employment and such shoes are not provided by his employees, the employer would be in violation of the standard if he failed to provide the required foot protection. n4

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n4 "Provide" means: to supply for use; contribute; furnish; to equip in preparation; to fit out with -- Websters New International Dictionary, Unabridged.

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14. On or about October 20, 1971, at its Hunting Park Plant and on or about October 27, 1971, at its Red Lion Plant, Budd violated Section 5(a)(2) of the Act and the Safety and Health Regulations issued pursuant to Sections 8(g)(2) and 6(a) of the Act, to wit: 29 CFR 1910.132(a).

15. Under the circumstances hereinabove, thirty days from and after the filing [*45] of this decision is a reasonable time within which Budd shall be required to abate the violations of the standard at 29 CFR 1910.132(a) described herein.

16. The civil penalties proposed by the Secretary in connection with the penalties alleged in Items numbered 1, 3, 5, 15, 18 and 20 in the citation issued on November 4, 1971 as a result of the October 20, 1971, inspection of Budd's premises at Hunting Park Avenue, aforesaid, and the civil penalties proposed in connection with Items numbered 1, 2, 4 and 8 in the citation issued on November 9, 1971, as a result of the October 27, 1971, inspection of Budd's premises at Red Lion Road, aforesaid, are, under the circumstances of this case reasonable and proper and have been indicated so to be by Budd.

17. At the aforesaid hearing held on October 19, 1971, the parties hereto each consented to the filing and entry of a consolidated judgment dealing with both citations herein, docketed as Numbers 199 and 215 and heretofore consolidated for trial.

ORDER

In view of the foregoing and having duly considered the gravity of the violations, the good faith of Respondent, its size, and its history of previous violations and good cause [*46] therefore appearing, it is

ORDERED that:

1. As to the plant at Hunting Park Avenue, aforesaid, and with reference to the citation issued on November 4, 1971:

a. the allegation that Budd violated the standard at 29 C.F.R. 1910.141(d)(2); and

b. the allegation that Budd violated the standard at 29 C.F.R. 1910.157(a)(2) and (a)(5); and

c. the allegation that Budd violated the standard at 29 C.F.R. 1910.157(d)(4)(iii) and (d)(4)(viii); and

d. the allegation that Budd violated the standard at 29 C.F.R. 1910.37(q)(1); and

e. the allegation that Budd violated the standard at 29 C.F.R. 1910.314(d)(4); and

f. the allegation that Budd violated the standard at 29 C.F.R. 1910.178(p)(1);

g. the allegation that Budd violated the standard at 29 C.F.R. 1910.132(a);

2. As to the plant at Red Lion Road, aforesaid, and with reference to the citation issued on November 9, 1971:

a. the allegation that Budd violated the standard at 29 C.F.R. 1910.157(d)(4)(iii); and

b. the allegation that Budd violated the standard at 29 C.F.R. 1910.132(a); and

c. the allegation that Budd violated the standard at 29 C.F.R. 1910.22(a)(1) and (a)(2); and

d. the allegation that Budd violated [*47] the standard at 29 C.F.R. 1910.252(b)(4)(ix)(c), be and each said allegation is hereby affirmed.

3. The allegations that Budd violated the standards at 29 C.F.R. 1910.141(d)(3) and 1910.252(a)(2)(v)(c)(1) be and the same are hereby vacated.

4. The date by which abatement of the violations of 29 C.F.R. 1910.157(d)(4)(iii) and (d)(4)(viii) as fixed in the citation dated November 4, 1971, with reference to the premises at Hunting Park Avenue, aforesaid, and of 29 C.F.R. 1910.157(d)(4)(iii) as fixed in the citation dated November 9, 1971, with reference to the premises at Red Lion Road, aforesaid, being December 4 and 9, 1971, respectively, be and the same is hereby extended to June 9, 1971.

5. The date by which abatement of the violations at 29 CFR 1910.132(a) as alleged in Item 28 of the citation dated November 4, 1971 addressed to the Hunting Park Plant and in Item 2 of the citation dated November 9, 1971 addressed to the Red Lion Plant, be and the same is hereby extended to December 1, 1972.

6. Budd be and it is hereby assessed and required to pay civil penalties as follows.

a. At its Hunting Park Avenue plant, aforesaid:

(1) for violation of the standard at 29 [*48] C.F.R. 1910.141(d)(2), the sum of $15;

(2) for violation of the standard at 29 C.F.R. 1910.15(a)(2) and (a)(5), the sum of $15;

(3) for violation of the standard at 29 C.F.R. 1910.157(d)(4)(iii) and (d)(4)(viii), the sum of $24;

(4) for violation of the standard at 29 C.F.R. 1910.37(q)(1), the sum of $15;

(5) for violation of the standard at 29 C.F.R. 1910.314(d)(4), the sum of $30; and

(6) for violation of the standard at 29 C.F.R. 1910.132(a), the sum of $15; and

(7) for violation of the standard at 29 C.F.R. 1910.178(p)(1), the sum of $18.

b. At its Red Lion Road plant, aforesaid:

(1) for violation of the standard at 29 C.F.R. 1910.157(d)(4)(iii), the sum of $24;

(2) for violation of the standard at 29 C.F.R. 1910.132(a), the sum of $30; and

(3) for violation of the standard at 29 C.F.R. 1910.22(a)(1) and (a)(2), the sum of $45; and

(4) for violation of the standard at 29 C.F.R. 1910.252(b)(4)(ix)(c), the sum of $18.

7. Pursuant to the Secretary's motion, field on January 31, 1971 and heretofore granted on the record, the word "not" in line 2 of paragraph IV(d) of the Secretary's complaint filed in OSHRC Docket Number 199, be and the same is hereby deleted.

HARRIS, [*49] JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act), to review two citations issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to Section 10(a) of the Act. Each of the said citations were issued against Respondent, The Budd Company (hereinafter Budd), the first, on November 4, 1971 and the second, on November 9, 1971,

Item 28 in the first citation and Item 2 in the second citation allege that Budd failed to provide certain of its employees with foot protection at its plants located at Hunting Park Avenue and at Red Lion and Verree Roads in Philadelphia, Pennsylvania, respectively, in violation of the standard at 29 C.F.R. 1910.132(a). Budd's Notice of Contest and its answer filed to the Secretary's complaint puts these allegations in issue. At the hearing herein, held on April 19, 1972, Budd applied orally for leave to withdraw its Notice of Contest in connection with Item 28 in the citation dated November 4, 1971 alleging that it failed to provide certain employees [*50] at its Hunting Park plant with foot protection and in connection with Item 2 in the citation dated November 9, 1971 alleging that it failed to provide certain employees at its Red Lion plant with foot protection, in violation of the standard at 29 C.F.R. 1910.132(a), upon the condition however "that the obligation to provide this foot protection does not include the obligation to pay for the protection" and that a period of 30 days be allowed to comply with the standard by requiring its employees in certain classifications to wear the foot protection; it being stipulated that the footwear to be provided will comply with the standard at 29 C.F.R. 1910.136. The Secretary did not object to Budd's motion or the form in which it was made. Objection was made thereto by Local Unions 92 and 813, UAW, who are parties to these proceedings.

Budd's motion was taken under advisement and the hearing proceeded on the remaining issues raised by the pleadings in these matters.

Section 5(a)(2) of the Act requires each employer to "comply with occupational safety and health standards promulgated under this Act." 29 C.F.R. 1910.2(f) defines "standard" to mean "a standard which requires [*51] conditions or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."

29 C.F.R. 1910.132 is a standard, promulgated pursuant to the authority in sections 6(a) and 8(g) of the Act, which became effective on August 27, 1971, and it provides, in pertinent part:

It is clear that the standard at 29 C.F.R. 1910.132 requires the employer to provide, require the use of, and maintain in a sanitary and reliable condition, protective equipment, wherever the same becomes necessary by reason of hazards [*52] of the employment. In addition, the employer is held responsible for the adequacy, proper maintenance and sanitation of such equipment where the employee elects to provide it.

Unlike the standards at 29 C.F.R. 1915.83(d) (Ship Repairing), 29 C.F.R. 1916.83(d) (Shipbuilding), 29 C.F.R. 1917.83(d) (Shipbreaking) and 29 C.F.R. 1918.104 (Longshoring), where the employer is merely required to make safety shoes readily available to his employees, the standard sub judice, requires the employer to provide foot protection where necessary. Reasonably construed the standard herein requires that where foot protection is necessary by reason of hazards of the employment and such foot protection is not provided by his employees, the employer would be in violation of the standard if he failed to provide the required foot protection. n1

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n1 "Provide" means: to supply for use; contribute; furnish; to equip in preparation; to fit out with -- Websters New International Dictionary, Unabridged.

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The manner in which or the places [*53] where such foot protection shall be worn, or stored or who shall be liable for the cost thereof are not proper subjects for determination under the Act. It is improper therefore to impose upon the employer's duty to provide foot protection whenever necessary under the standard at 29 C.F.R. 1910.132(a) and (b), the condition that it is not his obligation to pay therefore.

The decision issued herein on August 22, 1972, is, in view of the within determination, premature, and good cause appearing, it is

ORDERED that:

1. Budd's motion to withdraw its Notice of Contest with reference to the alleged violation of the standard at 29 C.F.R. 1910.132(a) as charged in the citation issued on November 4, 1971 and in the citation issued on November 9, 1971, aforesaid, be and the same is hereby denied and hearing thereon shall convene at 10:00 o'clock a.m. on Wednesday, September 13, 1972, in the National Labor Relations Board Hearing Room, Walnut and Juniper Streets, Philadelphia, Pennsylvania.

2. The decision dated August 22, 1972 issued in the above captioned matters be and the same is hereby set aside and vacated.

HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) [*54] of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the act), to review two citations issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to Section 10(a) of the Act. Each of the said citations were issued against Respondent, The Budd Company (hereinafter Budd), the first, on November 4, 1971 and the second, on November 9, 1971.

The first citation alleges 33 specific violations of standards in 29 C.F.R. Part 1910 and requires the abatement thereof at times stated in the citation. Served with the said citation was a Notice of Proposed Penalty, also issued on November 4, 1971, wherein the Secretary proposed penalties for each of the alleged violations ranging from $6 to $30 and aggregating $561. All of these alleged violations are located in a workplace alleged to be owned or controlled by Budd at 2540 Hunting Park Avenue, Philadelphia, Pennsylvania. Budd, in its answer to the complaint filed by the Secretary on November 29, 1971, points out that the correct street number is 2540 Hunting Park Avenue (Answer, para. I-III). On November 19, 1971 [*55] Budd served a Notice of Contest upon the Secretary who filed the same with the Occupational Safety and Health Review Commission (hereinafter Commission) on November 22, 1971, wherein Budd interposes specified contests with regard to Items numbered 1, 3, 5, 8, 15, 18, 20 and 28 in the citation. Budd's answer to the Secretary's complaint was filed on December 6, 1971 whereby:

(b) It is admitted that fire extinguisher locations were obstructed in 3G Column #56 and 2S Column #150, in violation of the standard at 29 C.F.R. 1910.157(a)(2) (Item No. 3; Compl. para IV(b));

(c) It is admitted that some fire extinguishers showed no evidence of testing and that some did not bear test dates on their shells, in violation of the standards at 29 C.F.R. 1910.157(d)(4)(iii) and (d)(4)(viii). However the abatement date of December 4, 1941 fixed in the citation is alleged to be inappropriate (Item No. 5; Compl. para. IV(c));

(e) It is admitted that some exits were not marked [*56] as required by the standard at 29 C.F.R. 1910.37(q)(1). However this abatement date fixed in the citation, November 19, 1971, is alleged to be inappropriate (Item No. 15; Compl. para. IV(e));

(f) It is admitted that some electrical fans were not grounded in accordance with the requirement of the standard at 29 C.F.R. 1910.314(d)(4) (Item No. 18; Compl. para. IV(f)); and

(g) It is admitted that some fork lift trucks in use had defective horns and some covers on controllers of hand industrial trucks were missing, in violation of the standard at 29 C.F.R. 1910.178(p)(1). However this abatement date fixed in the citation, November 14, 1971, is alleged to be inappropriate (Item No. 29; Compl. para. IV(g)).

(b) It is denied that Budd violated the standard at 29 C.F.R. 1910.252(a)(2)(v)(c)(1), Item 8 (Ans. para. IV; Compl. para. IV(d)), or the standard at 29 C.F.R. 1910.132(a), Item 28 (Ans. para. IV; Compl. para. IV(h)); [*57] and

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Budd's answer filed December 13, 1971:

1. (a) Admits that some fire extinguishers showed no evidence of testing in violation of the standard at 29 C.F.R. 1910.157(d)(4)(iii), Item No. 1 (Ans. para. IV(a));

(b) Admits the violation of the standard at 29 C.F.R. 1910.22(a)(1) and (a)(2) as charged in paragraph V(c) of the complaint (Ans. para. IV(c); Item No. 4);

(c) Admits violation of the standard at 29 C.F.R. 1910.252(b)(4)(ix)(c) as charged in paragraph V(d) of the complaint (Ans. para. IV(d); Item No. 8).

2. (a) Denies that the abatement dates fixed in the citation, as alleged in paragraph VI of the complaint, are reasonable (Ans. para. VI);

(b) Denies the violation of the standard at 29 C.F.R. 1910.132(a) as charged in paragraph V(b) of the complaint (Ans. para. IV; Item No. 2); and

The Commission assigned Case Docket No. 199 to the first citation, issued, as aforesaid, on November 4, 1971 and Case Docket No. 215 to the second citation, issued, as aforesaid, on November 9, 1971.

On December 21, 1971, on motion of the Secretary, with the consent of Budd's attorneys, Docket Nos. 199 and 215 were consolidated for trial and on the same day assigned to me for hearing pursuant to Section 12(e) of the Act.

Pursuant to notice and by agreement of the parties, a pre-hearing conference and the hearing were held on April 19, 1972, in Philadelphia, Pennsylvania.

All of the parties hereto, including Local Unions 92, 757, 813 and 1287, UAW, were given timely notice of the time and place of said hearing. Local Unions 92 [*60] and 813 appeared and participated in these proceedings.

It was stipulated by the parties that Respondent's corporate name is the Budd Company, that it is a corporation organized under the laws of the State of Pennsylvania with its principal office in the city of Philadelphia, in that State (Tr. 6); that it is engaged in the manufacture of automotive parts and supplies and ships substantial quantitites of such goods in interstate trade to points outside the State of Pennsylvania (Tr. 6); that it employes in excess of 3000 persons at its plant at 2450 Hunting Park Avenue and more than 1000 at its plant at Red Lion and Verree Roads, in Philadelphia, Pennsylvania (Tr. 8); that it owns all of the equipment in use at both said plants (Tr. 7); that $140 million of its total annual sales, which are in excess of $400 million, are attributable to the two said plants (Tr. 7-8); that the citations herein, or pertinent pages thereof were posted at the locations where the alleged violations occurred, and upon central bulletin boards for at least two weeks following receipt thereof by Budd (Tr. 8-9).

Budd applied orally for leave to withdraw its Notice of Contest in connection with Item 28 in the [*61] citation dated November 4, 1971 (Compl. para. IV(h)), alleging that it failed to provide certain employees at its Hunting Park plant with foot protection and in connection with Item 2 in the citation dated November 9, 1971 (Compl. para. V(b)), alleging that it failed to provide certain employees at its Red Lion plant with foot protection, in violation of the standard at 29 C.F.R. 1910.132(a), upon the condition however "that the obligation to provide this foot protection does not include the obligation to pay for the protection" and that a period of 30 days be allowed to comply with the standard by requiring its employees in certain classifications to wear the foot protection; it being stipulated that the footwear to be provided will comply with the standard at 29 C.F.R. 1910.136. The Secretary did not object to Budd's motion or the form in which it was made. Objection was made thereto by Local Unions 92 and 813, UAW (Tr. 10; 11; 13; 15-22). Decision upon Budd's motion was reserved (Tr. 24).

After [*62] hearing the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact.

FINDINGS OF FACT

2. Budd maintains and has under its control two workplaces in the City of Philadelphia, aforesaid, to wit, at 2450 Hunting Park Avenue and at Red Lion and Verree Roads. It employs in excess of 3000 persons at the Hunting Park Avenue plant and over 1000 persons at the Red Lion and Verree Roads plant (Tr. 6; 8) and owns or controls all of the equipment located in and used at said plants (Tr. 7).

3. Budd's total annual sales are in excess of $400 million of which more that $140 million is attributable [*63] to the two said plants in the City of Philadelphia, aforesaid (Tr. 7-8).

6. Budd permitted two fire extinguisher locations to be obstructed and failed to mount several fire extinguishers at Hunting Park. The said conditions have been abated (Tr. 102-103).

8. Budd failed and omitted to mark exits at its said Hunting Park plant by readily visible signs. This condition has been abated (Ans. para. IV(e); [*64] Tr. 103).

11. Budd failed and omitted to hydrostatically test fire extinguishers at its said plant at Red Lion and Verree Roads (hereinafter Red Lion) (Ans. para. IV(a); Tr. 105).

12. Budd failed and omitted to maintain clean and orderly conditions in its said Red Lion plant. This condition has been abated (Ans. para. IV(c); Tr. 107-108).

13. Budd failed and omitted to replace electrode lead cables at its said Red Lion plant, which were cut, torn, and had exposed places in the insulation. This condition has been abated (Ans. para. IV(d); Tr. 108-109). [*65]

14. There are a great number of portable fire extinguishers in the Hunting Park and Red Lion plans and the testing and tagging process must be restricted to small numbers at any one time. Budd's request that the dates for abatement fixed in the respective citations as December 4, and 16, 1971, be extended to June 9, 1972, is not objected to by the Secretary (Tr. 105-107).

15. Budd has no history of prior violations (Tr. 8) and has evidence cooperation in proceeding promptly to abate the violations of established standards referred to herein above.

16. It is not disputed that Budd permitted and required employees in its Hunting Park plant to use acetylene cylinders not placed or mounted on carts in a vertical position (Tr. 28-29; 89; 95-96; R-1, R-2; R-3).

17. The term fuel-gas cylinders includes acetylene, LP gases and fuel-type cylinders (Tr. 39; 41; 29 C.F.R. 1910.252(a)(2)(iii)(a-b)).

18. The Secretary interprets the phrase "valve end up" in the standard at 29 C.F.R. 1910.252(a)(2)(v)(c)(1) to mean "upright" or "vertical" (Tr. 44-45).

19. There is little or no hazard created by the use of an acetylene cylinder in a horizontal or nearly horizontal position [*66] (Tr. 53-55; 60; 120; 134-135; 136).

21. The phrase "valve end up" is not a term of art and has no special meaning other than the common ordinary meaning usually associated therewith (Tr. 61; 71-72).

24. The source material for the standard at 29 C.F.R. 1910.252 does not indicate that the word "up" means "vertical" or that the words "up" and "upright" are used interchangeable Tr. 70-71).

CONCLUSIONS OF LAW

1. At all times mentioned herein Budd was and is an employer engaged in a business affecting commerce within the meaning of Section 3 of the Act and the Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter herein pursuant to Section 10(c) of the Act.

3. On or about October 27, 1971, Budd, at its Red Lion plant, violated section 5(a)(2) of the Act, and the Safety and Health Regulations issued pursuant to sections 8(g)(2) and 6(a) of the Act, to wit: 29 C.F.R. 1910.157(d)(4)(iii); 29 C.F.R. [*68] 1910.22(a)(1) and (a)(2), and 29 C.F.R. 1910.252(b)(4)(ix)(e).

5. The sources of the standard at 29 C.F.R. 1910.252 are given as NFPA-51-1969, Welding and Cutting Oxygen Fuel Gas Systems; ANSIZ 49.1, 1967, Safety in Welding and Cutting; NFPA 51B 1962 Cutting and Welding Processes and 49 C.F.R. 50-204.7 n2 however, the standard at 29 C.F.R. 1910.102, Acetylene, provides:

(a) Cylinders.

The in-plant transfer, handling, storage, and utilization of acetylene in cylinders shall be in accordance with Compressed Gas Association Pamphlet G-1-1966. n3

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n2 29 C.F.R. 1910.253

n3 Page 9 thereof was received in evidence as P-2.

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6. The Compressed Gas Association Pamphlet [*69] G-1-1966 (P-2) provides:

5.3 Rules for Withdrawing Acetylene from Cylinders.

7. Although 29 C.F.R. 1910.252(a)(2)(iii)(b) requires that acetylene cylinders shall be stored valve end up, 29 C.F.R. 1915.35(a)(q) and 29 C.F.R. 1917.35(a)(9) require that when being transported, moved or stored, acetylene cylinders shall be secured in an upright position, however both of these standards, as does 29 C.F.R. 1910.252(a)(2)(v)(c)(1), require that fuel gas cylinders be placed with valve end up when in use (1915.35(b)(3) and 1917.35(b)(3)). In 29 C.F.R. 1910.252(a)(3)(v)(g) acetylene cylinders and liquified guel-gas cylinder are required to be manifolded in a vertical position (all emphasis added).

8. In spite of the fact that acetylene cylinders present little or no hazard when used in positions varying from the upright or vertical the Secretary's interpretations of the phrase "valve end up" [*70] as it appears in the standard at 29 C.F.R. 1910.252(a)(2)(v)(c)(1), cannot be said to be unreasonable or capricious in view of the fact that fuel-gas cylinders other than acetylene cylinders, are hazardous when used in positions other than vertical or upright. Norweigian Nitrogen Products Co. v. U.S., 288 U.S. 294 (1933); White v. Winchester Country Club, 315 U.S. 32 (1942); Skidmore v. Swift & Co., 323 U.S. 134 (1944); Cf. Secretary v. California Stevedoring Co.,

9. Under the facts of this case, the Secretary's interpretation of the meaning of the phrase in question cannot be held to be binding upon Budd prior to October 20, 1971. 5 U.S.C. Section 552(a)(1)(e); U.S. v. Aarons, 310 F-2d 341 (2Cir. 1962); Kessler v. F.C.C., 326 F-2d 673 (DCCA 1962); Wyman-Gordon Company v. NLRB, 397 F-2d 394 (1 Cir. 1968). See also, Secretary v. California Stevedoring Co., supra.

10. Section 5(a)(2) of the Act requires each employer to "comply with occupational safety and health standards promulgated under this Act." 29 C.F.R. 1910.2(f) defines "standard" to mean "a standard which requires conditions [*71] or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."

11. 29 C.F.R. 1910.132 is a standard, promulgated pursuant to the authority in sections 6(a) and 8(g) of the Act, which became effective on August 27, 1971, and it provides, in pertinent part:

12. It is clear that the standard at 29 C.F.R. 1910.132 requires the employer to provide, require the use of, and maintain in a sanitary and reliable condition, protective equipment, in this case, safety shoes, wherever the same becomes [*72] necessary by reason of hazards of the employment. In addition, the employer is held responsible for the adequacy, proper maintenance and sanitation of such equipment where the employee elects to provide it.

13. Unlike the standards at 29 C.F.R. 1915.83(d) (Ship Repairing), 29 C.F.R. 1916.83(d) (Shipbuilding), 29 C.F.R. 1917.83(d) (Shipbreaking) and 29 C.F.R. 1918.104 (Longshoring), where the employer is merely required to make safety shoes readily available to his employees, the standard sub judice, requires the employer to provide such shoes where necessary. Reasonably construed the standard herein requires that where safety shoes are necessary by reason of hazards of the employment and such shoes are not provided by his employees, the employer would be in violation of the standard if he failed to provide the required safety shoes. n4

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n4 "Provide" means: to supply for use; contribute; furnish; to equip in preparation; to fit out with -- Websters New International Dictionary, Unabridged.

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14. The manner in which [*73] or the places where such shoes shall be worn, or stored or who shall be liable for the cost thereof are not proper subjects for determination under the Act. They are, rather, matters which must be privately resolved by the employer and his employees. Southeastern Michigan Gas Company and Utility Workers of America NLRB-TXD-315-72, Case No. 7-CA-9183, May 14, 1972.

15. It is improper therefore to impose upon the employer's duty to provide safety shoes whenever necessary under the standard at 29 C.F.R. 1910.132(a) and (b), the condition that it is not his obligation to pay for such shoes.

16. The civil penalties proposed by the Secretary in connection with the penalties alleged in Items numbered 1, 3, 5, 15, 18 and 20 in the citation issued on November 4, 1971 as a result of the October 20, 1971, inspection of Budd's premises at Hunting Park Avenue, aforesaid, and the civil penalties proposed in connection with Items numbered 1, 4 and 8 in the citation issued on November 9, 1971, as a result of the October 27, 1971, inspection of Budd's premisies at Red Lion Road, aforesaid, are, under the circumstances of this case reasonable and proper and have been indicated so [*74] to be by Budd.

ORDER

In view of the foregoing and having duly considered the gravity of the violations, the good faith of Respondent, its size, and its history of previous violations and good cause therefore appearing, it is ORDERED that:

1. As to the plant at Hunting Park Avenue, aforesaid, and with reference to the citation issued on November 4, 1971:

a. the allegation that Budd violated the standard at 29 C.F.R. 1910.141(d)(2); and

b. the allegation that Budd violated the standard at 29 C.F.R. 1910.157(a)(2) and (a)(5); and

c. the allegation that Budd violated the standard at 29 C.F.R. 1910.157(d)(4)(iii) and (d)(4)(viii); and

d. the allegation that Budd violated the standard at 29 C.F.R. 1910.27(q)(1); and

e. the allegation that Budd violated the standard at 29 C.F.R. 1910.314(d)(4); and

f. the allegation that Budd violated the standard at 29 C.F.R. 1910.178(p)(1); be and each said allegation is hereby affirmed.

2. As to the plant at Red Lion Road, aforesaid, and with reference to the citation issued on November 9, 1971:

a. the allegation that Budd violated the standard at 29 C.F.R. 1910.157(d)(4)(iii); and

b. the allegation that Budd violated the [*75] standard at 29 C.F.R. 1910.22(a)(1) and (a)(2); and

c. the allegation that Budd violated the standard at 29 C.F.R. 1910.252(b)(4)(ix)(c), be and each said allegation is hereby affirmed.

3. The allegations that Budd violated the standards at 29 C.F.R. 1910.141(d)(3) and 1910.252(a)(2)(v)(c)(1) be and the same are hereby dismissed.

5. Budd's motion to withdraw its Notice of Contest with reference to the alleged violation of the standard at 29 C.F.R. 1910.132(a) as charged in the citation issued on November 4, 1971 and in the citation issued on November 9, 1971, aforesaid, be and the same is hereby denied and hearing thereon shall convene at 10:00 o'clock a.m. on Wednesday, September 13, 1972, in courtroom number 11, United States [*76] Court House, 9th and Market Streets, Philadelphia, Pennsylvania.

6. Budd be and it is hereby assessed and required to pay civil penalties as follows.

a. At its Hunting Park Avenue plant, aforesaid:

(1) for violation of the standard at 29 C.F.R. 1910.141(d)(2), the sum of $15.;

(2) for violation of the standard at 29 C.F.R. 1910.157(a)(2) and (a)(5), the sum of $15.;

(3) for violation of the standard at 29 C.F.R. 1910.157(d)(4)(iii) and (d)(4)(viii), the sum of $24.;

(4) for violation of the standard at 29 C.F.R. 1910.37(q)(1), the sum of $15.;

(5) for violation of the standard at 29 C.F.R. 1910.314(d)(4), the sum of $30.; and

(6) for violation of the standard at 29 C.F.R. 1910.178(p)(1), the sum of $18.

b. At its Red Lion Road plant, aforesaid:

(1) for violation of the standard at 29 C.F.R. 1910.157(d)(4)(iii), the sum of $24.;

(2) for violation of the standard at 29 C.F.R. 1910.22(a)(1) and (a)(2), the sum of $45.; and

(3) for violation of the standard at 29 C.F.R. 1910.252(b)(4)(ix)(c), the sum of $18.

7. Pursuant to the Secretary's motion, filed on January 31, 1971 and heretofore granted on the record, the word "not" in line 2 of paragraph IV(d) of the [*77] Secretary's complaint filed in OSHRC Docket Number 199, be and the same is hereby deleted.