JAMISON BEDDING, INC.

OSHRC Docket No. 2274

Occupational Safety and Health Review Commission

June 17, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Paul L. Brady, dated January 3, 1974, has been before this Commission for review pursuant to 29 U.S.C. 661(i) for more than a year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide the case at this time.

Chairman Moran finds that the case is controlled by Secretary v. Spring Air Mattress Company of Colorado, 14 OSAHRC 209 (1974), and would affirm the Judge's decision. Commissioner Cleary's views are set forth in his separate opinion.

Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

CLEARY, COMMISSIONER: On January 25, 1974, Judge Brady's decision was directed for review before the full Commission in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") to determine whether the Judge erred in vacating the alleged violations [*2] of the standards published at 29 CFR 1910.93(a)(2) n1 and 93(e). n2 Respondent was cited for the violations on the basis of the alleged exposure of employees to concentrations of raw cotton dust in excess of prescribed limits and for failure to determine and implement administrative or engineering controls to rectify the condition.

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n1 The standard limits employee exposure to cotton dust (raw) to an 8-hour time weighted average of one mg./M<3> in any 8-hour workday.

n2 The standard as follows:

To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section.

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Having reviewed the parties' briefs and considered the entire record, I would reverse the Judge's vacating of the citation for serious violation of section [*3] 1910.93(a)(2). His finding of fact that the amount of cotton dust (raw) contained in the samples was not specifically determined is in error.

The disputed issue in this case involves the definition of "cotton dust (raw)," exposure to which in excess of one milligram per cubic meter of air violates the cited standard. The facts resulting in issuance of the citations are not in dispute.

Respondent is a manufacturer of furniture and bedding. Respondent receives large bales of raw cotton wrapped in burlap. After removal of the burlap, the raw material is placed in a willow machine which removes trash and fluffs the cotton. The cotton is then carried by air ducts to a garent machine where it is further cleaned and cotton batting is produced, which is wrapped in burlap and transferred to the mattress department. Test samples were made by an accepted procedure on employees in four job categories -- bale openers, willow machine operators, burlappers, and mattress department employees. n3 Results from the former two categories, based on tests performed on four different dates, revealed cotton dust levels of 8.4, 2.2, 3.9, 4.8, and 5.0 milligrams per cubic meter of air.

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n3 Test results from the latter two categories were rejected for containing excessive burlap and sisal dust and were not the subject of any citation.

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The Administrative Law Judge dismissed the citations because it was not determined precisely what part of the dust sample, contained cotton dust (raw) and what part contained related dusts created in the same manufacturing process. He states,

The standard in question addresses itself to specific amounts of cotton dust (raw) not specific amounts of total dust as may be found in a mattress factory, or some type of cotton processing firm. Therefore on the basis of this record the employer cannot be held in violation thereof when the amount of cotton dust is not actually determined (emphasis added).

What constitutes "cotton dust (raw)" under the standard and the presence of cotton dust (raw) in respondent's plant in amounts far in excess of permissible limits have been established by persuasive evidence. The Secretary's expert witness testified as to the composition [*5] of cotton dust (raw). The testimony, considers the intended meaning at the time the standard was adopted, and is unrebutted except for respondent's assertion, in its reply brief, that there is no accepted meaning of the term. With respect to the adoption of the standard and the nature of cotton dust, the Secretary's witness, an industrial hygienist with considerable experience working on the health implications of exposure to cotton dust, testified as floows:

Q. Would you state, please the basis for the cotton dust standard as we have it today?

A. Cotton dust standard was developed from work done by Roach & Schilling in England, and in about 1960, Roach & Schilling came here to investigate the textile operations here to find out why we had the textile operations but had no prevalence of byssinosis.

They found in their visits to this country that we had about the same instances of byssinosis here as what they had found in England, and as a result of their findings here and in England, The American Conference of Governmental Hygienists Threshold Limits adopted 1.1 milligrams of dust.

Q. What is the basis for the one milligram per cubic meter exposure level?

A. Mr. Roach, [*6] who was a Ph.D. engineer with the Roach and Schilling team, found that from his dust studies in the textile operations the if the total dust was reduced below one milligram per cubic meter, the incidence of byssinosis was reduced to less than five percent, whereas without this, it was 25 to 30 percent.

Q. All right. You made reference to a total dust. Now, for the purposes of the standard, why do we speak in terms of total dust?

A. Well, the causative agent hasn't been isolated. The existing theories are that possibly the vegetation that's associated with the cotton is the carrier of the causative agent, but because we have not --

Q. Mr. Brown, would you identify raw cotton?

A. Raw cotton is the cotton as it exists from the time it comes to the field until such time as it's put through a hot, wet treatment.

Q. All right. Would you identify cotton dust?

A. Cotton dust, as the standard addresses itself to total dust, would involve all dusts involved in these processes.

Q. All right. What might this dust consist of?

A. Vegetation, pieces of stems and pieces of seeds, along with short fibers or lint that came with it (emphasis added).

After qualifying [*7] this witness as an expert on the basis of his familiarity with writings in the field and on the basis of his presence at a cotton dust meeting attended by Drs. Schilling and Roach, the witness was examined as follows:

Q. All right. Based upon your reading and your knowledge in the field, do you know of any intent to exclude any industries that are involved in handling cotton?

A. No. sir.

The witness reiterated that what is contemplated by the standard is total dust collected in the sampling procedure. He asserts that the causative agent of the disease byssinosis had not been isolated and that all dust was intended to be included in the threshold limit value.

Three important points are made by this testimony. One, it is impossible to determine what part of a dust sample made in an industrial rather than a laboratory environment is comprised of pure cotton dust. Two, the standard was adopted on the basis of the relationship between total dust samples and disease in the textile industry, and three, there was no intent to exclude other aspects of the cotton industry n4 from coverage of the standard. Indeed, the standard clearly applies without limitation. Respondent has never [*8] claimed and there is no evidence suggesting that bedding and furniture manufacturers are not subject to the cited standards. Thus, unlike the case of Spring Air Mattress Co. of Colorado, No. 1422 (December 19, 1974), evidence has been adduced in this case to support the theory that raw cotton dust, for purposes of the standard, includes total dust associated with cotton processing. This evidence is not rebutted on the record.

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n4 Respondent concedes that it is in the cotton industry.

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Respondent maintains that it did not, and could not with the exercise of reasonable diligence, have known of the presence of the violation. n5 The violation in this case concerns excessive levels of cotton dust. Knowledge of byssinosis or of any ailment resulting from this violative condition is irrelevant to knowledge of the violation. The harmful effects or hazardous conditions resulting from violation of a standard have been considered by the framers of the standards and constitute the basis for the requirements. [*9] Respondent was aware of the presence of cotton dust in some quantity in its plant. It is in the business of processing cotton. Air contamination of some degree is clearly visible. In these circumstances the exercise of reasonable diligence requires that respondent test its plant atmosphere to determine whether dust levels exceed legal limits. n6 Respondent conducted no such tests in its plant.

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n5 See section 17(k) of the Act.

n6 Chief Judge Mehaffy, speaking for the U.S. Court of Appeals for the Eighth Circuit in a case involving the general duty clause [section 5(a)(1)] of the Act, states, "A violation occurs whenever an employer fails to take reasonable precautionary steps to protect his employees from reasonably foreseeable 'recognized hazards'. . . ." Brennan V. O.S.H.R.C. & Vy Lactos Laboratories, Inc., 494 F.2d 460, 463 (8th Cir. 1974).

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Respondent asserts in his reply brief that the standard is too vague to be enforceable. Respondent must of course raise any objection that it has before the Commission [*10] if it is to be preserved for possible judicial scrutiny. See section 11(a) of the Act. But this does not necessarily mean that the Commission has jurisdiction to consider the issue. Cf. Todd v. S.E.C. 137 F.2d 475 (6th Cir. 1943). The gist of the Commission's jurisdiction is review of contests of the Secretary of Labor in citations and proposed penalties. U.S. Steel, Nos. 2975 & 4349 (Nov. 14, 1974) (concurring opinion). But assuming arguendo that such jurisdiction exists, I would conclude that the standard is broad, but gives adequate notice that all dust created in processing cotton should be measured in complying with the standard.

Finding cotton dust (raw) to include total dust created in the processing of cotton and levels of such dust in respondent's facility being substantially in excess of the permissible level, I would conclude that respondent is in violation of section 1910.93(a)(2), as alleged.

The issue of whether respondent is in violation of section 1910.93(e) was not decided by the Administrative Law Judge. Rather, that citation was vacated on the basis of the conclusion that employees were not exposed to excessive amounts of [*11] cotton dust.

Although I have been unable to persuade my colleague to accept the foregoing views, I have nevertheless agreed not to defer our disposition of this case until the division of the Commission can be resolved, because this enforcement action was commenced in early 1973 and a decision at this time will permit the Secretary of Labor to adopt promptly an appropriate course of action as the result of Spring Air Mattress and this case.

[The Judge's decision referred to herein follows]

BRADY, JUDGE: This proceeding is brought pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereinafter referred to as the Act) to contest a citation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to Section 9(a) of the Act. The citation which was issued February 13, 1973, alleges that as a result of an inspection of Respondent's workplace on Nashville Highway, Franklin, Tennessee, Respondent violated Section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated by the Secretary pursuant to Section 6 thereof. A notice of proposed penalty was issued with [*12] the citation.

The Secretary alleges that on or about December 28, 1972, Respondent violated the standards codified at 29 CFR 1910.93(a)(2) and 29 CFR 1910.93(e).

Jamison Bedding, Inc., is a corporation having a place of business on Nashville Highway, Franklin, Tennessee where it is engaged in the manufacture of furniture and bedding. The hearing was held May 29, 30, 1973, at Nashville, Tennessee, and no additional parties sought to intervene. At the close of Complainant's case Respondent declined to offer any evidence but chose to rely on the evidence of record.

ISSUES

The issues to be determined in this proceeding relate to whether the aforementioned standards have been violated. If the violations occurred, the question arises as to whether an alleged violation is of a serious nature under the criterion of Section 17(k) of the Act. If Respondent is adjudged in violation of the standard as aforesaid, a determination must be made as to whether the penalty proposed is appropriate.

Alleged Violation of 29 CFR 1910.93(a)(2)

(2) An employee's exposure to any material in table G-1, the name of which is not preceded by "C," in any 8-hour work shift of a 40-hour work week, [*13] shall not exceed the 8-hour time weighted average given for that material in the table.

The alleged violation is described in the Citation as follows:

Employees were exposed to an 8-hour time weighted average concentration of cotton dust (raw) in excess of the limit of 1.0 milligram per cubic meter given in Table G-1. Example: Bale opener -- 4.8 milligrams per cubic meter, Willow operator -- 4.9 milligrams per cubic meter.

Mr. Milton Smith, Environmental Engineer, Department of Public Health, State of Tennessee, testified as to Respondent's operations, and the conditions under which dust samples were taken at its work place (Ex. 1-5). He explained that the department herein involved produces cotton batting or cotton felt, from raw cotton. Bales of raw cotton weighing approximately 900 lbs. are broke open and the cotton is placed in a willow machine where trash is removed, and it is opened and fluffed. The cotton is then carried through air ducts to the garnet machine where more trash is removed, before the cotton batting is produced. The batting is then rolled, wrapped in burlap, and taken to the mattress department.

Mr. Smith further described the equipment, [*14] and outlined the accepted practice and procedure for taking cotton dust samples, as was followed in this case. He also explained the method of taking and measuring the dust samples. The dust samples taken from the bale opener averaged 4.8 milligrams per cubic meter. The samples from the willow machine operator averaged 4.9 milligrams per cubic meter. Thus, it is asserted that a Citation for serious violation was issued because the employees were subjected to a level of exposure which exceeded the standard prescribing a limit of 1.0 milligrams per cubic meter for cotton dust, and sufficient administrative or engineering controls were not present. He did, however, describe some machinery which was in the nature of engineering controls, such as three ceiling fans above the bale opening and willow operations. Also, there was a type of exhaust system over the willow and garnet machines to remove trash and dust.

On cross examination Mr. Smith stated that he observed the bales of cotton being brought in. The bale opener cut the straps which bound the burlap about the cotton, and placed the burlap in stacks. The bales of cotton contained bits of trash, raw cotton, and seeds. Dust [*15] was observed in this area.

It was brought out that samples were taken of the "burlappers," and from other employees in the matress department. The samples of the "burlappers" were rejected because it was believed they were receiving more burlap dust than cotton dust. In the case of the mattress department employees, the samples were rejected because it was believed they were receiving as much sisal dust as cotton dust, and that it is impossible to distinguish between the two.

The point was made that the burlapping operation is approximately 30 to 50 feet from the bale opening and willow operations, which are adjacent to each other. Here, rolls of cotton are wrapped in sheets of burlap, and it appeared to Mr. Smith that more burlap was used in the burlapping area than in the bale-opening area. The samples were a darker color than those received at the bale-opening, and willow operating stations.

Mr. Jack Tyner, an analytical chemist, who performed the analyses of the dust samples herein, testified that he made no determination of the composition of the dust.

Mr. Cois M. Brown, an Industrial Hygienist, stated that raw cotton is cotton as it exists from the time it [*16] comes from the field until it is put through a hot wet treatment, and that cotton dust included all dust resulting from the various processes. Also, he stated that in the manufacturing of mattresses, the operations are of a very dusty character including dust coming from several sources associated with waste. He speculated that burlap might be considered part of the total dust involved in the cotton process, but not part of the cotton product, and in utilizing a total dust sample the various components cannot be isolated as herein.

Complainant alleges that there was a substantial probability that death or serious physical harm could result from Respondent's employees exposure to a time-weighted average concentration of cotton dust (raw) in excess of the limit of 1.0 milligram per cubic meter as set forth in the regulation.

The issue which requires resolution with regard to the standard at 29 CFR 1910.93(a)(2), relates to whether complainant has clearly shown the employees were exposed to such dust in the amounts alleged, which would be injurious to their health. It must be concluded from complainant's evidence that it has failed in this endeavor.

The method of sampling and the [*17] accuracy of the results are not in question. However the composition of the samplings has not been accurately determined in order to establish the presence of cotton dust in any specific amount. Mr. Smith acknowledged that dust other than raw cotton dust was present and would appear on the filters used in the samplings. Also, that there is no way to separate the other dust from the raw cotton dust on the filter. Mr. Tyner the chemist, stated that the chemical composition was not determined, but all of the dust is weighed together.

There is no reason to doubt the testimony of Mr. Brown as it relates to raw cotton and raw cotton dust, however, Mr. Smith's testimony revealed that some samples were rejected because of the burlap content. The test showed concentrations of 3.2 and 4.3 milligrams per cubic meter. These samples were taken in an area approximately 30 to 50 feet from the area the test samples were taken, and admittedly where burlap was in constant use. Undoubtedly burlap dust was included in the samples used in this case as well as dust from the "trash" involved, and other foreign matter.

An attempt to define cotton dust (raw) will not be undertaken here, [*18] however the evidence points up the ambiguity in use of the term for the purpose of this case.

The standard in question addresses itself to specific amounts of cotton dust, (raw) not specific amounts of total dust as may be found in a mattress factory, or some type of cotton processing firm. Therefore on the basis of this record the employer cannot be held in violation thereof when the amount of cotton dust is not actually determined.

Further, the Respondent is charged with a serious violation because as testimony indicated, exposure to an excessive amount of cotton dust could result in the disease of byssinosis which in turn could lead to death. It is indicated from the testimony that the causative agent of such disease has not been isolated, but that present theories suggest the vegetation associated with the cotton in the carrier of the agent.

Certainly, before finding a violation of the particular standard as alleged, the type of injurious substance must be more clearly identified, and the amount more precisely established, than borne out by the record in this case.

Alleged Violation of 29 CFR 1910.93(e)

The standard in pertinent part provides that:

To achieve [*19] compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section.

It is alleged in the Citation that:

Feasible administrative or engineering controls were not determined and implemented where employees were exposed to cotton dust (raw) in excess of the permissible limit.

The alleged violation cannot be sustained in view of complainant's failure to establish that the employees were exposed to cotton dust (raw) in excess of the permissible limits as set in 29 CFR 1910.93(a)(2) above.

FINDINGS OF FACT

1. Jamison Bedding, Inc., is a corporation, having a place of business at Franklin, Tennessee where at all times hereinafter mentioned it was engaged in the business of manufacturing furniture and bedding.

2. That dust samples taken at Respondent's place of business, and the subject of this proceeding, showed an amount of dust present in excess of the limit set [*20] forth in the standard at 29 CFR 1910.93(a)(2).

3. That the amount of cotton dust (raw) contained in such samples was not specifically determined.

4. Respondent's employees were not exposed to a time weighted average concentration of cotton dust (raw) in excess of the limit set forth at 29 CFR 1910.93(a)(2).

CONCLUSIONS OF LAW

1. Jamison Bedding, Inc., at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein, pursuant to Section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a) of the Act.

3. Respondent was not in violation of the standard at 29 CFR 1910.93(a)(2) as charged in the citation.

4. Respondent was not in violation of the standard at 29 CFR 1910.93(e) as charged in the citation.

ORDERED

1. That the citation for serious violation and proposed penalty is hereby vacated.

2. That citation number 1, item number 1 and the proposed penalty [*21] is hereby vacated.