P. & M. SALES, INC.

OSHRC Docket No. 3443

Occupational Safety and Health Review Commission

May 3, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor

Richard N. Orin, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, CHAIRMAN:

A report of Judge Jerome C. Ditore, dated April 11, 1974, is before this Commission for review pursuant to section 12(j) of the Act. n1 At issue is (1) whether the Judge properly found there to be a timely notice of contest of the citation and (2) whether he acted properly in vacating an alleged violation of section 5(a)(2) of the Act for failure to comply with the occupational safety and health standards appearing at 29 C.F.R. 1910.94(d)(9)(v) and 1910.133(a)(1). n2 For the reasons which follow, we affirm.

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n1 Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.)

n2 1910.94(d)(9)(v) provides:

(v) Whenever there is a danger of splashing, for example, when additions are made manually to the tanks, or when acids and chemicals are removed from the tanks, the employees so engaged shall be required to wear either tight-fitting chemical goggles or an effective face shield. See 1910.133.

1910.133 provides:

(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that car be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

[*2]

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Following an inspection by one of the Secretary's industrial hygienists, Respondent received a citation for seven nonserious violations of the Act, and a notification of proposed penalties. Respondent filed a timely notice of contest limited to the penalties proposed for items two through seven. Whereafter, the Secretary issued his complaint which the Respondent answered with a general denial.

During the hearing, the Secretary's attorney told the presiding judge that the Secretary had received a further "communication" n3 from the Respondent indicating that the Respondent also wished to contest the citation. He then stated that the "Secretary will for the purposes of this hearing only, deem their notice of contest as a . . . contest [of the citation] as well as the penalties."

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n3 According to the Secretary's brief on review, the communication was made orally.

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If a citation is not contested within 15 working days from the receipt [*3] of the complaint's penalty notification, it becomes a final order of the Commission by operation of law. 29 U.S.C. 659(a). In the instant case, Respondent filed a timely notice of contest addressed to the penalties, and contemporaneously, orally notified the Secretary that it wished to contest the merits of the citation. While this is not the preferred way of contesting a citation, consistent with past precedents we will give the benefit of the doubt to the respondent and hold that the Judge had jurisdiction over the citation. n4 See, e.g., Brennan v. OSHRC and Bill Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973); Secretary v. James Tice, d/b/a Tice Industries, 15 OSAHRC 108, BNA 2 O.S.H.C. 1489, CCH E.S.H.G. para. 19,222 (1975); Secretary v. Eastern Knitting Mills Inc., 13 OSAHRC 176, 177-182, BNA 1 O.S.H.C. 1677, CCH E.S.H.G. para. 17,691 (1974); Secretary v. H.E. Lowdermilk Company, 7 OSAHRC 987, BNA 1 O.S.H.C. 1663, CCH E.S.H.G. para. 17,656 (1974). See also Atlantic Marine, Inc., v. OSHRC, 524 F.2d 476 (5th Cir. 1975).

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We do not apply that rule here in view of the special circumstances of this case.

[*4]

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Having decided that we have jurisdiction to decide the merits of this case, we turn now to the Judge's vacation of the alleged violation of 1910.94(d)(9)(v) and 1910.133(a)(1). Both the citation and complaint alleged that Respondent had violated these standards in that it had failed "to provide eye and/or face protection for employees at electroplating tanks." (emphasis added).

Respondent established at the hearing, and Judge Ditore found, that Respondent provides protective eye and face equipment for its employees. Noting that Respondent had only been charged with a failure to provide this equipment, Judge Ditore vacated this item of the citation.

On review, the Secretary contends that Respondent was cited for failure of its employees to wear the protective eye and face equipment and not just for a failure to provide the equipment. In this regard, the Secretary notes that the standards alleged to be violated require the wearing of the equipment as well as its provision. Accordingly, he argues that the Judge erred in vacating this item of the citation. We disagree.

As previously stated, [*5] the citation and complaint alleged that Respondent had failed to provide protective equipment. No mention was made of Respondent's failure to require the use of this equipment. We believe that in preparing its defense, Respondent was entitled to rely on the language of the citation and complaint. Although, as the Secretary contends, the cited standards do have language referring to the use, as well as provision of protective equipment, it is not uncommon for the Secretary to cite an employer for violation of only a portion of a paragraph in any particular standard. Accordingly, we find that Respondent was not put on notice that its failure to require the use of the protective equipment would be an issue at the hearing. n5 We believe that to now allow the Secretary to change his theory would be prejudicial to Respondent.

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n5 In reaching our conclusion we have considered those portions of the record quoted by our dissenting colleague. Unlike him we do not think the quoted statements evince an intent on the part of both parties to shift the issue from one of provision to one of use. The quoted statements constitute the total record apart from the Secretary's post hearing arguments on the question of amending the pleadings. The statements of respondent's president and counsel can just as easily have been made for the purpose of showing respondent's good faith for penalty purposes as for any other reason.

[*6]

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Accordingly, the Judge's decision is affirmed. So ORDERED.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

Although I agree with the disposition of this case, I am constrained to comment on several matters that are mentioned in the lead opinion.

Footnote 3 states that the complainant's review brief indicates that respondent's communication contesting the citations was oral. It is readily apparent that this unsupported assertion is not "evidence" and, therefore, I have not relied on it in my consideration of this case.

The lead opinion implies that the respondent's communication to the complainant was made within 15 working days from the respondent's receipt of the complainant's penalty notification. The truth of the matter is that the record fails to establish that fact. However, under such circumstances, I believe that it is appropriate to give the respondent the benefit of the doubt in accordance with the general principle that statutes granting a person the right to a hearing should be liberally construed.

Since this decision does not fully state all matters covered by Judge Ditore's decision, the [*7] same is attached hereto as Appendix A.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

While continuing to hold the view expressed in my concurring and dissenting opinion in Turnbull Millwork Co., BNA 3 OSHC 1781, CCH 1975-76 OSHD para. 20,221 (1975), I agree with my colleague that the contemporaneous nature of the filing of the notice of contest and the oral communication were sufficient to explain the employer's intention to contest the underlying citation as well as the proposed penalty. n6 I do not agree, however, that the Judge properly vacated item 6 of the Secretary's citation.

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n6 The facts are distinguishable from those in the recent Commission decision in Donald K. Nelson Construction, Inc., BNA 3 OSHC 1914, CCH 1975-76 OSHD para. 20,299 (1976). The employer in Nelson attempted to contest orally the citation and proposed penalty. It filed no written notice of contest of any kind within the statutory 15 working day period.

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Respondent is a toy and doll manufacturer. It was cited by the Secretary in [*8] the alternative under the standards at 29 CFR 1910.94(d)(9)(v) and 1910.133(a)(1). n7 An other than serious violation was alleged.

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n7 The standards read as follows:

1910.94 Ventilation

* * *

(d) Open surface tanks

* * *

(9) Personal protection

* * *

(v) Whenever there is a danger of splashing, for example, when additions are made manually to the tanks or when acids and chemicals are removed from the tanks, the employees so engaged shall be required to wear either tight-fitting chemical goggles or an effective face shield. See 1910.133 [Emphasis added.]

1910.133 Eye and face protection

* * *

(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazarous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards. [Emphasis added.]

[*9]

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Two employees of respondent were observed adding and removing materials from the acid tanks without the benefit of eye or face protection. The record reveals that such protection is made available by respondent. While the citation at issue charges respondent with a "[f]ailure to provide eye and/or face protection," it also notes the standards upon which the charge is based and the location of the alleged violation, i.e., the plating area. These standards clearly state that the use of such protection is "required."

Under both the Federal Rules of Civil Procedure and the Administrative Procedure Act, 5 U.S.C. 551 et seq., the system of "notice pleading" is employed. Allis-Chalmers Corp., 20 OSAHRC 546, BNA 3 OSHC 1629, CCH 1975-76 OSHD para. 20,065 (1975). The United States Court of Appeals for the District of Columbia Circuit, in National Realty & Constr. Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973), noted the application of the "notice" system of pleading. It said:

So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by [*10] the hearing agency even though the formal pleadings did not squarely raise the issue. This follows from the familiar rule that administrative pleadings are very liberally construed and very easily amended. The rule has particular pertinence here, for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors. [Footnotes omitted.]

489 F.2d at 1264.

By referring to and specifically citing two standards which require the use of eye protection and the location of the alleged violation, n8 the citation gave respondent "fair notice" that the Secretary sought an abatement order directing it to require the wearing of eye protectors.

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n8 See e.g., General Electric Co., 17 OSAHRC 49, 63 BNA 3 OSHC 1031, CCH 1974-75 OSHD para. 19,567 (1975).

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If, however, there were a defect as to notice in the citation any doubt as to the purpose [*11] of the hearing was removed during its course. Northwestern Bell Telephone Co. v. Nebrasks State Ry. Commission, 297 U.S. 471, 476 (1936). At the hearing, the industrial hygienist who conducted the inspection testified that workers were "removing material and adding material to the plating tanks without the use of goggles or face shields." Tr. 32, (emphasis supplied). When he pointed this out to respondent's plant manager, he was told that the solution was too diluted to necessitate the use of such protection. Thus in the hearing, the point was made and evidence was introduced, without objection, that respondent's policy was not to require such protection because it felt that no hazard was present. During respondent's case-in-chief, not only was this rationale repeated, but the respondent's president spoke directly to the question of whether employees used eye protection:

. . . I agree [that this solution] may cause irritation [in the eyes], but it is not detrimental to the eyes.

I'm getting around your question a bit, but I must say with respect to the man, and there is only one man who operates these tanks, and he wears a face shield, he wears goggles and [*12] he wears rubber gloves and apron. He wears acid resistant clothes. He wears gloves at all times.

Tr. 68-69. On cross-examination, respondent's president insisted that the practice was required:

A . . . It is not a normal practice for any employee not to be wearing face masks or goggles.

Q In other words, you normally would like them to wear the face masks; is that true?

A We demand that they do.

Q If they didn't on this particular day that would be a violation of your own rule?

A It would be a rule that we often have brought up in contest with our union. That is any employee [who] is not wearing goggles and face protectors if necessary we should have the right to fire them on the spot. This has been a point in question with us for many years.

Tr. 82. Judge Ditore also focused on whether eye and face protection was used (as opposed to merely being provided):

Judge Ditore: When [the employee at the tank] works, he wears the goggles and the protective equipment that you have testified to?

The Witness: Yes, sir.

In fact, the testimony at the hearing was focused almost entirely on the "use" question. Indeed, the respondent's attorney recognized that, aside from the pleadings, [*13] this was the issue litigated at the hearing. In his summation, he framed the issues as follows:

In reference to allegations relating to eye and face equipment in which there is a reference here, I think it is that the Respondent failed to provide eye or face protection at the electro plating tanks. This is the requirement in the code. That the employer shall make conveniently available the type of protector suitable to work to be performed and employees shall use such protectors.

Furthermore, that suitable eye protectors shall be provided.

There has been testimony that these protectors were conveniently available and provided. That the employees were required to use these protectors. [Tr. 111.]

In reference to again the eye or face protector, employees and chemicals, I guess it would be in F and G of the allegations of the violations, there is a provision in the code which says that the employee so engaged shall be required to wear either tightfitting chemical goggles and an effective face shield.

Agains I may repeat this equipment was provided and employees were required to use this equipment. [Tr. 112-113.]

The attorney for the Secretary joined in this assessment of [*14] the issues in contention:

With regard to eye-face material, the Secretary did not cite -- excuse me, The compliance officer has testified that he observed people working there without the equipment. While it may have been available it was the duty of the Respondent to make sure that the equipment was worn.

That is the violation itself, not the fact that the Respondent didn't buy it but that the employees weren't wearing it.

Neither the Judge nor the respondent indicated their disagreement with this view of the case. On review, respondent does not suggest that it was prejudiced by the trial of the "use" issue. Indeed, the Judge himself recognized (Judge's Decision at 17-18) that the "use" issue was actually tried. n9 Under these circumstances, the notice provisions of the Administrative Procedure Act, 5 U.S.C. 554(b)(3) have been fully served, and an amendment of the pleadings is permitted. See e.g., Montana Power Company v. F.P.C., 185 F.2d 491, 497 (1950). The same may be said for an amendment to the pleadings to conform to the evidence under Fed. R. Civ. P. 15(b). See e.g., CPL Constructors, BNA 3 OSHC 1865, CCH 1975-76 OSHD para. 20,251 (1975); [*15] D. Federico Co., Inc., BNA & OSHC 1970, 1972, CCH 1975-76 OSHD para. 20,422 (1976).

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n9 As already noted, the Judge vacated the citation on the ground that the "use" issue was not within the pleadings.

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The evidence clearly shows that the acid solutions here were within the contemplation of the standards, and that respondent's employees did not use eye and face protectors. Indeed, several unprotected employees were working in plain sight of respondent's plant manager. Obviously, the respondent's alleged work rule was not enforced, at least on the day of the inspection. This is sufficient to prove noncompliance with both standards. See General Electric Co., at note 3, supra.

I would affirm the citation on its merits. Accordingly I respectfully dissent.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor

Stephen D. Dubnoff, for Complainant

Richard N. Orin, for Respondent

Ditore, J.:

PRELIMINARY STATEMENT

This is a proceeding pursuant to [*16] Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereinafter called the Act), contesting a nonserious Citation issued by the Complainant against the Respondent under the authority vested in the Complainant by Section 9(a) of the Act.

The Citation alleges that as a result of the inspection of a workplace under the ownership, operation and control of the Respondent, located at 252 C. Lake Avenue, Yonkers, New York, and described as "Toys and Dolls Manufacturer", the Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation issued May 29, 1973, alleges that nonserious violations resulted from Respondent's failure to comply with standards promulgated by the Secretary by publication in the Federal Register on October 18, 1972 (37 F.R. 22189, 22108 and 22156), and codified in 29 CFR 1910.107(f)(3), 1910.107(g)(3), 1910.22(a)(2), 1910.22(a)(1), 1910.94(d)(9)(v) or 1910.133(a)(1), and 1910.94(d)(9)(vii). *

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* A nonserious violation (item 1 of Citation) of 29 CFR 1910.252(f)(3)(ii) and the penalty proposed were not contested by Respondent. (T. 8-9)

[*17]

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The descriptions in the Citation for the nonserious violations, and the standards as promulgated by the Secretary are as follows:

Item 2 of Citation - Description - 29 CFR 1910.107(f)(3)

"Failure to keep sprinkler head in spray booth free from deposits. Location: Lacquer spray booth."

Standard as promulgated

"(3) Cleaning of heads. Sprinklers protecting spraying areas shall be kept as free from deposits as practical by cleaning daily if necessary. (See also paragraph (g) of this section)"

Item 3 of Citation - Description - 29 CFR 1910.107(g)(3)

"Failure to dispose of rags and paper in spray booth. Location: Lacquer spray booth."

Standard as promulgated

"(3) Residue disposal. Residue scrapings and debris contaminated with residue shall be immediately removed from the premises and properly disposed of. Approved metal waste cans shall be provided wherever rags or waste are impregnated with finishing material and all such rags or waste deposited therein immediately after use. The contents of waste cans shall be properly disposed of at least once daily [*18] or at the end of each shift."

Item 4 of Citation - Description - 29 CFR 1910.22(a)(2)

"Failure to maintain the floor of the work room in a clean and dry condition. Location: Plating and spraying area."

Standard as promulgated

"(2) The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition. When wet processes are used, drainage shall be maintained, and false floors, platforms, mats, or other dry standing places should be provided where practicable."

Item 5 of Citation - Description - 29 CFR 1910.22(a)(1)

"Failure to keep work platform in an orderly condition. Location: Spraying area."

Standard as promulgated

"(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition."

Item 6 of Citation - Description - 29 CFR 1910.94(d)(9)(v) or 1910.133(a)(1)

"Failure to provide eye and/or face protection for employees at electric plating tanks. Location: Plating area."

Standard as promulgated

1910.94(d)(9)(v)

"(v) Whenever there is a danger of splashing, for example, when additions are made [*19] manually to the tanks, or when acids and chemicals are removed from the tanks, the employees so engaged shall be required to wear either tight fitting chemical goggles or an effective face shield. See Section 1910.133."

1910.133(a)(ii)

"(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurius radiation, or a combination of these hazards."

Item 7 of Citation - Description - 29 CFR 1910.94(d)(9)(vii)

"Failure to provide deluge showers and eye flushes in areas where chemicals may splash upon employees. Location: Plating area."

Standard as promulgated

"(vii) Near each tank containing a liquid which may burn, irritate, or otherwise be harmful to the skin if splashed upon the [*20] worker's body, there shall be a supply of clean cold water. The water pipe (carrying a pressure not exceeding 25 pounds) shall be provided with a quick opening valve and at least 48 inches of hose not smaller than three-fourths inch, so that no time may be lost in washing off liquids from the skin or clothing. Alternatively, deluge showers and eye flushes shall be provided in cases where harmful chemicals may be splashed on parts of the body."

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated May 29, 1973, from Nicholas A. DiArchangel, Area Director of the New York Area, that the Occupational Safety and Health Administration, United States Department of Labor, proposed to assess the following penalties:

Citation

Proposed Penalty

Item 2

$35

Item 3

$35

Item 4

$25

Item 5

$30

Item 6

$35

Item 7

$35

The case was heard at New York, New York, on September 17, 1973.

ISSUES

1. Whether Respondent violated one or more or all of the standards set forth in items 2 through 7 of the Citation.

2. If Respondent violated one or more or all of the standards cited, whether the respective proposed penalty [*21] or penalties was or were reasonable.

STATEMENT OF THE EVIDENCE

A. STIPULATIONS

The following facts are herein stipulated:

Respondent, P. & M. Sales, Inc., is a New York corporation with its place of business at 252 C. Lake Avenue, Yonkers, New York; Respondent purchases materials, and ships finished goods outside the State of New York, and is in a business which affects interstate commerce; Respondent small in size, with a net worth for the year 1972 of $72,000, employed about 24 employees during the year preceding the alleged violations; Respondent posted all relevant papers and documents at its work site; Respondent contests only items 2, 3, 4, 5, 6 and 7 of the Citation, and the proposed penalties for these alleged violations. (T. 5-10) *

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* Reference Key: T. refers to pages of minutes of hearing transcript.

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B. COMPLAINANT'S CASE

Otto White, Jr., a senior industrial hygienist for the Occupational Safety and Health Administration inspected Respondent's workplace on April 24, 1973. (T. 11-14, [*22] 47)

Officer White held an opening conference with Charles Sivelle, Respondent's owner. Present at the conference was Mr. Genaido, Respondent's plant manager who accompanied White on his walkaround inspection, and a Mr. Kovac, the union shop steward. (T. 13-17)

Respondent's plant was located on the first floor of a wood frame building. The ceilings were either of tin or sheet metal, and the floors were concrete. (T. 17, 52) Respondent was a toy and doll manufacturer. (T. 17-18)

In Respondent's spraying operations area, Officer White observed a lacquer spray booth. This booth was not at the time in operation. (T. 19, 20, 23, 25, 52)

On the booth's fire extinguisher sprinkler head, Officer White observed a yellowish sticky residue or accumulation which covered the metal part of the head. (T. 20, 21, 23, 25, 52)

White who made this observation about 2:00 p.m., was told by Mr. Genaido, who accompanied him, that the sprinkler head was cleaned regularly; that the lacquer spray booth was used that morning for about one to one and a half hours; and that the residue on the sprinkler head was from that morning's operation. (T. 22-23, 26, 52) Officer White stated that the standard [*23] (29 CFR 1910.107(f)(3)) required all sprinkler heads be kept free from residue, and operational in case of fire. (T. 22, 24)

Officer White also observed in the lacquer spray booth, rags soaked with methyl ethyl ketone, a flammable organic solvent used for cleaning purposes. (T. 20) (29 CFR 1910.107(g)(3))

On the floor of the spraying-electroplating area, Officer White observed a considerable amount of paper debris, i.e., soda and coffee cups, which overflowed onto the floor from two filled trash containers, and upon which employees were walking. (T. 26-27, 29, 30-31) There was also water on the floor between the spraying and electroplating areas. (T. 26-27) Officer White stated that 29 CFR 1910.22(a)(2) required all floors of a workplace be kept in an orderly and dry condition to prevent slipping. (T. 26-27).

In this same area, there were ten to twelve wooden pallets or walkways, raised four to five inches from the floor. One pallet contained a broken slat which Officer White believed violated 29 CFR 1910.22(a)(1). (T. 27, 28, 55)

In the electroplating area, there were tanks containing either copper sulphate salts in an acidic solution of hydrochloric acid, or solutions [*24] of sulphate of nickel. Officer White observed several employees removing and adding material to these tanks without the use of goggles or face shields. (T. 32, 34, 35) Mr. Genaido stated to Officer White that the solutions were weak and diluted. He demonstrated by placing his hand in the solutions. (T. 32-33) It was Officer White's opinion that these solutions although not injurious to an employee's hands, could be injurious to a worker's eyes. (T. 33, 35) Officer White inquired of Mr. Genaido if there were eye and face wash facilities available. Mr. Genaido stated there was a rest room where employees could wash. (T. 33) This rest room was located 50 to 75 feet away and had running water but no eyewash facilities. (T. 36) Officer White testified that the hazard of possible splashes of chemical solutions into an employee's eyes required eyewash facilities to be located in the immediate work area. He believed that a sink with running water and attached hose would satisfy the standard but that the rest room facilities were too far for immediate action and accessibility. (T. 36, 37) Officer White observed no sinks, showers, or hoses in the electroplating area. (T. 57-58, 62) [*25]

The penalties proposed for items 2 through 7 of the Citation were based on the gravity of the violations plus allowance of 20% for prior history, 20% for good faith, 5% for size, and 50% for abatement. (T. 41-47)

Respondent made no motions at the end of Complainant's case. (T. 63)

C. RESPONDENT'S CASE

Charles Sivelle, Respondent's owner and president, stated that his plant was located in a poured concrete building, with six inch concrete ceilings. The spraying-electroplating area was about 5,000 square feet and was enclosed by concrete. (T. 65)

The lacquer spray booth was a three-sided structure, with an exhaust fan which collected the fumes from the spraying operation. The booth contained a three-foot high work area where the operator kept his wiping cloths and lacquering materials. These materials were removed at the end of the work day when the area was cleaned. (T. 65, 66)

The fire extinguisher sprinkler head was an integral part of the spray booth. (T. 66) The head had a center which melted at low temperature causing water to issue from the center and from small holes around the center. The metal head of the sprinkler had a cover. During the lacquer spraying [*26] operation, a red dye is used. Some of this red dye accumulates on the sprinkler head cover during the spraying operation. When the head is cleaned the red color changes to yellow. (T. 66, 67) Normally the spray booth is cleaned at the end of each work day. Generally it is not cleaned at the end of the morning operations because there may be some further work in the afternoon. (T. 67)

Respondent's process is electro-forming not electroplating. In this process, a vinyl form is placed in an electro-forming tank. The tank contains a water solution of copper or nickel sulphate. The electro-forming copper solution is composed of 32 ounces per gallon of a copper sulphate salt and 4 ounces of sulphuric acid. The nickel electro-forming solution is composed basically of boric acid. The two solutions are about equal in strength to some type eyewash solutions.

The vinyl forms placed in the tanks may stay there for six or seven days without attention. (T. 67, 68, 72) One employee operates the tanks, and is required to wear a face shield, goggles, rubber gloves and apron, and acid resistant clothes. (T. 69, 82, 85) These tanks are about ten feet long and rubber lined, and are analyzed [*27] once a week for acid content. (T. 84, 85)

In the electro-forming area, there are at least five wash tubs with attached garden hoses and running water located within 15 feet of the electro-forming tanks. There also was first aid equipment and eyewash in this area. (T. 71) Three employees work in the spraying section, and one in the electro-forming section.

There are two to four lined garbage cans which are emptied twice a day. (T. 72, 73, 75, 86) The cartons observed by Officer White contained vinyl material to be used in the manufacturing process, and did not contain debris. (T. 73, 81) A laundry machine where contaminated wiping cloths are stored for cleaning and reprocessing is also located in this area. (T. 73, 74) The wiping cloths observed by Officer White, in the lacquer spraying booth were used in that day's work, and were to be collected at the end of the work day. (T. 75)

In this same area, there are fourteen wooden pallets or duck boards which are used because of water on the floor. (T. 86) Between the spray booths and the electro-forming area, there is a section of the floor (a corridor) without duck boards. This floor section is washed down twice a day to remove [*28] spillage from the electro-forming tanks or from the spraying operations, and is a part of Respondent's operation. Employees are equipped with gear which protect their feet from getting wet. No worker, during the 35 years of Respondent's business, has ever slipped on the water. (T. 86, 88, 89)

ANDREW KOVAC

Respondent's machinist maintenance man, and union shop steward testified that he met Officer White, and informed White that the spraying and sprinkler areas were cleaned at the end of the work day; and that all garbage bags were collected, and replaced with new liners at the end of the work day. (T. 90, 91)

D. REBUTTAL

Officer White stated that to the best of his knowledge he did not observe, and was not looking for, wash tubs, or garden hoses; and that no one told him such wash tubs were available. (T. 94, 96, 103) He further stated that the exact color of the sprinkler head was not fresh in his mind. He believed it was yellow but he could not say with certainty that it was either yellow or red. (T. 96, 97) Although he could have tested the sprinkler head, he did not do so. He reiterated that there was an accumulation of residue on the sprinkler head. (T. [*29] 98-99, 104)

He observed no commercial type garbage cans with plastic liners in the spraying-electro-forming area where the debris was located. (T. 99, 100)

OPINION

Respondent was issued a nonserious Citation for seven violations (numbered items 1 through 7) of 29 CFR Part 1910. (Citation) Respondent contested items 2 through 7, and the respective penalties proposed.

Item 2 of the Citation - 29 CFR 1910.107(f)(3)

Respondent was cited for violating the above standard on the ground that it failed to keep a fire extinguisher sprinkler head in a lacquer spraying booth, free of lacquer deposits. (Citation) The standard (29 CFR 1910.107(f)(3)) requires that sprinklers protecting spray areas "be kept as free from deposits as practical by cleaning daily if necessary".

Complainant's witness, Officer White, testified that the sprinkler head had a yellowish residue on it which appeared sticky and covered the metal part of the head. White did not touch the head, or test the sprinkler. Based on the above observation, Officer White believed that the sprinkler head was not kept free of residue as required by the standard, and would not be efficiently operable in case of fire. [*30] The standard only requires that the sprinkler, including its head, be kept as free from deposits as practical by daily cleaning, if necessary. Complainant's evidence was insufficient to establish that the sprinkler head was not as free from deposits as was practical, or that the head had a quantity of lacquer deposits which impaired or curtailed its efficiency in case of fire.

In addition there was unrefuted evidence from Respondent that the sprinkler head is cleaned daily; and that a cleaned head appears yellow in color, an uncleaned head red. In rebuttal, the best Officer White could state was that he could not say, contrary to his direct testimony, whether the color of the head when he observed it, was red or yellow.

Complainant failed to establish that Respondent violated 29 CFR 1910.107(f)(3).

Item 3 of Citation - 29 CFR 1910.107(g)(3)

This standard requires that residue scrapings and debris (including rags) contaminated with residue be immediately removed from the premises and properly disposed of.

The evidence establishes that three or four wiping cloths or rags impregnated with methyl ethyl ketone, a flammable organic solvent used for cleaning was left in [*31] the lacquer spray booth. * The evidence further established that the lacquer spray booth is used in the morning for about one to one and a half hours. However, the wiping rags were not removed until the end of the work day. The standard requires that such rags be removed immediately after use. They should have been removed after the morning's operation and deposited in the metal laundry container for laundering and reprocessing. Respondent was in violation of the standard. The presence in a spray booth of wiping rags contaminated with a flammable substance, and not in use, creates an unnecessary fire hazard. The gravity of the violation is low because of the small number of employees (4) in the area, and the daily removal of such rags at or about 3:30 p.m., the end of the work day.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

* The evidence of the rags in the booth lends some further support to Respondent's evidence that the sprinkler head was cleaned.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The proposed penalty of $35.00 based on the statutory factors of Section 17(j) of the Act, and abatement [*32] credit is reasonable.

Item 4 of the Citation - 29 CFR 1910.22(a)(2)

This standard requires that the floor of every workroom be kept in a clean, and, as far as possible, a dry condition. It further states that where wet processes are used, drainage shall be maintained, and false floors, platforms, mats or other dry standing places should be provided when practicable.

Officer White observed a considerable amount of paper debris, i.e., soda and coffee cups, on the floor of a passageway between the spraying and electro-forming areas of the workplace. Employees were walking on the debris. He further observed water on the floor in this area.

The debris resulted from an overflow from two trash containers near a work table, which spilt onto the passageway. The hazard was the possibility of a worker slipping on the coffer and soda cups.

The spray-electro-forming area had wooden pallets or duck boards for employees to walk on because the floor beneath was wet. One section, between the spray booths and the end of the duck boards, was a short corridor or passageway which lacked duck boards. This was the area where Officer White observed water on the floor. This section was [*33] not supplied with duck boards because it was hosed down twice a day to remove spillage accumulations on the floor from the spraying operations, and from the electro-forming tanks. The water drained into a specially built through at the side of the building. Respondent's employees were equipped with gear to protect their feet from getting wet. See 29 CFR 1910.94(d)(9)(ii).

Respondent under the circumstances of this case, kept the floor area, as far as possible, in a dry condition. It provided dry standing and walking platforms where practicable, for its employees. It provided drainage for its floor hosing operation, and it provided gear to protect its worker's feet from the water. The evidence (water in a small area of a floor) is insufficient to establish that Respondent violated the dry floor aspect of 29 CFR 1910.22(a)(2).

The overflow of paper soda and coffee cups on a section of the floor used as a passageway between the spraying and electro-forming areas, through which employees were walking, presents a technical violation of 29 CFR 1910.22(a)(2), in that the passageway was not clean. The gravity of the violation is deemed low in view of the small number of employees [*34] (4) using the area, the immediate abatement or clean up, and the lack of any prior history during Respondent's 35 years in business of any employee slipping on discarded paper cups or water.

Based on the gravity and the other statutory factors of Section 17(j) of the Act, the proposed penalty of $25.00 is vacated and a zero penalty assessed.

Item 5 of Citation - 29 CFR 1910.22(a)(1)

Respondent was cited for a violation of this standard because one pallet or duck board out of a possible dozen, located in front of one of the spray booths, had a broken slat. There is no evidence to indicate the nature of the defective slat, i.e., whether completely broken off, or merely cracked, or broken and indented. In any event, the evidence of a broken slat in one duck board is not sufficient in and of itself to establish that Respondent's workplace or passageway was unclean, unsanitary or disorderly.

Respondent failed to establish Respondent violated 29 CFR 1910.22(a)(1).

Item 6 of Citation - 29 CFR 1910.94(d)(9)(v) or 29 CFR 1910.133(a)(1)

Respondent was charged with a violation in the alternative, of the above standards in that it failed to provide eye and face [*35] protection for its employees at the electro-forming tanks. Standard 29 CFR 1910.94(d)(9)(v) requires when additions are made manually to tanks, or when acids and chemicals are removed from tanks, and there is danger of splashing, that employees so engaged wear either tight fitting chemical goggles or an effective face shield.

Officer White observed two employees not wearing either goggles or face shields, removing and adding material to the electro-forming tanks. These tanks contained water and a 5% solution of either copper sulphate salt or nickel sulphate salt.

Complainant contends the solutions might be harmful to an employee's eyes if splashed therein. Respondent contends the solutions were no stronger than certain types of eyewash solutions. There is no evidence to establish which contention is correct. Respondent's unrefuted evidence that the employees who operate the tanks are provided with, and must wear, a face shield or goggles, rubber gloves and apron, and acid resistant clothes, lends support to the contention that the chemical solutions in the tanks may be harmful to an employee's eyes. However the above facts are not material to the charge herein. Respondent [*36] was cited for failing to provide eye and/or face protection for its employees. The failure to provide, which is not here established, is a violation of standard 29 CFR 1910.133(a)(1), and is not a violation of 29 CFR 1910.24(d)(9)(v). (Emphasis supplied)

Complainant did not establish in the alternative that Respondent violated 29 CFR 1910.133(a)(1). The evidence established that Respondent does provide such protective face and eye equipment. It is Respondent's responsibility to see to it that its employees wear the protective equipment when working at the electro-forming tanks but Respondent was not charged with a failure to require its workers to use the protective gear.

Item 6 of Citation - 29 CFR 1910.24(d)(9)(vii)

This standard requires that there shall be a supply of clean cold water near each tank containing a liquid which may burn, irritate, or otherwise be harmful to the skin, if splashed upon a worker's body. In the alternative, deluge showers or eye flushes must be provided.

Respondent was cited under this standard for the failure to provide deluge showers and eye flushes in the area (electro-forming tanks) where chemicals may splash upon employees. [*37] (Citation)

Officer White inquired of Mr. Genaido, on the walk-around inspection, if there were eyewash facilities available. He was told that there was a rest room about 50-75 feet away which had running water. Relying on this statement, and without any further investigation or observation in the area, Officer White found a violation of standard 29 CFR 1910.24(d)(9)(vii) to exist. Officer White would have been satisfied if there was a source of running water near the tanks, as an alternative to other eyewash facilities. (T. 35, 36)

Respondent's unrefuted evidence establishes that there were at least five wash basins, with attached hoses and running water within 15 feet of the electro-forming tanks, and that within 25 feet, at Mr. Kovac's workplace, there was available a first aid kit and eyewash. (See 29 CFR 1910.94(d)(9)(xi)

Under the state of the evidence presented this Judge cannot find that Respondent failed to comply with standard 29 CFR 1910.24(d)(9)(vii).

FINDINGS OF FACT

The credible evidence, and the record as a whole, establishes proof of the following specific findings of fact.

1. Respondent P. & M. Sales, Inc., is a New York corporation with its place [*38] of business at 252 C. Lake Avenue, Yonkers, New York. (T. 5)

2. Respondent is a manufacturer of toys and dolls, and admits it is an employer in a business which affects interstate commerce. (T. 5)

3. Respondent's place of employment was inspected on April 24, 1973, by Otto White, Jr., a senior industrial hygienist for the Occupational Safety and Health Administration. (T. 11-14, 47)

4. Respondent operates and maintains a lacquer spraying booth at its work place. (T. 19, 20)

5. Respondent sprays a red lacquer on the toys and dolls it manufactures. In this spraying operation, red spray from the lacquering process accumulates on a fire extinguisher sprinkler head located in the spray booth.

6. The booth and sprinkler head are cleaned each day.

7. The evidence is insufficient to establish that the sprinkler head on the day of inspection, April 24, 1973, was not as free from spray deposits as practical, or unable to operate efficiently in case of fire. (T. 20-23, 25, 52, 66, 67, 96, 97) The head was not tested.

8. Wiping rags impregnated with methyl ethyl ketone, a flammable organic solvent used for cleaning purposes, were not immediately removed from the spray booth, [*39] after use, and deposited in a proper metal container. (T. 20, 65, 66, 73-75)

9. A small passageway portion of the floor area between Respondent's spraying and electro-forming areas was wet, and covered with a considerable amount of discarded soda and coffee cups (overflow from two trash containers). (T. 26-27, 29, 30-31, 55-57, 88)

10. The debris presented a slipping hazard to employees observed walking on the debris. (T. 29-31)

11. The wetness of this floor area was due to Respondent's necessary operation of hosing down this area twice a day to remove accumulations of spray and chemical solution splashes. (T. 88-89)

12. Respondent provided wooden pallets or duck board to protect its employees from walking on the wet floor except in the small area which is hosed down. Water from the hosing of this area, runs off into a specially built trough, and employees are provided with special foot gear to protect them from the wet floor. (T. 86, 88-89)

13. The evidence is insufficient, under the circumstances of this case, to establish that Respondent failed to keep the floor of the workplace as dry as possible, or failed to provide the necessary conditions to protect its employees [*40] from the wet area of the floor. (See Opinion)

14. Respondent provided 12 to 14 wooden pallets or duck board for its employees to walk and stand on. One of these pallets located in front of a spray booth had a broken slat. This isolated defective slat is insufficient evidence to establish that Respondent failed to keep its workplace in an orderly condition. (See Opinion)

15. Respondent provided its employees who operated the electro-forming tanks with face shields, goggles, rubber gloves and aprons, and acid resistant clothing. (T. 69, 82, 85)

16. There is no affirmative evidence that Respondent failed to provide the protective gear stated in paragraph 15.

17. Respondent did not provide, at the time of the inspection, deluge showers or eye flushes for its employees operating the electro-forming tanks. Respondent had five wash basins with hoses attached, and running water within 15 feet of the electro-forming tanks, and had first aid equipment and eyewash solutions within 25 feet of the tanks. (T. 71)

CONCLUSIONS OF LAW

1. Respondent, P. & M. Sales, Inc., is, and at all times relevant herein, was engaged in a business affecting commerce within the meaning of Section [*41] 3(5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter of this action.

3. Respondent, on April 24, 1973, was not in violation of standards 29 CFR 1910.107(f)(3), 1910.22(a)(1), 1910.94(d)(9)(v) or 1910.133(a)(1), and 1910.94(d)(9)(vii).

4. Respondent, on April 24, 1973, was in violation of 29 CFR 1910.107(g)(3). The proposed penalty of $35.00 for this violation is reasonable.

5. Respondent, on April 24, 1973, was in violation of 29 CFR 1910.22(a)(2) as it relates to the requirement that the floor of the workroom be kept in a clean condition. No penalty is assessed for this violation.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the Citation for a nonserious violation of 29 CFR 1910.107(f)(3) (item 2), and the proposed penalty of $35.00, are vacated, it is further

ORDERED that the Citation for a nonserious violation of 29 CFR 1910.107(g)(3) (item 3), and the proposed penalty of $35.00, are affirmed, it is further

ORDERED that the Citation for nonserious violations of 29 CFR 1910.22(a)(1) (item 5), 1910.94(d)(9)(v), [*42] and 1910.133(a)(1) (item 6), and 1910.94(d)(9)(vii) (item 7) and the respective penalties proposed are vacated, it is further

ORDERED that the Citation for a nonserious violation of 29 CFR 1910.22(a)(2) (item 4), is modified to reflect a violation of the floor cleanliness requirement of the standard, and as modified is affirmed. The proposed penalty of $25.00 is vacated, and a zero penalty assessed.

JEROME C. DITORE, JUDGE, OSAHRC

Dated: April 11, 1974

New York, New York