Docket No. 4734

J. W. BLACK LUMBER COMPANY

OSHRC Docket No. 4734

Occupational Safety and Health Review Commission

November 5, 1975

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

COUNSEL:

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Charles R. Black, Jr., President, J. W. Jack Lumber Company, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Henry F. Martin, Jr., dated August 13, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's disposition is affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I respectfully dissent from the majority's decision. The decision falls short of ruling upon the exceptions of the Secretary of Labor in the manner required by section 8(b) of the Administrative Procedure Act. 5 U.S.C. section 557(c). The majority does not adopt the Administrative Law Judge's decision as its own. It merely finds "no prejudicial error" in his decision. It is unclear whether they find that there is no error whatsoever, or whether there is error but it is not prejudicial. If the latter is intended there is no indication as to why it is not prejudicial. Of course it is not necessary that the exceptions [*2] be separately or expressly ruled upon. Key v. United States, 263 F. Supp. 544 (S.D. Ind. 1966). But the Secretary of Labor is entitled to know why his exceptions are overruled. Judicial review may not be possible without a more definite statement of reasons. Cf. B.F. Goodrich Co. v. O.S.H.R.C., No. 74-1836 (6th Cir., May 14, 1975).

In his petition for discretionary review, the Secretary of Labor asserted that the Judge had erred (1) in concluding that the Secretary did not prove that respondent failed to comply with the standard at 29 CFR § 1910.265(c)(17)(ii); n1 and (2) in refusing to allow the Secretary to amend his complaint from an alleged failure to comply with 29 CFR § 1910.265(c)(21)(i) n2 to an alleged violation of 29 CFR § 1910.265(c)(21)(c). n3

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n1 See note 4 infra.

n2 See note 9 infra.

n3 See note 10 infra.

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Respondent operates a sawmill in Corning, Arkansas. Following an inspection of respondent's workplace on August 27, 1973, the Secretary issued a citation alleging [*3] 14 non-serious violations. Nine of the 14 items were at issue at hearing; only two items, however, are at issue on review.

Item 11 alleged a failure to comply with 29 CFR § 1910.265(c)(17)(ii) n4 in that:

Employees were not provided with and required to wear protective equipment to afford adequate protection against harmful chemical exposure; i.e., green chain lumber pullers (rubber gloves).

A penalty of $75 was proposed.

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n4 29 CFR § 1910.265(c)(17)(ii) provides as follows:

(17) Storage, handling, and use of chemicals -

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(ii) Protective equipment. The use of chemicals shall be controlled so as to protect employees from harmful exposure to toxic materials. Where necessary, employees shall be provided with and required to wear such protective equipment as will afford adequate protection against harmful exposure as required by Subpart I of this part.

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The Secretary alleged that respondent failed to require its employees to use rubber gloves while handling lumber that had been dipped in a solution [*4] of "Super Noxtane", a wood preservative used on lumber during summer month to prevent mold and fungus. On the day of inspection four employees were handling lumber that had been dipped in a solution of Super Noxtane. The Secretary asserted that the Super Noxtane solution, which is prepared from crystals, is harmful or fatal if swallowed or absorbed through the skin. The label on the sack containing the crystals reads, in pertinent part, as follows:

Harmful or fatal if swallowed or absorbed through skin. . . . Causes skin irritation. . . . Do not get into eyes, on skin or on clothing. In case the dry material or its solution gets on the skin, wash with plenty of soap and warm water; . . . Wear rubber gloves and protective clothing when handling the freshly treated lumber (emphasis added).

The exact concentration of the Super Noxtane solution used at the time of inspection was not shown.

There was no question that the employees referred to in the citation were not wearing rubber gloves while dipping the lumber in the solution. The Judge vacated the item because there was inadequate evidence indicating that the strength of the solution was harmful and there was [*5] no indication that any employees were apt to swallow any of the solution, or that any employees had immersed their unprotected hands in the solution to the extent of having chemicals absorbed in their systems. In reaching this conclusion, the Judge noted that the Secretary failed to show that any of respondent's employees had been harmed as a result of coming into contact with the Super Noxtane solution without wearing gloves.

Unlike my colleagues, I would conclude that the Judge erred in vacating this item. The standard requires the implementation of control measures "so as to protect employees from harmful exposure to toxic materials." n5 There is clear evidence that Super Noxtane is harmful or fatal if swallowed or absorbed through the skin. It is, therefore, "toxic" within the meaning of the standard. The warnings on the label itself are sufficient evidence of this. These warnings certainly contemplate the use of the product in solution, and there is nothing in the record indicating that the product was used in a manner other than that contemplated by the manufacturer.

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N5 See note 4 supra.

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Apart from the warnings on the label, there is evidence showing that all three active ingredients in Super Noxtane n6 appear on The Toxic Substances List (1973 ed.), which was prepared by the Department of Health, Education and Welfare pursuant to section 20(a)(6) of the Occupational Safety and Health Act of 1970 [hereinafter "the Act"]. According to the publication, the listing means that the substances have been documented as being hazardous if misused and, therefore, "care must be taken to prevent tragic consequences." (page viii). n7 Based on the foregoing I would conclude that the Secretary showed the existence of a hazard warranting the implementation of control measures by respondent.

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n6 The active ingredients are sodium pentachlorophenate, sodium salts of other chlorinated phenols, and sodium tetraborate decahydrate.

n7 Despite the probative value of the inclusion on this list of the active ingredients in Super Noxtane, neither my colleagues nor Judge Martin addressed themselves to this evidence.

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I believe the Judge also erred in giving excessive weight to the fact that there was no history of harm resulting from the exposure of employees to the chemicals. It is not necessary for the Secretary to prove a history of prior harm in order to establish that a hazard exists. n8 As the Commission stated in Arkansas-Best Freight Systems, Inc., No. 2375 (February 21, 1975) (slip op. at 4), petition for review docketed, No. 75-1249, 8th Cir., April 16, 1975: "[t]he fact that respondent's employees have been fortunate and suffered few actual injuries cannot negate the existence of a hazard." See also Yellow Freight System Inc., No. 2658 (March 20, 1975), petition for review docketed, No. 75-1483 D.C. Cir., May 14, 1975, and cases cited therein.

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n8 Although Super Noxtane may cause surface skin irritation, not all workers are affected in this way. Super Noxtane, however, is harmful or even fatal if absorbed through the skin. It is therefore fortunated that an employee with a small cut on his hand, or any employee who had a wood splinter, did not absorb the chemical.

[*8]

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The Judge also considered testimony by respondent's president that wearing gloves in the summer caused employees to perspire heavily. The witness maintained that employees "conveniently" lost or misplaced the gloves at the first opportunity. That employees have shown a reluctance to comply with the requirements of the Act does not relieve an employer from his obligation to require compliance by his employees. Atlantic & Gulf Stevedores, Inc., Nos. 2818, 2862, 2998, 2997 (April 1, 1975), petition for review docketed, No. 75-1584, 3d Cir., June 6, 1975.

I would find respondent in violation of 29 CFR § 1910.265(c)(17)(ii) as alleged.

II.

Item 12 concerns whether respondent adequately protected its chipper employees by either guarding the chipper machines or providing safety belts and lines so that employees could not fall into the chipper. A "chipper" is defined in 29 CFR § 1910.265(b)(10) as "a machine which cuts material into chips." In the citation, the Area Director originally alleged that the unguarded machine was a "whole log chipper," and cited respondent for a failure [*9] to comply with 29 CFR § 1910.265(c)(21)(i). n9 The citation read as follows:

Chipper machine spout was not enclosed to a height of not less than 36 inches from the floor or operator's platform and an alternate method of safety belt and lifeline was not used; i.e., sawmill chipper machine.

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n9 29 CFR § 1910.265(c)(21)(i) provides:

(21) Chippers.

(i) Whole-log chippers. The feed system to the chipper shall be arranged so the operator does not stand in direct line with the chipper spout (hopper). The chipper spout shall be enclosed to a height of not less than 36 inches from the floor or the operator's platform. A safety belt and lifeline shall be worn by workmen when working at or near the spout unless the spout is guarded. The lifeline shall be short enough to prevent workers from falling into the chipper.

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After the hearing, the Secretary's counsel determined that the machine alleged to be a "whole log chipper" was actually a "hog mill". The term "hog" is defined in 29 CFR § 1910.265(b)(18) as "a machine [*10] for cutting or grinding slabs and other coarse residue from the mill." The Secretary's counsel subsequently sought to amend the complaint to allege a failure to comply with 29 CFR § 1910.265(c)(21)(ii)(c). n10

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n10 29 CFR § 1910.265(c)(21)(ii)(c) provides:

(ii) Hogs.

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Respondent objected to the Secretary's proposed amendment and the Judge agreed with respondent, holding that "it would not be appropriate to grant an amendment under the circumstances of this case." The Judge also wrote that the facts are insufficient to support a violation based on subdivisions (a), (b), and (c) of 29 CFR § 1910.265(c)(21)(ii). The Secretary had only alleged a failure to comply with subdivision (c).

Five factors must be considered in determining whether to amend pleadings to conform to the evidence: (1) whether the underlying factual allegation was the same; (2) whether the issue was impliedly tried by the parties; (3) [*11] whether the employer had a chance to raise all relevant defenses to the amended charge; (4) whether the amended violation was alleged under the same section of the Act; and (5) whether a violation was found by the Judge. See Godwin-Bevers Co., No. 1373 (January 7, 1975) (Cleary, Commissioner, dissenting) (applying Fed. R. Civ. P. 15(b), which is incorporated by Commission rule 2(b) and section 12(g) of the Act).

After considering these factors, I would hold that an amendment of the pleadings is appropriate. The underlying factual allegation of whether the chipper was adequately guarded remained the same. The amendment merely changed a unit of the same standard under which respondent was originally cited. In addition, the evidence concerning the hog mill was introduced by both parties, and indicates the implied trial of this issue by the parties. These facts indicate that an amendment of the pleadings to conform to the evidence is appropriate. On the other hand, it cannot be determined with reasonable certainty that the disposition of this case should end with an amendment of the pleadings and a finding of a violation.

In its reply to the Secretary's petition for discretionary [*12] review, respondent strenuously objects to a post-hearing amendment of the pleadings and asserts that it would be prejudiced because it would be denied the opportunity to present rebuttal evidence with respect to the amended charge. There is sufficient basis to warrant a remand of the case on the prejudice issue. Cf. N.L.R.B. v. United Aircraft Corp., 490 F.2d 1105, 1111-12 (2d Cir. 1973). The Judge has made no findings of whether respondent would be prejudiced by a post-hearing amendment and, if not, whether a violation was proved with respect to the amended charge.