Docket No. 6606

KEYSTONE BODY WORKS

OSHRC Docket No. 6606

Occupational Safety and Health Review Commission

August 3, 1976

[*1]

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

COUNSEL:

Ronald M. Gaswirth, Regional Solicitor, USDOL

Jack McClendon, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Henry F. Martin, dated February 12, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i). At issue is whether the Judge erred in vacating two items of a citation alleging violations of 29 U.S.C. § 654(a)(2) for noncompliance with the occupational safety standards codified at 29 C.F.R. § 1910.107(d)(2) and (e)(2). Having reviewed the record in its entirety, we affirm the Judge's well-reasoned decision for the reasons which follow.

Both of the charges pertain to alleged fire hazards in respondent's automobile paint spraying area. At the time of the inspection, n1 the standard published at 29 C.F.R. § 1910.107(d)(2) provided, in pertinent part, that:

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n1 The standard was subsequently revised on March 15, 1974. 39 Fed. Reg. 9959 (1974).

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The facts regarding this charge are essentially undisputed. An employee of respondent was spraying lacquer in respondent's spray paint room when the complainant's safety inspector entered. Although he saw two openings in the ceiling for exhaust purposes, the inspector decided to measure the air circulation of the room after noticing what appeared to him to be a high concentration of vapors. The air velocity, as measured by a velometer, varied for the most part between zero and ten linear feet per minute, with occasional measurements of fifteen linear feet per minute.

When asked at the hearing what he considered to be "adequate" ventilation in the area, the safety inspector stated that it would be at least 25 linear feet per minute, but admitted that this was merely an "educated guess" and that he could not make a specific determination without extensive calculation and a knowledge of the exact quantities of solvent that were being used. He later stated his opinion that zero to ten linear [*3] feet per minute was not adequate, but again admitted that he could not state for certain what would be an adequate airflow without "going through some calculations" and "without doing some evaluations of the solvent used."

On the basis of this evidence, the Judge correctly concluded that complainant failed to establish noncompliance with the standard by a preponderance of the reliable and probative evidence. The standard requires an employer to provide "adequate" ventilation in paint spraying areas. It is manifest that complainant cannot sustain his burden of proving "inadequate" ventilation when he cannot even establish what is, in fact, "adequate" ventilation. If complainant doesn't know, respondent cannot be expected to know.

A violation cannot be affirmed on the basis of mere speculation and conjecture. Secretary v. Fort Worth Enterprises, Inc., 10 OSAHRC 280, 284 (1974). Most certainly, a violation of this Act cannot be affirmed on the basis of an "educated guess."

The second alleged violation concerns the standard published at 29 C.F.R. § 1910.107(e)(2), which provides in pertinent part as follows:

"The quantity of flammable or combustible liquids kept in the vicinity [*4] of spraying operations shall be the minimum required for operations and should ordinarily not exceed a supply for 1 day or one shift."

The evidence establishes that there were 140 to 160 quart paint cans in respondent's paint spraying area. The inspector testified that he was told by respondent's president that the cans contained some leftover paint from other jobs and that the total was no more than about five gallons. Complainant proffered no evidence whatsoever to show how much paint was used by respondent in one day or on one shift. Respondent's president, on the other hand, testified that respondent used five to ten gallons of paint per day.

The available evidence therefore leads inexorably to the conclusion that the total quantity of stored paint did not exceed the quantity used by respondent in one day or on one shift. Thus, complainant has failed to establish noncompliance with the standard.

Accordingly, the Judge's decision, which is attached hereto as Appendix A, n2 is hereby affirmed in all respects.

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n2 Chairman Barnako does not agree to this attachment.

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DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I dissent.

The majority vacates the citation for failure to provide adequate ventilation in respondent's spray painting room on the basis that the compliance officer offered only an "educated guess" as to what would be "adequate." The majority concludes that:

It is manifest that complainant cannot sustain his burden of proving 'inadequate' ventilation when he cannot even establish what is, in fact, 'adequate' ventilation.

This reasoning completely ignores the context of the testimony quoted by the majority. The full question and answer are as follows:

JUDGE MARTIN: What reading on that meter would you consider as being adequate ventilation?

THE WITNESS: Of course, in order to give an exact answer, one would have to go through some calculations. However, in this case, my evaluation of the amount of air movement was essentially zero. In other words, most of the time the velometer meter reading was sitting on the zero peg. Only occasionally did it go to ten (10) or fifteen (15). To give an exact -- I would certainly say just as an estimate, it certainly had to be above 25 [*6] linear feet per minute. This is just an educated guess because in order to actually determine the necessary velocity, you would have to go through a series of calculations (emphasis added).

Respondent did not contradict the compliance officer's "evaluation of the amount of air movement" as being "essentially zero." It is absurd to require proof of what air velocity would be "adequate" in order to prove noncompliance with the standard when the uncontested testimony is that there was essentially no movement of air at all. In effect there was no ventilation, and flammable vapors were present. Indeed, breathing was difficult because of their presence. For these reasons, I would find that the failure to comply with 29 CFR § 1910.107(d)(2) has been established.

I also dissent to the vacation of the citation for failure to comply with the standard at 29 CFR § 1910.107(e)(2). n3 The majority reasons as follows. There were present in the spray-painting room 140-160 paint cans containing a total of approximately five gallons of paint. The paint was left over from previous jobs. Respondent's president testified that respondent used five to ten gallons of paint per day. Thus, the majority [*7] concludes, the evidence shows that the total quantity of stored paint did not exceed the quantity used by respondent in one day or on one shift. This conclusion is unquestionably correct, but it is irrelevant. The standard contemplates that (1) the flammable liquids kept in the vicinity of the spray painting be for use in the operations, and (2) that the liquids should not exceed the amount needed for one day or one shift.

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n3 § 1910.107 Spray finishing using flammable and combustible material

(e) Flammable and combustible liquids - storage and handling

(2) Quantity. The quantity of flammable or combustible liquids kept in the vicinity of spraying operations shall be the minimum required for operations and should ordinarily not exceed a supply for one day or one shift.

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The paint in question was not being used. It was left over from previous jobs and kept for preservation or ultimate discarding. For this reason, I would find a violation of section 5(a)(2) of the Act for failure to comply with the [*8] standard at 29 CFR § 1910.107(e)(2).

Appendix A

DECISION AND ORDER

Mr. Jack McClendon, for Respondent

Mr. Heriberto de Leon, USDOL, Solicitor's Office, for Complainant

MARTIN, Judge:

This is a proceeding brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq), hereinafter referred to as the Act, contesting a citation for an alleged serious violation issued by complainant against respondent under the authority set forth in section 9(a) of the Act.

The citation alleges that as a result of an inspection of a work place under the ownership, operation or control of respondent, located at 1917 Avenue "Q", Lubbock, Texas, which said work place is an auto body repair shop, 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 for an alleged serious violation and notification of proposed penalty were issued on February 4, 1974, by complainant's area director. The aforementioned citation alleges that respondent violated the following standards: 29 CFR 1910.107(a)(5)(i), 29 CFR [*9] 1910.107(b)(1), 29 CFR 1910.107(b)(2), 29 CFR 1910.107(c)(2), 29 CFR 1910.107(c)(6), 29 CFR 1910.107(e)(2), and 29 CFR 1910.132(a). It was alleged that violations of these standards, when combined, constituted a serious violation for which a penalty of $600.00 was proposed. Respondent, through counsel, filed a timely notice of contest disputing both the citation and the proposed penalty. Subsequently, complainant, through his regional solicitor, filed an amended complaint wherein citation was amended as follows:

"(a) Failed to provide the paint spraying area with mechanical ventilation adequate to remove flammable vapors, mists, or powders to a safe location and to confine and control combustible residues so that life or property is not endangered, in violation of section 5(a)(2) of the Act and of 29 CFR 1910.107(d)(2). The citation charged a violation of 29 CFR 1910.107(a)(5)(i) and it is hereby amended as alleged hereinabove.

"(b) Used a lacquer paint spray gun less than 20 feet from an open flame, to-wit: a gas fired heater, without separation by a partition in violation of section 5(a)(2) of the Act and 29 CFR 1910.107(c)(2).

"(c) Had electrical wiring and equipment which [*10] was not of explosion-proof type approved for Class I, Group D location, in the paint spraying area, in that fluorescent lights in spraying area were not explosion-proof, in violation of section 5(a)(2) of the Act and 29 CFR 1910.107(c)(6).

"(d) Stores flammable or combustible paint in the paint spraying area in a quantity in excess of a one-day or one-shift supply, in violation of section 5(a)(2) of the Act and of 29 CFR 1910.107(e)(2).

"(e) Failed to provide, use or require the use of personal protective equipment for eyes, face and head, or of respiratory devices or protective shields or barriers where necessary by reason of hazards of processes or environment, chemical 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, in that employees were spray painting without wearing approved respirators to protect them from toxic effects of lacquer paint solvents, in violation of section 5(a)(2) of the Act and of 29 CFR 1910.132(a)." n1

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n1 It will be noted that item 1(a) of the citation was amended to show that a spraying area was involved, rather than a booth. Section 29 CFR 1910.107(a)(5)(i) was deleted and instead section 29 CFR 1910.107(d)(2) was inserted. Items 1(b) and 1(c) of the citation charging violations of 29 CFR 1910.107(b)(1) and 29 CFR 1910.107(b)(2) were deleted.

[*11]

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Respondent filed a timely answer denying the matters set forth in the amended complaint. Pursuant to notice a hearing was held in Lubbock, Texas, on July 23, 1974. Complainant was represented by Mr. Heriberto de Leon of the regional solicitor's office and respondent was represented by Mr. Jack McClendon, of the Lubbock, Texas, bar. No other persons appeared or sought to intervene herein. Subsequent to the hearing briefs were filed by both parties.

The issues to be determined herein are whether or not respondent violated the aforementioned standards or regulations and, if so, whether these violations, when combined, constitute a serious violation within the purview of section 17(k) of the Act.

Section 17(k) provides that: "A serious violation shall be deemed to exist in a place of employment if there is a subsetantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the [*12] exercise of reasonable diligence, know of the presence of the violation."

Section 17(b) provides that an employer who has received a citation for a serious violation under any standard shall be assessed a civil penalty of up to $1,000.00. Section 17(c) provides that a civil penalty of up to $1,000.00 may be assessed for a nonserious violation.

Section 17(j) provides that the Commission shall have authority to assess all civil penalties after due consideration to the appropriateness of the penalty with respect to the size of the business, gravity of the violation, the good faith of the employer, and the history of previous violations.

At the outset of the hearing it was stipulated that respondent, Keystone Body Works, was an employer engaged in a business affecting commerce and that it employed employees pursuant to the provisions of section 3(5). It was also stipulated that on January 9, 1974, respondent had employees who were engaged in the auto repair business at its work place at 1917 Avenue "Q" in Lubbock and that in inspection was conducted pursuant to section 3(a), which resulted in the issuance of a serious citation on February 4, 1974.

Complainant's principal witness [*13] was compliance officer Delmar Krehbiel, an industrial hygienist, who conducted the inspection of respondent's paint and body shop on January 9th, arriving on the premises between 12:45 or 1:00 p.m. After waiting sometime for the president, (Jim Bob Jackson), to return to the shop, he learned that Mr. Joe Heineman was normally in charge in the absence of the president and conducted an opening conference with him. He inspected the body repair shop area first and his investigation there did not reveal any infractions. He advised that when he entered the paint spray room he noticed what appeared to be a high concentration of vapors and that he had some difficulty in breathing. He noticed that an employee was spraying lacquer on the rear of an automobile and that he was not wearing a respirator. He testified that he then went to his automobile to get a camera and a velometer. He returned with his camera and took certain photographs inside the paint spraying area (complainant's exhibits C-1 through C-4). Upon his return he noticed that the paint sprayer had donned a disposable type of respirator, one which is not normally designed for this type of work. His investigation disclosed [*14] that respondent did have some "legal" masks, or respirators, on hand to protect employees against paint vapors.

He advised that he noticed two gas fired heaters in the room (complainant's exhibits C-1 and C-2). The compliance officer estimated that the distance between the employee with the spray gun and the heater was a distance of somewhere between five and twelve feet. While he was in the area he advised that Mr. Heineman pointed out two circular holes in the ceiling (complainant's exhibit C-4 shows one of the holes).

The compliance officer noted that the electrical fixtures attached to the ceiling were of the fluorescent type and were not explosion-proof as required by pertinent standards. He stated that the fluorescent light fixtures were not enclosed or sealed in any way. Further, he noted that paint cans were stored on a shelf on the north wall. He estimated that there were some 140 to 160 quart cans on the shelf and some gallon cans also. He stated that the chemical contents of the paints and lacquers were toluene, acetone, and methyl ketone. He described these materials as being "class 1" liquids and having flash points lower than 100 degrees fahrenheit.

Inspector [*15] Krehbiel advised that he took measurements of the air circulation in the room with a velometer in an area near where the paint sprayer was working and that he found the readings to be very low. He noticed very little air flow toward the ceiling, stating that the instrument registered between zero and ten degrees, and occasionally between ten and fifteen linear feet per minute. He stated that this type of vapor generally gravitates to a lower level and that it smelled like toluene. He discussed the vents in the ceiling with Mr. Heineman, who advised that the fans were in operation.

Inspector Krehbiel stated that he was informed that the paint cans on the shelves contained varying quantities of paints left over from previous jobs and that the total amount would be around five gallons.

The compliance officer was of the opinion that there was a high probability of a fire which would possibly result in death or serious injury because of the combination of conditions which he found during his inspection. He stated that the paint sprayer who was working without a mask when he first arrived was exposed to an inhalation of vapors which could cause some possible liver damage, and also [*16] could possibly cause him to become dizzy and lose contact with what he was doing. He advised that the spraying of paint in fairly close proxmity to the gas fire heater might result in an explosion or fire. He was also of the opinion that the fluorescent type wiring was not sufficient protection for the employees and that sparks might be produced which could potentially cause a fire. He also indicated that the cans which contained small amounts of paints and thinners would be hazardous in that a fire would cause the cans to pop open.

On cross examination the compliance officer stated that he had never heard of a fluorescent light fixture being the cause of a fire. He also advised that he was not aware of how much lacquer would be used on any given day in respondent's paint and body shop.

The area director, Mr. Robert B. Simmons, testified as to the various factors which were considered in the proposed penalty in this case, stating that respondent was allowed a maximum credit of 20 percent for having had no past history, 10 percent maximum credit for size of the business, and 10 percent for the factor of good faith. He stated that having considered respondent's business from [*17] an overall standpoint he felt that he could not allow him the full 20 percent credit for good faith. On cross examination Mr. Simmons advised that he was not aware of any fires which had been caused by fluorescent light fixtures.

29 CFR 1910.107(c)(6) provides as follows:

"Electrical wiring and equipment not subject to deposits of combustible residues but located in a spraying area as herein defined shall be of explosion-proof type approved for Class I, group D locations and shall otherwise conform to the provisions of subpart S of this part for Class I, Division 1, Hazardous Locations. Electrical wiring, motors, and other equipment outside of but within twenty (20) feet of any spraying area, and not separated therefrom by partitions, shall not produce sparks under normal operating conditions and shall otherwise conform to the provisions of subpart S of this part for Class I, Division 2, Hazardous Locations."

As previously indicated herein standard fluorescent lights were attached to the ceiling in the paint spraying area (Tr. 37) and further, that the aforesaid lighting fixtures had no covers or seals over the points of contact. There were no markings on these fixtures so as [*18] to indicate the approval of any organization, such as the Underwriters Laboratories. As previously noted the compliance officer did not have any personal knowledge of any given situation where fluorescent lighting in a paint spraying area had ever caused any explosion or fire (Tr. 99). However, it is clear from all of the evidence presented at the hearing that the lighting equipment in the paint spraying area was not explosion-proof as required by the standard. Therefore, this item in the citation and in the amended complaint will be found to be established.

29 CFR 1910.107(e)(2) provides as follows:

"The quantity of fiammable or combustible liquids kept in the vicinity of spraying operations shall be the minimum required for operations and should ordinarily not exceed a supply for one day or one shift. Bulk storage of portable containers of flammable or combustible liquids shall be in a separate, constructed building detached from other important buildings or cut off in a standard manner."

Some 140 to 160 quart and gallon paint cans were observed on the shelves in the paint spraying area by the compliance officer (Tr.42). The compliance officer indicated that he was told [*19] by Mr. Jackson, that the cans contained some left over paint from other jobs and that the total would not be more than about five gallons. It was the compliance officer's position that this collection of cans with varying amounts of liquids would present a hazard in the event a fire occurred, in that it would pop the cans and add fuel to any fire (Tr.69). The citation regarding this matter indicated that the quantity of paint stored in the paint spraying area was "in excess", and quoted Mr. Jackson as stating that there was an avarage of about one inch of fluid in each container which would make a composite amount of about five gallons. However, in the amended complaint the charge was made that respondent had stored flammable or combustible paint in a quantity in excess of a one day or a one shift supply in violation of this regulation. Complainant failed to produce any evidence to show that respondent had stored more than a one day or one shift supply of flammable or combustible paint. On the other hand, Mr. Jackson testified that the cans had only small amounts of paint totaling no more than five gallons, a one day supply. In view of the foregoing it must be found that this [*20] charge has not been supported by a preponderance of the evidence and the same will be vacated.

Section 29 CFR 1910.107(d)(2) provides as follows:

"All spraying areas shall be provided with mechanical ventilation adequate to remove flammable vapors, mists, or powders to a safe location and to confine and control combustible residues so that life or property is not endangered. Mechanical ventilation shall be kept in operation at all times while spraying operations are being conducted and for a sufficient time thereafter to allow vapors from drying coated articles and drying finishing material residue to be exhausted."

The key word in this regulation, of course, is "adequate". n2 The compliance officer felt that there was a high concentration of vapors (Tr. 22 and 23) which made breathing difficult. He noticed that there were two openings in the ceiling for exhaust purposes (Tr. 35) and stated that Mr. Jackson pointed out another vent which was located in a door (respondent's exhibits R-3 and R-4). The compliance officer indicated that the air velocity as measured by his velometer was from zero to ten linear feet per minute and occasionally up to 15 linear feet per minute and that [*21] it was his "educated guess" that adequate ventilation in the area would be above 25 linear feet per minute. He advised, however, that he could not make a determination of what "adequate" is without calculation and an extensive evaluation of the solvents used (Tr. 90). He stated that there is no way to say what the minimum acceptable ventilation would be in a given situation without knowing the exact solvent quantities used (Tr. 89). It is apparent from the compliance officer's testimony that extensive calculation is required, as well as a knowledge of the solvent quantities used, in order to try to determine the adequacy of ventilation. No calculations were made and no solvent quantities were determined. No evidence was presented herein to show why there were no calculations made or why the solvent quantities were not ascertained.

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n2 It should be noted that section 29 CFR 1910.107(d)(2) was cited in the amended complaint and in effect charged respondent with having inadequate ventilation to remove vapors, etc. However, the standard initially referred to in the citation was 29 CFR 1910.107(a)(5)(i) which refers to a spray booth and charges respondent with having an exhaust capacity not adequate to accomplish an air velocity of at least 100 linear feet per minute.

[*22]

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Since the complainant has the burden of establishing all of the elements contained in a regulation, it must be found that the regulation as charged in the amended complaint has not been established by reliable and probative evidence. A finding cannot be based upon conjecture or surmise. Since the Secretary has the burden of proving that the ventilation at the work site in question was inadequate, it must be concluded that this charge has not been established and that the same should be vacated.

Section 29 CFR 1910.107(c)(2) provides as follows:

"There shall be no open flame or spark producing equipment in any spraying area nor within 20 feet thereof, unless separated by a partition."

The allegation in the amended complaint was, "used a lacquer paint spray gun less than 20 feet from an open flame". Complainant's exhibits C-1, C-2, and C-4 are photographs of the gas fired directional heaters which were in the spraying area on the day of the inspection. The employee who was spraying the rear of an automobile was at a distance of between five and twelve feet from one of the heaters. At the hearing [*23] the term "open flame" was defined as one that is not enclosed. Although the compliance officer testified that there wore gas flames behind the heater grid which heated it to a reddened condition, he actually saw no flames. The shop foreman stated that there were gas flames behind the grid (Tr. 91). Since the heater had an enclosed chamber (Tr. 168), and since no flames were visible it must be concluded that the heater did not have an "open flame" within the meaning of the standard cited here. In view of the foregoing there is insufficient evidence to support a violation of 29 CFR 1910.107(c)(2) and the same will be vacated.

Section 29 CFR 1910.132(a) provides as follows:

"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 satisfactory and reliable condition wherever it is necessary by reason of hazards of proceases 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 [*24] absorption, inhalation or bodily contact."

It has previously been noted that when the compliance officer arrived at the work place the employee who was spraying an automobile was not wearing a respiratory device but that shortly thereafter he was observed wearing a disposable type respirator, or one which did not qualify under the regulations. The compliance officer stated that the mask which the paint sprayer had put on was a type of respirator used primarily to protect against non-toxic dust or for very light spraying. The compliance officer did indicate, however, that several approved type respirators were in a cabinet in the paint spraying area. According to testimony of Mr. Jackson appropriate respirators have been available for use by employees and they were required to wear them. He indicated, however, that the workers do not like to use these devices because it makes their jobs more difficult (Tr. 192). From all of the evidence presented it appears that this standard was violated by respondent's employee on the date of the inspection. While it seems that the employees may on occasion fail to wear respirators it is apparent that the employer did not properly supervise [*25] his workers in order to make sure that they complied with this requirement while engaged in spray painting.

Complainant has contended that the aforementioned alleged violations, when combined, would comprise a serious violation within the purview of section 17(k) of the Act. After carefully examining all of the testimony and the exhibits, it is concluded that a serious violation has not been established by a preponderance of the reliable and probative evidence. On brief complainant states that there was a high probability of a fire or explosion which would result in serious physical harm or death to the exposed employees. This conclusion cannot be supported by the evidence at hand. It cannot be definitely established by the evidence that the ventilation was in fact inadequate to prevent a dangerous accumulation of flammable vapors. Further, it has not been shown that there were open flames in the infrared heaters which had been placed in the spraying area (the weather was extremely cold on the day of the inspection). There was no showing that the vapors were sufficiently strong, or concentrated enough, so as to cause the paint sprayer to become dizzy or lose control of his [*26] spray gun. The record herein does not support a finding that an "open flame" was coming out of the heater which might have presented a hazardous situation (if it is assumed that the vapors were concentrated enough). The facts are that any gas flame which was behind the grid was enclosed and not "open". Mr. Jackson testified that two years ago he had open flame type stoves in the paint room (Tr. 164 and 165) and that he bought the infrared heaters at a cost of $175.00 a unit upon the representation of the vendor that they were the latest and safest for use in an area where a spray gun is being operated.

One factor to be considered with reference to a serious violation is whether the employer knew, or with reasonable diligence, could have known of the presence of the violation. Based upon the entire record it cannot be said that respondent had reason to know of the existence of a serious violation. Respondent's president, Mr. Jackson, has not been shown to be aware of the alleged inadequate ventilation. It has not been established that he knew that the heaters would be considered by the compliance officer to be an "open flame" type of heater. In fact he appeared sincere in his [*27] testimony that the manufacturer represented them to him as being safe in a paint spraying area. He felt that the ventilation was adequate in that he had never heard of an accident in a spraying area in the 20 year history of the Keystone Body Works or in the trade in general. He advised that he had never experienced or heard of any accidents attributable to the type of lighting fixtures in his shop nor was he aware of any explosions. He testified that there was never more paint on hand than a one day or one shift supply. While it has been shown that the lights in the ceiling were not "explosion-proof", Mr. Jackson advised that about a year before the hearing he inquired of his electrical supplier about explosion-proof lighting and was informed that although this was to be a new requirement it was not certain as to where this type of equipment could be obtained.

Based upon the entire record it cannot be concluded that respondent committed a serious violation within the purview of section 17(k) of the Act. This is not to say, however, that respondent was not in violation of section 29 CFR 1910.107(c)(6) regarding a failure to have explosion-proof lighting fixtures, or section [*28] 29 CFR 1910.132(a) for the failure of an employee to wear a respirator while spray painting.

In determining what penalty might be appropriate in a given situation the section 17(j) of the Act requires that consideration be given to the items of size of business, gravity of the violation, good faith, and history of previous violations. The area director testified that respondent was given the maximum credit permitted under his guide lines for the items of past history and size. It is apparent from the evidence presented that the conditions in respondent's paint and body shop were not as serious as was anticipated when the original citation was drafted. The area director frankly admitted that he would not consider the respirator violation to be in the serious category (Tr. 133) and advised that he would place the light fixture infraction in the higher gravity classification of a nonserious violation (Tr. 134). From the testimony of Mr. Jackson it is the view of the undersigned that more credit should have been allowed for the good faith item. The photographs received in evidence indicate that respondent's shop was clean and that various types of signs were posted on the walls as [*29] required by regulations. From his testimony it appears that respondent has a sincere desire to comply with safety standards and has a wholesome respect for the objectives of the Act. Accordingly, it is determined that a penalty in the amount of $30.00 each for the two aforementioned violations will be in the public interest.

FINDINGS AND CONCLUSIONS

The entire record herein supports the following findings and conclusions:

1. Respondent, Keystone Body Works, who was an employer on January 9, 1974, had employees who were engaged in a body repair and paint spraying operation at its work place at 1917 Avenue "Q", Lubbock, Texas.

2. Respondent is an employer who is engaged in a business affecting commerce within the meaning of section 3 of the Act.

3. Respondent at all times material hereto, was subject to the requirements of the Act and standards promulgated thereunder and the Review Commission has jurisdiction over the parties and subject matter herein.

4. As a result of an inspection of respondent's work place at the aforementioned location on January 9, 1974, by representatives of the complainant, a citation together with a notification of proposed penalty was issued [*30] to respondent.

5. On January 9, 1974, one of respondent's employees was spray painting an automobile with a flammable liquid without wearing a respirator, in contravention of 29 CFR 1910.132(a).

6. On said date respondent's paint spraying area was not equipped with an explosion-proof type of electrical wiring as required by the standard set forth in 29 CFR 1910.107(c)(6).

7. For the two aforementioned nonserious violations a penalty of $30.00 each would be appropriate and the same will be assessed.

8. It has not been established by a preponderance of the reliable and probative evidence that respondent violated:

(a). Section 29 CFR 1910.107(d)(2) for having inadequate ventilation in its paint spraying area.

(b). Section 29 CFR 1910.107(c)(2) for having used a spray gun less than 20 feet from an open flame.

(c). Section 29 CFR 1910.107(e)(2) for keeping a quantity of flammable liquids near paint spraying operations in excess of a one day or one shift supply.

9. It has not been established by a preponderance of the reliable and probative evidence that respondent committed a serious violation within the meaning and intent of section 17(k) of the Act, and the $600.00 penalty [*31] proposed therefor should be vacated.

ORDER

It is ORDERED that the citation for an alleged serious violation and the notification of proposed penalty therefor be and the same are hereby vacated.

It is further ORDERED that items 1E and 1G of the citation, alleging violations of 29 CFR 1910.107(c)(6) and 29 CFR 1910.132(a) be affirmed and penalties in the amount of $30.00 each be assessed therefor.

Date: February 12, 1975

HENRY F. MARTIN, JR., JUDGE, OSAHRC