SECRETARY OF LABOR,
Complainant,

v.

VAK-PAK, INC.,
Respondent.

OSHRC Docket No. 79-1569

DECISION

Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor ("the Secretary") under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

The decision of an administrative law judge of the Commission was directed for review to consider whether the judge erred in concluding that Respondent, Vak-Pak, Inc. ("Vak-Pak"), was a "business affecting commerce" under section 3(5) of the Act, 29 U.S.C. § 652(5).  For the reasons that follow, we conclude that the Secretary failed to prove that Vak-Pak was a business affecting commerce and vacate the citations issued in this case.[[1]]

Vak-Pak manufactures water filtration equipment for swimming pools at its facility in Jacksonville, Florida.  It has eleven employees.  In its answer to the Secretary's complaint, Vak-Pak denied that it was a business affecting commerce within the meaning of the Act.  At the hearing, Vak-Pak's president testified that the company was not covered by the Act because it did not "deal" in interstate commerce.

The industrial hygienist ("IH") who conducted the inspection for the Secretary obtained information with respect to interstate commerce at the opening conference, which she wrote on an OSHA form.  However, the IH was unable to recall the information at the hearing, and the form was not introduced into evidence.  When asked whether she was told by the plant manager that the company ordered some chemicals that were manufactured in California, the IH answered, "I think there was, yes."

Vak-Pak's president testified about the company's suppliers and its use of certain materials and equipment.  He stated that the company used methyl ethyl ketone peroxide, polyester resins, and acetone.  The president also said that Vak-Pak used stationary and paper clips and that Vak-Pak executives made long distance telephone calls.  Vak-Pak correctly notes that he did not testify that these calls were out of state.   In response to questions by the Secretary's attorney, Vak-Pak's president testified that its supplier, Dynamic Sales, was located in Florida and that he did not know where that company got its supplies.  He also testified that he was aware of Rolochem Corporation and that it might be located in California.  No connection between Rolochem and Dynamic Sales was established on the record, although one may exist.[[2]]  The president further stated that the filtration equipment manufactured by Vak-Pak was shipped by trucks owned by Vak-PaK; the manufacturer of the trucks was not mentioned.

In addition, in response to a question unrelated to the commerce clause issue, concerning monitoring for styrene, Vak-Pak's president stated that he had called Morris Chemical Company, "the ones that supply me with my chemicals," to obtain information on styrene vapors.  Morris Chemical, described as reluctant to give this information, was not identified.  The president went on to say that:  "I did get enough information to find that 3-M, which we had been buying en masse from has facilities to test the equipment."

The judge, citing Godwin v. OSHRC, 540 F.2d 1013 (9th Cir. 1976), concluded that "[t]he types of materials and equipment used by respondent at its manufacturing facility clearly results in the business affecting commerce within the meaning of the Act." Vak-Pak argues that the judge's finding was in error, since there was no proof that it shipped any products out of state, purchased products from outside Florida, or used products manufactured outside Florida.  The Secretary contends that the judge's finding on the commerce issue is supported by the evidence.   The Secretary relies upon Vak-Pak's use of various materials and chemicals in its operations, its use of trucks to ship its finished product, and testimony by the IH and by Vak-Pak's president which, in the Secretary's view, establishes that some chemicals used by Vak-Pak more likely than not were manufactured outside Florida.  The Secretary also argues that Vak-Pak is "in a class of employers, i.e., manufacturers," whose activities affect interstate commerce. Further, the Secretary requests that the Commission take judicial notice that one of Vak-Pak's suppliers, 3-M, is engaged in the production and distribution of goods for commerce.

We vacate the citation because the Secretary failed to establish that Vak-Pak was "engaged in a business affecting commerce . . . . " See 29 U.S.C. § 652(5).[[3]]  To establish that an employer was engaged in a business affecting interstate commerce, the Secretary must present evidence of activities which either directly or indirectly have an effect on interstate commerce.  See Austin Road Co. v. OSHRC, 683 F.2d 905 (5th Cir. 1982)("Austin Road").  In this case, the Secretary failed to present such evidence.

The Secretary attempted to demonstrate that Vak-Pak's purchases of certain goods affected interstate commerce.  At a minimum, therefore, the Secretary must show that the goods were purchased out of state or manufactured out of state.  See e.g., Avalotis Painting Co., 81 OSAHRC 7/B1, 9 BNA OSHC 1226, 1227, 1981 CCH OSHD ¶ 25,157, p. 31,056 (No. 76-4774, 1981).  Here, however, the Secretary did not establish that Vak-Pak purchased goods from out of state or that it purchased goods from within the state that were manufactured outside the state.

We do not find that testimony by the industrial hygienist or Vak-Pak's president concerning the sources of Vak-Pak's supplies is sufficient to establish an effect upon interstate commerce.  Although the IH stated that she was told that Vak-Pak used chemicals manufactured in California, this testimony was qualified by the words "I think."  The President's testimony indicates that Vak-Pak bought supplies from a Florida distributor that may in turn have been supplied by Rolochem Corporation and that Vak-Pak's president "thinks" that Rolochem is located in California.  This testimony is not definite enough to establish that these purchases affected interstate commerce.  We note that testimony of this sort is precisely the type of evidence that the Fifth Circuit found insufficient in Austin Road, supra.   In that case, testimony by the compliance officer that Austin used "a Bucyrus Erie hydraulic boom crane which he believed was made in Bucyrus, Michigan" was held to be inadequate to establish the Secretary's case.  683 F.2d at 907.

We also decline to find an effect upon commerce based upon judicial notice that one of Vak-Pak's supplier's, "3-M," is Minnesota, Mining & Manufacturing Company, which is incorporated in Minnesota.  This "fact" does not satisfy the Secretary's burden.  On this record we do not know what it is that Vak-Pak purchased from 3-M, where it was purchased or where it was manufactured. The Secretary has simply not adduced sufficient evidence to determine whether Vak-Pak is subject to the jurisdiction of the Act. See Austin Road, supra.

While Vak-Pak is a manufacturer of water filtration equipment for swimming pools, there was no evidence that such business is interstate in nature or affects interstate commerce.[[4]]  For a specialized industry such as manufacturing water filtration equipment, we find it inappropriate to take judicial notice of an effect upon interstate commerce.  See, e.g., Austin Road, 683 F.2d at 908; Wirtz v. Miss Hollywood, Inc., 370 F.2d 326 (5th Cir. 1967)(court did not take judicial notice of the interstate nature of Miami, Florida clothing business).  We also conclude that the Commission's decision in Clarence M. Jones, supra (company engaged in construction is in a class of activity engaged in interstate commerce), should not be extended to reach operations such as Vak-Pak's. Further, we do not accept the Secretary's invitation to declare that all employers engaged in manufacturing, regardless of the nature of the business, affect commerce and hence are covered under the Act, since we have been presented with no authority which shows that such a conclusion is appropriate.

Accordingly, the citations in this case are vacated.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  JUL 20 1984

CLEARY, Commissioner, dissenting:

I disagree with the majority's finding that the evidence in this case "does not establish that VAK-PAK purchased goods from out of state or that it purchased goods from within the state that were manufactured outside the state."   I therefore disagree with the conclusion that VAK-PAK was not shown to be "engaged in a business affecting commerce . . . . " 29 U.S.C. § 652(5). Accordingly, I dissent.

Case law holds that commerce coverage is established if a business purchases products and supplies that have been manufactured out-of-state.  Avalotis Painting Co., 81 OSAHRC 7/B1, 9 BNA OSHC 1226, 1227, 1981 CCH OSHD ¶ 25,157, p. 31,056 (No. 76-4774, 1981).  The record in this case amply demonstrates that VAK-PAK made purchases of supplies and materials from out-of-state sources.  The industrial hygienist who conducted the inspection testified that she was told at the pre-hearing conference by a VAK-PAK representative that the company purchased chemical supplies from a California-based company named Rolochem. This testimony was directly corroborated by VAK-PAK's president at the hearing.  The president also stated that VAK-PAK had made purchases "en masse" from the 3M Company.

The majority, however, disagrees that this evidence establishes that VAK-PAK uses products that have moved in Interstate commerce.  The majority finds that the testimony concerning VAK-PAK purchases from Rolochem "is not definite enough . . . ." The majority reasons that this testimony is of the sort found insufficient to establish commerce coverage in Austin Road Co. v. OSHRC, 638 F.2d 905 (5th Cir. 1982).  However, that case involved the sufficiency of an administrative law judge's findings, and not, as here, the sufficiency of the factual record itself.   The Austin Road court itself recognized this important distinction:   "[T]he accepted factual findings provide the basis for review:  we need not glean the evidence, but look only to the administrative findings of fact."   683 F.2d at 90 (footnote omitted).  Because the administrative law judge found that the compliance officer inspecting Austin Road's job site testified "inconclusively" about the Bucyrus Erie crane, it is hardly surprising that the Fifth Circuit chose not to disturb that finding on review.  The majority's reliance on Austin Road is therefore somewhat misplaced.  In my view the testimony establishes by a preponderance of the evidence that VAK-PAK purchased chemical supplies from a California company. The fact that the witnesses used the terms "I think" or "I believe" does not sufficiently weaken their testimony.  It remains that two witnesses corroborated the fact that one of VAK-PAK's suppliers is based in California.  Such evidence establishes commerce coverage under the Act.  See Avalotis Painting, supra.

I would also take official notice that the 3M Company, one of VAK-PAK's suppliers, is engaged in interstate commerce.  It is no answer to say, as the majority does, that "[w]e do not know what it is that VAK-PAK purchased from 3M, where it was purchased or where it was manufactured."  The question is whether it is subject to reasonable dispute that VAK-PAK's president was referring to the Minnesota Mining & Manufacturing Company.  See Fed.R.Evid. 201(b).   In my view it is not, and I note in this regard that the Supreme Court itself has recently seen fit to refer to this corporation solely as "the 3M Company."  See United States v. Knotts, 103 S.Ct. 1081, 1083 (1983).  I also note that the Ninth Circuit has taken judicial notice of the fact that Weyerhauser and Sears Roebuck are engaged in the production and distribution of goods for commerce, based on testimony that a company used materials and tools manufactured by Weyerhauser and Craftsman (Sears Roebuck).  Usery v. Franklin R. Lacy, 628 F.2d 1226, 1229 n.3 (9th Cir. 1980).  Accordingly, I would take official notice that the 3M Company is engaged in the production and distribution of goods for commerce and is a supplier of VAK-PAK.  On this basis, I also find that VAK-PAK's activities affected interstate commerce.

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ) telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] This case was also directed for review to consider whether alleged violations of 29 C.F.R. §§ 1910.1000(b)(1), 1910.1000(e) and 1910.134(a)(2) should be vacated on the ground that the Secretary's sample analyses were erroneously admitted into evidence and accorded probative weight.  Because vacate the citations on the commerce issue, we do not reach the issue regarding the admissibility and sufficiency of the evidence.

[[2]] Vak-Pak's president's testimony on this point is ambiguous, at best:

Q.  They [Rolochem] are not located anywhere in Florida, are they?
A.  Yes, sir.
Q.  They have a supplier in Florida, is that what it is?
A.  The people we buy that from is Dynamic Sales in Orlando, Florida.
Q.  But, they have to get it from the folks in Anaheim, is it, or
is it Santa Ana?
A.  I don't know where they get it from.

[[3]] Congress declared as its purpose and policy in passing the Act that the Secretary of Labor be authorized "to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce . . . . 29 U.S.C. § 651(b)(3) (emphasis added).  See also 29 U.S.C. § 652(5) (Congress defined "employer" as a "person engaged in a business affecting commerce").  Congress intended, therefore, to have the Act cover only those businesses which affect interstate commerce, not all businesses that have employees who may be subject to injury.

[[4]] This case is different from Godwin v. OSHRC, supra, the case relied upon by the judge.  In that case there was evidence that the cited activity, the clearing of land for the purpose of growing grapes, was an integral part of the interstate business of wine manufacturing.  There was no similar evidence produced in this case.