SECRETARY OF LABOR,
Complainant,

v.

SCHULTE CORPORATION,
Respondent.

OSHRC Docket No. 80-2666

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.
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 under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

A decision of Administrative Law Judge Joe D. Sparks is before the Commission for review.   The judge found that Schulte Corporation ("Schulte") violated the occupational safety standards at 29 C.F.R. 1910.94(d)(9)(v), 1910.94(d)(9)(viii), and 1910.94(d)(9)(vii).  He further found that the violation of section 1910.94(d)(9)(v) was serious in nature. The Commission agrees with the judge that Schulte violated the three standards but is divided on whether he properly classified the violation 1910.94(d)(9)(v) as serious.[[1]]


Pursuant to an employee complaint, a compliance officer from the Occupational Safety and Health Administration inspected Schulte's workplace.  Schulte manufactures bathroom accessories including fixtures.  To finish these fixtures, Schulte electroplates them.  Schulte's electroplating process requires the fixtures to be immersed in a series of tanks filled with chemical solutions.  The tanks contain different chemical solutions depending on the type of finish needed for the part.  Each chemical solution has a different pH level -- a measure which gauges the relative acidity of the solution.  Depending on how acidic or alkaline the solutions are, employees could suffer chemical burns if the solution contacts their skin or eyes.  There are five principal electroplating lines at the Schulte workplace.  Two of the lines are automatic.  Racks of parts are dipped into a series of tanks by machines.  The other three lines are hand-dip lines which require employees to insert and remove racks of parts manually.  A rack of parts weighs between 10 and 20 pounds.

Periodic Examinations

During the inspection, the compliance officer was told that some of the tanks contained chromic acid, an extremely corrosive and acidic solution which can cause erosions, ulceration's and perforation of the nasal septum.  Although Schulte employees were given pre-employment physical examinations, they were not given any subsequent exams.   Because the employees exposed to chromic acid were not provided with periodic examinations, the Secretary cited Schulte for violating 29 C.F.R. 1910.94(d)(9)(viii).[[2]]

Judge Sparks found that Schulte violated 29 C.F.R. 1910.94(d)(9)(viii) because Schulte admitted that some of its chemical solutions contained chromic acid and that its employees were not given physical examinations beyond their pre-employment physical.  Because employees were rotated at the different work stations and the incidence of chemical splashes was not very high, the judge found that the chance of nasal ulceration was remote.  He therefore found that the violation was nonserious and assessed no penalty.

We affirm this portion of Judge Sparks' decision.  The evidence is unrebutted that some of the tanks contained chromic acid. Although Schulte claims that the Secretary never established that the solutions in the tanks were strong enough to create a hazard, the compliance officer testified that the solution in at least one tank on the day of the inspection contained one tenth of one percent chromic acid.  The Secretary's expert witness then specifically testified that an employee could receive chromic ulcers from direct contact with a solution containing one tenth of one percent chromic acid and that it was not the strength of the solution so much as the presence of the chromic ion in the chromic acid which presented the hazard.

The employees who worked at the tanks containing chromic acid were exposed to the danger of contacting the chromic acid and thus contracting chromic ulcers.  The danger of direct contact with chromic acid was established by the evidence that nine employees had received injuries from contact with chemical solutions during the past year.  Under the circumstances, Schulte should have conducted periodic examinations of those employees working at tanks containing chromic acid.  The evidence established that Schulte did not conduct such periodic examinations and thus violated the standard.[[3]]

Eyewash Facilities

During the inspection, the compliance officer also noted that the antique line was 60 feet from the closest eyewash and the chrome-nickel line was 125 feet from an eyewash.   The pathways to both eyewashes were partially obstructed.  Because the Secretary believed that a worker who was splashed with the acidic chemical solutions contained in the tanks could not reach the water before the chemical caused some kind of injury, the Secretary cited Schulte for a violation of 29 C.F.R. 1910.94(d)(9)(vii).[[4]]

In finding a violation of section 1910.94(d)(9)(vii), Judge Sparks relied on testimony from Schulte's superintendent of plating, Mr. Klimecki, that if an employee was splashed with nitric acid, the employee should remove it "very quickly."  Klimecki estimated that the acid should be washed off within "a few seconds -- 15-30 seconds."  Judge Sparks said, "Considering the short time within which to wash off the chemicals before injury, the location of the required clean cold water is not sufficiently near to comply with the cited regulation."  Judge Sparks characterized the violation as nonserious and assessed no penalty.

We affirm this portion of the judge's decision.  In Plessey, Inc., 74 OSAHRC 77/C1, 2 BNA OSHC 1302, 1974-75 CCH OSHD 18,907 (No. 946, 1974), the Commission found that the eyewash standard at 29 C.F.R. 1910.94(d)(9)(vii) was not vague when examined in light of the facts of the case and the injuries that the standard was designed to prevent.  The Commission considers the strength of the corrosive material and the configuration of the work area when deciding whether the standard has been violated. Gibson Discount Center, 78 OSAHRC 30/C1, 6 BNA OSHC 1526, 1527, 1978 CCH OSHD 22,669 pp. 27,357-58 (No. 14657, 1978).  In this case, the solutions in both the chrome-nickel and antique lines were described as "very acidic."  The closest water to the antique line was 60 feet away.  The closest water to the chrome-nickel line was 125 feet away.  Both routes were partially obstructed.  We agree with the judge's finding of fact that under the circumstances employees splashed with the solutions would not be able to get to the rinse water in the short amount of time available to prevent a chemical burn.

Eye Protection

During the inspection, the compliance officer also observed Schulte employees dipping racks of parts into solutions of cyanide salts, sulfuric acid, sodium hydroxide, chromic acid and nitric acid.  In accordance with Schulte's policy, the employees were wearing rubber aprons, chemical gloves, boots and safety glasses with side-shields when they dipped the racks or removed the racks from the tanks.  The employees were not wearing tight-fitting goggles or face shields.  The Secretary believed that Schulte employees were exposed to the danger of the chemicals in the tanks splashing up under the safety glasses with side shields and into the employees' eyes.  This hazard, according to the Secretary, could be abated if the employees wore tight-fitting chemical goggles.  The Secretary cited Schulte for an alleged serious violation of 29 C.F.R. 1910.94(d)(9)(v).[[5]]


Judge Sparks found a violation of the standard.  He concluded that employees were exposed to "a danger of splashing" when they added parts to the chemical solutions.  Since Schulte's employees did not wear either the tight-fitting goggles or face shields required by the standard, Judge Sparks found a serious violation.   However, the judge lowered the proposed penalty of $490 to $100 because the record demonstrated that the safety glasses worn by Schulte's employees were "reasonably effective."

We agree that the Secretary has established a violation of 29 C.F.R. 1910.94(d)(9)(v).   Schulte argues that the language in the standard -- "when additions are made to the tanks, or when acids and chemicals are removed from the tanks" -- limits the standard's applicability to situations in which employees are engaged in adding chemicals to or removing them from the tanks.  Schulte contends that no violation can be found where, as here, employees are dipping racks of parts into the tanks.[[6]]  We reject this argument.  The Commission has held that the words "for example," which precede the language in the standard on which Schulte relies, mean that the standard's requirement for tight-fitting chemical goggles or face shields is not limited to employees adding chemicals to or removing chemicals from tanks.  Pratt & Whitney Aircraft, 81 OSAHRC 39/A2, 9 BNA OSHC 1653, 1663, 1981 CCH OSHD 25,359 p. 31,510 (No. 13401, 1981).  The standard also applies when a danger of splashing arises from adding parts to a tank.  Id.

Schulte also argues that the Secretary is interpreting the standard so that employees must wear tight-fitting goggles or face shields whenever there is the mere possibility of splashing.  This broad reading of the standard, according to Schulte, is not justified by the language of the standard.  The Commission agrees that the standard's language "whenever there is a danger of splashing" requires the Secretary to demonstrate that there is more than a theoretical possibility that an employee could be splashed with a chemical solution.  However, in this case, a danger of splashing was established by the Secretary's evidence that nine employees had received chemical burns in the past year and that at least one employee was splashed in the eyes when lowering a rack of parts into a tank containing chemical solutions.  The Secretary established that the employees working at chemical tanks were exposed to much more than merely a theoretical possibility of being injured by a chemical splash.  Schulte thus violated the standard by not requiring employees doing such work to wear tight-fitting chemical goggles or face shields.

The Commissioners disagree, however, on the severity of the violation.  Commissioner Cleary would affirm Judge Sparks' finding of a serious violation and the judge's assessment of a $100 penalty.  If an employee was splashed in the eye with the corrosive material in the tanks, the employee could sustain a serious eye injury, even blindness.  Violation of this standard is not a trifling matter, and characterizing the violation as de minimis is inappropriate.  Wright & Lopez, Inc., 81 OSAHRC 92/D10, 10 BNA OSHC 1108, 1981 CCH OSHD 25,728 (No. 76-256, 1981); Southwestern Electric Power Co., 80 OSAHRC 81/C7, 8 BNA OSHC 1974, 1980 CCH OSHD 24,732 (Nos. 77-3391 and 77-3890, 1980).

Chairman Buckley would find the violation de minimis because abatement of the violation would have only a negligible effect on the safety of employees.  Schulte employees wore safety glasses with canvas side flaps while adding parts to the tanks.[[7]] According to the Secretary, these glasses did not provide the employees with sufficient protection because chemicals could still splash up under the glasses and into the employees' eyes.   Although the Secretary suggested that the employees wear tight-fitting chemical goggles, the standard permits employers the option of using either tight-fitting chemical goggles or face shields.  Testimony at the hearing revealed that Schulte had previously required employees to wear tight-fitting goggles when adding chemicals to the tanks, but the goggles fogged over and employees complained of headaches when wearing them.  Schulte switched to requiring employees to wear face shields when adding chemicals to the tanks.  Based on this experience, it is evident that, if Schulte is required to have employees dipping parts into the tanks wear either goggles or face shields, both Schulte and its employees will choose the face shields -- a permissible choice under the standard.  Face shields, like safety glasses with side shields, would protect employees against a direct splash to the eyes, but the employees would still be susceptible to chemicals splashing underneath the face shield because a face shield does not provide a tight seal around the eyes.  The safety of the Schulte employees would not be enhanced by wearing face shields instead of the safety glasses with side shields.  Where abatement in accordance with the terms of a standard would not improve employee safety or health, a violation is properly characterized as de minimis.   Clifford B. Hannay & Son, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHD 22,525 (No. 15983, 1978).

Under section 12(f) of the Act, 29 U.S.C. 661(e), official action can be taken by the Commission with the affirmative vote of two members.  The two Commission members are divided on the characterization of the violation of 29 C.F.R. 1910.94(d)(9)(v).   To resolve this impasse, the members have agreed to affirm that portion of the judge's decision but accord it the precedential value of an unreviewed judge's decision.   See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).

Accordingly, the judge's decision is affirmed.


FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: MAR 21 1985







FOOTNOTES:

[[1]] As established by the Act, the Commission is composed of three members.   Section 12(a), 29 U.S.C. 661(a).  Currently, the Commission has two members as a result of a vacancy.

[[2]] 29 C.F.R. 1910.94(d)(9)(viii) provides,

Operators with sores, burns or other skin lesions requiring medical treatment shall not be allowed to work at their regular operations until so authorized by a physician.  Any small skin abrasions, cuts, rash, or open sores which are found or reported shall be treated by a properly designated person so that chances of exposures to the chemicals are removed.  Workers exposed to chromic acids shall have a periodic examination made of the nostrils and other parts of the body to detect incipient ulceration.  (Emphasis added.)

[[3]] Schulte claims that the standard is vague because it does not define the term "periodic examinations."  In response to an interrogatory, the Secretary said that the examinations should be conducted yearly.  No evidence was presented at the trial concerning how often the examinations should take place.  The need for examinations will depend on many factors including the strength of the chemical solutions and the length of exposure.  Without defining the term "periodic," we note that Schulte never gave its employees any examinations beyond their pre-employment physical and so violated the standard.

Schulte also takes issue with the Secretary's claim that the examinations must be performed by medical personnel.  Again, no evidence was presented on whether it is necessary or required that medical personnel perform these examinations and we do not decide whether medical personnel must perform these examinations in order to conform with the standard.  In this case, Schulte performed no examinations of any kind and therefore violated the standard.

[[4]] 29 C.F.R. 1910.94(d)(9)(vii) provides,

Near each tank containing a liquid which may burn, irritate, or otherwise be harmful to the skin if splashed upon the worker's body, there shall be a supply of clean cold water.

[[5]] 29 C.F.R. 1910.94(d)(9)(v) provides,

Whenever there is a danger of splashing, for example, when additions are made 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.

[[6]] Schulte has attached to its brief an affidavit which, the company asserts, demonstrates that the drafters of the standard intended it to have the meaning now urged by Schulte.  Schulte was in possession of the affidavit at the hearing yet offers no persuasive reason why it failed either to attempt to introduce the affidavit at that time or to call the affiant to testify.  Treating the inclusion of the affidavit as a motion to reopen the record, we deny the motion.  See Seattle Crescent Container Service, 79 OSAHRC 91/A2, 7 BNA OSHC 1895, 1898-99, 1979 CCH OSHD 24,002 pp. 29,132-33 (No. 15242, 1979).  We further note that, under Commission Rule 69, 29 C.F.R. 2200.69, affidavits are admissible in evidence only if the parties agree to their admission.

[[7]] The record shows that the one employee who was splashed in the eyes and injured was not wearing safety glasses when adding parts to a tank.  However, during the inspection that led to the citation, the employees engaged in adding parts were wearing safety glasses with side shields, and the record shows that this was Schulte's normal practice.  The Secretary has not argued that there was a violation based on the incident in which the employee was injured and there is no evidence that this incident was not simply an isolated, unpreventable occurrence.  Therefore, although the incident is relevant to whether the operation presented a danger of splashing, it does not form a part of the violation and does not show that the safety glasses with side shields were inferior to face shields in protecting employees against being splashed in the eye.