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.