SECRETARY OF LABOR,
Complainant,

v.

SIMPLEX TIME RECORDER COMPANY,
Respondent.

OSHRC Docket No. 82-0012

DECISION

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

Simplex Time Recorder Company manufactures time equipment and building management systems at its Gardner, Massachusetts plant.   Following a fire on August 6, 1981, which resulted in the death of an employee, the Secretary on December 10, 1981 issued several citations to Simplex, one of which, citation 2, alleged that Simplex had committed willful violations within the meaning of section 17(a) of the Act, 29 U.S.C 666(a).  Item 3 of citation 2, as amended, alleged that during the period from six months prior to the date of the citation through "on or about" the date of the fire [[1]] Simplex was using a lacquer thinner with a flash point of four degrees Fahrenheit to clean the floor of a spray booth, contrary to 29 C.F.R. 1910.107(g)(5).  The standard states:

1910.107  Spray finishing using flammable and combustible materials.

(g) Operations and maintenance--

(5) Cleaning solvents.  The use of solvents for cleaning operations shall be restricted to those having flashpoints not less than 100 F.; however, for cleaning spray nozzles and auxiliary equipment, solvents having flashpoints not less than those normally used in spray operations may be used.   Such cleaning shall be conducted inside spray booths and ventilating equipment operated during cleaning.

Simplex contends that the citation must be vacated because section 1910.107(g)(5) was not validly promulgated.  Administrative Law Judge Richard DeBenedetto rejected Simplex's contention that the Secretary had not validly promulgated this standard.  He found Simplex in violation of the standard and held that the violation was willful.  For the reasons that follow, we conclude that the judge properly upheld the standard as validly promulgated, but we reverse his decision finding the violation willful.

The validity of section 1910.107(g)(5)
29 C.F.R. 1910.107(g)(5) was adopted in 1971 when the Secretary promulgated Part 1910, containing occupational safety and health standards issued under section 6(a) of the Act. [[2]] 36 Fed. Reg. 10466 (1971).  It was derived from section 808 of NFPA No. 33--1969, Standard for Spray Finishing Using Flammable and Combustible Materials, a national consensus standard published by the National Fire Protection Association ("NFPA").  29 C.F.R. 1910.115.  Section 808 of the NFPA standard states in part:

Solvents for cleaning purposes should, where practical, preferably be of a type that will not burn.

The use of solvents for cleaning operations shall be restricted to those having flash points not less than 100 degrees F.; however, for cleaning spray nozzles and auxiliary equipment, solvents having flash points not less than those normally used in spray operations may be used.

Such cleaning shall be conducted inside spray booths and ventilating equipment operated during cleaning.

When the Secretary adopted section 1910.107(g)(5), he deleted the first paragraph of section 808, "[solvents] for cleaning purposes should, where practical, preferably be of a type that will not burn."[[3]]  This deletion was consistent with the preamble to the new Part 1910, in which the Secretary stated that:

The national consensus standards are occupational safety and health standards adopted and promulgated either by the American National Standards Institute (ANSI) or by [NFPA] under procedures where it can be determined that persons interested and affected by the scope or provisions of the standards have reached substantial agreement on their adoption . . . . The national consensus standards contain only mandatory provisions of the standards promulgated by those two organizations.  The standards of ANSI and NFPA may also contain advisory provisions and recommendations the adoption of which by employers is encouraged, but they are not adopted in Part 1910.

36 Fed. Reg. 10466.

Because section 6(a) authorized the Secretary to adopt national consensus standards without regard to the notice and comment rulemaking procedures otherwise prescribed by section 6(b) and the Administrative Procedure Act, 5 U.S.C. 553, national consensus standards adopted under section 6(a) could not be substantively modified.  Diebold, Inc. v. OSHRC, 585 F.2d 1327, 1332 (6th Cir. 1978); George C. Christopher & Son, Inc., 82 OSAHRC 9/A2, 10 BNA OSHC 1436, 1442-43, 1982 CCH OSHD 25,956, pp. 32,530-31 (No. 76-647, 1982).  Simplex claims that the deletion of the first paragraph of section 808 substantively altered the NFPA source standard and therefore was impermissible under section 6(a) of the Act.  Judge DeBenedetto rejected the argument on the ground that the change in language had no substantial effect on Simplex's duty.  We agree.[[4]]

The first paragraph of NFPA section 808 generally advises employers that to the extent "practical" for cleaning purposes they should avoid using solvents that will burn.  Clearly, this provision does not prohibit an employer from using flammable or combustible solvents.  The second paragraph, moreover, by its plain terms expressly allows employers to use solvents having a flash point [[5]] of less than 100 degrees Fahrenheit for cleaning spray nozzles and auxiliary equipment, provided that the employer also uses solvents of such flash point in its production operations.  At the same time, however, the second paragraph specifically prohibits an employer under any circumstances from using solvents with a flash point less than 100 degrees for other cleaning purposes.  In order for the two paragraphs to be read together as a harmonious whole, [[6]] we conclude that both are directed at the same objective, namely, the reduction or the hazards presented by the use of flammable or combustible solvents for cleaning purposes.  The first paragraph essentially prescribes this objective.  The second paragraph elaborates on and more fully explains how an employer must satisfy the general admonition set forth in the first paragraph by specifying the precise circumstances under which an employer shall or shall not use solvents of particular flash points in cleaning operations.  Accordingly, the two paragraphs are consistent with each other, [[7]] but the substantive requirements applicable to cleaning operations are imposed by the second paragraph.  Clearly, under NFPA section 808 an employer is required to comply with the specific restrictions on the use of flammable solvents even though the language of the first paragraph is not mandatory. [[8]]  It necessarily follows, then, that the Secretary's deletion of the first paragraph of NFPA section 808 had no effect on the substantive provisions of the standard.  In this case, Simplex's obligation to ensure that the flammable solvent it was using for cleaning the floors of its spray booths had a flash point of at least 100 degrees is the same under both the NFPA source standard and section 1910.107(g)(5) as ultimately promulgated by the Secretary.   Therefore, by deleting the first paragraph of the NFPA standard, the Secretary did not impermissibly modify that standard.  Cf. Noblecraft Industries, Inc., 75 OSAHRC 5/A2, 3 BNA OSHC 1727, 1732, 1975-76 CCH OSHD 20,168, p. 24,002 (No. 3367, 1975), aff'd, 691 F.2d 199, 203-04 (9th Cir. 1980) (Section 6(a) does not require the Secretary to adopt an explanatory and discretionary "headnote" to a national consensus standard).

Alleged willfulness of violation of section 1910.107(g)(5)
This violation is based on Simplex's practice of using a solvent having a flash point of four degrees to clean paint deposits on the floor of a spray booth.  Simplex's employees would allow approximately one-half gallon of solvent to accumulate on the floor of the spray booth in the area of paint deposits.  Once the solvent had softened the paint, employees would scrape off the residue.  Use of the solvent in this manner was discontinued on or about August 6, 1981, when a fire occurred in one of Simplex's electrostatic spray booths.[[10]]  The record does not indicate for how long employees had been cleaning spray booth floors with the solvent prior to this fire.  Although another fire had occurred in one of Simplex's automatic spray booths on March 23, 1981, Factory Mutual, one of Simplex's insurance carriers, attributed the earlier fire to an electrical short igniting paint overspray deposits.  As a result, Factory Mutual recommended that Simplex clean the walls and floors of its spray booths on a weekly basis.  At about the same time, Whitman, an employee who had been assigned to redesign the spray finishing area to increase its efficiency and reduce the amount of paint deposits, also recommended improved cleaning procedures.  Neither Factory Mutual nor Whitman specified the type of cleaner to be used.  In response, Simplex did initiate a cleaning program consisting of weekly cleanup of the entire area of the booths and daily cleanup of painting equipment.  Supervisors were also required to complete log sheets, which were submitted to higher management, indicating that the prescribed cleaning had been conducted.

Tremblay, Simplex's safety engineer, testified that although he would periodically examine the conditions in the spray booths, and was generally aware that paint thinner having a flash point of four degrees was used during production operations, he did not know, prior to the August 1981 fire, that solvent was being used for cleaning purposes.  Meunier, Simplex's painting supervisor, was aware that equipment and the floors in spray booths were being cleaned with solvent, but did not know the flash point of the solvent used. Tremblay, but not Meunier, was generally aware of the OSHA standards, including section 1910.107.

In addition to investigating the fires which had occurred in Simplex's facility,[[10]] its two insurance carriers also conduct regular and periodic inspections of the plant.  One carrier makes monthly inspections.  The other inspects two times per year, and each of these inspections lasts between two and-a-half and three days.  Each production area of Simplex's plant also has an employee safety committee which meets monthly and reports in writing its recommendations for the correction of hazards.  It is Simplex's policy to implement the appropriate corrective action when recommended by employee committees.  Furthermore, prior to the August 1981 fire and the resulting inspection by the Secretary, Simplex had requested that the state authorities conduct a plant-wide health and safety evaluation.  Following this inspection, which was conducted over a four-to-five month period and included the painting area, the state inspectors identified some possible violations of OSHA standards, which Simplex instructed its managers and supervisors to correct.  There is no indication that either Simplex's insurance carriers, employee committees or the state inspectors ever notified Simplex's management that a flammable solvent was improperly being used for cleaning the floors of spray booths or informed Simplex that certain solvents could not be used for this purpose.  Indeed, Whitman, Simplex's employee with approximately 15 years experience in painting operations, whom Simplex regarded as one of its employees most knowledgeable about spray finishing, considered the solvent safe when used for cleaning.  Similarly, Simplex had never before been cited for a violation of 29 C.F.R. 1910.107(g)(5) although the Secretary had inspected it on nine prior occasions.

To establish that a violation was willful, the Secretary must show that it was committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety.  See, e.g., D.A. & L. Caruso, Inc., 84 OSAHRC, 11 BNA OSHC 2138, 2142, 1984 CCH OSHD 26,985, p. 34,694 (No. 79-5676, 1984); Duquesne Light Co., 84 OSAHRC 23/D2 11 BNA OSHC 2033, 2040, 1984 CCH OSHD 26,959, p. 34,603 (No. 79-1682, 1984); Mobil Oil Corp., 83 OSAHRC 47/B6, 11 BNA OSHC 1700, 1983 CCH OSHD 26,699 (No. 79-4802, 1983).

The Secretary contends that the violation was willful because Simplex's supervisors knew that solvent having a flash point of four degrees was used for cleaning spray booth floors and disregard the "obvious hazard" of using a flammable liquid in a spray booth where the possibility of ignition exists.  The Secretary also contends that Simplex actually knew of the requirements of 29 C.F.R. 1910.107(g)(5), because Tremblay was aware of the standards pertaining fire prevention in spray booths.

We do not believe the record supports the Secretary's contention that Simplex was aware that solvent having a flash point of less than 100 degrees was being used improperly for cleaning the floors of spray booths.   Meunier stated without contradiction that he was not aware of this usage.   Insofar as Tremblay's knowledge is concerned, the Secretary relies, as did the judge, on the testimony of Mace, a state fire investigator, who testified that Tremblay told him he knew of the practice.  As Simplex points out, however, Mace's testimony does not clearly establish when Tremblay first became aware that solvent was being improperly used for cleaning floors.  Therefore, Mace's testimony does not contradict Tremblay's repeated denial that he knew of the practice prior to the August 1981 fire. [[11]]

There is, of course, no dispute that Tremblay was aware that a solvent having a flash point of four degrees was used during other spray finishing operations.  However, we cannot agree with the Secretary that such use constitutes an "obvious hazard" to which Tremblay consciously allowed employees to be exposed.  On the contrary, the standard by its plain terms permits an employer generally to use solvents having a flash point of less than 100 degrees in spraying operations, as Simplex did.  Moreover, it permits such solvents to be used for certain cleaning operations as well, specifically for cleaning painting apparatus.  Accordingly, the mere fact that Simplex allowed this solvent to be used in spray booths with the knowledge of its supervisor is not sufficient in itself to demonstrate that Simplex acted in disregard of the Act or was indifferent to employee safety.  Absent facts showing such disregard or indifference, Simplex's failure to comply with the standard's restrictions on the use of solvents for cleaning purposes clearly cannot be characterized as willful simply because Tremblay was generally familiar with section 1910.107 and may have known of section 1910.107(g)(5) in particular.  See Wright & Lopez, Inc., 80 OSAHRC 36/A2, 8 BNA OSHC 1261, 1265, 1980 CCH OSHD 24,419, p. 29,777 (No. 76-3743, 1980).

Furthermore, the evidence affirmatively demonstrates that Simplex was not indifferent to employee safety and that, indeed, it was seriously concerned with developing proper cleaning procedures for its spray booths.   Moreover, despite numerous inspections, Simplex at no time was ever advised by its insurers, its employees, the state authorities, or the Secretary, of any improper use of solvent in its spray booths or of the restrictions on such use.  Certainly, an employer is required to comply with a standard regardless of whether it has previously been informed that a violation exists.  Columbian Art Works, Inc., 81 OSAHRC 96/F5, 10 BNA OSHC 1132, 1981 CCH OSHD 25,737 (No. 78-29, 1981).  However, simple failure to discover or eliminate a violation is not sufficient to demonstrate that the violation is willful in nature.  Marmon Group, Inc., 84 OSAHRC _______, 11 BNA OSHC 2090, 1984 CCH OSHD 26,975 (No. 79-5363, 1984), and cases cited therein.  See Trans World Airlines, Inc. v. Thurston, 105 S.Ct 613, 626 (1985).  Mosites Construction Co., 81 OSAHRC 40/A2, 9 BNA OSHC 1808, 1981 CCH OSHD 25,357 (No. 78-50, 1981).  Accordingly, in the circumstances here, we conclude that the violation cannot be found willful.[[12]]

Since the Secretary alleged the violation was willful in nature but failed to prove willfulness, we must now determine whether to affirm the violation as serious or other than serious in nature.  See Crawford Construction Co., 82 OSAHRC 10/A2, 10 BNA OSHC 1522, 1526, 1982 CCH OSHD 25,984, p. 32,607 (No. 79-928, 1982), rev'd on other grounds, 718 F.2d 1098 (6th Cir. 1983) (unpublished).  The Secretary presents no other argument regarding the proper characterization of the violation, and does not contend that the violation should be found serious under section 17(b) of the Act, 29 U.S.C. 666(b), if not found willful. However, due to the evident seriousness of the violation, as shown by the death of an employee, we will affirm the citation item as serious under section 17(b), 29 U.S.C. 666(b).  In the circumstances, and taking into account as well Simplex's good faith as indicated by its overall interest in employee safety, we conclude that a penalty of $400 is appropriate.

Accordingly, that part of the judge's decision finding the violation of 29 C.F.R. 1910.107(g)(5) to be willful is reversed.  Item 3 of citation 2 is affirmed as serious, and a penalty of $400 is assessed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  Dec. 16, 1985



FOOTNOTES:

[[1]] The citation originally alleged that solvent was used improperly "on August 6, 1981 and subsequent days."  As a result of an amendment, the period during which the violation is alleged to have occurred is from about June 10, 1981 through about August 6, 1981.  This amendment is consistent with section 9(c) of the Act, 29 U.S.C. 658(c), which provides that no citation may be issued "after the expiration of six months following the occurrence of any violation."

[[2]] Section 6(a) of the Act, 29 U.S.C. 655(a),provides:

Without regard to chapter 5 of title 5, United States Code or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees.  In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.

[[3]] According to the NFPA's "Official Definitions," the word "should" refers to "recommendations or that which is advised but not required," whereas "shall" is "intended to indicate requirements."  Had the "should" provision been adopted under the Act without change, it would not have been binding.  See Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977); A. Prokosch & Sons Sheet Metal, Inc., 80 OSAHRC 96/A2, 8 BNA OSHC 2077, 1980 CCH OSHD 24,840 (Nos. 76-406 and 76-576, 1980).

[[4]] Simplex also notes a number of other instances in which section 1910.107 differs from NFPA No. 33--1969.  Simplex contends that because NFPA No. 33--1969 represents a consensus of the views of its drafters, it must be adopted verbatim in order to preserve the consensus on which it is based.  However, section 6(a) of the Act does not require the Secretary to promulgate established Federal or national consensus standards literally word-for-word.  Deering-Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1100 (5th Cir. 1980); George C. Christopher & Son, Inc., 82 OSAHRC 9/A2, 10 BNA OSHC 1436, 1443, 1982 CCH OSHD 25,956, p. 32,531 (No. 76-647, 1982).  We further note that an appellate court has rejected an identical argument raised by Simplex in a proceeding arising out of the same inspection at issue here.  Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575 (D.C. Cir. 1985).

[[5]] "Flash point" is elsewhere defined in the NFPA standards as "the minimum temperature of a liquid at which sufficient vapor is given off to form an ignitable mixture with the air near the surface of the liquid or within the vessel used . . . ." NFPA No. 321-1969, Standard on Basic Classification of Flammable and Combustible Liquids.  The NFPA standards indicate that, generally speaking, the degree of ignition hazard presented by a liquid declines as its flash point increases.  See, e.g., NFPA No. 326-1951, Warning Labels for Containers of Flammable Liquids.

[[6]] It is a fundamental rule of statutory construction that a standard must be read as a harmonious whole, with meaning given, if possible, to every word or phrase.  Richards v. United States, 369 U.S. 1, 11 (1962); United States v. Menasche, 348 U.S. 528, 538-39 (1955); United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1296, 1977-78 CCH OSHD 21,795, p. 26,225 (Nos. 10,825 and 10,849, 1977).

[[7]] The decision of the NFPA not to prohibit an employer from using any flammable or combustible solvent is consistent with the NFPA's conclusion that it is not possible to establish criteria from which an employer could absolutely determine that a particular solvent would never be hazardous under any circumstances.  Thus, NFPA No. 30-1969, Flammable and Combustible Liquids Code, which applies generally to the storage and use of such liquids, exempts from its requirements liquids having flash points at or above 200 degrees.  However, section 11 of the standard expressly notes that this exemption "should not be construed as indicating that liquids with higher flash points are non-combustible." Section 1010 further states:

Such liquids, however, [those with flash points above 200 degrees] involve some degree of hazard, which may be controlled by application of certain provisions of this Code, with appropriate modifications.  Attention is directed to the fact that liquids of flash point higher than 200 F. may assume the characteristics of lower flash points when heated, and under such conditions it may be appropriate to apply the provisions of the Code to liquids with flash points above 200 F.

[[8]] To put it another way, under NFPA section 808 if an employer uses a solvent for cleaning purposes "that will not burn" then the remaining provisions of section 808 are inoperative.  But if the employer does use a flammable solvent for cleaning, the mandatory provisions regarding the flash point of the solvent come into play.   Likewise, under OSHA standard section 1910.107(g)(5) if an employer uses a solvent for cleaning that will not burn, the standard is obviously inapplicable.  However, if the employer uses a flammable solvent for cleaning purposes then the mandatory provisions of 107(g)(5) apply to the flash point of the solvent.  Thus, the employer's duties under NFPA section 808 and under OSHA section 1910.107(g)(5) are exactly the same.

[[9]] This fire resulted in the issuance of the present citations.

[[10]] The Secretary also relies, as did the judge, on another fire that occurred in Simplex's facility on November 18, 1980.  This fire did not involve the spray booths themselves but rather the paint storage and dispensing room from which paint and thinner are piped to the spray booths.  Simplex's insurance carrier, in its report to Simplex, attributed this fire to static electricity which ignited thinner being pumped through an ungrounded hose.  It recommended improvements to the pumps, including a provision for grounding, and other modifications to the paint room and procedures for its operation.  Because this fire did not involve the use of solvents for cleaning purposes, we agree with Simplex that it has no bearing on the issues in this case.

[[11]] The judge credited Mace's testimony over that of Tremblay in part because Tremblay participated in developing new cleaning procedures following the March 1981 fire.  There is, however, no evidence to support the judge's apparent inference that Tremblay necessarily would have become aware that during cleaning employees were using solvent in an improper manner.  On the contrary, Tremblay indicated that he had not observed solvent being used for cleaning floors despite his periodic inspections of spray booths.

The Secretary also contends that Tremblay was shown to be aware of improper use of flammable solvents because following the state inspection he signed a memorandum stating, in part, that "no flammables should be inside the booths" due to possible fire hazard.  The record, however, shows that Tremblay did not sign this memorandum.  Rather, the memorandum was prepared by Whitman, who did not give it to Tremblay nor did Tremblay have knowledge of it.  Whitman further testified that his comment was concerned with storage of open cans of solvents in spray booths and that Simplex's supervisors at his request removed such cans from the spray booths.  We cannot conclude on these facts that Tremblay was put on notice that solvents were being used in spray booths for cleaning purposes.

[[12]] Although Simplex petitioned for discretionary review of the judge's decision on a number of citation items and issues, the direction for review was expressly limited only to the issues of whether section 1910.107(g)(5) was properly promulgated and, if so, whether the judge erred in finding the violation of that standard willful.  We subsequently issued an order severing these issues from those on which review had not been directed, and we entered a final order as to those citation item and issues on which review had not been directed.  It was the Commission's intent by that severance order to permit the ALJ's affirmance of a violation of section 1910.107(g)(5) to become a final order, ripe for review, leaving before the Commission only those issues directed for review, i.e., the validity of the promulgation of 1910.107(g)(5) and the categorization of the violation of that standard as "willful."  On review, however, the Circuit Court of Appeals for the District of Columbia Circuit interpreted the severance order as reserving to the Commission "the whole question of the facts, validity, and nature of the alleged violation," and declined to rule on the ALJ's finding.  Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 590, n.9 (D.C. Cir. 1985).  The circumstances, as they now exist, are that the appeal of the factual existence of the violation remains undecided, and it is unclear whether the circuit court would review the factual existence of a violation, should a deal be taken.   In order to assure a final disposition and to preserve the rights of the parties to seek review, we assert jurisdiction pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, and reaffirm the ALJ's finding that the violation occurred.