Authorized Employee

OSHRC Docket No. 82-0367


Before: BUCKLEY, Chairman, and CLEARY, Commissioner.

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 ("OSHA"). 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).

Following an OSHA inspection of its plant in Natrium, West Virginia, Mobay Chemical Corporation ("Mobay"), a chemical manufacturer, was issued one citation alleging that it failed to fully charge the air cylinders of four self-contained breathing apparatuses ("SCBA's") located in four separate departments in the plant, in serious violation of 29 C.F.R 1910.134 (f )(2) (ii).[[1]] A penalty of $350 was proposed.

Mobay, which used various highly toxic chemicals, had specific areas, in its plant where it kept SCBA's intended for use by its in-house rescue squad and fire brigade. Fully charged SCBA's supply about 30 minutes of breathing air under ideal conditions and are equipped with a bell called an "Audi-Larm" that sounds when only 5 to 7-1/2 minutes of air remain in the SCBA. Robert Clifford, the industrial hygienist who conducted the inspection of Mobay's plant, examined the SCBA's intended for use by fire and rescue employees and found that they were fully charged. In addition, each Mobay employee was provided a personal canister and mask for escape purposes. The Secretary does not allege any deficiency in either the SCBA's provided for fire and rescue purposes or the respiratory devices intended to enable employees to safely escape the plant. This case concerns other SCBA's located in various departments in Mobay's plant.

Clifford testified that he checked about two SCBA's in each of the 21 departments and found that four SCBA's in four different departments were not fully charged in accordance with the manufacturer's instructions. Clifford testified that if Mobay had not provided the four SCBA's at issue it would not have been cited so long as it had provided other adequate respiratory protection for escape purposes. According to Clifford, the undercharged SCBA's presented the hazard of not providing enough air to complete whatever emergency activity may be necessary. He noted that a fully charged SCBA supplies 30 minutes of breathing air under ideal conditions, which were seldom present, and the four undercharged SCBA's, at issues would provide even less time. Clifford stated that although no OSHA standard required Mobay to provide the SCBA's at issue he recommended that a citation be issued because Mobay, having voluntarily provided them, had to properly maintain them. He characterized the alleged violation as serious because it reduced the amount of time available to do "risky" work. However, Clifford rated Mobay's SCBA maintenance and other safety programs as very good to excellent. Under Mobay's overall SCBA maintenance program, the SCBA's were inspected on time, given the proper physical checks, and properly maintained.

Clifford stated that he was told by the two persons who accompanied him during the inspection --Jim Ingram, Mobay's Safety Supervisor, and James Regiec, President of the Union Local -- and employees who worked in the areas that. the SCBA's at issue were to be used during, an emergency, such as an explosion, fire, or major chemical leak, primarily by the rescue squad for rescue work and by employees for the shutting down and repair of equipment. He later stated that the cited SCBA's could have been used as backups by the rescue unit or by employees who needed to escape and did not have better respiratory equipment available in the event of a shutdown or other emergency. He noted that the four, SCBA's were hung, in locations that were easily accessible to those employees.

James Gobel, Mobay's Manager of Personnel and Safety, testified that the four cited SCBA's,, were not intended for employee escape use, although they could have been used for that purpose. Instead, he testified, the four SCBA's were for general use by employees while working in toxic atmospheres, where, according to the manufacturer's instructions, employees were to leave the area of the toxic air when the Audi-Larm rang.

In his decision in this case, Judge Paul L. Brady vacated the citation. For the reasons set forth below, the two Commissioners are divided on whether the judge erred in his disposition.[[2]]

Chairman Buckley would affirm the judge. He notes that industrial hygienist Clifford testified that there was no specific requirement for the SCBA's and that Mobay would not have been cited for violating section 1910.134(f)(2)(ii) if it had not provided the SCBA's at issue so long as other adequate escape respirators were provided. Clifford admitted that Mobay did provide its employees with other adequate respiratory equipment for escape purposes in the form of personal canisters and masks and provided adequate SCBA's for the fire and rescue brigade. The cited SCBA's were for general work in toxic atmospheres or for use as extra protection by the rescue squad or employees performing shut-down work. Indeed, Clifford rated Mobay's SCBA maintenance and other safety programs as very good to excellent.

To affirm this citation would penalize Mobay for voluntarily providing its employees with additional safeguards and could result in the elimination of this additional protection from the workplace. Such a ruling would discourage employers from voluntarily providing safety equipment beyond that required, a result patently at odds with the purpose of the Act -- to provide safe and healthy workplaces. See, e.g., Diebold, Inc. v. Marshall, 585 F.2d 1327, 1338 (6th Cir. 1978); General Motors Corp., GM Parts Division, 84 OSAHRC _____, 11 BNA OSHC 2062, 2066, 1984 CCH OSHD 26,961, p. 34,611 (No. 78-1443, 1984). In the instant case, the cylinders on the SCBA's at issue were substantially filled. They would have provided a user with air for a significant portion of time and certainly enhanced employee safety by comparison to the apparently acceptable alternative of not providing the SCBA's.

The lack of full charging could not be considered to have created a hazard where none previously existed because each SCBA had an alarm that would ring when 5 to 7-1/2 minutes of air remained. Employees who did use these SCBA's as backups to their personal canisters and masks would not remain in contaminated air in reliance on a fixed amount of oxygen in the SCBA, but would remove themselves immediately once the Audi-Larm sounded. In no case was the charge of a cylinder diminished to a point where less than 5 to 7-1/2 minutes of air remained. Thus, employees would have the same amount of time remaining once the alarm sounded warning them to exit. Mobay's voluntary provision of additional employee safeguards should be applauded, not discouraged, and certainly not penalized. Chairman Buckley, therefore, would affirm the judge's decision vacating the citation.

Commissioner Cleary would affirm the citation. Mobay failed to comply with the standard by not fully charging all or its SCBA's in accordance with the manufacturer's instructions. While the testimony of Mr. Gobel seems to be that the SCBA's were for general use by employees "while working in toxic atmospheres," it must be presumed that normally an employee would not be employed in a toxic atmosphere, and that a toxic substance must have escaped to create such conditions. If one were to "work" in a toxic atmosphere as a normal condition, it would be manifestly impractical to use a succession of 30-minute respirators. One must therefore conclude that emergency conditions would exist before the SCBA's would be used. But even assuming "working in toxic atmospheres" was not an emergency condition, the SCBA's must have been intended to be used in toxic atmospheres, at least on a contingency basis. Given this, both the standard and logic dictate that the SCBA's provide the maximum protection that the apparatus is capable of.

It is not sufficient to rely on an alarm to warn when the SCBA's air supply is low. This is simply a gauge, and does not supplant the requirement for a full tank. When "working" in toxic atmospheres, the hazard of an insufficient supply of air is very grave indeed.

Moreover, it is no defense that Mobay was not required to supply these particular respirators. Whether they were provided voluntarily or were required, they were intended for use, were used, or were available for use in a toxic atmosphere. It would be no defense if an employee were killed to maintain that the employer was not responsible because the employee used a SCBA that was voluntarily provided instead of another that was required. It is an exaggeration in this case to characterize these SCBA's as unsafe. However, by way of illustration, it would not be acceptable to require an employer to supply SCBA's that conform to standards, but to permit it to supply unsafe SCBA's as well, as long as it supplied them voluntarily. One would presume that because the SCBA'S were supplied, they were intended for use, and, if used, the potential for a tragic accident is obvious.

In view of the possibility of death or serious bodily harm, Commissioner Cleary would find that the violation is properly classified as serious. However, the preceding notwithstanding, the Secretary's principal witness indicated that Mobay's safety program was good to excellent. The SCBA's were inspected by Mobay. Only four out of many were minimally undercharged. Accordingly, he would assess a minimal penalty.

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 whether the judge erred in his disposition in this case. To resolve this impasse and to permit this case to proceed to a final resolution, the members have agreed to affirm 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).



DATED: FEB 27 1985



[[1]] The standard provides:

Self-contained breathing apparatus shall be inspected monthly. Air and oxygen-cylinders shall be fully charged according to, the manufacturer's instructions. It shall be determined that that regulator and warning devices function properly.

[[2]] 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.