SECRETARY OF LABOR,

Complainant,

v.

TUDOR'S BODY SHOP,

Respondent.

OSHRC Docket No. 88-0462

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

Tudor's Body Shop ("Tudor's") performs auto body repairs.  As part of this work, Tudor's spray paints vehicles in a spray booth, a small fireproof structure inside the body shop.  A compliance officer of the Occupational Safety and Health Administration performed an inspection of Tudor's premises.   As a result of that inspection, the Secretary of Labor issued a citation on August 14, 1987, alleging that Tudor's had violated the standard at 29 C.F.R. 1910.107(b)(5)(iv) [[1/]], a safety standard issued by the Secretary pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").   The Secretary proposed a penalty of $150.00.

The citation described the alleged violation by merely restating the requirements of subparagraph (iv) of the standard:  "Space within the spray booths on the upstream and downstream sides of the filters was not protected with approved automatic sprinklers." In her Complaint, the Secretary alleged that "29 C.F.R. 1910.107(b)(5)(iv) applies to respondent's operation because automatic sprinklers were not provided inside the spray booth where flammable paints and coatings are applied."  In its Answer to the Complaint, Tudor's denied that the standard applies but did not set out any reasons for this assertion.

A hearing was held before an administrative law judge, who issued a decision vacating the citation because he found that Tudor's' employees were not exposed to the hazard of explosion and fire.  He based this finding on evidence in the record that there was no source of ignition in the spray booth, so there was no chance that there would be an explosion.  The Secretary petitioned the Commission to review that decision on the ground that the standard presumes a hazard, so that the evidence relied on by the judge is immaterial.  The case is before us pursuant to section 12(j) of the Act, 29 U.S.C. 661(j).

We agree with the Secretary that the reasons given by the judge for vacating the citation were not consistent with Commission precedent.[[2]]  We conclude, however, that the result reached by the judge was correct even though his reasons were not.  We therefore affirm his disposition for the reasons that follow.

In order to prove that an employer violated a standard, the Secretary must show that:  (1) the standard applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the employer's employees had access to the cited conditions; and (4) the employer knew, or with the exercise of reasonable diligence, could have known of the violative conditions.  Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD 25,578, p. 31,899-900 (No. 78-6247, 1981).

We invited the parties to file supplemental briefs addressing the issue of whether the Secretary had carried her burden of proving the applicability of the standard to Tudor's spray booth.  More specifically, we asked whether the Secretary had proved that this was a conventional dry type spray booth and that overspray dry filters or filter rolls had been installed.  As we read the standard, if the Secretary has failed to prove either of these facts we cannot conclude that the standard applies and therefore cannot find a violation.

In the Complaint, the Secretary did not allege that the spray booth in question was a conventional dry type spray booth within the meaning of paragraph (5) or that it had overspray dry filters or filter rolls installed, facts which would bring the booth within the coverage of subparagraph (iv).  At the hearing, the compliance officer did not state what kind of booth this was or indicate that overspray dry filters or filter rolls had been installed.  Neither the Secretary's post-hearing brief to the administrative law judge nor the judge's decision mentioned paragraph (5) of the standard, although both quoted subparagraph (iv).  The Secretary's petition for review and brief on review both quoted subparagraph (iv) without mentioning paragraph (5), even though paragraph (5) is the section that describes where and under what circumstances subparagraph (iv) applies.

The Secretary asserts in her supplemental brief that, at all stages of the proceeding, the parties acted on the assumption that Tudor's Body Shop's booth was a dry spray booth, even though the Secretary neither alleged nor presented testimony that it was.  Tudor's was not represented by an attorney; it appeared pro se by its president, William Tudor.  Mr. Tudor asserted in his Answer to the Complaint that the standard does not apply to his operation, and he repeated that claim at the hearing, even though he did not specify why.  The Secretary therefore had ample notice that the applicability of the standard was in issue.   We are unwilling to find a violation on the basis of an assumption, as the Secretary urges.

The Secretary also argues, in effect, that the record establishes that the standard applies because section 1910.107(b) contemplates only two types of booths, wet booths and dry booths; and the Secretary asserts that Tudor's' booth does not fit the definition of a wet booth.  Therefore, according to the Secretary, it must be a dry booth.  We are not persuaded by this argument.   Looking at 29 C.F.R. 1910.107(a), we find the following definitions:

(3) Spray booth.  A power-ventilated structure provided to enclose or accommodate a spraying operation to confine and limit the escape of spray, vapor, and residue, and to safely conduct or direct them to an exhaust system.

(4) Waterwash spray booth.  A spray booth equipped with a water washing system designed to minimize dusts or residues entering exhaust ducts and to permit recovery of overspray finishing material.

(5) Dry spray booth.  A spray booth not equipped with a water washing system as described in subparagraph (4) of this paragraph. A dry spray booth may be equipped with (i) distribution or baffle plates to promote an even flow of air through the booth or cause the deposit of overspray before it enters the exhaust duct; or (ii) overspray dry filters to minimize dusts; or (iii) overspray dry filters to minimize dusts or residues entering exhaust ducts; or (iv) overspray dry filter rolls designed to minimize dusts or residues entering exhaust ducts; or (v) where dry powders are being sprayed, with powder collection systems so arranged in the exhaust to capture oversprayed material.

The definition of "spray booth" indicates that wet and dry booths have certain common characteristics: they both have power ventilation; they both confine the spray, vapor, and residue; and they both exhaust the spray, vapor, and residue.  The difference is that a wet booth has a water washing system to wash the overspray residues from the air being exhausted, while a dry booth does not.  While we agree with the Secretary that the record does not show that this is a wet booth, the record also does not show that it is not.  The evidence does not afford us a basis for finding that the standard applies to the spray booth in question, because we cannot ascertain what kind of booth it is.

The Secretary points to a statement in the record by Mr. Tudor that refers to filters. Describing an exhibit introduced by the Secretary, Mr. Tudor responded to a question from the judge, "That is the back end that you don't see the filters."  The Secretary claims that this statement proves that the standard applies, because the reference must be to exhaust filters and only dry booths have them.  However, we find little in the record to support that argument.  Nowhere in the record is there any support for the proposition that wet booths do not have filters.  Likewise, we find no evidence that the only filters found in dry booths are those subject to the standard.  It is possible, for example, that some spray booths may filter incoming replacement air to keep dust and grit from the finish.  Because the Secretary's assertions are not supported by the record, we reject them.

Moreover, we are unable to find that Tudor's spray booth had overspray dry filters or filter rolls installed.[[3/]]  Mr. Tudor's response to the judge's question is sufficiently ambiguous that we cannot say with any confidence that it proves that there were filters in the booth at all.  It is possible that he was saying that there were filters in the booth that were not shown in the exhibit he was describing, but we are by no means certain that he meant that.   Even if that is what he intended to say, we find no indication in this record as to what kind of filters he may have been referring to.  He may have been referring to overspray filters, but he may also have been referring to some other kind filters.   We simply do not know.

Having examined the record, we find that the evidence does not establish that the spray both in Tudor's Body Shop had overspray dry filters or filter rolls installed.  We therefore conclude that the Secretary failed to prove that 29 C.F.R. 1910.107(b)(5)(iv) applies to the cited spray booth.   Hence, we cannot find that Tudor's was in violation of the cited standard.

This decision does not constitute a finding that the standard does not apply to the spray booth.  Perhaps, if the record contained an adequate description of the spray booth in Tudor's Body Shop, we would find that it does apply; but, on this record, we cannot know whether it does or not.  We therefore do not make any finding as to whether or not section 1910.107(b)(5)(iv) applies to Tudor's spray booth.  We merely find that, on this record, the Secretary has failed to prove that element of the alleged violation.

The Secretary has suggested in her brief that, if the Commission does not find that the record supports a finding that the standard applies, a remand would be appropriate because "the applicability of the standard was taken as a given."  We disagree.  The Answer filed by Tudor's specifically denied that the standard applies to its spray booth.  At the hearing, Mr. Tudor pursued this position, although he may not have articulated it in terms which informed the Secretary of the basis for his assertion.  It has long been established by Commission precedent that the first element in proving a violation of any standard is proof that the standard applies to the cited conditions.  Given the failure of the Secretary to present evidence on this element of her prima facie case, it would not be proper to require Tudor's to endure the inconvenience and expense of another evidentiary hearing in order to give the Secretary a second chance to prove a simple violation.

We therefore affirm the administrative law judge's disposition of this case, although not for the reasons relied on by the judge.  We vacate the citation because the Secretary has failed to establish the applicability of 29 C.F.R. 1910.107(b)(5)(iv) to the cited spray booth.

Edwin G.Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G.Wiseman
Commissioner

Dated: March 25, 1991


ANN MCLAUGHLIN, SECRETARY OF LABOR,
U.S. DEPARTMENT OF LABOR

Complainant

v.

TUDORS BODY SHOP

Respondent

Docket No. 88-0462

APPEARANCES:

THOMAS A. BROWN, ESQUIRE
U.S. Department of Labor

Office of the Solicitor

MR. WILLIAM TUDOR (Pro Se)
Tudor's Body Shop

DECISION AND ORDER

TENNEY, JUDGE:

1.  The Occupational Safety and Health Administration conducted an inspection in June 1987 of Tudor's Body Shop. Several citations for violations of the Occupational Safety and Health Act were issued. All have been settled except one, an alleged violation of 29 C.F.R. 1910.107(b)(5)(iv). This is now before the undersigned by virtue of a timely contest on August 28, 1987. The case was heard on May 31, 1988. The attorney for the Secretary of Labor has filed a post-hearing brief. No post-hearing brief has been filed by or on behalf of Tudor's Body Shop.

2.  The critical allegation is that on June 8, 1987, the employer violated the cited standard in that automatic sprinklers were not provided inside the spray painting booth where flammable paints and coatings were applied by its employees.  There are related allegations involving employee exposure to the alleged hazard and the actual or constructive knowledge by the employer of the alleged hazard.  A penalty of $150 was proposed. See Paragraph VII of the Secretary's Complaint.

3.  The employer admits that no automatic sprinklers were provided, but denies that they were required.  Further, the employer admits that flammable paints and coatings were used in the booth, but denies that the sprinklers would reduce the likelihood of any injury.  The employer also admits that it knew that there were no sprinklers in the booth, but again denies that the condition violated an OSHA standard.  The appropriateness of the proposed penalty is also denied.  The Answer.

4.  The cited standard reads as follows:

1910.107 Spray finishing using flammable and combustible materials.

(b) Spray booths.

5.  Dry type overspray collectors (exhaust air filters)

(iv) Space within the spray booth on the downstream and upstream sides of filters shall be protected with approved automatic sprinklers.
5.  The employer does auto body and fender work as well as auto painting.  The painting is done in a spray booth that is about 10 to 12 feet wide and 15 to 20 feet long; it has exhaust ventilation at one end.  It contained a large bay door through which an auto to be painted would enter.  (Testimony of Mr. Woodburn, Tr. 11, 15-16)   Usually, one auto a day is painted in the spray booth.  It takes about four to five hours for an auto to dry in the booth. (Testimony of Mr. Tudor, Tr. 43)

6.  In his brief, the Secretary notes that an important element in any violation of a standard under section 5(a)(2) of the Occupational Safety and Health Act of 1970 is the employees being exposed to a hazard as a result of the cited condition. Here, the inspector testified that flammable paints and coatings inside the booth were being atomized into the air, and the only thing lacking was a source of ignition; examples of sources of ignition were given as metal-to-metal contact of any nature, someone walking into the booth with a lighted cigarette, a spark from an auto ignition, or a crack or other imperfection in the explosion - proof lighting. (Testimony of Mr. Woodburn, Tr. 20)  This case turns on whether a source of ignition exists.  The credible testimony is that no source of ignition was present.  The employer has only one painter who does not smoke, and when he goes into the booth it is his habit to lock the door behind him.  When an auto is driven in the booth for painting, its battery is disconnected; after the paint dries the battery cable is put back and the auto is driven out.  The lighting is approved by the insurance underwriter as explosion and fireproof; and all electric switches and compressors were located outside the booth.  (Testimony of Mr. Tudor, Tr. 36-46) There being no source of ignition, the inspector's opinion as to a hazard, and exposure thereto, is reduced to speculation.

7.  If the existence of an ignition source were to be found remote rather than non-existent in light of any frailty of human habit in closing the door to the spray booth, no abatement order would be considered appropriate under 29 U.S.C. section 659(c).  This is because of the remoteness of the possibility itself and the fact that even if a sprinkler system were installed, and if a fire or explosion were to occur, it could not be activated quickly enough to prevent the injury or death of the painter.  (Testimony of Mr. Tudor, Tr. 42)  See Industrial Metal Finishing Corp., 1979 CCH OSHD Par. 23,342 (adm. law judge, 1979) (similar violation found to be de minimis).

8.  The contested alleged violation of 29 C.F.R. section 1910.107(b)(5)(iv) is hereby dismissed.

SO ORDERED.
PAUL A. TENNEY

Judge, OSHRC

DATED: August 23, 1986
Washington, D.C.

FOOTNOTES:

[[1/]] That standard provides:

1910.107  Spray finishing using flammable and combustible materials.

(b) Spray booths-

(5) Dry type overspray collectors--(exhaust air filters).  In conventional dry type spray booths, overspray dry filters or filter rolls, if installed, shall conform to the following:

(iv) Space within the spray booths on the downstream and upstream sides of filters shall be protected with approved automatic sprinklers.

[[2]] See American Steel Works, 9 BNA OSHC 1549, 1551 n.4, 1981 CCH OSHD 25,285, p. 31,270 n.4 (77-553, 1981).

[[3/]] According to the definition, a dry spray booth may have baffle plates, overspray filters, or filter rolls.  It is unclear from this definition whether a dry spray booth must have one of these devices or whether the definition merely describes permissible options. Section 1910.107(b)(5) does not enlighten us on this point, either, because it says that, if overspray dry filters or filter rolls are installed, they must meet the requirements set out in subsections (i)-(iv), which also leaves unanswered the question of whether such equipment is required, so that failure to have it would constitute a violation.  We therefore cannot draw any conclusions as to whether or not this spray booth had filters from the fact that it was not cited for failure to have them, since that may not be a violation.