SECRETARY OF LABOR,
CONAGRA FLOUR MILLING CO.,
OSHRC Docket No. 88-1249
On August 15, 1991, the Secretary filed a Notice of Withdrawal in the above-captioned case. The Commission acknowledges receipt of the Secretary's Notice of Withdrawal and sets aside the Judge's Decision and Order affirming the alleged violation of 29 C.F.R. § 1910.1200(e)(1)(i). There being no matters remaining before the Commission requiring further consideration, the Commission orders the above-captioned case dismissed.
Edwin G. Foulke, Jr.
Donald G. Wiseman
Dated: August 30, 1991
LYNN MARTIN, SECRETARY OF LABOR,
CONAGRA FLOUR MILLING CO.,
and its SUCCESSORS,
OSHRC Docket No. 88-1249
SECRETARY'S NOTICE OF WITHDRAWAL OF CITATION
In a decision dated January 31, 1991, Administrative
Law Judge David G. Oringer affirmed a citation for an other-than-serious violation of 29
C.F.R. 1910.1200.(e)(1)(i) (Item 5, Citation No. 2). Respondent's subsequent petition for
discretionary review of the judge's decision was granted by the Commission and a briefing
notice was issued on August 7, 1991.
After review of the record evidence, the Secretary hereby withdraws the citation for a violation of 29 C.F.R. 1910.1200(e)(1)(i) and requests that the Commission set aside the ALJ's decision as to this item.
DAVID G. FORTNEY
CYNTHIA L. ATTWOOD
Associate Solicitor for
Occupational Safety and Health
DANIEL J. MICK
Counsel for Regional
ORLANDO J. PANNOCHIA
Attorney for the
Secretary of Labor
SECRETARY OF LABOR,
CON AGRA FLOUR MILLING CO.,
and its successors,
OSHRC DOCKET NO. 88-1249
FOR THE COMPLAINANT:
Marshall H. Harris, Esq., Regional Solicitor;
James E. Culp, Esq., of Counsel
U.S. Department of Labor
Office of the Solicitor
FOR THE RESPONDENT:
McGrath, North, Mullin & Kratz, P.C.
Dean G. Kratz, Esq., of Counsel
DECISION AND ORDER
ORINGER, JUDGE: This is a proceeding brought under
Section 10(c) of the Occupational Safety and Health Act of 1970, (84th Statute, 1590; 29
U.S.C. § 651, et seq., (hereinafter sometimes referred to as "the
Act") to review citations issued by the Secretary of Labor pursuant to § 9(a) and a
proposed assessment of penalties thereon issued pursuant to § 10(a) of the Act.
This case arose as a result of citations served early in May 1988 subsequent to an inspection on April 12 and April 28 of the same year. Respondent filed a timely notice of contest to the citations and notification of proposed penalties.
A hearing on the matter was held in Philadelphia, Pennsylvania on June 5, 6, & 7, 1989, pursuant to due notice.
STATEMENT OF THE CASE
At the commencement of the hearing the parties agreed
to settle several items in that the respondent agreed to withdraw its notice of contest to
other than serious citation No. 2, items numbered 1, 2, 3 and 4. (Tr. 6)
After conferring with the tribunal the parties agreed to settle items 1a and 1b of serious citation No. 1 by consolidating the two items as a single other than serious violation and for the Secretary to withdraw the proposed penalty. In consonance therewith the Respondent agreed to withdraw its notice of contest to the amended item. (Tr. 8) The items remaining for resolution were items 2a(a) and 2a(b) alleging two violations of the standard set forth at 29 C.F.R. 1910.1200(g)(8) and item 2b of citation No. 1, alleging a serious violation of the standard set forth at 29 C.F.R. 1910.1200(f)(5)(ii). In addition thereto the last item remaining for resolution is item 5 of citation No. 2 alleging an other than serious violation of standard 29 C.F.R. 1910.1200(e)(1)(i).
The allegation of violation of 29 C.F.R. 1910.1200(g)(8) found in item 2a(a) of the serious citation alleged that the employer failed to maintain material data sheets for Brutus A. welding rods and for OSHA Red Industrial Enamel manufactured by Sherwin Williams Co. Item 2b of serious citation No. 1 alleged a violation of the standard set forth at 29 C.F.R. 1910.1200(f)(5)(ii) in that the employer did not ensure that each container of hazardous chemicals in the work place was labeled, tagged or marked with appropriate hazard warnings.
The respondent strongly defends in the first instance on the ground that the Brutus A. welding rods and the OSHA Red Industrial paint fall within the exemption of the requirements of 29 C.F.R. 1910.1200 found in standard 29 C.F.R. 1910.1200(b)(6)(VII). Inasmuch as the inspection took place from April 12, 1988 to April 28, 1988, it would appear that the code of Federal Regulations compilation revised as of July 1, 1987 would be the proper volume to examine. However, less than two months after the volume was published, the Secretary promulgated a standard set forth at 29 C.F.R. 1910.1200(b)(6)(VII) on August 24, 1987 which can be found in Vol. 52, No. 163, Page 31878. It also appears in the volume that was revised as of July 1, 1988. This amendment reads as follows:
29 C.F.R. 1910.1200(b)(6) This section does not apply to: (VII) any consumer product or hazardous substance, as those terms are defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C. 1251 et seq.) respectively, where the employer can demonstrate it is used in the work place in the same manner as normal consumer use, and which use results in a duration and frequency of exposure which is not greater than exposures experienced by consumers;...
The compliance officer testified that respondent's material safety data sheets did not adequately indicate the ingredients of the welding rod or the health hazards associated therewith (Tr. 14). He further testified that the deficiency in recording was the failure to list chromium and nickel as ingredients of the Brutus A. welding rods. Item 2a(b) claims that the material data sheet for OSHA Red Industrial Enamel was deficient in that there was no representation of the adverse health affects that might be associated with exposure to lead. (Tr. 45) The compliance officer was of the opinion that this was a serious hazard and that exposure could cause death or serious physical harm to employees. (Tr. 50)
Item 2b of serious citation No. 1 alleges that the hazard warning on the container of Brutus A. welding rods was inadequate and did not warn the employees of the hazards associated therewith. (Tr. 54, 55) The hazard warning which was considered inadequate stated, inter alia, "Welding may produce fumes and gases hazardous to your health. Avoid breathing these fumes. Use adequate ventilation". (Tr. 56) The Secretary's witness, Mr. Renner, was of the opinion that the target organ must be reflected in the warning and, in addition thereto, this respondent separated its admonitions to employees with the terms "caution", "warning" and "danger" and, in this case, they used "caution" which was inadequate, given the company's definition of caution in its training program.
While this may be dicta I find that the target organ must be included on the warning. See Secretary of Labor, Complainant v. Hilton Davis Chemical Co., respondent and International Chemical Workers union and its Local 342, authorized employee representative, Docket No. 86-494, 13 BNA OSHC 1182 (a first impression opinion by my brother, Judge Burroughs) (1987).
The first salient question before me is whether or not these allegations of violation under 1200 came within the purview of the exemption previously referred to. Under the exemption the employer must demonstrate that the product is used in the work place in the same manner as in normal consumer use and such use results in a duration and frequency of exposure no greater than exposures experienced by consumers using the same materials. Inasmuch as this is an exception, the burden rests with the respondent to prove that it is of the same duration of exposure and used similar to that in consumer use.
During cross-examination the respondent asked the compliance officer to tell him how respondent used the Brutus A. rods and paint differently in that facility from the manner and for the duration that a consumer would use them. His question went on as follows "... you're saying they're using the welding rods differently in that facility than the consumer would use them" and the compliance officer answered in the affirmative. The next question was "alright, how? In what way?" "I know of no consumers in my personal acquaintance that do welding work, repair welding work around their homes," was the answer.
During cross-examination counsel went on to ask, inter alia,..."Now let's take the paint. What is your basis for saying that they use paint differently at this facility than a consumer would use it?" Answer -"well, the paint that's being used in this facility contains lead, and leaded paints are not available for consumer usage." While the cross-examination was interesting and not objected to, the burden of proof insofar as whether or not this was a consumer product was with the respondent in this case, not the complainant, in that it is an affirmative defense and an exception given by the Secretary and in fact specifically makes the exemption contingent upon "where the employer can demonstrate it is used in the work place in the same manner as normal consumer use and which use results in a duration and frequency of exposure which is not greater than exposures experienced by consumers;..." Therefore the question before me is not whether Mr. Renner, the compliance officer, proved greater use than consumer use; rather the question is, did this respondent affirmatively prove that the use was not greater than consumer use? Unfortunately for the complainant the compliance officer apparently did not investigate the duration of the exposure to these materials and what we have is the uncontroverted testimony of Mr. Bray an employee of the company called by the Secretary and Mr. Bellinger, called by respondent. Mr. Renner testified that he did not ascertain the duration of exposure in the facility.
The government called one, Robert Bray, a Millwright, who worked at the worksite in question for 11 1/2 years. (Tr. 177) He stated that the Brutus A. welding rods are used only to weld dissimilar types of steel to each other such as an alloy steel, something like stainless or welding cast iron or tempered steel, to a mild steel. (Tr. 178) He testified that he does such welding once a month, approximately. Under Mr. Culp's redirect examination he testified that a very small percentage of his welding time is spent with the Brutus A. welding rod. (Tr. 186) This is consonant with his testimony that he uses it approximately 5 minutes a month. Even if that is a minimization of the time, and it was ten minutes a month, it would still approximate the equivalent of consumer use. Mr. Bray also testified that insofar as the OSHA Red paint is concerned it was used one week in approximately 11 1/2 years that he was employed and it was only used to paint the top rung of some step ladders as a hazard warning not to stand above the ladders.
The respondent's main witness was Wayne Bellinger, the Safety Director for Con Agra, who has been the incumbent in this position for approximately 15 years and is responsible for safety and accident prevention at approximately 2500 Con Agra facilities and has visited the cited facility between 25 and 35 times. (Tr. 192-194) Similar to the compliance officer he is heavily experienced in safety. Respondent's Exhibit R16 is a photograph, taken on February 11, 1989, showing the inside of the Mid American Welding Supply Store in Omaha, Nebraska which disclosed several shelves of welding rods for sale including Brutus A. welding rods which are sold to the general public. (Tr. 239) While this was taken on February 11, 1989, long subsequent to the inspection, it still discloses that these items are sold to the general public and are consumer products in that they can be purchased by the public. The question remains whether the use in this case is compatible to that of a consumer.
On February 11, 1989, a photograph was taken of another store which showed hundreds of cans of paint all of which have warnings about lead similar to that found on OSHA Red. Mr. Bellinger visited Sherwin Williams stores, all in Omaha, Nebraska and was able to purchase OSHA Red Enamel in all of these stores. (Tr. 245, 246) AccordingIy, the respondent has proven that it can be purchased by the general public and by consumers.
While Mr. Renner stated that the purchase of the items in a retail store may make them consumer products, that alone is not definitive. The proof must be that the exposure and the use is comparable to that of a consumer.
The testimony is uncontroverted insofar as the duration of exposure to each of these two items, inasmuch as the compliance officer did not inquire into the time of exposure of employees to each of the products in question.
I find that even given two welders and a total of ten to twenty minutes a month, and one use of OSHA Red paint in 11 1/2 years to paint the top rungs of ladders, the use in each case, is equivalent to consumer use and thus comes within the purview of the exemption.
If in a further inspection OSHA can show a greater duration, then, and in such case, of course, it could cite this respondent again. Given the proof of record in this case I must find in favor of the respondent. First of all the uncontroverted testimony of Mr. Bellinger reveals that these items may be purchased in retail stores by the general public who are consumers and the duration of use, considering the testimony of the witnesses, is no more than that of the average consumer who would use these products. Accordingly, both products, as used it this facility, come within purview of the exemption set forth at 29 C.F.R. 1910.1200(b)(6)(VII) and thus the allegations of violation must fall.
Insofar as the other than serious citation item No. 5 is concerned, alleging a violation of the standard set forth at 29 C.F.R. 1910.1200(e)(1)(i), different criteria exists. There the applicable Section (e) reads as follows:
Written Hazard Communication Program (1) employer shall develop, implement, and maintain at the work place, a written hazard communication program for their work places which at least describes how the criteria specified in ¶ (f), (g), (h) of this section for labels and other forms of warning, materials safety data sheets, and employee information and training will be met, and which also includes the following: 1. A list of the hazardous chemicals known to be present using an identity that is referenced on the appropriate material safety data sheet (the list may be complied for the work place as a whole or for individual work areas); and...
This list contained an extra hazardous chemical, to wit Benzene, which was not at the facility. Mr. Renner argues that this is a violation. The Secretary argues and its witness, Mr. Renner, the compliance officer, testified that in the event of an emergency it would be difficult for persons responding to an emergency in that they would lose time searching for something like Benzene, which was not in the facility and in addition it would be a burden on the compliance officers. I find that the inclusion of a hazardous chemical that does not exist on the premises is a hazard. Certainly if respondent listed a non-existent hazardous chemical it certainly would be confusing to anyone searching and I think it could be certainly detrimental to the safety program of the Secretary in that is wastes the time of the compliance officer and could be dangerous in case of an emergency or accident.
Accordingly, I find that the Secretary has proven an other than serious violation of the standard set forth at 29 C.F.R. 1910.1200 (e)(1)(i).
FINDINGS OF FACT
1. The respondent is a conglomerate with approximately 60,000 employees and 2500 facilities. It operates a flour milling facility at Martins Creek, Pennsylvania, the worksite in question herein.
2. The respondent's facility was inspected by Mr. Renner an industrial hygienist for the Occupational Safety and Health Administration from April 12, 1988 to April 28, 1988.
3. The respondent was cited for violations of various sections of the standards set forth at 29 C.F.R. 1910.1200.
4. At the commencement of the hearing the respondent agreed to withdraw its notice of contest to other than serious citation No. 2, items 1, 2, 3, and 4.
5. After conferencing with the Judge, the parties agreed to settle serious citation No. 1, items 1a and 1b thereof, by consolidating those items as a single other than serious violation and deleting the proposed penalty.
6. Burtus A. welding rods can be purchased by a member of the public and a consumer at retail hardware stores.
7. Burtus A. welding rods are used infrequently, approximately 5 minutes each month by each welder at respondent's facility, which use is comparable to consumer use.
8. Leaded paints including OSHA Red paint may be purchased by consumers in retail paint stores.
9. The record reveals that OSHA Red pain had been used on one occasion only at the respondent's facility in 11 1/2 years for the purpose of painting the top rung of ladders, as a caution indication. This is comparable to no more than consumer use.
10. The complainant failed to ascertain the duration of exposure of employees to each of those items and the uncontroverted testimony in the record discloses the durations given above.
11. The listing of Benzene when there is no Benzene in the facility is a hazard and is a violation of the affected standard.
12. The list of hazardous chemicals maintained at the
facility had a sufficient inadequacy in that Benzene was included as a chemical on the
list and such item did not exist in the plant. The additional reporting of a chemical such
as Benzene might result in delaying the emergency response of those responding to the
emergency to take unnecessary precautions and to waste time. In addition it affects the
proper utilization of OSHA resources and wastes time in conducting proper inspections.
CONCLUSIONS OF LAW
1. The respondent, Con Agra, is engaged in a business that affects commerce and is subject to the Act and the jurisdiction of this Tribunal.
2. The standard set forth at 29 C.F.R. 1910.1200 does not apply to Brutus A. welding rods and OSHA Red paint as utilized in this plant inasmuch as they come within the exemption for consumer products as set forth at 29 C.F.R. 1910.1200(b)(6)(VII).
3. Respondent was not in violation of 29 C.F.R. 1910.1200(g)(8) for failing to maintain a material safety data sheet for Brutus A. welding rods.
4. The respondent was not in violation of 29 C.F.R. 1910.1200(g)(8) for failing to maintain a material safety data sheet for OSHA Red Industrial Enamel paint.
5. The respondent was not in violation of 29 C.F.R. (f)(v)(ii) for failing to provide an appropriate hazard warning on a container of Brutus A. welding rods.
6. The respondent was in other than serious violation
of the standard set forth at 29 C.F.R. 1910.1200(e)(1)(i) by failing to maintain an
adequate list of hazardous chemicals present at the worksite.
In view of the foregoing, good cause appearing
therefor, it is ordered that:
1. The allegation of other than serious violations by this respondent of the standards set forth at 29 C.F.R. 1910.95(d)(1), 29 C.F.R. 1910.95(g)(1), 29 C.F.R. 1910.95(k)(2), 29 C.F.R. 1910.95(1)(i) and 29 C.F.R. 1910.1200(e)(1)(i) are all affirmed and no penalty is assessed therefor.
2. Items 1a and 1b of serious citation No. 1, alleging serious violations of the standards set forth at 29 C.F.R. 1910.134(f)(2)(ii) and 29 C.F.R. 1910.134(f)(2)(IV) are consolidated and are affirmed as an other than serious violation and no penalty is assessed therefor.
3. Items 2a(a) and 2a(b) alleging violations of the standard set forth at 29 C.F.R. 1910.1200(g)(8) are vacated.
4. Item 2b of serious citation No. 1 alleging a
violation of the standard set forth at 29 C.F.R. 1910.1200(f)(5)(ii) is vacated. No
penalties are assessed.
It is so Ordered.
DAVID G. ORINGER,
Dated: February 22, 1991