SECRETARY OF LABOR,                                                                                                      Complainant,                                                                                                                         v.                                                                                                                                           TRINITY INDUSTRIES, INC.,                                                                                          Respondent.

OSHRC Docket Nos. 88-1545 and 88-1547

DECISION

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

BY THE COMMISSION:

These consolidated cases arise from an inspection of a facility operated by Trinity Industries in Jacksonville, Florida, where it manufactures Liquid Propane Gas (LPG) gas cylinders.  As a result of that inspection, several citations were issued alleging violations of OSHA standards concerning both employee safety and health.  Trinity contested the health citations and safety citations separately, and they were assigned different docket numbers.  Each docket number was heard separately by Administrative Law Judge James D. Burroughs, with the stipulation that, for purposes of economy, the evidence adduced in one case could be used in the other.  After the judge issued his decision, the cases were consolidated for review before the Commission.  On review, the parties appeared before the Commission in oral argument on November 13, 1991.

The primary issues on review are whether the judge erred in (1) refusing to dismiss the citations when the Secretary refused to comply with the judge's discovery orders, (2) affirming items alleging a failure to comply with the audiometric testing and monitoring provisions of the noise standard at 29 C.F.R. 1910.95, (3) affirming an item alleging a failure to conduct a radiation survey, and (4) affirming several items alleging various machine guarding violations.

I.

The Warrant

The inspection involved in these cases was based on a warrant issued by a United States Magistrate on May 2, 1983. The magistrate's finding of probable cause for the warrant was based on the Secretary's administrative inspection plan for scheduled programmed inspections.

After obtaining the warrant, the Secretary sought to inspect the Jacksonville facility on May 4 and 5, 1983, but was refused entry by Trinity.   On May 10, 1983, the Secretary applied to the United States District Court for the Middle District of Florida, Jacksonville Division, for an Adjudication in Civil Contempt.   In its answer to the charge, Trinity contended that the warrant was invalid because the attempted inspection was part of a continuous program of repeated,"vexatious" inspections which constituted harassment.  Trinity also counterclaimed for a declaratory judgement that the inspections were unreasonable and discriminatory, and that the warrant and the Secretary's inspection procedures were unconstitutional.  In July 1987, the district court issued its order dismissing Trinity's counterclaim and holding it in civil contempt.

The Secretary again tried to inspect the Jacksonville facility and was refused entry.  The Secretary then initiated civil contempt proceedings in the district court.  Holding Trinity in contempt, the court ordered it to permit the inspection and imposed a $10,000 per day fine for each day Trinity refused to do so.  Trinity delayed the inspection for one day, incurred a $10,000 fine and appealed the district court's order to the United States Court of Appeals for the Eleventh Circuit.

On appeal the United States Court of Appeals for the Eleventh Circuit upheld the district court's order holding Trinity in contempt.  In re Trinity Indus., 876 F.2d 1485 (11th Cir. 1989).  The court held that:  (1) the inspection plan was based on "neutral" criteria, as required by Marshall v. Barlow Inc., 436 U.S. 307 (1978); and (2) the plan is not discriminatory just because a company in the "worst" industry ranking could escape inspection during its designated cycle if it is located in a county the name of which begins with a letter near the end of the alphabet.  The court also held that the Secretary was not required to append to its warrant application documents to demonstrate that the process for selecting companies for inspection was fair and nondiscriminatory.  It was sufficient, the court stated, for the application to contain a sworn affidavit by an OSHA supervisor declaring that the company was selected pursuant to a programmed inspection and detailing how the plans were executed, including how the relevant establishment lists and inspection registers were developed and how the company was chosen for inspection.  The court stated that such information was sufficient for the magistrate to conclude that Trinity was selected by application of the plan's specific, neutral criteria.

While the aforementioned warrant enforcement proceeding was winding its way through the federal courts, the citations resulting from the inspections were being litigated before Judge Burroughs.  During the proceeding before Judge Burroughs, Trinity did not challenge the warrant on Fourth Amendment grounds.   Rather, it argued that the inspection plan, which was used to justify issuance of the warrant, discriminated against Trinity and violated its due process rights guaranteed by the Fifth Amendment.  Therefore, Trinity argued, all evidence obtained as a result of the warrant should be suppressed.

In pursuit of this argument, Trinity sought a post-search evidentiary hearing on the design and operation of the inspection plan.  At that point in the proceeding, the judge determined that he could rule on whether the plan is discriminatory and, on four separate occasions,[[1]] directed the Secretary to respond to five requests for admissions relating to the plan.  The Secretary refused to comply[[2]] and, during the hearing, instructed her witness not to answer questions related to the request for admissions.  Despite the Secretary's refusal to comply with the judge's order, the judge neither dismissed the case nor imposed sanctions.   Rather, the judge made it clear that he was conducting the hearing to comply with the Commission's preference that judges make a complete record because of the time and expense of reopening proceedings should the dismissal later be reversed.  However, after the hearing, he warned the Secretary that her refusal to comply with his orders would probably result in dismissal.

In a lengthy order, dated June 16, 1989, Judge Burroughs denied Trinity's motion to dismiss the case.  In his decision, the judge likewise denied Trinity's renewed motion.  The judge reversed his earlier determination and held that the Commission has the authority to look behind a warrant only when the warrant is honored and is challenged in Commission proceedings.  He concluded that, because Trinity chose to refuse to honor the warrant and to challenge the warrant in a contempt proceeding in district court, jurisdiction over the matter rested with the federal courts; it would be inappropriate for the Commission to intervene.  Moreover, the judge noted, the ultimate review of the warrant issue rested with the Eleventh Circuit, regardless of the forum in which the challenge took place.  Therefore, the judge concluded, Trinity would not be harmed by the Commission's refusal to entertain the issue.   The judge also found that the Secretary's refusals to comply with his discovery orders were based on legal principles that have found support in the courts and were not the result of a callous disregard of either the constitutional rights of Trinity or the orders of the judge.

On review, Trinity does not challenge the validity of the warrant.  Rather, Trinity argues that the judge erred by not imposing sanctions, including dismissal, on the Secretary for her refusal to comply with his discovery orders.   Trinity claims that it was prejudiced by the Secretary's refusal to comply.

As Trinity correctly notes, the Secretary's failure to comply with Commission orders may result in dismissal when the employer is prejudiced or when the Secretary's conduct is contumacious in character.  Samsonite Corp., 10 BNA OSHC 1583, 1587, 1982 CCH OSHD 26,054, p. 32,736 (No. 79-5649 1982); Duquesne Light Co. 8 BNA OSHC 1218, 1222, 1980 CCH OSHD 24,384, p. 29,718 (No. 78-5034 et al, 1980); see also Pittsburgh Forging Co., 10 BNA OSHC 1512, 1513-1514, 1982 CCH OSHD 25,974, p. 32,569 (No. 78-1361, 1982).  However, under Commission rule of procedure 52(e),[[3]] 29 C.F.R. 2200.52(e), a judge's authority to impose sanctions on any party for its refusal to comply with a discovery order is discretionary.  Pittsburgh Forgings, 10 BNA OSHC at 1513, 1982 CCH OSHD at p. 32,569.  Accordingly, the standard of review of a judge's actions in enforcing his discovery orders is one of "abuse of discretion".  Sealtite Corp., 15 BNA OSHC 1130, 1134, 1991 CCH OSHD 29,398, p. 39,582 (No. 88-1431, 1991); Samsonite Corp., 10 BNA OSHC at 1587, 1982 CCH OSHD at p. 32,737;  Pittsburgh Forgings, 10 BNA OSHC at 1514, 1982 CCH OSHD at p. 32,569.   We find that, under the circumstances of this case, Judge Burroughs did not abuse his discretion in determining that the case should not be dismissed.

First, we agree with Judge Burroughs that Trinity was not prejudiced by the Secretary's refusal to comply with the judge's discovery orders.   Generally, the courts have recognized two alternative forums in which employers can challenge warrants.  If the warrant is honored and citations issued, the employer may seek to have the Commission suppress the evidence obtained in the inspection by establishing that the warrant was issued without probable cause. This requires that a factual record be made.  The courts have recognized that the Commission is the proper forum for hearing such a challenge.  Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1067 (11th Cir. 1982); Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir. 1979).   A second option is for the employer to refuse to honor the warrant and challenge its validity in a contempt proceeding before an Article III court.  Sarasota, 693 F.2d at 1066, Babcock & Wilcox Co., 610 F.2d at 1136.

Trinity attempted to use both forums.  After being held in contempt for refusing to honor the warrant, Trinity relented and allowed the search.  This allowed it to pursue its challenge of the warrant in its appeal of the contempt charge at the same time as it challenged the validity of the warrant before the Commission.  However, when the validity of a warrant is being challenged in an Article III court, the Commission cannot provide a forum for a collateral attack. [[4]] Rather, the Commission must defer to the decision of the circuit court of appeals that ultimately will hear any appeal front a Commission order contrary to the decision of that court.  Regardless of whether the challenge is heard before the Commission or a federal district court, the ultimate decision (assuming the case is not appealed to the Supreme Court) on the validity of the warrant will be made by the appropriate federal circuit court of appeals.  See Sarasota, 693 F.2d at 1066.

While the federal court proceedings are pending, the Commission must process a case such as this one in accordance with its regular procedures and, consistent with the doctrine of res judicata, must follow the ultimate determination of the federal courts regarding the validity of the warrant.[[5]]  Therefore, Judge Burroughs' decision to proceed with the hearing was the correct course of action.   Had the Eleventh Circuit ultimately found the warrant invalid, the evidence could have been excluded.  On the other hand, with the warrant having been held valid, the Commission has before it a full record upon which to base a decision.  Because Trinity was able to litigate the validity of the warrant in the federal courts, it was not prejudiced by its inability to make a factual record before the Commission due to the Secretary's failure to obey the judge's discovery orders.  See Id. at 1067.

We also agree with the judge's conclusion that the Secretary's actions did not amount to contumacious conduct. Where a party's reason for refusing to comply with a discovery order has a substantial legal basis and its conduct does not indicate disrespect towards the Commission or the issuing judge, its failure to comply with a discovery order is not an indication of bad faith or contumacious conduct.   See Newport News Shipbuilding & Drydock Co., 9 BNA OSHC 1085, 1090, 1980 CCH OSHC 25,003, p. 30,891 (No. 76-171, 1980).[[6]]  The Secretary based her refusal to comply on her belief that because the matter was before the federal courts, the Commission was not a proper forum for conducting a collateral attack on the warrant. As noted, the Secretary's position was vindicated.  Under these circumstances, we find no error in Judge Burroughs' holding that the Secretary's refusal to comply did not amount to contumacious conduct.

Finally, we note that counterbalancing the Commission's obligation to enforce its orders is the principle that the public interest requires that cases be decided on their merits.  Pittsburgh Forgings, 10 BNA OSHC at 1514, 1982 CCH OSHD at p. 32,569; Duquesne Light, 8 BNA OSHC at 1222, 1980 CCH OSHD at p. 29,719.   Here, Judge Burroughs recognized the impropriety of conducting an evidentiary hearing on the validity of the warrant while the matter was pending before the United States Court of Appeals.[[7]]  The record also strongly supports his findings that Trinity was not prejudiced by the Secretary's refusal to comply with his discovery orders and that the Secretary's refusal did not amount to contumacious conduct.  We therefore conclude that Judge Burroughs properly exercised his discretion to refuse to dismiss the case and to decide the matter on the merits.

II. DOCKET NO. 88-1545

A. Background

Docket No. 88-1545 involves two citations alleging violations of OSHA health standards.  Citation no. 1 alleges willful violations of several noise exposure standards promulgated at 29 C.F.R. 1910.95.  Item 1 of citation no. 2 alleges an other-than-serious violation of an ionizing radiation standard promulgated at 29 C.F.R. 1910.96.  For reasons that follow, the alleged violations of the noise standard, set forth in citation no. 1, are affirmed, but not as willful, and item 1 of citation no. 2 is vacated.

B. Audiometric Testing                                                                                                          1. The Alleged Violation

During the inspection, noise readings taken by the compliance officer established that two employees were exposed to noise levels in excess of an 8-hour time-weighted average (TWA) of 85 dBA.  The compliance officer also learned that none of the employees were given annual audiograms.

The primary issue to be decided by the Commission, and the focus of the oral argument heard before it, is whether Trinity's hearing protection program was sufficient to relieve it of its obligation to comply with the audiometric testing provisions of the hearing protection standards promulgated at 29 C.F.R. 1910.95(g)[[8]].

Jerry Riddles, Trinity's Corporate Environmental and Safety Director, conducted noise monitoring in 1976.  A copy of the results of the monitoring was sent to OSHA, but later it was apparently discarded because of its age.  As a result of that monitoring, certain engineering, controls were implemented by Trinity.  In 1982, Riddles conducted a spot test of noise levels in the plant using dosimeters and sound level meters.  He testified that the test revealed peak noise levels exceeding 85 dBA.  Riddles considered the results to be representative of noise levels in the plant.  Because of the extensive 1976 survey, Riddles knew the type of noise involved and the type of hearing protection it necessitated.

As a result of the 1982 spot tests, Riddles established a hearing protection program for Trinity.  Under the program, all employees who could possibly be exposed to a TWA of 82 dBA for 8 hours were required to wear approved hearing protection.[[9]]  The protection ranged from foam plugs to muffs. Beginning in 1986-87, baseline audiograms were required for all new employees.  Employees hired earlier were not given such audiograms.  Neither did Trinity provide annual audiograms for any of its employees.  Riddles explained that the purpose of the annual audiograms required by OSHA is to identify those employees who have a hearing attenuation of 10 dBA so that they can be placed in a hearing protection program.   (See sections 1910.95(g)(10)(1) & (i)(B)).  Riddles testified that because every employee at Trinity who could be exposed to 82 dBA for 8 hours went into the hearing protection program, an annual audiogram was not necessary.

Although Riddles considered Trinity's program to be superior to the OSHA program, he admitted that his program would not detect possible employee hearing loss.  He testified, however, that, in his opinion, under OSHA standards, when an annual audiogram reveals a threshold shift in hearing capacity, if the employee is already required to wear hearing protection, no further action is required by the employer.

Item 2 of the willful citation alleged that Trinity violated section 1910.95(g)(6) by not providing annual audiograms to employees found to be exposed to noise levels above the 85 decibel 8-hour TWA.  At the hearing, the item was amended to also allege a violation of section 1910.95(g)(5)(i) for a failure to provide baseline audiograms within six months of an employee's first exposure to noise at or above the action level (i.e., an 8-hour TWA of 85 decibels).  The Secretary proposed a $3000 penalty for each of the two noise items.

Judge Burroughs affirmed the items as nonserious and assessed no penalty.  He held that Trinity's hearing protection program did not excuse noncompliance with otherwise applicable hearing conservation standards.   Quoting from Hackney, Inc. v. Secretary of Labor, 895 F.2d 1298 (10th Cir. 1990), he held that without implementation of the hearing conservation standards, the employer could not tell if its own program was effective.

Trinity points out that, by itself, audiometric testing does not alleviate or prevent hearing loss.  Rather, it asserts that the only purpose of audiometric testing is to enable the employer to determine who should wear hearing protectors and who needs retraining and refitting.  Under its program, Trinity argues, these purposes are fully met and exceeded by requiring all employees to wear hearing protectors that provide the maximum possible noise attenuation, and to undergo annual training emphasizing the need for such protectors and their proper use.   Trinity concedes that one of the purposes of testing is to notify employees of hearing losses but it argues that because the hearing protectors reduced noise levels entering employees' ears to 70 dBA or less, there was, at most, a remote chance of employees ever suffering a hearing loss that would require employee notification.

The Secretary argues that without audiometric testing, Trinity has no way of verifying the propriety and efficacy of its hearing protection program.  Without testing, Trinity can only assume that its employees have been properly fitted with personal hearing protection, that its training and enforcement programs are adequate, and that its employees have suffered no hearing loss.  The Secretary further argues that, as Trinity does not know how well its program is working, it must rely solely on the reported attenuation capabilities of its hearing protection equipment as measured under laboratory conditions.

We agree with the Secretary.  The record suggests that Trinity has instituted a hearing protection program that, for the most part offers its employees hearing protection that is supposed to be equal or superior to that extended by the OSHA standards.[[10]]   Nonetheless, Trinity's contention that the strictness of its program should exempt it from the applicability of OSHA's audiometric testing requirements is fatally flawed.   Trinity has provided no basis for not complying with the terms of the standard.   Once the threshold noise levels are reached, the audiometric testing standards are mandatory.  It is well-settled that an employer must comply with applicable OSHA standards even if it has a good faith belief that its own policy is wiser. Hackney Inc., 895 F.2d at 1300; RSR Corp. v.Brock, 764 F.2d 355, 363 (5th Cir. 1985).  Even if the Commission were persuaded by Trinity's argument, the Commission cannot decline to enforce a standard because it believes it imposes an unnecessary requirement.  Pace Constr. Co., 13 BNA OSHC 2161, 2162, 1989 CCH OSHD 28,522, p. 37,851 (No. 85-1362, 1989).

Moreover, adopting Trinity's position would be tantamount to creating an exception not found in the standard.  Before creating such an exception, the Commission requires persuasive evidence that such an exception was mandated by the standard's overall purpose and was consistent with the standard's intent.   Schuylkill Metals Corp., 13 BNA OSHC 2174, 2178, 1989 CCH OSHD 28,520, p. 37,847 (No. 81-0856, 1989).  Nothing in the record indicates that an exemption is either mandated by the standard's overall purpose or would be consistent with the standard's overall intent.

One of the main purposes for requiring baseline and annual audiometric testing is to enable the employer to determine if any employee is suffering a hearing loss.  Even when employees are provided with quality hearing protection, the testing can reveal if any employee is wearing the protection improperly or whether the protection is defective.  Hackney, 895 F.2d at 1301.  Furthermore, the Secretary has recognized that certain employees could suffer from a pathological condition that could actually result in hearing loss being caused by the wearing of noise protection.   See section 1910.95 (g)(8)(ii)(C).[[11]]  Trinity's hearing conservation program provides no method of testing for such a circumstance.

Trinity argues that, at most, the audiometric testing items should be deemed de minimis because any violation had no appreciable effect on employee safety or health.  Trinity argues that its program complied with the clear purpose of the standard, which is to prevent exposure to high noise levels and to protect against hearing loss.  Trinity contends that the only difference between its program and the measures required by the standard is the notification to employees that have suffered a hearing loss.  Trinity contends that because of the quality of the hearing protection used at its plant, noise levels entering employee ears do not exceed 70 dBA, which is below the level that can cause hearing loss. Trinity therefore argues that the likelihood of any hearing loss is remote and that the violations are properly classified as de minimis.

We find Trinity's arguments to be without merit.  The Commission generally will find a violation to be de minimis when the infraction has no more than a negligible relationship to employee safety or health.  See Cleveland Consol., Inc., 13 BNA OSHC 1114, 1118, 1987 CCH OSHD 27,829, p. 36,429 (No. 84-696, 1987).  Under the test, the record fully supports the judge's holdings in both cases that the violations were not de minimis.  Trinity's hearing protection program falls short of the standard's requirements in several respects, all of which could have an impact on employee safety and health.

First, Trinity's policy of requiring all employees to wear hearing protection lacks a means of determining whether the employees were properly wearing their hearing protection or whether the equipment was effective.  Trinity's failure to conduct audiometric testing also deprives the employer and OSHA of information necessary to determine whether an employee's hearing remains undamaged by workplace noise.  Finally, and perhaps of greatest importance, no matter how effective Trinity's program may be in protecting employee hearing under normal circumstances, the failure to conduct audiometric testing left Trinity with no means of detecting the possible pathological condition, discussed above, where the required hearing protection was actually causing an employee's hearing loss.

2. Characterization of the Violation

A violation is willful if committed "with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety."  Williams Enterp., Inc., 13 BNA OSHC 1249, 1256, 1987 CCH OSHD 27,893, p. 36,589 (No. 85-355, 1987); Asbestos Textile Co., 12 BNA OSHC 1062, 1063,1984 CCH OSHD 27,101, p. 34,948 (No. 79-3831, 1984).  A willful violation is differentiated from a nonwillful violation by a heightened awareness that can be considered a conscious disregard or plain indifference to the standard.  General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2068, 1991 CCH OSHD 29,240, p. 39,168 (No. 82-630, 1991)(consolidated); Williams, 13 BNA OSHC at 1256-57, 1987 CCH OSHD at p. 36,589.  There must be evidence that an employer knew of an applicable standard prohibiting the conduct or condition and consciously disregarded the standard. Williams, 13 BNA OSHC at 1257, 1987 CCH OSHD at p. 36,589.  However, a violation is not willful if the employer had a good faith belief that it was not in violation.  The test of good faith for these purposes is an objective one -- whether the employer's belief concerning a factual matter, or concerning the interpretation of a rule, was reasonable under the circumstances. General Motors, 14 BNA at 2068, 1991 CCH OSHD at p. 39,168.

The Secretary argues that the violations of the audiometric testing standards were willful.  She points out that Trinity admitted that it was aware of the OSHA noise standards at the time of the inspections, but argues that its decision to ignore the requirements of the standard was not justified by a good-faith belief that it was providing protection superior to that of the standard.   The Secretary contends that an employer does not have the right to substitute its judgment for the provisions of the standard.

Trinity argues that it believed its own program was superior to that mandated by the standard.  It argues that its conclusion was based on its belief that the purpose of the audiometric testing requirement was to determine which employees should be required to wear hearing protectors.  Since all of its employees wore top-of-the-line protectors, Trinity claims that it considered audiometric testing to be a mere redundancy.  The Secretary counters that because the Secretary had issued a citation to another Trinity facility prior to the inspection here, Trinity knew that its program was not acceptable to the Secretary.  However, that citation was in litigation at the time of this inspection, with Trinity arguing, as it has here, that its program rendered audiometric testing unnecessary.

Judge Burroughs did not characterize the noise violations as willful.  He held that, while there was an obvious difference of opinion as to how to comply with the standards, Trinity did not ignore the safety of its employees.   Judge Burroughs found that, although Trinity knowingly chose to proceed at variance with the standard, there was no evidence to dispute Trinity's assertion that it proceeded on the belief that its hearing conservation program exceeded the requirements of the standard.  Thus, he concluded that "Trinity did not disregard employee safety".

Considering the record as a whole, we agree with Judge Burroughs' conclusion that the evidence fails to establish that Trinity's failure to institute a proper audiometric testing program rose to the level of willfulness.   Although Trinity knew that its hearing protection program did not comply literally with the Secretary's standards, there is nothing in the record to indicate that the failure to institute audiometric testing was the result of either a conscious disregard or plain indifference to the hearing protection standards.  To the contrary, Trinity had a good-faith, though erroneous, belief that the only purpose of audiometric testing was to determine which employees had suffered a loss of hearing severe enough to require hearing protection.  Because its program required hearing protection before any loss occurred, Trinity believed that its program provided protection superior to that required by the Secretary, thereby rendering audiometric testing redundant and, therefore, unnecessary.

While citations issued to another Trinity facility put the company on notice that the Secretary did not share its interpretation, the matter was in litigation.  We cannot base a finding of willfulness on the mere fact that Trinity did not abandon its good-faith interpretation of a standard while the validity of that interpretation was being litigated.[[12]]  See General Motors 14 BNA OSHC at 2069, 1991 CCH OSHD at p. 39,169.

Moreover, we must also consider that, even though Trinity failed to comply with the audiometric testing requirements of the hearing protection standards, the interests of the employees have been largely protected.  Cf. RSR Corp. v. Brock, 764 F.2d at 363 (whether employer's alternative to literal compliance protected employee interests considered a factor when determining if violation was willful).   While the evidence establishes that the lack of audiometric testing could have resulted in undetected hearing loss, there is no evidence of any such loss in this record.   The evidence also shows that Trinity's program provided employees with protective equipment for the noise they encountered on the job. Therefore, we find that Trinity's failure to institute an audiometric testing program was not willful.

The Secretary does not allege, nor is there evidence to support a conclusion, that there was a substantial probability that the failure to institute audiometric protection could have resulted in death or serious physical harm.   Accordingly, the violation is affirmed as other-than-serious.

3. Penalty

The judge assessed no penalty for the violations based on the low gravity of the violations.  We find, however, that a penalty is appropriate.   Despite the extensive nature of its hearing protection program, the failure to conduct audiometric testing prevented Trinity from verifying that its program was operating as designed.  It also prevented Trinity from learning whether hearing protectors were actually causing some employee hearing loss.

Moreover, Trinity is a large corporation with a history of previous OSHA violations.   Considering these factors, we find a penalty of $500 to be appropriate.

C. Monitoring

I. The Alleged Violation

During the OSHA inspection, Trinity failed to provide representative monitoring or survey information when requested by the compliance officer.   Trinity also failed to provide information as to which employees were exposed to various levels of noise or any information regarding evaluation of feasible noise control methods.

As a result, the Secretary, in item 1 of the willful citation, alleged that Trinity violated 29 C.F.R. 1910.95(d)(1)[[13]] by failing to develop and implement a monitoring program for employees found to be exposed to noise levels exceeding an 8-hour TWA of 85 decibels.

Although the compliance officer was told about the extensive 1976 noise monitoring, he found the information provided by Trinity to be insufficient to establish compliance with the monitoring requirements because he was not able to evaluate various employee exposure levels, i.e, who was exposed, to what levels they were exposed, where they were exposed, or what they were doing when exposed.   Nor was he able to determine whether administrative or engineering controls were implemented.  Riddles told the compliance officer that Trinity instituted extensive engineering controls as a result of the 1976 monitoring.  Despite being given several opportunities, he failed to provide any written information about the results of the monitoring.  The compliance officer testified, however, that while the information sought might have been contained in OSHA files, "it had probably been destroyed a long time ago.  That was eleven years ago."  The compliance officer also testified that, although information was provided about the 1982 survey, it was just a statement of several spot check readings and did not provide sufficient information to comply with the monitoring standard.

Riddles testified that different types of noise at the plant were analyzed as part of the 1976 noise survey.  This analysis formed the basis for recommending the specific types of hearing protection used at the site.  Riddles further testified that, because of the results of the 1976 monitoring, engineering controls were instituted to reduce noise levels.  He stated that as a result of the 1982 noise survey, all employees who could be exposed to noise levels in excess of 82 dBA were required to wear hearing protection.  Riddles also testified that, with the information gained from the 1976 survey, Trinity already knew the type of noise involved and, therefore, the type of hearing protection required.

The judge found that, because of the noise levels at the plant, Trinity was required by the standard to conduct initial monitoring that complied with the requirements of 29 C.F.R. 1910.95(d)(1).  Although he recognized that, under 29 C.F.R. 1910.95(m)(3)(i), [[14]] monitoring records are required to be kept for only two years, he concluded that, once the Secretary establishes noise levels that trigger the monitoring provisions, the burden shifts to the employer to establish compliance.  The judge found that Riddles' mere assertion that Trinity conducted a survey, without any indication of sampling strategies, amounted to little more than a self-serving declaration and was not sufficient to establish compliance with the monitoring standard.

Essentially reiterating the argument it made regarding audiometric testing, Trinity first contends that the purpose of the monitoring standards is to identify employees for inclusion in a hearing program and to enable the proper selection of hearing protectors.   Because it is undisputed that all employees were included in the hearing conservation program and that the hearing protectors were suitable for the noise levels involved, Trinity contends that there was no need to conduct monitoring.

Trinity also argues that the judge improperly imposed on it the burden of establishing compliance with the standard by requiring it to produce records that it was not required to keep.

As is the case with the audiometric testing requirements, an employer's obligation to conduct monitoring is mandatory once a threshold noise level is reached.  As stated above, the Commission cannot decline to enforce a standard because it believes it imposes an unnecessary requirement.  Pace Constr. Co., 13 BNA OSHC at 2162, 1989 CCH OSHD at p. 37,847.  Trinity's belief that its hearing conservation program made monitoring redundant did not excuse it from compliance with a mandatory OSHA requirement.  See Sierra Constr. Corp., 6 BNA OSHC 1278, 1282, 1978 CCH OSHD 22,506, p. 27,159 (No. 13638,1978).  If it wanted relief from its obligation to conduct the requisite noise surveys, it should have applied for a variance.    Id. at 1282 n.11, 1978 CCH OSHD at p. 27,159 n.11.

While the wording used by the judge may give the impression that he improperly allocated the burden of proof, [[15]] we find that the evidence does establish the violation.  The Secretary established that employees at the plant were exposed to noise levels exceeding an 8-hour TWA of 85 dBA and, therefore, that Trinity was obligated to develop and implement a monitoring program fulfilling the requirements of section 1910.95(d)(1).  The standard requires that the monitoring enable the employees to identify employees for inclusion in a hearing protection program and to enable the proper selection of hearing protectors.  The record shows that the 1976 monitoring occurred before the current standard went into effect.  Under the earlier monitoring requirements, although employers were obligated to determine whether their employees were exposed to noise levels above permissible levels, there were no explicit monitoring requirements.  The new noise standard created new obligations, threshold levels and computation methods that were not applicable under the old noise standard.  Therefore, any monitoring performed in 1976 could not have been conducted with the intent of fulfilling the various requirements of the current standard.

We find that this evidence is sufficient to establish a prima facie violation of the standard.  The burden, therefore, shifted to Trinity to rebut the Secretary's showing.  However, Trinity produced no evidence to establish that the monitoring fulfilled the specific requirements of the current noise standard.   See supra note 13.  Riddles' testimony[[16]] failed to establish that either Trinity's 1976 or 1982 monitoring fulfilled the particular requirements of the current standard.  The 1982 spot check consisted of only four separate dosimeter readings, as well as several sound level readings, and was not intended to be a representative monitoring as required by the standard.  The documents relating to the 1976 monitoring could have rebutted the Secretary's prima facie case, but they were unavailable. Moreover, Trinity adduced no testimony and produced no evidence to indicate that the 1976 monitoring met the requirements of the current monitoring standard.[[17]]

2. Characterization of the Violation

As with the violations of the audiometric testing requirements, the Secretary argues that the failure to monitor was willful.  She contends that Trinity knew of, but made a conscious decision to ignore, the requirement to monitor.

Under the terms of section 1910.95(d)(3), [[18]] an employer is required to remonitor its worksite whenever a change in production, process, equipment or controls could increase employee noise exposure.  The record does not justify a finding that Trinity's failure to remonitor was the result of either intentional disregard of the standard or indifference to employee safety.  Trinity could well have believed that because there had been no major changes in production, it was under no obligation to remonitor the worksite.  Moreover, its hearing protection program partially fulfilled the dual purpose of the standard of identifying employees to be included in the hearing protection program and determining the proper protection to be provided to them.  Therefore, we conclude that the violation was not willful.

As the judge properly found, there is no evidence to support a finding that there was a substantial probability that death or serious physical harm could result from Trinity's failure to remonitor.  Therefore, we classify the violation as other-than-serious.  The judge assessed no penalty for the violation and there is nothing in the record to indicate that his determination was not appropriate.

D. Radiation Survey

Trinity uses an x-ray machine to check the integrity of the welding seams of its liquid propane tanks.  During the inspection, the compliance officer asked Safety Director Riddles for a copy of the radiation survey that was required to be made under 29 C.F.R. 1910.96(d)(1).[[19]]

A copy of the report from a state inspection conducted in December 1987 was provided, but the compliance officer was not given a copy of a company radiation survey.  The compliance officer did testify, however, that dosimeter readings and employee radiation badges indicated that employees were exposed to low radiation levels.  However, he stated that, without the survey, it would not be possible to discern the level of radiation in an area to which an employee may be exposed in the event of an accident.  The Secretary subsequently cited Trinity for failing to comply with section 1910.96(d)(1) on the grounds that it failed to conduct a radiation survey as required by the standard.  The violation was classified as other-than-serious.  No penalty was proposed.

Greg McRae, Trinity's Quality Assurance Manager, testified that he personally conducted a radiation survey when the x-ray machine was installed in 1984.  He testified that he performed the survey with a survey meter and that the results indicated a radiation output approximately one-tenth of permissible levels.   McRae also testified that he performs a radiation survey at least once a year, but that he keeps no notes or records.

Judge Burroughs affirmed the item.  He noted that evidence must be available to show compliance and that a written survey would be the best means of demonstrating compliance even though nothing in the standard requires that the survey be in writing.  The judge was also concerned that, because McRae did not testify as to the actual readings taken during the survey, it was not possible to ascertain if Trinity was in compliance.  In conclusion, the judge held that "[f]acts regarding actual readings are necessary to establish compliance."   In the absence of such evidence, the judge was unable to ascertain the accuracy of McRae's opinion that the machine's radiation output was low.  He concluded that, "Trinity had the burden to show compliance.  It has failed to meet that burden."

Trinity argues that the standard requires neither that the survey be written nor that it be made available to the Secretary.  It requires only that a survey be made.  Trinity contends that the evidence established that it conducted the required survey when the x-ray machine was installed in 1984.  It points out that the evidence establishing that employees were exposed to radiation levels far below proscribed limits supports McRae's testimony that, when the machine was installed, he performed a radiation survey that revealed radiation levels far below permissible limits.

The Secretary argues that, contrary to Trinity's contentions, the judge did not affirm the item because the survey was not in writing.   Rather, the judge found that the lack of a written survey together with Trinity s inability to adduce evidence as to any actual readings rendered Trinity's proof of compliance insufficient.  The Secretary argues that the failure to credit McRae's testimony was a credibility determination that should not be disturbed.

We first note that the judge misapplied the burden of proof.  His statement that "Trinity had the burden to show compliance," culminated a discussion in which he clearly seemed to place the burden of establishing prima facie compliance on Trinity.  As previously noted, the burden is on the Secretary to establish a prima facie violation.  The burden would then switch to Trinity to rebut the prima facie showing.  The question, then, is whether the Secretary made the requisite prima facie showing.  We find that the Secretary did not make such a showing.

If the standard required that the survey he reduced to writing, Trinity's inability to produce a written survey would have been sufficient to establish the violation.  The Secretary properly points out, however, that the standard does not require that the survey be reduced to a written form.  Nonetheless, an employer's inability to produce a written survey when requested by the Secretary is strong evidence that the requisite survey was not made and may be sufficient to establish a prima facie violation.  Of course, the employer can then rebut the prima facie showing by producing evidence that it conducted the requisite survey.  We find that McRae's testimony [[20]] that he conducted a radiation survey was such a rebuttal.

When Trinity rebutted the allegation that it failed to conduct any survey, the burden was on the Secretary to show that the survey that was conducted failed to meet the requirements of the standard.  See All Purpose Crane, 13 BNA OSHC at 1238, 1987 CCH OSHD at p. 36,549 (Secretary has burden of establishing each element of the violation).  It is here that the Secretary failed to establish the violation.

Section 1910.96(d)(1) is not a model of clarity.  It requires that the surveys be conducted in a manner sufficient to allow compliance with the remainder of section 1910.96, the long and complex standard on ionizing radiation.[[21]]  In order to comply, an employer must sift through the standard's requirements to determine what information is necessary. When the Secretary alleges that a survey is not sufficient, the burden is on the Secretary to show why that survey was not sufficient.  See E.I. duPont de Nemours & Co., 10 BNA OSHC 1320, 1325, 1982 CCH OSHD 25,883, p. 32,381 (No. 76-2400, 1982) (Secretary failed to establish that shower facilities provided by employer were not "suitable" within meaning of the standard).

In her complaint, the Secretary alleged that Trinity did not "make such surveys as necessary to evaluate the radiation hazards incident to the production, use, release, disposal, or presence of radioactive materials or other sources of radiation under specific set of conditions...."

The record established, however, that employees were required to wear badges and that those badges indicated radiation exposures within acceptable limits.  Moreover, dosimeter readings taken by the compliance officer indicated radiation levels well within acceptable limits, and supported the findings of the survey taken by McRae.  The Secretary has not alleged the "specific set of conditions" that should have been included in the survey, nor specified why the information obtained from the survey and the radiation badges was inadequate to satisfy the requirements of the standard.  In short, neither the citation, complaint, nor information provided at the hearing provided Trinity with sufficient information on how its survey failed to meet the requirements of the standard.  See Meadows Indus., 7 BNA OSHC 1709, 1710-11, 1979 CCH OSHD 23,847, pp. 28,923-24, (No. 76-1463, 1979); Gannett Corp., 4 BNA OSHC 1383, 1384, 1976-77 CCH OSHD 20,915, p. 25,114 (No. 6352, 1976).  This left it unable to defend against the allegation.[[22]]  See Gold Kist, Inc., 7 BNA OSHC 1855, 1862, 1979 CCH OSHD 23,998 (No. 76-2049,1979).  We therefore reverse the judge and vacate the item.

III. DOCKET NO. 88-1547

A. Forklift Mountings

During the safety inspection, the compliance officer observed a forklift with one of the two metal mounting straps used to secure the liquid propane cylinder unfastened.  When the matter was brought to the attention of Safety Director Riddles, it was fastened.  The next afternoon, it was loose again.   Trinity determined that the strap was sprung, and ordered a new strapping system.   Riddles testified that there was no danger that the tank would come loose with the remaining strap in place.  However, Daniel Virgin, Trinity's plant manager, admitted that the system was designed for two straps.  As a result Trinity was cited for an other-than-serious violation of 29 C.F.R. 1910.110(e)(4)(iii).[[23]]

The judge affirmed the item, but assessed no penalty.  He concluded that the system was designed with two straps to provide additional restraint to prevent the fuel container from jarring loose, slipping or rotating.  He noted that there was no way that an employee could predict or anticipate when the remaining strap would break loose or become loosened to the point of allowing the container to jar loose, rotate, or slip.

Trinity argues that the judge erred in affirming the item on the grounds that "two straps are better than one."  It argues that, under the terms of the standard, the test for compliance is whether the tank is "securely mounted to prevent jarring loose, slipping or rotating."  Trinity contends that the evidence that the tank was so mounted was uncontroverted.

The Secretary argues that the standard requires that fastenings be designed and constructed to withstand a static load of twice the weight of the filled tank and provide a safety factor of four for the material used.  She claims that it is logical to infer that the two straps were considered by the manufacturer to be necessary to comply with the standard.  It was, therefore, reasonable for the judge to conclude that the integrity of the system was compromised and the standard violated when 50 percent of the holding power of the fastenings was lost through the failure of one of its two straps.

We affirm the judge's decision.  The standard requires that tanks be "securely mounted to prevent jarring loose, slipping, or rotating."  The restraining system was designed with two straps; one being located on either end of the tank.  With one strap gone, the remaining strap only secured one end of the tank.  Although the remaining strap may have been sufficient to keep the tank on the forklift while it was immobile, any jarring, or sharp movement could have increased the pressure on the unsecured end and loosened the entire tank.   By showing that one of the two straps designed to secure the tank was broken, the Secretary made a prima facie showing that the tank was not securely mounted.   Although Trinity showed that the tank was secure while the forklift was not moving, it has adduced no evidence to indicate that the remaining strap was sufficient to restrain the tank should the forklift have encountered any foreseeable bumping, jarring, or sharp movement.  Accordingly, Trinity has failed to rebut the Secretary's prima facie showing, and the item is affirmed.

We find no error either in the judge's characterization of the item or in his penalty assessment.  Therefore, the item is affirmed as other-than-serious and no penalty is assessed.

B. Mechanical Power Press

During the inspection, the compliance officer observed that a Kling Brothers Engineering Works mechanical power press, located at the northeast end of the plant, did not have a point of operation guard or device as required by 29 C.F.R. 1910.217(c)(1)(i).[[24]]  The press is operated by a foot pedal, and is used to punch holes in tank cylinder heads.  The tank heads are large, bowl-shaped cylindrical objects that weigh 35-40 pounds.  The operator stands next to the machine and uses both hands to hold the tank head while the hole is being punched.  The compliance officer testified that there was nothing to prevent an employee from getting his hand or fingers caught in the point of operation.

The judge affirmed the item.  He noted that the only exception to the requirement that the press he guarded is when the point of operation opening is one-fourth inch or less.  Section 1910.217(c)(1)(ii).  Since the opening was greater than one-fourth inch, he concluded that a guard was required.   The judge rejected Trinity's argument that it was not feasible to guard the head punch.  The judge observed that, although Riddles testified that guarding was infeasible, he gave little or no reason for his conclusion.  Moreover, the judge found no evidence that Trinity explored other methods of abatement.  The violation was affirmed as serious, and a penalty of $240 was assessed.

On review, Trinity argues that the evidence establishes that the punch press is not a hazard.  According to Trinity, absent a deliberate act, an employee could not get his finger caught in the point of operation.  Trinity points out that, because it takes both hands to steady the head while the material is inserted into the point of operation, the employee's hands do not get close to the point of operation.  Therefore, Trinity argues that the Secretary failed to prove that the operator was exposed to a hazard.

The Secretary argues that the cited standard presumes that an unguarded mechanical power press constitutes a hazard.  Therefore, the employer's obligation to comply does not depend upon the existence of a hazard.  Rather, it requires every operation on a mechanical power press to be protected by a guard.  She claims that the press did not have a point of operation guard and, therefore, was in violation of the standard.

Trinity submitted into evidence a film depicting the operation of the press.  As Trinity claims, the film establishes that, when used in the cited operation, the operator cannot get any part of his hand into the point of operation.  The film shows that it takes two hands to hold and steady the concave cylinder head while it is inserted into the machine and punched.  The cylinder head is large and blocks the employee from getting any part of his body near the point of operation.  When the cylinder head is placed into the press, the employee must hold the concave cylinder head with both hands.  For the operator to get his hands in the point of operation, he would have to hold the cylinder head with one hand, reach across the cylinder head then move his hand up along the curve of the cylinder head and stick his hand underneath the ram.  This would require a deliberate act.

The standard requires that the machine be equipped with either a point of operation guard or device.  Under 29 C.F.R. 1910.217(3)(i)(b), a "point of operation device" is one that prevents the operator "from inadvertently reaching into the point of operation."  The cylinder head fulfills this requirement.  Accordingly, we find that, when used to punch holes in the cylinder heads in the manner shown in Exhibit R-13, the tank heads act as a de facto "point of operation device," thereby fulfilling the requirements of the cited standard.  We therefore reverse the judge and vacate the item. [[25]]

C. The PA4 Press

Trinity's PA4 press is used to punch drainage notches out of the base ring that is later welded to the liquid propane tanks.  The compliance officer testified that when the machine was turned on, it cycled twice without the foot pedal being activated and continued to cycle when the employee held his foot on the pedal.   Based on these circumstances, Trinity was cited for serious violations of 29 C.F.R. 1910.217(b)(3)(i) and 1910.217(b)(8)(iii). [[26]]

Plant manager Virgin testified that he saw an employee depress the pedal prior to activation and that was the reason why it cycled when activated.  He denied that the machine cycled more than once.  In its post-hearing brief, however, Trinity admits that the single-stroke mechanism was broken.

Based on this evidence the judge affirmed the violations.  Because the hazard was the crushing or amputation of hands or fingers, he found the violation to be serious and assessed a $240 penalty for the violation of section 1910.217(b)(3)(i) and a $480 penalty for the failure to comply with section 1910.217(b)(8)(iii).

On review Trinity does not dispute that the press lacked a single-stroke mechanism, or that the machine could cycle without the foot pedal being depressed.  However, it contends that these items should be vacated because the Secretary failed to establish that the machines presented a hazard.  The argument is without merit.  If a standard does not incorporate a requirement that a hazard be shown to exist, such a showing is not part of the Secretary's prima facie case because the hazard is presumed.  StanBest, Inc., 11 BNA OSHC 1222, 1231, 1983 CCH OSHD 26,455, p. 33,625 (No. 76-4355, 1983).  The safety requirements set forth in the two standards are not predicated on the existence of a hazard. They are mandatory for a machine like the PA4 press, and are not dependent on the existence of a hazard.

Trinity further argues that if the standard does not require the Secretary to establish the existence of a hazard, the violation was de minimis.  Trinity contends that the evidence indicates that it would require a deliberate act for an employee to get any part of his body into the point of operation.   It contends that access is impossible from the front of the press and that from the top, the employee would have to reach over the guard, insert his hand down alongside the ram approximately 16 inches, then put his fingers up and under the point of the die.   To get in from the rear, the employee would have to crouch down and reach around and up.  Therefore, it contends that because an employee cannot get his hand in the point of operation, the inoperative single stroke mechanism would have no effect on employee safety.

As stated above, a noncomplying condition is deemed to be de minimis when the hazard involved bears such a negligible relationship to employee safety as to render inappropriate imposition of a penalty or the entry of an abatement order.  Super Excavators, 15 BNA OSHC 1313, 1314, 1991 CCH OSHD 29,498, p. 39,803 (No. 89-2253, 1991); National Indus. Constructors, Inc., 10 BNA OSHC 1081, 1094, 1981 CCH OSHD 25,743, p. 32,135 (No. 76-4507, 1981).  We find that, on these facts, the evidence establishes that the violations of the cited standard did have a significant relationship to employee safety.

Trinity stresses that, under normal operations, there was no likelihood of an accident.  Even if Trinity is correct, however, the fact remains that accidents generally do not always occur during normal operations.  Indeed, the very term "accident" implies that something abnormal has occurred.   Standards are intended to protect against injury resulting from an instance of inattention or bad judgment as well as from risks arising from the operation of a machine. Pass & Seymour, Inc., 7 BNA OSHC 1961, 1963, 1979 CCH OSHD 24,074, p. 29,238 (No. 76-4520, 1979).

Moreover, item 10(b), which was affirmed by the judge, alleged a point of operation guarding violation on this press because neither the top nor the back of the machine was guarded.  Therefore, an employee could reach the point of operation by reaching in from the top or behind from the rear.  Trinity does not dispute this holding.  The lack of a single-stroke mechanism or an improperly operating foot pedal significantly increased the risk of injury to employees who might have had occasion to have a hand or other part of their body near the point of operation.[[27]]  This additional hazard precludes a finding that the violations were de minimis.[[28]]

We agree with the judge that, because the hazard was the crushing or amputation of hands or fingers, the violation was properly categorized as serious.  We also agree with the penalties assessed by the judge.  Therefore, a $240 penalty is assessed for the violation of section 1910.217(b)(3)(i), item 8(b) and a penalty of $480 is assessed for the violation of section 1910.217(b)(8)(iii), item 9.

ORDER

Accordingly, in Docket No. 88-1545, item 1 of citation no. 1, which alleged noncompliance with 29 C.F.R. 1910.95(g)(5)(i) and (g)(6), is affirmed as other-than- serious; a penalty of $500 is assessed.  Item 2 of citation no. 1, which alleged noncompliance with 29 C.F.R. 1910.95(d)(1), is affirmed as other than serious; no penalty is assessed.  Item 1 of citation no. 2, which alleged noncompliance with 29 C.F.R. 1910.96(d)(1), is vacated.

In Docket No. 88-1547, items 8(b) and 9 of citation no. 1, which allege noncompliance with 29 C.F.R. 1910.217(b)(3)(i) and (b)(8)(iii), are affirmed as serious.  A penalty of $240 is assessed for item 8(b).  A penalty of $480 is assessed for item 9.  Item 10a of citation no. 1, which alleged a failure to comply with 29 C.F.R. 1910.217(c)(1)(i), is vacated.  Item 8 of citation no. 2, which alleged noncompliance with 29 C.F.R. 1910.110(e)(4)(iii), is affirmed as other-than-serious; no penalty is assessed.

Edwin G. Foulke, Jr.                                                                                                              Chairman

Donald G. Wiseman                                                                                                  Commissioner

Velma Montoya                                                                                                      Commissioner

Dated: April 22, 1992


SECRETARY OF LABOR,                                                                                                      Complainant,                                                                                                                         v.                                                                                                                                           TRINITY INDUSTRIES, INC.,                                                                                          Respondent.

OSHRC Docket Nos. 88-1545 and 88-1547


APPEARANCES: Curtis L. Gaye, Esquire, and Ken S. Welsch, Esquire, office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant.

Robert E. Rader, Esquire, Lock, Purnell, Rain, Harrell, Dallas, Texas, on behalf of respondent.

DECISION AND ORDER

Burroughs, Judge:  Trinity Industries, Inc., ("Trinity") contests a willful citation and "other" citation, alleging violations of health standards, and a serious citation and "other" citation, alleging safety violations, issued to it on June 21, 1988, as a result of an inspection conducted at its Jacksonville, Florida, plant.  The inspection was initially attempted on May 2, 1983, but Trinity refused consent.  Protracted litigation ensued which resulted in Industrial Hygienist Joel Broadaway and Compliance Officer John Deifer inspecting the plant, pursuant to a search warrant, from December 17-23, 1987.

Trinity filed separate notices of contest with respect to the alleged health and safety violations.  The citations pertaining to the health allegations were assigned Docket Number 88-1545.  The allegations concerning safety violations have been included in Docket Number 88-1547.  While the dockets were not officially consolidated, it was agreed that the evidence developed in one case could be used in the other (Tr. Dkt. 88-1545, pp. 3-5).  Since there are several common issues and common background facts, this decision will cover all issues raised in both cases.

MOTIONS TO DISMISS CITATIONS

1. Renewed Motion for Sanctions Denied

Trinity has filed three motions which it contends necessitate that the allegations be dismissed.  The first motion seeks dismissal of the citations because of the Secretary's refusal to comply with discovery orders.   This issue is related to Trinity's motion to suppress evidence on the grounds that OSHA's inspection plan is discriminatory and unfair.  The Secretary refused to permit its employees to respond to questions directed toward the warrant issue and refused to produce documents on any matters sought by Trinity in an effort to prove the search warrant was invalid.  On March 21, 1989, subsequent to the hearing, Trinity filed a motion for sanctions seeking an order vacating the citations. This Judge had previously agreed to rule on the motion prior to having the parties file briefs on the merits of the allegations. A 22-page order was issued on June 16, 1989, denying the motion.   Trinity renews the motion in its brief. For the reasons stated in the order issued on June 16, 1989, the renewed motion is denied.

2. Delay Not Prejudicial

Trinity's second motion seeks to have the citations vacated for failure of the Secretary to issue them with "reasonable promptness" as required by section 9(a) of the Act.[[1]]  The inspection occurred during the period December 17-23, 1987. (An opening conference was held on December 16, 1987).   The closing conference was held by telephone on June 20, 1988.  The citations were issued on June 21, 1988. Trinity states that this delay was prejudicial to its ability to defend against the allegations.

In support of its motion, Trinity argues that conditions changed during the delay in issuing the citations and resulted in Trinity being unable to view the same conditions allegedly observed by the OSHA inspectors.  It makes the following representations:

During the six month delay conditions in the plant had changed.  For instance, the 600 ton hydraulic press that was cited had been shut down and dismantled. (Dkt. 1547, Tr. 161-163).  Conditions such as welding flash, whether flammable liquids were being dispensed while the forklift battery was being charged, and whether there was mud on press foot pedals, had obviously changed.  Other items, such as loose receptacle covers, the residue on paint filters, loose wiring, tears in welding curtains, flexible cords attached to building surfaces, or open switch box covers, are items that are corrected in the normal safety inspection and maintenance process.   (Dkt. 88-1547, Tr. 73; Dkt. 88-1545, 109-110).  It was therefore not possible for Trinity to go back to the plant on June 20, 1988, and determine whether the alleged violative conditions actually existed on December 16-22, 1987.

The test for reasonable promptness is a determination of whether the employer has actually been prejudiced by the delay in issuing the citation.   Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871 (3d Cir. 1979).  The Commission stated in Stripe-A-Zone, Inc., 81 OSAHRC 31/E13, 10 BNA OSHC 1694, 1982 CCH OSHD 26,069 (No. 79-2380, 1982), that unless an employer establishes prejudice in the preparation or presentation of his defense, a citation will not be vacated for the Secretary's alleged failure to issue it with reasonable promptness.  See also National Industrial Contractors, 81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1981 CCH OSHD 25,743 (No. 76-4507, 1981).  The inquiry is a factual one.  The employer has the burden to establish that it has been prejudiced by the delay in its ability to prepare and present its case.

While Trinity alleges certain conditions changed, prejudice in the preparation and presentation of its defense because of the delay has not been established.  Clearly, the delay made Trinity's defense more difficult on certain issues but not impossible.  The mere fact that conditions had changed does not per se mean that Trinity was prejudiced in the preparation of its defense.   Reconstruction of events and conditions is a problem in most litigation but is not normally a cause for dismissal.  The evidence indicates that three to four of Trinity's management personnel, and on occasion, their local attorney, accompanied Broadaway and Deifer during their inspection.  They made notes and took photographs of conditions observed by Broadaway and Deifer (Tr. 481, 489, 490).  They observed or had the same opportunity to observe the cited conditions.  There has been no showing that the group accompanying Broadaway and Deifer and the employees directly exposed to the hazards had no knowledge of the cited conditions.  An employer's "unsupported general allegations do not establish prejudice."  National Industrial Constructors, Inc., supra, 10 BNA OSHC at 1084.  The motion is denied.

3. The Inspection was Conducted in a Reasonable Manner

Trinity's third motion to dismiss is based on its argument that the Secretary, through her duly authorized representatives (Joel Broadaway and John Deifer), violated section 8(a)(2) of the Act by inspecting its plant in a punitive, abusive and unreasonable manner. Under section 8(a)(2) of the Act, 29 U.S.C. 657(a)(2), the Secretary is directed to conduct her inspections "within reasonable limits and in a reasonable manner." "Reasonableness is a question of fact to be rendered by the finder of fact." Marshall v. Miller Tube Corporation of America, _ F. _(E.D. N.Y. 1979), 6 BNA OSHC 2042, 2044.

Trinity states that "[t]he Jacksonville Area Office was determined to penalize and make an example of Trinity because Trinity challenged the constitutional fairness of OSHA's inspection plan."  There is no evidence of record to support such a sweeping statement.  Trinity may have thought that was the situation, but its conclusion is unsupported.  There is also no support for the statement that the compliance officers were "instructed to conduct an extremely 'thorough' inspection."  One would hope that all OSHA inspections are "thorough" and fair since it is OSHA's task to enforce the law.  There is no evidence to indicate Trinity was the subject of an orchestrated effort to harass it.

Trinity had been successful by litigation in delaying the inspection from May 2, 1983 (when Trinity first refused a consensual inspection) to December 16, 1987 (the date of the opening conference pursuant to the warrant).  Once OSHA was successful in gaining entry to conduct the inspection, Broadaway and Deifer had no reason to expect they would be allowed another entry if they overlooked some evidence.   Under such circumstances, it should be expected that compliance officers, in most instances, are going to proceed at a slower pace and insure they are thorough in their inspection.  There is certainly nothing unreasonable, abusive or punitive in proceeding in that manner.  Trinity, within its rights, chose to refuse an inspection unless OSHA had a warrant.  It elected to proceed on an adversary rather than cooperative basis.  It should not always expect a friendly and cooperative attitude of compliance officers in such circumstances.  The conduct of the compliance officers was more in the category of demonstrating that they would not be intimidated rather than one of abuse or punitive action.

Trinity asserts the following in support of its argument that the inspection was conducted in an unreasonable, abusive and punitive manner:

1. That OSHA prolonged the length of the inspection by taking six days to complete it;

2. That the nature and number of the alleged violations reflect OSHA's bad faith;

3. That an unusually large number of employee interviews were conducted to harass and disrupt production;

4. That the conduct of the compliance officers was threatening and overbearing; and

5. That the inspection was unnecessarily disruptive and costly to Trinity.

Trinity has placed its own conclusion on the reason for the length of the inspection, the number of alleged violations cited, the large number of employee interviews, that the inspection was disruptive and that Broadaway and Deifer were threatening and overbearing.  A reasonable analysis of the evidence of record does not support the conclusions formulated by Trinity.  It appears clear that Broadaway and Deifer were determined to do a thorough inspection and were not going to be deterred from doing so by management personnel of Trinity.  In accomplishing their mission, they may not have proceeded in the manner desired by Trinity but that does not make the inspection unreasonable.

An examination of Trinity's attitude toward the inspection is necessary to understand the actions of Broadaway and Deifer.  Trinity established the tone of the inspection and attempted to control the course to its satisfaction.   First of all, it had a meeting with employees prior to the inspection.   Ostensibly, the meeting was for the purpose of explaining employees' rights during an OSHA inspection (Tr. 397-399).  After the meeting, many of Trinity's employees refused to be interviewed by the compliance officers or wear personal monitoring equipment (Dkt. 88-1545; Tr. 397-399).  The lack of cooperation by employees after the meeting raises doubt as to Trinity's objective in holding the meeting.  The lack of employee cooperation contributed to the length of the inspection.

Broadaway and Deifer, for the most part, were required to remain together even though they were conducting different types of inspections, i.e., health versus safety.  They were accompanied by management personnel, and on occasion, Trinity's local attorney, who made notes and took photographs (Dkt. 88-1545; Tr. 481, 489, 490).  This raises the question of who was trying to intimidate whom?   The compliance's officers were working in the hostile environment. Under the circumstances, their conduct can not be deemed to be abusive or punitive.

During the course of the inspection, Broadaway supposedly was overheard to say to Deifer that "we will show them the finer points of law" (Dkt. 88-1545; Tr. 477-478).  Trinity interprets this remark as indicating that they were going to "teach it a lesson."  The crux of the matter is that they were inspecting pursuant to a warrant and were legally entitled to proceed under full authority of the powers granted in the warrant.  The damaging point to Trinity's argument is that it can not point to any illegal act on the part of Broadaway and Deifer in conducting the inspection.  They may not have been as submissive as Trinity desired, but there is no proof of any illegal act on their part in conducting the inspection.

Assuming arguendo that Broadaway and Deifer were abusive and unreasonable, does such conduct warrant dismissing the citations?  Has Trinity been harmed by an insistent or surly attitude on the part of the compliance officers?   The evidence of record mandates that this question be answered in the negative.   There are different degrees of reasonableness.  Dismissal should be the remedy in only those instances that shock the public consciousness.  The goal of the Act is to protect the worker in his place of employment.  Inspections are a means to attaining that goal. Dismissing citations because of the lack of courtesy or a friendly and cooperative attitude by compliance officers would defeat the purpose of the Act.   The Commission in Electrocast Steel Foundry, Inc., 79 OSAHRC 1/F14, 6 BNA OSHC 1562, 1978 CCH OSHD 22,702 (No. 77-3170, 1978), in remanding the case for a section 8(a)(2) hearing to determine if, as alleged by Electrocast, the inspection was conducted in a punitive and unreasonable manner stated (6 BNA OSHC at 1564):

Electrocast should produce any evidence bearing on its claim, including but not limited to any evidence which would tend to establish that the alleged violation of 8(a)(2) resulted in actual prejudice to the preparation or presentation of its defenses to the merits of the citation [sic].  See Marshall v. Western Waterproofing Co., 560 F. 2d 947 [5 OSHC 1732] (8th Cir. 1977); Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327 [6 OSHC 1227] (9th Cir. 1977);

The quoted language suggests that the employer must show prejudice in the preparation and presentation of its defense prior to definitive action being taken against the Secretary.  No prejudice has been demonstrated in this case which warrants the extreme sanction of dismissal.  The motion is denied.

BACKGROUND FACTS

Trinity's Jacksonville plant, an old plant acquired in 1967, makes LPG gas cylinders built to Department of Transportation specifications (Tr. 73, 77).[[2]]  The plant structure is a single enclosed area of floor space approximately 100 feet by 240 feet with a cement floor, metal walls and roof (Tr. 198, 323).  It contains approximately 22,000 square feet of production area (Tr. 323).   At the time of the inspection, the Jacksonville Trinity plant had 30-31 employees (Tr. 324).

Jerry L. Riddles, Corporate Environmental and Safety Director for Trinity (Tr. 71), visits the Jacksonville plant once every 8 to 12 months to see how the safety and environmental programs are functioning (Tr. 73-74).  His office prepares and implements the safety program for all of Trinity's plants (Tr.74).   The enforcement of the safety program is the responsibility of the plant manager (Tr.74, 145).  Riddles assists the plant manager in developing training programs and any written program that the plant is required to have by any regulation or standard (Tr.90).  Daniel Virgin is the plant manager for the Jacksonville plant (Tr.74, 144).   He tries to conduct safety training sessions every four to six weeks (Tr. 146).   The sessions last from 15 to 30 minutes (Tr. 146).  The topics for discussion are selected by Riddles and Virgin (Tr. 147).

DOCKET NO. 88-1545

Trinity contests alleged willful violations of 29 C.F.R. 1910.95(d)(1), for failure to develop and implement a representative monitoring program; and 29 C.F.R. 1910.95(g)(5) [[3]] and (g)(6), for failure to obtain baseline and annual audiograms. Trinity also contests alleged "other" violations of 29 C.F.R. 1910.96(d)(1), for failure to conduct a survey to evaluate any radiation hazards associated with its x-ray unit; 29 C.F.R. 1910.252(e)(2)(iii), for the failure to provide appropriate screens, shields or goggles for the protection of workers adjacent to welding areas; 29 C.F.R. 1910.1200(g)(8), for failure to maintain copies of material safety data sheets ("MSDS") for each hazardous chemical in the work area; 29 C.F.R. 1910.1200(h)(2)(ii), for failure to train employees in the physical and health hazards of chemicals in the work area; and 29 C.F.R. 1910.1200(h)(2)(iv), for failure to train employees in the details of the MSDS.

I

WILLFUL CITATION

Item 1

Alleged Violation of 29 C.F.R. 1910.95(d)(1)

The Secretary alleges that Trinity violated 1910.95(d)(1) by failing to develop and implement a monitoring program. Section 1910.95(c) requires an employer to "administer a continuing effective conservation program,...wherever employee noise exposures equal or exceed an 8-hour time-weighted average sound level (TWA) of 85 decibels," referred to as the action level.   Under section 1910.95(d)(1),[[4]] an employer is required to develop and implement a monitoring program when any employee's exposure may equal or exceed an 8-hour time-weighted average of 85 decibels.

Appendix G to the noise standard states that in order to determine if a hearing conservation program is needed, it may be necessary to measure or monitor the actual noise levels in the workplace.  The employer is not required to "develop and implement a monitoring program" until information indicates that an employee's exposure may be at or above 85 decibels.  Once noise tests are undertaken, the sampling strategy must be "designed to identify employees for inclusion in the hearing conservation program and to enable the proper selection of hearing protectors." 1910.95(d)(l)(i).   The standard specifies personal sampling rather than area sampling where there is "high worker mobility, significant variations in sound level, or a significant component of impulse noise make area monitoring generally inappropriate." 1910.95(d)(l)(ii).  In addition, "[a]ll continuous, intermittent and impulsive sound levels from 80 decibels to 130 decibels shall be integrated into the noise measurements."  1910.95(d)(2)(i).

During the inspection, Broadaway was informed by Riddles that he took some noise samples in 1976 and again in 1983 (Tr. 270-271, 272).[[5]]   No information was furnished to support the representation nor did Riddles elaborate on the findings.  There was no evaluation shown of the various exposure levels as to who was exposed, where they were exposed, or the level at which they were exposed (Tr. 271).  Repeated requests for test information developed by Riddles were not furnished (Tr. 274, 1-82).  Riddles stated that he had no documents to support his noise surveys (Tr. 399).

Broadaway performed noise sampling at various locations in the plant.  He used sound level meters and dosimeters to approximate noise levels at various work stations in order to identify areas which might be in excess of the action level (85 dBA) of the OSH standard (Tr. 202).  Personal monitoring was also performed on transient employees (Tr. 202).  In some instances, employees refused to wear sampling devices.  In those cases, area sampling was performed, i.e., an area was sampled as close to the employee's work position as possible (Tr. 203).  All employees sampled were wearing hearing protection (Tr. 210, 214).

Broadaway prepared noise survey reports which detailed the results of his sampling (Ex. C- 2; Tr. 240-208).  He determined that there were eight areas of the plant which his sampling indicated that employees working in that vicinity might equal or exceed an 8-hour time-weighted average of 85 dBA (Tr. 212).  The primary employees identified as exposed to noise in excess of 85 decibels were as follows (Ex. 2):

(a) The "long seam" welding operators
(b) The double round seam operators
(c) The "ram seam" operators
(d) The gauze pad, head welder and spot welders
(e) The "bottom coater" or "hole man"
(f) The press operator and his helper
(g) The "head welder" forward position
(h) The crimping machine operator

Riddles testified that he conducted a spot test of noise in the Jacksonville plant in 1983. He utilized two dosimeters in the center core of the plant. He also conducted some sound level meter readings (Tr. 78). Four readings were made during four half-days (Tr. 77). Based on these readings, he found that the time-weighted average of employee exposure was over 85 dBA (Tr. 77, 78). All of the peak readings were above 85 dBA (Tr. 78). He agreed with Broadaway's determination that employees worked in areas of the plant where the noise level was in excess of 85 dBA. Riddles did not consider the employees exposed to noise levels of 85 dBA, because they were wearing hearing protection (Tr. 79-82).[[6]]

Based on the testimony of Riddles, Trinity argues that it conducted initial noise monitoring in 1976 and did additional sampling in 1983 after the hearing conservation standard went into effect. It states that the 1983 sampling by Riddles "determined the noise was the same as in his earlier, more extensive tests. " Trinity further argues that the 1976 and 1983 tests "fully complied with both the form and intent of 1910.95(d)(1)." Broadaway gave Trinity ample opportunity to provide information concerning the noise testing. He was not able to evaluate what Trinity had previously done since Trinity failed to provide any relevant information as to the type of sampling and who was sampled and at what locations (Tr. 284). Riddles merely told him that he had sent the information to the OSHA Jacksonville, Florida, area office in 1976 (Tr. 285).

The noise survey completed by Riddles in 1976 was done in response to a citation issued to Trinity for exposure of employees to levels above 90 dBA's and the failure to protect employees against such high levels of noise (Tr. 400-401). The survey was done in part to establish engineering controls for the cited areas (Tr.400). The extent of that survey, which was done prior to the requirement of 1910.95(d)(1) being promulgated, is unknown. The 1983 spot reading by Riddles consisted of using two dosimeters to obtain four separate readings in the center core of the plant (Tr. 77, 78), and some sound level readings, the number of which Riddles could not recall (Tr. 78). According to Riddles, the survey was not intended to be a representative monitoring for the plant although he believed it complied with 1910-95 Tr. 79).

Trinity points out that 1910.95(m)(3)(i) requires records of employee exposure measurements to be retained for only two years. It contends that it is not required to have records of the 1976 and 1983 testing, because it has been more than two years since the survey was taken. It then states: "If Trinity is only required to maintain the records a period of two years, then 1988 noise survey for Trinity cannot be cited for failure to make those records available in 1988, of., Erie Bottling Corp. v. Donovan, 539 F. Supp. 600, 606-607 (W.D. Pa., 1982)." While Trinity may not be required to have a written record of employee exposure measurements to support compliance with 1910.95(d)(l), the noise determinations by Broadaway shifted the burden to Trinity to show that it had complied with the requirements of 1910.95(d). It has failed to satisfy its burden of establishing compliance with 1910.95(d)(l). The mere assertion by Riddles that he made a noise survey in 1976, before the requirements of 1910.95(d) were part of the standard, and a spot check in 1983 does not satisfy Trinity's burden. Riddles does not indicate the sampling strategy used to identify employees for inclusion in the hearing conservation program and to enable the proper selection of hearing protectors, as required by 1910.95(d)(i). His testimony is little more than a self-serving declaration.

Riddles testified that he did an initial noise survey which analyzed the type of noise in the plant (Tr. 116). This survey served as the basis for recommending specific types of hearing protection (Tr. 116). The testimony referred to his 1976 survey. No specific evidence was offered in support of these assertions. There is no way to evaluate the testing conducted by Riddles, who acknowledges that he is not a certified industrial hygienist (Tr. 72-73). The spot check conducted in 1983 did not satisfy the requirements of 1910.95(d)(1). The sampling was too limited to identify specific noise levels and sources of noise throughout the plant. Only one area of the plant was sampled and four readings taken. A monitoring program clearly requires more detailed sampling if the purpose of the monitoring is to identify employees for inclusion in the hearing conservation program and to enable the proper selection of hearing protectors as required by 1910.95 (d)(1)(i). The 1976 noise sampling was performed several years before compliance with the provisions of 1910.95(c) and (d) was required. Even if the 1976 noise sampling could be utilized to satisfy the requirements of 1910.95(d), there is no detailed evidence to support a finding that it satisfied the requirements of 1910-95(d). The violation is affirmed.

Item 2

Alleged Violation of 29 C.F.R. 1910.95(g)(5)(i) and (g)(6)

Item two of the willful citation issued to respondent on June 21, 1988, charged Trinity with a violation of 29 C.F.R. 1910.95(g)(6) [[7]] for failure to conduct annual audiograms for each employee exposed to noise at or above the 8-hour time weighted average of 85 dBA. The Secretary amended item two at trial to include a violation of 29 C.F.R. 1910.95(g)(5)(i) [[8]] for failure to conduct baseline audiograms (Tr. 69-70).

During the inspection, Broadaway requested that Trinity provide all employee annual and baseline audiograms. He was informed that Trinity had not obtained employee audiograms since 1983 or 1984 (Tr. 215-216). Riddles conceded that Trinity conducted no annual audiograms of any of the employees listed in item two of the citation (Tr. 82, 117, 141). Trinity does not do baseline audiograms but commenced a policy of giving pre-employment audiograms to employees in 1986. Pre-employment audiograms were commenced at the Jacksonville plant sometime in 1987 (Tr. 82-85, 141). Riddles was unaware of how many employees at the Jacksonville plant had been given pre-employment audiograms (Tr. 85). Employees hired prior to the commencement of the pre-employment audiograms program were never given a pre-employment audiogram (Tr. 84). While employees after 1987 are suppose to have received a pre-employment audiogram, they are not given annual audiograms (Tr. 85). Broadaway was not furnished any pre-employment audiograms (Tr. 216).

While Trinity concedes that it has not done baseline or annual audiometric testing of its employees (Tr. 82, 84, 366), it takes the position that its hearing conservation program, whereby all exposed employees are required to wear protection at all times, affords its employees better protection than the standard. Its hearing conservation program has been enforced since 1983 (Tr. 361, 410-411). Broadaway acknowledged that all employees of the plant were wearing hearing protection at the time of the inspection and that the requirement was mandatory under Trinity's program (Tr. 214, 273). In addition to the mandatory requirement for wearing hearing protection, all employees are required to undergo annual training in the need for and proper use of hearing protection (Tr. 135-136). Under the circumstances presented by Trinity's hearing conservation program, Trinity argues that there is no need to conduct audiometric testing.

The argument advanced by Trinity was considered and rejected by the court in Hackney, Inc. v. Secretary of Labor, 895 F.2d 1298 (10th Cir. 1990), 14 BNA OSHC 1442. The court stated that "the basic rule in these regulatory cases is that the regulated business must 'follow the law even if it has a good faith belief that its own policy is wise.'" The decision of the court makes it clear that audiograms are an essential component of a hearing conservation program. The court then addresses itself to the specific argument advanced by Trinity in this case. The court concludes:

Although Hackney has a policy that requires its employees to wear ear protectors, we must reject Hackney's claim that its policy is superior to the requirements under the regulations. Hackney's policy lacks the means of determining whether, in fact, the employees are complying with its mandatory protector policy or whether the protector equipment is effective. Even with its employee training and its required hearing protectors, Hackney's failure to conduct audiometric testing deprives the employer, as well as OSHA, of information necessary to determine whether the employee's hearing has remained undamaged by workplace noise. Substantial evidence in the record also supports the Commission's conclusion that Hackney may not rely on the attenuation capability of its hearing protection equipment reportedly measured under laboratory conditions. The Commission concluded that the attenuation achieved by hearing protectors in the field is only one-third that achieved in the laboratory.

Based on the rationale of Hackney, Trinity's argument is rejected. The violations are affirmed.

NATURE OF VIOLATIONS

The Secretary classified the violations of 29 C.F.R. 1910.95(d)(1) and 29 C.F.R. 1910.95(g)(5) and (g)(6) as being willful. The standard of conduct to be utilized in finding a willful violation is well established. In C.N. Flagg Co., 74 OSAHRC 66/A2, 2 BNA OSHC 1195, 1196, 1974-75 CCH OSHD 18, 686 (No. 1734, 1974), the Commission stated "that when used in the civil sense 'willful' means intentional, knowing, or voluntary as distinguished from accidental conduct and may be characterized as conduct marked by careless disregard." This standard of conduct has been applied uniformly by most of the circuit courts. The evidentiary burden to establish a willful standard of conduct rests with the Secretary. The burden of proof necessitates that the Secretary establish a state of mind that fits the criteria of what constitutes a willful violation.

In Williams Enterprises, Inc., 87 OSAHRC 33/A3, 13 BNA OSHC 1249, 1987 CCH OSHD 27,893, p. 36,589 (No. 85-355, 1987), the Commission stated:

It is therefore not enough for the Secretary simply to show carelessness or lack of diligence in discovering or eliminating a violation; nor is a willful charge justified if an employer has made a good faith effort to comply with a standard or eliminate a hazard, even though the employer's efforts are not entirely effective or complete.

The Secretary argues that Trinity was aware of the cited standards since 1983 and knowingly disregarded complying with their requirements. Employee knowledge of the standard is insufficient to prove willfulness. "It is not enough for the Secretary to show that an employer was aware of conduct or conditions constituting a violation." Williams Enterprises, Inc., supra, at 1987 CCH OSHD 27,893, p. 36,589. The Secretary ignores the fact that alternative measures were taken by Trinity to protect its employees. Trinity proceeded on the basis that its hearing conservation program was superior to the requirements of the standards. All employees were required to wear protection. The requirement was enforced and all employees were observed wearing hearing protection.Trinity assumed it had eliminated the hazard to the employees.

While there is an of opinion as to how an 1910.95(d)(1), 1910.95(g)(5) and (g)(6), it is undisputed that Trinity did not ignore the Safety of its employees. It furnished and required all employees to wear hearing protection. Trinity knowingly chose to Proceed at variance with the standards, but there is no evidence to dispute its assertion that it proceeded on the belief that its hearing conservation program exceeded the requirements of the standards. Trinity did not disregard employee safety. The violations were not willful.

Trinity argues that any violations determined of 29 C.F.R. 1910.95(d)(1) and 29 C.F.R. 1910.95(g)(5) and (g)(6) Must be classified as de minimis. It points out that, where the chance of injury to employees was remote, the Commission has classified such violations as de minimis, citing Keco Industries, Inc., 84 OSAHRC 7/A2, 11 BNA OSHC 1832, 1835, 1984 CCH OSHD 26,810 (No. 81-1976, 1984); and Fabricraft,Inc., 79 OSAHRC 49/A2, 7 BNA OSHC 1541, 1979 CCH OSHD 23,691 (No. 76-1410 1979). In such circumstances, the technical noncompliance with the standard does not appreciably diminish the safety or health of employees.

Donovan v. Daniel Construction Co., 692 F.2d 813, 821 (1st Cir. 1982).

In Hackney, Inc. v. Secretary of Labor, 895 F.2d 1298 (10th Cir. 1990) 14 BNA OSHC 1442, the same arguments for classifying the violation as de minimis were rejected by the court. Hackney, like Trinity, had a policy that required all employees to wear ear protectors. The court specifically rejected Hackney's claim that its policy was superior to the requirements imposed by the standards. Following the rationale of Hackney, the argument that the violation must be classified as de minimis is rejected.

The violations were classified as willful. Since there is no evidence to support serious violations of the standards, the violations are determined to be nonserious.

PENALTY DETERMINATION

Penalties were proposed for the violations of 29 C.F.R. 1910.95(d)(1) and 29 C.F.R. 1910.955(g)(5) and (g)(6) on the basis that the violations were willful. The violations have been reclassified as nonserious. The gravity of the offense is the principal factor to be considered in assessing a penalty. Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4, 1972). Since employees were required to wear hearing protection, the gravity of the offense does not warrant the assessment of a penalty for the violations and none is assessed.

"OTHER" CITATION

Item 1

Alleged Violation of 29 C.F.R. 1910.96(d)(l)

The Secretary alleges that Trinity violated 29 C.F.R. 1910.96(d)(l) [[9]] by failing to make such surveys as necessary to evaluate the radiation hazards incident to the operation of the x-ray unit located behind the "long seam" welder and at the center area of the building. The cited standard requires an employer to make a survey to evaluate "the radiation hazards incident to the production, use, release, disposal, or presence of radioactive materials or other sources of radiation under a specific set of conditions."

Trinity has been using an industrial x-ray unit since 1983 to take x-rays of the long seam of the shell (Tr. 153). Broadaway requested a copy of the radiation survey of the unit (Tr. 153). A copy of the state inspection of the x-ray unit was provided, but no radiation survey of the work area was furnished (Tr. 153, 154, 219, 246). Broadaway acknowledged that Riddles and Virgin told him that they understood that a survey had been done in-house at the time the x-ray was installed (Tr. 247). However, they did not provide him with any written survey made on the x-ray unit (Tr. 247). Broadaway stated that Virgin could not recall any of the readings that had been taken. There was nothing to indicate what the levels of radiation were to the employees in the work area in the event they were exposed (Tr. 249).

Frederick Pullen, a health physicist for the State of Florida, testified that he visited the Trinity facilities in Jacksonville in December, 1987, to survey the x-ray machine which was registered with the State of Florida (Tr. 176-177). He described the x-ray machine as a fluoroscopic imaging x-ray similar to a baggage-type unit. He requested a copy of any surveys done of the x-ray unit but was not provided with any survey (Tr. 177). Pullen further stated that Florida requires that Trinity have the survey available (Tr. 178).

The OSHA standard refers to surveys but does not specify that they have to be in writing. While there appears to be no requirement that the survey be in writing, an employer is required to comply with the requirement. Evidence must be available to show compliance and one of the best means of demonstrating this fact is to reduce the survey to writing. During the inspection, Trinity produced no competent evidence to show compliance with the standard. Broadaway was seeking tangible proof of a survey. In his view, Trinity should have recorded and maintained a written record of any survey performed on the x-ray machine (Tr. 246).

In order to prove compliance with the standard, Trinity offered the testimony of Greg McCrae, its quality assurance manager. He testified that he installed the x-ray machine in 1984 and conducted a physical survey of the location of the machine to determine whether impermissible high levels of radiation were emitted. He supposedly used a survey meter and concluded that the machine was providing extremely low radiation. He did not testify as to his actual readings.

There is no testimony to refute McCrae's statements, but it is noted that the results of his survey were not disclosed to the State of Florida in 1987. Trinity also failed to offer any proof of a survey to Broadaway. The failure to offer proof of the survey on the two previous occasions casts a shadow on the testimony of McCrae. The standard requires every employer "to make such surveys as may be necessary for him to comply with the provisions in this section 1910.961." McCrae merely testified that the machine was "providing extremely low radiation." The survey meter readings were not disclosed. In view of his failure to disclose his readings, it is not possible to ascertain if Trinity was in compliance with 1910.96.

Facts regarding actual readings are necessary to establish compliance. McCrae testified by giving his opinion rather than the facts as to the meter readings. It is not possible to ascertain if his opinion of "extremely low radiation" is an accurate opinion of the meter readings. The Commission must base its decision on facts. Trinity had the burden to show compliance. It has failed to meet that burden.

The violation is affirmed.

Item 2

Alleged Violation of 29 C.F.R. 1910.252(e)(2)(iii)

The Secretary alleged that Trinity was in violation of 29 C.F.R 1910.252(e)(2)(iii)[[10]] for failure to protect employees adjacent to welding areas from the welding rays by noncombustible or flameproof screens or shields. The alleged violation was raised as to employees working in and around the following locations:

(a) The "gauge pad" or "spud" welding position on the north wall.
(b) The "collar" welding position in the northeast corner of the plant.
[[10]] Section 1910.252(e)(2)(iii) of 29 C.F.R. provides:
(iii) Protection from arc welding rays. Where the work permits, the welder should be enclosed in an individual booth painted with a finish of low reflectivity such as zinc oxide (an important factor for absorbing ultraviolet radiations) and lamp black, or shall be enclosed with noncombustible screens similarly painted. Booths and screens shall permit circulation of air at floor level. Workers or other person; adjacent to the welding areas shall be protected from the rays by noncombustible or flameproof screens or shields or shall be required to wear appropriated goggles.
(c) The "breaking/rolling" station on the south wall of the plant.
(d) The "head" welding positions located behind round seam welders.
(e) The "repair" welding position located in the southwest corner of the plant.

Trinity concedes that the welders at the above locations were doing either stick or mig welding which gives off welding flash or rays (Tr. 156, 157, 230, 235). Virgin recognized that there was hazard to the eyes from welding flare or rays to the welder as well as employees adjacent to the welding area (Tr. 157). Trinity acknowledged that the safety glasses worn by employee in the welding areas would not be considered appropriate goggles within the meaning of the standard (Tr. 159).

(a) Spud Welding Position

The spud welding position was located immediately adjacent to the right of the head welder (Exs. C-1, C-4 (A, B); Tr. 222). A small screen, approximately four foot square, was erected between the two welders. It was located about six feet from the head welder (Tr. 222- 223). The spud welder's work required him to come away from the protection of the small screen on a regular basis. When he moved away from the screen, he was exposed to welding flare. He was not protected by shields, goggles or other screens (Tr. 223). The spud welder was exposed to welding rays on several occasions during the inspection, approximately seven to nine feet from the head welder (Tr. 225).

(b) Collar Welding Position

A helper works ten feet behind the collar welder. He was exposed to the welding rays from the collar welder, because no screens or shields were in place to protect him (Ex. C-1; Tr. 227-228). The helper would on occasion move to a position about six feet from the collar welder (Tr. 228). The only screens provided the welder were located on each side of his welding table and were approximately three square feet (Ex. R-17; Tr. 227).

(c) "Breaking/rolling" Station

This station was located against the south wall where the flat steel was rolled to make the center portion of the container (Exs. C-1, C-4 (C, D); Tr. 229-230). Welding was being performed ten feet away from the rolling operation (Tr. 231). The welder had only a small 3' x 3' screen on either side of the table (Tr. 231). Broadaway observed the operator and other employees within five feet of the welder who were not protected from the welding rays by the screens (Tr. 231).

(d) "Head" Welding Position

This position was located behind the round seam welder (Exs. C-1, C-4 (E); Tr. 231). During welding, Broadaway observed an employee within six feet of the seam welder. He was not protected by the screen or shield. The screen was torn and drooped. It did not provide any protection except possibly to the grinder on the welder's immediate right (Ex. C-4 (F); Tr. 235, 236.)

(e) "Repair" Welding Position

This position had no screens or shields or shields protecting employees (Ex. C-4 (G); Tr. 237). Employees were observed within six feet during the welding process (Tr. 237)

The standard, 1910.252(e)(2)(iii), requires protection of employees from arc welding rays. It states, in part, that it "[w]orkers or other persons adjacent to the welding areas shall be protected from the rays by noncombustible or flameproof screens or shields or shall be required to wear appropriate goggles." While the evidence shows that Trinity provided welding curtains and screens, they were not of sufficient size or located properly to offer full protection to employees moving in the listed areas. Employees were not wearing appropriate goggles. The violation has been established.

Item 3

Alleged Violation of 29 C.F.R. 1910.1200(g)(8)

The Secretary alleges Trinity violated 29 C.F.R. 1910.1200(g)(8)[[11]] by failing to maintain copies of the chemical safety data sheets for hazardous chemicals in the workplace which were identified as "King of the Roof" and a battery electrolyte.

Broadaway testified that Trinity did not have the MSDS for "King of the Roof" on the battery electrolyte. The "King of the Roof" is a substance used by Trinity to coat the base of cylinders to prevent them from rusting. It contains mineral spirits (Tr. 148, 239-240). The substance has been used by Trinity for approximately one year (Tr. 240-241, 258). The battery electrolyte contains sulfuric acid (Tr. 149, 241). The electrolyte was not being used at the time of the inspection, but Broadaway stated that Virgin informed him that it had been recently acquired for use in a battery (Tr. 241, 256). Virgin acknowledged that there was no MSDS at the plant for "King of the Roof" (Tr. 149).

The necessity to maintain a copy of the MSDS for the battery electrolyte is disputed. Virgin testified that the battery electrolyte (sulfuric acid) was never opened by Trinity and was returned to the seller (Tr. 168-169). The plant never used or intended to use the battery electrolyte (Tr. 168-169). The Secretary conceded that Broadaway did not see the electrolyte in use. Broadaway understood that the battery electrolyte was going to be used (Tr. 149-150, 168, 241, 255). The evidence does not support the determination that the electrolyte was or intended to be used by Trinity. Therefore, Trinity was not required to have MSDS for the battery electrolyte and that allegation is vacated.

Trinity maintains that an MSDS was not necessary for the "King of the Roof" coating, because it was similar to another chemical previously used by it prior to switching to "King of the Roof". This defense is rejected. While Broadaway was informed that "King of the Roof" was a substitute brand, no showing of similarity was made to Broadaway or presented at the hearing. Furthermore, the plant manager could not remember if he even had an MSDS on the other chemical (Tr. 174). A copy of the other MSDS was not presented to Broadaway or offered at the hearing. Finally, there is no standard which permits the use of another MSDS in this situation. See General Motors Corp., 88 OSAHRC 7/A3, 13 BNA OSHC 1645, 1988 CCH OSHD 28,156 (No. 87-526, 1988). Trinity was in violation of 29 C.F.R. 1910.1200 (g)(8) for its use of the "King of the Roof" coating for one year without an MSDS at the workplace.

Item 4

Alleged Violation of 29 C.F.R. 1910.1200(h)(2)(ii)

The Secretary alleges Trinity violated 29 C.F.R. 1910.1200(h)(2)(ii) [[12]] because welding employees had not been informed of the hazards of the decomposition products in their welding processes such as iron, oxides, fluorides, silica and manganese oxide.

Broadaway testified that they asked employees about the various health hazards present in the workplace. None of the employees interviewed were aware of any health hazards from the welding processes (Tr. 243). A review of Trinity's safety meeting reports did not disclose that the hazards associated with the welding process posed any threat (Tr. 243-244). Broadaway concluded that Trinity's employees were not aware of the health effects and hazards associated with welding, such as the fumes containing manganese oxide which can cause, among other things, central nervous system damage (Tr. 243-244). A former welder, Danny Cahan, testified that he received no training on the hazards associated with welding fumes (Tr. 181). A review of the safety meeting reports indicated that respondent had not trained its employees in these health hazards (Tr. 244).

The lack of training as to health effects associated with welding can be attributed to Trinity's plant manager who, according to the corporate safety director, is responsible to provide such training (Tr. 75, 77). Virgin stated that he gave safety training to welders as to any kind of health hazard associated with the welding process. Yet, he admitted that he could not tell the hazards of fumes from a welding rod (Tr. 160-163), although he believed there were health hazards (Tr. 160-161). If he wanted to find out the chemical hazards from welding fumes, he stated that he would look at the MSDS (Tr. 168). He only trained employees about welding burns (Tr. 161). He did advise the welders to try not to breath the fumes (Tr. 163).

A welder employed by Trinity, David Butcher, testified that safety programs concerning the hazard communications standard had been held. According to him, all employees were required to attend. He stated that he was aware of the hazards of welding. He was familiar with the location of the MSDS's and how to find information on them. While he stated he was aware of the hazards of welding, he did not state when or where he became aware of the hazards (Tr. 410-415). Butcher's testimony does not directly support the assertion by Virgin that he had explained the chemical hazards of welding to the welders (Tr. 167-168).

Cahan's testimony that he received no training on the hazards associated with welding fumes, and Broadaway's finding that none of the employees interviewed were aware of any health hazards from the welding processes, strongly suggests no such training was given. A review of the safety meeting reports fails to support Virgin's claim that he discussed the hazards of the welding process. If Virgin did make an effort to discuss the hazards, he was unable to adequately convey the hazards to the welders. The violation has been established.

Item 5

Alleged Violation of 29 C.F.R. 1910.1200(h)(2)(iv)

The Secretary alleges that Trinity was in violation of 29 C.F.R. 1910.1200(h)(2)(iv) because employee training did not include details of the hazardous communication program developed by Trinity. It was alleged that employee training did not include details of the MSDS as to how to interpret and use information such as PEL, PPM, and TLV. The standard provides:
(2) Training. Employee training shall include at least:

(iv) The details of the hazard communication program developed by the employer, including an explanation of the labeling system and the material safety data sheet, and how employees can obtain and use the appropriate hazard information.

Riddles purchased a series of VHS training tapes on the hazard communication standard in order to make the training uniform throughout Trinity (Tr. 90-91). According to Riddles, he relied on two training tapes: one explaining about the standard and how to read the MSDS; the other program was put together by the National Safety Council and pertains to flash points (Tr. 90-91). Employees were also trained on how chemicals enter the body (Tr. 91). In addition, Riddles testified that Trinity tries to have a refresher course once a year in all plants (Tr. 91). Employee Danny Cahan testified that there was no training on what is contained in a MSDS and how to read it. He stated that Virgin merely told them they were welcome to come and read the MSDS if they would like to (Tr. 182).

Based on his inspection, Broadaway concluded that Trinity's employees were not familiar with abbreviations such as TLV, PPM and PEL used in the numerous material safety data sheets at the plant (Tr. 172, 244-245). Knowledge of these abbreviations and other information is important in order for an employee to properly interpret the information contained in a material safety data sheet. Dan Virgin, who was responsible to give such employee training, did not know the meaning of those symbols (Tr. 150, 152-153). He apparently only knew where the material safety data sheets were located at the plant. He testified that, if someone had a question Concerning PPM or PEL, he would have to look at the MSDS and see if it defined the term.

Trinity offered testimony that, at a safety meeting on May 23, 1986, it showed a videotape to employees which provided information on interpreting safety data sheets (Ex. R-19; Tr. 461, 463, 464). A copy of the videotape was placed into evidence. The tape contains a good general discussion of what type of information is contained in a MSDS. The tape also refers to the labeling system. Both topics are discussed in an informative manner.

Section 1910.1200(h)(2) specifies that employee training shall include at least the information set forth in subsections (i), (ii), (iii) and (iv). Under (iv) the training is to include "details of the hazard communication program developed by the employer." Included in the program must be an explanation of the labeling system and the material safety data sheet. However, the standard requires more than simply a discussion of what is a MSDS and a label. Details of the program should adequately address each of the required components in the program. The hazard communication program developed by the employer is required to conform with 1910.1200(e). Details of the employer's hazard communication program should also include discussion of the items set forth at 1910.1200(e).

Virgin was not well informed as to the components and requirements of the MSDS or labeling system. The furnishing of safety manuals and information on the hazardous communication program to the plant manager does not mean that he adequately absorbed them and was properly trained to explain the various provisions of the standard to plant employees (Tr. 148, 348, 355, 356). There is no credible evidence that Virgin had the training or knowledge to adequately train employees as to the details of the hazard communication program. Along with other jobs, the plant manager's primary job was to keep up production (Tr. 145). Not much training can be given during a period of 15 to 30 minutes every four to six weeks (Tr. 146).

While Cahan had no recollection of seeing the videotape, Butcher testified that he had seen it. Virgin stated on several occasions that he had shown the videotape. A safety meeting report was offered into evidence reflecting that it was shown on May 23, 1986 (Ex. R-19). Cahan executed the sheet indicating his attendance but had no recollection of the meeting. His signature on the sheet is considered an admission that he was present. Butcher's signature also appears on the sheet and supports his testimony that training was held on interpreting MSDS's. The tape is self-explanatory and does not depend on Virgin to explain the labeling system or MSDS. As pointed out by Trinity, the allegation pertained only to the lack of training on the MSDS. While there may have been other deficiencies under 1910.1200(h)(2)(ii), Trinity was not charged with them. Since the videotape did an adequate job of explaining the MSDS, the allegation is vacated.

DOCKET NO. 88-1547

Several of the safety items included in the serious and "other" citations issued to Trinity on June 21, 1988, have been resolved by the parties prior to and during the hearing (Tr. 4-7, 226-227). In addition, the Secretary's brief withdrew item 12 of the serious citation and items 5 and 6 of the "other" citation (Brief, p. 2). The following summary, included by counsel for Secretary in his brief, accurately sets forth the status of all issues originally contested by Trinity (Brief, p. 3):

Standard Citation Item Disposition [[13]]
1910.2)3(c)(1) 1 WD-S
'L.910-107(bIt5)(i) 1 2a at issue
1910.107(b)(6) 1 2b at issue
1910.107(i)(8) 1 2c WD-R
1910.107(g)(2) 1 2d WD-S
1910.107ic)(2) 1 3 at issue
1910.132(a) 1 4a WD-S
1910.132(a) 1 4b, c, d WD-R
1910.133(a)(3) 1 5 WD-S
1910.151(c) 1 6 at issue
1910-212(a)(3)(ii) 1 7 at issue
1910-217(b)(3)(i) 1 8a WD-R
1910.217(b)(3)!1) 1 8b at issue
1910.217(b)(8)(iii) 1 9 at issue
1910.217(c)(1)(i) I 10a at issue
1910.217(c)(2)(i)(a) 1 10b at issue
1910.217(d)(9)(iv) 1 11 at issue
1910.303(g)(2)(i) 1 12 14D-S
1910.305(b)(2) 1 13 at issue
1904.2(a) 2 1 at issue
1904.4 2 2 at issue
1910-22(b)(1) 2 3 WD-S
1910.23(c)(1) 2 4 WD-S
1910.106(d)(7)(.L 2 5 WD-s
1910-106(e)(6)(i) 2 6 WD-S
1910.107(i)(6) 2 7 at issue
1910.110(e) 1)(iii) 2 8 at issue
1910.157(gh2) 2 9 WD-R
1910.178(q)(7) 2 10 at issue
1910-217(b)(4)(ii) 2 11 at issue
1910-305(b)(2) 2 12 WD-S
1910.305(g)(1)(iii) 2 13 at issue
1910.305(g)(2)(ii) 2 14a, b WD-S
1910-305(g)(2)(iii) 2 15 at issue

Item 2a

Alleged Violation of 29 C.F.R. 1910.107(b)(5)(i)

The Secretary alleges that there was no gauge, alarm or device on the electrostatic paint spray booth to indicate or insure that the required air velocity was maintained. Section 1910.107(b)(5)(i), in pertinent part, provides:

Visible gauges or audible alarm or pressure activated devices shall be installed to indicate or insure that the required air velocity is maintained.

Deifer observed the paint spray booth where an electrostatic spray gun was being used. In walking around the booth, he did not observe any gauges, alarms or devices to indicate whether the required air velocity was being maintained (Tr. 136-137). Deifer's testimony is supported by the plant manager, Dan Virgin, who conceded that the spray paint booth was not equipped with gauges, alarms or devices which indicate or insure that the required air velocity is maintained as required by the standard (Tr. 10). Deifer testified that measurements were taken which showed an air flow reading of zero to fifty (Tr. 137), which is below the air velocity required by the standard.[[14]]

Trinity argues that the Secretary has the burden to establish that the spray booth was a spraying area as defined by 29 C.F.R. 1910.107(a)(2).[[15]] This position is based on the false assumption that measurements are required in the spray booth to establish the presence of "dangerous quantities of flammable vapors or mists or combustible residues, dusts or deposits." Trinity superimposes the definition of a spraying area upon the definition of a booth. This argument is without merit.

Trinity correctly points out that when a subsection of 1910.107 specifically uses the term "spraying area," the Secretary is required to demonstrate the presence of dangerous quantities of flammable vapors or mists or combustible residues before the standard applies. In StanBest, Inc., 83 OSAHRC 10/D6, 11 BNA OSHC 1222, 1983-84 CCH OSHD 26,455 (No. 76-4355, 1983), the Commission expressly states that those provisions of section 1910.107 that refer to spraying areas require the Secretary to demonstrate the presence of dangerous quantities of flammable vapors or mists. The Commission stated (11 BNA OSHC at 1230):

Section 1910.107(a)(2) is not a scope provision for all of section 1910.107. It is instead a definition of a single term, "spraying area," that is used in only some provisions of section 1910.107. The Secretary is therefore not required to demonstrate the presence of "dangerous quantities of flammable vapors or mists, or combustible residues, dust, or deposits" if the cited standard does not specifically address "spraying areas". See Fusibles Westinghouse de Puerto Rico v. OSHRC, 658 F.2d 21, 24 (1st Cir. 1981).

There is no evidence to establish that there were dangerous quantities of flammable vapors or mists or that any testing was undertaken to determine vapor concentrations.

Trinity acknowledges that the cited standard does not specifically use the term "spraying area." It makes reference to spray booths and not "spraying area." Under the rationale of the decision in StanBest, Inc., supra, the Secretary is not required to demonstrate the presence of dangerous quantities of flammable vapors or mists or combustible residues before the standard applies. Trinity argues that the Secretary should have the same burden of proof under all subsections of 1910.107 "where paint spraying is done, whether that place is called a spray 'booth' or a spraying 'area.'" It then states (brief p. 7):

There was previously no doubt the Secretary had this burden of proof. In Allis-Chalmers Corporation, 10 BNA OSHC 1301, 1303 (Rev. Comm. 1982) the Commission held the Secretary had the burden of proving "that Allis-Chalmers' spray painting booth is a 'spraying area' within the meaning of section 1910.107(a)(2)." (emphasis added). The subsequent holding in Stanbest, Inc. is not as clear on this point. Trinity therefore submits the review Commission should clarify the Secretary's burden, and should dismiss serious No.2a and Serious No. 2b because the Secretary failed to establish dangerous quantities of flammable vapors or mists or combustible residues.

Trinity misconstrues the facts in Allis-Chalmers Corp., 82 OSAHRC 2/R1, 10 BNA OSHC 1301, 1982 CCH OSHD 25,831 (No. 77-3285, 1982). The burden was on the Secretary, because the standard in issue, 1910.107(c)(2), made reference to spraying area. The company used a spray booth. The question was whether a spray booth constituted a spraying area. Since the standard referred to spraying area, the Secretary had to establish that the spraying booth met the definition of spraying area as defined by 1910.107(a)(2). The Commission in Allis-Chalmers Corp., supra, 10 BNA OSHC at 1303, stated:

We find that the Secretary has not established that Allis-Chalmers' spray painting booth is a "spraying area" within the meaning of section 1910.107(a)(2). The Commission has held that to prove that a cited area is a "spraying area," the Secretary must show that either dangerous quantities of flammable vapors or mists were present, or that combustible residues, dusts, or deposits were present. Ed Jackman Pontiac-Olds, Inc., 80 OSAHRC 26/D14,8 BNA OSHC 1211, 1215, 1980 CCH OSHD 24,351, p. 29,681 (no. 76-20, 1980). We find insufficient evidence on both these points. (Underlining added.)

The Commission's decision in StanBest, Inc supra, is consistent with the rationale of Allis-Chalmers Corp., supra. Trinity's argument that the burden should be the same whether the place is called a spray "booth" or a spraying "area" fails to take into account the fact that different physical dimensions may have an effect on the concentration levels of flammable vapors or mists or combustible residues. A confined area, such as a booth, is likely to have more dangerous concentrations than an open area where painting is accomplished. Vapors would certainly dissipate faster in an open area than in a booth without proper ventilation. For this reason, the requirements for spray booths should be somewhat different than those for a spraying area. The burden of proof for the Secretary should be greater for a spraying area, because in the usual case vapors or mists will dissipate faster in an open area and are unlikely to present as great of a hazard.

Since the cited standard makes no reference to spraying area as defined by 1910.107(c)(2), the Secretary's burden of proof was satisfied by establishing the absence of any gauge, alarm or device on the electrostatic paint spray booth There is no dispute over that fact. The booth was in use during the inspection and was used on a regular basis (Tr. 137). The violation has been established.

Item 2b

Alleged Violation of 29 C.F.R. 1910.107(b)(6)

The Secretary alleges that a metal deflector or curtain was not installed at the upper edge of the electrostatic spray booth over the opening as required by 1910.107(b)(6). This standard requires that:

Frontal area. Each spray booth having a frontal area larger than 9 square feet shall have a metal deflector or curtain not less than 2 1/2 inches deep installed at the upper outer edge of the booth over the opening.

The purpose of the deflector or curtain is, in the event of a fire in the spray booth, to confine the fire within the booth. It acts as a deterrent to the flames spreading outside the booth (Tr. 140-141). The absence of such a deflector exposes employees to potential burns should a fire occur in the booth.

Deifer testified that the front area of the paint spray booth is more than nine square feet and that employees were working in the area (Tr. 141). Virgin conceded that the paint spray booth did not have a deflector or curtain as required by the standard (Tr. 10-11). The violation has been established.

Trinity advocates the same rationale as discussed under item 2a for vacating the allegation. For the reasons stated under item 2a, Trinity's argument is rejected. Section 1910-107(b)(6) makes reference to a spray booth. It makes no reference to a spraying area. The Secretary does not have the additional burden of establishing factors to prove that a spray booth is a spraying area as defined by 1910.107(a)(2).

Item 3

Alleged Violation of 29 C.F.R. 1910.107(c)(2)

The Secretary alleges that unapproved electrical equipment was located within 20 feet of the spray area in violation of 1910.107(c)(2), which provides:

Minimum separation. There shall be no open flame or spark producing equipment in any spraying area nor within 20 feet thereof, unless separated by a partition.

Unapproved electric equipment, including receptacles, switches, flexible cord and water fountain, were located within 20 feet of a spray booth (Exs. C-19, C-20; Tr. 150-155). Virgin admitted that the cited items were "in the area" of the spray booth although he was not sure of the exact distance (Tr. 12). These electrical items are capable of producing sparks which could ignite flammable vapors.

Section 1910.107(c)(2) refers to "any spraying area." Since the words "any spraying area" are used in the standard, the Secretary is required to establish the presence of dangerous quantities of flammable vapors, mists or combustible residues. StanBest, Inc., supra, 11 BNA OSHC at 1230. No such evidence was presented by the Secretary. The Secretary has failed to meet her burden on the issue. The alleged violation is vacated.

Item 6

Alleged Violation of 29 C.F.R. 1910.151(c)

Maintenance shop employees used chemicals, including sulfuric acid and 111 trichloromethane, in dip tank and battery recharging operations. The Secretary alleges that there were no suitable facilities for quick drenching or flushing of the eyes and body in the work area. The standard allegedly violated, 1910.151(c), states:

Where the eyes body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.

Compliance Officer Deifer observed a battery charging unit and a small parts cleaning tank in the paint area. Chemicals were used in the area and included 111 trichloromethane and sulfuric acid. He did not observe an emergency eye wash or shower in the work area (Tr. 156). A maintenance worker informed Deifer that he worked in the area and handled the chemicals (Tr. 156).

The closest water available for possible drenching or flushing the eyes or body was from a sink and water cooler. Virgin estimated the sink to be approximately 15 to 20 feet from the parts washer which used 111 trichloromethane. He estimated a distance of 10 to 15 feet from the battery charger to the sources of available water. These sources of water have never been used to flush out a person's eyes. The need to use them has never arisen (Tr. 12-17). The route to both sources of water was obstructed by machinery. The water cooler was located around a corner (Exs. R-2, R-3; Tr. 15-17, 156-159).

Trinity argues that the sink and water fountain located in the area were sufficient to satisfy the requirements of 1910.151(c). This conclusion is based on Riddles' opinion that there would be no damage to the eye if the battery acid were washed out within one minute, and that it would take a maximum of ten seconds to get to the sink or water fountain (Tr. 386-288). Trinity points out that in Gibson Discount Center, Store No. 15, 78 OSAHRC 30/01, 6 BNA OSHC 1526, 1527, 1978 CCH OSHD 22,669 (No. 46757, 1978), the Commission approved water facilities located 29 to 30 seconds at a normal walk from a work area where battery acid was being used. The Commission decision confirms Riddles' testimony that "battery acid is not injurious if washed out within a short period of time," 6 BNA OSHC at 1527. In that case, the compliance officer also testified that an exposure time of possibly a minute is permissible.

Unlike Gibson Discount Center, Store No. 15, supra, the pivotal question in this case concerns the type of available facilities rather than the actual location of those facilities. The primary purpose of 1910.151(c) is to assure that employees who work with corrosive chemicals have facilities readily available to wash such chemicals from their eyes or body before they suffer injury. Bridgeport Brass Co., 84 OSAHRC 42/E8, 11 BNA OSHC 2255, 1984-85 CCH OSHD 27,054 (No. 82-899, 1984). The standard, by express wording, indicates that "suitable facilities" are those that provide for quick drenching or flushing of the eyes and body. The location of the sink and faucet, as shown by the photograph entered into evidence as C-1, reflects that it would be difficult for an individual to get a quick source of would be difficult for an individual to get a quick source of sufficient water to flush the eyes and body (Tr. 19). The faucet is in the corner and would be difficult for one to get his body close enough to take full advantage of the facility. The water cooler is operated by a knob. Since Virgin testified it was a conventional water cooler, it would not have the capacity to dispense a large amount of water in a short period of time. Virgin and Deifer were unaware of the water pressure and how far the water would be elevated when the knob was turned (Tr. 18, 157). A conventional water cooler is not normally designed to furnish water for quick drenching of the eyes and body.

The sink and water cooler are clearly inadequate to satisfy the requirements of 1910.151(c). The standard requires that the facilities provided must be such that they will enable the person in distress to quickly flush or drench the eyes or body. The flow of a conventional water cooler is not capable of quick saturation of the body. In addition, the configuration of the water cooler and the sink is such that it would be virtually impossible to expose certain extreme parts of the body to their flow. The violation has been established.

Item 7

Alleged Violation of 29 C.F.R. 1910.212(a)(3)(ii)

A Southmark 600-ton hydraulic press and a smaller hydraulic press used to punch DOT numbers on a plate were located in the back of the shop. The Secretary alleges that the presses did not have a guard or device to prevent the hands or fingers from entering the point of operation in violation of 1910.212(a)(3)ii), which provides:

The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefore, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

Virgin agreed that the two presses were without a guard or device to prevent hands or fingers from entering the point of operation (Tr. 20). Trinity argues that neither of the presses presents a hazard because the ram descends too slowly on the presses to create a realistic hazard.

"In order to prove a violation of 1910.212(a)(3)(ii), the Secretary must establish that (1) the points of operation were unguarded, and (2) the operation of the presses exposed employees to injury. Skydyne, Inc., 84 OSAHRC 1/B2, 11 BNA OSHC 1753, 1983-84 CCH OSHD 26,761 (No. 80-5422, 1984); Rockwell International Corp., OSAHRC, 9 BNA OSHC 1092, 1980 CCH OSHD 24,979 (No. 12740, 1980). There is no dispute that the presses were unguarded. Trinity submits that the Secretary failed to prove that operation of the presses exposed employees to injury. In determining whether an employee was exposed to injury, the Commission in Rockwell International Corp., supra, stated (9 BNA OSHC at 1097-1098):

The mere fact that it was not impossible for an employee to insert his hands under the ram of a machine does not itself prove that the point of operation exposes him to injury. Whether the point of operation exposes an employee to injury must be determined based on the manner in which the machine functions and how it is operated by the employees.

Riddles testified that the hydraulic press used to punch DOT numbers operates at an extremely slow speed and, for this reason, he does not consider it to present a hazard to employees (Tr. 389, 391). Both hands are busy during the operating cycle. The operator has to hold onto a piece of material with his left hand so the dies can mark the serial number of the tank. The right hand has to maintain pressure on the control switch to keep the press cycling (Tr. 391). The press stops when the operator takes his finger off the switch.

The video introduced as Exhibit R-13 reflects that the press descends slowly and that it stops immediately when the operator releases the switch. The slowness with which the ram descends affords the employee ample time to withdraw a hand or finger in the event the operator inadvertently placed it within the point of operation. The Commission has recognized that the speed that a ram descends can present a viable defense in establishing that no hazard exists. In Rockwell International Corp., supra, (9 BNA OSHC at 1098), the Commission stated:

The rams descended so slowly that an operator who nevertheless placed his hands into the point of operation would be able to withdraw it or reverse the descent of the ram before it contacted the hand by simply pressing down on the foot pedal.

In this case, the slow descent of the ram and the fact the press stops when the operator takes his finger off the switch mitigates against determining the operator or any other employee was exposed to injury.

The small hydraulic press stamps DOT numbers sequentially, which necessitates the dies being changed after each punching operation. The change is accomplished by inserting the hand directly into the point of operation. The Secretary argues that this creates a serious hazard in the event of machine failure. This argument overlooks the slow speed of the machine which acts as a protection against inadvertent error (Tr. 127). Complainant has failed to prove that the operation of the press in its unguarded condition presented a hazard to employees. The alleged violation is vacated.

The 600-ton press is used to form cylinder heads from sheet metal. The operator, who has a helper or assistant in performing the operation, controls the machine with a single set of controls. The helper, who works to the left of the operator, swabs the metal with a lubricant before it goes into the machine and cuts any excess metal from the cylinder head when it is ejected from the machine. There are lubricating fluids on the floor in the area of the machine which could result in slips or falls during the time when the press is performing its operation (Tr. 164-167).

Riddles testified that the 600-ton press was a hydraulic press that moved slowly--similar to the DOT press (Tr. 392). He expressed the opinion that there was no hazard to employees. He further testified that there was no way the helper or anyone else who slipped and fell would fall into the point of operation (Tr. 395-396). Riddles' testimony is not directly contradicted. The Secretary has failed to meet her burden of proof in establishing a hazard to employees. The alleged violation is vacated.

Item 8b

Alleged Violation of 29 C.F.R. 1910.217(b)(3)(i)

The Secretary submits that the PA4 press, referred to as the foot ring punch, did not have a functioning single-stroke mechanism as required by 1910.217(b)(3)(i), which states:

Machines using full revolution clutches shall incorporate a single-stroke mechanism.

When the switch, of the PA4 press was activated during the walkaround, Virgin testified that the machine cycled one time (Tr. 21). Deifer testified that, when the machine was turned on, it cycled twice without being activated (Tr. 173). Compliance Officer Deifer testified that, when the employee held his foot on the pedal, the press continued to cycle (Tr. 172) In its brief, Trinity acknowledges that the single-stroke mechanism was broken at the time of inspection.

Trinity argues that even if the single-stroke mechanism was inoperative, the press is so well guarded that there is no hazard. The fact that a press might be adequately guarded does not relieve an employer of complying with the standard. The standard uses the word "shall" which makes the requirement mandatory. It is not necessary for the Secretary to establish a hazard. Since Trinity acknowledges that the single-stroke mechanism was broken, the violation has been established.

Item 9

Alleged Violation of 29 C.F.R. 1910.217(b)(8)(iii)

The Secretary alleges a violation of 1910.217(b)(8)(iii) because the PA4 press (the foot ring press) would cycle when the power was turned on without the foot pedal being activated.The standard states:

All mechanical power press controls shall incorporate a type of drive motor starter that will disconnect the drive motor from the power source in event of control voltage or power source failure, and require operation of the motor start button to restart the motor when voltage conditions are restored to normal.
Deifer testified that when the power was turned on to the press, it cycled twice without being activated. According to him, the employee tripped the pedal prior to turning on the machine and that this act caused it to cycle when it was activated (Tr. 21-23)

There is no dispute concerning the fact that the machine cycled at least once when the power to the press was activated. Even if this only occurred because the pedal to the machine was tripped prior to it being activated, Virgin conceded that the machine was not performing in a normal operation (Tr. 174-175). The purpose of the standard is to prevent the machine from cycling when power is activated to the machine. While Trinity argues there was no hazard, the Secretary need not establish a hazard since the standard stated that "[a]ll mechanical power press controls shall incorporate a type of drive motor starter." The violation has been established.

Item 10a

Alleged Violation of 29 C.F.R. 1910.217(c)(1)(i)

The Secretary alleges that there was a Kling Brothers Engineering Works mechanical power press #15, also referred to as the head press, located at the northeast end of the plant that did not have a point of operation guard or device as required by 1910.217(c)(l)(i). The standard states:

(c) Safeguarding the point of operation--(1) General Requirements. (i) It shall be the responsibility of the employer to provide and insure the usage of "point of operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press See Table O-10

Deifer testified that the mechanical power press did not have any type of point of operation guard or device to prevent an employee from getting his hand or fingers in the point of operation (Ex. C-24; Tr. 177-179).

The press was operated by a foot pedal and is used to punch holes in the cylinder head. The operator stands next to the machine and uses both hands to hold the cylinder head while the hole is being punched (Ex. R-13; Tr. 178-179). The operator has to use two hands to steady the cylinder head as it is inserted. Trinity contends that the size of the cylinder head prevents the operator's hands from getting close to the point of operation. Riddles testified that it would take a deliberate act by the operator for him to get his hand in the point of operation (Exs. R-1, R-13; Tr. 398- 400, 424-425).

In support of the violation, the Secretary argues:

In order to make out a prima facie case of noncompliance with respect to 29 C.F.R. 1910.217(c)(1), the Secretary need only show that the point of operation on a press is unguarded. F. H. Lawson Co, 8 BNA OSHC 1063, 1066 (No. 12883, 1980). "The standard assumes that it is hazardous to operate a mechanical power press without a point of operation guard or other safety devise." Id. at 1069 (view of Commission Barnako, dissenting in part but concurring with the majority as to violation of 29 C.F.R. 1910.2117(c)(1)).

Trinity asserts that of operation guarding is only necessary when there is a hazard and that the press does not present a hazard during normal operations.
The standard makes it mandatory that the employer "provide and insure the usage of 'point of operation guards' or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press." Section 1910.17(c)(l)(ii) gives the only exception to the rule requiring guards or devices. It states:

The requirement of subdivision (i) of this subparagraph shall not apply when the point of operation opening is one-fourth inch or less.

Since the opening is greater than one-fourth inch, a guard is required. As the Commission stated in F. H. Lawson Co., 80 OSAHRC 19/A14, 8 BNA OSHC 1063, 1066, 1980 CCH OSHD 24,277 (No. 12883, 1980):

The judge also correctly held that the Secretary made out a prima facie case of noncompliance with respect to 29 C.F.R. 1910.217(c)(l)(i) by showing that the point of operation on a press is not guarded.

The violation has been established.

Trinity further contends that, if a guard is required, it is not feasible to guard the head punch. Riddles testified that it was not feasible to guard the press (Tr. 399-400) but offered little reason for his conclusion. There has been no showing Trinity has made any attempt to use a guard on the press or pursue alternative means of protection. In order to prove the defense of impossibility of performance, Trinity must show that (1) compliance with the standard would preclude performance of the required work and (2) alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD 23,224 (No. 15094, 1979). Trinity has failed to show that alternative means of employee protection are unavailable. As stated in F.H. Lawson Co., supra, 8 BNA OSHC at 1067:

Thus, a respondent faced with a guarding problem is expected to use the skills and resources at its disposal to develop an acceptable method of guarding.

The defense is rejected.

Item 10b

Alleged Violation of 29 C.F.R. 1910.217(c)(2)(i)(a)

The Secretary alleges that the point of operation guards Trinity had installed on the Long and Allstatler Company hinge press (press #3) and the foot ring press (press PA4) failed to satisfy the requirements of 1910.217(c)(2)(i)(a). The Secretary asserts that the fixed barrier guards on the presses were inadequate to prevent entry of hands or fingers into the point of operation by reaching through, over or around the guard. Section 1910.217(c)(2)(i)(a) requires point of operation guards as follows:

It shall prevent entry of hands or fingers into the point of operation by reaching through, over, under or around the guard;

Trinity argues that there was no hazard presented by the operation of either of the presses. It contends that the guards on the presses prevent accidental entry of hands or fingers into the point of operation during normal use.

The Secretary does not have to establish that a hazard exists. Section 1910.217(c)(l)(i) is a general introduction and statement of requirements as to guarding the points of operation of mechanical power presses. It assumes that it is hazardous to operate a mechanical power press without a point of operation guard or other safety device. The lack of point of operation guarding on the press is a prima facie case of noncompliance. F. H. Lawson, supra, 8 BNA OSHC at 1066 and 1069.

Since 1910.217(c)(2)(i)(a) is a more specific statement of the general requirements of subsection (c)(1)(i), it must be construed in light of and consistent with subsection (c)(1)(i). Where point of operation guards are used which do not comply with 1910.217(c)(2)(i)(a), no proof of a hazard is required. A point of operation guard or device which does not comply with the standard will not shift the burden to the Secretary to establish a hazard. The Secretary's degree of proof is not raised to a higher level by virtue of an employer's failure to install an adequate guard or device.

The Long and Allstatler Company #3 press had a fixed barrier guard which did not prevent entry of hands or fingers from the front and sides (Ex. C-4; Tr. 182-183, 186). The guard on the PA4 press did not prevent entry of hands or fingers from the top and rear (Exs. C-5; C-7; Tr. 187-188). Since the guards, in the words of the standard, do not prevent entry of fingers or hands into the point of operation by reaching through, over or around the guards, a violation has been established.

Item 11

Alleged Violation of 29 C.F.R. 1910.217(d)(9)(iv)

The Secretary alleges Trinity was in violation of 1910.217(d)(9)(iv) because safety blocks were not used when dies were changed on the hinge press (press #3), the head press (press #15), and the foot ring press (PA4 press). Deifer did not see the dies changed. The allegation was included in the citation as a result of interviews with some of the operators and one maintenance employee (Tr. 190). The standard, 1910.217(d)(9)(iv), provides:

The employer shall provide and enforce the use of safety blocks for use whenever dies are being adjusted or repaired in the press.

Virgin testified that the dies on the PA4 press were never changed (Tr. 45-47, 88). Since dies are not changed on the PA4 press, Trinity states there is no need for safety blocks. Safety blocks are to be used whenever dies are being adjusted or repaired. The fact that dies were never changed does not mean the dies never have to be adjusted or repaired; however there is no evidence of record to show any adjustment or repairing of the dies.

Riddles testified that the die is not changed on the hinge press while it is on the machine. The guards and dies are one unit. The whole unit is removed from the press to change the dies. The standard only applies when dies are being changed or repaired in the press (Tr. 409-410).

There is no credible evidence that the die on the head press is ever changed. The Secretary argues that Virgin admitted that safety blocks were used during repair or die chances on the hinge press and head press (Tr. 45-47). Virgin indicated on cross- examination that he was not sure that safety blocks were used on the head press (Tr. 89). He indicated no safety blocks were used on the hinge press because there was no room to place the blocks (Tr. 85). Virgin's testimony reflects some confusion (Tr. 43-47, 84-89). He is clear in his statements that dies are not changed on the PA4 press. He is not sure what is done on the head press and believes none are used on the hinge press because there is no room to place them. His testimony on the hinge press is inconsistent with Riddles' testimony that the die is not changed while in the press. Riddles' testimony is deemed more credible since he displayed a greater knowledge of the presses.

Deifer did not see the dies changed, adjusted or repaired on any of the presses. He cited the alleged violation as a result of interviews with operators and one maintenance employee (Tr.190, 195). His testimony was not specific as to what was said to him or who said it. The standard requires safety blocks "whenever dies are being adjusted or repaired in the press. " There is no credible evidence to support the determination that dies were being adjusted or repaired in the press. The Secretary has failed to meet her burden of proof on the issue. The alleged violation is vacated.

Item 13

Alleged Violation of 29 C.F.R. 1910.305(b)(2)

Deifer testified that there was an electrical box on the south side of the stress relieving furnace where the electrical wires were sticking out of the conduit and that an electrical box contained energized wire which was not covered (Tr. 198-199). This condition is clearly reflected in Exhibits C-8 and C-9 (photographs). Deifer also testified that there was a junction box on the Niagara coil sheer that did not have a cover, exposing energized parts (Tr. 199-200). The condition is reflected in Exhibit C-10 (photograph). As a result of the conditions observed by Deifer, the Secretary alleges Trinity was in violation of 1910.305(b)(2), which provides:

Covers and canopies. All pull boxes, junction boxes, and fittings shall be provided with covers approved for the purpose. If metal covers are used they shall be grounded In completed installations each outlet box shall have a cover, faceplate, or fixture canopy. Covers of outlet boxes having holes through which flexible cord pendants pass shall be provided with bushings designed for the purpose or shall have smooth, well-rounded surfaces on which the cords may bear.

It is undisputed that two electrical boxes with energized wires were not provided with approved covers (Exs. C-8, C-9, C-10; Tr. 198-199). Employees worked in the areas of the boxes. The Secretary asserts that Trinity had knowledge of the violative conditions "in that items 26 and 27 on its supervisors safety inspection report (Ex. C-23) provide for the inspection of panel covers and cover plates."

Trinity argues that 'subsection 1910.305(b)(2) is controlled by subsection 1910.303(g)(2)(i) and only requires guarding or enclosure where there is exposure to more than 50 volts." It perceives the determining fact to be whether the exposed live parts were operating at more than 50 volts. There is no evidence to indicate what voltage the wires carried. Deifer testified that he tested to determine if the wires were energized but did not test for the voltage (Tr. 236). He was also unaware of where all the wire connected. He was aware that some of them went to the temperature units Tr. 235-236). Virgin was also unable to tell him what voltage the wires carried (Tr. 236). Finally, Deifer concedes that it was possible the wires carried less than 50 volts (Tr. 238).

Subpart S of 29 C.F.R. 1910 "addresses electrical safety requirements that are necessary for the practical safeguarding of employees in their workplaces." Section 1910.303 is entitled "General Requirements." Subsection (g)(2)(i) of 1910.303 states as follows:

(2) Guarding of live parts. (i) Except as required or permitted elsewhere in this subpart, live parts of electric equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or by any of the following means:

It seems clear that Subpart S concerns itself with offering protection against 50 volts or more. The applicable "general requirements" set forth and   1910.303 must be established prior to establishing specific requirements of other provisions of Subpart S. Since the evidence fails to establish the voltage of the wires, the Secretary is missing an important element of her proof. The alleged violation is vacated.

NATURE OF VIOLATIONS

The Secretary contends that the violations of 1910.107(b)(5)(i) [item 2a]; 1910.107(b)(6) [item 2b); 1910.151(c) [item 6]; 1910.217(b)(3)(i) [item 8, subpart b]; 1910.217(b)(8)(iii) [item 9]; 1910.217(c)(1)(i) [item 10a]; and 1910.217(c)(2)(i)(a) [item l0b] should be classified as serious violations. In order to establish a serious violation, the Secretary must show that there is a substantial probability that death or serous physical harm could result from the violative condition and that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation. Wisconsin Electric Power Co., 76 OSAHRC 134/B2, 4 BNA OSHC 1783, 1797, 1976-77 CCH OSHD 21,234 at p. 25,532 (No. 5209, 1976), aff'd, 567 F.2d 735 (7th Cir. 1977).

The violations of 1910.107(c)(5)(i) and 1910.107(b)(6) exposed employees to potential burns or death in the event a fire occurred. The violation of 1910.151(c) exposed employees to serious chemical burns and eye injuries. The violations of 1910.217(b)(3)(i), 1910.217(b)(8)(iii), 1910.217(c)(1)(i), and 1910.217(c)(2)(i)(a) exposed employees to possible crushing of hands or fingers and possibly amputation (Tr. 200-205). The types of injuries the employees were exposed to by the violations require that they be classified as serious.

"OTHER" CITATION

Item 1

Alleged Violation of 29 C.F.R. 1904.2(a)

The Secretary alleges that Trinity was in violation of 1904.2(a) for recording one lost workday injury in 1986 as an injury without lost workdays. Section 1904.2(a) provides:

Each employer shall, except as provided in paragraph (b) of this section, (1) maintain in each establishment a log and summary of all recordable occupational injuries and * illnesses for that establishment; and (2) enter each recordable injury and illness on the log and summary as early as practicable but no later than 6 working days after receiving information that a recordable injury or illness has occurred. For this purpose form OSHA No.200 or an equivalent which is as readable and comprehensible to a person not familiar with it shall be used. The log and summary shall be completed in the detail provided in the form and instructions on form OSHA No. 200.

Trinity does not dispute the failure to properly record the injury that resulted in lost workdays but maintains it was an isolated incident and that the violation should be vacated. If its defense is rejected, Trinity submits that the violation should be classified as de minimis.

Virgin testified that his secretary keeps the injury records and that he reviews them periodically for accuracy (Tr. 89). His past reviews disclosed to him that she usually has filled rut the records correctly (Tr. 90). The defense of unpreventable employee misconduct has often been made a-d upheld by the Commission in situations where compliance with a standard requires positive employee action. The defense has been directed toward work rules which are designed to achieve compliance with the OSHA standards. The work rules, in turn, anticipate hazards to which employees may be exposed in the course of their scheduled work. The situation presented in this instance does not fit the normal defense of unpreventable employee misconduct since it does not involve a safety or health standard and did not affect the safety or health of any employee.[[16]] In this Judge's opinion, it would be an illogical extension of the defense to cover the situation presented by this case. The defense is held inapplicable to regulations that do not affect the safety and health of employees.

The omission occurred as a result of an inadvertent error on the part of the person responsible for keeping the records. There has been no allegation or any evidence that the omission was deliberate or done to mislead anyone. It had no relationship to the safety and health of Trinity's employees. Accordingly, the violation is affirmed as de minimis. Cf. Anoplate Corp., OSAHRC 12 BNA OSHC 1678, 1688, 1986-87 CCH OSHD 27,681 No. 80-4109, 1986).

Item 2

Alleged Violation of 29 C.F.R. 1904.4

The Secretary alleges Trinity violated 1904.4 because some of the supplemental reports of injury (Florida worker's Compensation Injury Form) were not completely filled out. various information, such as case file number, name of department, name, address, and phone number of physician, description of injury, disease and part of the body affected, and date of birth or age (Tr. 207-208). The standard requires:

In addition to the log of occupational injuries and illnesses provided for under 1904.2 each employer shall have available for inspection at each establishment within 6 working days after receiving information that a recordable case has occurred, a supplementary record for each occupational injury or illness for that establishment. The record shall be completed in the detail prescribed in the instructions accompanying Occupational Safety and Health Administration Form OSHA No. 101. Workmen's compensation, insurance, or other reports are acceptable alternative records if they contain the information required by Form OSHA No. 101. If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

There is no real dispute over whether various information was left off the forms.

Virgin stated that he was unaware if the items mentioned by Deifer (Tr. 208) were left off the forms[[17]] and that his secretary was responsible for completing the forms. He reviews the forms periodically (Tr. 52-53). Trinity argues that since there is no documentary evidence, the Secretary has failed to carry her burden of proof. There is no evidence to refute or contradict the oral. testimony of Deifer, which, in the circumstances of this case, is sufficient to establish the violation. Virgin does not directly contradict Deifer. He doesn't deny the omission of certain information. He testified: "I can't recall" (Tr. 53). Virgin seems to have had a lapse of memory. His nebulous testimony is insufficient to negate the direct and conclusive testimony of Deifer on the omission of facts. The violation has been established.

Trinity next argues that, if a violation is determined, it is clearly de minimis. There has been no showing that any of the omissions affected the safety and heath of employees. Deifer conceded that the omissions had no impact on the safety and health of employees (Tr. 307-308). The omissions appear to have been inadvertent. The violation was de minimis. Anoplate Corp., supra.

Item 7

Alleged Violation of 29 C.F.R. 1910.107(i)(6)

Deifer testified that Trinity employees were using electrostatic hand spraying equipment to paint the cylinders as they came through on a conveyor line. There was no warning sign to indicate that all electrically conductive objects in the spraying area had to be adequately grounded (Tr. 211- 212). Virgin agreed that there were no warning signs (Tr. 61). The Secretary contends that this condition violates 1910.107(i)(6), which states:

Grounding-general. All electrically conductive objects in the spraying area shall be adequately grounded. This requirement shall apply to paint containers, wash cans, and any other objects or devices in the area. The equipment shall carry a prominent permanently installed warning regarding the necessity for this grounding feature.

Trinity argues that the warning sign is unnecessary because it uses an electrostatic painting system whereby all objects are automatically grounded." It implies no grounding warning is necessary because of the fact it is an electrostatic painting system. Trinity also argues that the Secretary failed to establish that the cited area was a spray area as defined by 1910.107(a)(2).

Subsection (i) of 1910.107 is entitled: "Electrostatic hand spraying equipment." Subsection (i)(1) states: Application. This paragraph shall apply to any equipment using electrostatically charged elements for the atomization and/or, precipitation of materials for coatings on articles, or for other similar purposes in which the atomizing device is hand held and manipulated during the spraying operation.

The standard applies to the very type of equipment that Trinity argues is automatically grounded, i.e., electrostatic hand-spraying equipment. Since the standard deals with the same type of equipment being used by Trinity, it must be assumed that there is a necessity for the warning sign. Where such equipment is being used, the Secretary does not have to place in evidence facts justifying the reason the requirement or a warning sign is essential. The promulgation of the standard assumed that there was a need for such a sign.

Section 1910.107(i)(6) refers to conductive objects in the spraying area. Trinity argues that the Secretary must establish that the cited operation falls within the definition of a spraying area as defined by 1910.107(a)(2), which states:

Spraying area. Any area in which dangerous quantities of flammable vapors or mists, or combustible residues, dusts, or deposits are present due to the operation of spraying processes.

In StanBest, Inc., 83 OSAHRC 10/D6, 11 BNA OSHC 1222, 1983-84 CCH OSHD 26,455 (No. 76-4355, 1983), the Commission expressly stated that those provisions of section 1910.107 that refer to spraying areas require the Secretary to demonstrate the presence of dangerous quantities of flammable vapors or mists. Trinity correctly points out that there is no evidence to establish that there were dangerous quantities of flammable vapors or mists.

The Secretary also makes reference to paint residues accumulating at certain points. There is, however, no evidence that they were "combustible residues" within the meaning of 1910.107(a)(2). The Secretary has the burden to demonstrate that the residues are combustible. In Allis Chalmers Corp., 82 OSAHRC 2/E1, 10 BNA OSHC 1301, 1982 CCH OSHD 25,881 (No. 77-3285, 1982), the Commission was confronted with the same argument. In finding for the company on the issue, the Commission states (10 BNA OSHC at 1303):

We also cannot find that there were "combustible residues" in the spray booth within the meaning of section 1910.107(a)(2). When compliance officer Scott was asked how he could have alleged that a spraying area existed where he took no tests to determine the concentration of vapors, he replied that he "could see the excess residue" in the booth. The compliance officer also testified that the residues are "an accumulation of other sprays from the spraying that had been done in the course of time" and that the paint and the solvent being sprayed were both flammable. This does not show, however, that the residues were combustible. Although Mr. Scott also testified that the residues give off flammable fumes, this goes to whether there were dangerous quantities of vapors or mists in the booth rather than to the combustibility of the residues. In sum, we find insufficient evidence that the residues were combustible. (Footnote omitted.)

Similarly, there is insufficient evidence to establish that any residues observed by Deifer were combustible. The alleged violation is vacated.

Item 8

Alleged Violation of 29 C.F.R. 1910.110(e)(4)(iii)

During the inspection, Deifer observed a forklift with one of the two metal mounting straps used to secure the LP cylinder unfastened (Tr. 212). The Secretary alleged that this condition was a violation of 1910.110(e)(4)(iii), which states:

Permanent and removable fuel containers shall be securely mounted to prevent jarring loose, slipping, or rotating, and the fastenings shall be designed and constructed to withstand static loading in any direction equal to twice the weight of the tank and attachments when filled with fuel using a safety factor of not less than four based on the ultimate strength of the material to be used. Field welding, when necessary, shall be made only on saddle plates, lugs or brackets, originally attached to the container by the tank manufacturer.

Trinity does not dispute the fact that one of the straps was unfastened. When It was brought to the attention of Riddles, it was fastened. It was observed to be loose again the next afternoon (Tr. 412-414). Trinity determined the strap was sprung and ordered a new strapping system (Tr. 413-414).

Trinity states that the standard requires fuel containers to be securely mounted to prevent them from jarring loose, slipping, or rotating. Trinity places the emphasis on the words "securely mounted" and argues that the cylinder was still securely mounted although one of the straps was loose. Virgin testified that one strap would hold the cylinder but conceded that the system is designed for two straps (Tr. 110-111). Riddles testified that he pulled on the tank and that the one strap was holding it securely. Deifer issued the citation on the basis that one strap was loose and the system was composed of two straps.

The standard requires fuel containers to be securely mounted to prevent jarring loose, slipping, or rotating. The fastening system in issue was provided with two straps. The two straps provide an additional safety factor that is not present with one strap. While one strap may secure the fuel container, there is no additional safety support in the event it becomes unfastened. The system in use was designed with two straps in order to provide additional restraint on the fuel container from jarring loose, slipping or rotating. There is no way an employee can p;edict or anticipate when a strap will break or become loosened to the point of allowing the container to jar loose, rotate or slip.[[18]] The system, as designed, securely mounts the fuel container. The fact one strap was loosened undermined the integrity of the strapping system. Exhibit C-13 (photograph) shows the cylinder on the rear of the forklift. The straps are at each end of the cylinder. When one of the straps is not performing its function, the cylinder is secured by only one strap at one end of the cylinder. The fact that the one remaining strap is at one end of the cylinder makes it easier for the cylinder to jar loose or slip. The violation has been established.

Item 10

Alleged Violation of 29 C.F.R. 1910.178(g)(7)

The Secretary alleges Trinity was in violation of 1910.178(q)(7) due to the fact one of the two straps securing the fuel container to the forklift was unfastened on successive days (Tr. 214-217). There is no dispute over the facts regarding the forklift strapping system. One of the straps was observed unfastened on one day of the inspection, was fastened by Riddles and on the afternoon of the next day was again observed in a loosened condition.

The cited standard states as follows:

Industrial trucks shall be examined before being placed in service, and shall not be placed in service if the examination shows any condition adversely affecting the safety of the vehicle. Such examination shall be made at least daily. Where industrial trucks are used on a round-the-clock basis, the they shall be examined after each shift. Defects when found shall be immediately reported and corrected.

The standard requires that industrial trucks be examined before being placed in service. The Secretary assumes no examination was made of the truck on the day after the strap was observed in a loosened condition simply because it was observed in a loosened condition on the afternoon of the second day. There is no evidence to show that some Trinity employee did not examine the truck on the second day. The Secretary makes an assumption that is unsupportable by the evidence of record. Virgin's testimony that each forklift is inspected for defects prior to use at the beginning of each shift is uncontradicted (Tr. 68).

The Secretary's assumption regarding the alleged violation is flawed by the fact there is no evidence as to when the strap became loose on the second occasion. The condition was not observed until the afternoon. There is no evidence to show the condition existed at the beginning of the shift when the forklift was placed in service. Riddles tightened the strap on the first occasion It was observed in a loosened condition. How long it took to loosen or what condition it was in at the beginning of the shift when it was placed in service is unknown. In any event, there is no evidence to show that it was not secured at the beginning of the shift. The alleged violation is vacated.

Item 11

Alleged Violation of 29 C.F.R. 1910.217(b)(4)(ii)

Deifer testified that the foot pedals of the #3 Long and Alstatler press, the Kling Brothers Press (#15) and the PA4 Press were caked with dirt and grease and in some cases the rubber surface was ripped, exposing bare metal (Tr. 218-219). The Secretary alleges that these conditions were in violation of 1910.217(b)(4)(ii), which states:

A pad with a nonslip contact area shall be firmly attached to the pedal.

Trinity argues that the conditions, as cited, did not exist and that it was in compliance with the standard. It further contends that the long delay in issuing the citations worked to its disadvantage since it was unaware of any allegation concerning the foot pedals and had no reason to inspect them in support of its case.

The standard addresses itself toward insuring that a pad with a nonslip area is attached to the pedal. It does address itself to situations where the nonslip contact area may be caked with dirt and grease. There is no evidence to indicate that any of the foot pedals did not' have rubber pads. Deifer, admitting the presence of a rubber pad on one press, testified that the pad was ripped (Tr. 218-219). He did not specify which pedals did not have nonslip contact areas attached. Two photographs (Exs. C-15, C-17) were entered into evidence regarding this issue. They show the same press and clearly reflect- a foot pedal with a rubber pad on it. It is worn around the edges, but there is no evidence to indicate it is worn to the point that it failed to act as a nonslip contact surface. The fact that a pad may be worn around the edges does not mean that it cannot perform its function. Virgin stated that he was not aware of any problem with the foot pads on the press pedals. According to him, all the pedals had rubber pads.

The evidence as a whole indicates the pedal of the three presses had nonslip contact areas. There is no credible evidence to contradict Virgin's assertion that all the pedals had rubber pads. while the pads may have been worn, there is no indication that they were so badly worn that they could be declared inoperative. The standard is not violated by mud or grease accumulating on the pedals. The alleged violation is vacated.

Item 12

Alleged Violation of 29 C.F.R. 1910.305(b)(2)

The faceplate on a receptacle in the tensile test room was loose, allowing a small opening around the edges (Exs. C-25; R-16; Tr. 220). The receptacle contained energized wires (Tr. 220). The Secretary submits that this condition violated 1910.305(b)(2), which provides:

Covers and canopies. All pull boxes, junction boxes, and fittings shall be provided with covers approved for the purpose. If metal covers are used they shall be grounded. In completed installations each outlet box shall have a cover, faceplate, or fixture canopy. Covers of outlet boxes having holes through which flexible cord pendants pass shall be provided with bushings designed for the purpose or shall have smooth, well-rounded surfaces on which the cords may bear.

The problem, if any, was that the receptacle cover was loose. Although the Secretary argues that the opening exposed employees to energized wires, the opening was too small to present any realistic hazard. It was too small for any person to get his fingers into the box and there were no energized wires protruding outside the box (Exs. C-25, R-16; Tr. 450-451). Since the receptacle had a faceplate, the burden was on the Secretary to establish that the faceplate was not performing its function and that a hazard was created by the condition. The evidence shows no exposure to energized parts. The Secretary has failed to meet her burden on the issue. The alleged violation is vacated.

Item 13

Alleged Violation of 29 C.F.R. 1910.305(g)(1)(iii)

Deifer testified that he observed a flexible cord from an overhead fluorescent lamp and another cord plugged into an electrical receptacle. The cords were wrapped around a water pipe which was connected to the building surface (Ex. C-16; Tr. 222). Virgin conceded that the conditions observed by Deifer were true (Tr. 71). The Secretary contends that this condition violated 1910.305(g)(1)(iii), which states:

unless specifically permitted in paragraph (g)(1)(i) of this section, flexible cords and cables may not be used:

(D) Where attached to building surfaces;

Deifer testified that the hazard results from broken insulation or exposed bare conductors or any condition that may result in energized wires touching the metal pipe. The result could energize the entire metal building (Tr. 222-223).

Trinity argues that the use of the flexible cords in this matter is not prohibited since the cited provision of 1910.305 states that flexible cords and cables may not be used where attached to a building surface unless specifically permitted in paragraph (g)(1)(i) of section 1910.305. This paragraph states:
Flexible cords and cables shall be approved and suitable for conditions of use and location. Flexible cords and cables shall be used only for:

(B) Wiring of fixtures;

Trinity construes paragraph (g)(1)(i) in a manner that makes permissible to attach flexible cords to building surfaces if the cords are used to wire fixtures. Since the cords were used to wire fluorescent light fixtures, Trinity argues that it complied with the standard.

While it is true that paragraph (g)(1)(i) permits flexible cords and cables for use in wiring of fixtures, Trinity misconstrues the interrelationship between (g)(1)(i) and (g)(1)(iii). Paragraph (g)(1)(i) says only that flexible cords can be used to wire fixtures. It does not expressly permit those cords to attach to building surfaces. Paragraph (g)(1)(iii) says attaching to building surfaces is prohibited unless specifically permitted by paragraph (g)(1)(i). Since paragraph (g)(1)(i) does not specifically permit flexible cords to attach to building surfaces, the clear implication is that it is not allowable. There are two separate and independent conditions, i.e., use of flexible cords to wire fixtures and that attachment of those cords to the building surface. Trinity's argument assumes the conditions are interdependent on one another and that you can't wire a fixture with a flexible cord without attaching it to a building surface. There was no functional necessity for the flexible cords to be wrapped around the water pipe. The standard seeks to obviate an electrical hazard rather than enhance the opportunity for such a hazard. Trinity's interpretation of the standard places the stamp of approval on the very hazard the standard seeks to avoid. The alleged violation is affirmed.

Item 15

Alleged Violation of 29 C.F.R. 1910.305(a)(2)(iii)

Deifer testified that the flexible cord which ran to a switch box in the tensile test room was not connected to a strain relief device (Exs. C-28, C-29; Tr. 228). The absence of a strain relief device resulted in the insulation on the wire being peeled back (Ex. C-29; Tr. 28). The same condition existed in the paint area. Flexible cable was disconnected from the strain relief device (Ex. C-20; Tr. 229230). Virgin testified that he was unaware of the conditions.

The Secretary alleges that the conditions observed by Deifer were in violation of 1910.305(g)(2)(iii), which states:

Flexible cords shall be connected to devices and fittings so that strain relief is provided which will prevent pull from being directly transmitted to joints or terminal screws.

Trinity does not deny that the conditions existed. The conditions are clearly reflected in exhibits C-20, C-28 and C-29. The violation has been established.

Trinity argues that the item should be dismissed as an isolated occurrence on the basis that Virgin was unaware of the condition. The fact that the plant manager was unaware of the condition is an insufficient basis to dismiss the allegation. Trinity must show that it had a work rule governing the condition which had been uniformly and effectively communicated and enforced to avail it of the isolated occurrence defense. Merritt Electric Co., 81 OSAHRC 75/D4, 9 BNA OSHC 2088, 1981 CCH OSHD 25,556 (No. 77-3772, 1981). It has failed to meets its burden on the issue. The conditions were observable and could have or should have been detected by anyone making a safety check within the plant.

Trinity next argues that the violation should be classified as de minimis. The de minimis classification is pertinent to Commission proceedings since the Commission has authority to reclassify violations. By reclassifying a violation as de minimis, the Commission is able to remove the abatement requirement and any proposed penalty where noncompliance with a standard creates no hazard to employees even though the Commission lacks the power to question the wisdom of the standard. Van Raalte Co., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1975-76 CCH OSHD 20,633 (No. 5007, 1976). Noncompliance with a standard will be classified as de minimis when the hazard is trifling or bears a negligible relationship to employee safety or health. Alton Box Board Co., 81 OSAHRC 54/D1, 9 BNA OSHC 1846, 1981 CCH OSHD 25,396 (No. 78-187, 1981): Continental oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD 23,626 (No. 13750, 1979).

By classifying the violation as de minimis, the Commission would obviate the need for abatement. This would undercut the standard which was promulgated to correct this very type of condition existing in this case. The condition needs correction. It bears more than a negligible relationship to employee safety. The condition is properly classified.

PENALTY DETERMINATION

The parties stipulated in Docket Number 88-1547 that the penalty assessed for all items affirmed would be 80% of the penalty proposed in the citation with the exception of item nine of citation two which was fixed at $150.00 (Tr. 147-149). The following penalties are assessed for the violations in accordance with the stipulation of the parties:

Citation Number 1

Standard Item No. Penalty
1910.107(b)(5)(i) 2a $80
1910.107(b)(6) 2b $80
1910.07(i)(8) 2c $125
1910.132(a) 4b,c,d S450
1910.151(c) 6 $320
1910.217(b)(3)(i) 8a $300
1910.217(b)(3)(i) 8b $240
1910.217(b)(8)(iii) 9 $480
1910.217(c)(1)(i) 10a $240
1910.217(c)(2)(i)(a'. 10b $240


Citation Number 2

Standard Item No. Penalty
1904.2(a) I S Fko
1904.4 2 $ 80
1910-110(e)(4)(iii) 8 $ 0
1910-157(g)(2) 9 $150
1910.305(a-)(1)(iii) 13 $ 0

1910-305(g)(21(4i;)
L ~
f


5


0


FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact and conclusions of law contained in this opinion are incorporated herein in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

In view of the foregoing and good cause appearing in support of the determinations, it is

ORDERED: That the allegations and proposed penalties are vacated, modified and affirmed as detailed hereinafter in summary form in accordance with the agreement of the parties and the determinations made in this decision:

DOCKET NUMBER 88-1545
Citation No. 1 (Willful)

Item No. Disposition Assessed Penalty
I Affirmed as nonserious None
2 Affirmed as norserious None


Citation No. 2 (Other)

Item No. Disposit-irin Assessed Penalty
I Affirmed None
2 Affirmed None
3 Affirmed lione
4 Affirmed None
5 Vacated None


DOCKET NUMBER 88-1547 Citation No. 1 (Serious)

Item No. Disposition Assessed Penalty
1 Vacated None
2a Affirmed s 80
Zb Affirmed $ 80
2c Affirmed $125
2d Vacated None
3 Vacated None
4a Vacated None
4b, c, d Affirmed $450
5 Vacated None
6 Affirmed $320
7 Vacated None
Sa Affirmed $300
8b Affirmed $240
9 Affirmed $480
10a Affirmed $240
10b Affirmed $240
11 Vacated None
12 Vacated None
13 Vacated None

Citation No. 2 ("Other")

Item No. Disposition Assessed Penalty
1 Affirmed as de minimis $ 80
2 Affirmed as de minimis $ 80
3 Vacated None
4 Vacated None
5 Vacated None
6 Vacated None
7 Vacated None
8 Affirmed None
9 Affirmed $150
10 Vacated None
11 Vacated None
12 Vacated None
13 Affirmed None
14a & b Vacated None
15 Affirmed None


Dated this 26th day of June, 1990
JAMES D. BURROUGHS Judge


FOOTNOTES:


[[1]] The judge sent orders dated October 14, 1988, December 7, 1988 and January 23, 1989, and he issued an order from the bench on January 24, 1989.

[[2]] The Secretary justified its refusal to comply primarily on the grounds that:

(1) The Constitutional proprietary of the search is governed by the Fourth, not Fifth Amendment. Where the Fourth Amendment provides a right that governs the protected interest, due process rights under the due process clause do not afford additional protections.

(2) Under Frank v. Delaware. 438 US 154 (1978), to mandate an evidentiary hearing when challenging a warrant under the Fourth Amendment, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or reckless disregard for the truth, and those allegations must he accompanied by an offer of proof Trinity failed to meet the Franks test and its attempt to obtain an evidentiary hearing constituted a fishing expedition

[[3]] 29 C.F.R. 2200.52(c) states in pertinent part.
If a Judge enters an order compelling discovery and there is a failure to comply with that order, the Judge may make,such order with regard to the failure as are just.... The orders may include any sanction stated in Fed. R. Civ.P. 37, including the following:
(4) An order dismissing the action or proceeding or any part thereof, or rendering a judgement by default against the disobedient party.

[[4]] The Commission recognizes, that under section 11(a) of the Act, 29 U.S.C. 660(a), the appellate courts may not entertain any issue not raised before the Commission. Therefore, while the Commission will not entertain a collateral attack on a challenge to a warrant pending in the federal courts, proper practice would require the party to raise the issue before the Commission for the record.

[[5]] We note that, had commission proceedings concluded before the federal courts reached a final decision on the validity of the warrant. Trinity could have appealed this decision to the circuit court hearing the challenge of the warrant.

[[6]] We would stress, however, that the Commission has a strong interest in preserving the integrity of its orders as well as in deterring future misconduct. See Pittsburgh Forging, 10 BNA OSHC at 1514, 1982 CCH OSHD at p. 32,569. Therefore, a party who fails to comply with a Commission order, even when based on a sincere belief that its position is legally justified, must be prepared to accept the consequences of noncompliance if its arguments do not ultimately prevail. To put it directly, any party who fails to comply with a Commission order does so at its peril. Cf NL Indus. 11 BNA OSHC 2156, 2167 n.15, 1984 CCH OSHD 26.997 p. 34,734 n. 15 (No. 78,5204, 1984)(Cleary dissenting).

[[7]] When ruling on a discovery request, one of the factors the judge should consider is the need for the information sought. NL Indus. 11 BNA OSHC 2156, 2159, 1984 CCH OSHD 26,997, p. 34,728 (No.78-5204, 1984). Having decided that the Commission should not hear the challenge to the warrant, the judge properly concluded that the information sought by Trinity was not necessary.

[[8]] The standard provides:
1910-95 Occupational noise exposure.

(g) Audiometric testing program

(5), Baseline audiogram (i) Within 6 months of an employee's first exposure at or above the action level, the employer shall establish a valid baseline audiogram against which subsequent audiograms can be compared.

Annual audiogram. At least annually after obtaining the baseline audiogram. the employer shall obtain a new audiogram for each employee exposed at or above an 8-hour lime weighted average of 85 decibels.

[[9]] The Secretary does not dispute that the hearing protection Trinity's employees were required to wear was appropriate for the noise to which they were exposed.

[[10]] At oral argument, the Secretary conceded that had Trinity instituted an audiometric testing program, its hearing conversation program would have then satisfied OSHA requirements.

[[11]]The standard provides:
1910.95 Occupational noise exposure
...
(g) Audiometric testing program
(8) Follow up procedures procedure,
(ii) Unless, a physician determines, that the standard threshold shift is not work related or aggravated by occupational noise exposure the employer shall ensure that the following steps ate taken when a standard threshold shift occurs.

The employee shall be referred for a clinical audiological evaluation or an otological examination as appropriate. If additional testing is necessary or if the employer suspects that a pathology of the ear is caused or aggravated by the wearing of hearing protectors.

[[12]] We note that Trinity's failure to implement audiometric testing did not grow out of a belief that the audiometric testing standard were invalid. Had this been the case, its failure to comply during litigation of the matter might well have risen to the level of willfulness. See RSR Corp. v. Brock. 764 F-2d 355, 363 (5th Cir. 1985)

[[13]] The standard provides:
1910.95 Occupational noise exposure.

(d) Monitoring. (1) When information indicates that any employee's exposure may equal or exceed an 8-hour time-weighted average of 85 decibels, the employer shall develop and implement a monitoring program.
(i) The sampling strategy shall be designed to identify employees for inclusion in the hearing conservation program and to enable the proper selection of hearing protectors.
(ii) Where circumstances such as high worker mobility, significant variations in sound level, or a significant component of impulse noise make area monitoring generally inappropriate, the employee shall use representative personal sampling to comply with the monitoring requirements of this paragraph unless the employer can show that area sampling products equivalent results

[[14]] The standard provides:
1910.95 Occupational noise exposure.

(m) Recordkeeping
(3) Record Retention. The employer shall retain records required in this paragraph (m) for at least the following periods.

(1) Noise exposure measurement records shall be retained for two years.

[[15]] Reading his decision literally, it appears that the judge held that a violation is established when the Secretary shows that a standard is applicable and that the employer failed to present evidence of compliance. Such a conclusion would improperly place the burden of proof on the employer. The Secretary has the burden of proving each element of her case by a preponderance of the evidence. All Purpose Crane, Inc., 13 BNA OSHC, 1236, 1238, 1987, CCH OSHD 27,877 p.36.549 (No. 82-284, 1987). Only after the Secretary establishes a prima facie violation does the burden shift to the employer to rebut the Secretary's showing.

[[16]] We note that the judge dismissed Riddles' testimony as self-serving. This conclusion is, in essence, a credibility determination.  The Commission normally will not disturb a judge's credibility finding because it is the judge who has lived with the case, heard the witnesses, and observed their demeanor. Kent Nowlin Constr. Co. 8 BNA OSHC 1286, 1980 CCH OSHD 24,459 (Nos. 76-191, 1980)(consolidated); Otis Elevator Co., 8 BNA OSHC 1019, 1980 CCH OSHD 24,236 (No. 14899, 1980); C. Kaufman, Inc., 6 BNA OSHC 1295, 1977-78 CCH OSHC 22,481 (No. 14249, 1978). However, because we find that Riddles' testimony did not rebut the Secretary's showing of noncompliance with the standard, we find it unnecessary to determine whether to defer to the judge's credibility determination.


[[17]] We stress that Trinity is not being penalized for failing to have documents it was not required to retain. It simply did not have documentation that could have rebutted the Secretary's prima facie showing of a violation

[[18]] the standard provides
1910-95 Occupational noise exposure. (d) Monitoring.
(3) Monitoring shall be repeated whenever a change in production, process, equipment, or controls increases noise exposures to the extent that:
(i) Additional employees may be exposed at or above the action level; or
(ii)The attenuation provided by hearing protectors being used by employees may be rendered inadequate to meet the requirements of paragraph (j) of this section.

[[19]] 1910.96 Ionizing radiation.
(d) Precautionary procedures and personal monitoring. (1) Every employer shall make such surveys as may be necessary for him to comply with the provisions in this section. Survey means an evaluation of the radiation hazards incident to the production, use, release, disposal, or presence of radioactive materials or other sources of radiation under a specific set of conditions. When appropriate, such evaluation includes a physical survey of the location of materials and equipment,and measurements of levels of radiation or concentrations of radioactive material present.

[[20]] We do not agree with the Secretary that the judge's failure to accept McRae's testimony was a credibility determination. Rather, the judge, having placed the burden on Trinity to establish compliance, found that McRae's testimony failed to establish that the survey he conducted conformed to the requirements of the standard.

[[21]] Among the many requirements of the ionizing radiation standard are section 1910.96(b), which sets forth various exposure limits for different body parts and section 1910.96(l) which, based on exposure levels, sets forth various notification requirements.

[[22]] The standard also imposes certain other requirements that must be met "when appropriate." Neither the Secretary nor the standard set forth when it is "appropriate" to meet these additional requirements.

[[23]] The standard states in pertinent part.
1910.110 Storage and handling of liquefied petroleum gases.
(c) liquefied petroleum gas as a motor fuel
(4) Installation of fuel containers
(iii) Permanent and removable fuel containers shall he securely mounted to prevent jarring loose, slipping, or rotating. and the fastenings shall be designed and constructed to withstand static loading in any direction equal to twice the weight of the tank and attachments when filled with fuel using a safety factor of not less than four based on the ultimate strength of the material to be used

[[24]] The standard states:
1910.217 Mechanical power presses.
(c) Safeguarding the point of operation. --(I) general requirements. (i) It shall be the responsibility of the employer to provide and insure the usage of "point operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press See Table O-10.

[[25]] Trinity makes several additional arguments. It contends, for example, that compliance was infeasible and that, if there was a violation it was, at most, de minimis. In view of our disposition, however, we need not address these additional issues. Also, in vacating the item, we are not unmindful that, as the Secretary points out, the obligations of the standard are not predicated on the existence of a hazard. Rather, to make out a prima facie showing of a violation of section 1910.217(c)(1)(i), all the Secretary need show is that the point of operation on a press is unguarded F.H. Lawson Co., 8 BNA OSHC 1063, 1066, 1980 CCH OSHD 24,277, p. 29,574 (No. 12883, 1980). However, the item is not being vacated on the grounds that the press does not present a hazard. We are not finding, for example, that the unguarded point of operation did not present a hazard due to the method of operation. Rather, we find that, on this particular machine, in this particular operation, the material being placed into the press is so configured as to prevent an operator having any part of his body enter the point of operation, thereby constituting a de facto "point of operation device."

[[26]] The standards state:
1910.217 Mechanical power presses.
(b) Mechanical power press guarding and construction, general--
(3) Machines using full revolution positive clutches. (i) Machines using full revolution clutches shall incorporate a single-stroke mechanism.
(8) Electrical
(iii) All mechanical power press controls shall incorporate a type of drive motor starter that will disconnect the drive motor from the power source in event of control voltage or source failure. and require operation of the motor start button to restart the motor when voltage condition, are restored to normal.

[[27]] Even assuming that, during proper operation the operator would have no occasion to have any part of his body near the point of operation, the fact remains that there are reasons why an employee may deliberately place a hand or finger into the point of operation. For example, the operator may need to clear the point of operation of some extraneous material or conduct some other maintenance work.

[[28]] The Secretary asserts that when a standard assumes that a condition constitutes a hazard, a finding that a violation is de minimis would constitute a challenge to the wisdom of the standard. Because we find that the violations were not de minimis we need not address the argument.

 

[[1]] Section 9(a) provides in part:
If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, or any standard, rule or order promulgated pursuant to section 6 of this Act, he shall with reasonable promptness issue a citation to the employer.

[[2]] All references to background facts are from transcript in Dkt. 88-1545.

[[3]] The citation was amended at the hearing to, include a violation of 29 C.F.R. 1910.95(g)(5).

[[4]] Section 1910.95(d)(1) of 29 C.F.R. provides:
(d) Monitoring. (1) When information indicates that any employee's exposure may equal or exceed an 8-hour time-weighted average of 85 decibels, the employer shall develop and implement a monitoring program. (i) The sampling strategy shall be designed to identify employees for inclusion in the hearing conservation program and to enable the proper selection of hearing protectors.

[[5]] All references to transcript pages on the health allegations are from Docket Number 88-1545.

[[6]] Riddles testified that the employees worked in an area above 85 dBA's. He did not agree that they were exposed to noise above 85 dBA (Tr. 79, 80). His opinion was based on the fact that the employees were wearing hearing protectors (Tr. 80-81).

[[7]] Section 1910.95(g)(6) of 29 C.F.R. states:
Annual Audiogram. At least annually after obtaining the baseline audiogram, the employer shall obtain a new audiogram for each employee exposed at or above an 8-hour time weighted average of 85 decibels.

[[8]] Section 1910.95(g)(5)(i) of 29 C.F.R. states:
Baseline audiogram. (i) Within 6 months of an employee's first exposure at or above the action level, the employer shall establish a valid baseline audiogram against which subsequent audiograms can be compared

[[9]] Section 1910.96(d)(l) of 29 C.F.R. provides:
(d) Precautionary procedures and personal monitoring. (l) Every employer shall make such surveys as may be necessary for him to comply with the provisions In this section. "Survey" means an evaluation of the radiation hazards incident to the production, use, release, disposal, or presence of radioactive materials or other sources of radiation under a specific set of conditions. When appropriate, such evaluation includes a physical the location of materials and equipment, and measurements of levels of radiation or concentrations of radioactive material present.

[[10]] Section 1910.252(e)(2)(iii) of 29 C.F.R. provides:
(iii) Protection from arc welding rays. Where the work permits, the welder should be enclosed in an individual booth painted with a finish of low reflectivity such as zinc oxide (an important factor for absorbing ultraviolet radiations) and lamp black, or shall be enclosed with noncombustible screens similarly painted. Booths and screens shall permit circulation of air at floor level. Workers or other persons adjacent to the welding areas shall be protected from the rays by noncombustible or flameproof screens or shields or shall be required to wear appropriate goggles.

[[11]] Section 1910.1200(g)(8) of 29 C.F.R. provides:
The employer shall maintain copies of the required material safety data sheets for each hazardous chemical in the workplace, and shall ensure that they area readily accessible during each work shift to employees when they are in their work area(s).

[[12]] Section 1910.1200(h) (2) (ii) of 29 C.F.R. provides that employee training shall include:
The physical and health hazards of the chemicals in the work area;

[[13]] "WD-S" refers to those items withdrawn by the Secretary; "WD-R" refers to those items withdrawn by the respondent.

[[14]] The standard, 1910.107(b)(5)(i), requires the following for electrostatic spraying operations:
Electrostatic spraying operations may be conducted with an air velocity over the open face of the booth of not less than 60 linear feet per minute, or more, depending on the volume of the finishing material being applied and its flammability and explosion characteristics. . . .

[[15]] Section 1910.107(a)(2) of 29 C.F.R. provides:
Spraying area. Any area in which dangerous quantities of flammable vapors or mists, or combustible residues, dusts or deposits are present due to the operation of spraying processes.

[[16]] In order to establish the defense, the employer must show it established work rules designed to prevent the violation, adequately communicated these rules to its employees, and effectively enforced the rules. Wander Iron Works, Inc., 80 OSAHRC 40/A2, 8 BNA OSHC 1354, 1980 CCH OSHD 24,457 (No. 76-3105, 1980).

[[17]] Deifer testified that he asked Virgin many questions concerning the forms and that Virgin tried to provide the answers (Tr. 208). Virgin couldn't recall if he found some of the information missing (Tr. 53).

[[18]] Riddles testified that the tank was secure with one strap. That examination was made with the forklift in a stationary position and does not insure that it is securely mounted against constant vibration or jarring which is likely to occur while the forklift is in motion. The system must secure the cylinder while the forklift is in motion.