PAN AMERICAN WORLD AIRWAYS

OSHRC Docket No. 5056

Occupational Safety and Health Review Commission

May 5, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor

Martin H. Zuckerman, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Henry K. Osterman, dated June 4, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision, which is attached hereto as Appendix A, is affirmed except insofar as it holds that the respondent violated 29 U.S.C. 654(a)(2) by failing to comply with an occupational safety standard codified at 29 C.F.R. 1910.144(a)(3) and assesses a $45.00 penalty therefor.

The above-cited standard provides that:

"Yellow shall be the basic color for designating caution and for marking physical hazards such as: Striking against, stumbling, falling, tripping, and 'caught in between.' Solid yellow, yellow and black stripes, yellow and black checkers (or yellow with suitable contrasting background) should be used interchangeably, using the combination which will attract the most attention in the particular environment."

The respondent was charged with noncompliance with this standard because of its "failure to provide [any] caution marking [*2] to prevent physical hazards such as stumbling, tripping, and falling" on a "step grating adjacent to the degreasing tank."

The issue to be resolved is whether 29 C.F.R. 1910.144(a)(3) qualifies as an enforceable occupational safety and health standard. We hold that it is not.

The obvious infirmity in the instant standard is that it does not tell an employer what objects must bear caution markings. Although it describes ways in which an employee may be injured and the use of certain markings to prevent such injuries, it does not identify any physical hazards for which the markings are required nor does it set out any particular working conditions which require the use of the markings.

One can scarcely think of an object which might not cause a person to stumble, fall, or trip. Must all of these objects bear the prescribed markings? If so, it would seem that all sidewalk curbs would have to be painted yellow. Of course, that is ridiculous as it would also signify that parking is prohibited in areas where such a prohibition is not intended. Does the regulation require that all stairs be painted yellow? Obviously not. Certainly, the Secretary of Labor did not intend such preposterous [*3] results in prescribing the regulation.

In view of the failure of 1910.144(a)(3) to specify any physical hazards or particular working conditions which require use of the markings enumerated therein, we construe the regulation as constituting no more than a recommendation to employers to use these markings when they conclude that conditions warrant their use. Furthermore, this construction of the regulation is consonant with the source standard from which 1910.144(a)(3) was derived.

As indicated in 29 C.F.R. 1910.147, the source of 1910.144 was American National Standards Institute (ANSI) standard Z53.1-1967 which provides in section 1-1 that:

"This safety color code defines the application of colors to specific purposes in connection with accident prevention and recommends the colors to be used for such purposes as the marking of physical hazards . . . ." (Emphasis added.)

Thus, it is clear that ANSI promulgated the standards included in Z53.1-1967 as recommendations rather than mandatory requirements.

A violation of 29 U.S.C. 654(a)(2) cannot be predicated on a regulation which does not establish mandatory requirements and which is no more than a recommendation. [*4] Cf. Secretary v. Oberhelman-Ritter Foundry, Inc., 3 OSAHRC 1212 (1973).

Accordingly, the citation for a violation of 29 C.F.R. 1910.144(a)(3) and the $45.00 penalty assessed therefor are vacated. The remaining findings of the Judge are affirmed.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, Concurring:

I concur that the citation must be vacated. Neither the cited standard nor its ANSI source standard impose a mandatory requirement that tripping and similar hazards be marked. In this regard I find it significant that the color code was adopted by ANSI as a recommendation rather than as a mandatory standard. The Secretary's authority to adopt standards under 29 U.S.C. 655(a) was limited to the adoption of mandatory as contrasted with voluntary or recommended standards. I note that the bill reported by the Senate Committee on Labor and Public Welfare recommended that the Secretary be authorized to adopt without resort to the informal rulemaking procedures now prescribed in 29 U.S.C. 655(b) voluntary standards promulgated by proprietary standards-making organizations. n1 This provision was passed in the Senate n2 and deleted in conference. As the conference report states, n3 "the [*5] Senate receded", and the provision does not appear in the Act.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 S. 2193, as amended, 91st Cong., 2d Sess. 6(a) (1970); S. Rep. No. 1282, 91st Cong., 2d Sess. 5-7 (1970).

n2 Staff of Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 528, 535-36 (Comm. Print 1971).

n3 Con. Rep. No. 1765, 91st Cong., 2d Sess. 4, 33-34 (1970).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Moreover, the Secretary must have recognized this limitation on his authority under section 655(a), for in promulgating 29 C.F.R. Part 1910 he said:

The new Part 1910 contains occupational safety and health standards which are either national consensus standards or established Federal standards.

The national consensus standards are occupational safety and health standards adopted and promulgated either by [ANSI] or by the National Fire Protection Association (NFPA) . . . . The national consensus standards contain only mandatory provisions of the standards promulgated by [*6] those two organizations. The standards of ANSI and NFPA may also contain advisory provisions and recommendations the adoption of which by employers is encouraged, but they are not adopted in Part 1910. n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 36 Fed.Reg. 10466 (1971).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, I concur with that portion of the lead opinion which concludes that the citation must be vacated for being predicated on a nonmandatory standard. Since this is all that need be said to dispose of this case it is unnecessary to reach the other matters discussed in the lead opinion, and I do not join therein. I also do not join in attachment of the judge's report as an appendix.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I dissent from the decision of my colleagues. I would affirm the decision of the Administrative Law Judge that the employer violated section 1910.144(a)(3).

The employer raised no affirmative defense n5 challenging the lawfulness of the Secretary's adoption of section 1910.144(a)(3). The issue was raised for the first time in Commissioner Moran's order [*7] for review which was issued on his own motion. The majority has entered the lists. Its examination of the issue is inquisitorial, and is inconsistent with the concept of an adversary proceeding.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 See Atlantic & Gulf Stevedores v. O.S.H.R.C., No. 71-1584 (3d Cir., March 26, 1976). Compare United States Steel Corp., BNA 2 OSHC 1343, CCH OSHD para. 19,047 (concurring opinion).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Moreover, in characterizing the ANSI standard underlying section 1910.144 as being only a recommendation rather than a mandatory requirement, the majority evinces a misunderstanding of every ANSI standard that is a "national consensus standard" as defined in section 3(9) of the Act. At most, a consensus standard of the American National Standards Institute can serve only as a "guide" to manufacturers, consumers, and the general public. ANSI is a private organization. It can do no more than this. The Forward to ANSI Z53.1 makes this clear. Yet, under section 6(a) of the Act, Congress directed that the Secretary of Labor [*8] adopt national consensus standards as rules. See section 3(8) of the Act.

Section 1910.144(a)(3) recites in haec verba the text of section 2.3 of the ANSI standard, which is expressed in mandatory terms. It is therefore concluded that in any event the Secretary has lawfully adopted the standard under section 6(a) of the Act.

It is also well-settled that a general standard is to be read under a test of reasonableness in determining whether it gives adequate notice of what is expected under their terms. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974); McLean Trucking Co. v. O.S.H.R.C., 503 F.2d 8 (4th Cir. 1974). The ad absurdum arguments in Commissioner Moran's opinion are inapposite.

Turning to the merits, Pan American was cited for failure to mark a 8-to-10 inch riser in accordance with section 1910.144(a)(3). The riser served as the step to a degreasing tank in the corner of the plasma shop. The step was painted black, and was about 12 feet in length. The adequacy of the lighting in the immediate area was questionable. One of the Pan American employees testified that he tripped on the step on more than one occasion. I would [*9] hold that the Secretary has proved his case.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Theodore Gotsch, of Counsel for Complainant

Martin H. Zuckerman and Harold Parsons - Lewis, of Counsel for Respondent

OSTERMAN, Judge

This is a proceeding initiated by Respondent, a corporation subject to the jurisdiction of this Commission, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 659(c) [hereafter the Act] to contest a Citation charging nine non-serious violations and a Notice of Proposed Penalty both issued to Respondent on September 26, 1973 as a consequence of an inspection made on September 6, 1973.

The violations alleged, the abatement dates and the proposed penalties are as follows:

Violation

Abatement Date

Proposed Penalty

1). 29 CFR 1910.94(a)(3)(i)

December 3, 1973

 $45.00

2). 29 CFR 1910.23(a)(9)

December 3, 1973

 $45.00

3). National Electric Code,

December 3, 1973

 $45.00

    NFPA 70-1971 as adopted by

    29 CFR 1910.

4). 29 CFR 1910.144(a)(3)

December 3, 1973

 $45.00

5). 29 CFR 1910.133(a)(1)

December 3, 1973

 $45.00

6). 29 CFR 1910.133(a)(2)(iv)(vii)

December 3, 1973

 $45.00

7). 29 CFR 1910.22(b)(1)

December 3, 1973

 $45.00

8). 29 CFR 1910.106(e)(2)(ii)

December 3, 1973

 $45.00

9). 29 CFR 1910.134(a)(1)

December 3, 1973

$135.00

$495.00

[*10]

On October 17, 1973 Respondent filed a Notice of Contest challenging both the Citation and the proposed penalties. Thereafter the parties filed a Complaint and Answer. Hearing was held in New York City on March 28, 1974. Employees of Respondent did not appear and were not represented at the hearing. Both parties submitted briefs after hearing.

At the hearing it was stipulated by the parties that the Secretary withdraws Item 1 of the Citation together with the proposed penalty and that the Respondent withdraws its contest to Items 2, 7, and 8 of the Citation and the penalties proposed for these items (Tr. 3). Thus Items 2, 7 and 8 and the proposed penalties for these violations have become the final order of this Commission and Item 1 of the Citation will be vacated. There remained the following alleged violations on which testimony was taken:

Item 3 - Violation of 29 CFR 1910, Art. 110-21 of NFPA 70-1971 [Failure to provide adequate labeling for control switches at Plasma Booth No. 3].

Item 4 - Violation of 29 CFR 1910.144(a)(3) [Failure to provide caution marking to prevent physical hazard such as stumbling, tripping and falling on step adjacent to degreasing tank]. [*11]

Item 5 - Violation of 29 CFR 1910.133(a)(1) [Failure to provide a place of employment so that no unprotected person shall knowingly be subjected to hazardous environment e.g. clear glass of Plasma Booth #3].

Item 6 - Violation of 29 CFR 1910.133(a)(2)(iv) and (vii) [Failure to provide eye protectors that are (iv) durable and (vii) kept clean and in good repair: e.g., cracked colored window in Plasma Booth #1].

Item 9 - Violation of 29 CFR 1910.134(a)(1) [Failure to provide engineering controls in the control of those occupational diseases caused by breathing air contaminated with harmful dusts and fumes in Plasma Spray Shop #1 and 3].

With respect to Item 3 the regulation cited by the Secretary provides as follows:

110-21. Marking. The manufacturer's name, trademark, or other descriptive marking by which the organization responsible for the product may be identified, shall be placed on all electrical equipment. Other markings shall be provided giving voltage, current, wattage, or other ratings as are prescribed elsewhere in this Code. The marking shall be of sufficient durability to withstand the environment involved.

The testimony of the Secretary's compliance [*12] officer, related solely to Respondent's alleged failure to label certain switches so as to indicate which piece of equipment a particular switch controlled. (Tr. 13-14). Obviously with regard to this item the Secretary had cited the wrong regulation. The Secretary's motion to amend the Citation was denied after testimony showed that Respondent's counsel had not previously been advised of the proposed amendment and claimed surprise. Item No. 3 was stricken from the complaint (Tr. 14-19).

The testimony of the compliance officer with respect to Item 4 was in substance uncontradicted. It showed that a step approximately 8 to 10 inches high leading to a degreasing tank in a corner of the worksite constituted a tripping or stumbling hazard because of the poor lighting in the immediate area and that personnel carrying large pieces of equipment could easily stumble on the step and fall into the degreasing tank. The step was not marked by yellow lines as required by the regulation (Tr. 19-21, 55-57). Respondent's counsel urges that the regulation cited does not require an employer to mark for hazards such as stumbling, tripping or falling but only describes the color to be used in [*13] the event that he does so (Tr. 26-29). I disagree. The clear inference to be drawn from the regulation is that a condition which creates a potential physical hazard should be marked in the manner described by the regulation. An unmarked step located as described by the compliance officer presents a potential physical hazard which under the regulation must be marked in a prominent manner.

The Secretary's evidence with respect to Items 5 and 6 discloses that the doors which opened into Plasma Booths No. 3 and 1 contained glass windows which failed to meet the standards of 29 CFR 1910.133(a)(1) and 29 CFR 1910.133(a)(2)(iv)(vii) respectively. The Secretary's compliance officer testified that the work normally done in both of these booths produces intense ultra-violet rays which could cause severe damage to the eyes if viewed without protective lenses or other protective shields (Tr. 21). He stated that the window in the door leading to Booth No. 3 (Item No. 5) was made of clear glass which permitted the unimpeded passage of ultra-violet rays and that persons passing by this door could suffer damage to their eyesight if they looked through the glass. Workers inside the booth were, [*14] however, protected by suitable goggles (Tr. 22-58). n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The testimony is garbled, but it appears that Booths 1 and 3 were not in operation at the time of inspection. (Tr. 92).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As to Plasma Booth No. 1 (the subject of Item 6) it was stated by the Secretary's witnesses that, although the window in the door was made of colored protective glass, the glass was cracked and thus permitted some dangerous light rays to come through (Tr. 23-25). There was no testimony that employees working inside this booth were unprotected by goggles or other shields. The Secretary's witnesses did not, however, make tests in order to determine the intensity of the ultra-violet or infra-red rays which escaped through the windows in question (Tr. 49, 97).

The regulations relied upon by the Secretary reads as follows:

1910.133 Eye and face protection.

(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers [*15] shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

(2) Protectors shall meet the following minimum requirements:

(i) They shall provide adequate protection against the particular hazards for which they are designed.

(ii) They shall be reasonably comfortable when worn under the designated conditions.

(iii) They shall fit snugly and shall not unduly interfere with the movements of the wearer.

(iv) They shall be durable.

(v) They shall be capable of being disinfected.

(vi) They shall be easily cleanable.

(vii) Protectors should be kept clean and in good repair.

(3) Persons whose vision requires the use of corrective lenses in spectacles, and who are required by this standard to wear eye protection, shall wear goggles or spectacles of one of the following types:

(i) Spectacles whose protective lenses provide optical correction. [*16]

(ii) Goggles that can be worn over corrective spectacles without disturbing the adjustment of the spectacles.

(iii) Goggles that incorporate corrective lenses mounted behind the protective lenses.

(4) Every protector shall be distinctly marked to facilitate identification only of the manufacturer.

(5) When limitations or precautions are indicated by the manufacturer, they shall be transmitted to the user and care taken to see that such limitations and precautions are strictly observed.

(6) Design, construction, testing, and use of device for eye and face protection shall be in accordance with American National Standard for Occupational and Educational Eye and Face Protection, Z87.1-1968.

It seems clear that this regulation when considered in its entirety refers only to protective equipment which is intended to be worn by those employees who are performing a type of work which involves a potential hazard to the eyes and face. The regulation refers to devices which are "reasonably comfortable when worn", which shall "fit snugly", and are capable of "being disinfected" and "easily cleanable". As pointed out by Respondent's counsel it is difficult to see how a door weighing approximately [*17] 400 pounds (Tr. 115) can be "reasonably comfortable when worn", "cleaned" or "disinfected" (Tr. 39-40). I conclude that the Secretary has alleged violations of a regulation which has no application to the conditions which existed at Respondent's worksite, and that Items 5 and 6 should both be dismissed.

The final issue tried related to Item 9 - the Secretary's allegation that Respondent had failed to apply engineering controls to limit harmful dusts and fumes in Plasma Spray Shops 1 and 3. On this issue the compliance officer testified that he did not conduct this particular inspection or take readings inside these shops but that one Mr. Hyman, another Labor Department employee, conducted this phase of the inspection. The compliance officer stated merely that he glanced into the spray shops and observed that the air inside was foggy. He made no atmospheric tests (Tr. 25-26).

Mr. Hyman when called upon to testify stated that he had taken air-flow measurements in Spray Booths 1 and 3 with a velometer and found that in the area where a worker would normally be located the air flow was zero, and that in other parts of the booths he found conditions of turbulence (Tr. 86-89). This [*18] witness also testified that Booths 1 and 3 (the subject of Item 9) were not in operation at the time he made his inspection and that he did not test the atmospheric contents of these booths in order to determine whether the atmosphere was contaminated (Tr. 92; 99-100, 104).

At the conclusion of the Secretary's testimony on Item 9, Respondent's counsel moved to dismiss Item #9 upon the ground that the Secretary had failed to establish that the atmosphere in Spray Booths 1 and 3 was contaminated (Tr. 102). Respondent's motion was granted upon the theory that in order to establish a violation of 29 CFR 1910.134(a)(1) the Secretary must show (a) that the atmosphere in an area is in fact contaminated and (b) that employees were required to work in the contaminated atmosphere. In the instant case the Secretary failed to establish either of these facts (Tr. 104).

FINDINGS OF FACT

Respondent is a corporation organized and existing under the laws of the State of New York and maintains an office and place of business at Kennedy International Airport in New York. It is engaged in the business of air transportation.

2. Respondent transports passengers and freight across state lines [*19] and uses materials and supplies which have moved across state lines.

3. On September 6, 1973 Complainant's agents inspected Respondent's work place at the Kennedy International Airport and as a consequence of this inspection issued a Citation and Notice of Proposed Penalty on September 26, 1973. The Citation charged Respondent with nine (9) separate non-serious violations for which a total penalty of $495.00 was proposed.

4. On October 17, 1973 Respondent timely filed a Notice of Contest challenging the Citation in its entirety.

5. At a hearing held in New York City on March 28, 1974 the parties stipulated that Complainant withdraws Item 1 of the Citation and the penalty proposed for this item and that Respondent withdraws its Notice of Contest with respect to Items 2, 7, and 8 of the Citation.

6. Evidence taken at the hearing disclosed that a step approximately 8 to 10 inches in height located in a corner of Respondent's worksite, and adjacent to a degreasing tank used by Respondent's employees, constituted a tripping or stumbling hazard and that Respondent had failed to mark this step with appropriate colored lines as a means of alerting employees to this hazard.

7. Other [*20] evidence given at the hearing disclosed that the Complainant, in Items 3, 5, 6, and 9 of the Citation, improperly charged Respondent with violations of four separate regulations which are not applicable to the conditions which existed in Respondent's worksite on September 6, 1973.

CONCLUSIONS OF LAW

1. Respondent corporation is an "employer" engaged in "commerce" as those terms are defined by Section 3 of the Act and is subject to the jurisdiction of this Commission.

2. On September 6, 1973, Respondent was in violation of 29 CFR 1910.144(a)(3). The penalty proposed for this violation is appropriate under the circumstances herein and not inconsistent with the provisions of Section 17(j) of the Act.

3. On September 6, 1973, Respondent was not in violation of the National Electric Code NFPA 70-1971, Article 110-21 as adopted by 29 CFR 1910 or 29 CFR 1910.133(a)(1) or 29 CFR 1910.133(a)(2)(iv) and (vii) or 29 CFR 1910.134(a)(1).

4. The Complainant having withdrawn the allegation that Respondent violated 29 CFR 1910.94(a)(3)(i) this item need not be considered by the undersigned.

5. The Respondent having withdrawn its contest to Items 2, 7, and 8 of the Citation these violations [*21] and the penalties proposed for these violations have become the final order of this Commission.

ORDER

Pursuant to Section 10(c) of the Act and Rule 66 of this Commission's Rules of Procedure it is ORDERED:

1. Items No. 2, 4, 7, and 8 of the Citation and the penalties proposed for these violations are AFFIRMED.

2. Items No. 1, 3, 5, 6, and 9 of the Citation are DISMISSED and the penalties proposed for these violations are VACATED.

HENRY K. OSTERMAN, Judge, OSHRC

Dated: June 4, 1974

Washington D.C.