Docket No. 513

MILPRINT, INC.

OSHRC Docket No. 513

Occupational Safety and Health Review Commission

October 18, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge David G. Oringer dated June 21, 1973, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act). That decision is affirmed except insofar as it holds that (1) respondent violated section 5(a)(2) of the Act because of its failure to comply with an occupational safety and health standard which is published as 29 C.F.R. 1910.24(b) and, (2) assesses a $65 penalty therefor. In both such respects the Commission hereby reverses.

The gravamen of this offense is the absence of fixed stairs leading to a platform at respondent's factory. Respondent admits the absence of such stairs but maintains that the regulation does not require them unless the platform is used regularly which, it claims, it is not. There was conflicting testimony at the hearing on the question of the regularity of use of such platform which is discussed below.

29 CFR 1910.24(b) provides as follows:

Where fixed stairs are required. Fixed stais shall be provided for access from one structure level to another where operations necessitate regular travel between levels and for access to operating platforms at any equipment and which requires attention routinely during operations. Fixed stairs shall also be provided where access to elevations is daily or at each shift for such purposes as gauging, inspection, regular maintenance, etc., where such work may expose employees to acids, caustics, gases, or other harmful substances, or for which purposes the carrying of tools or equipment by hand is normally required. (It is not the intent of this section to preclude the use of fixed ladders for access to elevated tanks, towers, and similar structures, overhead traveling cranes, etc., where the use of fixed ladders is common practice.) Spiral stairways shall not be permitted except for special limited usage and secondary access situations where it is not practical to provide a conventional stairway. Winding stairways may be installed on tanks and similar round structures where the diameter of the structure is not less than five (5) feet.

Evidence adduced at the hearing establishes that one Bechtel, an authorized representative of complainant, conducted an inspection of respondent's premises on December 2, 1971. During the course of that inspection, he saw a platform in the boiler room without fixed stairs and noted a ladder leading to the platform. He saw no one using the ladder. Bechtel asked an official of respondent, one Russell, whether the platform was used frequently and he later testified that he received the reply that it was used routinely or daily. Russell was at the time responsible for the corporate safety program at all of respondent's locations.

Bechtel testified that when he asked Russell the question, Russell asked "the man in charge of the boiler room, how often someone had to go on the platform for any reason, and the response was that it was routinely used or used daily." Russell, however, testified that the platform was "used probably once a year." There was no cross-examination on this testimonial conflict. The Judge, however, did ask Russell about it and the following colloquy took place:

Q. Concerning the platform in the boiler room?

A. Yes.

Q. Did you call someone over and ask them how often that was used?

A. Yes, sir. I called the individual that worked in the boiler room area.

Q. Mr. Bechtel testified, if I recall correctly, that the man said someone uses it everyday; do you recall that conversation?

A. The conversation I recall, sir, is where the individual said that the platform was used once a year.

The foregoing represents virtually the entire evidence of record on the issue before us.

Bechtel did not see anyone use the ladder leading to the platform. The only information he had on frequency of usage was the unidentified employee's response to the question relayed to him by Russell. That statement introduced by complainant [as hearsay] at the hearing was contradicted by Russell, both as a factual matter and as to the recollection of the earlier conversation. Complainant chose not to cross-examine Russell as to either point.

We find that complainant has failed to sustain its burden of proof in this regard.

Mr. Bechtel, who qualified as an industrial safety expert at the hearing, testified that fixed stairs are not required unless the platform is used routinely and "if you get into an area of monthly or semi-annualy or annually, this would not be routinely."

The evidence has not shown use of this platform any more frequently than annually. Consequently, the finding to the contrary is reversed, the citation is dismissed and the $65 penalty assessed therefor is vacated.

CONCURBY: VAN NAMEE; CLEARY

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur that Complainant has failed to prove a violation of 29 CFR 1910.24(b).

In affirming, Judge Oringer noted the conflict of testimonial evidence and found that credibility attached to compliance officer Bechtel. He went on to say he was of the opinion that Bechtel ". . . in fact spoke to an employee of Respondent whose averment of daily use of one of the stairways concerned herein was veritable." It was on this basis that the Judge affirmed the violation.

Accordingly, the Judge's conclusion rested solely on hearsay. I have searched the record and accepting the Judge's conclusion on credibility have not found any evidence to corroborate the hearsay. Accordingly, I concur in vacation for the reason stated in my concurring opinion in Secretary of Labor v. The Ceco Corporation,

CLEARY, COMMISSIONER, concurring: I concur in the result reached by the majority.

I agree that the Secretary has failed to sustain his burden of proof as to item 6, but for failure to prove a different element of his case than that relied on by the majority.

The confusion and conflict in the record that should have been resolved at the hearing is not whether "this platform" was regularly used, but which of several platforms was the one to which the question of regular use was directed.

If it is concluded that the platform was the one over the boilers, we need not concern ourselves with the problem of hearsay evidence, for there is direct testimony by the plant engineer that this platform was used for an annual inspection. On this evidence, it is clear that the platform over the boilers was not used regularly within the meaning of the standard.

There is some evidence in the testimony of the compliance officer from which it may be inferred that "the platform" was the one from which a valve was used, and that this platform may have been the one the compliance officer understood to be in daily use. Indeed, this is the finding made by the Judge. The Secretary, however, failed to clarify the issue either by more detailed examination of the compliance officer or by examination of the employee representative who accompanied the compliance officer on the inspection. In response to direct examination, the employer representative testified that the compliance officer called "a couple of platforms" to his attention, one being an overhead platform in a small office area and the second being "the one above the boilers."

From all of the above I conclude that the Secretary failed to identify sufficiently the platform in question so that this fundamental element of his burden of proof of the violation is missing.

Accordingly, I concur in the vacation of the citation and notification of proposed penalty.

[The Judge's decision referred to herein follows]

ORINGER, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. et seq. ), hereinafter called, "the Act," contesting a Citation issued by the Complainant against the Respondent under the authority vested in the Complainant by Section 9(a) of the Act. The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 4200 N. Holton Street, Milwaukee, Wisconsin, the Complainant ascertained that Responden has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof. As a result of the inspection, the Respondent, on January 20, 1972, was issued a Citation for thirteen (13) nonserious violations as follows:

Item number	Standard or regulation allegedly violated
1	29 CFR 1910.141(a)
2	29 CFR 1910.133(a)(1) and (a)(6)
3	29 CFR 1910.23(d)(1)
4	29 CFR 1910.23(a)(8)
5	29 CFR 1910.23(c)(1)
6	29 CFR 1910.24(b)
7	29 CFR 1910.25(c)(2)(i)(d)
8	29 CFR 1910.242(b)
9	29 CFR 1910.106(d)(4)(v)
10	29 CFR 1910.106(e)(2)(ii)(b)(2)
11	29 CFR 1910.252(a)(2)(v)(b)(7)
12	29 CFR 1910.22(b)(1)
13	29 CFR 1910.94(d)(9)(iii)

The Citation, which was issued on January 20, 1972, alleges that the violations contested by the Respondent result from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register on May 29, 1971, and codified in 29 CFR 1910.141(a), 29 CFR 1910.133(a)(1) and (a)(6), 29 CFR 1910.23(d)(1), 29 CFR 1910.23(a)(8), 29 CFR 1910.23(c)(1), 29 CFR 1910.24(b), 29 CFR 1910.25(c)(2)(i)(d), 29 CFR 1910.242(b), 29 CFR 1910.106(d)(4)(v), 29 CFR 1910.106(e)(2)(ii)(b)(2), 29 CFR 1910.252(a)(2)(v)(b)(7), 29 CFR 1910.22(b)(1) and 29 CFR 1910.94(d)(9)(iii).

A Notification of Proposed Penalty was issued on January 20, 1972. Pursuant to the provisions of Section 10(a) of the Act, the penalty set forth below was proposed by the Complainant, based on the above Citation:

Item No.	Proposed Penalty
2	$ 35
3	$ 35
4	$ 80
5	$110
6	$ 65
7	$ 35
10	$ 70
13	$ 70
Total for All Alleged Violations	$500

The description of the alleged violations contested by the Respondent, contained in the said Citation, states as follows:

Item no.	Description of alleged violation
1	29 CFR 1910.141(a) -- Employer failed to provide a
	place of employment where all passageways and
	storerooms are kept clean, orderly, and in a sanitary
	condition.
2	29 CFR 1910.133(a)(1) and (a)(6) -- Employee grind-
	ing metal in the Machine Shop was wearing safety
	glasses without side shields. Employee sawing wood
	in Carpenter Shop was not wearing eye protection.
	The design, construction, testing, and use of devices
	for eye and face protection shall be in accordance
	with American National Standard for Occupational
	and Educational Eye and Face Protection Z87, 1-
	1968.
3	29 CFR 1910.23(d)(1) -- Employer failed to provide
	standard handrails on every flight of stairs having
	four or more risers.
4	29 CFR 1910.23(a)(8) -- Employer failed to guard
	every floor hole into which persons can accidentally
	walk.
5	29 CFR 1910.23(c)(1) -- Employer failed to guard
	every open sided floor or platform 4 feet or more
	above adjacent floor or ground level by a standard
	railing and toeboards.

6	29 CFR 1910.24(b) -- Employer failed to provide
	fixed stairs for access from one structure level to
	another where the carrying of tools or equipment
	by hand is normally required.
7	29 CFR 1910.25(c)(2)(i)(d) -- Employer failed to
	firmly secure wooden stepladder steps into the side
	rails.
8	29 CFR 1910.242(b) -- Employer failed to reduce air
	pressure used for cleaning purposes to less than 30
	psi and did not use effective chip guarding and
	personal protective equipment.
9	29 CFR 1910.106(d)(4)(v) -- Employer stacked 55
	gallon drums of Class I solvent, one upon the
	other, in an inside storage room.
10	29 CFR 1910.106(e)(2)(ii)(b)(2) -- Employer allowed
	Class 1B liquids, in excess of 120 gallons, to be
	located outside of an inside storage room in a single
	fire area in the building.
11	29 CFR 1910.252(a)(2)(v)(b)(7) -- Employer failed to
	assure that oxygen and acetylene cylinder valves
	were closed when work was finished.
12	29 CFR 1910.22(b)(1) -- Employer failed to maintain
	aisle or passageway clear and without obstruction by
	allowing angle iron structural bracing 4 inches high
	from floor area to cross entrance to storage area as
	well as aisle way in storage area of the electrical
	shop.
13	29 CFR 1910.94(d)(9)(iii) -- Employer failed to pro-
	vide gloves imprevious to liquid (other than water)
	which persons are required to handle.

The standard as promulgated by the Secretary provides as follows:

29 CFR 1910.141(a) General requirements -- (1) Housekeeping. (i) All places of employment, passageways, storerooms, and servicerooms shall be kept clean and orderly and in a sanitary condition. (ii) The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition. Where wet processes are used, drainage shall be maintained and false floors, platforms, mats, or other dry standing places should be provided where practicable. (iii) Cleaning and sweeping shall be done in such a manner as to minimize the contamination of the air with dust and, so far as is practicable, shall be done outside of working hours. (iv) To facilitate cleaning, every floor, working place, and passageway shall be kept free from protruding nails, splinters, holes, or loose boards.

29 CFR 1910.133(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 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. (a)(6) Design, construction, testing, and use of devices for eye and face protection shall be in accordance with American National Standard for Occupational and Educational Eye and Face Protection, Z87, 1-1968.

29 CFR 1910.23(d)(1) -- Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equip ped with standard stair railings or standard handrails as specified in subdivisions (i) through (v) of this subparagraph, the width of the stair to be measured clear of all obstructions except handrails: (i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending. (ii) On stairways less than 44 inches wide having one side open, at least one stair railing on each side. (iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side. (iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side. (v) On stairways 88 or more inches wide, one handrail on each enclosed side, one stair railing on each open side, and one intermediate stair railing located approximately midway of the width.

29 CFR 1910.23(a)(8) -- Every floor hole into which persons can accidently walk shall be guarded by either: (i) A standard railing with standard toeboard on all exposed sides or (ii) A floor hole cover of standard strength and construction that should be hinged in place. While the cover is not in place, the floor hole shall be constantly attended by someone or shall be protected by a removable standard railing.

29 CFR 1910.23(c)(1) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides, (i) Persons can pass, (ii) There is moving machinery, or (iii) There is equipment with which falling materials could create a hazard.

29 CFR 1910.24(b) Where fixed stairs are required. Fixed stairs shall be provided for access from one structure level to another where operations necessitate regular travel between levels, and for access to operating platforms at any equipment which requires attention routinely during operations. Fixed stairs shall also be provided where access to elevations is daily or at each shift for such purposes as gauging, inspection, regular maintenance, etc., where such work may expose employees to acids, caustics, gases, or other harmful substances, or for which purposes the carrying of tools or equipment by hand is normally required. (It is not the intent of this section to preclude the use of fixed ladders for access to elevated tanks, towers, and similar structures, overhead traveling cranes, etc., where the use of fixed ladders is common practice.) Spiral stairways shall not be permitted except for special limited usage and secondary access situations where it is not practical to provide a conventional stairway. Winding stairways may be installed on tanks and similar round structures where the diameter of the structure is not less than five (5) feet.

29 CFR 1910.25(c)(2)(i)(d) When minimum thickness of side rails is used, steps shall be closely fitted into the grooves in the side rails one-eighth inch in depth with a tolerance of one thirty-second inch, and shall be firmly secured as hereinafter described; or they shall be closely fitted into metal brackets of an equivalent strength, which in turn shall be firmly secured to the side rails. The depth of groove herein provided may be increased in proportion to the thickness of side rails as provided in subdivisions (ii)(a), (iii)(a), and (iv)(a) of this subparagraph.

29 CFR 1910.242(b) Compressed air used for cleaning Compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal protective equipment.

29 CFR 1910.106(d)(4)(v)(d) Container and portable tank storage. -- (1) Scope. -- (i) General. This paragraph shall apply only to the storage of flammable or combustible liquids in drums or other containers (including flammable aerosols) not exceeding 60 gallons individual capacity and those portable tanks not exceeding 660 gallons individual capacity. (d)(4)(v) Storage in inside storage rooms. In every inside storage room there shall be maintained one clear aisle at least 3 feet wide. Containers over 30 feet wide. Containers over 30 gallons capacity shall not be stacked one upon the other. Dispensing shall be approved pump or self-closing faucet only (to understand requirements of 29 CFR 106(d)(4)(v), see 29 CFR 1910.106(d)(1)(i), as related above).

29 CFR 1910.106(e)(2)(ii)(b)(2) Incidental storage or use of flammable and combustible liquids -- (i) Application. This subparagraph shall be applicable to those portions of an industrial plant where the use and handling of flammable or combustible liquids is only incidental to the principal business, such as automobile assembly, construction of electronic equipment, furniture manufacturing, or other similar activities. (ii) Containers. Flammable or combustible liquids shall be stored in tanks or closed containers. (b) The quantity of liquid that may be located outside of an inside storage room or storage cabinet in a building or in any one fire area of a building shall not exceed: (2) 120 gallons of Class IB, IC, II, or III liquids in containers.

29 CFR 1910.252(a)(2)(v)(b)(7) Installation and operation of oxygen-fuel gas systems for welding and cutting -- Cylinder valves shall be closed when work is finished.

29 CFR 1910.22(b)(1) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

29 CFR 1910.94(d)(9)(iii) Personal protection. (iii) All persons required to handle work wet with a liquid other than water shall be provided with gloves impervious to such a liquid and of a length sufficient to prevent entrance of liquid into the tops of the gloves. The interior of gloves shall be kept free from corrosive or irritating contaminants.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated January 20, 1972, from Robert B. Hanna, Area Director of the Milwaukee, Wisconsin area, that the Occupational Safety and Safety and Health Administration of the U.S. Department of Labor proposed to assess a penalty for the violations alleged in the amount of $500.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Milwaukee, Wisconsin, on April 24 and 26, 1972.

At the trial the Petitioner moved to amend the Citation and Complaint with reference to item 4, changing the reference made from "floor holes" to "floor openings," and correspondingly changing the section of the standard from CFR 1910.23(a)(8) to 29 CFR 1910.23(a)(7), which motion to amend was granted.

The Respondent at the time of trial stipulated to violations of items 1, 3, 5, 7, 8, 11 & 12 of the Complainant's Citation and further stipulated that the abatement dates set for items 1, 2, 3, 5, 6, 7, 8, 11, 12 & 13, were reasonable.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the Citations, Notification of Proposed Penalties, Notice of Contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that substantial evidence on the record considered as a whole, supports the following:

FINDINGS OF FACT

1. The Respondent, Milprint Incorporated, is a Delaware corporation with its principal place of business located at 4200 N. Holton Street, Milwaukee, Wisconsin (T. 11).

2. The Respondent at all times material hereto, was engaged in the business of extruding, laminating and printing flexible packaging materials (T. 107, 109, 110, 112, 122, 124, 125, 129, 137, 141, 145, 146).

3. The Respondent, at all times material hereto, was engaged in a business that shipped a substantial portion of the goods it produced in the State of Wisconsin, to persons and firms located outside the State of Wisconsin (T. 11 & 12).

4. An inspection of the Respondent's workplace was conducted on December 2, 1971, by the Secretary's Compliance Officer, one, Verne Bechtel, accompanied by a representative of the Respondent and by a representative of the employees (T. 35, 36, 112, 149).

5. Some forty-seven days thereafter, on January 20, 1972, the Respondent was issued a Citation for violation of Section 5(a)(2) of the Occupational Safety and Health Act, alleging thirteen (13) nonserious violations of such Act, together with a Notification of Proposed Penalties, proposing penalties, totalling in the aggregate, $500. Some of the forty-seven days elapsing between the inspection and the service of the Citation constituted National holidays.

6. On February 7, 1972, the Respondent timely filed with the Secretary of Labor a notice of intent to contest the Citation and proposed penalties, with respect to items 2, 4, 5, 6, 10, & 13; and with an intent to contest the Citation only, with respect to items 1, 3, 8, 9, 11 & 12; and with an intent to contest the proposed penalty only, with respect to item 7 (T. 14).

7. On February 28, 1972, the Respondent filed an answer to the Petitioner's amended Complaint in which the Respondent denied the reasonableness of the abatement date set for items 4, 9 & 10, of the Citation (See amended answer).

8. At the commencement of the trial the Respondent admitted violations as alleged in items 1, 3, 5, 7, 8, 11 & 12 of the Complainant's Citation, and in the relevant paragraphs of Complainant's Complaint (T. 13 & 14). In addition thereto the Respondent further agreed that the abatement dates for items numbered 1, 2, 3, 5, 6, 7, 8, 11, 12 & 13, of the Citation were reasonable (T. 16).

9. The Respondent at all of the times herein mentioned employed 709 persons at its workplace herein concerned (T. 11).

10. The Respondent, at all times herein relevant, failed to keep all places of employment, passageways, storerooms and service rooms clean and orderly and in a sanitary condition (T. 13).

11. The Respondent, at all times herein relevant, failed to provide standard handrails on flights of stairs having four or more risers (T. 13).

12. The Respondent, at all times herein relevant failed to guard open-sided floors and platforms four feet or more above the adjacent floor or ground levels by means of a standard railing and/or toeboards where persons can pass beneath the open sides (T. 13).

13. The Respondent, at all times herein relevant, failed to firmly secure wooden step ladder steps in the side rails (T. 13).

14. The Respondent, at a time herein relevant, failed to reduce air pressure used for cleaning purposes to less than 30 p.s.i., and failed to use effective chip guarding and personal protective equipment (T. 13).

15. In the Respondent's metal shop and carpenter shop, employees were performing work that required protective glasses with side shields which were not being used by the said employees at the time of the inspection (T. 36, 38, 71, 72, 73, 100, 101, 149, 150, 151, 159, 162, 163).

16. The Respondent failed to provide standard hand rails on flights of stairs having four or more risers, and the Respondent was not in the process of erecting the necessary hand rails at the time of inspection (T. 13, 39, 40).

17. The Complainant failed to sustain the burden of proof that the Respondent had unguarded temporary floor openings that were unattended (T. 40, 41, 42, 74, 75, 76, 77, 78, 79, 80, 150, 152, 163, 164, 165, 167, 168).

18. The Respondent failed to guard open-sided floors and platforms four feet or more above floor or ground level by means of standard railings and/or toeboards, which platforms were located in the loading dock, electrical shop, boiler room and in the carpenter shop. The Respondent was not in the process of erecting standard railings or toeboards at the time of the inspection (T. 13, 42, 43).

19. The Respondent, at the worksite concerned herein, failed to have standard fixed stairs for access to overhead platforms in the boiler room therein, and in the pipe shop therein, which platforms were used in the boiler room for access to a valve, and in the pipe shop for storage of equipment and material. Operations herein necessitated regular travel and access to the platforms routinely, and access was daily (T. 43, 44, 45, 46, 152, 153, 165, 80, 81, 168, 169, 170).

20. The Respondent had one wooden ladder located in the boiler room, and one located adjacent to the carpenter shop, not firmly secured into the side rails (T. 13, 46, 47).

21. The Secretary failed to sustain the burden of proof that any containers that may have been stored one upon the other were filled with liquid as described in 29 CFR 1910.106(d)(1)(i).

22. At the aforementioned worksite, the Respondent had Class 1-B liquids located outside an inside storage room in quantities exceeding 120 gallons (T. 14).

23. The Complainant failed to sustain the burden of proof that the use of solvents (an allegedly flammable or combustible liquid) was only incidental to the principal business of the Respondent (T. 32-103; 121-146, particularly pages 131, 132, 133; 85, 86, 87, 92, 93, 94, 95; 122, 123, 129, 130, 141, 142, 143, 145, 146, 156).

24. The Respondent failed to assure that oxygen and acetylene cylinder valves were closed when work was finished (T. 14).

25. The Respondent failed to keep aisles and passageways clear and in good repair with no obstructions across or in aisles that could create a hazard, in that angle iron structural bracing, 4 inches high, from the floor area, was allowed to cross the entrance to the storage area as well as the aisle way in the storage area of the electrical shop (T. 14).

26. The Complainant failed to sustain the burden of proof that the Respondent failed to provide all persons required to work with a liquid other than water, with gloves impervious to such a liquid, and of a length sufficient to prevent entrance of liquid into the tops of the gloves. While the gloves were provided and were accessible, the employees were of the opinion that they were dangerous to use inasmuch as the gloves could be caught in the mechanical equipment creating a greater hazard and danger to the employees (T. 56, 57, 96, 98, 99, 102, 103, 113, 114, 115, 116, 117, 118, 119, 133, 134, 135, 158, 159, 160, 161, 166, 167, 126).

27. The Complainant's Compliance Officer considered the alleged violations herein at issue, in his judgment, to be other than serious (Citation).

28. The Complainant's Compliance Officer, in determining the amount of the proposed penalties, gave due consideration to the size of the business of the employer, the gravity of the violations, the good faith of the employer and the history of prior violations (T. 12, 61-67; Petitioner's Exhibits 7 & 9).

DISCUSSION

Insofar as the contested items of the Citation are concerned, item #2, thereof was issued as a result of the observation by the Secretary's Compliance Officer, of employees operating a grinding machine, and sawing wood, without proper eye protection. The Respondent argues that inasmuch as eye protection equipment was available, the Citation was unwarranted. The standard in question, to wit, 29 CFR 1910.133(a) reads: "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." n1 The key words are "shall be required." The purchase of such equipment by the employer does not sufficiently fulfill the requirements of this standard. The employer in this instance must require that such protective eye equipment not only is present on the premises, but is worn by those employees exposed to the hazard. Congress intended that the primary responsibility for compliance is on the employer. In this instance not only should the employees be forced to wear such equipment, but failure so to do, when exposed to the hazard for which the protection is necessary, should result in disciplinary action. This type of supervision was not present in the instant cause and accordingly the Judge finds that the Respondent violated this section of the standards. The penalty proposed for this violation, to wit, $35, is reasonable and appropriate in the circumstances, given all of the elements testified to by the Compliance Officer, and which were present in the instant cause. This is not the type of violation in which the penalty should not be assessed as found in Secretary v. J. E. Chilton, Millwork and Lumber Co., OSAHRC Docket #123, or in Secretary v. General Meat Co., OSAHRC Docket #250. An obvious hazard existed to which an employee was exposed, and the penalty, albeit a small one, is appropriate in this circumstance.

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n1 Emphasis supplied.

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The Complainant amended its complaint at the time of trial alleging a violation of 29 CFR 1910.23(a)(7), rather than 29 CFR 1910.23(a)(8). 29 CFR 1910.23(a)(7) requires that every temporary floor opening shall have standard railings, or shall be constantly attended by someone. The testimony was not clear that the temporary floor openings were such that someone would fall in, and actually were empty and not loaded with material, or were not attended. While the better practice would be for the Respondent to have standard railings, the record does not disclose that the Secretary sustained the burden of proof of violation at the time that the inspection was made.

Insofar as the alleged violation of 29 CFR 1910.24(b) is concerned, the Judge finds the violation proven. There was some controversy over whether these stairways were used routinely and regularly. The Judge finds that credibility attaches to the Compliance. Officer's testimony in this regard. Daily use, in the opinion of the Judge, constitutes regular and routine usage.

While there was a conflict in testimony between the Secretary's Compliance Officer and the Respondent's witnesses concerning the use of the stairways referred to above, the Judge is of the opinion that the Compliance Officer in fact spoke to an employee of the Respondent whose averment of daily use of one of the stairways concerned herein was veritable. The trier of the issues is of the opinion that both stairways are used both regularly and routinely.

Insofar as a violation of 29 CFR 1910.106(d)(4)(v) is concerned, the Secretary failed to sustain the burden of proof that the fifty-five gallon drums, stacked one upon the other, were in actuality filled with solvents. The Judge finds credible, the argument of the Respondent that if the drums were so stacked they were empty ones, and accordingly finds that the Secretary failed to sustain the burden of proof of this violation. In order to properly interpret what constitutes a violation of 29 CFR 1910.106(d)(4)(v), one must first read 29 CFR 1910.106(d)(1)(i), which relates that this paragraph is only applicable to the storage of flammable or combustible liquids in drums or other containers, and therefore would not apply to an empty drum but only to a full one. It appears to be the finder of fact, that the Secretary failed to prove this element, to wit, that those drums that were stacked were filled with solvent, and thus the alleged violation must fall.

In deciding whether or not a violation of 29 CFR 1910.106(e)(2)(ii)(b)(2) in fact existed, one must go back to the beginning of this paragraph, to 29 CFR 1910.106(e)(2)(i), which paragraph is headed, "Incidental storage and use of flammable and combustible liquids -- (i) Application -- This subparagraph is applicable only to those portions of an industrial plant where the use of handling of flammable or combustible liquids is only incidental n2 to the principal business." In order to sustain such a violation the Secretary had the burden of proving that the use of solvents was only incidental to the principal business of the Respondent. Webster's Seventh New Collegiate Dictionary, in defining "incidental" as an adjective, related, 1.a) occurring merely by chance or without intention or calculation; b) occurring as a minor concomitant, 2. Being likely to ensue, as a chance or minor consequence. The best definition and the closest to the situation at bar is the definition 1.b) occurring as a minor concomitant. The Judge finds that in this business of printing, particularly in the type of business of the Respondent, the use of solvents was basic and fundamental to his business, rather than incidental thereto. Certainly, the proof adduced failed to establish that the use of solvents was only incidental to the business of the Respondent. A huge amount of solvents are used and without such a liquid being utilized, the business would not be able to operate. In the opinion of the fact finder, the utilization of solvents in this business is different from those examples given in the standard. In the examples given, the use of flammable liquids is only incidental to the main operations, while in the instant cause, the use of solvents, as previously related, is basic, fundamental, and absolutely necessary thereto. Accordingly the allegation of violation in the Citation must be vacated.

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n2 Emphasis supplied.

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Insofar as item #13 of the Citation is concerned, an alleged violation of 29 CFR 1910.94(d)(9)(iii), this standard only requires an employer to provide gloves. It does not mandate the employer to require the employees to wear them. One easily ascertains this fact from contrasting this standard with 29 CFR 1910.133(a)(1), discussed previously. In the latter standard, the Secretary mandates that protective eye and face equipment shall be required. In the instant standard, the Secretary mandates that the employees shall be provided with gloves. In the former standard the Secretary mandates the employer to require that the eye protective equipment be worn. In the standard now discussed, gloves must be provided, however the standard does not mandate the employer to require that they be worn. In the instant cause, representatives of two unions testified that it would be dangerous indeed for its members, the employees, to wear the gloves while working in the press room. Mr. Simon made such a statement twice during the hearing, when he was obviously disturbed at such a requirement being mandated to employees in his union. Mr. Esquada made a similar comment during his testimony. The Judge finds that requiring employees to wear gloves in this type of plant would be a much greater hazard than washing their ink-laden hands off in a solvent. In passing, it seems that this employer appears to have all types of materials and liquids necessary for the protection of hands. The wearing of gloves is obviously a dangerous hazard in that the chances of it being caught in the equipment is great and would entail a terrible hazard to the limbs of employees if they were required to wear such gloves when in and around press equipment. The Judge finds that the Respondent has provided such gloves pursuant to the standard, and that the decision of the employees not to wear them because of the hazards attendant thereto, in the instant cause, has fully satisfied the standard, and accordingly the allegation of violation must be vacated.

The Judge finds that the penalties assessed for those violations found to exist, and those violations not contested by the Respondent, are fair and reasonable in the premises and the Secretary has given full consideration to all of the statutory elements concerned. Accordingly, the penalties proposed by the Secretary for those violations that are found to exist, are reasonable and proper in the premises.

Based on the foregoing considerations, the Judge makes the following

CONCLUSIONS OF LAW

1. At all the times herein mentioned, the Respondent was, and still is, engaged in a business affecting commerce, within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Respondent was, on the date of the respective inspections at its worksite herein concerned, and at all other times mentioned herein, an employer subject to the safety and health regulations promulgated as 29 CFR Part 1910, by the Secretary of Labor.

3. Pursuant to Section 6(a) of the Occupational Safety and Health Act, the Secretary of Labor on April 27, 1971, adopted 29 CFR Part 1910, to become effective generally on August 27, 1971. The standards alleged to be violated in Complainant's Citation and Complaint were therefore in full force and effect as regards the Respondent and its workplace on the day of the respective inspection at the worksite herein concerned.

4. The Respondent was, on December 2, 1972, in violation of that standard found at 29 CFR 1910.141(a).

5. The Respondent was, on the aforementioned day of inspection, in violation of that standard found at 29 CFR 1910.133(a)(1) & (a)(6).

6. The Respondent, was, on the aforementioned day of inspection, in violation of that standard found at 29 CFR 1910.23(d)(1).

7. The Complainant failed to sustain the burden of proof that on the day of aforementioned inspection, this Respondent was in violation of that standard found at 29 CFR 1910.23(a)(7), (amended at time of trial from the formerly alleged violation of 29 CFR 1910.23(a)(8)).

8. The Respondent was, on the aforementioned day of inspection, in violation of that standard found at 29 CFR 1910.23(c)(1).

9. The Respondent was, on the aforementioned day of inspection, in violation of that standard found at 29 CFR 1910.24(b).

10. The Respondent was, on the aforementioned day of inspection, in violation of that standard found at 29 CFR 1910.25(c)(2)(i)(d).

11. The Respondent was, on the aforementioned day of inspection, in violation of that standard found at 29 CFR 1910.242(b).

12. The Complainant failed to sustain the burden of proof that this Respondent, on the day of the aforementioned inspection, was in violation of that standard found at 29 CFR 1910.106(d)(4)(v).

13. The Complainant failed to sustain the burden of proof that this Respondent, on the day of the aforementioned inspection, and at any other time herein relevant to, was in violation of that standard found at 29 CFR 1910.106(e)(2)(ii)(b)(2), in that it failed to prove that the liquids stored were "only incidental to" the Respondent's business.

14. The Respondent was, on the aforementioned day of inspection, in violation of that standard found at 29 CFR 1910.252(a)(2)(v)(b)(7).

15. The Respondent was, on the aforementioned day of inspection, in violation of that standard found at 29 CFR 1910.22(b)(1).

16. The Complainant failed to sustain the burden of proof that this Respondent, on the day of the aforementioned inspection, or at any other time relevant thereto, was in violation of that standard found at 29 CFR 1910.94(d)(9)(iii).

17. The aforesaid violations of 29 CFR Part 1910, found proven, or stipulated to by the Respondent, had a direct and immediate relationship to safety and health, but did not constitute "serious" violations within the meaning and purview of the Act.

18. The penalties proposed for each violation of 29 CFR Part 1910, found proven herein, or stipulated to by the Respondent, were appropriate.

In view of the foregoing; having given due deliberation to the gravity of the violations, the size of the Respondent's business, the presence or absence of good faith of the Respondent, and its history; and good cause appearing therefore, it is ORDERED, that

1. Those parts of the Citation issued and amended, alleging violations of those standards found at 29 CFR 1910.23(a)(7) (originally alleged to be a violation of 29 CFR 1910.23(a)(8)), 29 CFR 1910.106(e)(4)(B), 29 CFR 1910.106(e)(2)(ii)(b)(2), and 29 CFR 1910.94(d)(9)(iii), at the Respondent's workplace, at the time herein in question, are hereby and herewith vacated.

2. Those items of the Citation numbered 1, 2, 3, 5, 6, 7, 8, 11 and 12, alleging violations of the following standards: (1) 29 CFR 1910.141(a), (2) 29 CFR 1910.133(a)(1) and (a)(6), (3) 29 CFR 1910.23(d)(1), (5) 29 CFR 1910.23(c)(1), (6) 29 CFR 1910.24(b), (7) 29 CFR 1910.25(c)(2)(i)(d), (8) 29 CFR 1910.242(b), (11) 29 CFR 1910.252(a)(2)(v)(b)(7), (12) 29 CFR 1910.22(b)(1), are hereby and herewith affirmed.

3. Those penalties, proposed by the Secretary for the alleged violations which were vacated in Number 1 above, are herewith similarly vacated.

4. Those penalties, proposed by the Secretary for the violations affirmed above are herewith and hereby affirmed, and the following penalties therefore are herewith assessed:

Item No. 1 -- No Penalty

Item No. 2 -- $35.00

Item No. 3 -- $35.00

Item No. 5 -- $110.00

Item No. 6 -- $65.00

Item No. 7 -- $35.00

Item No. 8 -- No Penalty

Item No. 11 -- No Penalty

Item No. 12 -- No Penalty

The total penalties assessed herein, amount in the aggregate, to $280.00. SO ORDERED.