1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.  


NORANDA ALUMINUM, INC.  


GENERAL MOTORS CORP., GM ASSEMBLY DIV.  


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.  


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.  


CCI, INC.  


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.  


CHAPMAN CONSTRUCTION CO., INC.  


GALLO MECHANICAL CONTRACTORS, INC.  


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.  


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.  


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.  


BUNKOFF CONSTRUCTION CO., INC.  


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.  


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.  


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.  


BENTON FOUNDRY, INC.  


MICHAEL CONSTRUCTION CO., INC.  


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.  


ERSKINE-FRASER CO.  


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.  


FORTE BROTHERS, INC.  


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.  


VAMPCO METAL PRODUCTS, INC.  


LEONE INDUSTRIES, INC.  


ASARCO, INC.  


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.  


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.  


BROWN & ROOT, INC., POWER PLANT DIVISION


FLEETWOOD HOMES OF TEXAS, INC.  


DONALD HARRIS, INC.  


A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.  


ELECTRICAL CONSTRUCTORS OF AMERICA, INC.  


DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)


ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY


NAVAJO FOREST PRODUCTS INDUSTRIES


METROPAK CONTAINERS CORPORATION


AUSTIN BUILDING COMPANY


BABCOCK AND WILCOX COMPANY


DARRAGH COMPANY


BABCOCK & WILCOX COMPANY


OTIS ELEVATOR COMPANY


R. ZOPPO COMPANY, INC.  


LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS


PENNSYLVANIA POWER & LIGHT CO.  


HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY


NORTHWEST AIRLINES, INC.  


INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.  


GENERAL MOTORS CORPORATION, INLAND DIVISION


WELDSHIP CORPORATION


S & S DIVING COMPANY


SNIDER INDUSTRIES, INC.  


NATIONAL STEEL AND SHIPBUILDING COMPANY


MAXWELL WIREBOUND BOX CO., INC.  


CONTINENTAL GRAIN COMPANY


MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY


CAPITAL CITY EXCAVATING CO., INC.  


GAF CORPORATION


PPG INDUSTRIES (CARIBE) a Corporation


DRUTH PACKAGING CORPORATION


SOUTHWESTERN ELECTRIC POWER COMPANY


TUNNEL ELECTRIC CONSTRUCTION CO.  


WEATHERBY ENGINEERING COMPANY


JOHNSON STEEL & WIRE CO., INC.  


AUSTIN ROAD CO.  


MAYHEW STEEL PRODUCTS, INC.  


LADISH CO., TRI-CLOVER DIVISION, a Corporation


PULLMAN POWER PRODUCTS, INC.  


NATIONAL ROOFING CORPORATION


OSCO INDUSTRIES, INC.  

OSHRC Docket No. 76-2383

Occupational Safety and Health Review Commission

July 30, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Regional Solicitor

James P. Weems, Mgr., OSCO Industries, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case arose under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Louis G. LaVecchia is before the Commission for review pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).   Respondent, OSCO Industries, Inc., petitioned to have the Commission review that portion of the judge's decision finding Respondent in violation of section 5(a)(2) the Act, 29 U.S.C. §   654(a)(2), for failure to comply with the occupational safety and health standard at 29 C.F.R. §   1910.132(a). n1 Commissioner Barnako directed that the judge's decision be reviewed on "the issues raised by the petition." In its petition, Respondent raises two issues, arguing first that the standard under which it was cited was not validly promulgated, and second that the facts do not support the finding of a violation. n2 We agree with Respondent that, on the facts [*2]   of record in this case, there is no violation of section 1910.132(a), and we reverse the judge's decision as to this citation.   In light of our disposition, we do not reach Respondent's argument concerning the validity of promulgation.

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n1 That standard provides:

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

n2 Former Commissioner Moran also directed review "to determine whether the record justifies findings of fact 1 through 7 and conclusions of law 1 through 7." In its petition and brief, Respondent has addressed only the issues set out in the text.   The Secretary has not filed a petition or a brief.   Therefore, the parties have not taken issue with those parts of the judge's decision dealing with the other citations.   Furthermore, there is no compelling public interest warranting Commission review of the other items of the citation.   Accordingly, the Commission will not review those dispositions.   See General Elec. Co., 80 OSAHRC    /   , 7 BNA OSHC 2183, 2184 n.2, 1980 CCH OSHD P24,268, p. 29,550 n.2, (No. 15037, 1980); Champion Constr. & Eng'r. Co., 78 OSAHRC 102/A2, 6 BNA OSHC 2116, 1978 CCH OSHD P23,186 (No. 76-2576, 1978); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).   The unreviewed portions of the judge's decision do not constitute precedent binding upon the Commission.   See Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

  [*3]  

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On April 1, 1976, an authorized representative of the Secretary of Labor ("the Secretary") conducted an inspection of Respondent's "gray iron" foundry in Portsmouth, Ohio.   As a result of that inspection, the Secretary issued a number of citations.   Respondent timely contested some of them, including the one on review.   The citation before us on review alleged a repeated violation of the Act for failure to comply with 29 C.F.R. §   1910.132(a).   The citation alleged that "in the foundry department, five employees were observed pouring molten iron with no personal protective clothing being worn."

I

A hearing was held before Judge LaVecchia on August 20, 1976.   At the hearing, the compliance officer who conducted the inspection testified that he believed Respondent's iron pourers were exposed to a burn hazard requiring the use of protective clothing. The compliance officer testified that the pourers fill small ladles with molten iron at a furnace, move the ladles along a monorail to the pouring area, and empty the ladles into molds. His testimony indicated that while they are at the furnace the employees [*4]   are behind a protective barrier. The compliance officer further testified that most of the men in the area were wearing "everyday clothes," cotton shirts and jeans, but that they all were wearing leather leggings to protect them from the knee down.   He also stated that the pourers were wearing protective glasses and gloves.   According to the compliance officer, the ladles of iron are suspended from the monorail at about chest height.   In his opinion, the hazard was that the ladles might tip the wrong way if there were a malfunction and spill molten iron onto the pourers. He expressed the opinion that the pourers were not adequately protected from iron spills and that protective clothing would prevent severe injuries.   He suggested that the pourers be required to wear flame retardant protective jackets and trousers.

Respondent's plant manager, Art Marion, testified that the ladles can tilt in only one direction, away from the pourers, and that the ladles are counter-balanced so that they remain upright unless tilted to pour.   He also testified that there is a lock on the ladle to hold it in the upright position and that it locks automatically.   On cross-examination, he was asked [*5]   if it was possible for a pourer to lose his footing and fall into a mold containing molten iron. He answered that this was not possible because the poured molds are on a conveyor moving away from the pourer, and there is no way a pourer could fall into the hot metal. He also said that the pourers are not exposed to "exploding of iron" or to "sparks" in this operation.

Mr. Marion further testified that Respondent requires the pourers to wear leather leggings, which protect the pourers' legs from the knee down, and that the pourers' knees are above the level of the molds. He stated that sometimes the metal will flow out the side of the mold, but that the pourers are standing on an elevated metal grill, so the "runout" falls through the grill to the floor. The floor is kept dry and covered with sand to prevent the metal from "exploding." According to Mr. Marion, very little splattering iron would reach knee height.   He testified that occasionally particles of molten iron that are the size of a pinhead or slightly larger will splatter.   The metal solidifies very quickly when it is that small, however, and the particles hit the skin or clothing and fall off.   Mr. Marion testified   [*6]   that because of the heat the skin oils and perspiration of the pourers act as a natural repellent, which protects them from being burned by these small particles. Any burns suffered would be "pinhead" burns.

Respondent's manager of manufacturing, Arvin Neuwirth, testified that these small "salt and pepper" burns are the type that might occur from a child's toy sparkler.   He stated that the foundry industry recognizes the possibility of these minor burns and does not consider them to be injuries warranting protection beyond leggings and gloves.   Because of the heat, the industry does not require the pourers to wear heavy clothing. Mr. Neuwirth testified that, as the result of an earlier OSHA inspection and citation, Respondent required its pourers to wear the protective clothing suggested here.   When the weather turned warm, the pourers objected to the clothing, and Respondent then contacted OSHA to discuss this development.   After OSHA investigated the situation, a different means of abatement was approved by the compliance officer who conducted the first inspection. The pourers were required to wear leggings and a barrier was erected in front of the furnace to protect the pourers [*7]   while they were filling their ladles.

In his decision, the judge affirmed the violation as nonserious.   He concluded that the iron pourers were exposed to "an obvious hazard." He made no findings of fact as to the nature of the hazard or now the injuries might occur.   Respondent petitioned for reciew of the judge's decision raising two issues, and its petition was granted. n3

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n3 Respondent attached to its petition and brief on review a letter to Respondent written by the safety director of the American Foundrymen's Society.   The letter comments upon the evidence at the hearing and on the judge's decision.   In reaching our decision, we have not considered this letter.   There is nothing in it that could be described as new evidence unavailable to Respondent before the hearing.   We treat the enclosure of the letter as a motion to reopen the record and deny the motion.   See Seattle Crescent Container Serv., 79 OSAHRC    , 7 BNA OSHC 1895, 1979 CCH OSHD P24,002 (No. 15242, 1979).

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II

On review, Respondent argues [*8]   that a preponderance of the evidence does not support the judge's conclusion that there was a violation.   We agree.

In another case in which a citation for noncompliance with section 1910.132(a) was before us, we said:

The standard at issue in this case is a broadly worded standard that imposes a generalized duty to protect employees by the use of whatever personal protective equipment is necessary by reason of certain hazards, including those of processes or environment.   We have held that in order to determine the application of this and similar broad standards to a particular situation, we will consider whether a reasonable person familiar with the circumstances surrounding an allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of protective equipment.   Although industry custom and practice will aid in determining whether a reasonable person familiar with the circumstances and with any facts unique to the industry would perceive a hazard, they are not necessarily dispositive.

Owens Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1295, 1979 CCH OSHD P23,509 at p. 28,491 (No. 76-4900, 1979),   [*9]   appeal filed No. 79-2516 (5th Cir. June 26, 1979).   Whether the standard applies to a given situation depends on whether there is a condition that would be recognized as a hazard by a reasonable person familiar with the circumstances.   After review of the record, we hold that the Secretary has not shown such a condition here.

At the hearing the compliance officer testified that the hazard was molten iron spilling on the pourers if a ladle malfunctioned and tipped in the wrong direction.   The compliance officer apparently believed that the ladles could tilt in any direction.   Mr. Marion, however, testified that the ladles cannot tilt toward the pourers, that the ladles are counter-balanced to stay in the upright position, and that the ladles have catches to hold them upright. Mr. Marion's testimony was not refuted.   The hazard envisioned by the compliance officer was thus shown to have been prevented by the precautions taken by Respondent in its iron pouring operation.

Following this testimony by Mr. Marion, the Secretary attempted to demonstrate that there were other hazards that would be abated by the use of protective clothing. Respondent's witnesses were questioned   [*10]   about the possibility that pourers could fall into the molten iron already poured into the molds. This possibility was refuted by Respondent's witnesses, as were the potential hazards of explosions and sparks.   Finally, the Secretary attempted to show that splattering iron from "runouts" was a hazard. Runouts occur when the mold ruptures or separates, allowing molten metal to flow out the side of the mold. Again, the precautions taken by Respondent in the form of leggings, the elevated metal grills, placing sand on the floors, and keeping the floors dry adequately protect the pourers. The "salt and pepper" burns, which were equated to those caused by a child's Fourth of July sparkler, were not shown to be a hazard.

Based on the above, we conclude that the Secretary has failed to establish the existence of a hazard requiring the use of personal protective equipment within the meaning of the standard at 29 C.F.R. §   1910.132(a).   Accordingly, the judge's decision in this case is modified to vacate citation 2 and the associated penalty.

SO ORDERED.