OWENS-CORNING FIBERGLAS CORPORATION
OSHRC Docket No. 76-4990
Occupational Safety and Health Review Commission
April 30, 1979
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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor
Thomas R. Merlino, Owens Corning Fiberglas Corp., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
The issue in this case is whether Administrative Law Judge Cecil L. Cutler, Jr. erred in affirming a citation issued under the Occupational Safety and Health Act of 1970 (29 U.S.C. § § 651-78) in which Complainant alleged that Respondent violated 29 C.F.R. § 1910.132(a) n1 by failing to insure that personal protective equipment, specifically gloves, was provided, used, and properly maintained where necessary because of hazards in Respondent's production operation. For the reasons that follow, we conclude that the judge did not err and affirm his decision as slightly modified.
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n1 This standard provides as follows:
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.
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This proceeding results from an inspection conducted by Complainant's industrial hygienist at Respondent's plant in Fairburn, Georgia, where Respondent manufactures fiberglass insulation. At issue specifically is the handling of fiberglass material at two locations -- the "begging" and "dyken" or "rollup" areas -- where fiberglass insulation is packaged for shipment. n2
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n2 In affirming the citation, the judge concluded that gloves are also required to be worn to protect against the hazard of burns from hot glue used at the "overwrap" machine which applies a wrapping label to the fiberglass rolls after they have been formed at the dyken machine. Respondent does not except to the judge's decision insofar as the judge determined that gloves need to be worn at the overwrap machine. This portion of the judge's decision, therefore, is not before us on review.
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Fiberglass insulation is manufactured in a furnace and cured in an oven at a temperature [*3] of approximately 1900 degrees Fahrenheit. The fiberglass is then cut into different lengths depending upon the application for which it is intended. Smaller lengths, such as attic or building insulation, are brought by conveyor belt to the bagging area where employees remove the pieces and stack them to be bagged. After a machine known as the bagger compresses and inserts the stack into a bag, an employee applies a label to seal the bag. The completed bags are then sent to a warehouse.
Longer lengths of fiberglass material, such as material to be used for insulation in mobile homes, normally are not bagged but rather are taken by conveyor to the dyken area where they are formed into rolls, and tape is applied to keep the rolls intact. Bundles of fiberglass are lifted and carried by hand in both the dyken and bagging areas.
Occasionally, a length of fiberglass will contain a "hob spot," that is, a piece of nonfibrous glass that had not been properly processed. Hot spots, which are considered defects, may or may not drop out of the material as it proceeds down the processing line. If they remain embedded in the material, they gradually cool down but may still be hot enough [*4] to burn the paper backing of the fiberglass by the time the material reaches the bagging or dyken areas. Employees are usually but not always warned of the presence of a hot spot by announcement over the plant's public address system Because a hot spot may be embedded anywhere in the material, it may not be visible to an employee when he grabs the fiberglass.
The witnesses disagreed regarding the nature of the hazards caused by handling fiberglass in Respondent's operations. In addition to the hazard of burns from hot spots, Complainant's industrial hygienist stated that contact with fiberglass could result in irritation of the skin and that the skin could be penetrated by particles or cut by fiberglass material. On the other hand, Respondent's own industrial hygienist, n3 as well as its plant nurse, testified that the hazards to the hands in both the bagging and dyken area were minimal. Respondent's nurse noted that there had been no reported injuries from hot glass contact during her three years of experience. Respondent's hygienist referred to a hardening process of the skin whereby those who are susceptible to fiberglass irritation will become less sensitive and eventually [*5] totally resistant to such irritation through continued contact with the fiberglass.
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n3 This witness had served as Respondent's hygienist since 1970 and had practiced in the field of industrial hygiene and occupational health since 1948. He is a member of, and certified in the practice of industrial hygiene by, the American Academy of Industrial Hygiene.
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However, Respondent's hygienist agreed that fiberglass can pierce the skin and that, although such occurrences are infrequent, if fiberglass remains embedded in the skin infection can possibly result. He further stated that handling an abrasive material such as fiberglass can result in skin irritation, and although employees' hands may become acclimated or "hardened" to the fiberglass, he admitted that this "hardening" process depends upon continued contact. If an employee is removed from contact by, for example, going on vacation, the irritation could possibly develop again on his return.
In addition, Respondent's plant nurse for the past three years admitted [*6] that "a very few" employees have complained of irritation from the bagging area, although no burns had been reported from hot glass in either the bagging or dyken areas. She had advised one employee who complained of itching from fiberglass to see the plant physician. She was not specifically asked whether dyken employees had complained of irritation but stated generally that she has had "very little" contact with the employees from that area.
Complainant's hygienist testified that gloves would protect against burns and irritation caused by the fiberglass. Although Respondent's plant manager estimated that between 20 and 40 percent of employees do not want to wear gloves, most or all of the employees with whom Complainant's hygienist spoke during the inspection wanted gloves and were willing to wear them. Moreover, employees testified that they normally wear gloves while working in the bagging area or at the dyken (rollup) machine to protect from irritation of the skin. When they did not wear gloves, they experienced irritation, and one employee said that on one such occasion fiberglass entered his skin resulting in infection. Another employee stated that he wore gloves while [*7] bagging because gloves prevent burns from hot spots that may be concealed from view, and both he and one other employee who testified had felt heat from hot spots while wearing gloves.
Although Respondent does not require its employees to wear gloves, it does provide its employees with gloves. The gloves provided by Respondent are made of leather or a leatherette product that lasts no more than six to seven working days before developing holes around the fingers and knuckles. In the past Respondent had provided such gloves as they were needed; however, this policy subsequently changed; as recently as four to five weeks before Complainant's inspection, employees who requested a pair of gloves were refused. They were told that because glove usage was too high, they were to be limited to one pair of gloves per month. When refused, employees obtained gloves that had been used by other employees. One employee testified that she was given a dirty, torn pair with an odor, which she did not want to use. After an employee filed a grievance through the union, Respondent issued a revised glove policy by which each employee would be issued two pairs of gloves per month, with unlimited [*8] replacement of worn-out gloves.
However, the evidence indicates that the glove policy was not being adequately implemented at the time of the inspection. One employee stated that she preferred to wear gloves because they prevented irritation, but testified she was not wearing any during the inspection because at that time only one pair was being issued per month. n4 Complainant's hygienist observed employees in the bagging and dyken areas wearing gloves with holes and employees with no gloves at all. n5 In her opinion, fiberglass particles could irritate the skin through holes in the gloves. Similarly, an employee could be burned by hot spots through the holes. She also stated that it was not sanitary for one employee to use another's gloves.
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n4 Respondent's shift production supervisor agreed that because gloves wear out employees should be provided with at least two pairs of gloves each month. He admitted that he had denied an employee's request for new gloves but said that the gloves the employee sought to have replaced were not worn out as the employee claimed.
n5 Respondent states on review that two out of three employees observed by the hygienist in the bagging and dyken areas were not wearing gloves. Complainant's witness actually testified that she observed two employees wearing gloves with holes and one employee in each area without any gloves. Moreover, one of the employees who was observed not wearing gloves at the time of the inspection was the same employee who testified that she had been unable to obtain gloves at that time because only one pair per month was being issued.
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Respondent's plant manager knew of only three manufacturers of fiberglass insulation in the United States. Two other companies besides Respondent have fiberglass insulation plants in the northern Georgia area. One of these plants maintains a program by which the wearing of gloves is voluntary, and gloves are provided as needed; in the other plant gloves are not considered necessary and their use is "discouraged."
In affirming the citation, Judge Cutler observed that Respondent had conceded its employees were not required to wear gloves. He further stated that although Respondent's policy is to provide gloves upon request, the preponderance of the evidence shows that prior to the inspection some employees had not been provided with gloves to replace those worn out during the course of their work. He concluded, therefore, that the question in the case is whether hazards existed within the meaning of 29 C.F.R. § 1910.132(a) sufficient to require that the use of gloves be mandatory.
In his view, the evidence showed a "definite" hazard that a worker not wearing gloves can be injured by inadvertently [*10] touching a piece of hot glass. He based this conclusion on findings that employees are not always warned in advance of the presence of hot spots and that hot spots may be concealed within the material such that they may not be detected until the fiberglass is actually picked up. The judge also referred to the testimony of two employees that they had felt but were not burned by hot spots while wearing gloves.
In rejecting Respondent's argument that the hazard is minimal, the judge concluded that the absence of reported burn injuries from hot glass does not disprove the existence of a hazard. He reasoned that Respondent had presented testimony that between 60 and 80 percent of its employees wear gloves, but that the estimate was admittedly rough and that in view of employees responses to the inspector during the inspection, the percentage is probably higher. Considering also the employees' testimony the judge concluded that Respondent's fortuitous injury record is primarily attributable to the fact that most employees wear gloves that prevent injury rather than to the absence of a hazard. He observed that two courts of appeals have held that the purposes of the Act are preventive [*11] in nature such that a specific accident or injury rate is not necessarily dispositive. Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir. 1975); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974). Concluding that the circumstances are such as to require that the wearing of gloves be compulsory, he determined that Respondent's voluntary glove program even if fully implemented would not satisfy Respondent's affirmative duty to require that all employees exposed to the burn hazard be protected with gloves.
Turning to the matter of fiberglass irritation, Judge Cutler stated that because he had concluded that gloves are required to be worn to protect against contact with hot glass, it was not necessary that he determine whether that requirement should be imposed because of mechanical irritation as well. However, he indicated that many workers will develop skin irritation upon initial exposure to fiberglass without gloves, and he found that while some employees can eventually become inured or "hardened" to fiberglass, not all will develop such resistance. Lastly, he stated that because fiberglass can be absorbed subcutaneously, a possibility [*12] of infection exists. In his enumerated findings of fact he found that all employees working in the bagging and dyken areas "should be provided" with gloves in a sanitary and reliable condition to protect from the hazard of burns "or other injuries."
Finally, the judge noted Respondent's evidence that wearing gloves is not required in the insulation fiberglass industry in northern Georgia. In the judge's opinion, industry custom and practice will establish a standard of conduct, but he stated that nevertheless where industry practice fails to take reasonable precautions against hazards generally known in the industry, the employer may properly be held to a standard higher than that of actual practice, citing Cape & Vineyard Division v. OSHRD 512 F.2d 1148 (1st Cir. 1975). In this case, he concluded, the evidence is clear that the potential for injury exists from exposure to hot glass. In any event, he considered Respondent's voluntary glove program as an "implied recognition" that fiberglass is at the very least a mechanical irritant.
Neither party filed a brief before us on review. In its petition for discretionary review Respondent essentially reiterates the arguments [*13] it presented to the judge. Complainant relies on his trial brief and on Judge Cutler's decision.
Specifically, Respondent argues that, contrary to the judge's decision, Complainant failed to establish that a reasonably prudent individual familiar with the fiberglass insulation industry would have understood that gloves were necessary in the bagging and dyken areas. In Respondent's view, Complainant's industrial hygienist who conducted the inspection was not familiar with that industry or with insulation fiberglass manufacturing operations whereas Respondent presented the opinions of an experienced and knowledgeable hygienist and nurse that the hazards, if any, are minimal.
With respect to hot spots, Respondent asserts that the record indicates a lack of reported burn injuries and that the judge improperly dismissed this evidence because Respondent's employees wear gloves which prevent injury. Respondent argues that such a conclusion is based on speculation since its plant manager indicated that a substantial percentage of employees do not want to wear gloves. In any event, Respondent argues, it is also speculative to conclude that hot spots are sufficiently hot to cause injury [*14] if gloves are not worn. With respect to the irritation hazard, Respondent asserts that the hardening process is an effective substitute for gloves needed to protect against irritation hazards and therefore that those familiar with the industry do not consider gloves to be necessary to avoid mechanical irritation from handling fiberglass. Finally Respondent excepts to the judge's reliance on its voluntary glove program as implying recognition of an irritant hazard. According to Respondent, when an adverse inference is drawn from a voluntary safety activity that an employer believes is not required by the Act, the result is a "chilling effect" which deters employers from establishing such voluntary programs in excess of statutory requirements.
We reject Respondent's arguments. We find essentially for the reasons given by the judge that hazards are shown to exist sufficient to warrant the wearing of protective gloves.
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 [*15] 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. S & H Riggers and Erectors, Inc., (No. 15855, ).
Applying this test, we conclude that persons familiar with the circumstances surrounding the conditions in issue would recognize a hazard from contact with fiberglass requiring the need for gloves. Regardless of whether the testimony of Complainant's industrial hygienist is sufficient to establish recognition of a hazard, other record evidence establishes a violation. In this regard the opinion of Respondent's employees is particularly relevant. These persons, clearly familiar with the industry, requested the issuance of gloves and testified that hazards [*16] exist from which gloves would provide protection. n6
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n6 Respondent contends that its employees do not in fact regard the possibility of contact with hot glass as an "obvious" hazard. But Respondent does not expressly dispute that its employees gave such testimony. Its only contention is that they did not initially express concern about hot glass but rather so testified because they were "prompted" to do so by "follow-up questioning" from Complainant's counsel. Neither the nature of the questions to which the employees were responding nor the particular point during their testimony when they gave their opinions regarding hot glass necessarily diminish the weight to which their opinions are entitled. In any event, we have examined the portions of the record to which Respondent specifically refers; we conclude that Complainant's questions were proper. Moreover, Respondent did not then object to either the questions or responses regarding hot glass.
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Additionally Respondent's own glove program supports the conclusion [*17] that the hazards created by contact with fiberglass are recognized by those familiar with the industry. Contrary to Respondent's assertion, generally an employer's own practices regarding the use of protective equipment are relevant. Wilson Freight Co., 77 OSAHRC 150/C10, 5 BNA OSHC 1692, 1977-78 CCH OSHD P22,041 (No. 13030, 1977). See Fleming Foods of Nebraska, Inc., 77 OSAHRC 196/C12, 6 BNA OSHC 1233, 1978 CCH OSHD P22,889 (No. 14484, 1977). Where, as in this case, protective equipment is made available to employees at their request, even on a limited basis, recognition of a hazard warranting such protection is thereby established. See Cotter & Co., 77 OSAHRC 191/D6, 5 BNA OSHC 2044, 1977-78 CCH OSHD P22,295 (No. 76-3857, 1977), appeal filed, No. 77-3312 (5th Cir. Nov. 21, 1977). n7 Moreover, such a practice on the part of an individual employer demonstrates that the employer itself perceives a need that its employees be protected even if other employers or the industry in general have a contrary custom or practice. Cotter & Co., supra, 77 OSAHRC 191/D6, pp. 4-5, 5 BNA OSHC 2047-48, 1977-78 CCH OSHD P22,295 at 26,847. n8
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n7 Contrary to Respondent's argument, the result in this case does not penalize it for conducting a voluntary safety program in excess of its duties under the law. We agree that voluntary efforts to improve employee safety do not in themselves establish that those efforts were required by law. See Diebold, Inc. v. Marshall, No. 76-1278 (6th Cir. Nov. 3, 1978), slip op. at 19. The question in that case, however, was whether a broadly-worded standard gave adequate notice that its requirements applied to the type of machinery in issue. The court reasoned that resolution of the legal issue of the applicability of the standard could not depend upon voluntary efforts by the employer. There was no question as to what conduct or compliance was required in the event the standard was determined to apply. The case now before us is different, for there is no question that 29 C.F.R. § 1910.132(a) applies to the hazards in Respondent's workplace; the issue is essentially a factual one as to whether the hazards alleged were shown to be of a magnitude warranting the use of protective equipment. In resolving this factual question, it is appropriate to look as an evidentiary matter to the employer's own understanding of the severity of the hazards to which its employees are exposed. Moreover, if an employer were to terminate a safety measure that otherwise established hazard recognition, such as the voluntary glove program in this case, it would nevertheless be held liable for failing to take precautions that a reasonable person would consider necessary.
n8 Respondent argues that the testimony of its plant manager regarding the practices of manufacturers in the northern Georgia area establishes that gloves normally are not used by the industry that manufactures fiberglass insulation. This evidence, while relevant, is not dispositive in the instant case. As indicated above, employee testimony as well as Respondent's own practices establish recognition of the hazard.
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Nor is our conclusion concerning recognition of a fiberglass hazard altered by the testimony of Respondent's qualified witnesses experienced in the industry. Although Respondent's plant nurse and and industrial hygienist considered the hazards to be at most minor, the plant nurse did not state on what she based her opinion or what factors she considered in formulating her opinion. Furthermore, her opinion is inconsistent with her recommendation that one employee who complained of irritation contact a physician. Similarly, the hygienist's opinion is unsupported with the exception of his allusion to the "hardening" process as a substitute for the wearing of gloves. However, not only did the witness admit that fiberglass is both an irritation and infection hazard, but his testimony establishes, as the judge properly found, that the hardening condition is not a sufficient substitute for the wearing of gloves since hardening not only develops gradually but is also nonpermanent in nature such that it will not protect against intermittent contact with fiberglass. n9 Accordingly, contrary to Respondent's [*20] assertions, the testimony of its witnesses supports the existence of hazards associated with the handling of fiberglass. In any event, to the the extent that Respondent's witnesses stated that fiberglass does not present hazards to employees of a nature sufficient to warrant protective measures, we conclude that these opinions should not be credited or accorded weight in this case. See Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, p. 10, 6 BNA OSHC 1796, 1800, 1978 CCH OSHD P22,874 at 27,668 (No. 13964, 1978).
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n9 We also note that Respondent put into evidence a paper entitled "The Cutaneous and Ocular Effects Resulting From Worker Exposure to Fibrous Glass," by Dr. James Lucas of the National Institute for Occupational Safety and Health. Dr. Lucas is described by Respondent's hygienist as an authority on this subject. We will not discuss this exhibit but note it supports Judge Cutler's conclusion regarding the inadequacy of the "hardening" process as a long-term preventive measure for irritation. Moreover, the paper refers to a study conducted at Respondent's plant in Newark, Ohio. The results of this study, which were published in 1942, plainly demonstrate that fiberglass used in Respondent's processes is a skin irritant.
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Finally, we reject Respondent's argument that the judge erroneously failed to consider the lack of burn injuries caused by hot spots. The judge properly noted the case law in support of his conclusion that the Act does not prescribe any specific injury rate as a prerequisite for requiring the use of protective equipment. Therefore, it is irrelevant whether and to what extent Respondent's employees actually wear gloves in the performance of their work; n10 as previously discussed, it is sufficient for establishing hazard recognition that Respondent's employees prefer to work with gloves and that, to a limited extent, gloves are made available to them.
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n10 However, we do not agree with the judge's conclusion that most employees actually do wear gloves. While the estimate of Respondent's plant manager concerning the number of employees who do not wish to wear gloves conversely demonstrates that a substantial percentage of employees do wish to wear gloves, it does not, as the judge appears to have concluded, demonstrate any percentage who actually wear gloves. Similarly, the testimony of Complainant's hygienist, on which the judge also relies, reflects only employee statements as to preference. And while it may be true, as the judge indicates, that two employees testified that they had worn gloves which protected against hot spots, the hygienist's observations of the work areas are not conclusive as to the number of employees who were wearing gloves in relation to the total number of employees working at the time of the inspection. See note 5 supra.
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For the reasons given, we conclude that hazards were shown to exist in the bagging and dyken areas warranting the use of protective equipment. As previously indicated, Judge Cutler specifically determined that gloves are required to be worn to protect against the hazard of contact with hot glass in these areas. To this extent we affirm his decision. However, he did not expressly determine that the hazards of irritation and infection are sufficient in themselves to require gloves to be worn; rather, his decision suggests a lesser requirement that Respondent simply "provide" properly maintained and sanitary gloves to protect against the latter hazards. The record shows that these hazards coexist in Respondent's production operations together with the hazard of burns from contact with hot glass. We therefore do not think it proper to separate the hazards and determine as did the judge that a lesser requirement exists with respect to the irritation and infection hazards. We therefore modify his decision so as to find that gloves are required to be worn as protection from all hazards encountered in [*23] the bagging and dyken areas. n11 As modified his decision is affirmed.
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n11 Therefore, we need not consider as did the judge whether Respondent failed to discharge its duty to ensure the provision of gloves maintained in a sanitary and reliable condition. The record shows, however, that gloves furnished by Respondent as part of its program were not always properly maintained free of defects and in a sanitary condition. We emphasize that Respondent is required to ensure not only that its employees use gloves but that the gloves they do use are properly maintained.
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So ORDERED.