EREL CORPORATION

OSHRC Docket No. 76-733

Occupational Safety and Health Review Commission

April 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Assoc. Regional Solictior

Norman H. Fickett, Resident Mgr., Erel Corporation, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance [*2] of an unreviewed Judge's decision Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

James H. Barkley, for the Complainant

Norman H. Fickett, (Resident Manager), for the Respondent

Carlson, Judge, OSHRC: This is a proceeding brought under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.), hereinafter referred to as "the Act". By a citation issued January 27, 1976, the complainant Secretary of Labor alleges that as a result of an inspection conducted January 14, 1976, respondent was determined to have violated Section 5(a)(2) of the Act through failure to comply with a number of safety standards published in 29 CFR, [*3] Part 1910. Twelve items of nonserious violation were set out in the citation, but only item number 3 was contested by respondent. The citation described the contested violation thusly:

Item

no.

Standard Allegedly Violated

Description of Alleged Violation

3

29 CFR 1910.94(c)(3)(i)(b)

Combustible paper was used as floor

covering for the spray booth near the

south end of Building 515.

Complainant proposed a penalty of $60 for item 3. Hearing was held at Salt Lake City, Utah on May 3, 1976. Jurisdiction of the Commission, in terms of respondent's having employees and being engaged in a business affecting commerce, was not in dispute. No employees nor representative thereof at any time claimed party status. Respondent submitted a short post-hearing brief; complainant made no post-hearing submissions.

REVIEW OF THE EVIDENCE AND DISCUSSION

The item of alleged violation which was the subject of contest in this case involved a practice carried out by respondent in a large spray paint booth at Hill Air Force Base, Utah. Under contract with the Department of the Air Force, respondent was engaged in a continuing program of repair and maintenance of Air Force [*4] ground support equipment. Respondent performed its services through the use of its own civilian employees. One of respondent's regular functions is to repaint equipment ranging in size from mop buckets to large trailers in the spray-paint booth in question. The booth was furnished by the Air Force under the contract and had been used by respondent since 1973. A single employee paints on a daily basis for an average of about three hours. Flammable paints are used.

The practice to which the complainant objected was the routine use of large sheets of a heavy, combustible paper to cover the concrete floor of the booth. The paper was taped to the floor in order to prevent accumulation of overspray on the concrete floor surface. The paper was periodically removed and replaced. This practice, complainant maintains, violates the cited standard, 29 CFR 1910.94(c)(3)(i)(b), which provides:

In no case shall combustible material be used in the construction of a spray booth and supply or exhaust duct connected to it.

Specifically, the compliance officer believed that the use of the paper was contrary to the standard and constituted a fire hazard. According to his testimony, overspray [*5] residues collected on the paper, together with the combustible character of the paper itself, presented a danger of ignition and subsequent fire which could result in injury to the painter (Tr. 20, 25, 28).

Respondent's defenses were severalfold. First, it was urged that the cited standard is by its own terms inapplicable since it relates to materials used in the construction of spray booths.

Second, it was maintained that it was difficult to remove spray residues from the concrete floor by scraping or similar methods, and that the use of a removable paper covering to facilitate swift and simple removal of flammable residues was impliedly encouraged by 29 CFR 1910.107(g)(2), which provides:

29 CFR 1910.107 - Spray finishing using flammable and combustible materials. (g) Operations and maintenance. - (2) Cleaning. All spraying areas shall be kept as free from the accumulation of deposits of combustible residues as practical, with cleaning conducted daily if necessary. Scrapers, spuds, or other such tools used for cleaning purposes shall be of nonsparking material.

Third, respondent asserts that safety policy governing performance of its duties in the painting area [*6] are governed by a specific Air Force Regulation - AFR 127-101 - which was made applicable by the following language in its contract:

J-2 SAFETY AND ACCIDENT PREVENTION (69 JUN)

In performing any work under this contract on premises which are under the direct control of the Government, the Contractor shall (i) conform to all safety rules and requirements prescribed in Air Force Manual 127-101, as in effect on the date of this contract and (ii) take such additional precautions as the Contracting Officer may reasonably require for safety and accident prevention purposes. The Contractor agrees to take all reasonable steps and precautions to prevent accidents and preserve the life and health of the Contractor and Government personnel performing or in any way coming in contact with the performance of this contract on such premises. Any violation of such rules and requirements, unless promptly corrected, as directed by the Contracting Officer, shall be grounds for termination of this contract in accordance with the default provisions hereof. [Page 27 of respondent's original contract, resp. ex. 1.]

Respondent points out that Air Force Regulation 127-101 n1 in paragraph 3-20 c.(1), page [*7] 3-24, specifically authorizes the practice of which complainant complains. That subparagraph, which is a part of a paragraph dealing generally with paint-shop safety, provides:

c. Spray Booths. Spray booths will be used in all paint and dope shops to localize the fire and explosion hazards. The walls of these booths will be made of a fire-resistant material that can be easibly and frequently cleaned. All spray booths will be installed to conform to the Fire Protection Association Standards.

(1) Walls. Walls and floors of spray booths may be covered with paper to protect them from paint deposits. This paper will be removed and destroyed when contaminated. Oil, or other similar materials that can be easily washed down, may be used to protect the walls and floors of spray booths from paint accumulation. Protective paper wall coatings will not be used for dry or dusty painting substances that can be removed from the booths by adequate ventilation. (Emphasis supplied.)

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n1 Formerly Air Force Manual 127-101.

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By pleading and pursuing a defense based upon the alleged binding effect of a Regulation of a military department of the United States, respondent's lay representative was deemed by this judge to have raised a colorable claim of exemption from complainant's standards under provision of Section 4(b)(1) of the Act. Section 4(b)(1) [29 U.S.C. 653(b)(1)] provides:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

Owing to the exemptory character of 4(b)(1), the Commission has held that employers must bear the burden of establishing its applicability to a given activity n2. Moreover, Commission precedent dictates that a claim of exemption from OSHA jurisdiction must be founded upon a showing that the other federal agency acted under authority of ". . . enabling legislation the purpose of which was to affect occupational safety and health". n3

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n2 Secretary v. Idaho Travertine Corp., Docket No. 1134 (Sept. 30, 1975); Secretary v. River Terminal Railway Co., Docket No. 4419 (Dec. 12, 1975).

n3 Secretary v. Gearhart-Owen Industries, Inc., Docket No. 4263 (Febr. 21, 1975); see also Secretary v. Fineberg Packing Co., 7 OSAHRC 405 (1974).

[*9]

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In the instant case respondent has failed to establish any Department of the Air Force preemption of the safety responsibility for contractor's employees. Such failure was pointed out to respondent's representative during the hearing, and respondent was granted leave, with consent of complainant, to submit the full text of the contract and Air Force Regulation subsequent to the hearing and to bring to the attention of the judge ". . . any federal statutes which would authorize or empower the Air Force to promulgate regulations of such a scope that they would provide safety protection to workers of an Air Force contractor in such a way as to fall within the purview of 4(b)(1)". (Tr. 59-60.) Counsel for complainant stipulated to the authenticity of the contract document. The Air Force Regulation relied upon, as well as the contract (both quite voluminous), were promptly submitted by respondent after the hearing, and those parts deemed to have any possible materiality were received in evidence or officially noticed by the undersigned n4

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n4 See order issued June 8, 1976, document J-4.

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All matters submitted at and after hearing have been duly considered and must be judged to fall far short of establishing an Air Force preemption of authority for the health and safety of the employees of its civilian service contractors. At most what was shown was a provision in respondent's contract which facially requires the respondent to comply with AFR 127-101, "Ground Accident Safety Handbook". At no place in the present record, however, has respondent or any other source drawn this judge's attention to any statute which would purport to grant the Air Force safety authority over a contractor's civilian employees, thus bringing 4(b)(1) into play. On the contrary, AFR 127-101, on which respondent relies, declares (introductory page i) as follows:

The requirements in this regulation are consistent with standards promulgated under the Occupational Safety and Health Act (see AFR 127-12).

As here pertinent, AFR 127-12, in turn, provides at paragraphs 3 and 28 n5:

3. Applicability of OSHA to Air Force Contractors: Air Force [*11] contractors engaged in a business affecting interstate commerce are covered by the provisions of OSHA. Policy guidance concerning government and contractor responsibilities is contained in the Armed Services Procurement Regulations (ASPR). . . .

28. Inspections of Air Force Contractors. Air Force contractors are governed by Public Law 91-596 (OSHA) and are subject to inspection by DOL whether the contractor is operating on base or off base. Resolution of DOL citations for violations of OSHA safety and health standards are a contractor responsibility. Exceptions to this policy may occur when government property, material, maintenance facilities, or equipment contractually provided to the contractor by the Air Force are the basis for the cited violations. Such cases will be individually considered through appropriate Air Force procurement channels as provided by the Armed Services Procurement Regulations (ASPR).

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n5 AFR 127-12, effective February 14, 1973.

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It is thus manifest that the Department of the Air Force [*12] has not only declined to assert any sort of direct, independent safety jurisdiction over employees of its contractor, but has affirmatively recognized such jurisdiction to reside in the complainant Secretary of Labor. (It is to be noted that there is absolutely nothing in the present record which would indicate that the instant citation was treated by the Air Force as an "exception" of the type mentioned in paragraph 28 of the above-cited regulation.)

Beyond any question of the applicability of Section 4(b)(1), respondent suggests that it should be shielded from the enforcement of OSHA standards because its contract compels conformity to Air Force safety regulations which as written - or at least as interpreted by Air Force safety personnel - do in fact differ in content from OSHA standards. As an illustration, respondent points to its present dilemma in which it uses paper to catch pain overspray as authorized by Air Force regulation, only to be charged by an enforcement official of complainant for doing that very thing. Whatever else may be said of it, the argument cannot serve as a defense which would bar consideration of complainant's citation on the merits. Since respondent [*13] has failed to demonstrate that 4(b)(1) applies, the enforcement powers bestowed by the Congress upon the Secretary of Labor and his agents must be held to have primacy where the safety and health of respondent's employees are concerned. No mere contractual provisions, including those found in a contract with another federal agency or department, can be found to derogate from the Secretary's statutory authority.

We now turn to a consideration of whether the evidence shows a violation of the specific standard charged. As earlier mentioned, respondent claims that 29 CFR 1910.94(c)(3)(i)(b) has no application to its practice of putting paper on the floor since the paper cannot be considered to "be used in the construction" of the spray booth. Complainant argues that while the standard refers to combustible materials used in booth construction, special circumstances in this case bring the floor paper within its purview. Specifically, counsel suggests that since it was difficult to remove overspray from the concrete floor of the booth and the paper was routinely used, it may be presumed that the booth was designed for use with floor paper and consequently the paper "becomes a part [*14] of the construction".

I do not find the argument persuasive. There is no evidence to support complainant's conjecture about the designer's intentions, and respondent specifically denies that the floor papering technique was recommended by the manufacturer (Tr. 66-67). To adopt complainant's view would require that the plain language of the standard be strained to the point of distortion. Clearly, the only "combustible materials" referred to in 29 CFR 1910.94(c)(3)(i)(b) are those utilized in the fabrication of the permanent booth structure. It does not apply to paper taped to the floor as an expedient to aid in the removal of paint overspray.

Therefore, although respondent's use of paper on the floor may represent a questionable practice from a safety standpoint, it is not forbidden by the cited standard, and respondent cannot be held in violation n6. In view of this conclusion respondent's further defense that 29 CFR 1910.107(g)(2) implies authorization of use of overspray paper is rendered moot and will not be considered n7

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n6 It is to be noted that complainant originally considered citing 29 CFR 1910.107(b)(3), relating to flammable floors, but believed the scope thereof too limited to fit the facts (Tr. 30-31).

n7 Late in the hearing complainant moved to amend the citation to alternatively allege violation of this same standard on the basis that the evidence showed the presence of excessive accumulations of spray residues on the overspray paper. The motion was denied on the grounds that the amendment sought to charge a hazard wholly unrelated to the matter of the use of combustible paper - the practice which prompted the original charge. (Tr. 62-63, 67-70).

[*15]

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FINDINGS OF FACT

Upon the entire record, and pursuant to the foregoing discussion, the following findings of fact are entered:

1. At the times material hereto respondent was engaged in performing, with civilian employees, a contract with the Department of the Air Force for maintenance and repair of ground support equipment at Hill Air Force Base, Utah.

2. One of respondent's employees regularly worked in a spray paint booth, furnished by the Air Force, where he spray painted equipment with materials which left combustible overspray residues.

3. Respondent's routine practice was to cover the floor of the booth with combustible paper, applied by means of tape, which was then periodically removed. Such practice was followed to facilitate disposal of overspray residues.

CONCLUSIONS OF LAW

It is concluded:

1. That the exemption afforded by Section 4(b)(1) of the Act has no application herein since it was not established that the Department of the Air Force has promulgated safety and health regulations, under color of statute or otherwise, which purport to cover respondent's civilian employees [*16] in a manner preemptive of complainant Secretary of Labor's authority.

2. That violation of 29 CFR 1910.94(c)(3)(i)(b) is not established by the evidence because such standard does not forbid the use of paper to facilitate removal of paint overspray.

ORDER

In accordance with the foregoing, the citation and accompanying notification of proposed penalty are hereby ORDERED vacated.

July 8, 1976

John A. Carlson, Judge, OSHRC