Docket No. 78-729

X-TYAL INTERNATIONAL CORPORATION

OSHRC Docket No. 78-729

Occupational Safety and Health Review Commission

April 21, 1981

[*1]

Before BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Counsel for Regional Litigation, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Michael V. Shebanie, Pres, X-Tyal International Corporation, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Jerome C. Ditore is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). In his decision, Judge Ditore held that the failure of Respondent, X-Tyal International Corporation, to provide gloves or barrier creams to employees who worked with methyl chloroformbased glue did not violate the standard at 29 C.F.R. § 1910.132(a). We affirm that holding, but for reasons that differ somewhat from those assigned by the judge.

X-Tyal International Corporation fabricates rubber assault boats for the United States government at its manufacturing facility in Hudson, New York. In response to an employee complaint, OSHA industrial hygienist Gerald Schwartz inspected X-Tyal's worksite on January 16 and 27, 1978. n1 The Secretary subsequently issued citations alleging, among other [*2] things, that X-Tyal committed an other than serious violation of the Act by failing to comply with the standard at 29 C.F.R. § 1910.132(a). n2 The Secretary proposed no penalty for this alleged violation.

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n1 The nature of the employee complaint was not disclosed.

n2 The cited standard provides:

§ 1910.132 General requirements.

(a) Application. 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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Commissioner Cleary granted the Secretary's petition for review of the judge's decision vacating this item. The Secretary's [*3] petition presented the following issues:

1. Whether the judge erred by requiring the Secretary to prove that it was the practice in the industry to require the use of protective gloves or barrier creams; and,

2. Whether the judge erred by finding that the use of protective gloves or barrier creams was infeasible.

Respondent's employees, called "joiners," use brushes to apply glue to strips of rubber. The glued strips are then joined to other pieces of rubber, and the finished product in this assembly process is a rubber assault boat. The boats are used by the United States government to transport personnel to shore from ships. Although Respondent's employees are supplied with brushes to apply the glue to the rubber strips, the employees must use their hands to join the pieces of glued rubber together. The employees' hands become black and dirty from physical contact with the glue. The Secretary contends that the methyl chloroform-based glue caused dermatitis on Respondent's employees' hands. n3

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n3 The compliance officer testified that the synonym for methyl chloroform is "1, 1, 1-trichlorethlane." However, the correct desigantion is 1, 1, 1-trichloroethane. II Patty, Industrial Hygiene and Toxicology 1287 (1963).

[*4]

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Industrial hygienist Gerald Schwartz testified that during the inspection he observed Respondent's employees working with bare hands gluing parts of the rubber assault boats together. Schwartz also saw Respondent's employees using brushes with handles to apply the glue to the rubber strips before the strips were glued together by hand. Schwartz maintained that almost without exception Respondent's employees' hands were rough, scaly, red, and discolored from using the black, methyl chloroform-based glue. Schwartz stated that he observed the hands of about fifteen employees. He explained that the glue dries out the skin, causing dehydration and dermatitis. He stated that the citation was issued because Respondent was not protecting its employees against the effects of using the methyl chloroform-based glue. In short, Respondent failed to provide its employees with protective gloves or barrier creams to guard against dermatitis. Schwartz stated that he observed no gloves or creams in Respondent's plant.

Schwartz testified that Linda Bicgam, one of Respondent's employees, informed him that her hands [*5] were always dry and cracked. She told Schwartz that she was never given gloves or barrier creams. Schwartz stated that other employees informed him that they were not bothered by the glue, while still others stated the glue only bothered them when they first used it. Some employees told Schwartz their hands had been red, chapped, and dry since they started working for Respondent.

According to Schwartz, X-Tyal's facilities engineer John Kicara stated that Respondent's employees could not wear gloves and still perform their work, since gluing the parts together requires the employees to use their fingers. Schwartz was further informed by kicara that if the employees used a barrier cream, the cream would combine with the glue, causing the glue not to stick and eventually causing the assault boats to leak.

Schwartz testified that there are protective gloves available which are made of vinyl, cloth, or leather and can be made resistant to methyl chloroform. He also stated that protection could be afforded by barrier creams, which, when applied to the hands, dry and create a film impervious to solvents. The compliance officer testified that he wrote to nine barrier cream manufacturers [*6] for information regarding protection for employees' hands from methyl chloroform. Four of the companies recommended one or more creams to guard Respondent's employees' hands against the adverse effects of methyl chloroform. n4

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n4 Although the judge viewed the manufacturers' responses as hearsay, incapable of cross-examination, he admitted the letters into evidence but stated that he would give them no weight.

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The compliance officer related his experience "quite a long time ago" with the shoe-making business where employees successfully used gloves or creams to guard against the adverse effects of "gum tape." The compliance officer acknowledged, however, that the employees in the shoe-making business were using natural rubber, not synthetic rubber as used by X-Tyal; that in the shoe factory the operation was automated, while here Respondent's employees worked by hand; and that the employees in the shoe factory were trying to protect themselves from the chemical "toluol," not methyl chloroform.

The compliance officer [*7] did not check other rubber companies to determine if those companies used creams or gloves to protect their employees from methyl chloroform, nor did he ask Respondent's employees whether they informed Respondent of their alleged skin problems. Additionally, the compliance officer did not ask Respondent's employees whether they could perform their work while using gloves or creams. In fact, in response to questions by the judge, the compliance officer admitted that he did not know whether Respondent's employees could perform their jobs if they used gloves or barrier creams:

Q. Did you ask any of the employees whether they could do their particular job if they wore gloves, or if they wore a barrier cream, or if they applied a barrier cream to their hands?

A. No, I did not.

Q. So, as you sit here, do you know if they could perform their job or they could not perform their job, the particular job they were doing to make rubber boats?

A. I did not make that determination and apparently nobody ever tried to wear rubber gloves.

Michael V. Shebanie, Respondent's president, testified that barrier creams or gloves would prevent the employees from performing their jobs. If an employee [*8] wore gloves, the glue would stick to the gloves, causing the gloves themselves to stick to the rubber strips when the employee put the glued pieces together by hand, he asserted. Shebanie noted that he had been in the rubber boat business since 1963 and knew from experience that employees of the three or four rubber companies with which he was familiar did not use gloves or creams. Shebanie stated that he has worked with methyl chloroform for fifteen years and never contracted dermatitis. He asserted that he was not aware that methyl chloroform causes dermatitis. Shebanie testified that when his hands first became black and dirty from working with the glue he tried using "a pair of gloves that housewives put on to wash dishes," but the gloves "just deteriorated."

Respondent has contacted companies that make gloves that will resist deterioration, but these companies, according to Shebanie, have told Respondent that it is Respondent's "problem to figure out how to put the rubber down with gloves on if the cement gets on the gloves, which it has to." Shebanie stated that he checked with Uniroyal and Rubber Fabricators and was told neither of these rubber companies used gloves. [*9] These companies told Respondent "there is nothing we can do," Shebanie testified. Shebanie further testified that Dow Chemical Company has a glove which resists deterioration but his employees cannot work with it. He acknowledged, however, that his employees had not tried to work with these gloves, and Dow was sending Respondent some "supplies" and Shebanie was "going to try it." He also admitted that he had not recently inquired about gloves made of materials other than rubber or plastic.

With respect to barrier creams as protection against the effects of methyl chloroform, Shebanie testified that cream on an employee's hands can mix with the glue, causing the glue not to stick and the boat eventually to leak. Shebanie stated that he tried barrier cream fifteen years ago when he first worked in the rubber boat business, but "it did not work because the stuff would not stick together, and we just had to give it up." Shebanie has not tried to use a barrier cream at his company. Respondent contacted Dow Chemical Company about six weeks before the hearing and a representative of Dow came to Respondent's plant and made tests a week before the hearing. However, Dow Chemical Company [*10] advised Respondent, according to Shebanie, that "[i]f any [barrier cream] gets on the rubber it will not stick. . . ."

Shebanie did not make inquiry of any of the barrier cream manufacturers contacted by the compliance officer. "If Dow Chemical can't come up with something, nobody can," Shebanie stated. Furthermore, Shebanie testified, none of the rubber companies use barrier creams or gloves: "Uniroyal, Goodrich, Goodyear and the big companies. And to my knowledge, none of them use gloves or barrier cream. This is all I can say. The whole industry does not use it." However, he admitted that he was unable to ascertain the work practices of all the large rubber companies.

Finally, Shebanie testified that three out of a total of 152 of Respondent's employees experienced dermatitis during the six months immediately preceding the hearing. Shebanie stated that the three cases of employee dermatitis occurred during the month of August, which led Shebanie to believe that the dermatitis was caused by the hot weather, not the glue. A hospital in Hudson, N.Y., has records of the three cases of dermatitis, Shebanie testified. The three employees with dermatitis were off work "for a [*11] couple of days," Shebanie stated, but were back at work as of the date of the hearing.

III

Relying on American Airlines, Inc. v. Secretary of Labor, 578 F.2d 38 (2d Cir. 1978), Judge Ditore stated that, to avoid impermissible vagueness, section 1910.132(a) must be construed so that the standard of conduct it imposes is "what a reasonable man familiar with the conditions of the specific industry (rubber boat) would do. . . ." That is, "What, if any, feasible protective measures would a reasonable man require?" The judge concluded that the Secretary failed to meet the burden of proof mandated by this test. The Secretary did succeed in establishing that some of X-Tyal's employees "could be exposed to a dermatitis condition of the hands." However, industrial hygienist Schwartz, the Secretary's only witness, did not know whether the protective measures sought by the Secretary, gloves or barrier creams, were used in the rubber boat industry or whether their use in the rubber boat industry was feasible. Thus, the Secretary failed to show that a reasonable man familiar with the rubber boat industry would require employees to use gloves or barrier creams.

Additionally, Judge Ditore [*12] ruled that the testimony of X-Tyal's president established that the rubber boat industry does not provide or require the use of gloves or barrier creams and that their use in this industry is not feasible. Therefore, the judge vacated this item of the citation.

The Secretary contends on review that the judge erred by applying an "overly restrictive" reasonable person test. The Secretary claims that under Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 233 (5th Cir. 1974), it was not necessary for the judge to examine industry practice in the circumstances of this case. Rather, the Secretary argues that since the hazard was readily apparent, the judge should have applied the "external objective" test under Ryder and Fleming Foods of Nebraska, Inc., 77 OSAHRC 196/C12, 6 BNA OSHC 1233, 1978 CCH OSHD P22,889 (No. 14484, 1977), of "whether or not a reasonable person would recognize a hazard." The Secretary points to judges' decisions in Farrar Corp., 78 OSAHRC 106/C7, 7 BNA OSHC 1193, 1979 CCH OSHD P23,252 (Nos. 78-190 & 78-503, 1978); B.F. Goodrich Co., 78 OSAHRC 92/F4, 6 BNA OSHC 2162, 1978 CCH OSHD P23,164 (No. 78-726, 1978); and Owens Corning Fiberglas Corp., [*13] 79 OSAHRC 26/D6, 1977-78 CCH OSHD P21,896 (No. 76-4990, 1977), as further support for the proposition that "industry practice" is not controlling in this case. The Secretary concludes that where a hazard is "readily apparent," "obvious," "in plain view," "casily detectable," and "readily cognizable," a reasonablle person test, not a reasonable person in the specific industry test, should be applied in determining the existence of a hazard under the cited standard. The Secretary distinguishes the court of appeals decision in American Airlines on which the judge relied, on the ground that industry practice may be examined only when an employer has been cited under an "extremely vague regulation," n5 as in American Airlines, since the employer ordinarily would not have had adequate notice of its duties under the Act but for reference to the notice gleaned from the practice common in the employer's industry.

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n5 The "extremely vague regulation" cited by the Secretary in American Airlines, supra, is the same regulation cited by the Secretary in this case.

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The Secretary maintains that here the employer's responsibilities were obvious because the dermatitis condition was in plain view and three employees had consulted physicians and missed work because of dermatitis. He urges that an industry cannot ignore obvious hazards.

The Secretary also contends that the evidence does not support the judge's finding that use of gloves or barrier creams was not feasible. He argues that the testimony of the industrial hygienist and the letters from barrier cream manufacturers demonstrate the wide availability of gloves and barrier creams to protect employees' hands from harmful solvents. He faults the judge for giving no weight to the letters.

The Secretary argues that X-Tyal did not refute his proof as to feasibility. The Secretary notes that the only time X-Tyal's witness, its president Michael Shebanie, had tried to use gloves or barrier creams was fifteen years earlier and he was not familiar with developments in these products since then. The gloves that he had used were household dishwashing gloves; he had not tried industrial gloves of various materials, such as vinyl, cloth, or leather. [*15] Indeed, he had not yet tried gloves which recently had been ordered from Dow Chemical. Moreover, he did not establish that any of the numerous barrier creams available were not suitable. A claim of impossibility should not be sustained when possible means of abatement have not been tried, the Secretary argues.

The Secretary also faults the explanations given by Shebanie of why gloves and barrier creams could not be used. X-Tyal's employees are able to glue rubber strips together while working bare-handed even though the glue makes their hands sticky; therefore, reasons the Secretary, they should be able to perform the same work while wearing gloves even though the gloves became sticky. Additionally, barrier creams, if used, would not mix with the glue and prevent it from adhering, as Shebanie contended, because barrier creams dry on the users' hands and create an impervious film which should not mix with the solvent in the glue.

The Secretary also attacks Shebanie's testimony that no rubber company uses gloves or barrier creams. He points out that Shebanie did not have personal knowledge of the practices of other rubber companies and that he admitted he was not privy to information [*16] about the work methods of certain companies, such as B.F. Goodrich. Moreover, the Secretary notes that the administrative law judge's decision in B.F. Goodrich Co., 78 OSAHRC 92/F4, 6 BNA OSHC 2162, 1978 CCH OSHD P23,164 (No. 78-726, 1978), appeal dismissed, No. 78-3655 (6th Cir. June 19, 1979), recounts that the company there provided protective gloves and barrier creams to employees who glued together rubber pieces to make rubber life boats and vests. The Secretary argues that the feasibility of gloves and barrier creams is demonstrated by that case, although he notes that the solvent contained in the glue used there was toluene rather than methyl chloroform, which X-Tyal uses.

X-Tyal's main argument is that the use of gloves or barrier cleams would make its work impossible. It contends, "If the use of gloves is imposed upon us as a requirement to continue operation, we may as well go out of business right now." It argues that the assembling of its rubber boats requires extreme hand dexterity, and workers using gloves cannot perform these joining techniques, since the adhesive or the fabric is always sticking to their gloves. X-Tyal also avers that it and other fabricators [*17] have tried many barrier creams and cannot locate one which does not affect adhesion.

Although the test applied by the judge to determine whether X-Tyal violated section 1910.132(a) was incorrect, we agree with his conclusion that the Secretary failed to prove that X-Tyal violated the standard. The judge decided the case prior to the issuance of the Commission's decisions in S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979), and Owens Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD P23,509 (No. 76-4990, 1979), appeal docketed, No. 79-2516 (5th Cir. June 26, 1979). Under the latter case, the test for finding a violation of section 1910.132(a) is "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." The decision adds that "industry custom and practice . . . are not necessarily dispositive." 7 BNA OSHC at 1295, 1979 CCH OSHD P23,509 at p. 28,491; accord, [*18] OSCO Industrics, Inc., 80 OSAHRC , 8 BNA OSHC 1799, 1980 CCH OSHD P24,689 (No. 76-2383, 1980); General Electric Co., 80 OSAHRC 9/B9, 7 BNA OSHC 2183, 1980 CCH OSHD P24,268 (No. 15037, 1980).

Although the judge stated his test in terms of "a reasonable man familiar with the conditions of the specific industry," he appeared o equate this with industry practice and to vacate because the Secretary failed to prove that employees of other rubber boat companies used gloves or barrier creams to protect their hands from the effects of glue. He appeared to find that the view of the industrial hygienist and of some employees that the glue presented a hazard to employees' hands was not relevant in determining whether a reasonable person would recognize a hazard warranting the use of protective equipment. This was incorrect. See Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979); General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453 (1st Cir. 1979).

The test applied by the judge also was flawed in that its focus was on whether a reasonable man would require the protective [*19] measures that the Secretary thought were necessary. The judge's test was not aimed at recognition of a hazard but rather at recognition of the need for particular protective measures. Thus, his test exceeded what is required from the Secretary under S & H Riggers and Owens Corning Fiberglas.

Applying those two cases, we find that a reasonable person familiar with the industry would recognize that the methyl chloroform glue was hazardous to employees' hands. As the industrial hygienist testified, methyl chloroform is known to dry out the skin and cause dermatitis. Many of X-Tyal's employees who worked with the glue suffered dermatitis continually. It is apparent that this was a common problem, despite Shebanie's testimony that he was not aware that methyl chloroform glue causes dermatitis. Thus, the judge's determination that the Secretary failed to meet the reasonable person test is reversed.

The judge also held that the use of gloves or barrier creams by X-Tyal's employees was not feasible. Acting Chairman Barnako and Commissioner Cleary agree with the judge that the Secretary failed to carry his burden of proof on the issue of whether personal protective equipment [*20] was required by the standard at 29 C.F.R. § 1910.132(a) in these circumstances, but they differ in their respective approaches leading to this conclusion. Their differences spring from S & H Riggers & Erectors, Inc., supra, where the Commission, with Acting Chairman Barnako disagreeing, reassigned the burdens of the parties such that the Secretary is not required to prove the feasibility and likely utility of abatement measures in order to establish a violation of the personal protective equipment standard at 29 C.F.R. § 1926.28(a), which is the construction industry analogue of the standard under consideration here, 29 C.F.R. § 1910.132(a).

S & H Riggers articulated a requirement, however, that the protective equipment specified by the Secretary be appropriate. Because the standard in issue there, section 1926.28(a), is written in broad terms, the Commission placed on the Secretary the burden of, among other things, identifying the appropriate form of personal protective equipment. Subsequently, in Turner Welding & Erection Co., 80 OSAHRC 62/A2, 8 BNA OSHC 1561, 1980 CCH OSHD P24,553 (No. 16235, 1980), the Commission held that the Secretary's prima facie case [*21] establishing a violation of section 1926.28(a) could be rebutted if the record showed that the identified form of personal protective equipment was inappropriate under the cited conditions. Since section 1910.132(a) is closely analogous to section 1926.28(a) and similarly is written in broad terms, Commissioner Cleary would require the Secrecary to identify the appropriate form of personal protective equipment in order to sustain a citation under section 1910.132(a). Additionally, he would apply the Turner Welding analysis and hold that the Secretary's prima facie case may be rebutted if the record shows that the identified personal protective equipment is inappropriate.

In this case Commissioner Cleary finds that the record demonstrates the identified personal protective equipment is inappropriate. The Secretary presented evidence that there are a number of types of gloves and barrier creams available to protect employees' hands from methyl chloroform-based glue. He also showed that some employees engaged in shoe manufacturing use gloves or barrier creams to protect their hands from gum tape. However, in the face of Respondent's claims, which were first raised during the [*22] inspection, that the employees could not adequately perform their jobs if they were required to wear gloves or use barrier creams, the Secretary produced no evidence to the contrary. In fact, when questioned by the judge, the Secretary's industrial hygienist testified that he did not know whether the employees could do their jobs if they were required to wear gloves or use barrier creams.

The letters the hygienist solicited from various makers of barrier creams are also unhelpful to the Secretary. While some of the letters recommend specific products, none of them provides assurance that the glue will adhere if their product is used.

Additionally, the administrative law judge's decision in B. F. Goodrich, supra, n6 which the Secretary raises for the first time in his brief on review, is of little consequence. It provides some evidence that employees of B. F. Goodrich, who made life boats and vests, were able to use gloves or barrier creams and still perform their work. However, they were using toluene-based glue rather than methyl chloroform-based glue. Also, the judge's decision does not disclose whether the rubber used by B. F. Goodrich was natural or synthetic or [*23] to what extent the work was done manually. Thus, the B. F. Goodrich case does not show that X-Tyal's employees could perform their work while using gloves or barrier creams. Moreover, it would be improper to rely on B. F. Goodrich as proof of appropriateness of gloves or barrier creams, since the case was not introduced at the trial and X-Tyal had no opportunity to refute its application here. The practices of B. F. Goodrich might have had greater probative value had evidence about them been presented at trial by a knowledgeable witness.

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n6 The judge's decision in B. F. Goodrich does not constitute precedent binding on the Commission, because the decision was not reviewed by the full Commission. See Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

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While there is scant evidence to show that X-Tyal's employees could perform their jobs while using gloves or barrier creams, there is substantial evidence to the contrary. The Secretary's own witness [*24] testified that he was told by X-Tyal's facilities engineer that employees cannot wear gloves and do their jobs and that they cannot use barrier creams because creams affect the rubber. X-Tyal's president testified that the work cannot be done by someone wearing gloves and that barrier creams prevent adhesion of the rubber. He based his testimony on his fifteen years of experience in the rubber boat business and his knowledge of practice in that industry gained from his communications with other rubber boat companies. He also had tried to use gloves and barrier creams early in his career in the rubber boat business and found they were unworkable. He did not have knowledge of the work practices of every rubber company or the latest development of every glove or barrier cream maker. But he did know of specific instances in which gloves and barrier creams had been tried and he knew the practices of at least some other rubber boat companies, which is more probative evidence on the issue of appropriateness of gloves or barrier creams than any evidence presented by the Secretary.

The Secretary argues that, since the employees can work with hands sticky from glue, they should be able [*25] to do the work while wearing sticky gloves. He also contends that, since barrier creams dry when applied to the employees' hands, the creams should not mix with the glue. These arguments have no support in the record. All the evidence on point indicates that the employees could not perform their jobs while wearing sticky gloves. Similarly, the evidence that barrier creams would mix with glue and interfere with adhesion is uncontradicted.

Since there is no evidence showing that X-Tyal's employees could use gloves or barrier creams and still perform their work and the evidence to the contrary is substantial, Commissioner Cleary finds the personal protective equipment in issue here to be inappropriate and would affirm the judge's vacation of the citation on that basis.

Acting Chairman Barnako disagreed with the Commission's action in S & H Riggers removing from the Secretary the burden of proving the feasibility and likely utility of the method of abatement when proving a violation of the personal protective equipment standard at 29 C.F.R. § 1926.28(a). Rather, he adheres to the position that the Secretary should have the burden of proof on this issue, as he initially set [*26] forth in Frank Briscoe, Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21,162 (No. 7792, 1976); accord, Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979). Since section 1910.132(a), like section 1926.28(a), is a broadly-written personal protective equipment standard, Acting Chairman Barnako would require the Secretary to demonstrate the feasibility of the proposed means of abatement in order to prove a violation of section 1910.132(a) as well.

In this case, Acting Chairman Barnako finds that the Secretary failed to prove that the proposed means of abatement, use of gloves or barrier creams, were feasible. Despite X-Tyal's claim that its employees could not perform their work while using gloves or barrier creams, the Secretary's industrial hygienist made no evaluation of this contention and did not know whether the work could be done if gloves or barrier creams were used. X-Tyal, on the other hand, presented evidence, summarized above, that the work could not be done if gloves or barrier creams were used. Therefore, Acting Chairman Barnako finds the judge was correct in holding that the Secretary failed to prove that use of the proposed [*27] personal protective equipment was feasible.

Although the Commission here affirms the judge's vacation of the citation as to the alleged section 1910.132(a) violation, we are constrained to note that X-Tyal's efforts to protect its employees from the effects of the methyl chloro-form-based glue were unimpressive. X-Tyal did little to keep itself informed of new developments and products in the fields of protective gloves and barrier creams. Respondent appeared to assume that there were no such products available which were suitable for its use merely because it tried and rejected such items some years ago and it did not know of any rubber company that used them. However, despite X-Tyal's lack of diligence in this area, the Secretary's failure to prove all the elements of a violation bars us from sustaining the citation.

Accordingly, the judge's vacation of X-Tyal's alleged violation of 29 C.F.R. § 1910.132(a) is affirmed.

SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The majority achieves its disposition by failing to apply the appropriate legal rule to the facts of this case. Judged under the proper rule, the Respondent has raised matters relevant to the affirmative [*28] defense of impossibility of performance but has failed to satisfy its burden of establishing that defense. Accordingly, the citation should be affirmed.

The Secretary has the burden under the construction industry standard for personal protective equipment to establish employee exposure to a hazardous condition requiring the use of personal protective equipment and to identify the "appropriate form of personal protective equipment to eliminate the hazard." S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1266, 1979 CCH OSHD P23,480 at p. 28,439 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979). The same burden is applicable to alleged violations of the general industry personal protective equipment standard at issue in this case. See Owens Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD P23,509 (No. 76-4990, 1979), appeal filed, No. 79-2516 (5th Cir. June 26, 1979). In Turner Welding & Erection Co., 80 OSAHRC 62/A2, 8 BNA OSHC 1561, 1980 CCH OSHD P24,553 (No. 16235, 1980) the employer established that the form of personal protective equipment identified by the Secretary would not [*29] in fact protect employees from the cited hazard, and thus the employer had rebutted the Secretary's prima facie case. Very simply, the identified form of personal protective equipment in Turner Welding would not abate the hazard. The significance of Turner Welding is that identified equipment that does not actually abate the hazard could not be an "appropriate form of personal protective equipment to eliminate the hazard," within the meaning of S & H Riggers & Erectors, Inc., supra. Turner does not imply that all traditional affirmative defenses under section 5(a)(2) of the Act would be viewed as rebuttal to the Secretary's case, thereby eliminating the requirements that the employer satisfy all elements of those defenses.

Under certain circumstances cognizable by Commission precedent as affirmative defenses, an employer may be excused from literal compliance with the terms of specific standards. The Commission recognizes two impossibility defenses -- impossibility of compliance and impossibility of performance. In order to establish these affirmative defenses an employer must prove that (1) compliance with the requirements of the standard would be functionally [*30] impossible or would preclude performance of required work and (2) alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1144, 1979 CCH OSHD P23,330 at p. 28,227 (No. 15094, 1979) and cases cited therein. The Commission also excuses compliance under the greater hazard defense when (1) the hazards created by compliance exceed those resulting from noncompliance, (2) alternative means of employee protection are unavailable, and (3) a variance application under section 6(d) of the Act would be inappropriate. Id. Neither the greater hazard defense nor the impossibility of performance defense involves claims that under the worksite conditions abatement of the cited hazard could not be achieved by compliance with the cited standard.

To the extent that S & H Riggers & Erectors, Inc., supra, would have required an employer to establish impossibility of compliance as an affirmative defense to an alleged violation of a general or "performance" standard, it has been modified by our subsequent holding in Turner Welding & Erection Co., supra. However, other affirmative defenses not related to the effectiveness [*31] of the identified personal protective equipment in eliminating the cited hazard are unaffected by Turner Welding. In the case before us the employer does not claim that the cited hazard cannot be eliminated by use of gloves or a barrier cream. Rather, X-Tyal claims that use of these devices would prevent it from completing the manufacture of its product. X-Tyal, therefore, has the burden of establishing the elements of the impossibility of performance defense.

The evidence in this case establishes the existence of a hazard requiring the use of personal protective equipment. I join my colleagues' discussion of this element of the Secretary's prima facie case and agree with their rejection of the test applied by the judge. However, X-Tyal's failure to establish that its work would be precluded by employee use of all forms of personal protective equipment and that there were no alternative methods of protecting its employees requires that the citation be affirmed. See M.J. Lee Construction Co., supra.

The record in this case establishes only that household dishwashing gloves or some barrier creams were tried unsuccessfully fifteen years prior to the hearing. [*32] The Respondent neither experimented with nor inquired about appropriate employee protection methods subsequent to that time, until it received the citation involved in this case. In addition, as the majority opinion states, at the time of the hearing the Respondent had not tried industrial gloves that had been ordered from Dow Chemical Co. The evidence also establishes that subsequent to the inspection in this case information was received by the compliance officer from barrier cream manufacturers recommending creams to protect against the hazards of dermal contact with methyl chloroform. The ready availability of this information upon inquiry illustrates the Respondent's lack of diligence in ascertaining prior to citation what methods of protection were available. * Cf. Southwestern Bell Telephone Co., 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD P23,278 (No. 15841, 1979) (employer must exercise reasonable diligence in ascertaining hazards to which its employees will be exposed and in taking steps necessary to prevent the exposure). In light of record evidence regarding the existence of untried barrier creams and gloves it cannot be concluded that the Respondent has [*33] established its impossibility defense. The citation should be affirmed.

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* I cannot agree with my colleagues that the letters from these manufacturers are "unhelpful to the Secretary" because "none of them provides assurance that the glue will adhere if their product is used." The Secretary does not bear the burden of establishing the availability of a specific brand of barrier cream that will not interfere with the employer's work.

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