VANCO CONSTRUCTION COMPANY

OSHRC Docket No. 79-4945

Occupational Safety and Health Review Commission

December 22, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Robert C. Elder, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

The Secretary of Labor issued a citation item alleging that Vanco Construction, Inc. ("Vanco"), violated 29 C.F.R. 1926.102(a)(1). The standard requires that employees "be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents." Administrative Law Judge LaVecchia vacated the citation item because he found the evidence of a "potential eye or face injury" insufficient. We reverse the judge and affirm the citation item.

I.

A compliance officer observed two employees without eye or face protection chipping hardened mounds of concrete at a construction site. The employees were using a sledgehammer and a Hilti electric hammer to break down the excess concrete. The operation produced chips and dust particles which the compliance officer observed flying out a distance of four feet. The two workers were continually struck in the face by these particles. The largest chips were approximately [*2] the size of a matchhead. The workers were about five feet tall, and crouched as they worked. The compliance officer observed the workers squinting or flinching from the impact of the chips, and occasionally brushing their faces to remove accumulations of dust and particles. The compliance officer testified that the chips were "definitely" flying out with "great force," and that serious injury would be substantially probable if a chip were to strike an employee in the eye. No form of eye or face protection was available at the worksite.

Douglas Fisher, the area sales manager for the Hilti hammer, testified that he had received no reports of serious eye injuries associated with the use of the hammer in the seven years it had been manufactured (about 200,000 were in use at the time of the hearing). Fisher also stated that the hammer's chisel would absorb about 95 percent of the energy produced by its "striking pistol."

Roy Neel, Vanco's assistant superintendent at the worksite, testified that the sledgehammer was "primarily" used to drive wooden stakes rather than to chip concrete. Neel also claimed that the Hilti hammer did not throw chips into the workers' faces, but only propelled [*3] chips about 24 inches. He conceded, however, that he "wasn't observing [the employees] the close."

The senior job superintendent, Ralph Pruett, did not observe the workers at the time of the inspection. He testified that on many previous jobs he observed the Hilti hammer and that it did not spray particles into the face of its operator. He also stated that a sledgehammer striking concrete will produce flying chips.

The judge found that chips of concrete were spraying out from the Hilti hammer up to a distance of four feet, and that the chips would "probably" fly back toward the employees' faces. He also found that the employees were occasionally required to brush the dust and chips from their faces. However, the judge vacated the citation on the ground that the Secretary failed to establish the velocity of the chipped particles and, specifically, because there was no evidence that the chips were travelling fast enough to penetrate the eyes or flesh of the workers. The judge credited Fisher's testimony that no serious eye injuries had been reported in the seven years since the Hilti hammer was first marketed, and construed his statement about the hammer's design to mean that [*4] the velocity of any flying chips would tend to be reduced. The judge did not find a violation with respect to the use of the sledgehammer apparently because there was no evidence as to the velocity at which chips might fly from concrete struck by a sledgehammer. n1 However, the judge did state that chips flying from a sledgehammer would present more of a hazard, in his opinion, than chips flying from a Hilti hammer.

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n1 The judge also stated that there was a conflict in the evidence with respect to the use of the sledgehammer. We disagree with this statement. See discussion below.

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The Secretary petitioned for discretionary review, and review was directed by former Commissioner Barnako on whether the judge erred in vacating the citation.

On review, the Secretary argues that his burden of proof under the cited standard does not require him to prove the velocity of flying chips and dust particles. He contends that the standard "does not limit the hazard to flying particles of a specified minimum velocity." The Secretary [*5] also argues that the standard "recognize[s] that eye contact with flying particles is inherently hazardous regardless of velocity."

Vanco cites the lack of recorded injuries and disputes the Secretary's claim that the electric hammer had enough force to cause injury. The employer claims that the Secretary's position, if adopted, would require the wearing of safety glasses at all construction sites, and that the violation, if any, was de minimis. Vanco also argues that the standard is vague, that it had no knowledge of the violation, that the citation was not issued with reasonable promptness, that the violation at most should be deemed non-serious, and that the penalty is excessive.

II.

We have previously cautioned that "the eye is an especially delicate organ and . . . any foreign material in the eye presents the potential for injury." Stearns-Roger, Inc., 79 OSAHRC 94/A2, 7 BNA OSHC 1919, 1921, 1979 CCH OSHD P24,008, p. 29,156 (No. 76-2326, 1979). In Stearns-Roger the Commission held that an employee wearing ordinary eyeglasses and cutting lumber with a portable power saw was engaged in an operation which posed a potential for eye injury under section 1926.102(a)(1). [*6] The hazard in that case was flying sawdust and, if the saw blade should shatter or strike a hidden nail, flying metal particles. We did not require the Secretary to prove the velocity of the flying particles as part of his prima facie case.

The facts of this case are no less compelling. Concrete chips were actually propelled with force up to four feet through the air by the hammers. Because the employees were about five feet tall, and crouched as they worked, their faces were within striking distance of the chips. The workers were observed squinting or flinching from the impact of the chips and occasionally were required to brush their faces to remove accumulations of concrete dust. We discount the testimony of assistant superintendent Neel that he did not observe chips striking employees in the face because, as he said, he "probably wasn't observing them that close." We also discount the judge's statement that the evidence as to the use of the sledgehammer is in conflict. No witness at the hearing denied that the sledgehammer was used to chip concrete, and Vanco does not now deny that the sledgehammer was in fact so used.

The judge's finding that any chips thrown through [*7] the air would be slowmoving because of the Hilti hammer's design is also not supported by the record. When asked if he knew the striking force of the Hilti hammer, Fisher responded that "there is actually a striking element inside the hammer that is propelled by compressed air, but the chisel or bit would actually absorb ninety-five percent of the energy transmitted from the striking pistol." Fisher's testimony thus concerns the force transmitted within the Hilti hammer's mechanism, rather than the force transmitted by the hammer on impact with the surface being worked. Even if Fisher had addressed the issue of the force transmitted to the concrete, the fact remains that chips of concrete were flying directly into the workers' faces. n2

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n2 Fisher's additional testimony that he had not received any reports of serious eye injuries attributable to the hammer is of little value. The record does not reflect the conditions under which the hammer is usually operated. It may well be that eye injuries were rare because eye protection is commonly used or because chips are usually not propelled into employees' faces. The record also does not indicate whether Fisher would have received reports of injuries had any occurred.

[*8]

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These facts establish a potential for eye injury, given the considerable vulnerability of the eye. The judge's view that the Secretary must prove that the chips were propelled with enough force to penetrate the eye does not comport with the standard's purpose or language and is inconsistent with our precedent. n3

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n3 Vanco refers us to the argument in its post-hearing brief that it lacked knowledge of the violation. This point requires little discussion. The Commission has held that the record must show that the employer knew or with the exercise of reasonable diligence could have known of the violative conditions. Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1868, 1981 CCH OSHD P25,358, p. 31,500 (No. 16147, 1981). Vanco argues that it could not have known that the chipping operation presented a potential for eye injury. Vanco's argument lacks merit. First, the knowledge element of a serious violation refers to the physical conditions that constitute a violation. See Southwestern Acoustics & Specialty, Inc., 77 OSAHRC 25/E7, 5 BNA OSHC 1091, 1092, 1977-78 CCH OSHD P21,582, p. 25,896 (No. 12174, 1977). That Vanco did not draw the conclusion that there was a potential for eye injury is therefore not the point. Vanco's employees assigned to perform the chipping operation were not provided with eye protection and none was available on the site. It is therefore enough that with reasonable diligence, Vanco could have known that chips were flying into the faces of the employees. See Automatic Sprinkler Corp. of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1385, 1387, 1980 CCH OSHD P24,495, p. 29,926 (No. 76-5089, 1980).

[*9]

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We also reject Vanco's argument that the standard is vague or that it fails to afford adequate notice to employers. It is well-settled that a standard should not be evaluated for vagueness solely on its face, but should instead be considered on the facts of each case. See Gold Kist, Inc., 79 OSAHRC 93/C8, 7 BNA OSHC 1855, 1859, 1980 CCH OSHD P24,205, p. 29,445 (No. 76-2049, 1979); accord, Santa Fe Trail Transport Co., 505 F.2d 869 (10th Cir. 1974) (standard must be considered "in the light of conduct to which it is applied"), citing United States v. National Dairy Corp., 372 U.S. 29, 36 (1963). We stated in Brown & Root, Inc., 81 OSAHRC 44/A2, 9 BNA OSHC 1833, 1840, 1981 CCH OSHD P25,366, p. 31,563 (No. 76-190, 1981), that:

[t]he test for determining the vagueness of a standard is the "external and objective test" of whether "a reasonable person responsible for the safety of employees, after considering the standard . . . and the factual situation, would be able to apply the language of the standard to the situation in order to identify the hazard and eliminate it." [ [*10] Quoting Pratt & Whitney Aircraft, 75 OSAHRC 42/A2, 2 BNA OSHC 1713, 1715, 1974-75 CCH OSHD P19,443, p. 23,216 (No. 510, 1975).]

The issue is therefore whether a reasonable person could ascertain that the use of the hammers to chip concrete presented a potential for eye or face injury from flying chips and dust. That test has certainly been met. Any reasonable person familiar with the facts would have realized the potential for eye injury. We also note that 29 C.F.R. 1926.102(a)(5) refers the employer to Table E-1 for use "as a guide in the selection of eye and face protection for the hazards and operations noted." Chipping and flying particles are listed in the table among the operations and hazards for which protection is required. The table, when read in conjunction with section 1926.102(a)(1), thus serves to additionally inform the employer of the appropriate protection for a given operation. See Gold Kist, 7 BNA at 1859, 1980 CCH OSHD at p. 29,443 ("broad terms in standards can acquire meaning when read together with other standards . . ."), quoting Modern Automotive Service, Inc., 74 OSAHRC 9/A11, 1 BNA OSHC 1544, 1973-74 CCH OSHD P17,369 (No. 1541, [*11] 1974); see also Daniel Construction Co., 82 OSAHRC    , 10 BNA OSHC 1549, 1554, 1982 CCH OSHD P26,027, p. 32,674 (No. 16265, 1982).

Vanco argues that the citations were not issued with reasonable promptness as required under section 9(a) of the Act, 29 U.S.C. 658(a). The inspection was conducted on July 25, 1979. The citation was issued 15 days later. In order to vacate a citation for lack of reasonable promptness, the Commission has held that an employer must establish prejudice in the preparation of its defense. See Stripe-A-Zone, 82 OSAHRC   , 10 BNA OSHC 1694, 1695, 1982 CCH OSHD P20,069, p. 32,781 (No. 79-2380, 1982). Although Vanco alleges prejudice in the preparation of its case, it was informed at the closing conference on the day of the inspection that its failure to provide eye protection constituted a safety hazard. In addition there is no showing that the timing of the citation delayed Vanco from immediately conducting its own investigation or that the presentation of its case was hampered due to the alleged delay. See National Industrial Constructors, Inc., 81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1084, 1981 CCH OSHD P25,743, p. 32,126 [*12] (No. 76-4507, 1981). We therefore reject its claim.

III.

The citation alleges that the violation was "serious." The compliance officer testified that if a concrete chip were to strike an employee in the eye, major damage, including the possibility of blindness, could result. Vanco argues on review that "no serious damage could be done even if a chip had struck an employee in the eye . . . ."

In determining the seriousness of a violation, the correct inquiry is not the likelihood of an accident but whether, in the event of an accident, there is substantial probability that it would result in death or serious physical harm. See, e.g., Frank Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1232-3, 1981 CCH OSHD P25,129, p. 31,032 (No. 76-4627, 1981). We find that given the delicateness of the eye, serious physical harm would be substantially probable if an employee were struck in the eye by a particle or chip of concrete from one of the hammers. We note that the compliance officer testified that the chips were the size of a matchhead and flew out with sufficient force to cause the employees to squint or flinch from the impact. We therefore find that the violation [*13] is serious under section 17(k) of the Act, 29 U.S.C. 666(j). n4

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n4 That section provides:

For the purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Vanco argues that the violation at most should be affirmed as de minimis. We disagree. Inasmuch as the failure to provide eye protection could have resulted in severe and permanent injury, the violation was not too trifling to warrant the imposition of an abatement requirement or the assessment of a penalty. See Southwestern Electric Power Co., 80 OSAHRC 81/C7, 8 BNA OSHC 1974, 1975, 1980 CCH OSHD P24,732, p. 30,445 (Nos. 77-3890 & 77-3391, 1980).

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The Secretary proposed that a penalty of $280 be assessed. n5 As to size, Vanco had over 100 employees. As to good faith, Vanco immediately stopped the chipping and sought to obtain eye protection. The gravity of the violation was moderate. Although only two employees were exposed, particles were indeed flying into the employees faces. As to history of previous violations, we note that although citations had been issued to Vanco, they were not shown to have become final orders. Until a citation becomes a final order, it may not be considered as evidence of a history of previous violations for the purpose of penalty assessment. See General Steel Fabricators, Inc., 77 OSAHRC 173/F2, 5 BNA OSHC 1837, 1838, 1977-78 CCH OSHD P22,190, p. 26,704 (No. 76-710, 1977). We therefore do not rely on the fact that there were outstanding citations issued against Vanco. We find a penalty of $280 to be appropriate. n6

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n5 Section 17(j), 29 U.S.C. 666(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

n6 Vanco challenges the manner in which the penalty was calculated by OSHA; it argues that because it did not have a history of previous violations, a lower penalty should have been proposed under the guidelines set forth in the OSHA Field Operations Manual. We have previously held that the guidelines provided by the manual do not bind us, do not have the force and effect of law, and do not accord important procedural or substantive rights to individuals. See FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1710, 1977-78 CCH OSHD P22,060, p. 26,573 (No. 13155, 1977). Also, because the Commission assesses penalties de novo, the proposed penalty has no force once it is contested. J.L. Foti Construction Co., 80 OSAHRC 36/C10, 8 BNA OSHC 1281, 1285, 1980 CCH OSHD P 24,421, p. 29,784 (Nos. 76-4429 & 76-5049, 1980).

[*15]

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IV

Accordingly, the judge's decision is reversed. The citation item is affirmed; a penalty of $280 is assessed.

SO ORDERED.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

The standard cited in this case, 29 C.F.R. 1926.102(a)(1), requires employers performing construction work to provide eye and face protection equipment "when machines or operations present potential eye or face injury from physical, chemical, or radiation agents." Vanco argues that section 1926.102(a)(1) is unenforceable because it does not give fair warning of the conduct it prohibits or requires. Because I am unaware of anything in the standard or its regulatory history that would guide the Commission in its proper application, I would vacate the citation item. I therefore dissent.

The plain meaning of the word "potential" is "possible." n7 Inasmuch as nearly all construction work poses the possibility of eye injury, a literal reading of the standard would require that eye or face protection be provided in nearly all construction operations. The majority correctly recognizes that this standard could not possibly have been intended [*16] to be literally applied. Yet, there is nothing that indicates how it does apply. The standard does not specify which construction operations present a "potential" for eye injury. The other standards in Part 1926 provide the Commission with no guidance to determine the standard's reach. Section 1926.102(a)(5) and Table E-1, which the majority uses as an interpretive aid, are unhelpful. Section 1926.102(a)(5) refers employers to Table E-1 only as a "guide." n8 Table E-1 does not provide useful information on the requirements of section 1926.102(a)(1) because it does not indicate that eye protection is required in all chipping operations nor does it indicate which chipping operations necessitate eye protection. At best, the table merely guides employers in the selection of eye protection after it is known that such protection is required. Finally, I am not aware of any regulatory history of section 1926.102(a)(1) that would shed light on its proper application.

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n7 Webster's Third New International Dictionary (1971).

n8 Daniel Constr. Co., 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1554 n. 6, 1982 CCH OSHD P 26,027, p. 32,674 n.6 (No. 16265, 1982) (dissenting view).

[*17]

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It is the duty of the congressionally delegated authority, the Secretary of Labor, to provide ascertainable criteria by which standards can be interpreted and applied. To hold otherwise would mean that the Commission, not the Secretary, is setting the standard, and would conflict with the separation of powers established by Congress under the Act. See Sun Ship, Inc., No. 16118 (December 17, 1982) (dissenting opinion). In the absence of meaningful criteria to guide the interpretation or application of a standard, the Commission's decision is derived, not from the standard, but from the majority's own view of what the standard should say. I recognize, of course, that no standard can be written so as to be entirely free from ambiguity. There are limits to the precision of language. n9 However, a standard may not be so broadly written that it delegates basic policy matters to the Commission for resolution on an ad hoc and subjective basis.

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n9 see Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1916)(Holmes, J., dissenting) ("I recognize without hesitation that judges to and must legislate, but they can do so only interstititially; they are confined from molar to molecular motions.")

[*18]

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While I recognize that standards can be construed so as to avoid questions of their validity, n10 this doctrine applies only where to do so does not overstep the bounds of the judicial function. n11 For the reasons I have indicated, such a course is not possible in this case. I would therefore affirm the judge's decision and vacate the citation.

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n10 See Rockwell International Corp., 81 OSAHRC 118/A2, 9 BNA OSHC 1092, 1097, 1980 CCH OSHD P24,979, p. 30,845 (No. 12470, 1980); Northern National Gas Co. v. O'Malley, 277 F.2d 128, 134 (8th Cir. 1960) (regulation); cf. Crowell v. Benson, 285 U.S. 22, 62 (1932) (statute).

n11 See Yu Cong Eng v. Trinidad, 271 U.S. 500, 518 (1926); see also N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 509-511 (1979) (dissenting opinion) (collecting cases).

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