PLESSEY-BURTON, INC.

OSHRC Docket No. 946

Occupational Safety and Health Review Commission

October 18, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On January 24, 1973, Judge James A. Cronin, Jr. issued his decision and order in the present case, affirming two items of the Secretary's citation for non-serious violation and vacating one item of the same citation.

On February 27, 1973, the Commission directed that the decision and order of the Judge be reviewed by the Commission in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").

The Commission has reviewed the entire record in this case. We adopt the Judge's decision to the extent that it is consistent with the following.

I.

Respondent is engaged in the cleaning, processing, and electroplating of electrical parts and components. As a result of four inspections conducted in March and April of 1972, respondent was issued three citations that alleged one serious violation and 16 other than serious violations. Respondent contested only some of these items. After a series of amendments and withdrawals only three contested items, all non-serious, remained at issue at the time of the hearing.

They [*2] were:

item 2 -- 29 CFR 1910.22(a)(1) -- floor of storage room not kept clean -- $60 item 8 -- 29 CFR 1910.141(g)(3)(i) -- food stored and eaten in the presence of toxic materials -- $75

item 13 -- 29 CFR 1910.94(d)(9)(vii) -- no supply of clean, cold water at each tank containing harmful liquids -- $75

Judge Cronin affirmed items 2 and 13, but vacated item 8 on the grounds that the Secretary failed to prove that food was consumed in the presence of toxic materials.

Review was directed on three issues. First, whether the citations were issued with reasonable promptness as required by section 9(a) of the Act; second, whether item 2 was properly alleged as a failure to comply with 29 CFR 1910.22(a)(1); and third, whether the standards involved in items 2 and 13, 29 CFR 1910.22(a)(1) and 29 CFR 1910.94(d)(9)(vii), are unenforceably vague.

II.

The issue of reasonable promptness was raised for the first time in the direction for review. It was not raised by respondent during the "issue formulation" stage of the proceedings. Respondent's failure to raise the issue constituted a waiver of this affirmative defense. See Chicago Bridge & Iron Co., No. 744 [*3] (January 24, 1974).

III.

The second issue in the direction for review concerned whether item 2 was properly alleged as a failure to comply with 29 CFR 1910.22(a)(1). That standard provides as follows:

(1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

The citation alleged a failure to comply with the standard in the following manner:

Floor of store room behind maintenance shop was not being kept in a clean and sanitary condition with muriatic acid having been spilled on the floor and not cleaned up.

Outside acid storage not maintained in a clean, orderly, or sanitary condition.

Respondent argued that it should have been cited under the following two standards:

29 CFR 1910.22(a)(2)

The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition. Where wet processes are used, drainage shall be maintained, and false floors, platforms, mats, or other dry standing places should be provided where practicable.

29 CFR 1910.176(b)

Secure storage. Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in [*4] tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.

We do not agree with respondent's contention. It is true that if there is a specific standard and a general standard the Secretary should allege a failure to comply with the specific standard. Nevertheless, in this case there is no more specific and appropriate standard. The standard under which respondent suggests that the acid spillage should have been cited, 29 CFR 1910.22(a)(2), relates to workrooms. The standard under which respondent suggests that the acid drum storage should have been cited, 29 CFR 1910.176(b), concerns the handling of materials, such as stacking and blocking. Respondent, however, was cited for not keeping a storage area in a clean, orderly, and sanitary condition. The standards under which respondent claims it should have been cited simply do not apply to the present facts. Thus, respondent was properly cited for failure to comply with 29 CFR 1910.22(a)(1).

IV.

The third item of the direction for review concerns the question of whether the standards at 29 CFR 1910.22(a)(1) and 29 CFR 1910.94(d)(9)(vii) are [*5] unenforceably vague. A majority of the Commission in Santa Fe Trail Transport Co., No. 331 (December 18, 1973) (Cleary dissenting), petition for review filed, No. 74-1049 (10th Cir. February 14, 1974) held that the Commission has the authority to declare standards unenforceably vague. Assuming that the Commission has such authority, we do not believe, however, that the standards at issue in the present case are vague.

Respondent takes issue with the words "clean" and "orderly" in 29 CFR 1910.22(a)(1). It asserts that these words are not sufficiently specific to apprise it as to what conduct is required or prohibited under the standard. We disagree. Although the goal of all standards is clarity and specificity, some standards are necessarily more general than others. A housekeeping standard must be worded with some degree of flexibility and generality. No standard, especially housekeeping, can anticipate all of the possible ways in which violative or hazardous conditions could develop. n1

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n1 Cf. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974). Referring to a different standard, the court stated: "The regulation appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury." Id. at 233 Accord McLean Trucking Co. v. O.S.H.R.C., No 73-2392 (4th Cir. September 4, 1974), wherein the Fourth Circuit stated: "In effect the legislative and regulatory standards call for the "reasonable man" test and the application of this classic criterion eliminates to a large degree the alleged facial vagueness." Id. (slip op. at 8) (footnote omitted).

[*6]

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From the foregoing, we conclude that some degree of reasonableness must be read into each standard in applying the standard to a given factual situation. n2 In Georgia-Pacific Corp., No. 676 (August 30, 1973), the Commission held that a standard written in broad terms will not be declared unenforceably vague if "persons of common intelligence in respondent's industry are apprised of the conduct required by the standard and need not guess as to its meaning." Similarly, the Commission in Modern Automotive Service, Inc. No. 1541 (February 27, 1974), citing the majority opinion in Santa Fe Trail, noted:

[S]tandards employing broad terms are reasonable and enforceable if the terms have a technical meaning or a customary meaning among those to whom they apply . . . (emphasis added).

This approach was also followed by the Fifth Circuit in Ryder Truck Lines, Inc. v. Brennan, n3 where the Court stated: "So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster. United States [*7] v. Petrillo, 332 U.S. 1, 4 (1947)."

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n2 In Ryder Truck the court went on to say that "we think inherent in that standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard. . . ." Id. at 233.

n3 Note 2 supra at 233.

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The words "clean" and "orderly" have a common, customary meaning and the standard at issue can neither be said to be vague on its face nor vague as applied to the present facts. The record clearly indicates that there was acid spilled on the floor of respondent's storeroom and that chemical drums were stored in a "helter-skelter" meanner in the outside storage area, creating a tripping hazard. Respondent reasonably should have known that these conditions constituted a failure to comply with the standard.

Respondent also asserts that the words "near" and "clean" as used in 29 CFR 1910.94(d)(9)(vii) are vague. That standard provides as follows:

Near each tank containing a liquid which may burn, irritate, or otherwise [*8] be harmful to the skin if splashed upon the worker's body, there shall be a supply of clean cold water. The water pipe (carrying a pressure not exceeding 25 pounds) shall be provided with a quick opening valve and at least 48 inches of hose not smaller than three-fourths inch, so that no time may be lost in washing off liquids from the skin or clothing. Alternatively, deluge showers and eye flushes shall be provided in cases where harmful chemicals may be splashed on parts of the body (emphasis added).

The terms in question are not vague when examined in light of the facts of this case n4 and the injuries that the standard was designed to prevent. The standard at 29 CFR 1910.94(d)(9)(vii) requires that the employer provide clean water near each tank in which there is a substance that may injure an employee if splashed on him. The harm to be prevented is burns from splashes of caustic liquids. In this context, "clean" water means water that is free from acids, chemicals, or other substances that may further injure an employee using the water to rinse off skin or clothing splashed with acid.

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n4 Item 13 of the citation was worded as follows:

In the main plating area, no supply of clean cold water was at each tank containing a liquid which could burn, irritate, or otherwise be harmful to the skin if splashed upon the worker's body.

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According to this definition, the water in many of respondent's rinse tanks was not clean. It contained various concentrations of acids and other chemicals. An employee who used this water to wash off acid splashes might well compound his injuries. Furthermore, even if it were clean, the water in the rinse tanks would not satisfy the requirements of 29 CFR 1910.94(d)(9)(vii), because there were no quick opening valves or hoses. This is expressly required by the standard "so that no time may be lost in washing off liquids from the skin or clothing."

Respondent's second challenge to this standard involves the word "near." Assigning a reasonable interpretation to the word "near" in the standard also eliminates any asserted claim of vagueness surrounding this critical word. In the context of 29 CFR 1910.94(d)(9)(vii) "near" means that [*10] the water supply must be close enough for an employee to reach it and wash off the acid before being injured. Obviously, the distance allowable will vary according to the strength of the acid involved.

The evidence of record indicates that the water available at respondent's facility was not close enough to each tank. n5 The compliance officer testified that many of the tanks contained strong acids. Clean water from a hose was available at both ends of each aisle of acid tanks. These aisles were approximately 35 feet long, and an employee working in the middle of an aisle would have to go 17 feet to reach the water supply. Many of the aisles were also partially obstructed by portable acid tanks. In addition, water was not available at one end of one aisle on the day of inspection. It is reasonable to infer that an employee splashed with a strong acid would sustain injury before he could travel over 17 feet of obstructed aisle to reach the water supply.

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n5 Respondent had 208 tanks in its plant. Each tank was about one-half the size of a standard washing machine.

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In concluding that the water supply was not close enough to each tank, Judge Cronin placed considerable emphasis on the compliance officer's testimony that an employee with acid in his eyes would probably be blinded before he could get to the water supply. Respondent contends that this testimony is not relevant because 29 CFR 1910.94(d)(9)(vii) deals only with splashes on the skin, and that 29 CFR 1910.151(c) covers situations where caustic materials are splashed in the eyes. n6 This standard, which is part of the section on "Medical Services and First Aid," deals with both eye and body washes. The standard appearing at 29 CFR 1910.94(d)(9)(vii) also contemplates situations in which employees get acid in their eyes. It states: "Alternatively, deluge showers and eye flushes shall be provided in cases where harmful chemicals may be splashed on parts of the body." This standard is part of a sub-section specifically concerned with "Open Surface Tanks." It is not unusual that measures to prevent one specific hazard are provided for in the general first aid standard and also in the personal protection part of a specific [*12] standard.

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n6 29 CFR 1910.151(c) provides:

(c) Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.

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We conclude that the standard at issue is not vague and that respondent failed to comply with its requirements by not providing clean, cold water near each acid tank.

V.

The final issue in this case relates to item 12. This item, alleging a failure to comply with 29 CFR 1910.94(d)(9)(vi), was expressly not contested in respondent's May 23, 1972, notice of contest. As a result of respondent's failure to contest this item within 15 working days of its receipt of the Secretary's notification of proposed penalty, this item was deemed a final order of the Commission pursuant to section 10(a) of the Act and not subject to review by any court or agency.

Subsequently, the Secretary moved that this final order be vacated because "further investigation [*13] . . . has . . . [indicated] there was, in fact, no violation of that standard. . . ." Judge Cronin ruled that he had no power to modify a final order and deferred to the Commission the question of whether it has the power. We hold that the Commission does not have such authority.

Rule 60 of the Federal Rules of Civil Procedure n7 provides for the relief from judgment of good cause. The Commission has the power to modify, amend, or stay its final orders that are issued pursuant to section 12(j) of the Act. n8 It does not, however, have the power to modify an order that has become final by operation of law pursuant to section 10(a) of the Act. n9 In the latter case, the Commission never has subject matter jurisdiction, which only attaches by the timely filing of a notice of contest, and it is barred by the express language of section 10(a) from taking any action. n10

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n7 These rules specifically govern Commission proceedings. See section 12(g) of the Act and rule 2(b) of the Commission's rules of procedure.

n8 See, e.g., Ryder Truck Lines, Inc., No. 391 (September 27, 1973) (Motion for Reconsideration and Stay); Corn States Metal Fabricators, Inc., No. 2309 (December 12, 1973) (Administrative Law Judge).

n9 See Corn States, supra.

n10 Similarly, the failure to contest a citation within 15 working days has had the effect of barring an action before the Commission, see Walter A. Podpora, No. 721 (June 19, 1972), or in district court. See United States v. J.M. Rosa Const. Co., Inc., No. B-637 (D. Conn., April 2, 1973).

[*14]

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The factual situation in the present case is clearly distinguishable from Farr-Guarino Const. Corp., No. 6941 (April 24, 1974). In Farr-Guarino, the wrong employer was cited. The Commission used its plenary jurisdiction to determine jurisdiction n11 in order to ascertain whether a valid citation was ever issued. By granting the Secretary's motion to vacate the erroneous citation, the Commission sought to prevent an injustice. It impliedly held that a valid citation was never issued. Therefore, there was never a final order of the Commission and the prohibition against review by any court or agency contained in section 10(a) of the Act never became operative. This is not true of the present case.

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n11 It is well-settled that an adjudicatory body can always assume jurisdiction in order to determine jurisdiction. Moore v. Dalessio, 332 F. Supp. 926 (D. Mass. 1971), citing United States v. UMW, 330 U.S. 258, 290 (1947).

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VI.

Accordingly, it is ORDERED that the Judge's disposition is affirmed for the specific reasons stated herein.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition of this case for the reasons given by Judge Cronin. Moreover, I do not join in Commissioner Cleary's attempt to distinguish Fairr-Guarino although I do agree with his conclusions. That is, we many take jurisdiction to determine whether we have jurisdiction; we cannot review matters that are final by operation of section 10(a), and the motion to vacate in this case must be denied. In my view the Farr-Guarino motion, like the motion herein, was directed to a question unrelated to the question of jurisdiction and should have been denied; I did not vote with the majority in that case. I would also point out that I would not expect the Secretary to use a Farr-Guarino citation in the future nor would I expect him to attempt a penalty collection effort.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: What the Commission is saying here is that there is no way justice can be attained if a citation was not contested within the 15 working day period specified in [*16] the statute. I don't believe this!

The Secretary of Labor -- the one official allowed by law to cite employers for violations of this law -- has conceded that he was in error in this citation. He has moved for its dismissal by this tribunal because, he states:

. . . there was, in fact, no violation of that standard.

29 U.S.C. 659(a) provides that a citation not contested within the time limits (as was the case with this one)

. . . shall be deemed a final order of the Commission. . . .

Now we have here a final order of this Commission which does an injustice. It penaltizes an employer for not complying with a safety standard when

. . . there was, in fact, no violation of that standard.

Must we stand idly by, as this decision does, throw up our hands and exclaim "Well, that's law biz!"

Rule 60(b) of the Federal Rules of Civil Procedure n12 states:

On motion and upon such terms as are just, the court may relieve a party . . . from a final . . . order . . . (1) [for] mistake. . . .

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n12 Rule 2(b) of the Commission's Rules of Procedure requires the application of the Federal Rules in the absence of a specific Commission provision. 29 C.F.R. 1100.2(b).

[*17]

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That is the case here. A mistake has been made. A motion to correct it has been put before us by the party who made the mistake. There is a provision of law permitting us to correct the injustice contained in the final order of this Commission. We compound both the mistake -- and the injustice -- by failing to grant the Secretary's motion.

As for the question of vagueness, the Commission finds that the two standards, 1910.22(a)(1) and 1910.94(d)(9)(vii) are drawn with sufficient precision to enable an employer of reasonable intelligence to understand their requirements. I think they are not.

29 C.F.R. 1910.22(a)(1) states:

All places of employment . . . shall be kept clean and orderly and in a sanitary condition." [emphasis added]

29 C.F.R. 1910.94(d)(9)(vii) states:

Near each tank . . . shall be a supply of clean, cold water. [emphasis added]

What is the meaning of the terms "clean . . . orderly . . . sanitary condition?" Are these words of such precise meaning that an inspecting officer, an employer, or this Commission could determine what conditions would [*18] or would not be in compliance therewith?

The testimony herein exemplifies their imprecision. The inspector stated that these terms amounted to very abstract values, and that "what may be clean and orderly for one industry may not be so for another."

As to the terms "near . . . clean . . . cold water" in the 1910.94(d)(9)(vii) standard, they too are of such imprecise meaning that it becomes necessary to subjectively determine their meaning. The safety inspector stated that it was his subjective determination that "near" means "within reach of the worker . . . that like clean . . . [i]t's kind of an abstract value." Respondent's witness, an expert in chemistry, gave the following testimony regrading the term "clean":

Q: . . . the tank that's near them is not a supply of clean, cold water. It is, in fact . . . contaminated water.

A: . . . the water that is being used to remove the acid is such different concentration that it is actually removing the acid from the person's surface, even though it is dirty. I mean how are you going to define clean? The tap water is not clean by certain definitions. . . .

The terms contained in these two standards are of such general [*19] nature that they do not lend themselves to any precise or comprehensible definition. The substance of a regulation must afford reasonable notice of conduct which it requires or proscribes. Secretary v. J.A. Walder, Inc., 2 OSAHRC 881 (1973); Secretary v. Anaconda Service Station, 2 OSAHRC 1047 (1973).

The purpose of an occupational safety and health standard is to inform employers what they must do in order to avoid a known workplace hazard. Secretary v. Mountain States Telephone & Telegraph Co., 2 OSAHRC 168 (1973). Standards must contain specificity to put an employer on notice as to what is required. Secretary v. McDowell-Purcell, Inc., 1 OSAHRC 1033 (1972). A standard must contain "clear language" uncolored by subjective criteria. Secretary v. California Stevedoring Co., 1 OSAHRC 366 (1972).

These standards lack the aforementioned requirements. Absent therefrom is the indispensable ingredient of particularity. Consequently, I would vacate that part of the citation along with the penalties based thereon and declare 29 C.F.R. 1910.22(a)(1) and 1910.94(d)(9)(vii) null and void. The Commission's authority to rule on the validity of a standard is [*20] based upon the broad adjudicatory powers bestowed on the Commission by 29 U.S.C. 651(b)(3) and established by case law. Secretary v. Oberhelman-Ritter Foundry, Inc., Secretary v. Santa Fe Trail Transport Co., 5 OSAHRC 840 (1973). n13

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n13 It is interesting to note that the Courts of Appeals for the fourth and fifth circuits had before them cases involving Commission rulings on the validity of a standard. Although, in each case the Court found the challenged standard not to be vague, neither gave any indication that the Commission lacked the authority to entertain the issue. Ryder Truck Line, Inc., v. Brennan, 497 F.2d 230 (5th Cir. 1974); McLean-Trucking Co. v. OSAHRC, No. B-2392 (4th Cir. September 4, 1974).

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[The Judge's decision referred to herein follows]

CRONIN, JUDGE: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting Citations and Notifications [*21] of Proposed Penalties issued by the Complainant against the Respondent under the authority of Sections 9(a) and 10(a) of the Act.

On May 4, 1972 an "Amended" Citation for Serious Violation was issued charging a violation of 29 CFR 1910.94(d) 10. n1 On that same date, an "Amended" Citation also was issued charging 15 non-serious violations of the Act, namely, 29 CFR 1910.103(b)(1)(v); 1910.22(a)(1); 1910.22(d)(1); 1910.23(c)(1)(i); 1910.94(a)(7); 1910.242(b); 1910.157(a)(3); 1910.141(g)(3)(i); 1910.141(g)(3)(iii); 1910.151(b); 1910.151(c); 1910.94(d)(9)(vi); 1910.94(d)(9)(vii); 1910.94(d)(9)(v) and 1910.134(b)(2). Both of these Citations were the result of an inspection of a Respondent worksite on March 20, 1972.

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n1 Although Complaint references that Respondent was issued one Citation on April 14, 1972 which was amended on May 4, 1972, the official file does not contain a copy of this April 14, 1972 Citation.

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On May 9, 1972, as a result of inspections on April 10, 11, 14, 1972, a third and fourth Citation were [*22] issued. One alleged a violation of "1910.23(c)( )," the other, violations of 1910.93(a) through (e), 1910.94(d)(1) through (7) and 1910.134(a)(1). This latter Citation was subsequently amended by a Citation issued May 22, 1972 which alleged 3 non-serious violations of the Act, namely, 29 CFR 1910.93(a), 1910.94(d)(3) and 1910.134(a)(1).

In the Notices of Contest, the Respondent contested the May 4, 1972 Citation for Serious Violation, the proposed abatement period and Proposed Penalty. With respect to the May 4, 1972 Citation for non-serious violations and proposed penalty, the Respondent contested the violation or penalties for all items except Item 11, 1910.151(c); Item 12, 1910.94(d)(9)(vi); and Item 15, 1910.134(b)(2). Respondent also contested the Citation, Penalty and abatement period of the non-amended May 9, 1972 Citation and subsequently, contested all items of the amended May 22, 1972 Citation.

The Secretary's complaint alleged in substance the various allegations of the Citations, including violations of 1910.151(c); 1910.94(d)(9)(vi), and 1910.134(b)(2) which Respondent had not previously contested. n2 The Respondent in its answer admitted violations [*23] of 1910.23(c)(1)(i), 1910.242(b), 1910.151(c), and 1910.134(b)(2), and denied all other alleged violations.

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n2 Complaint amended citation by alleging 1910.134(a)(2), not 1910.134(a)(1) and 1910.23(c)(1)(i), not "1910.23(c)( )."

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At the outset of the hearing on October 25, 1972, the Secretary's representative indicated that no evidence would be introduced with respect to the allegation of a serious violation of 1910.94(d)(10); and the non-serious allegations of 1910.103(b)(1)(v); 1910.22(d)(1); 1910.157(a)(3); 1910.151(b); 1910.23(c)(2); 1910.93(a); 1910.94(d)(3), and 1910.134(a)(2) and moved to dismiss these allegations of the Complaint and the Proposed Penalties based thereon. This motion was granted (Tr. 4-5).

Paragraphs I & J of Roman Numeral V of the Complaint also were amended to allege violations of 1910.141(g)(3)(i) and 1910.141(g)(3)(iii) and strike the allegations with respect to "1910.14(g)(3)(iii)" and "1910.14(g)(3)(i)."

The Respondent at the hearing formally moved to withdraw its Notice of Contest to [*24] paragraph J of the Complaint, as amended, alleging a violation of 1910.141(g)(3)(iii) and the Proposed Penalty based thereon. This motion was granted (Tr. 6-7). In addition, Respondent indicated it had no objection to the proposed penalties for violations 1910.151(c) and 1910.134(b)(2).

Although contending that Respondent's failure to contest 1910.94(d)(9)(vi) in its Notice of Contest resulted in a final order of the Commission, the Secretary represented that subsequent investigation convinced him that no violation of that standard had been committed by the Respondent and moved the Commission to vacate its final order. The parties were advised that a Commission Judge does not have the authority or power to modify a Commission order that has become final by operation of law. Whether the Commission has this inherent power is a decision for the Commission. n3

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n3 The Commission previously has amended a Commission order that became final by operation of Section 12(j) of the Act, but not an order deemed final by operation of Section 10(a) of the Act. Secretary of Labor v. Brent Towing Company, Inc.,

[*25]

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Finally, it was stipulated by the parties that all other Notices of Contest to alleged violations and penalties were withdrawn and the only issues remaining to be determined at the hearing, therefore, were the alleged violations of 1910.22(a)(1); 1910.141(g)(3)(i) and 1910.94(d)(9)(vii) (Tr. 11). The Proposed Penalties for the remaining disputed violations were $60 for 1910.22(a)(1); $75 for 1910.141(g)(3)(i); and $75 for 1910.94(d)(9)(vii).

The alleged violation of 1910.22(a)(1), to be abated within "5 days," was described in the Citation as follows:

Floor of store room behind maintenance shop was not being kept in a clean and sanitary condition with muriatic acid having been spilled on the floor and not cleaned up.

The standard as promulgated by the Secretary provides:

1910.22(a)(1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

The alleged violation of 1910.141(g)(3)(i), to be abated within "1 day," was described in the Citation as follows:

Food was stored and eaten where there were present toxic materials [*26] or substances that may be injurious health, at the coffee bar in the main work area, plating shop.

The standard as promulgated by the Secretary provides:

(3) Location (i) No food shall be stored or eaten where there are present any toxic materials or substances that may be injurious to health.

The alleged violation of 1910.94(d)(9)(vii), to be abated within "5 days," was described in the Citation as follows:

In the main plating area, no supply of clean, cold water was at each tank containing a liquid which could burn, irritate, or otherwise be harmful to the skin if splashed upon the worker's body. n4

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n4 The amended Complaint, in turn, amended the Citation by substituting the word "near" for "at" in the phrase, "at each tank" (Tr. 7).

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The standard as promulgated by the Secretary provides:

(vii) Near each tank containing a liquid which may burn, irritate, or otherwise be harmful to the skin if splashed upon the worker's body, there shall be a supply of clean, cold water.

The water pipe (carrying [*27] a pressure not exceeding 25 pounds) shall be provided with a quick opening valve and at least 48 inches of hose not smaller than three-fourths inch, so that no time may be lost in washing off liquids from the skin or clothing. Alternatively, deluge showers shall be provided in cases where harmful chemicals may be splashed on parts of the body.

JURISDICTION

Respondent maintains its primary place of business at Los Angeles, California and is engaged in the cleaning, processing and electroplating of electrical parts and components. In its answer the Respondent admits that substantial quantities of the electrical components worked on, or chemicals used, were received from, and shipped to, parts outside the State of California. Respondent also admits that it is an employer which has employees engaged in a business affecting commerce within the meaning of Section 3(3), (5) and (6) of the Act. On these facts, jurisdiction over the Respondent is conferred on the Commission.

SUMMARY OF EVIDENCE

Mr. Herchiel Daniel Shipley, a Compliance Officer for the Department of Labor, testified that Respondent, in violation of 1910.22(a)(1), had failed to keep its storeroom behind the maintenance [*28] shop and its outside storage area in a clean, orderly and sanitary condition. On the date of his inspection the storeroom floor contained a pool of muriatic (hydrochloric) acid with a ph level of 1.1 which employees stepped in as they exited. Also, pools of acid were present where one comes out of plating area and in the outside storage area. He was told by the Respondent's personnel accompanying him on the inspection that spillage was a common occurrence and was not "normally" cleaned up or neutralized. In Officer Shipley's opinion, this condition could cause employees to fall. Also, in the outside storage area, drums and other containers of acid and chemicals were strewn about thereby presenting tripping and slipping hazards to employees (Tr. 13-15, 21, 28, 33, 35).

Mr. Morton Schwartz, Respondent's staff consultant and electroplating technical director, testified that the outside storage areas floor is designed to accept acid spillage without deterioration and is sloped to a sump for drainage and rinsing (Tr. 83, 90). In his opinion, said spillage can occur in the transit area between the plating and storage room but it is "not too common" (Tr. 92). According [*29] to Mr. Schwartz, an acid concentration of ph 1.1 is very weak and highly diluted (Tr. 95-96).

In regard to the alleged violation of 1910.141(g)(3)(i), Officer Shipley testified to the effect that Respondent maintained a coffee bar inside the main plating area, near the south wall, on which open containers of sugar and a non-dairy creamer were positioned. At the time of inspection, cups containing coffee also were on this bar. Officer Shipley observed a heavy haze above several tanks, one of which contained a gold cyanide solution and was within ten feet of the coffee bar. This haze also was above the coffee bar and its general vicinity. In his words, there was "no wind or breeze" to blow away the fumes (Tr. 15-16, 37, 40, 41, 43, Respondent's Exhibit 1).

According to Officer Shipley there were "more than forty" tanks in the room and somewhere between 75 and 80 percent of these contained toxic materials (Tr. 42, 59-61). In the "weighing area," some 35 feet from the coffee bar, dust was being raised whenever toxic chemical materials were weighed (Tr. 42, 43, 48).

No tests were made by Officer Shipley to determine whether there were toxic materials actually present at the coffee [*30] bar (Tr. 47-48).

Mr. Schwartz stated that during each workday, including the day of inspection, the ventilation system in the main plating room evacuates 40,000 cubic feet per minute in a northerly direction and it takes approximately 1 2/3 minutes for a complete change of air to take place in the plating room (Tr. 101-102, 144, 145, Respondent's Exhibit 3).

The report of Richard Dennerline, a Senior Industrial Hygienist of Los Angeles County, introduced into evidence as Respondent's Exhibit 4, expresses the opinion that an industrial hygiene study conducted on June 1, 1972 of Respondent's plating room establishes that Respondent's employees during the various plating operations are not exposed to a health hazard from cyanide and hydrochloric acid mists. This opinion is based on the maximum acceptable concentrations as suggested by the Los Angeles City Public Health Code Ordinance No. 127, 507, (Tr. 104-106, Respondent's Exhibit 4). On the June 1, 1972 testing date, conditions were essentially the same as those existing on the inspection date (Tr. 117).

Mr. Schwartz testified that the chemical weighing area was "something in the neighborhood" of 50 feet from the coffee [*31] bar and that given the air patterns set up by the exhaust system, it is highly unlikely" that any of the chemical dust could get over to the coffee bar (Tr. 112). Moreover, he stated, that based on his reading, certain levels of cyannide can be ingested without harmful effect (Tr. 109-110).

In his opinion, an employee drinking coffee at the coffee bar "on any given day" would not ingest more than the "permitted intake" of toxic materials which would be detrimental to his health (Tr. 111).

Officer Shipley concluded that Respondent violated 1910.94(d)(9)(vii) because the closest available source of clear running water, in the form of a garden hose attached to a faucet, was at both ends of each of the three plating aisles. At the end of one aisle a substitute hose had been attached to the only existing faucet and then run beneath the duck boards, thereby preventing ready accessibility. Some of these aisleways, which were approximately 35 feet in length, also were cluttered with portable tanks, thereby blocking straight line access from the tanks containing caustic chemicals to the hoses (Tr. 17, 69, 80).

Mr. Schwartz testified that in each of the plating area aisles there were [*32] 2 to 4 rinse tanks. Most of these rinse tanks contained water which had a ph level considered to be neutral to slightly alkaline, similar to "tap" water. Some rinse tanks, however, did show an acidity level (Tr. 113, 114, 131). In his view, the presence of rinse tanks, eye washes, and hoses at Respondent's plant were adequate to take care of any potential problems that would occur from spillage of caustics or acids (Tr. 116).

Officer Shipley, in making his recommendation for proposed penalties gave a 20% credit for Respondent's history of no prior violations; 5% for size of the company (more than 20 employees and less than 100); and 50% credit on the assumption that all alleged violations would be abated. No credit was given for good faith because of the "absence or largely ineffective" safety program (Tr. 18).

DISCUSSION

A. As to Violation

The record evidence is considered sufficient to sustain a finding that Respondent violated the housekeeping standard, 29 CFR 1910.22(a)(1). Pools of acid, a "common occurrence," not "normally" cleaned up, were located in areas where employees were required to walk. Also, containers were "strewn about" in the outside storage [*33] area where work was performed by employees. Certainly, these conditions presented tripping and slipping hazards against which the standard is intended to protect. The standard requires that places of employment be kept "clean, orderly and in a sanitary condition." Although these are abstract terms, they make plain the standard's objective; to secure and preserve the health or well-being of employees by removing all infective and deleterious influences which might expose employees to health and safety hazards.

The United States Supreme Court has interpreted the requirement to "clean" to include removing all extraneous substances which might make walking hazardous and keeping free of all foreign matter which would render footing insecure. See Lilly v. Grand Trunk Western R. Co., Ill. 317 U.S. 481. Obviously, Respondent's workplace was not kept "clean" within this meaning.

The Secretary has requested a Finding of Fact that on March 20, 1972, in the coffee area inside the main plating area, food was stored and eaten where there were present toxic materials or substances that may be injurious to health. This request must be denied because the record fails to establish the [*34] presence, and concentration level, of toxic materials on that date at the coffee bar, the location specified in the Citation.

The Secretary's presentation on this point relies mainly on conjecture and uninformed opinion. The Compliance Officer, who is not an Industrial Hygienist, concluded that toxic materials were present on the coffee bar, apparently on the basis that the so-called haze above several of the plating tanks contained toxic materials or substances and that a similar appearing haze was in the coffee bar area. But no air samples or any other tests designed to determine toxicity were taken by him on the date of inspection, March 20, 1972. While the tests on June 1, 1972 conducted by Industrial Hygienists at the request of Respondent do establish the presence of cyanide and hydrochloric mists above the plating tanks, these same tests also establish that the concentration levels of both mists were lower than the maximum acceptable concentration levels established by the Los Angeles City Public Health Code and Table G-1 of Section 1910.93(a) of the Act.

No tests apparently were performed on June 1, 1972 in the exact area where the coffee bar was formerly located. [*35] And, if exposure by inhalation, skin absorption or contact to the concentrations of cyanide and hydrochloric mists was proven to be at an acceptable level in the main plating area, and not a health hazard, how can it reasonably be presumed, without additional proof, that exposure by ingestion was hazardous and excessive in the coffee bar area. The Secretary's argument in this regard is made even less persuasive because of the failure of the Compliance Officer to take into consideration the presence of ventilation system which accomplished a complete change of air in the plating room every 1 2/3 minutes, in a northerly direction, away from the coffee bar. On this record, no violation of 1910.141(g)(3)(i) is established.

Although the Secretary failed to sustain his burden of proving that toxic materials, possibly hazardous to health, were present at the coffee bar on March 20, 1972, Respondent's action in removing the coffee bar from the main plating area was commendable, prudent and sensible under the circumstances and should not be countermanded.

Respondent's defense to the alleged violation of 29 CFR 1910.94(d)(9)(vii) is twofold. The first contention appears to be that the [*36] requirement "near to each tank" is so vague and indefinite that an employer is not advised of his obligations under the standard. Secondly, Respondent argues that the rinse tanks in each plating tank aisle provided an adequate supply of clean, cold water near each plating tank. We must disagree with both of Respondent's positions.

The word "near," of course, is a relative term with no positive or precise meaning. Its signification is governed by the special circumstances of each case and depends upon the subject matter in relation to which it is used and the circumstances under which it becomes necessary to apply it to surrounding objects.

Read in context, the primary objective of the standard in question is to provide employees ready accessibility to a supply of clean, cold water in order to counteract the effect of splashes of harmful liquids. This standard imposes requirements in addition to that prescribing a supply of clean cold water near each tank, but the amended complaint makes no reference to them. The sole allegation of violation is that Respondent failed to provide a supply of clean cold water near each tank.

In our view, the sole inquiry raised by the [*37] pleadings on this issue is whether a supply of clean cold water was available and close enough to each plating tank to accomplish the standard's primary objective. On this record, the answer to this inquiry must be, "no." Respondent's system of hoses at each end of a 35 foot aisle which existed on March 20, 1972 is considered inadequate for two reasons. First, the system wasn't fully operative on the inspection date, one hose was inaccessible. Secondly, even assuming arguendo that an employee working in the middle of a plating aisle could reach the hoses in time to substantially counteract the harmful effect of any of the liquids contained in the Respondent's plating tanks, the placement of portable tanks in several of the aisles effectively denied ready access to the necessary water.

Respondent's argument that the 2 or 3 rinse tanks in each aisle provide adequate protection is not persuasive. These tanks are actively employed in the plating process and contain potentially harmful chemical residuals in varying concentrations, and at different temperatures. Obviously, this standard's requirement of "clean, cold water" did not contemplate the use of these tanks for rinsing [*38] away harmful liquids and therefore, a violation of 29 CFR 1910.94(d)(9)(vii) is established.

B. As to Penalty

All four factors prescribed in Section 17(j) of the Act, the size of employer's business, gravity of the violations, the good faith of the employer, and history of previous violations have been duly considered.

The Respondent employs more than 20 and less than 100 employees at the Arizona Circle facility and has no history of prior violations under the Act. While all of the violations affirmed have a direct effect on the health of Respondent's employees the Secretary did not allege, nor prove, that they created a "substantial probability" of serious physical harm and therefore, are not deemed to be "serious" as that term is used in Section 17(k) of the Act. However, because of its relatively high potential to cause serious physical harm, the gravity of the 1910.94(d)(9)(vii) violation appears much greater than the violation of 1910.22(a)(1) thereby meriting a larger penalty.

The Compliance Officer concluded that Respondent lacked good faith on the basis that Respondent's overall safety program was "poor" and that Respondent had a "poor" attitude towards accomplishing [*39] abatement of the violations. n5 Because the Compliance Officer's opinion in this regard is unsubstantiated, little weight has been given to it.

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n5 Respondent, at the time of inspection, exhibited willingness to abate the conditions forming the basis of the three cited violations contested at the hearing. Also, Respondent's exercise of his right to contest alleged violations, whatever the number, does not establish his lack of good faith.

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In view of the foregoing, and on the basis of the entire record, penalties of $100 for violation of 1910.94(d)(9)(vii) and $60 for violation of 1910.22(a)(1) are considered appropriate. With respect to the other affirmed violations, the proposed penalties of the Secretary will be assessed. These penalties, in combination, will tend to deter violation and encourage compliance with the Act.

FINDINGS OF FACT

Upon the entire record, the following facts are found:

1. Plessey-Burton, Inc. employes more than 20 persons and less than 100 at its electroplating facility at [*40] 6341 Arizona Circle, Los Angeles, California.

2. On March 20, 1972, in the storeroom behind the maintenance shop, muriatic acid pools were located in areas where employees were required to walk. In the outside storage area there were acid spills and containers were strewn about in a disorderly manner. These conditions represented tripping, slipping, and falling hazards to Respondent's employees.

3. On March 20, 1972, in the main plating area, there was no clean, cold water near each plating tank. These tanks contained liquids capable of burning, irritating, or otherwise being harmful to the skin if splashed upon a worker's body.

4. The evidence does not permit a finding that on March 20, 1972, at the coffee bar in Respondent's main work area, food was stored or eaten where there were present any toxic materials or substances that may be injurious to health.

CONCLUSIONS OF LAW

1. The Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and is obliged to comply with Part 1910 standards promulgated under the Act.

2. On March 20, 1972 the Respondent was in violation of 29 CFR 1910.22(a)(1) and 1910.94(d)(9)(vii). [*41]

3. On March 20, 1972, the Respondent was not in violation of 29 CFR 1910.141(g)(3)(i).

4. A penalty of $50 for Respondent's violation of 29 CFR 1910.22(a)(1) and a penalty of $100 for Respondent's violation of 29 CFR 1910.94(d)(9)(vii) are appropriate.

5. The items in the citation charging violations of 29 CFR 1910.94(d)(9)(vi), 1910.151(c) and 1910.134(b)(2) and the proposed penalties based thereon, are deemed a final order of the Commission by operation of Section 10(a) of the Act.

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that:

1. Violations of 29 CFR 1910.94(d)(9)(vii) and 29 CFR 1910.22(a)(1) are hereby AFFIRMED.

2. A penalty of $100 for violation of 29 CFR 1910.94(d)(9)(vii), and a penalty of $50 for violation of 29 CFR 1910.22(a)(1) are hereby ASSESSED.

3. The alleged violation of 29 CFR 1910.141(g)(3)(i), and the amended proposed penalty based thereon, are hereby VACATED.

4. Violations of 29 CFR 1910.23(c)(1)(i); 1910.242(b); and 1910.141(g)(3)(iii), and the amended proposed penalties based thereon, are hereby AFFIRMED.

5. Items of the Citations and Complaint charging violations [*42] of 29 CFR 1910.94(d)(10; 1910.103(b)(1)(v); 1910.22(d)(1); 1910.157(a)(3); 1910.151(b); 1910.23(c)(2); 1910.93(a); 1910.94(d)(3) and 1910.134(a)(2); and the amended proposed penalties based thereon, are hereby VACATED.