UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 13955
WESTINGHOUSE ELECTRIC CORPORATION,
Respondent.

December 11, 1980

ORDER

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

In our prior decision in this case, a divided Commission concluded that Respondent failed to comply with the standard at 29 C.F.R. § 1910.94(c)(2), which requires that spray booths or spray rooms be used to enclose or confine all spray finishing operations. Westinghouse Electric Corp., 79 OSAHRC 28/B8, 7 BNA OSHC 1318, 1979 CCH OSHD ¶ 23,542 (No. 13955, 1979). The majority based its conclusion that Respondent’s spray finishing operation was not adequately confined on its finding that there was no spatial or physical separation of the spray finishing room from other production activities. Id., 7 BNA OSHC at 1323, 1979 CCH OSHD at 28,521.[*] In dissent, Commissioner Barnako stated:

The definition of a spray room does not state whether or not ‘separation’ requires a certain minimum distance and the Secretary offered no evidence or argument from which it can be concluded that ‘performed separately from’ does or does not contemplate any particular proximity. In such circumstances I would conclude that the Secretary failed to establish that Respondent’s operations were not performed separately from other areas. (Footnote omitted).

Id., 7 BNA OSHC at 1324–25, 1979 CCH OSHD at 28,522.

On appeal, the United States Court of Appeals for the Seventh Circuit concluded that section 1910.94(c)(2) does not necessarily require spray-finishing operations to be conducted in a room in which no other activities take place but might be satisfied by a sufficient spatial or physical separation between the spray finishing operation and other activities. Westinghouse Electric Corp. v. OSHRC, 617 F.2d 497 (7th Cir. 1980). The court noted that the Commission’s majority and dissenting opinions possibly could be reconciled under the court’s interpretation. The court further concluded that ‘[t]he record was not developed for the purpose and is not sufficient to support a determination of whether or not the location of the Westinghouse spray painting is sufficiently separated from other activities in the particular circumstances so as to qualify as being conducted in a spray room.’ Id. at 503. Accordingly, the court vacated our prior decision and remanded to us ‘for further proceedings consistent with this opinion to determine whether or not the spray painting is being conducted in a spray room.’ Id. at 503.

The court’s decision requires that the parties be afforded an opportunity to present further evidence relevant to the separation of Respondent’s spray-finishing operation from other activities in its facility. Accordingly, the case is remanded to Administrative Law Judge Sidney J. Goldstein, who heard the case in the first instance, to afford the parties the opportunity to present additional evidence and argument on this point and to determine whether Respondent’s spray painting operation was performed in a spray room within the meaning of 29 C.F.R. § 1910.94(c)(1)(iii).

SO ORDERD.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

BY: Gloria W. White

Acting Executive Secretary

DATED: DEC 11, 1980

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[*]The record establishes that Respondent’s spray finishing operation was not performed in a spray booth. The dispute in this case centers over whether the operation was performed in a spray room, which is defined as ‘a room in which spray-finishing operations not conducted in a spray booth are performed separately from other areas.’ 29 C.F.R. § 1910.94(c)(1)(iii).