SECRETARY OF LABOR, Complainant, v. PRATT & WHITNEY AIRCRAFT GROUP, DIVISION OF UNITED TECHNOLOGIES CORPORATION, Respondent. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, CANEL LODGE NO. 700, Authorized Employee Representative OSHRC Docket No. 80-5830 _DECISION_ Before: BUCKLEY, Chairman, and RADER, Commissioner.[[*]] BY THE COMMISSION: This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor ("the Secretary") under the Act and has no regulatory functions. _See_ section 10(c) of the Act, 29 U.S.C. § 659(c). The Secretary issued a citation to Pratt & Whitney Aircraft Group ("P & W"), a division of United Technologies Corporation, alleging violations of an employee instruction standard and three personal protective equipment standards at its facility in Middletown, Connecticut. At issue is whether Administrative Law Judge David J. Knight erred in concluding that P & W committed the four alleged violations. We vacate the three items in the citation alleging that P & W failed to properly instruct employees, provide protective gloves, and provide protective aprons. We affirm without precedential value the judge's conclusion that P & W failed to require the wearing of goggles or face shields, and we characterize that violation as other-than-serious. In P & W's Electro-Chemical Machine ("ECM") Department two principal operations were performed. First, airplane parts were machined to a specified size and shape by an electro-chemical process in room-sized ECM's. Then, parts were moved to the "pickling line" where they were "pickled," or cleaned, by dipping them into tanks containing solutions that removed residual deposits that had accumulated on the parts during machining. The "pickling line" consisted of seven open surface tanks, one containing a 35% hydrochloric acid solution, one with a 35% nitric acid solution, one with alkali cleaner, and four with water. Each tank was 4 feet wide, 6 feet long, and 8 feet deep, and was sunken such that it stood only 3 feet above the floor. The parts, which were round and generally large, were moved vertically and from tank to tank by means of a motorized hoist which ran along a track above the line of tanks. The ECM operator would control the direction of the hoist by pressing a button while standing in front of the pickling line. At times, smaller parts were dipped into the tanks by hand. Sometimes employees hand-dipped small bottles or buckets into the acid solution tanks to get solution to use in operations at the ECM. _Item 1A: 29 C.F.R. § 1910.94(d)(9)(i), Alleged Failure to Give Instructions _ Item 1A of the citation alleges that P & W violated 29 C.F.R. § 1910.94(d) (9)(i) because employees working at the hydrochloric and nitric acid solution tanks at the pickling line were not instructed in the hazards of their jobs, in applicable personal protection, and in first aid procedures. The standard provides: § 1910.94 _Ventilation_. (d) _Open surface tanks_-- (9) _Personal protection_. (i) All employees working in and around open-surface tank operations must be instructed as to the hazards of their respective jobs, and in the personal protection and first aid procedures applicable to these hazards. Skin contact with either of the acid solutions can cause pain, burning, redness, and scarring; eye contact with either of them can result in reduced vision or blindness. Judge Knight concluded that P & W had violated all three of the requirements of the standard. We shall consider these requirements in turn. _Instruction in job hazards_. The judge's conclusion that P & W had not instructed its ECM operators in the hazards of their jobs rests on several findings. First, the judge found, "Foreman Batiste's instructions were general and devoid of any specifics concerning safety." P & W argues that this finding is contradicted by the record. We agree. Foreman Batiste testified that as part of the orientation program for new employees he told them that the tanks in the pickling line contain hydrochloric and nitric acids and alkalines. Batiste also warned them to "watch out" for the pickling area, told them that if they get any acid on their hands it should be washed off, and pointed out that there is an eyewash or shower for that purpose. Experienced ECM operator Arnold Chick stated that when training new employees at the pickling line he told them "[w]hat acid does to you if you come in contact with it." Second, the judge noted that ECM operators John Luman, Brian Pinney, Charles Clark, and Paul Schmelke, who were trained by operators other than Chick, "did not know of the dangers of these acids or even of the names of acids as a result of their training." However, those same operators admitted that they had read the "caution" signs on the acid tanks which identified the acid and stated that it "CAUSES BURNS." _See_ _Butler Lime & Cement Co. v. OSHRC_, 658 F.2d 544, 551 (7th Cir. 1981) (employer may communicate ten-foot clearance rule by sign). Moreover, Pinney and Clark testified that the operators who trained them told them that the tank acids would "burn your fingers." Clark also testified that "everybody in the department knows that if you stick your bare hand in the acid, you're going to get burned." Similarly, employees Luman and Schmelke testified that they knew that contact with tank acids could harm them. Finally, the judge suggested that P & W had no "effective formalized safety training program."[[1]] We disagree with the judge's implication that the standard requires a "formalized safety program." Rather, we have construed another standard like the one here as requiring employers to give instructions that are reasonable under the circumstances. _See_ _Rochester Products Division, General_ _Motors Corp_., 85 OSAHRC 12 BNA OSHC 1324, 1330, 1985 CCH OSHD ¶ 27,257, pp. 35,221-22 (No. 80-5439, 1985) (opinion of Chairman Buckley) (section 1926.21 (b)(2)); _Dravo Engineers and Constructors_, 84 OSAHRC 20/B6, 11 BNA OSHC 2010, 2011-12, 1984 CCH OSHD ¶ 26,930, p. 34,507 (No. 81-748, 1984) (section 1926.21 (b)(2)). In determining the reasonableness of instructions, we must consider such factors as the obviousness of the hazard, _Butler Lime & Cement Co. v._ _OSHRC_, 658 F.2d at 548 (need not tell adults not to come into contact with live wires), the experience of the employees, the likelihood that an accident would occur, and the degree of harm that would result from an accident. The burn hazard from the acids was obvious to the ECM operators based on their knowledge, common sense, and experience. The corrosive property of acids is a matter of common knowledge, and, as part of their experience at the pickling line, P & W's ECM operators saw that the acid solutions ate away at the deposits on the metal parts being dipped in the two tanks. As evidence that the likelihood of an accident involving the acids was negligible, P & W introduced its OSHA No. 200 forms, which 29 C.F.R. § 1904.2 requires employers to maintain, for the two and one-half years preceding the inspection. Those forms show that there was no reportable injury resulting from acid contact during that time period in the ECM Department at the Middletown facility. Injury records are relevant evidence to establish the presence or absence of a hazard. _General Motors Corp_., _GM Parts Division_, 84 OSAHRC 23/A2, 11 BNA OSHC 2062, 2065-66, 1984 CCH OSHD ¶ 26,961, p. 34,611 (Nos. 78-1443 & 79-4478, 1984), _aff'd_, 764 F.2d 32 (1st Cir. 1985). Moreover, Dr. Richard Wilcox, senior physician at the Middletown plant, reviewed the medical records of all the employees who had ever worked in the ECM Department at that plant. Those records demonstrate that from 1969 to the time of the hearing, which was over a year after the inspection, there were eleven incidents of ECM Department employees being splashed with hydrochloric or nitric acid. In all those cases, first aid was applied, and no impairment or lost time on the job resulted. It is noteworthy that not all of those eleven instances of splashing set forth in the medical records necessarily occurred at the pickling line because presumably operations at the ECM itself, some of which involved the use of acid solution taken in bottles or buckets from the pickling line, were also included in the ECM Department medical reports. In light of the obviousness of the hazard, the knowledge gained by the employees from their experience, and the small likelihood of harm to the employees, we find that the instructions in the dangers of the acids in the tanks given by foreman Batiste during orientation, by experienced ECM operators during on-the-job training, and by the signs on the tanks were adequate. We therefore do not find any inadequacies of instruction in the hazard which would serve as a basis for citation item 1A. _Instruction in personal protection_. Judge Knight stated in his decision that P & W had an implied duty under the standard to instruct employees so that they understand what personal protective equipment they must use to protect themselves in different situations at the pickling line. He determined that, based on the testimony of the ECM operators and foreman Batiste, P & W had not fulfilled that duty. ECM operators Luman, Pinney, and Schmelke stated that they were never told what specific types of personal protective equipment to wear while working at the acid tanks. ECM operator Clark stated that the only such instruction that he received was an oral warning from an experienced ECM operator during training to wear rubber gloves. Judge Knight stated that "as a matter of course" ECM operators did not wear gloves, aprons, and face shields or goggles because "no effective disciplinary program was in force to assure the use of proper equipment." He found that, when they did wear gloves, ECM operators wore ones that were too short or cracked to prevent acid contact with skin because they were not properly instructed about the need for protection. We note at the outset that section 1910.94(d)(9)(i) does not require employers to provide protective equipment or enforce its use; other standards elsewhere in section 1910.94(d)(9) may do that, as we note below. The standard here requires only that employers give instructions as to personal protection. We find that that requirement of the standard was met. ECM operators admitted that it is "common sense" to wear protective equipment when exposed to acid and to wear gloves when placing one's hands into an acid tank. Putting that common sense into practice, the ECM operators did wear some protective equipment while working at the pickling line. Luman wore rubber gloves, an apron, safety glasses, and a face shield. Pinney wore, when they were available, rubber gloves and safety glasses or goggles, and he sometimes wore a face shield. Clark wore gloves when dipping small parts into the tanks, and Schmelke wore gloves on occasion. According to foreman Batiste, when he brings a new employee to an experienced ECM operator for training for a few days, he tells the new employee to wear certain protective equipment, such as rubber gloves and safety glasses, which can be obtained from the crib in the next department. He tries to place a new employee with an operator who is conscientious about wearing protective gear and performing the job properly and can explain the procedures to the employee. Experienced ECM operator Chick stated that he had been instructed to wear gloves and safety glasses and, when training new employees at the pickling line, he had told them where the personal protective equipment was located. Judge Knight once again considered Batiste's instructions to be too general and those given on the job by experienced ECM operators to be inadequate under section 1910.94(d)(9)(i). We do not share that view. Just as the obviousness of a hazard bears on the instructions that need be given, the obviousness of the methods of protection from the hazard bears on the detail of instruction in their use. The ECM operators admitted that it is common sense to use personal protection when working at acid tanks. Because the use of such protection is obvious, P & W need not provide extensive instructions on the matter. Batiste's orientation and the experienced ECM operators' explanations given to new employees, along with the example set by experienced ECM operators, constituted reasonable instructions in the use of personal protective equipment under the circumstances of this case. We therefore find no inadequacies in the personal protection instruction to support the citation item. _Instruction in first aid_. According to Judge Knight, P & W employees must be instructed to flush any area of their skin or eyes that comes into contact with either of the acids immediately; otherwise permanent harm could result. Based on the testimony of the ECM operators and Batiste, the judge determined that P & W's employees were not adequately instructed as to what first aid treatment to apply if they contacted the acid. ECM operator Schmelke testified that he was never told what to do if one of the acids got on his skin. However, foreman Batiste informed employees about the eyewash and shower and told them to wash their hands if they got acid on them. Pinney and Clark stated that when they got acid on their hands while wearing gloves, they took off their gloves and rinsed or washed their hands. One ECM operator testified that he knew from the signs on the tanks to wash off any contact area. Those signs, which the ECM operators testified that they had read, stated: "IN CASE OF CONTACT FLUSH SKIN and/or EYES WITH WATER FOR 15 MINUTES AND GET MEDICAL ATTENTION."[[2]] We conclude that the specific language of the signs on each tank, which the ECM operators testified that they had read, and Batiste's instructions to employees about the use of nearby eyewash facilities, constitute reasonable instructions under the circumstances. Finding no inadequacies in the first aid instruction and no other inadequacies as alleged, we vacate the citation item. _Items 1C & 1D; 29 C.F.R. §§ 1910.94(d)(9)(iii) & (iv), Alleged Failure to Provide Gloves and Aprons_ Items 1C and 1D of the citation allege that P & W violated 29 C.F.R. §§ 1910.94(d)(9)(iii) and (iv) in that it did not "provide" impervious gloves and aprons for employees working at open surface tanks. The standards state: § 1910.94 _Ventilation_. (d) _Open surface tanks_-- (9) _Personal protection_. (iii) All persons required to handle work wet with a liquid other than water shall be provided with gloves impervious to such a liquid and of a length sufficient to prevent entrance of liquid into the tops of the gloves. The interior of gloves shall be kept free from corrosive or irritating contaminants. (iv) All persons required to work in such a manner that their clothing may become wet shall be provided with such aprons, . . . made of rubber, or of other materials impervious to liquids other than water, as are required to keep their clothing dry. Aprons shall extend well below the top of boots to prevent liquid splashing into the boots. Provision of dry, clean, cotton clothing along with rubber shoes or short boots and an apron impervious to liquids other than water shall be considered a satisfactory substitute where small parts are cleaned, plated, or acid dipped in open tanks and rapid work is required. At the hearing, the Secretary focused primarily on the compliance officer's testimony that P & W employees were not using gloves and aprons. To P & W's objection that the standards do not mandate that the employer require the use of gloves and aprons, but instead that the employer "provide" the equipment, the Secretary argued that such a construction would be "wooden" and out of keeping with the remedial purpose of the Act. Judge Knight affirmed the two citation items. He evidently agreed with the Secretary's position, though his reasoning was somewhat different. The judge characterized the instruction standard, section 1910.94(d)(9)(i), as a general, introductory statement that "binds the specifics that follow [_i.e_., the standards on personal protection] into a unified whole." The judge reasoned that the instruction standard implicitly requires that employees be made to understand the conditions under which protective equipment "must" be used. Inasmuch as "aprons were not worn" and "no effective disciplinary program was in force to assure the use of [gloves]," the judge concluded that P & W had not "provided" gloves and aprons within the meaning of section 1910.94(d)(9). P & W argues that the judge's construction was erroneous because it had the effect of interpreting the word "provide" in the cited standards as meaning "require the use of," an interpretation far beyond the literal words of the standards. We agree. We conclude for the reasons that follow that the word "provide" ordinarily does not signify a requirement of use and, contrary to the judge's view, we do not find that section 1910.94(d)(9) suggests the word should not be given its ordinary meaning. In _Borton, Inc. v. OSHRC_, 734 F.2d 508 (10th Cir. 1984), the Tenth Circuit reversed a Commission decision holding that the requirement in 29 C.F.R. § 1926.451(a)(13) that an access ladder be "provided" should be read as implicitly requiring that the ladder be used, in order to effectuate the broad, remedial purpose of the Act. _Borton, Inc_., 82 OSAHRC 17/E13, 10 BNA OSHC 1462, 1465, 1982 CCH OSHD ¶ 25,983, p. 32,599 (No. 77-2115, 1982), _rev'd_, 734 F.2d 508 (10th Cir. 1984). The Tenth Circuit held that the employer had met its obligation of providing a ladder by making a ladder available, without requiring its use. The court stated that "the term 'provide' is not ambiguous . . . . Thus there is no need to look beyond the face of § 1926.451(a)(13) to discover the meaning of 'provide.'" 734 F.2d at 510, citing the earlier Tenth Circuit decision in _Usery v. Kennecott Copper Corp_., 577 F.2d 1113, 1118-19 (10th Cir. 1977) ("We do not agree that the Secretary may read 'shall be provided' to mean 'shall require use.'"), _aff'g_ 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1402, 1976-77 CCH OSHD ¶ 20,860, p. 25,042 (No. 5958, 1976). The Commission has considered a number of cases in which the Secretary has argued that the term "shall provide" means "shall require the use of." Generally, the Commission has read the term to impose a supply requirement rather than a use requirement.[[3]] In no case has the Commission implied a use requirement from a provision requirement except when related standards contained an explicit use requirement.[[4]] We need not reach the question of whether these latter cases should be followed and standards requiring provision should be construed together with closely-related standards explicitly requiring use. As we shall discuss below, there is no provision in section 1910.94(d) that suggests a use requirement. Instead, all this case presents is whether a single standard that uses the term "provide" should be construed to require the use of provided equipment. The word "provide" is not ambiguous. Dictionaries define the word as meaning "supply," "furnish," and "equip," and give no connotation of mandating use.[[5]] Moreover, other standards in section 1910.94(d)(9), the section concerning personal protection at open surface tanks, show that terms other than "provide" were employed when their drafters intended to impose upon employers an obligation to ensure the use of protective equipment. Section 1910.94(d)(9)(v) states that employees "shall be required to wear" goggles or face shields, and section 1910.94(d)(9)(vi) declares that employees "shall be required to wear" adequate respirators in certain emergencies. By contrast, the standards cited in this case, as well as sections 1910.94(d)(9)(ii) (foot protection), (ix) (washing facilities), and (X) (locker space), all contain the words "shall be provided." The Secretary could have promulgated a standard imposing a use requirement as suggested by the Second Circuit in a case involving a similar standard,[[6]] but he has not. Instead he has chosen to rely solely on a consensus standard of the American National Standards Institute ("ANSI") (see 29 C.F.R. § 1910.99 (source of standards), which distinguishes between equipment the employer need only provide and equipment which the employer must both provide and require to be used. The Commission, as an adjudicatory body, lacks authority to rewrite the standards and may not impose on them a meaning that would deprive employers of fair notice of the conduct required or prohibited. _See_ _Diamond Roofing Co. v. OSHRC_, 528 F.2d 645, 650 (5th Cir. 1976); _Cape and Vineyard Division v. OSHRC,_ 512 F.2d 1148, 1152-53 (1st Cir. 1975); _Lisbon Contractors, Inc_., 84 OSAHRC 19/A2, 11 BNA OSHC 1971, 1973-74, 1984 CCH OSHD ¶ 26,924, p. 34,500 (No. 80-97, 1984).[[7]] Finally, we disagree with the judge's heavy reliance on section 1910.94 (d)(9)(i), the general instruction standard. The language of that standard offers no basis for holding that the word "provide" was not used in its ordinary sense. In stating that employees "must" be "instructed" in "personal protection . . . applicable to [open surface tank] hazards," the standard does not suggest that employers must require the wearing of the personal protection about which employees are instructed. We therefore conclude that sections 1910.94 (d)(9)(iii) and (iv), that state that employers shall "provide" gloves and aprons, require only that that protective equipment must be made available. Having concluded that the cited standards require no more than that gloves and aprons be provided, we must consider whether P & W satisfied that requirement. Gloves and aprons were kept in cribs at different locations in the building. The Secretary put forth no evidence that gloves and aprons were not available at the cribs other than the one nearest the ECM Department. Indeed, the Secretary's counsel focused his questioning more on the use of the gloves and aprons than on their availability. This accorded with the testimony of the Supervisor of Industrial Hygiene at OSHA that the citation would not have been issued if P & W had required the use of gloves and aprons. Moreover, it was P & W's counsel who elicited the only testimony regarding the availability of gloves and aprons at the other cribs. It was established that employees could obtain gloves and aprons from the crib by completing a voucher and presenting it to the crib attendant. Gloves and aprons were usually available at the crib nearest the ECM Department, except at very busy times. One ECM operator testified that if he ever would have problems getting the equipment from the crib nearest the ECM Department, he would report it to his foreman and go to another crib for the items. Moreover, another ECM operator testified that a pair of gloves usually could be found lying near the pickling line. Although there was some testimony by ECM operators that gloves and aprons of insufficient size or thickness to protect employees had been distributed at the crib, it was not established that such distribution was a frequent occurrence or that at those times the crib contained no fully protective gloves and aprons for which the insufficient gear could have been exchanged. We therefore conclude that the Secretary failed to prove that P & W did not provide gloves and aprons to its employees working at the pickling line, and we vacate items 1C and 1D. _Item 1E: 29 C.F.R. § 1910.94(d)(9)(v), Alleged Failure to Require the Wearing of Goggles_ The Secretary contends in citation item 1E that P & W committed a violation of 29 C.F.R. § 1910.94(d)(9)(v) because it did not require employees to wear goggles or face shields at the pickling line. The standard provides: § 1910.94 _Ventilation._ (d) _Open surface tanks_-- (9) _Personal protection_. (v) Whenever there is a danger of splashing, for example, when additions are made manually to the tanks, or when acids and chemicals are removed from the tanks, the employees so engaged shall be required to wear either tightfitting chemical goggles or an effective face shield. See § 1910.133. Some ECM operators and a foreman did not generally wear goggles or face shields. However, the standard requires that employees be required to wear goggles or face shields only when there is a "danger of splashing." ECM operator Luman testified that he had seen acid splash out from open surface tanks due to the force exerted by parts swinging down into the tanks. He also stated that he had never had acid splash in his eyes. However, he testified, "A lot of times you'd lift [a part] up and you thought you had it right. That you had judged the part. And yet it would come down." As a result, acid splashed on Luman's "upper arm" while he was wearing the longest gloves that P & W provided, which were 18 inches long and covered about three quarters of Luman's arm. ECM operator Schmelke testified that he had seen acid splash out of the tanks "on occasion" as a result of parts swinging as they were lowered into the tanks. Pinney stated that even though he had not gotten splashed with acid from the tanks, acid splashing "can happen" particularly when parts with pockets, or depressions in their sides, are being lifted from the dip tank because the acid remaining in the pockets splashes out. Based on that evidence, Judge Knight found in his decision that splashes endangering the head area had occurred due to parts being dipped and acid pouring from the pockets in parts being lifted out of the tanks. P & W contends that no violation was proven because the Secretary did not show that any employee working at the tanks was engaged in a procedure that had resulted or could result in acid splashing onto the face. Because section 1910.94(d)(9)(v) requires that there be a "danger of splashing" for the standard to apply, the Secretary must show that such a danger existed in order to establish a violation. In _Schulte Corp_., 85 OSAHRC ___/___, 12 BNA OSHC 1222, 1225, 1985 CCH OSHD ¶ 27,210, p. 35,127 (No. 80-2666, 1985), the Commission stated that in order to prove that there was a "danger of splashing" under section 1910.94(d)(9)(v) the Secretary must establish that "there is more than a theoretical possibility that an employee could be splashed with a chemical solution." Because the standard uses the term "danger," the Secretary must show that the cited condition presents a significant risk of harm. _Anoplate Corp_., No. 80-4109 (March 4, 1986). _See_ _Pratt & Whitney_ _Aircraft v. Donovan_, 715 F.2d 57, 63-64 (2d Cir. 1983); _Pratt & Whitney Aircraft v. Secretary of Labor_, 649 F.2d 96, 104 (2d Cir. 1981). Chairman Buckley would conclude that a danger of splashing was proven. He notes that the nature of the pickling operation is such that there is more than a theoretical possibility that employees would be splashed with acid from parts hitting the surface of the tanks, or from acid that had collected in pockets in the parts when they poured out into the tanks below. Although there was no evidence of an employee being splashed in the face at the pickling line, ECM operator Luman testified that "[a] lot of times" acid splashes from parts rapidly descending into tanks had occurred as high as his upper arm above his long gloves, which is not that far from his face. It is apparent that the height and direction of splashes are unpredictable. Whether a splash could reach an employee's face, or eyes, depends on such factors as the speed at which the part is travelling down into the tank and the distance from the employee. _Cf_. _Vanco Construction, Inc_., 82 OSAHRC 71/A2, 11 BNA OSHC 1058, 1060-61, 1983-84 CCH OSHD ¶ 26,372, pp. 33,453-54 (No. 79-4945, 1982), _aff'd_, 723 F.2d 410 (5th Cir. 1984) (section 1926.102(a)(1)--potential eye and face injury from concrete chips). The record is silent as to how tall ECM operator Luman is, so we assume he is a man of average height. Had the parts descended more quickly and a shorter employee been in Luman's place when he was splashed on his upper arm, splashing into the face would have been likely to have occurred. Moreover, P & W's medical records show that eleven instances of acid splashing had occurred in the ECM Department, albeit not all may have been at the tanks. Chairman Buckley concludes that, given the unpredictable height of splashes and the hazardousness of the acids, the record as a whole demonstrates a significant risk, and hence a danger, of splashing within the meaning of the standard. Because goggles or face shields were not generally worn, he finds a violation of the standard. However, in light of the relatively close proximity of flushing facilities, the testimony that prompt washing would prevent permanent damage, and P & W's low injury rate, Chairman Buckley concludes that there was not a substantial probability of serious injury and would affirm this citation item as other-than-serious. In Commissioner Rader's view, the evidence does not show a significant risk of chemical solution splashing into an employee's eyes, and thus does not show that a violation of section 1910.94(d)(9)(v) was committed. There was no evidence that any employee working at the pickling line had ever been splashed in the eyes with the hydrochloric or nitric acid solution, or that such a splash had ever occurred at head level. In addition, as noted earlier, P & W's OSHA No. 200 forms for the two and one-half years preceding the inspection showed no reportable injury from acid contact in the ECM Department. Commissioner Rader therefore concludes that no significant risk of acid splashing into the employees' eyes was shown, and he would vacate the citation item. In any event, Commissioner Rader would agree with the Chairman that any violation of section 1910.94 (d)(9)(v) in this case would be other- than-serious because of the low injury rate and nearness of flushing facilities. Section 12(f) of the Act, 29 U.S.C. § 661(e), states that official action can be taken by the Commission with the affirmative votes of two members. Accordingly, Chairman Buckley and Commissioner Rader agree to reverse Judge Knight's decision on this item insofar as he characterized it as serious. They agree that any violation would be other-than-serious. They also agree that, taking into consideration the factors in section 17(j) of the Act, 29 U.S.C. § 666(i), especially the low gravity of the violation, no penalty should be assessed. To resolve their impasse on the item itself and to permit this case to proceed to a final resolution, the members have agreed to affirm the judge's decision as to the item itself but accord it the precedential value of an unreviewed judge's decision. _See_ _Life Science Products Co._, 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶ 22,313 (No. 14910, 1977), _aff'd sub nom_. _Moore v. OSHRC_, 591 F.2d 991 (4th Cir. 1979). We therefore vacate items 1A, 1C, and ID, which respectively allege violations of sections 1910.94(d)(9)(i), (iii), and (iv). We also conclude that item 1E should be characterized as other-than-serious and that no penalty should be assessed. Because of an impasse, Judge Knight's decision affirming item 1E itself becomes a final order of the Commission. FOR THE COMMISSION RAY H. DARLING, JR. EXECUTIVE SECRETARY DATED: APR 18 1986 ------------------------------------------------------------------------ The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386). FOOTNOTES: [[*]] Commissioner Wall did not participate in this decision. [[1]] We note that P & W offered a 20-hour course on the ECM Department in which employees were told what acids were in the tanks at the pickling line and what precautions to take when working at the "hazardous" line. The ECM course was given only when P & W had enough employees to constitute a class; therefore, there were some P & W employees who had not yet taken the course when the OSHA inspection occurred. [[2]] P& W was also cited for failure to comply with 29 C.F.R. § 1910.145(c)(3), which provides: "Safety instruction signs shall be used where there is a need for general instructions and suggestions relative to safety measures." The judge vacated that item, concluding that the caution signs on the acid tanks satisfied that requirement. The Secretary suggests that the warning sign erected in compliance with section 1910.145(c)(3) should not be considered compliance with section 1910.94(d)(9)(i), lest a redundancy in the standards be created. We do not need to consider that suggestion because we do not rely solely on the first-aid portions of the signs to find that first-aid instructions were given. [[3]] _Hillsdale Lumber & Manufacturing, Inc_., 77 OSAHRC 54/D2, 5 BNA OSHC 1281, 1282, 1977-78 CCH OSHD ¶ 21,766, p. 26,154 (No. 5815, 1977) (construing § 1910.213(b)(5)); _Kennecott Copper_, 4 BNA OSHC at 1401-02, 1976-77 CCH OSHD at p. 25,042 (§ 1910.28(a)(12) "only requires that a ladder be provided ... If the Secretary had intended to require the use of a ladder, he should have so stated in the standard."); _Cam Industries, Inc_., 74 OSAHRC 10/C4, 1 BNA OSHC 1564, 1565 n. 2, 1973-74 CCH OSHD ¶ 17,373, p. 21,903 n. 2 (No. 258, 1974) (construing § 1910.133(a)(1)). [[4]] _See_ _Clarence M. Jones_, 83 OSAHRC 23/A27, 11 BNA 1529, 1531-32, 1983-84 CCH OSHD ¶ 26,516, p. 33,750 (No. 77-3676, 1983) (§ 1926.102(a)(1) construed in light of § 1926.28(a)); _Truax & Hovey Drywall Corp_., 78 OSAHRC 47/A14, 6 BNA OSHC 1654, 1656 & n. 4, 1978 CCH OSHD ¶ 22,799, p. 27,532 & n. 4 (No. 14516, 1978) (§ 1926.451(a)(13) construed in light of § 1926.450 (a)(1)'s requirement of use of ladders); _Ray Boyd Plaster & Tile, Inc_., 78 OSAHRC 47/D8, 6 BNA OSHC 1648, 1652-53 & n. 6, 1978 CCH OSHD ¶ 22,794, p. 27,520 & n. 6 (No. 76-814, 1978) (§ 1926.451(a)(13) construed as above); _Turnbull Millwork Co_., 77 OSAHRC 205/C8, 6 BNA OSHC 1148, 1149, 1977-78 CCH OSHD ¶ 22,388, p. 26,990 (No. 15047, 1977) (§ 1910.213(a)(15) requires use of combs or jigs since it requires their provision when saw guards required by various standards in § 1910.213 cannot be used); _G.A. & F.C. Wagman, Inc_., 74 OSAHRC 78/B10, 2 BNA OSHC 1297, 1298, 1974-75 CCH OSHD ¶ 18,882, pp. 22,702-03 (No. 1284, 1974) (§ 1926.106(a) construed in light of § 1926.106(b)'s requirement that life jackets be inspected before and after use). _See_ _also_ _Borton, Inc_., 10 BNA OSHC at 1465 n. 3, 1982 CCH OSHD at p. 32,598 n. 3 (majority member relying in addition on related standards requiring "use"). [[5]] See Random House Dictionary 1157 (1971); Webster's Third New International Dictionary 1827 (1971). _See_ _also_ _Asbestos_ _Textile Co_., 84 OSAHRC, 12 BNA OSHC 1062, 1066, 1984 CCH OSHD ¶ 27,101, pp. 34,950-51 (No. 79-3831, 1984) (views of Chairman Buckley); _Borton, Inc._, 10 BNA OSHC at 1467-69, 1982 CCH OSHD at pp. 32,600-03 (Rowland, dissenting). [[6]] In _General Electric Co. v. OSHRC_, 540 F.2d 67, 69 (2d Cir. 1976), the court stated: If the employer were a guarantor of the employee's use, a serious question would arise as to whether such an interpretation [of § 1910.133(a)(1)] would exceed the legislative requirements. See _Brennan v. OSHRC and Hendrix, d/b/a Alsea Lumber Co_., 511 F.2d 1139, 1144-45 (9th Cir. 1975). We do note, however, that if employers are to be held to an obligation requiring something more than instructing employees to use protective equipment but something less than guaranteeing use, the promulgation of a standard fleshing out the employer's obligation would provide useful guidance to employers, the Commission, and reviewing courts. [[7]] Indeed, the Secretary has shown in his own rulemaking that he understands there to be a distinction between "provide" and "use." One provision of the asbestos standard, section 1910.1001(d)(3), requires the employer to "provide, and require the use of, special clothing," while other provisions, sections 1910.1001(d)(4)(i) and (ii), require only that the employer "provide" change rooms and lockers. Provisions of the relatively recent ethylene oxide standard, section 1910.1047(g)(1) and (4), require the employer to "provide" respirators and protective clothing and "ensure" that they are used, while subsections (i)(1)(i)(B) and (i)(2)(i) require that the employer only "make available medical examinations." One provision of the relatively new hearing conservation standard, section 1910.95(i)(1), states that employers "shall make hearing protectors available" when noise is 85 or more decibels, while another provision, subsection (i)(2), states that the employer "shall ensure that hearing protectors are worn" in specific circumstances. The Secretary also discussed the reasons for the difference in language. See 46 Fed. Reg. 42622, 42629 (1981) and 46 Fed. Reg. 4078, 4111, 4151-2 (1981).