SECRETARY OF LABOR,

Complainant,

v.

SEIBEL MODERN MANUFACTURING &
WELDING CORPORATION,

Respondent.

OSHRC Docket No. 88-0821

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.


BY THE COMMISSION:

At issue is a single serious citation item alleging that "[h]elpers or
attendants" did not have "proper" eye protection while performing tack
welding operations.[[1/]] The administrative law judge vacated the
citation item on the basis that the helpers involved in this case were
not exposed to hazards necessitating eye protection. The judge did not
reach other issues, including the employer's affirmative defenses. For
the reasons that follow, we reverse the judge's decision and remand the
case for a determination consistent with the principles of law discussed
herein.

I. _The Employer's Tack Welding Operation_

During several months in late 1987 and early 1988, Gordon DeLeys, a
compliance officer with the Occupational Safety and Health
Administration ("OSHA"), of the United States Department of Labor,
conducted an inspection of Seibel Modern Manufacturing & Welding
Corporation ("Seibel" or "the employer") [[2/]] Seibel manufactures
industrial-size, metal battery cases at a fabrication shop in Lancaster,
New York. On five separate occasions at the shop during his inspection,
Compliance Officer DeLeys observed a tack welding operation performed by
two welders with two helpers, working in pairs.[[3/]] Each pair of
employees, a welder and a helper, were fitting together, and tack
welding into position, metal pieces of battery cases. Tack welding holds
the metal pieces precisely in place for the next step in the
manufacturing process, continuous welding.

Seibel has two tack welding operations, a one-employee operation for
small battery cases (30-50 pounds), and the two-employee operation at
issue here, handling large battery cases (up to 1,000 pounds or more).
In the two-employee operation, which Compliance Officer DeLeys observed,
the welders were wearing welding helmets having appropriately shaded
lenses. However, the helpers eye protection consisted solely of, at
best, street-wear prescription spectacles having clear (unshaded)
lenses. Because the welders and helpers were the same distance
(approximately two feet) from the arcs, Compliance Officer DeLeys
believed that the helpers, like the welders, should be equipped with
appropriately shaded lenses. The risk created by the absence of this
protection was welding flash--that is, corneal burns which, if repeated,
could lead to blindness.

Seibel's president, Leon Seibel, who testified at the hearing, was "not
personally aware of any cases of weld[ing] flash that either of my two
[helpers] have indicated to me." One helper had worked in the tack
welding operation for eight years; and the other had worked for
twenty-five years. President Seibel suggested that helpers did not need
shaded lenses because the metal pieces being welded often shielded the
arc from view and, in any instance where metal was not successfully
shielding an arc, the welder could usually cup a gloved hand around it,
to block the helper's view. Nevertheless, Compliance Officer DeLeys
observed the helpers looking toward bare arcs and, on the basis of these
observations, estimated that the arcs were unshielded 25 percent of the
time. President Seibel acknowledged a possibility that the arcs were not
always shielded, and he posited that a helper could, as a last resort,
look away from an arc. However, as we will describe in greater detail,
the president's testimony describing the operation tends to confirm that
a helper generally needs to watch whether the metal pieces are fitting
together correctly. Compliance Officer DeLeys testified along the same
lines, that a helper frequently must look toward the arc to assure that
he is holding the metal pieces in the correct position.

President Seibel testified that the helpers use rulers and must be able
to see well enough for precision within plus or minus 1/32 inch.
Therefore, according to the president and the employer's expert witness,
Gary Howard, of Mills Welding Supply, the helpers could not wear the
safety glasses or goggles with deep shaded lenses that were suggested by
Compliance Officer DeLeys.[[4/]] President Seibel particularly noted
that deep-shaded lenses would prevent a helper from seeing the ruler
markings while he is lining up the metal pieces and fitting them
together. According to President Seibel, a welder wears a deep-shaded
lens while making a tack weld only in order to be able to see during
that short time: "[T]he light [from the arc] is generally so bright that
[a welder] would not be able to see what he [is] doing unless he ha[s] a
shaded lens." But, President Seibel indicated, if a helper were required
at all times to wear safety glasses or goggles having deep-shaded
lenses, he would not be able to see during the process of assembling the
metal pieces, which is done in ordinary light, in preparation for the
tack welding.

Compliance Officer DeLeys suggested that this difficulty could be
eliminated by having the helpers wear welding helmets or flip down
shades, and flip these temporary forms of eye protection down only when
ready for a tack weld. President Seibel indicated, in reply, that a
helper cannot "shake his head down similar to what a welder does" (to
cause a flip-down helmet to fall into place over the face). A helper's
hands are occupied with keeping the large, often warped metal pieces
from shifting, and the action of flipping a helmet into position could
contribute to imprecision:

Q. What, if anything, would prevent your [helper] from lining up the
material with the ruler or measuring device, [then] when he had it lined
up, putting on a dark shaded eye protection, and then communicating to
the tack welder, proceed?
A. He would not be able to see what the material has done as soon as he
put his eye shade on compared to when the tacking operation commences.
Q. He has already lined it up, what is there for him to--
A. It doesn't--it doesn't stay lined up as easily as you are alluding
to....[I]t is essentially level material and when it is sheared, it in
most cases will get a slight bow to it and in doing so[,] when we put
the material together, certain force has to be exerted to spring the
material into position and [to hold it] there at the instantaneous point
where it has to be tacked. And if he were to have a dark shade on, he
would not be able to see the ruler operation[:] the ruler dimension he
is trying to [adhere to] as he is holding the material and trying to
spring it in[to] position.

The rulers used by Seibel were yellow with black markings. In response
to questioning by the Secretary's attorney, Seibel's president testified
that Seibel had not tried using "magnified rulers.[[5/]]

Nor had Seibel tried using a jig, which is a mechanical device used to
hold pieces of metal in the correct position while they are being
assembled. President Seibel testified, however, that a helper could not
be replaced with a jig because, for the largest battery cases, the jig
would have to be "enormous." Also, a jig would need to be adjustable to
fit many different-size cases, or there would need to be many
different-size jigs:

[W]e have about 5,000 different sizes and we only run these battery
cases sometimes one or two at a time[,] maybe five or ten at a time. A
jig operation is out of the question.

Specifically:

[W]e can not have a jig for every size. We get new sizes constantly, new
dimensions constantly[;] the dimensions are [often] changed and it would
be strictly inappropriate to be able to jig up that particular material
and if we could, we would have a long time ago, believe me.

Moreover:

You can not make [a jig] adjustable for as many varied sizes and types.
They are not all square steel boxes. Some are rectangular, some have
indentations in them, some have appurtenances that have to be added to
them[;] they have different types of hinging on them in some cases.
Lifting apparatuses have to be attached to them. Without you knowing the
operation, it is extremely difficult for me to try to describe all the
different things that go on in that particular operation to a point in time.

Q. Correct me if I am wrong. But what you are saying is not [that] it
would be impossible, but rather [that] it would be very time consuming
and therefore very costly.

A. No. I am saying it would be impossible.

President Seibel went on to note that making adjustments to a jig on a
piece-by-piece basis "sounds very simple the way you are describing it
and I wish it could be that simple, but it is not." The most substantial
problem would be that the jig could not properly hold in place the many
heavier metal pieces that are "slightly bowed," therefore requiring
pressure to force (or "spring") them into the precise position.

In addition, President Seibel suggested that there could be an increased
risk of welding flash if helpers began to depend on flip-down eye
protection. According to President Seibel's testimony, a helper without
any eye protection could shield himself behind the metal pieces and, if
that proved ineffective, the welder could cup his gloved hand around the
arc. However, if a helper had eye protection to put on, neither he nor
the welder would concentrate any longer on providing shielding; instead,
the welder might proceed with the weld while the helper was still trying
to adjust his flip-down lenses or shake down his helmet. As President
Seibel stated: "If a [helper] mistimes his helmet coming down to when he
tells the [welder] to tack the two pieces of metal and my [welder] does
not use a hand over the arc flash as they have alluded to, then we would
have more probability of having weld[ing] flash to my [helpers]."

II. _The Secretary's Proof of a Violation_

To establish a violation of a standard, the Secretary must show by a
preponderance of the evidence that: (1) the cited standard applies, (2)
its terms were not met, (3) employees had access to the violative
condition, and (4) the employer knew or could have known of it with the
exercise of reasonable diligence. See, e.g., Walker Towing Corp., 14 BNA
OSHC 2072, 2074, 1991 CCH OSHD ¶ 29,239, p. 39,157 (No. 87-1359, 1991).
In this case, there is no question of applicability, as the cited
standard covers "all arc welding" operations and covers "[h]elpers"; no
question of access, as the helpers could and did look toward the welding
arcs in the normal course of tack-welding work; and no question of
knowledge, as Seibel knew of the conditions under which the helpers were
working. The one question relating to the Secretary's burden of proof is
whether the terms of the standard were not met, that is, specifically,
whether Seibel failed to comply with the cited standard's requirement
for "proper eye protection." Seibel contends that clear lenses were
sufficient eye protection for the helpers, and therefore "proper" within
the meaning of the standard, because of a relative lack of hazard from
the welding operation as it was performed at Seibel's fabrication shop.
Former Administrative Law Judge Foster Furcolo agreed, concluding that
the "uncontradicted testimony that the Respondent's method of welding
had been carried on for some 25 years without any accident or injury to
any employee" shows "that its method of welding is non[ ]hazardous." 
For the following reasons, we set aside the judge's decision and hold
that the cited standard was violated in this case.

The cited standard, 29 C.F.R. § 1910.252(e)(2)(i)(a), governs the
"selection" of "[e]ye protection" for employees involved in welding. It
explicitly requires that "[h]elmets or hand shields shall be used during
all arc welding operations" and that "[h]elpers or attendants shall be
provided with proper eye protection." See note 1 supra. The standard
does not specify that the degree of protection "proper" for helpers is
the same as for welders, but in a nearby, related standard, 29 C.F.R. §
1910.252(e)(2)(ii), there are apparently comprehensive "[s]pecifications
for protectors" that imply that lenses having a degree of shading are
part of "proper" eye protection. In other words, the specifications
indicate that clear lenses are not "proper" protection. Notably, two of
the specifications are the following:

Lenses shall bear some permanent distinctive marking by which the source
and shade may be readily identified. The following is a guide for the
selection of the proper shade numbers.

These recommendations may be varied to suit the individual's needs.[[6/]]

Also, the final specification of 1910.252(e)(2)(ii) states:

All filter lenses...shall meet the test for transmission of radiant
energy prescribed in ANSI Z87.1-1968--American National Standard
Practice for Occupational and Educational Eye and Face Protection.

The significant piece of information to be gleaned from the referenced
ANSI test is that clear lenses are not "filter lenses," and are not
meant to give the same type of protection. ANSI section 6.3.3.3.3 states
that "[c]lear lenses shall transmit not less than 89 percent of the
incident luminous radiation" (emphasis added). But ANSI section
6.3.3.3.2 states that "[f]ilter lenses shall meet the
radiant-energy-transmission requirements specified in Table 1." Filter
lenses, as defined by the latter ANSI section, are shade numbers 4
through 14. Shade numbers 1.7 through 3 are "[a]bsorptive lenses,"
according to section 6.3.3.3.1, which also specifies that this type of
lens must meet the "radiant-energy-transmission requirements" of Table
1. The table limits not only luminous transmissions but infrared and
ultraviolet. Actually, according to the table, even the lightest shade
number--1.5 (which apparently is not even an absorptive lens)--cuts
luminous transmittance to 55-67 percent, infrared to 25 percent, and
ultraviolet to 0.2 to 65 percent (different percentages for four
different wavelengths). In sum, these lenses--filter, absorptive, and
other shades--must meet specific requirements limiting transmittance
across the full spectrum of light. Clear lenses, however, are not
subject to these requirements and actually must not fail to transmit
most of the luminous portion of the spectrum.

On review, [[7]] Seibel maintains that the cited standard does not state
or imply that shaded lenses are "proper" eye protection in an arc
welding operation employing an electrode smaller than the ones listed in
the guide accompanying the cited standard, _see_ note 6 _supra_, and
Seibel endorse the judge's rationale that the Secretary failed to prove
a hazard.  As we have discussed, however, and as the Secretary argues,
the cited standard implicitly presumes a hazard where clear lenses,
only, are being used.  For every employee involved in arc welding,
welders and helpers alike, the standards, requires a degree of eye
protection that includes shaded lenses.  _CF._ _Vanco Construction,
Inc._, 11 BNA OSHC 1058, 1071, 1983-84 CCH OSHD ¶ 26,372, p. 33,454 (No.
79-4945, 1982), _aff'd_, 723 F.2d 410 (5th Cir. 1984) (a broadly worded
eye protection standard is not vague because there is a "guide in the
selection of eye and face protection"  that informs employers of
appropriate protection for various operations).  The fact that smaller
electrodes of the size used by Seibel are not listed in the guide
associated with the cited standard   does not mean that helpers exposed
to arcs from such electrodes may work without protection.  The "guide"
is exactly that, a guide, and employers must make reasonable efforts
apply its guidance to their own operations.  _Cf._, _Towne Construction
Co._, 12 BNA OSHC 2185, 2188-89, 1986-87 CCH OSH  ¶ 27,760, pp.
36,310-11 (No. 83-1262, 1986), _aff'd_ 847 F.2d 1187 (6th Cir. 1988)
(load chart listing some weight limits applicable to specified
situations provides sufficient notice to use an extrapolation method to
determine the precise limit in other situations).[[8/]] Because the
cited standard presumes a hazard where clear lenses rather than shaded
lenses are being used, the employer is not free to leave helpers
unprotected. The Secretary has established that Seibel was not using a
"proper" degree of protection.

III. Seibel's Reliance upon Previous OSHA Inspections

Seibel's brief raises a defense based on several earlier OSHA
inspections, which did not result in any citations concerning eye
protection for the helpers. President Seibel states in the brief:

Since the other, much more experienced, compliance officers in more
comprehensive inspections did not find any safety problems whatsoever in
this area, and since the manner of assembling these battery cases is
continuous throughout the work day and has not changed in forty years, I
would assume [that Compliance Officer DeLeys'] inexperience and obvious
lack of immediate knowledge led him to an erroneous conclusion.

Also, at the hearing, President Seibel had testified:

[I]n all the previous inspections[,] and we have had more thorough and
comprehensive inspections the last 2 or 3 times than what we received
this particular time, and none of those operations which have not
changed, have they ever minutely mentioned anything at all concerning
our assembly and welding operations. Regarding shading for the fitters,
in no way did they mention anything regarding eye protection for the two
man operation and they have viewed that operation completely.

In short, Seibel infers from the uneventful prior inspections that there
must have been no hazard, and Seibel asks us to draw the same inference
against OSHA, despite the cited OSHA standard's presumption of a hazard.
We should not, Seibel basically contends, hold the employer liable where
OSHA had earlier opportunities to issue citations but chose not to do so.

In other cases, the Commission has rejected essentially the same
contention, that is, that the failure of OSHA to cite certain conditions
deprived the employer of notice that those conditions were either
hazardous or in violation of OSHA standards. The Commission has
cautioned employers against freely drawing such inferences from
uneventful inspections, however, for "[c]ertainly, an employer is
required to comply with a standard regardless of whether it has
previously been informed that a violation exists." Simplex Time Recorder
Co., 12 BNA OSHC 1591, 1596, 1984-85 CCH OSHD ¶ 27,456, p. 35,572 (No.
82-12, 1985). In Columbian Art Works, Inc., 10 BNA OSHC 1132, 1133, 1981
CCH OSHD ¶ 25,737, p. 32,102 (No. 78-29, 1981), the Commission more
pointedly warned: "OSHA's failure to issue a citation following an
inspection does not grant an employer immunity from enforcement of
applicable occupational safety and health standards."

That the employer lacked notice of any noncompliance was the argument
rejected in Columbian Art Works and a related case, GAF Corp., 9 BNA
OSHC 1451, 1457, 1981 CCH OSHD ¶ 25,281, pp. 31,246-47 (No. 77-1811,
1981). These cases implicitly rule against deducing from uneventful
prior inspections that particular operations are nonhazardous. See also
International Harvester Co. v. OSHRC, 628 F.2d 982, 985 n.3 (7th Cir.
1980) (earlier failure to cite for violation of a particular standard is
not a decision that the employer was complying). Cf. Cedar Construction
Co. v.OSHRC, 587 F.2d 1303, 1306 (D.C. Cir. 1978) ("[w]e believe that
recognizing such a right [to rely on uneventful prior inspections] would
discourage self-enforcement of the Act by businessmen who have far
greater knowledge about conditions at their workplaces than do OSHA
inspectors").

In Cardinal Industries, 14 BNA OSHC 1008, 1011, 1989 CCH OSHD ¶ 28,510,
p. 37,801 (No. 82-427, 1989), the Commission upheld an employer's view
that "the circumstances of the earlier OSHA inspections deprived it of
fair notice" of a requirement to use safety belts. However, the earlier
inspection had produced a citation for the very same condition as was
later cited, the earlier compliance officer had actually indicated
approval of the very form of abatement that was later alleged to be
insufficient, and "it was far from clear that any OSHA standard
addressed that particular fall hazard." 14 BNA OSHC at 1011-12, 1989 CCH
OSHD at p. 37,801.[[9/]]

In Cardinal, there was a second lack-of-notice argument, which is more
closely analogous to the situation now before us. The Commission
rejected this second argument because the earlier citation had not
included the condition and had not prescribed its abatement. During the
earlier inspection and during a follow-up inspection, the compliance
officer had been in the vicinity of the condition, but "the mere fact of
Mershon twice inspecting this area and not detecting violations does not
exculpate Cardinal." 14 BNA OSHC at 1013, 1989 CCH OSHD p. 37,803. In
rejecting the employer's argument, the Commission cited _Columbian Art
Works_ and _Lukens Steel Co._, 10 BNA OSHC 1115, 1981 CCH OSHD ¶ 25,742
(No. 76-1053, 1981).

_Lukens_ is particularly pertinent to the case now before us:

According to Respondent, this [prior] failure to issue a citation [for]
the pouring platform supports an inference that the employees wore
appropriate equipment. We disagree. The Commission's function is to
decide the cases before it, not to rule on the propriety of the
Secretary's actions in other cases . . . . Accordingly, we will not
speculate on the Secretary's determinations in an earlier inspection.
Further, because compliance with the Act is a continuing obligation, an
employer cannot deny the existence of or its knowledge of a cited hazard
by relying on the Secretary's earlier failure to cite the condition. . .
. Consequently, the Secretary's failure to cite conditions on the
pouring platform during the earlier inspection does not "exculpate" the
Respondent or preclude a finding that the violation now before us was
willful.

10 BNA OSHC at 1126, 1981 CCH OSHD at p. 32,122 (case cites omitted).

In essence, the mere fact of prior inspections does not give rise to an
inference that OSHA made an earlier decision that there was no hazard,
and does not preclude the Secretary from pursuing a later citation. For
this reason, Seibel's argument must be rejected. In this case, the
Secretary could properly cite Seibel for violating the OSHA standard.
Also, as we have discussed, the Secretary has established a violation.
We turn therefore to Seibel's other affirmative defenses, which the
judge did not consider.

IV. _The Affirmative Defense of Greater Hazard _

A. _Contentions of the Parties_

Seibel contends that the wearing of shaded lenses would have endangered
the fitters. "[A]ny uncovered weld would have to be timed exactly... so
that the shaded lens[es] in the helmets are in position at the correct
time," otherwise the employer "might have occur[re]nces of weld[ing]
flash whereas now we have had none." Also, if a helper cannot "see what
he is doing, the situation to him becomes more dangerous since the
materials are quite heavy with sharp corners and edges." [[10/]]

The Secretary contends that Seibel's argument is "mere speculation." She
argues:

Respondent seems to assert that having no shaded lenses at all would be
better than having shaded lenses which possibly may not be in the proper
position one hundred percent of the time... [T]he Commission has
rejected an all-or-nothing approach. Moreover . . . welders have often
failed to cover the weld arc with their hands even when helmets were not
worn by the fitters. In view of the incidence of exposure presently
occurring, it cannot be said that respondent has demonstrated an
increased hazard.

The Secretary further notes that, "[b]ecause the welding operation is a
regular part of respondent's business, no excuse appears for Seibel's
failure to seek a variance if it believed its claim had merit."

B. _The Elements of the Defense_

To establish a defense of greater hazard, an employer must prove that:
(1) the hazards created by complying with the standard are greater than
those of noncompliance, (2) other methods of protecting employees from
the hazards are not available, and (3) a variance is not available or
application for a variance is inappropriate. See Spancrete Northeast,
Inc., 15 BNA OSHC 1020, 1022-23, 1991 CCH OSHD ¶ 29,313, pp.
39,356-39,357 (No. 86-521, 1991). These three elements are now
well-established in court precedent. Id. at n. 3 (listing cases). An
employer's proof of the unavailability or inappropriateness of a
variance is particularly important. E.g., PBR, Inc. v. Secretary of
Labor, 643 F.2d 890, 895 (1st Cir. 1981). In this case, Seibel has not
presented any evidence of the unavailability or inappropriateness of a
variance. On the contrary, the fact that the citation involves a regular
and recurring operation at a permanent workplace strongly suggests that
a variance application would be appropriate. Therefore, Seibel has not
established this defense.

V. _The Affirmative Defense of Infeasibility _

A. _Contentions of the Parties_

Seibel contends that shaded lenses at number 5 or greater would prevent
a fitter from seeing what he is doing. "Our fitter has to measure
accurately," Seibel states. In testimony, President Seibel drew the
conclusion that production errors could become more frequent if a fitter
had to put on shaded lenses because, as Seibel argues, a fitter has to
"handle the material with both hands to effect the required gaps,
[overlapping] of [the] material, etc. as the tacks are performed." The
fitters function could not be supplanted by the use of jigs:

[It is] out of the question except for the very smallest cases that are
ordered in quantities of twenty-five or more at a time. In that case, we
do utilize a jig fixture with one person to handle, assemble and tack a
case.

But, arguing the infeasibility of jigs for the two-person tack welding
operations, Seibel asserts that "[w]e have reviewed our battery case
assembly operation continuously for forty years," thereby implying that
Seibel's own studies of its operations have continuously revealed that
the functions now performed by helpers cannot instead be performed by jigs.

The Secretary contends that Seibel, never having tried to use either
appropriate eye protection or jigs, cannot simply assert that there
would always be operational impediments to the use of eye protection The
Secretary points out that:

Even if . . . shaded lenses would have some effect on the fitter's
ability to keep the [metal battery case] pieces lined up, there is no
real evidence as to what number of defective welds could be expected . .
. . Nor is there evidence as to the consequences of misaligned pieces.
Can the pieces be rewelded or must they be scrapped? Is there a
rejection/repair rate that reasonably must be borne?

Also: Since respondent's expert agreed that even a 1.5 or 1.7 shade lens
is 'certainly better than a clear lens,' and since there is no evidence
negating the possible use of at least a 1.5 or a 1.7 lens, a violation
is established on this basis alone.

Similarly, the Secretary claims that jigs probably could be used to a
"substantial" extent:

Seibel's testimony indicates that the weight of the finished battery
cases ranges from 30 pounds up to 1000 pounds, but there is no evidence
of the numbers of cases manufactured in various size categories. There
is similarly no indication of the relative numbers of cases with an
irregular configuration. These gaps in the evidence work against
respondent, which bears the burden of proving its affirmative defense.

The Secretary asserts that an employer must do at least as much as is
capable of being done, citing Bratton Furniture Manufacturing Co., 11
BNA OSHC 1433, 1434, 1983-84 CCH OSHD ¶ 26,538, p. 33,858 (No. 81-799-S,
1983).

B. _The Case Law Defining Infeasibility_

From the outset of the Act's enforcement, the Commission has been faced
with employers' claims that technological or economic problems precluded
compliance with cited standards. Until relatively recently, our cases
ruling on such claims stated that the employers must show that the
abatement method required under the terms of the standard is
"impossible" to use, in that it is physically impossible to implement
or, if implemented, would preclude performance of necessary work. E.g.,
M.J. Lee Construction Co., 7 BNA OSHC 1140, 1144, 1979 CCH OSHD ¶
23,330, p. 28,227 (No. 15094, 1979). In the mid-1980's, however, the
Commission re-examined its precedent, and the many court cases stemming
from it, and articulated a potentially less stringent test,
"infeasibility". Dun-Par Engineered Form Co. , 12 BNA OSHC 1949,
1956-59, 1986-87 CCH OSHD ¶ 27,650, pp. 36,020-024 (No. 79-2553, 1986),
rev'd in part, 843 F.2d 1135 (8th Cir. 1988) ("Dun-Par I-A"); compare
Spancrete Northeast, Inc., 15 BNA OSHC at 1023, 1991 CCH OSHD at p.
39,357 (employer might have basis to assert infeasibility in a case
where impossibility had not been raised) . That is, an employer could
establish a defense by showing that compliance would be "infeasible
under the circumstances." Cleveland Electric Illuminating Co., 13 BNA
OSHC 2209, 2213, 1987-90 CCH OSHD ¶ 28,494, p. 37,761 (No. 84-593,
1989), citing Dun-Par I-A, 12 BNA OSHC at 1953-56, 1986-87 CCH OSHD at
pp. 36,021-024.

The Secretary asserts in this case that Dun-Par I-A changed nothing but
the terminology.[[11/]] In the Secretary's view, infeasibility
necessarily means impossibility since the Supreme Court, in American
Textile Manufacturers Institute v. Donovan, 452 U.S. 490 (1981)
("ATMI"), defined "feasible" as "capable of being done."

Thus the Secretary cautions in her brief herein:

[I]f the Commission in Dun-Par intended the defense to be one of
impracticality rather than impossibility, then this is a significant
change. See Century Steel Erectors v. Dole, [888 F.2d 1399 (D. C. Cir.
1989)] ("practical" defined as "relating to, or manifested in practice
or action; not theoretical or ideal"; the term "applies to things and to
persons and implies proven success in meeting the demands made by actual
living or use"; "feasible" means "capable of being done or carried out").

Contending that an impossibility test would be "more consonant with the
Act," the Secretary points to court decisions rejecting considerations
of "difficulty," such as interference with existing work practices.

One such decision is the law of the circuit of this case: Brennan v.
OSHRC (Underhill Construction Corp.), 513 F.2d 1032 (2d Cir. 1975)
("Underhill'). There, the cited standard prohibited materials storage
within 10 feet of an open floor edge, but the cited subcontractor
maintained that compliance would interfere with a customary work
practice, that of allowing reusable shoring and braces to overhang an
open floor edge so that cranes could lift them to other floors. The
Second Circuit observed: "[E]ven if the employer could raise [a] defense
[of interference with work practices], on this record he did not meet
his burden of showing that other means, e.g., strapping, chains,
harnesses or the like, were not useable to permit ready crane removal of
the shoring or steel braces." 513 F.2d at 1036 (emphasis added). The
court indicated that employers should carefully consider other "useable"
work practices.

We conclude that there is no conflict between the law of the circuit and
Commission precedent concerning this element of the infeasibility
defense; neither requires proof of impossibility. In fact, the view of
the Second Circuit in Underhill is entirely consistent with the
Commission's in Dun-Par I-A. There, the question was "whether Dun-Par
established that guardrails could not have been installed or would have
disrupted the work to such a degree that there was no feasible way to
use guardrails to protect Dun-Par's employees." 12 BNA OSHC at 1959,
1986-87 CCH OSHD at p. 36,027 (emphasis added). The Commission found
that the use of guardrails was "theoretically possible" because it was
physically possible to install them, but not "feasible" because they
were incapable of being used anywhere for a sufficient length of time to
serve any practical purpose of protection. 12 BNA OSHC at 1959-60,
1986-87 CCH OSHD at p. 36,027-028.[[12/]] Compare Dun-Par Engineered
Form Co., 12 BNA OSHC 1962, 1966-67, 1985-87 CCH OSHD ¶ 27,651, pp.
36,033-2 to 36,033-3 (No. 82-928, 1986) ("Dun-Par II") (infeasibility
defense rejected because the employer failed to demonstrate that the
costs would be "unreasonable" or that the use of guardrails would be
"unreasonable or senseless"; also, the work practices involving use of a
crane to lift shoring materials off a floor could have been altered to
accommodate guardrails).

These cases show that employers must alter their customary work
practices to the extent that alterations are reasonably necessary to
accommodate the abatement measures specified by OSHA standards. That is,
employers cannot generally avoid abatement by relying on industry custom
and practice alone. These cases do not stand for the proposition,
however, that employers cannot rely on genuinely practical circumstances
revealing the unreasonableness of an abatement measure. An abatement
measure must be useable, during employees' work activities, for its
intended purpose of protecting employees. If there is no way to use a
measure for its intended purpose without unreasonably disrupting the
work activities, the mere fact that the measure's installation is
physically possible does not in our view mean that we should compel the
employer to install the measure. This is why we do not see fit to apply
in a literal manner the ATMI definition of feasibility--"capable of
being done"--and why we believe that the infeasibility test articulated
in Dun-Par I-A is the only reasonable test.

C. _The Burden of Proof on the Feasibility of Alternative Measures _

Early Commission precedent pertaining to affirmative defenses, in
particular, the affirmative defense of infeasibility and the affirmative
defense of greater hazard, which we have already discussed, established
that employers must either implement the abatement methods prescribed by
the OSHA standards or, to the extent the abatement methods prove
unworkable because of infeasibility or greater hazard, implement an
alternative protective measure.[[13/]] As is traditionally the case with
affirmative defenses, the burden of proof under the early Commission
precedent rested with the cited employer who believed that both duties,
that is, the duty to comply with the standard and the duty to provide
alternative protection, were incapable of performance because of
physical conditions or work operations that were ongoing and
inalterable, or counterproductive because of greater hazards. E.g. M.J.
Lee, 7 BNA OSHC at 1144, 1979 CCH OSHD at p. 28,227. Cf., Astra
Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 2131 n.16, 1981 CCH OSHD
¶ 25,578, pp. 31,901 n.16 (No. 78-6247, 1981) (burden of proof in
Commission adjudication's is the preponderance of the evidence).

In particular, to establish the affirmative defense that was known as
the impossibility defense, an employer had to show "that (1) compliance
with the requirements of the cited standard either would be functionally
impossible or would preclude performance of required work, and (2)
alternative means of employee protection are unavailable." Id. Prior, to
the inspection in this case, however, the Commission's decision in
Dun-Par I-A changed the defense from impossibility to infeasibility, as
we have discussed, and altered the burden of proof with respect to the
two elements of the defense, in that they were divided between the
parties. That is, if an employer showed the infeasibility of the cited
standard's abatement measure, the burden of proof shifted to the
Secretary to show the feasibility of an alternative abatement measure.
Dun-Par I-A, 12 BNA OSHC at 1956-59, 1986-87 CCH OSHD at pp. 36,024-27.

The question of whether the Commission should reconsider its
reallocation of the burdens of proof arose in April 1988 (prior to the
November 1988 hearing in this case), when the United States Court of
Appeals for the Eighth Circuit, in response to the Secretary's appeal of
Dun-Par I-A, reversed the Commission's ruling, holding that the
Commission had erred in reallocating the burden of proof on alternative
means of employee protection. Secretary v. Dun-Par Engineered Form Co.,
843 F. 2d at 1137-40. The court's decision does not apply directly to
the Seibel case, which arose in a different circuit, but in April 1989
(after the hearing in this case, but before the parties filed their
arguments on review), a two-member Commission, in a decision
implementing the court's decision and remand order, confirmed only
tentatively that the commission would continue to follow its
reallocation of the burden of proof. Dun-Par Engineered Form Co, 13 BNA
OSHC 2147, 2150, 1987-90 CCH OSHD ¶ 28,495, p.37,764 (No. 79-2553, 1989)
("Dun-Par I-B").[[14/]]

The parties in this case were directed to file their review briefs in
late 1989. The Secretary relied on the Eighth Circuit's opinion to
justify having not shouldered the burden of proof as to alternative
measures for the purpose of the infeasibility defense:

The Secretary disagrees with the Commission's reallocation of the burden
of proof . . . . [T]he Commission overruled long-standing precedent that
. . . the employer must show . . . there are no alternative abatement
methods. . . . For the reasons set forth in the Eighth Circuit's
decision . . . the employer must retain the burden . . . .

Seibel, appearing pro se and apparently unaware that the law had
changed, argued only that it had established the infeasibility of
alternative measures.

We now overrule Dun-Par I-A to the extent that it reallocates the burden
of proof regarding the infeasibility of any alternative measures. For
the reasons given in the Eighth Circuit's opinion, with which we agree,
we hold that any employer seeking to be excused from implementing a
cited standard's abatement measure on the basis of its infeasibility has
the burden of establishing either that an alternative protective measure
was used or that there was no feasible alternative measure. As noted,
the parties have tried and argued this time is though the Commission
never reallocated the burden or prove. Therefore, there remains only the
matter of making appropriate findings of fact and conclusion of law as
to whether Seibel has met the burden of proof.

D. _Remand for Factual Findings and Legal Conclusion on the Affirmative
Defense of Infeasibility._

As our recitation of the facts at the outset of this opinion suggests,
Seibel's affirmative defense of infeasibility is highly fact-dependent;
there are close questions of fact that are difficult to resolve. The
administrative law judge did not examine the evidence and did not decide
whether the employer met the standard of proof regarding both elements
of the defense, i.e., the infeasibility of the abatement measure
required by the cited standard (shaded lenses) and the infeasibility of
any alternative measure (jigs). Therefore, a remand is
appropriate.[[15/]] Compare, Kaspar Wire Works, Inc., 13 BNA OSHC 1261,
1262, 1986-87 CCH OSHD ¶ 27,882 p. 36,554-55 (No. 85-1060, 1987) (remand
for the judge to address affirmative defenses apparently overlooked in
his decision).

Seibel is appearing pro se and expresses a legitimate concern to
minimize its litigation expenses. Therefore, we particularly note that
Seibel need not refile the arguments that have already been extensively
presented to us and that our primary objective in remand is to put the
case back before an administrative law judge for the purpose of
resolution of Seibel's infeasibility defense. Our intent is to assure
that Seibel and the Secretary are not denied the careful and complete
factual review that is provided by orderly administrative procedures.

VII. _Order_

Accordingly, we reverse the decision of the judge and remand this case
for further proceedings consistent with this opinion, including an
appropriate disposition of Seibel's affirmative defense of infeasibility.

Edwin G. Foulke,
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: August 9, 1991

------------------------------------------------------------------------

SECRETARY OF LABOR,

 
Complainant
v.
SEIBEL MODERN MANUFACTURING
AND WELDING COMPANY

Respondent

OSHRC DOCKET NO. 88-0821

_DECISION AND ORDER_

This case arose under 29 USC, sec. 651 et seq. of the Occupational
Safety and Health Act of 1970 (the Act). As a result of an inspection by
the Occupational Safety and Health Administration [OSHA] of the
Respondent's premises, Citation #1 was issued charging that the
Respondent violated sec. 5(a)(2) of the Act by the serious violation of
the standard at 29 CFR 1910.252(e)(2)(i)(a), respectively item #3 of
Citation #1.

On or about April 6, 1988, the Respondent filed Notice of Contest to
said item 3 of Citation #1 and the penalty proposed therefor.

The pertinent sections of the Act and the standard are appended to this
decision under appropriate titles.

_PRELIMINARY_

There is little disagreement about the facts. The alleged hazard
concerned employees who were engaged in welding. One employee, called a
"tacker", would do the actual welding on material held by another
employee, called a "fitter". The tacker and fitter worked at a table
facing each other with the part being assembled between them on the
table. The tacker wore a shield but the fitter wore no special
protective glasses [some employees wore regular glasses]. The tacker
wore a glove (on one hand). Both the tacker and fitter were about 24
inches from the radiant energy of the welding, which was in plain view
of management personnel in the area.

_TESTIMONY
_
Seibel, the Respondent's president, testified that in 3/4ths of the
welds, the material itself is between the welding arc and the fitter;
and that the gloved hand of the tacker is cupped over the weld entirely
in most cases ...Tr. 57, 63-68. In his opinion, the operation was not
hazardous and he is not aware of any cases of weld flash even though one
fitter worked for 25 years and one for 8 years ... Tr. 63.

The Compliance Officer, DeLeys, testified that there were times when the
fitter was not protected by either the glove or the material ... Tr.
100. He also conceded that his inspection was the first time he had ever
seen a 2-man welding operation...
Tr. 28.

The Respondent's witness, Howard, testified that he had been a welder
and fitter for 8 years and that the Respondent's operation gives the
fitter adequate protection... Tr. 77-82.

_RECORD OF INJURIES_

The mere absence of any injury does not necessarily lead to the
conclusion that there is no hazard; however, it is at least of some
weight on the question of whether a hazardous condition exists. And the
fewer the number of injuries and the greater the length of time without
injury are both of some consequence in answering that question. In the
instant case, there is uncontradicted testimony that the Respondent's
method of welding had been carried on for some 25 years without any
accident or injury to any employee. That record certainly supports the
Respondent's contention that its method of welding is nonhazardous.

_DISCUSSION _

I was very favorably impressed by the Compliance officer (DeLeys).
However, he had the burden of proof. He had to overcome the opinion of
the Respondent's president [Seibel] and the Respondent's expert [Howard]
who had both had years of experience whereon the Compliance Officer had
never before seen a 2-man operation. In addition, the opinion of the
Respondent's witnesses was corroborated by the Respondent's years of
operation without injury or accident. It was simply too much to be
overcome by the Compliance Officer.

I find that the Complainant has not sustained the burden of proving that
the Respondent violated the standard at 29 C.F.R. 1910.252(e)(2)(i)(a).

_CONCLUSIONS OF LAW_

1. At all times concerned, the Respondent was an employer engaged in a
business affecting commerce within the meaning of the Act; and the
Occupational Safety & Health Review Commission has jurisdiction over the
subject matter and the parties.

2. The Complainant has not sustained the burden of proving the
Respondent violated Sec. 5(a)(2) of the Act (See. 654).

_ORDER_

The whole record having been considered, and due consideration having
been given to 29 U.S.C. Sec. 666(j), it is ordered:

1. Item 3 of Citation #1 is vacated, together with the proposed penalty.

So ordered.

FOSTER FURCOLO
Judge, OSHRC

Dated: March 28, 1989
Boston, Massachusetts

_APPENDIX_

_THE ACT_

1. Section 654 [section 5(a)(2)] Employer" ... shall comply with
occupational safety and health standards ... "

2. Section 666 [section 17(b)] "... employer who has received a citation
for a serious violation... of this Act ... shall be assessed a civil
penalty of up to $1,000 for each such violation."

3. Section 666 [section 17(k)] "... a serious violation shall be deemed
to exist ... if there is a substantial probability that death or serious
physical harm could result... unless the employer did not, and could not
... know of the presence of the violation."

_THE STANDARD_

29 CFR 1910.252(e)(2)(i)(a): "Helmets or hand shields shall be used
during all arc welding ... Helpers or attendants shall be provided with
proper eye protection."

------------------------------------------------------------------------

FOOTNOTES:

[[1/]] The cited standard is 29 C.F.R. § 1910.252(e)(2)(i)(a), which
provides:
Helmets or hand shields shall be used during all arc welding or arc
cutting operations, excluding submerged arc welding. Helpers or
attendants shall be provided with proper eye protection.

[[2/]] We have amended the caption of this case to correct an apparent
error as to the employer's name, which was originally docketed as
"Seibel Modern Manufacturing & Welding Company." The employer's briefs
and other submissions state the name as "Seibel Modern Manufacturing &
Welding Corp."

[[3/]] In testimony, the welders were called "tackers," and the helpers,
"fitters." In this decision, however, we will use the terminology of the
cited standard.

[[4/]] Lens shades are numbered (1.5 through 14) to designate
progressively deeper shades. Compliance Officer DeLeys and OSHA's
technical support group, which he consulted, believed that Seibel's
helpers should wear shade number 10, which Seibel's welders wore. Expert
Howard testified that shade number 10 is appropriate for welders who are
using 85-90 amp welding equipment, which is the kind of welding
equipment that Seibel was using. Expert Howard and President Seibel both
believed, however, that even shade number 5 would be too dark for
Seibel's helpers to wear.

[[5/]] President Seibel further testified that he was "not sure there is
a magnified ruler that can be used in this particular instance." Their
use was not further explored.

[[6/]] The guide to which the latter provision refers recommends a shade
number 12 for "[g]as-shielded arc welding (ferrous)" using electrodes
ranging from 5/32 down to 1/16 inch. Seibel's gas-metal arc welding or
MIG (metal inert gas) welding process employed a smaller electrode than
the guide mentions. Seibel's electrode was .035 inch, closer to 1/32
than 1/16 inch (which is .0625 inch). Compliance Officer DeLeys and the
OSHA technical support group that he consulted therefore recommended a
shade number 10, rather than shade number 12, as specified by the guide.

[[8/]] Moreover, aside from the guidance given in the standard, in this
case there is opinion evidence suggesting that this employer could
actually have recognized the need for shaded lenses. Seibel's expert
witness testified that shade numbers 1.5 or 1.7 would be advisable for
the helpers. (Compliance officer DeLeys testified, however, that he
would not have accepted such a slight shade.) Also, president Seibel had
already realized that the welders needed shaded lenses, and Union
Carbide, the manufacturer of Seibel's welding equipment, recommended
shaded lenses for "observers" of welding.

[[9/]] See also Hamilton Die Cast, Inc., 11 BNA OSHC 2169, 2172, 1984-85
CCH OSHD ¶ 26,983, p. 34,690 (No. 79-1686, 1984) (''[i]n view of the
general nature of the cited standard and the lack of any express
language specifically addressing die casting machines, HDC cannot
reasonably be said to have been on notice of a requirement to
guard....once the Secretary had informed HDC that guarding was not
needed at such times").

[[10/]] President Seibel first made this point in argument, but it finds
some support in his testimony and other record evidence. He had
discussed the matter of a helper's not being able to see through shaded
lenses, and he had described the unwieldiness of the metal battery case
pieces their large size, considerable weight, awkward shape and bowed
condition. He had also offered into evidence photographs of fitters
holding large, flat and thin pieces of metal with sharp corners and
ragged edges. The photographs show that the fitters can sometimes wear
gloves but do not always do so: for example, one photograph shows a
fitter wearing one glove (on the hand holding a metal piece) and having
one hand bare (holding pliers onto another metal piece); another
photograph shows the same fitter holding a metal piece with his bare hands.

[[11/]] The Secretary did not appeal the part of Dun-Par I-A that dealt
with an employer's burden to establish the infeasibility of the
abatement method specified in a cited standard.

[[12/]] Therefore, the Commission decided that it would be unreasonable
to limit the employers' defense to impossibility: "Strict application of
an 'impossibility' defense does not accommodate considerations of
reasonableness or common sense, or reflect the strong sense of the
practical." 12 BNA OSHC at 1955, 1986-87 CCH OSHD at p. 36,023.

[[13/]] See Universal Sheet Metal, 2 BNA OSHC 1061, 1062, 1973-74 CCH
OSHD ¶ 18,163, p. 22,341 (No. 657, 1974) (safety belts used in
alternative to guardrails); George A. Hormel and Co., 2 BNA OSHC 1190,
1192-93, 1974-75 CCH OSHD ¶ 18,685, pp. 22,582-83 (No. 1410, 1974)
(safety harness as alternative to guardrails); American Bridge, 2 BNA
OSHC 1222, 1223, 1974-75 CCH OSHD ¶ 18,702, p. 22,593 (No. 2249, 1974)
(factual indication that neither cited abatement nor alternative was
usable); Cimpl Packing, 2 BNA OSHC 1436, 1437 n.2, 1974-75 CCH OSHD ¶
19,127, p. 22,847 n.2 (No. 1987, 1974) (failure to explore use of
alternative measure); Garrison & Associates, Inc., 3 BNA OSHC 1110,
1974-75 CCH OSHD ¶ 19,550, p. 23,344 (No. 4235, 1975) (cited standard's
additional measure-- hand tools--used in alternative to required machine
guarding, which might have been unusable); Central Steel and Tank, 3 BNA
OSHC 1711, 1712, 1975-76 CCH OSHD ¶ 20,172, p. 24,017 (No. 2346, 1975)
("[e]ven accepting the validity of this claim"--that the cited
standard's methods of machine guarding could not be used--"the record
does not establish that no practical means of protecting against the
hazard exists"). See also Taylor Building Associates, 5 BNA OSHC 1083,
1085 n.6, 1977-78 CCH OSHD ¶ 21,592, p. 25,910 n.6 (No. 3735, 1977) and
other cases cited therein, especially Grossman Steel & Aluminum Corp., 4
BNA OSHC 1185, 1975-76 CCH OSHD ¶ 20,691 (No. 12775, 1976) , and
Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD ¶ 20,690 (No.
3694, 1976), which involve the multiple-employer worksite defense.

[[14/]] Former Commissioner Arey stated: "I leave for another day the
question of whether current Commission precedent is correct; or whether
the Eighth Circuit's position should be adopted. Commission precedent
still places the burden on the Secretary of showing a feasible
alternative means of protection when literal compliance with a standard
is infeasible." Former Chairman Buckley stated: "I concur with
Commissioner Arey's disposition of this case, given the mandate imposed
on the Commission by the Eighth Circuit . . . . " and "[I]t is with
reluctance that I follow the Eighth Circuit's decision . . . . " 13 BNA
OSHC at 2151 & 2153, 1987-90 CCH OSHD at pp. 37,766 & 37,767.

[[15/]] "[T]he Commission is the fact-finder, and the judge is an arm of
the Commission for that purpose." Accu-Namics, Inc. v. OSHRC, 515 F.2d
828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976) (emphasis in
the original). The Commission has authority to make factual findings
where the administrative law judge did not, Accu-Namics, 515 F.2d at
834, but ordinarily an administrative law judge does resolve these
factual issues first and the Commission then exercises a review
function. This bi-level procedure within an administrative agency was
conceived to benefit the parties, and the benefits of it are
particularly evident in cases of close questions of fact. Cf., Ed Taylor
Constr. Co. v. OSHRC, 931 F.2d 1458, 1462-64 (11th Cir. 1991) (citation
item vacated because vacancies on the Commission denied the employer an
opportunity for Commission review of the administrative law judge's
factual findings, under the preponderance of the evidence test). At the
next level of adjudication--review by a federal court of appeals--the
factual findings of the Commission are conclusive as long as they are
supported by substantial evidence. 29 U.S.C. § 660(a).