SECRETARY OF LABOR, Complainant, v. MIKEL COMPANY, INC., Respondent. OSHRC Docket No. 88-2587 _ORDER_ The parties' Stipulation and Settlement Agreement is approved. This order is issued pursuant to a delegation of authority to the Executive Secretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979). FOR THE COMMISSION Ray H. Darling, Jr. Executive Secretary Dated: June 6, 1989 ------------------------------------------------------------------------ ANN MCLAUGHLAN, SECRETARY OF LABOR U.S. DEPARTMENT OF LABOR, Complainant, v. MIKEL COMPANY, INC. Respondent. Docket No. 88-2587 APPEARANCES: WILLIAM G. STATON, ESQUIRE U.S. Department of Labor Office of the Solicitor For the Complainant ANDREW MIKLOS President Mikel Company, Inc. For the Respondent _DECISION AND ORDER_ SOMMER, JUDGE: This proceeding arises under the Occupational Safety and Health Act, of 1970 (29 U.S.C. 651 _et_ _seq_., hereafter called the "Act"). Following an inspection of the Respondent's business site at 601 East 137 Street, Bronx, New York, the Secretary of Labor issued two citations charging violations as follows: Citation No. 1 alleges serious violations of 29 C.F.R. 1910.106(d)(i), .106(d)(4)(v), .106(d)(4)(iii), .106(d)(4)(iv) - added by amendment, .107(b)(5)(i), .107(c)(5), .107(c)(6), .107(c)(7), .107(c)(9), .107(g)(2), settled after trial - .1200(e)(i), .1200(g)(6), .1200(h). Other than serious citation No. 2 alleges violations of 29 C.F.R. 1903.2(a)(i) and 29 C.F.R. 1904.2(a). Respondent initially contested all the alleged violations and penalties. Subsequent to the trial a settlement agreement was entered into with respect to violations charged at 1910.1200(e)(i), 1910.1200(g)(6) and 1910.1200h. A hearing was held in New York, New York, on September 19-20, 1988. Both parties filed post-hearing briefs. No jurisdictional issues are in dispute, the parties having pleaded sufficient facts to establish that the Respondent is subject to the Act and the Commission has jurisdiction of the parties and of the subject matter. The citation for violations of 29 C.F.R. 1910.1200(e)(i), .1200(g)(6) and .1200(h) were settled after trial and have been disposed off by a settlement agreement. _BACKGROUND_ The Mikel Company, Inc. is a New York Corporation located at 597-601 East 137 East Street, Bronx, New York, and is engaged in the manufacture of furniture. _DISCUSSION_ _Alleged violation of 29 C.F.R. 1910.106(d)(4)(i) and 29 C.F.R. 1910.106(d)(4)(iv) - item No. 1(a), Serious Citation No. 1_ The flammable liquid storage room charges stem from the observations of the Compliance Officer that a 5th floor storage room approximately 6'x 8' was observed to be storing flammable solvents (stains, lacquers etc.) His finding that the storage room was constructed of wood and the absence of a sill were conditions alleged to be in violation of 29 C.F.R. 1910.106(d)(4)(i), and the absence of a gravity or mechanical exhaust system resulted in an alleged violation of 29 C.F.R. 1910.106(d)(4)(iv). The foreman told the Compliance Officer that this 5th floor room was used for storage, and testified that "we've got a lot of stains and we kept glazes and stuff in there." (Tr. 23) Miklos affirmed this area as being used for storage (Tr. 33). Accordingly, the Secretary established a prima facie case of violations of both standards. However, it would appear that the main storage room where the bulk of the flammable liquids are kept is on the first floor, and the 5th floor room is merely a small adjunct, being used on a lesser scale. Under these circumstances there is a lesser degree of harm, and a penalty of $100 is warranted herein. _Alleged violation of 29 C.F.R. 1910.106(d)(4)(iii) - item No. 1(b) of Serious Citation No. 1_ The Compliance Officer observed that the electrical system in the storage room, i.e. the light switches, electrical wiring, the light were not approved for a hazardous location in violation of 29 C.F.R. 1910.106(d)14)(iii) since there was a hazard arising from the combustion and flammability of vapors therein. Other than his denial of this allegation, the Respondent offered no proof to offset the charges. Accordingly, a violation of this standard was established. Under the existing facts and circumstances a penalty of $100 is appropriate. _Alleged violation of 29 C.F.R. 1910.106(d)(4)(v) - item No. 1(c), Serious Citation No. 1_ The standard requires that "in every inside storage room there shall be maintained one clear aisle at least 3 feet wide. . . " The Compliance Officer found on observation and measurement the aisle space in the storage room to be 12 inches wide. The Respondent presented no evidence to offset this charge. On the evidence of record I find a violation of this standard. Since only one employee worked therein and there was an aisle although smaller than required, with the hazard in totality less than emphasized, a penalty of $75 is deemed appropriate herein. _Alleged violation of 29 C.F.R. 1910.107(b)(5)(i) - item No. 2 of Serious Citation No. 1_ The citation alleges that the Respondent violated 29 C.F.R. 1910.107 (b)(5)(i) by failing to provide adequate ventilation in the spray booth. The Compliance Officer testified that tests of the air velocity showed an air flow of 70 linear feet per minute and that the standard requires not less than 100 linear feet per minute. Additionally, there were no gauges or audible alarm or pressure activated devices present to indicate or insure that the required air velocity is maintained. The evidence fully establishes the presence of the violation and it is affirmed. A penalty of $100 for the violation is consistent with the criteria set forth in section 17(J) of the Act under all the existing facts and circumstances. _Alleged violation of 29 C.F.R. 1910.107(c)(5), (c)(6), and (c)(7) - items 3(a)(b)(c) of Serious citation No. 1_ The Respondent was cited for alleged violations of 29 C.F.R. 1910.107(c)(5) (Presence of electrical equipment not affirmed for areas readily ignitable and explosive), 1910.107(c)(6) (nonexplosion proof electrical wiring and equipment), and 1910.107(c)(7) (electrical lamps not totally enclosed). To prove these violations, the Secretary must demonstrate by a preponderance of the evidence that the air surrounding the areas involved had dangerous concentrations of flammable or explosive vapors. The Secretary failed to present any evidence of the presence of such a condition. The Compliance Officer took no tests to substantiate his naked opinion of the explosive nature of the air. Additionally, no evidence was presented that his background, education and experience qualified him to make any opinion as to the atmosphere present. The Compliance Officer's conjecture is insufficient to establish the existence of an explosive or dangerously flammable atmosphere at this worksite. Accordingly, the citation is vacated. _Alleged violation of 29 C.F.R. 1910.107(e)(9) - item No. 4 of Serious Citation No. 1_ The Respondent was cited for alleged violation of 29 C.F.R. 1910.107(e)(9) in that in the transfer of flammable or combustible liquids from one can to another there was no grounding to prevent discharge sparks of static electricity. The Respondent maintained that the drums containing the lacquer are coated to prevent sparking from static electricity, which was not refuted. Hereto the Compliance Officer's testimony as to a hazard was mere conjecture. He observed the process yet did not testify he actually observed "sparks of static electricity", merely stating the pump on the can "could cause a spark." The Compliance Officer's conjecture is insufficient to prove a violation. The proof must be clear and convincing. It cannot be presumed or inferred. In short, the record does not demonstrate that the Secretary has sustained his burden of proof as to the existence of a violation of 29 C.F.R. 1910.107E) (9) and it is vacated. Moreover, the Secretary's case further falls since it failed to prove that the area surrounding where the transfer of liquids was taking place had dangerous concentrations of flammable or explosive vapors which would be ignited if there were such sparks of static electricity. _Alleged violation of 29 C.F.R. 1910,107(g)(2) - item No. 5 of Serious Citation No. 1_ The Respondent was cited for alleged violation of 29 C.F.R. 1910.108(g)(2) for failing to keep the walls, radiator and baffle plates of the paint spray area free of combustible residues. The Compliance Officer found a violation because there was paint on the items listed above. He admitted that in spraying these objects would be covered with paint (Tr. 182) but that they had to be cleaned periodically (He indicated a frequency of "anywhere from 6 months to a year). The Respondent offered proof that the area is cleaned daily and the paint scraped down every couple of weeks (Tr. 218, 219). Thusly, it is apparent that the Respondent is keeping the spraying area as free from the accumulation of deposits of combustible residues as practical. Certainly, he has done more than the Compliance Officer noted was necessary therein. There is no proof of the existence of a combustible residue on the objects cited. The preponderance of the evidence does not support a finding of a violation of 29 C.F.R. 1910.107(g)(2) and it is vacated. The Respondent was cited for alleged violation of 29 C.F.R. 1903.2(a)(1) (failure to post OSHA notice) and 29 C.F.R. 1904.2(a) (failure to maintain log of occupational injuries and illness for years 1983, 1984, and 1986). No evidence was presented to disprove these allegations and both citations are affirmed as other than serious with no penalty assessed. _MOTIONS_ Motion by the Respondent to dismiss the citations is denied. _FINDINGS OF FACT_ All findings of fact relevant to a determination of the contested issues have been found specially in the above decision. See Rule 52(a) of the Federal Rules of Civil Procedure. All proposed findings of fact or conclusions of law inconsistent with this decision are denied. _ORDER_ 1. Citation 1, item 1(a) is affirmed as a serious violation of 29 C.F.R. 1910.106(d)(4)(i) and 29 C.F.R. 1910.106(d)(4)(iv) with a penalty of $100. 2. Citation No. 1, item 1(b) is affirmed as a serious violation of 29 C.F.R. 1910.106(d)(4)(iii) with a penalty of $100. 3. Citation 1, item 1(c) is affirmed as a serious violation of 29 C.F.R. 1910.106(d)(4)(v) with a penalty of $75. 4. Citation 1, item 2 is affirmed as a serious violation of 29 C.F.R. 1910.107(b)(5)(i) with a penalty of $100. 5. Citation 1, items 3(a), 3(b), 3(c) alleging violations of 29 C.F.R. 1910.107(c)(5), (c)(6), and (c)(7) are vacated. 6. Citation 1, item 4 alleging a violation of 29 C.F.R. 1910.107(e)(9) is vacated. 7. Citation 1, item 5 alleging a violation of 29 C.F.R. 1910.107(g)(2) is vacated. 8. Citation 2, items 1 and 2 alleging violations of 29 C.F.R. 1903.2(a)(1) and 29 C.F.R. 1904.2(a) is affirmed as other than serious with no penalties. SO ORDERED. IRVING SOMMER Judge, OSHRC DATED: 1 FEB 1989 Washington, D.C. ELIZABETH DOLE, SECRETARY OF LABOR, Complainant, v. MIKEL COMPANY, INC. Respondent. OSHRC DOCKET No. 88-2587 *STIPULATION AND SETTLEMENT AGREEMENT* I. The parties have reached agreement on a full and complete settlement of the instant matter which is presently pending before the Commission. II. The parties stipulate as follows: (a) The Occupational Safety and Health Review Commission (hereafter "the Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1980 (84 Sat. 1590; 29 U.S.C. 651 _et_. _seq_.) (hereafter "the Act"). (b) Respondent, Mikel Company, Inc., is a corporation with its principal place of business in Bronx, New York. It is engaged in the manufacture of furniture and during the course of its business respondent uses materials and equipment which it receives from places located outside Bronx, New York. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by Section 3(3) and 3(5) of the Act and is subject to the requirements of the Act. (c) As a result of an inspection conducted on September 24 through September 29, 1987, at respondent's workplace at 601 East 137th Street in Bronx, New York, a citation for eight serious violations and a citation for two other-than-serious violations were issued to respondent on December 4, 1987 pursuant to Section 9(a) of the Act. A total penalty of $3,290 was proposed for the violations. (d) Respondent contested the citations and proposed penalties.[[1]] On January 12, 1989, Commission Administrative Law Judge Irving Sommer issued his Decision and Order in which he dismissed items 3(a), (b) and (c) of Serious Citation No. 1 alleging violations of 29 CFR 1910.107(c)(5), 1910.107(c)(6) and 1910.107(c)(7), item 4 of Serious Citation No. 1 alleging a violation of 29 CFR 1910.107(e)(9), and item 5 of Serious Citation No. 1 alleging a violation of 29 CFR 1910.108(g)(2). The judge affirmed items 1(a), 1(b), 1(c), alleging violations of 29 CFR 1910.106(d)(4)(i) and (4)(iv), 1910.106(d)(4)(iii), 1910.106(d) (4) (v) and item No. 2 of Serious Citation No. 1 alleging a violation of 29 CFR 1910.107(b)(5)(i). The judge also affirmed both items of the other-than-serious Citation No. 2 for alleged violations of 29 CFR 1903.(a)(1) and 1904.2(a). Thereafter, the Secretary filed a timely Petition for Review on the dismissal of items 3(b), 3(c) and 4 of Serious Citation No. 1. The petition was granted by the Commission on March 2, 1989. III. Now, the Secretary of Labor and Mikel Company, Inc., in order to conclude this matter without the necessity of further litigation or review, stipulate as follows: 1. The Secretary hereby agrees to withdraw its Petition for Review. 2. Respondent hereby agrees to withdraw its Notice of Contest to the alleged serious violation of 29 CFR 1910.107(e)(9) (item No. 4 of Serious Citation No. 1) and states that the violation has been abated and shall remain abated. 3. Respondent hereby agrees to pay the sum of $1 (1 dollar) for the alleged serious violation of 29 CFR 1910.107(e)(9) within ten (10) days from the date of this agreement by sending a check to the OSHA Area Office in Flushing, New York. 4. Respondent and Complainant agree that each party shall bear its own costs. 5. Respondent certifies that a copy of this agreement posted at the principal place(s) of business of Mikel Company on _______ ___, 1989, in accordance with Commission Rule 7 and shall remain posted for ten (10) days. No affected employees are involved. Antony F. Gil Andrew Miklos Counsel for the On Behalf of Secretary of Labor Mikel Company FOOTNOTES: [[1/]] On motion of the Secretary, the complaint was amended at the hearing to separately allege a violation of 29 CFR 1910.106(d)(4)(iv). In addition, also at the hearing, respondent agreed to withdraw its contest of Items 6, 7, and 8 of Citation No. 1 and the Secretary agreed to reduce the proposed penalties thereto.