*SECRETARY OF LABOR,* *Complainant,* *v.* *TRINITY INDUSTRIES, INC.,* *Respondent.* *OSHRC Docket No. 89-1791* *DECISION* Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners. BY THE COMMISSION: As a result of an inspection by the Occupational Safety and Health Administration ("OSHA"), Trinity Industries, Inc. was issued two citations containing a number of items. The only item remaining on review[[1]] alleges an other-than-serious violation of 29 C.F.R. § 1910.178(1)[[2]] for failure to satisfy the requirement that "[m]ethods shall be devised to train operators in the safe operation of powered industrial trucks." OSHA proposed no penalty for this item. At issue is whether Review Commission Administrative Law Judge Louis G. LaVecchia erred in concluding that the Secretary proved the alleged violation. *Background * At Trinity's steel fabrication plant in San Antonio, Texas, there were five forklift trucks used to transport sheet steel plate in the shop bay area. Trinity employed ten or eleven "authorized forklift operators" at the plant, all with 15 to 30 years of experience as forklift operators. The Secretary argues in her brief that "[a]t a minimum this standard [section 1910.178(1)] requires that an employer issue instructions on how forklift operators may recognize and avoid unsafe conditions."' At the hearing, the Secretary elicited testimony from Howard Shelton, Trinity's assistant plant manager at the time of the inspection, that the forklift operators had not received "any actual training" for two and a half years. The compliance Officer who conducted the inspection testified that on-the-job training could be sufficient under the standard if it covered subjects that he considered essential, and employees demonstrated knowledge thereof. He testified that when he questioned at least one employee to determine the level of knowledge of these subjects, the answers were, in his opinion, "not satisfactory." In his decision, the Judge concluded that the Secretary had met her burden of proof in this case, particularly finding that "[t]he record, in fact demonstrates no evidence of a" program, and no evidence the plant's operators have had any training." *Discussion * A review of the record reveals that, contrary to the judge's finding, there is evidence on training introduced by Trinity in the record. When asked on direct examination, if Trinity's forklift operators were "all previously experienced and trained" (emphasis added) assistant manager Shelton responded in the affirmative. Moreover, Sheldon further testified that he has "observed" the operators' driving to see if they were proficient in maneuvering forklifts, and they all were. He also stated that there have not been any forklift accidents at the plant. Shelton testified that the "on-the-job" training that he told the compliance officer about consisted of the following: [W]e have got one person designated, which is our maintenance foreman. If we should hire a new employee to operate a fork truck, he would be tested to run the fork truck. He would be--this would be done outside the plant in our yard or something outside where we got steel that he can move around without anyone being around[,] to find out if the man is even capable of doing this type of job. He further stated that Trinity had not hired any new forklift truck operators at the plant for 15 to 20 years. The Secretary has the burden of proving her case by a preponderance of the evidence. E.g., Regina Constr. Co., 15 BNA OSHC 1044, 1046, 1991 CCH OSHD ¶ 29,354, p. 39,467 (No. 87-1309, 1991); Astra Pharmaceutical Prods., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899-900 (No. 78-6247, 1981), aff'd in pertinent part, 681 F.2d 69 (1st Cir. 1982). The Secretary's evidence includes Shelton's testimony that no actual training had been provided for two and a half years. However, the standard does not state how often training must be provided. The Secretary also relies on the compliance officer's testimony that he had asked questions about subjects that he considered essential and received unsatisfactory answers. However, he did not describe with any specificity what questions he asked or what answers he received.[[3]] That evidence must be balanced against Trinity's evidence that its forklift operators were monitored by Shelton and "trained," and that there was a foreman designated to test and evaluate any new employee. Weighing the above-described evidence presented by the Secretary against that introduced by Trinity, we conclude that the Secretary has not proven a violation by a preponderance of the evidence. See Trinity Indus., 15 BNA OSHC 1579, 1590, 1992 CCH OSHD ¶ 29,662, p. 40,193 (No. 88-1545, 1992) (Secretary failed to prove required radiation survey not conducted); E.I. du Pont de Nemours & Co., 10 BNA OSHC 1320, 1325, 1982 CCH OSHD ¶ 25,883, p. 32,381 (No. 76-2400, 1982) (Secretary failed to prove shower facilities not "suitable" as standard required); see also Granite City Terminals Corp., 12 BNA OSHC 1741, 1745-46 & n.8, 1986-87 CCH OSHD ¶ 27,547, p. 35,774 & n.8 (No. 83-882-S, 1986) (Secretary failed to show alternative method provided was unsafe). Based on this record, we cannot determine whether the training was inadequate under this standard. Therefore, because the Secretary has the burden of proof, we conclude that, based on the specific record in this case, the Secretary has failed to establish a violation by a preponderance of the evidence [[4]]. Cf. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986) (burden of proof is deciding factor when necessary facts cannot be determined conclusively from record). *Order * Based on the Secretary's failure to meet her burden of proof, we vacate citation no. 2, item 5, which alleges an other-than-serious violation of section 1910.178(l). Edwin G. Foulke, Jr. Chairman Donald G. Wiseman Commissioner Velma Montoya Commissioner Dated: July 23, 1992 ------------------------------------------------------------------------ *SECRETARY OF LABOR,* *Complainant,* *v.* *TRINITY INDUSTRIES, INC.,* *Respondent.* *OSHRC Docket No. 89-1791* *APPEARANCES: * Mary E. Witherow, Esquire Dallas, Texas For the Complainant. Robert E. Rader, Jr., Esquire David P. Blanke, Esquire Dallas, Texas For the Respondent. *_DECISION AND ORDER_* LAVECCHIA, Judge: This is a proceeding brought before the Occupational Safety and Health Review Commission ("the Commission") pursuant to § 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("the Act"). The Occupational Safety and Health Administration ("OSHA") conducted an inspection of Respondent's steel fabrication plant in San Antonio, Texas, on April 4, 1989, which resulted in two citations. Citation 1 alleges serious violations of 29 C.F.R. § 1910.180(b)(2) 1910.180(c)(2), 1910.212(a)(3)(ii) and 1910.243(b) (2). Citation 2 alleges "other" violations of 29 C.F.R. § 1910.106(e)(2)(iv)(d), 1910.134(b)(10), 1910.134(b)(11), 1910.134(e)(5)(i) and 1910.178(1). Respondent timely contested the citations and a hearing took place on May 15, 1990, in San Antonio, Texas. Jurisdiction was not in issue and no additional persons intervened. Both parties have submitted post-trial briefs, and this matter is ripe for decision. _*29 C.F.R. § 1910.180(b)(2)*_ Vern Bechtel testified. He has been an OSHA compliance officer ("CO") for almost 20 years and he conducted the subject inspection. He was accompanied by Neil Foreman, Trinity's corporate safety director, John McCasland, the plant manager, and Howard Shelton, the assistant plant manager. (Tr. 4-6; 9-10). During his inspection, Bechtel observed a used, reconditioned crane that did not have hand holds or steps to facilitate access to the cab, which created a fall hazard. He did not see employees enter the cab, but the plant manager told him the crane was used regularly. Bechtel estimated the crane was ten years old, but said he would not be surprised if it dated from the late 60's. He identified Exhibits C-1 and C-2 as photos he took of the crane, and C-3 as the American National Safety Institute ("ANSI") standard B30.5-1968, which the OSHA standard incorporates by reference. (Tr. 10-16; 60). Howard Shelton also testified. He is the plant manager of the San Antonio facility; he was assistant manager at the time of the inspection. He has worked for Trinity for over 11 years; his previous positions include maintenance supervisory positions. He said the crane in C-2 was constructed in 1967. (Tr. 123-27). The subject standard provides as follows: All new crawler, locomotive, and truck cranes constructed and utilized on or after August 31, 1971, shall meet the design specifications of the American National Standard Safety Code for Crawler, Locomotive, and Truck Cranes, ANSI B30.5-1968. Crawler, locomotive, and truck cranes constructed prior to August 31, 1971, should be modified to conform to those design specifications by February 15, 1972, unless it can be shown that the crane cannot feasibly or economically be altered and that the crane substantially complies with the requirements of this section. (Emphasis added). Exhibit C-3 shows paragraph 5-1.8.3(b) of ANSI standard B30.5-1968, which provides as follows: On all crawler, truck- and wheel-mounted cranes suitable hand holds and/or steps shall be provided to facilitate entrance to and exit from the operator's cab and the truck cab. The Secretary contends the record demonstrates a violation. However, as Respondent points out, the Commission has held, based on the standard's history, "that the provisions of section 1910.180 . . . must be considered advisory if the crawler, locomotive, or truck crane was 'constructed and utilized' prior to August 31, 1971." _General Dynamics Corp._, 80 OSAHRC 42/C7, 8 BNA OSHC 1360, 1362, 1980 CCH OSHD ¶ 24,415 (No. 78-3290, 1980). The only evidence in regard to the crane's construction date was the testimony of Howard Shelton, which was not refuted by the Secretary. Based on that testimony, the cited crane is subject to the second sentence of 1910.180(b)(2), which, according to General Dynamics, is advisory, rather than mandatory. Since there can be no violation of an advisory standard, the citation is vacated. _*29 C. F. R. § 1910.180(c)(2)*_ Vern Bechtel testified that he and the management officials with him could not find a load rating chart in the cab of the crane shown in C-2. Although they did not tell him he could not enter the cab, he did not do so because of the lack of steps. The glass and doors on the cab allowed him to see its entire interior from the ground, although he could not see the area behind the operator's seat which housed the machinery and was covered by sheet metal. Bechtel said the lack of a chart was hazardous because the operator would not know the crane's lifting capability and other information which would prevent accidents. (Tr. 16-21; 60-63). Neil Foreman is Trinity's corporate safety director. He testified he had not been inside the cab before the inspection and did not know if it had a chart. Bechtel did not direct his to enter the cab; however, later that day, Forman and Shelton did so and found two load rating charts. One was on a clipboard in a metal pocket on the door frame. The other was attached to the cab with a wire fastener back to the left-hand side of the operator; it was visible from the operator's seat. Both charts were legible and in plastic protectors. Foreman said all parts of the cab were not visible from the ground and that the charts could not be seen from there. (Tr. 102-06; 120). Howard Shelton testified he and Foreman found two charts in the cab after the inspection. One was on a clipboard in the side pocket beside the driver's seat. The other was in a plastic guard with one end fastened to the cab's roof. It was an 8 1/2 x 11" sheet that hung down about eye level behind and to the left of the operator's seat; the operator could read it by turning his head. It had load capability and rating information on it. Shelton said he could not see the chart or all of the cab's interior from the ground because it was too high up. (Tr. 127-28; 146-47; 150-51). The subject standard provides as follows: A substantial and durable rating chart with clearly legible letters and figures shall be provided with each crane and securely fixed to the crane cab in a location easily visible to the operator while seated at his control station. Although the CO believed he could clearly see the cab's entire interior from the ground, I conclude, based on the record, that he was unable to do so. C-2 shows an obscured view of the area behind the operator's seat, and Bechtel's own testimony indicates he could not see that area. Respondent's witnesses said there was a chart behind the seat which was visible to the operator. [[1]] The Secretary asserts Respondent's witnesses are not credible because they did not advise the CO or OSHA about the charts. (Tr. 120-21; 146). However, I observed the demeanor of Foreman and Shelton and found no reason to not credit their testimony. The citation is vacated. _*29 C.F.R. 1910.212(a)(3)(ii)*_ Vern Bechtel observed a Pacific hydraulic press brake that had no guard to keep an operator's hands out of the point of operation. He did not see it operate, but the plant manager told him it was used and that it had never had a guard. The press is actuated with a foot pedal that causes the ram to descend and close an metal pieces inserted into it, making a 90-degree bond in the metal. The manager printed out pieces on the floor that had been used in the press; some of them wore 40" x 8" and had 2" bonds in them. Bechtel identified Exhibits C-4 and C-5 an photos he took of the press with the ram open; C-5 showed some of the pieces he saw. Although the manager did not say where an operator's hands would be when the ran contacted the metal, Bechtel said they would be within inches of the point of operation because of the size of the pieces and bonds he saw. He did not know the speed of the press, but said it would be slow. He said the unguarded press was hazardous and could result in finger amputation. He did not know if the press had caused any injuries. (Tr. 21-27; 63-66). Neil Foreman and Howard Shelton also testified about the press brake. Both have seen it operate, and Shelton has operated it. The operator holds the metal to be bent with both hands it positions its bend marks as the ram descends. The ram's very slow, and it becomes even slower as the ram gives metal, which gives the operator time to align the bend marks. The operator's hands are on the metal when the ram contents its removes his hands. The operator's foot must be on the pedal to lower the ram, and it stops if the operator removes his foot. Hydraulic failure would not cause the ram to fall. Both foreman and Shelton said the press was not hazardous, and Shelton said no one had ever been injured on it. Foreman said the pedal in 3.5 feet from the point of operation. (Tr. 114-16; 121; 328-30) The relevant portion of the subject standard provides as follows: The point of operation of machines whose operation exposes an employee to injury, shall be guarded. For the standard to apply, the operation of the brake press must represent a likelihood of injury. Respondent's witnesses described the operation, but did not say how close an operator's fingers would be to the ram. The CO did not see the operation, but believed the press was hazardous based on the metal pieces he saw. According to the CO, some of the pieces he saw are shown in C-5. However, he did not indicate where the pieces appear in C-5, and I am unable to discern them with any certainty upon viewing the photograph. The only clear evidence in regard to material used in the press was the CO's testimony about the 40" x 8" pieces that had 2" bends in them, although he failed to indicate where the pieces were bent. Obviously, if the bond was made on the 8" side, with the operator holding onto and positioning the metal, the operator's fingers would be dangerously close to the ram. On the other hand, if the bend was made at the end of a 40" piece of metal, with the operator holding onto the other end, the possibility of injury would be remote. Based on the record, I am unable to conclude that the operation of the brake press represented a likelihood of injury. The citation is vacated. *_29 C.F.R. § 1910.243(b)(2)_* Vern Bechtel saw employees using a pneumatic drill which was fed air pressure through a hose connected to the manager told him the pressure was between 85 and 90 p.s.i. The hose consisted of various sections joined by a tube secured by wire wrapped around it. He identified Exhibits C-6, C-8 and C-9 as photos he took and C-7 as a drawing he made of the hose. The hose had bulges in it, which indicated it was weakened; it was also weakened by the splices. Bechtel said either of these conditions could cause the hose to rupture, and then, because of the air pressure, whip around and strike an employee, which would likely result in eye injury, lacerations or fractures. He knows of cases where this has occurred. He said hoses should be designed to withstand 300 p.s.i., and that they should be replaced when they first exhibit bulges. If they are spliced, quick disconnects or threaded air couplings that connect to the hose with teeth should be used. Although none of the splicing he saw was leaking, his opinion was that it was not acceptable, and that it was not made for the purpose of splicing hoses. (Tr. 27-35; 68-71). Neil Foreman testified he had run a test on a portion of the cited hose. It was put in a soap and water mixture and subjected to up to 300 p.s.i. The splices held, and there were no bubbles from air leaks. (Tr. 117-18). Howard Shelton testified that all of the hose used in the plant is two-ply, 300 p.s.i. hose. There were about 5,000 feet of hose in the plant at the time of the inspection, and the only bulges found were in the cited hose. The plant buys its splice fittings and wire connectors from Dixon, a hose repair product manufacturer. Sta-put is the brand name of the fittings and connectors the plant buys, and they are made to repair air hoses. Shelton described the fitting as a barbed steel insert. The hose slides over both ends of it, and wire is pulled tight around it with a banding tube. Shelton has never seen leaks in the splices, and saw none when Foreman tested them. (Tr. 130-32). Shelton said no one had ever been injured because of faulty fittings or hoses. The plant has a policy for inspecting hosing, which consists of checking them for leaks before each use and a weekly report foremen fill out for equipment repair. The plant has safety meetings in which employees are told to check hoses for leaks and how to repair them. They abide by the Policy and are subject to discipline if they do not. He had no knowledge of anyone being disciplined for not inspecting hoses. He also had no knowledge of the bulges before the inspection. (Tr. 133-34:148). The subject standard provides as follows: Hose and hose connections used for conducting.compressed air to utilization equipment shall be designed for the pressure and service to which they are subjected. The foregoing demonstrates the citation was issued because of the bulges in the hoses unacceptable splicing. Based on the record, I conclude the Secretary has not shown a violation in regard to the splicing. However, she has shown a violation in regard to the bulges. Even though there have been no injuries because of faulty hoses, as the CO testified, the bulges indicated a weakened hose that could rupture and cause serious injury to employees. Respondent asserts the condition occurred because of an isolated instance of employee misconduct. The Commission recognizes the defense of unpreventable employee misconduct where the employer can show that it both established and adequately communicated work rules designed to prevent the violation. _Jensen Constr. Co._, 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1479, 1979 CCH OSHD ¶ 23,664 (No. 76-1538, 1979). Respondent did present evidence of a policy of checking hoses for leaks. However, it presented no evidence that employees were instructed to inspect hoses for bulges and to replace them if any were found; therefore, unpreventable employee misconduct has not been shown. The citation is affirmed, and the Secretary's proposed penalty of $600.00 is assessed. This penalty is appropriate in light of Respondent's size, history, good faith and the gravity of the violation. _*29 C.F.R. § 1910.106(e)(2)(iv)(d)*_ Vern Bechtel testified he observed 55-gallon drums in the shop area. He identified Exhibit C-10 as a photo he took of one of them. Although he did not test the drum contents, he determined they contained Chemline coolant HDC Number 396 from either labels on the drums or the employer's material safety data sheets. The coolant is combustible because it has a flash point of 102 degrees Fahrenheit. The drums had gata-type valves, which, if left in an open position, would cause the contents to flow onto the ground. There was evidence this had occurred. Because the drums contained a combustible substance, the standard required them to have self-closing valves, which automatically stop the contents from flowing out when the valve is released. Bechtel said the condition created a fire hazard. (Tr. 36-41: 72-73). Neil Foreman and Howard Shelton testified that the drums contained a mixture of 50 parts of water to one part of Chemline HDC-396 coolant, and that the mixture's flashpoint was over 200 degrees Fahrenheit. Shelton said the mixture is used on saw blades and drill bits. He also said the coolant is combustible before it is diluted. (Tr. 116-17; 134-35). The subject standard provides, in pertinent part: Flammable or combustible liquids shall be drawn from or transferred into vessels, containers, or portable tanks within a building only through a closed piping system, from safety cans, by means of a device drawing through the top, or from a container or portable tanks by gravity through an approved self-closing valve. As Respondent points out, 1910.106 (a) (18) defines "combustible liquids" as liquids with a flashpoint at or above 100 degrees Fahrenheit. The standard also divides combustible liquids into "Class II liquids" (those with a flashpoint above 100 and below 140 degrees) and "Class III liquids" (those with a flashpoint above 140 degrees). Class III liquids are further divided into "Class IIIA liquids" (those with a flashpoint above 140 degrees and below 200 degrees) and "Class IIIB liquids" (those with a flashpoint above 200 degrees). The standard does not apply to Class IIIB liquids. See 1910.106 (a) (18) (ii) (b). The CO did not test the drum contents, and both Foremen and Shelton testified that the coolant, in the diluted form in which it was stored, had a flash point of over 200 degrees. Since the evidence does not demonstrate the standard applied to the drum contents, the citation is vacated. _*29 C.F.R. § 1910.134(b)(10)*_ Vern Bechtel testified he observed an employee, Gassim Sharim, wearing a dust respirator. Management told him a doctor gave employees physicals before they started work, but did not know if they were physically capable of wearing respirators. The manager had the plant nurse call the doctor, who said pulmonary function tests were not given. Bechtel said this was the ordinary test given, but did not know if it was required to ascertain fitness for respirator use. He said employees must be medically determined to be capable of wearing respirators because using them requires more physical exertion in breathing and can cause respiratory distress. (Tr. 41-43; 73-76). Howard Shelton testified that a doctor with an occupational medical clinic in San Antonio gives employees physicals before they begin work, and that this practice was in effect at the time of the inspection. Employees also receive yearly physicals. The doctor determines if employees are fit to wear respirators and decides the pertinent health and physical conditions. Shelton did not know how the doctor determined this; he said the doctor could, but was not required to, administer a pulmonary function test. Shelton receives written reports from the doctor. (Tr. 135-36; 148-49). The subject standard provides as follows: Persons should not be assigned to tasks requiring use of respirators unless it has been determined that they are physically able to perform the work and use the equipment. The local physician _shall_ determine what health and physical conditions are pertinent. The respirator user's medical status _should_ be reviewed periodically (for instance, annually). (Emphasis added). Respondent notes that the Commission has addressed the subject standard, in _General Elec. Co._, 80 OSAHRC 127/F10, 9 BNA OSHC 1185, 1980 CCH OSHD ¶ 25,079 (No. 76-2982, 1980). In that case, the Commission found that 1910.134 (b) (10) was adopted verbatim from the source standard developed by the American National Standards Institute, which states that "[t]he provisions of this standard are mandatory in nature where the word 'shall' is used and advisory in nature where the word 'should' is used." _Id._ at 1186. Therefore, while the second sentence of the standard is mandatory, the first and third sentences are advisory. The citation charges as follows: Persons were assigned to tasks requiring use of respirators and it had not been determined that they were physically able to perform the work and use the equipment, and the respirator user's medical status was not reviewed periodically (for instance annually). The wording of the charge demonstrates Respondent was cited pursuant to the first and third sentences of the standard, however, a violation cannot be predicated on the basis of these sentences, as they are advisory. _Id._ at 1184. However, even though Respondent was not cited pursuant to the second sentence, which is mandatory, the record shows that it complied with that portion of the standard. The citation is vacated. _29 C.F.R. 1910, 134(b)(12)_ Vern Bechtel testified he saw Gassim Sharim, the employee wearing the dust respirator, mixing paint with a mechanical paint mixer. The respirator was not approved for mixing paint. He saw Sharim's supervisor call him away and change his respirator to a cartridge respirator, which was approved for mixing paint. He saw another employee wearing a cartridge respirator spraying paint in the same area. Bechtel talked to Sharim and learned his usual job was machine operator helper; he did not usually mix paint, but had been doing so for about 1.5 hours a week for two weeks. On the day of the inspection, he had been wearing the dust respirator for about 20 minutes. Bechtel said dust respirators do not protect against exposure to chemicals; vapors or fumes can penetrate them and cause respiratory irritation. (Tr. 42-46; 82-85). Bechtel identified Exhibit R-2 as a photo he took of Sharim and the area where he was mixing paint. It was near the end of the building, which was open and had natural ventilation. Bechtel did not conduct any tests, and did not know if Sharim's exposure was actually hazardous. He said the condition was cited as a potential hazard because the paint contained alcohol and ethylene glycol and had an inhalation hazard rating of two; he determined this from the paint's label and the employer's material satiety data sheet. He classified the violation as nonserious because of Sharim's limited exposure. (Tr. 45-47; 76-85). Howard Shelton testified that Sharim's job was that of wheel abrader helper. He described the abrader as a blasting machine with a dust collector. He said Trinity provides a dust respirator to anyone who wants one, and that Sharim wore one even though he was not exposed to dust. He said Sharim mixed point occasionally; on a typical day he would mix paint for 30 to 40 minutes. When the CO saw him, he was in the back of the paint bay, eight to ten feet from where the whole back of the building is open. (Tr. 136-39). The subject standard provides, in pertinent part: Approved or accepted respirators shall be used when they are available. The respirator furnished shall provide adequate respiratory protection against the particular hazard for which it is designed in accordance with standards established by competent authorities. Respondent contends it had no obligation pursuant to the standard because there was no evidence its employee was exposed to any hazard, actual or potential. I disagree. The CO testified the paint was potentially hazardous because of its contents and its inhalation hazard rating, which he determined from the label and Trinity's material safety data sheet. Moreover, the record shows Respondent recognized the potential hazard of exposure to the paint used. The employee spraying paint wore a cartridge respirator, and Sharim's supervisor called him away to replace his respirator. Finally, the record clearly shows there were respirators approved for mixing paint available at the plant. The standard requires approved respirators to be used when they are available; accordingly, Sharim was required to use one in this instance. Even though the hazard may have been lessened by Sharim's limited exposure and the open area in which he worked, the record nevertheless establishes a nonserious violation. The citation is affirmed. No penalty is assessed.[[2]] _*29 C.F.R. 1910.134(a)(5)(i)*_ Vern Bechtel testified that when he talked to Gassim Sharim, he learned he had not been instructed in the proper use of the new cartridge respirator he had received. He had "signed" for it, but had not been fitted for it. He did not know how to put it on and was unable to demonstrate how to test it for proper fit. He thought the respirator was designed to fit everyone, and that leaks could be detected by feeling air passing between the mask and cheek. He did not know the hazards of an improper fit. Sharim said he had seen 3M training films, although Bechtel was not familiar with them. Bechtel said Sharim had sideburns, a moustache and the beginning of a beard, but did not know if these prevented him from getting a good seal. (Tr. 47-50; 86-89). Howard Shelton testified that plant employees are trained to fit test their respirators, and that this policy was in effect at the time of the inspection. The 3M respirator training program, which demonstrates fit testing, has been shown at the plant once in the 2.5 years Shelton has been there. The 3M distributor visits the plant about once a year to demonstrate fitting techniques on a one-on-one basis with employees and to discuss what type of respirators to use and where to use them. Plant foreman also employees in respirator use. To Shelton's knowledge, there are no plant employees who have not been trained in fit testing. Although there have been any new employees in about ten years, if one were hired, he would see the 3M film and his foreman would give him further instructions. (Tr. 125; 139-42). Shelton was present when the CO interviewed Sharim,and thought Sharim tried to demonstrate how to fit test the respirator; it appeared Sharim knew how to perform a fit test. He said Sharim is difficult to understand because his English is not good. Sharim had a growth, rather than a full beard; Shelton did not think it would prevent him from getting a good seal. (Tr. 142-43). The subject standard provides as follows: Every respirator wearer shall receive fitting instructions including demonstrations and practice in how the respirator should be worn, how to adjust it, and how to determine if it fits properly. Respirators shall not be worn when conditions prevent a good face seal. Such conditions may be a growth of beard, sideburns, a skull cap that projects under the facepiece, or temple pieces on glasses. Also, the absence of one or both dentures can seriously affect the fit of a facepiece. The worker's diligence in observing these factors shall be evaluated by periodic check. To assure proper protection, the facepiece fit shall be checked by the wearer each time he puts on the respirator. This may be done by following the manufacturer's facepiece fitting instructions. Respondent contends it did not violate the standard because of the training it provided employees. However, it also demonstrates that Sharim did not receive fitting instructions when he received the new respirator and that he did not know how to properly fit test it. [[3]] That he was unable to do so, and that he showed a general lack of knowledge of proper respiratory use, indicate Respondent's training was deficient. Shelton implied the CO may have misunderstood Sharim. However, the CO's testimony evidenced no misunderstanding; to the contrary, his statements about what Sharim told him were unequivocal. The evidence demonstrates Sharim did not receive adequate instruction in proper respirator use, and the 1910.134 (b)(11) discussion, supra, demonstrates the hazards of the condition. Respondent's other arguments need not be addressed, since the record clearly established a nonserious violation. The citation is affirmed. No penalty is assessed.[[4]] _*29 C.F.R. § 1910.178(1)*_ Vern Bechtel testified he learned the plant had five forklift trucks which employees used. Management told him designated operators received on-the-job training, but gave no explanation of the training. Bechtel said OSHA feels formal training is required because of the high incidence of accidents involving industrial trucks. Formal training addresses the safety aspects and handling characteristics of forklifts and includes slides, films, workbooks, eye exams, testing and certification upon course completion. He said on-the-job training would be acceptable if it provided the essential information formal training would give an employee demonstrated knowledge of that information. (Tr. 50-54, ). Howard Shelton testified that all of the plant's operators have 15 to 30 years of experience, and that operators have been hired for 15 to 20 years. He said there were ten or eleven designated operators at the time of the inspection. He has observed their driving and believes they are proficient in forklift operation. Although the plant has conducted no training in the 2.5 years he has been there, the maintenance foreman is designated to conduct on-the-job training. If a new employee were hired to operate a forklift, he would be tested on it to determine if he was capable of performing the job. (Tr. 125; 143-45; 150). The subject standard provides as follows: Only trained and authorized operators shall be permitted to operate a powered industrial truck. Methods shall be devised to train operators in the safe operation of powered industrial trucks. While not specifying formal training, the second sentence of the standard, as I read it: requires operators to have ongoing training in regard to the safe operation of industrial trucks. Respondent asserts the record shows it has an extensive training program. The record, in fact, demonstrates no evidence of a training program, and no evidence the plant's operators have had any training. Shelton himself admitted none has been given in the 2.5 years he has been at the facility. Moreover, even though the evidence shows the operators have a number of years of experience, experience does not satisfy the standard, which explicitly requires training. A nonserious violation is established, and the citation is affirmed. No penalty is assessed.[[5]] _*Conclusions of Law*_ 1. Respondent, Trinity Industries, Inc., is engaged in a business affecting commerce and has employees within the meaning of § 3 (5) of the Act. The Commission has jurisdiction of the parties and of the subject matter of the proceeding. 2. On April 4, 1989, Respondent was not in violation of 29 C.F.R. if §§ 1910.280(b)(2), 1.920.180(c)(2), 1910.212(a)(7)(ii), 1910.106(e)(2)(iv)(d) and 1910.134(b)(10). 3. On April 4, 1989, Respondent was in serious violation of 29 C.F.R. § 1910.243(b)(2). 4. On April 4, 1989, Respondent was in nonserious violation of 29 C.F.R. §§ 1910.134(b) (11), 1910.134(e) (5) (i) and 1910.178(1). _*Order*_ On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that: 1. Items 1, 2 and 3 of serious citation number 1 are VACATED. 2. Item 4 of serious citation number 1 is AFFIRMED, and a penalty of $600.00 is assessed. 3. Items 1 and 2 of "other" citation number 2 are VACATED. 4. Items 3, 4 and 5 of "other" citation number 2 are AFFIRMED, and no penalties are assessed. Louis G. LaVecchia Administrative Law Judge DATE: February 27, 1991 ------------------------------------------------------------------------ *FOOTNOTES:* [[1]] By our order dated January 17, 1992, we acknowledged receipt of the Secretary's withdrawal of the other three items that had been directed for review. [[2]] The standard provides: § 1910.178 Powered industrial trucks. .... (1) Operator training. Only trained and authorized operators shall be permitted to operate a powered industrial truck. Methods shall be devised to train operators in the safe operation of powered industrial trucks. [[3]] Most of the compliance officer's testimony concerned his views on what sort of program the standard requires. Acknowledging that it was a "judgement call" as to which elements should be included, he supported provision of ongoing, formal training for forklift operators in light of the generally high incidence of industrial truck accidents. He noted that some industrial truck manufacturers have developed formal training programs that address the safety aspects and handling characteristics of forklifts and include slides, films, workbooks, eye exams, and tests. The Secretary cites no Commission or court decision on the cited standard that adopts these views. Moreover, as noted above, the Secretary acknowledged in her brief that the requirements of the standard can be satisfied, albeit minimally, by instructions in recognition and avoidance of unsafe conditions. Therefore, instead of such lengthy testimony on what the compliance officer considered to be an ideal program, one that clearly exceeds the minimal instructions that the Secretary acknowledges are required, the Secretary could have, for example, questioned Shelton on cross-examination as to exactly what he meant when he testified on direct examination that Trinity's operators had been "trained." [[4]]We therefore need not reach Trinity's argument that the standard is unenforceably vague. [[1]] Although Foreman and Shelton said there were two charts, the one on the clipboard, as they described it, would not satisfy the standard requirements. [[2]] No penalty was proposed for this citation item. [[3]] The CO's testimony is credited over that of Shelton on this point, since Shelton's statement, that he "thought" Sharim tried to demonstrate a fit test, indicates he did not clearly recall what he saw. [[4]] No penalty was proposed for this citation item. [[5]]No penalty was proposed for this citation item.