*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.