____________________________________
Secretary of Labor,                :
                                   :
      Complainant,                 :
                                   :
          v.                       :   OSHRC Docket No.  01-0174
Trinity Marine Products, Inc.,     :
                                   :
      Respondent.                  :
___________________________________:  

Appearances:

    Joseph B. Luckett, Esquire                      Robert E. Rader, Jr., Esquire
    Office of the Solicitor                         Rader & Campbell
    U. S. Department of Labor                       Dallas, Texas
    Nashville, Tennessee                                For Respondent
        For Complainant

Before:      Administrative Law Judge Stephen J. Simko, Jr.





*DECISION AND ORDER*



Trinity Marine Products, Inc. (Trinity), is a corporation engaged in the
manufacturer of river barges. The Occupational Safety and Health
Administration (OSHA) conducted an investigation and inspection of
respondent's facility in Ashland City, Tennessee, from July 28, 2000,
through November 29, 2000. As a result of this inspection, respondent
was issued two citations. Respondent filed a timely notice contesting
these citations and proposed penalties. A hearing was held in Nashville,
Tennessee, on September 25, 2001, through September 27, 2001. During the
hearing the Secretary withdrew Citation No. 1, item 3. Subsequent to the
hearing, the Secretary filed a motion to amend Citation No. 1, item 1,
to allege a willful violation. That motion was denied.

For the reasons that follow, Citation No. 1, items 1 and 2, and Citation
No. 2, item 1, are vacated.











Background



On Friday, June 30, 2000, Armand "J. R." Provencher, a Trinity employee,
was tack welding angle iron ribs to the large sheet of steel that would
eventually be the "rake" or bow of a barge. Provencher was working with
James Fitts, a fitter. Fitts lined up the angle iron ribs and held them
in position while Provencher tack welded them to the sheet of steel.

The welding that Provencher was doing is known as "stick" welding
because it uses a welding rod. One end of the rod is clamped into the
alligator jaws of the welding rod holder. The rod holder is connected by
a cable, or "welding lead," to a welding machine. The welding machine
generates and regulates the electrical current that flows through the
welding lead and through the rod holder into the rod and causes the rod
to melt when it contacts the steel being welded. The melting rod results
in the seam, or "bead," that holds two pieces of steel together.

On the morning of June 30, 2000, Provencher initially had some
difficulty getting a good bead to do his tack welds. Fitts checked two
or three tacks done by the welding rod holder that Provencher was using.
Fitts did not observe anything defective with the holder.

Later that morning, Fitts observed that Provencher was sweating a lot,
dripping water onto the steel plate. He asked Provencher if he was all
right. Provencher was tack welding strips of angle iron to a large sheet
of steel laying on the concrete floor. Provencher had to bend over,
kneel, or squat to make the tack welds. Shortly after Fitts asked
Provencher if he was all right, Provencher stood up, grabbing himself as
he came up holding the energized or "hot" welding rod holder. He fell
onto his back with both arms crossed and the welding rod holder
underneath his arms, tight against his chest. Fitts asked, "What's wrong
with you?" Provencher responded, "I'm electrocuted."

Fitts called for help and at the same time attempted to pull the welding
rod holder away from Provencher's body by pulling on the welding lead.
Another employee, Travis Taylor, ran over and the two of them began
pulling on the welding lead in order to get the holder away. However,
the rod holder was clenched tightly in the hand next to Provencher's
chest, and that arm was crossed by Provencher's other arm, making it
difficult to pull it loose. Fitts and Taylor jerked on the cable
violently five or six times and actually pulled Provencher off the
ground before they were able to get the rod holder loose. When it
finally did come loose, Travis Taylor just threw it over his head.
Provencher was rushed to the hospital and died later that day. As a
result of this incident, OSHA began its investigation on July 28, 2000.



Discussion



The Secretary has the burden of proving violations of standards
promulgated under the Act.

In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (1) the applicability
of the cited standard, (b) the employer's noncompliance with the
standard's terms, (c) employee access to the violative conditions, and
(d) the employer's actual or constructive knowledge of the violation
(/i.e./, the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).



/Atlantic Battery Co./, 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).



Citation No. 1, Item 1

Alleged Serious Violation of 29 C.F.R. § 1915.56(a)(2)



The Secretary in Citation No. 1, item 1, alleges that:

Current carrying parts passing through the portion of the electrode
holder which the arc welder or cutter grips in his hand and the outer
surfaces of the jaws of the holder were not fully insulated against the
maximum voltage encountered to ground:



a) employees were not protected from contacting uninsulated metal parts
of the welding rod holder during welding operations for the rake bottom
on June 30, 2000.



It is undisputed that the standard applies to the working conditions at
respondent's shipyard. The threshold question is whether Trinity failed
to comply with the terms of the standard.

The standard at 29 C.F.R. § 1915.56(a)(2) provides:

(2) Any current carrying parts passing through the portion of the holder
which the arc welder or cutter grips in his hand, and the outer surfaces
of the jaws of the holder, shall be fully insulated against the maximum
voltage encountered to ground.



Prior to the incident that resulted in his death, Trinity's employee,
Armand Provencher, was tack welding, using a welding rod holder, or
stinger, connected to an electrical welding machine. This was Mr.
Provencher's first day on the job actually performing work as a welder.
Shortly before the incident, James Fitts, an experienced fitter, checked
and used the same welding rod holder used by Provencher. He found no
defects. Trinity's employees are instructed to inspect tools before use
and are trained not to use damaged tools. During the electric shock
incident, Fitts and Travis Taylor, another Trinity employee, attempted
to pull the welding rod holder away from Provencher. When the rod holder
was finally dislodged, Taylor threw it over his head. This work area
consisted of a steel plate laying on concrete. After the incident, the
screw that holds the rod holder insulation in place was found on the
steel plate. A broken piece of the insulator was also found in the area
of the metal deck. All the evidence presented in this case indicates
that damage to the rod holder occurred when Taylor pulled the rod holder
from Provencher's chest and threw it over his head. The missing
insulator screw and broken piece of insulator found in the immediate
area are evidence that the welding rod holder was damaged during the
attempt by fellow employees to save Mr. Provencher. The Secretary
presented no evidence to show that the welding rod holder was damaged in
any manner prior to the incident.

Mr. Provencher was tack welding at the time of the incident. This is
evidence that the welding rod was in place in the rod holder. The
welding rod holder was against his chest when he was electrocuted. The
rod itself is energized during the tack welding operation and can shock
an individual even if the rod holder is fully insulated and undamaged.
The fact that Mr. Provencher received a fatal electrical shock is not
evidence that the rod holder was damaged or otherwise not fully
insulated. It is, however, evidence that the employee contacted some
energized part. The logical inference is that part was the welding rod.

The Secretary has failed to prove that Trinity did not comply with the
terms of 29 C.F.R. § 1915.56(a)(2) while the employee was using the
welding rod holder on June 30, 2000.



Citation No. 1, Item 2

Alleged Serious Violation of 29 C.F.R. § 1910.1200(h)(1)



The Secretary in Citation No. 1, item 2, alleges that:



Employees were not provided information and training as specified in 29
CFR 1910.1200(h)(1) on their initial assignment and whenever a new
hazard was introduced into their work area (Maritime Reference 1915.1200):









Employees were not provided training on such items as the Jetweld 2
welding rods, exposing employees to such hazards as Iron, Manganese,
Manganese alloys and compounds, Silicates and other binders, Quartz,
Cellulose and other carbohydrates, Mineral silicates, Silicon, Silicon
alloys and compounds, Iron Oxides, Arc rays, electric shock, and radiation.



The standard clearly applies to respondent's operations.

The standard at 29 C.F.R. § 1910.1200(h)(1) provides:

(h) /Employee information and training. /(1) Employees shall provide
employees with effective information and training on hazardous chemicals
in their work area at the time of their initial assignment, and whenever
a new physical or health hazard the employees have not previously been
trained about is introduced into their work area. Information and
training may be designed to cover categories of hazards (/e.g./,
flammability, carcinogenicity) or specific chemicals. Chemical-specific
information must always be available through labels and material safety
data sheets.



Minimum requirements for employee training are set forth in 29 C.F.R.
1910.1200(h)(3) as follows:

(3) /Training./ Employee training shall include at least:



(i) Methods and observations that may be used to detect the presence or
release of a hazardous chemical in the work area (such as monitoring
conducted by the employer, continuous monitoring devices, visual
appearance or odor of hazardous chemicals when being released, etc.);



(ii) The physical and health hazards of the chemicals in the work area;



(iii) The measures employees can take to protect themselves from these
hazards, including specific procedures the employer has implemented to
protect employees from exposure to hazardous chemicals, such as
appropriate work practices, emergency procedures, and personal
protective equipment to be used; and,



(iv) The details of the hazard communication program developed by the
employer, including an explanation of the labeling system and the
material safety data sheet, and how employees can obtain and use the
appropriate hazard information.





The issues to be decided are whether respondent provided its employees
training relating to the hazards of welding rods such as the Jetweld 2
welding rods, and whether such training complied with the requirements
of the standard.

The Secretary alleges that Trinity violated the terms of the standard
based on an interview statement by one employee, Travis Taylor. During
that interview, Mr. Taylor stated that he was not trained on the
Material Safety Data Sheets and the hazard communication program.
Herbert Snapp, the OSHA investigator, testified training was not
provided to Mr. Taylor relating to the hazards associated with the
Jetweld 2 welding rod that was being used by employees on June 30, 2000.

At the hearing, Mr. Taylor testified initially that he was not trained
or instructed on the adverse effects of welding fumes, the composition
of the welding rod, or the electrical hazards of welding. During
cross-examination, however, he stated that during training he was told
about the hazards of welding fumes, using the rod, and about the dangers
of possible shock from welding. This witness appeared confused during
his testimony on training and information actually provided to him. He
readily agreed with questions suggesting first that he was not trained
and later that he was or might have been trained adequately concerning
the hazards relating to welding. After observing the demeanor of this
witness and thoroughly reviewing his testimony on this issue, I find his
testimony lacks credibility as to whether or not he was adequately
trained on the chemical and physical hazards of the welding rods used on
June 30, 2000.

Trinity provides HAZCOM training for its employees when they are hired
and then subsequently on an annual basis. The standard at 29 C.F.R. §
1910.1200(h)(1) allows information and training to cover categories of
hazards or specific chemicals. Trinity's training did not address
specific chemicals in the welding rods, but rather addressed categories
of hazards, /i.e.,/ welding fumes, heat, burns, flash burns to eyes, and
personal protective equipment (PPE). Its training covers types of metals
and chemicals generally found in welding rods and fumes and health
effects of breathing fumes. Ventilation and PPE are also discussed.

Sherry Hay, Trinity's site safety manager, provides comprehensive safety
training for new hires. She gave new employee training during the period
that Travis Taylor was hired. She gives the same training every week.
That training includes the above-described HAZCOM training relating to
welding hazards. While Ms. Hay did not specifically recall Mr. Taylor,
she did recall providing this training and instruction for all newly
hired employees during the period when Mr. Taylor was hired. I conclude
that this training was provided to Mr. Taylor. The Secretary has not
presented sufficient evidence to prove that such information and
training relating to welding hazards did not comply with the
requirements of 29 C.F.R. § 1910.1200(h)(1).



Citation No. 2, Item 1

Alleged Willful Violation of Section 5(a)(1) of the Act



In order to prove a violation of section 5(a)(1) of the Act [29 U.S.C. §
654(a)(1)], the Secretary must show that: (1) a condition or activity in
the employer's workplace presented a hazard to employees; (2) the cited
employer or the employer's industry recognized the hazard; (3) the
hazard was likely to cause death or serious physical harm; and (4)
feasible means existed to eliminate or materially reduce the hazard.
/Waldon Health Care Center, / 16 BNA OSHC 1052, 1993 CCH OSHD ¶ 30,021
(Nos. 89-2804 & 89-3097, 1993) (consolidated).

The Secretary in Citation No. 2, item 1, alleges that:

The employer did not furnish employment and a place of employment which
were free from recognized hazards that were causing or likely to cause
death or serious physical harm to employees in that employees were
exposed to:



The employer did not ensure that employees were wearing dry clothing
such as gloves and other garments while performing welding operations at
the rake bottom assembly area, exposing employees to the hazard of
electric shock. Among other methods, one feasible and acceptable
abatement method to correct this hazard is to ensure that employees are
always wearing dry gloves and clothing when welding.



The Secretary's citation did not indicate the date of the alleged
violation of section 5(a)(1), but the parties clearly understood that
the working conditions were those that existed on June 30, 2000.

Evidence presented at the hearing focused on two distinct alleged
hazards: wet gloves and wet clothing. For convenience, these alleged
conditions will be separately considered.

Armand Provencher, on his first full day as a welder for Trinity, was
tack welding steel angle braces to flat steel. He was wearing welding
gloves made of leather and kevlar. Mr. Provencher had difficulty laying
a bead, was sweating profusely, and appeared very nervous.







James Fitts, an experienced fitter, worked with and in close proximity
to Mr. Provencher throughout the morning of June 30, 2000. Although he
saw Mr. Provencher sweating a great deal, he did not notice whether his
gloves were sweaty.

Randle Krantz teaches welding to employees of Trinity. Mr. Snapp, the
OSHA compliance officer, testified that Mr. Krantz told him he was
helping Mr. Provencher get started welding on June 30, 2000, and Mr.
Provencher's clothing and gloves were wet. On cross-examination Mr.
Snapp testified that when he asked Mr. Krantz if the gloves were wet,
Mr. Krantz responded, "Yes, I'm sure they were wet because he was
sweating so much." At the hearing, Mr. Krantz testified that he did not
observe whether Mr. Provencher's gloves were wet and that he did not
recall telling Mr. Snapp that this employee's gloves were wet.

In its posthearing brief, respondent admits that it expects a welder's
gloves to come in contact with the energized welding rod holder and that
the gloves insulate the welder from the energized rod holder. Trinity
also recognizes that gloves do not provide insulation if saturated,
/i.e./, wet on the outside and all the way through. Charles Latiolais,
Trinity's corporate director, testified that the company trains welders
to keep at least two pairs of gloves and change them if they become
saturated. Travis Taylor, a fitter and welder, testified that his
supervisor, Don Littlefield, instructed him not to touch anything if his
gloves are wet and for him to put on a dry pair. There appears to be no
dispute between the parties that gloves saturated with sweat or water
are hazardous conductors of electricity and must be changed.

The Secretary produced insufficient evidence to prove that Mr.
Provencher's gloves were saturated or wet outside or that Trinity failed
to ensure that his gloves were dry. While the welder's hands may have
been sweaty inside the gloves, no evidence was presented to show that
the gloves were saturated with sweat or otherwise wet on the outside
where the gloves might contact an energized electrical part and conduct
electricity to the welder. The Secretary failed to prove that the gloves
worn by Mr. Provencher created a hazard.

Witnesses consistently testified that Armand Provencher's shirt was
soaked with sweat prior to the incident on June 30, 2000. Randle Krantz,
the welding instructor, testified that Provencher was sweating
profusely. Donald Shelton, the employee's supervisor, told the OSHA
compliance officer that Provencher was sweating a great deal and was
wringing wet with sweat. Richard Gaye, Trinity's lead man who assigned
Provencher his work, told Mr. Snapp the welder was sweating a lot and
very nervous. James Fitts testified that Provencher was sweating a lot,
and water was dripping down on the metal plate. He gave consistent
statements to the OSHA compliance officer and to Trinity. While the
condition of Mr. Provencher's sweat-soaked shirt is undisputed, the
questions to be decided are whether this condition constitutes a hazard
and, if so, whether such hazard is recognized by respondent or its industry.

The Secretary has asserted throughout this case that welding while wet
or sweaty is a recognized hazard. The Secretary's argument that the
sweat-soaked shirt worn while welding is a recognized hazard is based
primarily on the Material Safety Data Sheet for the welding rods used by
respondent (Exh. C-7), the Operating Manual for the arc welding machine
(Exh. C-8), ANSI Standard Z49.1, and the testimony of Stewart Adams,
complainant's expert witness.

The Material Safety Data Sheet (MSDS) for the welding rods used by
Trinity reference the ANSI Standard Z49.1 and provides precautions in
part as follows:

Protective Clothing: Wear hand, head, and body protection which help to
prevent injury from radiation, sparks and electrical shock. See Z49.1.
At a minimum this includes welder's gloves and a protective face shield,
and may include arm protectors, aprons, hats, shoulder protection, as
well as dark substantial clothing. Train the welder not to permit
electrically live parts or electrodes to contact skin . . . or clothing
or gloves if they are wet. Insulate from work and ground.



This MSDS was in effect and in Trinity's possession on June 30, 2000. It
was given to the Secretary by Malcolm Fontenette, Trinity's marine
division safety manager.

The operating manual for the Idealarc Lincoln Welder used by Mr.
Provencher on June 30, 2000, provides safety precautions in part:

1. Protect yourself from possible dangerous electrical shock:

a. The electrode and work (or ground) circuits are electrically "hot"
when the welder is on. Never permit contact between "hot" parts of the
circuits and bare skin or wet clothing, wear dry, hole-free gloves to
insulate hands.





This manual was also provided to OSHA by Mr. Fontenette.

The American National Standard for Safety in Welding, Cutting and Allied
Processes in effect on June 30, 2000, was the 1999 edition of ANSI
Z49.1. Section 11.4.9.1 of that standard is identical to the same
numbered section of an earlier edition offered into evidence at the
hearing by complainant in Exhibit C-9. At the hearing, I delayed ruling
on admitting that exhibit. The earlier edition contained in Exhibit C-9
was not in effect on June 30, 2000. The Secretary did not indicate the
time period during which it was in effect. After consideration, Exhibit
C-9 is rejected. Mr. Snapp's testimony relating to that portion of ANSI
Z49.1 that is identical to the 1999 edition is allowed. With agreement
of counsel after the hearing, judicial notice is taken of ANSI
Z49.1:1999. Section 11.4.9.1 of that standard provides:

*11.4.9.1 Live Metal Parts.* The welder shall never permit the live
metal parts of an electrode, holder, or other equipment, to touch bare
skin or any wet covering of the body.



In her brief, the Secretary addresses the current edition of ANSI Z49.1.
She did not offer that edition into evidence but I will consider it,
having taken judicial notice of it. Complainant refers to standards set
forth in sections E11.2.2 and E4.3.6. A careful review of Z49.1 reveals
that these paragraphs are not standard requirements, as argued by
complainant, but rather are merely explanatory information. All such
paragraph numbers of explanatory information is preceded by the letter
"E". This is explained on page 1 of ANSI Z49.1

Explanatory information paragraphs must be read in conjunction with the
corresponding Standard paragraph. Standard requirements are listed in
the left columns and explanatory information on the right. The
explanatory sections cited by the Secretary must be read in conjunction
with the standard requirements that they explain or to which they are
added. The standard at 11.2.2 provides:

*11.2.2 Environmental Conditions*. When using alternating current (ac)
or direct current (dc) arc welding machines, the welding operator shall
take special care to prevent electrical shock, when working under
electrically hazardous conditions. The manufacturer shall be consulted
when unusual service conditions are encountered.









The corresponding explanatory information at E11.2.2 provides in part:



*E11.2.2* Water or perspiration may cause electrically hazardous
conditions. Electrical shock may be prevented by the use of
nonconductive gloves, clothing, and shoes and avoiding contact with live
electrical parts.



The standard requirement at 4.3.6 provides:



*4.3.6* *Other Protective Clothing*. Properly fitted flame-resistant
plugs in the ear canals, or equivalent protection, shall be used where
hazards to the ear canals exist.



(This refers only to ear plugs.)



The corresponding explanatory information at E4.3.6 provides:



*E4.3.6* Dry, hole-free clothing will usually be sufficient to
adequately insulate the welder from electric shock (see 11.3 and 11.4).



Note that E4.3.6 refers to section 11.4, which includes section 11.4.9.1
that specifically advises against contact of wet clothing with live
electrical parts of welding equipment.

Reading these sections and explanatory paragraphs in conjunction with
section 11.4.9.1 does not lead to the conclusion that the ANSI standard,
the American National Standards Institute, or the shipbuilding industry,
recognizes that welding while wearing other than dry clothing is a hazard.

The MSDS not only references ANSI Z49.1, but warns the employer to train
the welder not to permit live parts or electrodes to contact skin or wet
clothing. The Idealarc operating manual uses similar language to warn
the user to never permit contact between electrically "hot" parts of the
circuit and bare skin or wet clothing.

The emphasis in section 11.4.9.1 of ANSI Z49.1, the MSDS, and the
operating manual is on the avoidance of contact between energized parts
and bare skin or wet clothing. All three envision or anticipate that
welders will wear wet clothing during some welding operations. The
action required in all three documents is to not permit the live metal
parts of the electrode, the holder, or other equipment to contact that
wet clothing. None of these documents prohibit wet clothing or require
welders to wear dry clothing.

Stewart Adams testified on behalf of the Secretary. Mr. Adams is
employed at the Puget Sound Naval Shipyard in Bremerton, Washington. He
is a supervisor and safety specialist in the safety and health office of
the shipyard. Mr. Adams manages the safety programs for the shipyard,
including electrical safety. He supervises a staff of fifteen employees.
The Puget Sound Naval Shipyard is a United States Naval facility which
repairs Navy ships. It has six dry docks and approximately 7,500
employees. Approximately 450 welders work daily at the shipyard. While
Mr. Adams' experience has been in the four large public shipyards in the
United States, he was of the opinion that work conditions at the Puget
Sound shipyard are similar to those in private shipyards.

Mr. Adams testified that he was of the opinion that there is a hazard
when someone welds while his clothing is wet. He based this opinion in
part on perspiration being a good conductor since it is water saturated
with salt. He further opined that if clothing is wet, it becomes a good
conductor, and any insulating properties it had are decreased
significantly because it is wet. He later testified, in his opinion,
once a person's clothing becomes wet, it is going to conduct electricity
and poses an electrical safety hazard if electricity is near that person.

Mr. Adams testified that welding while wet or sweaty is a recognized
hazard, indicating that once clothing becomes wet and saturated, it will
conduct electricity. He stated that this hazard is recognized in the
shipbuilding industry. He testified that ANSI Z49.1 is recognized in the
shipbuilding industry, stating that at times different shipbuilding
councils are members of the ANSI committee. He did not elaborate on this
assertion. No names of councils or members were provided. No dates of
service were given. Throughout Mr. Adams' testimony, few underlying
facts or data were elicited by complainant as bases for Mr. Adams'
opinions. Most of his opinions appear to be based on other opinions or
unidentified scientific principles relating to the conductivity of
electricity in the medium of impure water or sweat.

Mr. Adams admitted that in confined spaces within ships, it is hot;
welders sweat; everybody sweats. If they do not, they are going to be
very sick. He felt that sweating was not a bad thing until it saturated
clothing, which can lead to an electrical safety issue of getting shocked.









This witness did rely in part on ANSI Z49.1 in forming his opinion that
welding while wet or sweaty is a recognized hazard in the shipbuilding
industry. As discussed above, section 11.4.9.1 of that standard
anticipates the occurrence of clothing or body coverings being wet. It
does not prohibit such wet clothing or direct that dry clothing must be
worn. That standard does direct that live metal parts of the electrode,
holder or equipment never be permitted to touch the wet clothing.

The Secretary and its witness, Stewart Adams, rely on this ANSI standard
to assert that Trinity exposed its employees to the hazard of electric
shock by not ensuring that employees were wearing dry clothing. As
discussed more fully above, the ANSI standard does not mandate or
require that dry clothing be worn while welding. Acknowledging the fact
that welders will wear wet clothing at times while welding, section
11.4.9.1 of ANSI Z49.1 prohibits the welder from touching such wet
clothing with live electrical metal parts of the welding equipment.
Prohibiting contact of such live electrical parts to wet clothing is not
equivalent to requiring that such clothing be dry while welding. It also
does not serve as support for an opinion or allegation that failure to
ensure employees wear dry clothing while welding is a hazard recognized
by respondent or its industry.

Trinity maintained the MSDS that referenced the ANSI standard. It also
had in its possession the operating manual that contained warnings
similar to those in section 11.4.9.1 of the ANSI standard. Even if
respondent were aware of the ANSI standard or members of its industry
served on ANSI committees, recognition of the hazard by Trinity or its
industry would not necessarily require respondent to take steps beyond
ensuring that live parts do not contact wet clothing while welding.
Respondent cannot be found to have recognized a hazard of electrical
shock from welding without ensuring that its welders wore dry clothing.

The evidence presented by the Secretary in this matter is insufficient
to prove that failure to ensure employees wore dry clothing while
welding exposed employees to the hazard of electrical shock.
Furthermore, the Secretary failed to prove that allowing employees to
weld while wearing wet clothing was a hazard recognized by respondent or
its industry.







FINDINGS OF FACT AND

CONCLUSIONS OF LAW



The foregoing decision constitutes the findings of fact and conclusions
of law in accordance with Federal Rule of Civil Procedure 52(a).



ORDER



Based upon the foregoing decision, it is ORDERED:

1. Citation No. 1, item 1, alleging a violation of 29 C.F.R. §
1915.56(a)(2) is vacated.

2. Citation No. 1, item 2, alleging a violation of 29 C.F.R. §
1910.1200(h)(1) is vacated.

3. Citation No. 1, item 3, is withdrawn by the Secretary and, therefore,
is vacated.

4. Citation No. 2, item 1, alleging a violation of section 5(a)(1) of
the Act is vacated.







STEPHEN J. SIMKO, JR.

Judge



Date: March 7, 2002