“SECRETARY OF LABOR,Complainant,v.CONSOLIDATED FREIGHTWAYS CORP.,Respondent.OSHRC Docket No. 86-0351DECISIONBefore: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:The Secretary of Labor (Secretary) through the Occupational Safety andHealth Administration (OSHA) cited Consolidated Freightways Corporation(Consolidated) for a serious violation of 29 C.F.R. ?1910.132(a)[[1\/]]for failing to require that employees use personal protective equipmentnecessary to protect against exposure to a corrosive. The OSHA areadirector proposed a penalty of $720. An administrative law judge of theReview Commission affirmed the citation as an other-than-seriousviolation, and assessed a penalty of $100. Review was directed by thisCommission on whether the judge erred in finding that Consolidated knew,or with the exercise of reasonable diligence should have known, of thealleged violation and whether he erred in reducing the classification ofthe alleged violation to other-than-serious. Based on a review of therecord as a whole, we find that the judge did not err in finding thatConsolidated either knew or with the exercise of reasonable diligencecould have known of the violation. However, we modify the judge’sdecision, find that the violation is properly classified as serious,[[2\/]] and assess a penalty of $720.I. _Background_At Consolidated’s Consolidation Center in Tonawanda, New York, dockmenloading and unloading trailers handle hazardous materials on a dailybasis. The dockmen are supervised by the dock foreman, who reports tothe freight operations manager, who in turn reports to both the terminalmanager and to the assistant terminal manager.On Monday, January 27, 1986, the Consolidation Center received twotwenty-gallon cardboard drums containing a red, corrosive powder dyecalled Flexo Red NB 540 (\”Flexo Red\”), also known as Rhodamine B.Similar containers of Flexo Red have been shipped through the terminalon a weekly basis for at least the past twelve years. The two drumsmentioned above were being returned to the original shipper, possiblybecause one of the drums was punctured.Dockman Sam Longo unloaded the drums from a trailer, placed them in apushcart, and loaded them on the right side of another trailer. Longostated that it was his understanding that the drums contained a\”hazardous\” and \”corrosive\” material, but that when he moved them, hesaw no seepage.Longo further testified that Dock Foreman Wahab Aljuwani later told himthat one of the two drums he loaded in the trailer was leaking and thathe should get a roll of masking tape and patch the hole.[[3\/]] WhenLongo returned to the trailer, he found that the drums had been movedand that the leaking drum had left a trail of dust \”four inches high\”across the trailer. Longo tipped the drum on its side and placed tapeover a puncture near the bottom of the drum.While he was repairing the drum, Longo noticed a placard affixed to itwarning that the drum contained a corrosive substance. Although he waswearing a pair of heavy duty work gloves made of cloth, leather andcanvas, with a cloth liner, Longo’s hands were stained by the Flexo Reddye. He immediately went to the rest room to wash his hands, but wasunable to remove the red stain.Dockman Tim Mislin, a union steward, entered the restroom when Longo wastrying to wash the Flexo Red from his hands. Learning that Longo \”washurt by a material\” to which he had been exposed, Mislin went to thetrailer to read the product label on the drum to see if the substancewas harmful.[[4\/]] While he was reading the label, some of the Flexo Redblew into Mislin’s face. He suddenly felt nauseous, \”started spittingout red stuff,\” and began vomiting. Both Mislin and Longo receivedpermission from Freight Operations Manager Robert Daminski to go to thehospital.Daminski, who was familiar with Flexo Red because of previous spills,inspected the spill to see what had caused the problem. He knew it was\”a very potent dye,\” but he did not know that it was corrosive. Daminskidid not notice any warning labels or tags on either of the drums. Helooked at the bill of lading, which normally indicates a material’shazard class, but did not recall whether it indicated that Flexo Red wascorrosive. Without determining the hazard class of the Flexo Red orreferring to any safety guidebooks, Daminski directed dock foremanAljuwani to clean up the spill. Daminski did not tell Aljuwani torequire his subordinates to use any personal protective equipment whilecleaning up the powder, but only to \”clean up the spill, get the drumtransferred [to another container], and clean up whatever remains.\”Daminski testified that his \”main concern\” was to prevent the dye from\”getting out into the air or onto any other freight.\” He stated that acorrosive dry powder should be cleaned up with a broom and shovel .Shortly after the spill, Daminski discovered that Flexo Red was acorrosive when he pulled the copy of the bill of lading, enabling him toinform the hospital of the substance to which Longo and Mislin had beenexposed.When Aljuwani noticed the leaking drum of Flexo Red, he obtained thebill of lading for the drum and saw that there was a sticker on the billidentifying the contents of the drum as corrosive. He testified that hetold a temporary dockman named Cimino[[5\/]] to \”get yourself somegloves, rubber gloves, and whatever else you need,\” and to \”[p]ut the[damaged] drum into another drum . . . [,] sweep up the residue, putthat in a drum, and pack it up.\” While Cimino was moving the punctureddrum around, the tape came off, releasing some of the Flexo Red. Ciminothen put the drum down on its side, and the metal lid of the drum felloff, releasing Flexo Red \”in abundance.\” He then put the lid back on,stood the drum back up, and resealed it with masking tape. Aljuwanitestified that Cimino was not wearing a \”yellow suit . . . or anythinglike that\” when he cleaned up the spill. Aljuwani was not sure whetherCimino was wearing rubber gloves or a mask. Dockman William Schukrafttestified that Cimino only used a pair of work gloves like those \”thatall dockmen wear.\”Patrick J. Brady, Consolidated’s terminal manager, testified that theprocedures to follow when a spill or a leak of a hazardous substanceoccurs are contained in Consolidated’s Emergency Response Guidebook andits Hazardous Materials Manual. Both publications are distributed to theterminal manager and assistant terminal manager and are also availableto the freight operations manager and dock foreman. The EmergencyResponse Guidebook is not generally available for dockmen to use, andBrady \”never heard a dockman ask for one,\” although he was sure thatthey were made aware of the Guidebook during their training. Bradytestified that a dockman would require authorization from the dockforeman to see the Guidebook or Manual, and that such a request could berefused.Brady testified that when a corrosive solid like Flexo Red is spilled,the dock foreman is not required to refer to the Emergency ResponseGuidebook because it is only a \”guideline for him to use in conjunctionwith his judgment.\” Brady stated that even when certain personalprotective equipment is called for by the Emergency Response Guidebook,employees are not required to use the equipment if they do not think itis appropriate. He testified that a spill of a corrosive powder isusually considered to be only an \”incident\” rather than an emergency,and therefore the protective equipment indicated in the EmergencyResponse Guidebook need not be used. However, Brady stated as follows:What I subsequently learned about this particular commodity is that itbecomes airborne with very, very little disturbance, and you can’t seeit being airborne with the naked eye, but the effects are certainlythere. Having that knowledge today, I would consider it an emergency. Iwould have closed the door to the trailer and had the trailer pulledaway from the dock and put into an isolated area and have people withself-contained breathing apparatus come in to effect the clean-up.During his testimony, Brady stated that he did not know if employeesreceived specific training in how to clean up spills of corrosivematerials, but he knew that they had general training in cleaning upspills as part of the hazardous materials training program. Bradyfurther testified that employees were told to refer to the EmergencyResponse Guidebook for step-by-step procedures on how to clean up aspecific type of spill. In addition, the employees were told toimmediately notify the dock foreman of a spill. However, a dockman canrespond to a situation before contacting the dock foreman.II._Whether the judge erred in concluding that Consolidated knew, or withthe exercise of reasonable diligence could have known, of the allegedviolative condition._A.The judge found that \”[a]t all times concerned, [Consolidated] knew, orwith the exercise of due diligence should have known, of the allegedviolation.\” The judge based this finding on Consolidated’s failure tohave an adequate safety training program, and on his finding that \”thesafety training program that [Consolidated] had was not adequatelycommunicated to its employees or adequately enforced.\” [[6\/]]On review, Consolidated argues that Aljuwani failed to follow properprocedures when he failed to make sure that the employees wore personalprotective equipment when handling the spill and that Consolidated couldnot have known of Aljuwani’s failure to follow company policy. It claimsthat because it took all necessary precautions to prevent the occurrenceof the violation, Aljuwani’s unsafe act cannot be imputed to it.Consolidated further argues that the \”evidence at the hearingdemonstrated that it had a safety program for dealing with hazardousmaterials that was comprehensive, thorough and aggressive.\” It claimsthat both Terminal Manager Brady and Freight Operations Manager Daminskiunderstood that Dock Foreman Aljuwani had been told to require thedockmen’s use of personal protective equipment when cleaning up spillsor leaks of hazardous materials.The Secretary argues that Consolidated’s failure to provide and requirethe use of personal protective equipment was not an isolated occurrence.She points out that neither Daminski nor Aljuwani gave instructions toCimino to use personal protective equipment when cleaning up the spill.In addition, the Secretary argues that Consolidated’s safety program wasinadequately communicated, enforced and implemented, \”leaving too manyimportant decisions, i.e., the use of personal protective equipment, tothe dockmen.\” The Secretary further points out that despite the regularmovement of hazardous materials, including Flexo Red, through theConsolidation Center, neither Daminski nor Aljuwani had any specifictraining in cleaning up dry corrosive chemical spills. She also notesthat employees Sam Longo, Richard Bamberg, William Schukraft, TimMislin, James O’Brien, Paul Tartick, and Bernard Wittmeyer had notreceived training in the use of personal protective equipment and werenot familiar with either Consolidated’s Hazardous Materials Manual orits Emergency Response Guidebook.B.In order to satisfy her burden of proving knowledge, the Secretary mustprove that a cited employer either knew, or with the exercise ofreasonable diligence could have known, of the presence of the violativecondition. Seibel Modern Manufacturing & Welding Corp., 15 BNA OSHC1218, 1221, 1991 CCH OSHD ? 29,442, p. 39,678 (No. 88-821, 1991). Theactual or constructive knowledge of an employer’s foreman can be imputedto the employer. Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965,1986-87 CCH OSHD ? 27,651, p. 36,033 (No. 82-928, 1986). Here, theviolative condition was the failure of Dockman Longo to wear appropriatepersonal protective equipment when handling the Flexo Red.The record demonstrates that Aljuwani told Longo about the leak and thatLongo attempted to patch it as a dockman normally would. By the timeAljuwani told Dockman Cimino to re-pack the leaking drum of Flexo Redand to sweep up the residue, he had learned from the bill of lading thatthe leaking drum contained a corrosive material. Although Aljuwani toldCimino to \”get rubber gloves or whatever else you need,\” he did notrequire either Longo or Cimino to use the appropriate personalprotective equipment while cleaning up the Flexo Red. Instead, he letthe employees decide what protective equipment to use even though heknew they had not received training in selecting or using the personalprotective equipment necessary to protect against exposure to acorrosive. In fact, Aljuwani himself did not know what personalprotective equipment should be used while cleaning up a spill of acorrosive powder or other hazardous material. Thus, the evidenceestablishes that Aljuwani knew or should have known of the violation.Once the Secretary has made a prima facie showing of employer knowledgethrough its supervisory employee, the employer can rebut that showing byestablishing that the failure of the supervisory employee to followproper procedures was unpreventable. In particular, the employer mustestablish that it had relevant work rules that it adequatelycommunicated and effectively enforced. E.g., H.E. Wiese, Inc., 10 BNAOSHC 1499, 1505, 1982 CCH OSHD ? 25,985, p. 32,614 (Nos. 78-204 &78-205, 1982), aff’d per curium, 705 F.2d 449 (5th Cir. 1983); see Brockv. L. E. Myers Co., 818 F.2d 1270, 1277 (6th Cir. 1987), cert. denied,484 U.S. 989 (No. 87-246, 1987). Under Commission case law, thesupervisor’s knowledge of the violations, both actual and constructive,is imputable to the employer for the purpose of proving employerknowledge of the violations unless the employer establishes that it tookall necessary precautions to prevent the violations, including adequateinstruction and supervision of its supervisor. Daniel Construction Co.,10 BNA OSHC 1549, 1552, 1982 CCH OSHD ? 26,027, p. 32,672 (No. 16265,1982). Evidence that a supervisor was involved in the misconduct isstrong evidence that the employer’s safety program was lax. Id.Consolidated claims that its safety program for dealing with hazardousmaterials was \”comprehensive, thorough and aggressive\” because\”[m]anuals and handbooks were provided to the employees\” and \”[s]afetymeetings were held frequently.\” however, it does not appear thatConsolidated’s safety program would prevent the recurrence of thesituation that occurred here. The manuals and handbooks it refers toare the Emergency Response Guidebook, the Hazardous Materials Manual,the Freight Handling Handbook, and the Driver Salesman and DockworkersSafety Handbook. Of these documents, only the Emergency ResponseGuidebook specifically describes what types of safety equipment are tobe used while containing and cleaning up a spill of hazardousmaterials. the other documents merely direct employees to contact theirsupervisors for directions. While each dockman was told to immediatelynotify a foreman in case of a spill of hazardous materials, TerminalManager Brady testified that a dockman has the discretion to respond toa spill or leak before contacting the dock foreman.Brady also testified that the dock foreman is allowed to decide whetherto follow the Emergency Response Guidebook or even to refer to theGuidebook because it is only \”a guideline for him to use in conjunctionwith his judgment.\”[[7\/]] Even where the Emergency Response Guidebookindicates that certain personal protective equipment should be worn,employees of Consolidated are not required to use the equipment if theydo not think it is appropriate, even though they have not been trainedin the criteria to be considered and the guidelines to be followed inmaking that determination. The dockmen received training in the handlingof hazardous materials, but this training involved how to transport andstore hazardous materials, not how to clean up spills of hazardous material.The evidence also demonstrates that Consolidated’s work rules were notadequately communicated. Few of the dockmen knew of the existence of theHazardous Materials Manual or Emergency Response Guidebook. Even hadthey been aware of their existence, the dockmen were only permitted toreview the manual and the guidebook when they were off duty.In addition, we conclude that Consolidated failed to effectively enforceits safety program for dealing with hazardous spills. AlthoughConsolidated asserts that the dock foreman’s violation of company policywas an isolated occurrence, the evidence establishes that Consolidatedleft it to the judgment of the dock foreman to decide whether to referto the Emergency Response Guidebook. Thus, Aljuwani, who had no trainingin the cleaning up of corrosive spills, was not in violation of companypolicy when he allowed employees to clean up the Flexo Red without firstconsulting the guidebook to determine what personal protective equipmentwas required. We therefore conclude that Consolidated has failed toestablish that Aljuwani’s asserted failure to follow proper procedureswas unpreventable. Dock Foreman Aljuwani’s knowledge of the violation isimputed to Consolidated.III._Whether the judge erred in reducing the classification of the allegedviolation of 29 C.F.R. ? 1910.132(a) from serious to other-than-serious._A.Consolidated does not dispute the effects of the exposure to Flexo Redthat were experienced by its employees. Four employees, Longo, Mislin,Wittmeyer, and O’Brien, testified regarding the effects of theirexposure. In addition to employees Longo and Mislin, driver\/salesmanWittmeyer was exposed to Flexo Red on the day of the initial spill.Wittmeyer testified that the day after his exposure, he had a badheadache, blurred vision, and a skin rash, but that he did not seekmedical attention at the time.On Friday, January 31, four days after the initial exposure, some of theFlexo Red that was still \”blowing around the yard\” blew into the facesof a number of employees, most of whom also had been exposed on Monday,January 27.After this exposure, Mislin alleged that he became sick a second time.Both Mislin and dockman O’Brien, who was also exposed, were taken to thehospital. Mislin vomited, his eyes burned, then swelled and becamesensitive to light, and he stated that he also suffered from headaches,rashes, and gastric problems. Mislin was referred to an ophthalmologist,a specialist in internal medicine, and a dermatologist, and he did notreport to work for approximately seven and one-half weeks. O’Brienexperienced breathing problems, gastric problems, and painful burningand tearing of his eyes. After he was told that he had been exposed to acorrosive, O’Brien visited his family doctor, who referred him to aninternal specialist for his diarrhea. O’Brien testified that he alsovisited an \”eye doctor\” who required him to wear an eye patch for fourdays. His eye symptoms continued for a week, and his gastric symptomscontinued for \”[a]bout a month.\” He eventually missed a total ofeighteen days from work between January and May. Wittmeyer, who was alsore-exposed, began wearing prescription eyeglasses for the first time inMarch of 1986, approximately two months after the spill, and was underan \”eye specialist’s\” care for over one year after the accident.However, no evidence was offered to show that the ophthalmologic carewas provided only for symptoms of exposure to Flexo Red. Wittmeyer stillhad burning eyes and blurred vision at the time of the hearing.Wittmeyer did not miss any work, and he received regular medical examsfor his symptoms, which included regular checkups for his eyes.Consolidated did not rebut any of the employees’ testimony regardingtheir injuries and lost work time.Dr. Dunn, an ophthalmologist appearing as an expert witness for theSecretary, testified that Flexo Red is toxic to the eye and thatexposure to a sufficient quantity could cause a temporary loss ofvision. He recommended that eye protection and a respirator be used whenhandling Flexo Red because of the dye’s toxic effect on the mucousmembranes, nose, mouth, and conjunctiva of the eye.Dr. Dunn further testified that his knowledge of the possible effects ofFlexo Red was derived solely from three articles which were publishednearly one hundred years ago. Two of the articles relied upon by Dr.Dunn discussed experiments where unknown quantities of various dyes,including Rhodamine B, were introduced into the eyes of rabbits. Theexposure produced symptoms of conjunctivitis and scarified epithelium ofthe cornea that lasted up to three weeks, but which did not result inpermanent or disabling effects. Dr. Dunn acknowledged that these studieswould \”not be directly transferable to humans\” since the eye of a rabbit\”reacts much more strongly to caustic agents\” and that workers would\”wash their eyes out, whereas we would not expect the rabbit to dothat.\” The third article relied upon by Dr. Dunn describes a case wheresome powdered analog of \”Rhodamine\” [[8\/]] blew into the eye of aworker, causing increased eye secretion, reddened conjunctiva, andscarified epithelium of the cornea. The article stated that thepatient’s eye was free of irritation within two weeks of the exposure,indicating that there was no permanent damage of any kind to the eye.B.The judge found that the exposure to Flexo Red harmed Consolidated’semployees, and that the harm \”was clearly established even without thephysician’s opinion.\” However, he found that the Secretary did not provethat the violation was serious because she did not establish that theemployees faced a substantial probability of death or serious physicalharm as a result of their exposure to Flexo Red.[[9\/]] In reaching thisconclusion, the judge only discussed the testimony of Dr. Dunn and didnot discuss the employees’ testimony about their own injuries. The judgefound that the medical research presented by Dr. Dunn was \”not enough tojustify an opinion on the degree of harm that could be caused by [FlexoRed].\” The judge also found that \”Dr. Dunn’s opinion on the seriousnature of the harm was weakened because, as he testified, it was mostlybased on three articles.\”The Secretary argues that the judge erred In reducing the classificationfrom serious to other-than-serious \”because the actual injuriessustained by the employees, together with the technical data and expertmedical opinion evidence, established that there was a substantialchance of serious physical harm whenever there is exposure to Flexo Red,a toxic chemical dye,\” The Secretary claims that the \”adverse healtheffects were serious because the employees experienced a reduction inefficiency in one or more parts of the body, and the substantial natureof that reduction was established by the need for medical treatment.\”The Secretary contends that \”[a]lthough the Act itself does not setforth a bright line test for classifying a violation as serious orother-than- serious, OSHA has provided guidance in its Field OperationsManual.\” The Field Operations Manual defines \”serious physical harm\” as:Impairment of the body in which part of the body is made functionallyuseless or is substantially reduced in efficiency on or off the job.Such impairment may be permanent or temporary, chronic or acute.Injuries involving such impairment would usually require treatment by amedical doctor.OSHA Instruction CPL 2.45B, Field Operations Manual, Chapter IV, sectionB.1.b.(3)(a)1 (June 15, 1989) amended by OSHA Instruction CPL 2.45B CH-1(Dec. 31, 1990)(emphasis original).[[10\/]]The Secretary contends that \”[t]he Commission’s case-by-casedeterminations have generally been consistent with the Secretary’sdefinition\” of what constitutes a serious violation, and cites MahoneGrain Corp., 10 BNA OSHC 1275, 1982 CCH OSHD ? 25,836 (No. 77-3041,1981), for the proposition that permanent disability is not an essentialfactor for a violation to be classified as serious. The Secretary claimsthat \”[t]he Commission has readily acknowledged that the seriousness ofa violation can be based on an injury which may not have any lastingeffect beyond the healing period, as in bone fractures.\” In that regard,the Secretary relies on Brown-McKee, Inc., 8 BNA OSHC 1247, 1980 CCHOSHD ? 24,409 (No. 76-982, 1980) (the violation of the standard wasserious because a fourteen to fifteen foot fall to a steel platformcould result in a fracture, broken neck or death), and PPG Industries,Inc., 6 BNA OSHC 1050, 1977-78 CCH OSHD ? 22,344 (No. 15426, 1977)(employer’s failure to require employees’ use of safety belts when theywere exposed to a ten to fifteen foot fall is a serious violationbecause a fall from such a distance could result in broken bones orserious physical harm). The Secretary further argues that \”[t]heevidence in this case must also be viewed in light of prior Commissionlaw regarding eye injuries,\” citing Vanco Construction, Inc., 11 BNAOSHC 1058, 1983-84 CCH OSHD ? 25,372 (No. 79-4945, 1982) , aff’d, 723 F.2d 410 (5th Cir. 1984) (Commission found that given the \”delicateness ofthe eye,\” serious physical harm would be substantially probable if theeye were injured).Consolidated claims that \”[t]he Secretary must establish, not apossibility, but ‘a substantial probability’ of the consequences thatwould warrant the classification of a violation as serious.\”Consolidated argues that it \”should not be held accountable for anyinjuries that are not foreseeable at the time of the incident,particularly when the known medical evidence suggests that theconsequences are mild and temporary.\” Consolidated contends that MahoneGrain does not support the Secretary’s position. Consolidated points outthat in Mahone Grain, unlike here, \”the affected employees requiredhospitalization for a condition that could lead to death.\” Here, itcontends that there was no evidence that exposure to Flexo Red couldlead to death.C.Consolidated suggests that it should not be held liable for the injuriesthat occurred because they were not foreseeable and because the medicalevidence indicates that they were mild and temporary. However, theforeseeability of an injury is irrelevant in determining whether aviolation is serious. Under Commission precedent, a serious violation isestablished if an accident is possible and there is a substantialprobability that death or serious physical harm could result from theaccident. Dravo Corp., 7 BNA OSHC 2095, 2101, 1980 CCH OSHD ? 24,158, p.29,370 (No. 16317, 1980), pet. for review denied, 639 F.2d 772 (3d Cir.1980).Here, there is no dispute that an accident did occur. Also, Consolidateddoes not dispute that the employees who were exposed to the Flexo Redpowder suffered a variety of debilitating effects from their exposuresthat in some cases persisted long after the exposure. O’Brienexperienced breathing and gastric problems as well as painful burningand tearing in his eyes. He missed a total of eighteen days from workbetween January and May. Mislin’s eyes burned and swelled and becamesensitive to light. He also experienced gastric problems and wasreferred to three different specialists. Mislin did not return to workfor approximately seven and one-half weeks after his exposure. Wittmeyerwas under a doctor’s care for his eye problems for more than a yearafter the accident. At the time of the hearing, more than a year afterhe was exposed to Flexo Red, his eyes still burned and his vision wasstill blurred.If the symptoms suffered by Consolidated’s employees had quicklydissipated, it would be difficult for us to find that they amounted toserious physical harm. However, the exposure to Flexo Red significantlyimpaired the eyes of Consolidated’s employees. Cf. Vanco Construction,Inc., 11 BNA OSHC at 1061-62, 1983 CCH OSHD at p. 33,454. Harm of thisseverity is substantial enough to be characterized as serious. MahoneGrain, 10 BNA OSHC at 1279, 1982 CCH OSHD at p. 32,317-2 (No. 77-3041,1981). We therefore conclude that Consolidated’s failure to usesufficient personal protective equipment to protect against employeeexposure to Flexo Red was a serious violation of the Act.In her citation, the Secretary proposed a penalty of $720 for a seriousviolation. The judge assessed a penalty of $100 for another-than-serious violation. Having considered the penalty factorsenumerated in section 17(k) of the Act, 29 U.S.C. ? 666(k), we assess apenalty of $720.IV. _Order_Accordingly, we find a serious violation of 29 C.F.R. ?1910.132(a) andassess a penalty of $720.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissioner————————————————————————SECRETARY OF LABOR,Complainantv.CONSOLIDATED FREIGHTWAYS CORP.RespondentOSHRC Docket No. 86-0351_DECISION AND ORDER_This case arose under 29 U.S.C. sec. 651 et seq. of the OccupationalSafety and Health Act of 1970 (the Act). As a result of an inspection bythe Occupational Safety and Health Administration [OSHA] of theRespondent’s premises on or about January 31, 1986 to February 28, 1986,Citation #1 was issued on or about March 5, 1986, charging that theRespondent violated sec. 5(a)(2) of the Act by the serious violation ofthe standard at 29 C.F.R. 1910.132(a) in that protective equipment wasnot used by employees handling corrosive materials.On or about March 26, 1986, the Respondent filed Notice of Contest tothe Citation and the penalty proposed therefor.The pertinent sections of the Act and the standard are appended to thisdecision under appropriate titles._BACKGROUND_The Respondent is a carrier operating trucks that transport freight ofall kinds packed in drums, cartons, or other containers that vary insize, weight, destination, contents, etc. Some of the freight carriedincludes materials that may be dangerous to health and safety; and somemay be stored or moved from one truck to another before reaching a finaldestination.In the instant case, while freight was being moved from one truck toanother by employees in the Respondent’s terminal, a powdery corrosivematerial [referred to as \”Rhodamine B\” or \”Flexo\” or \”the red dye\”]seeped out of the drum containing it when the drum split open. Whenhandling the leaking drum, an employee [Longo] used no protectiveequipment except two pairs of heavy duty gloves. His hands were stainedby the corrosive substance…Tr. 325-327. Another employee [Mislin] whowas also wearing gloves, came close enough to the leaking drum to readits label…Tr. 434-438. Another employee [Cimino] swept the corrosivesubstance while wearing only a pair of \”work gloves\” as protectiveequipment…Tr. 398,399.[Some other employees were possibly exposed to the alleged hazardouscondition but they are not discussed in the Decision because thepossible exposure was not associated with their specific occupationalduties]._SAFETY TRAINING PROGRAM_Did the Respondent have a safety training program that was both adequateand enforced? There is no question that the Respondent had a safetytraining program that included video illustrations, lectures, readingmaterials, rules, the use of personal protective equipment, and othermeasures intended to protect the safety of the employees.However, the provisions of the safety program were not always followedby employees, and proper training and instructions were not always givento them. There were also flaws in it — for example, although theRespondent provided manuals of safety instructions, some were kept inplaces that were not readily accessible to all employees and, in somecases, those that were accessible were not available during workinghours. Tr. 273-276, 320-322, 333-337, 375-379, 387, 390, 393, 402, 426,428-430, 472-479, 495-499, 522-523. As concerns employment: theprovisions of the safety program were not uniformly enforced by theRespondent. Violation of the rules did not always subject employees todisciplinary action, and failure to follow the Respondent’s safetyprogram was occasionally overlooked. . . Tr. 164, 306, 311, 466.I find that the Respondent did not have a safety training program thatwas both adequate and enforced._KNOWLEDGE _Supervisory personnel of the Respondent knew of the hazardous conditionsand that employees were not using adequate personal protective equipment… Tr. 311-339, 399-401, 434, 479-480, 495-496._HARM _Was the corrosive substance [Rhodamine B] the cause of physical harm toemployees? The evidence is clear that employees who were in good healthsuffered spells of headaches, diarrhea, coughing, nausea, skinirritation, intestinal discomfort, and eye inflammation — or variouscombinations of such symptoms — immediately after being exposed to theforeign substance in question. There was no other explanation for theattacks; and the only employees so affected were the ones who had beenexposed to it. If it was not the cause, what else was?… Tr. 332,366-368, 435-447, 483-485, 528-531.The testimony of the laymen employees was corroborated by the testimonyof a physician [Dr. Dunn] but the harm to the employees was clearlyestablished even without the physician’s opinion.When the symptoms of injury or illness are consistent with a cause, andno other cause has even been suggested by the evidence or reasonableinferences therefrom, it is my opinion a finding is warranted that thecause of the symptoms has been established.I find that the corrosive substance that is the subject of the citationcaused physical harm to the Respondent’s employees._DEGREE OF HARM_Was the harm to affected employees severe enough to meet the test of \”asubstantial probability that death or serious physical harm couldresult\” from the alleged hazardous condition?The Complainant relied on the testimony of Dr. Dunn to prove theallegation. I was very favorably impressed by Dr. Dunn, and I find thathe was an extremely well-qualified expert who was completely honest andcandid in his opinions. However, there simply is not enough medicalresearch in existence to justify an opinion on the degree of harm thatcould be caused by Rhodamine B powder. In the first place, Dr. Dunn’sworld-wide search going back a hundred years revealed almost no medicalliterature on Rhodamine B. What there was consisted of three articles,written in German, describing three experiments. There was even somequestion on whether the experiment referred to Rhodamine B or ananalogue of it [\”analogue\” refers to anything that is similar tosomething else]. The research indicated that the only instance where ahuman being was treated for Rhodamine was one person in 1986; and Dr.Dunn acknowledged that the article \”probably would not have gottenpublished today\” ….Tr. 604-625, 698-729.Dr. Dunn’s opinion on the serious nature of the harm was weakenedbecause, as he testified, it was mostly based on three articles…Tr.622,625.In view of these circumstance, I find that it has not been establishedthat there is a substantial probability that death or serious physicalharm could result from the exposure of employees to Rhodamine B._FINDINGS OF FACTS_Having hear the testimony, observed the witness, and examined theexhibits, the following Findings of Fact are made:1. At all times concerned, the Respondent regularly received, handled orworked with goods which had moved across state lines.2. As concerns Item #1(a) of Citation #1, the Respondent’s employees didnot use personal protective equipment when handling or being exposed totoxic chemicals.3. The Respondent did not have an adequate safety training program.4. The safety training program that the Respondent had was notadequately communicated to its employees or adequately enforced.5. The conditions described in Item #1(a) of Citation #1 exposed theRespondent’s employees to sustaining harm because of the hazard ofchemical poisoning.6. One or more officers or supervisory personnel of the Respondent knewof the hazardous conditions described herein and knew that employeeswere exposed to such hazard._CONCLUSIONS OF LAW_1. At all times concerned, the Respondent was an employer engaged in abusiness affecting commerce within the meaning of the Act; and theOccupational Safety & Health Review Commission has jurisdiction over thesubject matter and the parties.2. At all times concerned, the Respondent knew, or with the exercise ofdue diligence should have known, of the alleged violation.3. On the date in question, the Respondent was not in compliance withthe standard at 29 C.F.R. 1910.132(a) and the Complainant has sustainedthe burden of proving the Respondent violated sec. 5(a) of the Act (sec.654)._ORDER_The whole record having been considered, and due consideration havingbeen given to 29 U.S.C. sec. 666(j), it is ordered:1. Item 1(a) of Citation #1 is affirmed as an other than seriousviolation and a penalty of $100 assessed therefor.So ordered.FOSTER FURCOLOJudge, OSHRCDated: October 4, 1988Boston, Massachusetts _APPENDIX THE ACT_2. Section 654 [section 5 (a) (2)] Employer \”…shall comply withoccupational safety and health standards…\”7. Section 666 [section 17 (c)] \”…employer who has received a citationfor a violation of this Act … specifically determined not to be of aserious nature, may be assessed a civil penalty of up to $1,000 for eachsuch violation.\”8. Section 666 [section 17 (j)] \”…assess all civil penalties…givingdue consideration to … the size of the business … gravity of theviolation, the good faith of the employer, and the history or previousviolations.\”9. Section 666 [section 17 (k)] \”…a serious violation shall be deemedto exist…if there is a substantial probability that death or seriousphysical harm could result … unless the employer did not, and couldnot…know of the presence of the violation.\”_THE STANDARD_29 C.F.R. 1910.132 (a): \”Protective equipment…shall be provided,used… wherever it is necessary by reason of…chemical hazards…encountered in a manner capable of causing injury or impairment in thefunction of any part of the body through absorption, inhalation orphysical contact.\”SECRETARY OF LABOR,Complainant,v.CONSOLIDATED FREIGHTWAYS CORP.,Respondent.Docket No. 86- 0351_ERRATUM_Due to clerical error, the date on page 20 of the Commission decisionissued October 17, 1991, was inadvertently omitted. A corrected copy ofpage 20 is attached.Ray H. Darling, Jr.Executive SecretaryDated: October 24, 1991FOOTNOTES:[[1\/]] The text of the standard is as follows:1910.132 General requirements.(a) Application. Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall beprovided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.[[2\/]] Section 17(k) of the Act, 29 U.S.C. ?666(k), defines a seriousviolation as follows:[A] serious violation shall be deemed to exist in a place of employmentif there is a substantial probability that death or serious physicalharm could result from a condition which exists, or from one or morepractices, means, methods, operations, or processes which have beenadopted or are in use, in such place of employment unless the employerdid not, and could not with the exercise of reasonable diligence, knowof the presence of the violation.[[3\/]] Aljuwani claims that he only spoke to Longo to tell him that oneof the drums he had loaded was leaking, but he did not tell Longo to doanything about it. However, it is undisputed that a dockman’s dutiesinclude taping or repackaging damaged freight.[[4\/]] When questioned whether anyone else was present at the trailer,Mislin testified:Sam Longo — when I first went there, no. When I got halfway through thelabel is when I felt sick and was –was spitting and got real sick atthat time. The only person I seen was Longo, and I think I passed[dockman] Schukraft running towards the office, but I–I was pretty wellworrying about where I was going to– going to throw up.Longo testified that dock foreman Aljuwani was also present while Mislinwas reading the label, and that Aljuwani also inspected the label atthat time.[[5\/]] Cimino’s first name is not in the record. He did not testify atthe hearing and no evidence was presented to show whether he was injuredby his exposure to the Flexo Red.[[6\/]] The judge also found that Consolidated’s supervisory personnel\”knew of the hazardous conditions and that employees were not usingadequate personal protective equipment.\” The judge supported thisfinding by citing testimony of dockmen Sam Longo, William Schukraft, TimMislin, James O’Brien, and Paul Tartick that indicated that managementwas aware of the practice of dockmen being instructed to tape damagedcontainers containing hazardous materials.[[7\/]] The record indicates that referring to the Hazardous MaterialsManual is also up to the supervisor’s discretion.[[8\/]] The article indicated that the dye that the worker was exposed towas some form of \”Rhodamine\”. The substance at issue here, Flexo Red NB540, is also known as Rhodamine B. Thus, the Rhodamine that was thesubject of the article was not necessarily the same dye that injured theemployees at the Consolidation Center.[[9\/]] In his decision, the judge only discussed the Flexo Red exposureof dockmen Longo, Mislin and Cimino. He did not discuss the exposure ofemployees O’Brien and Wittmeyer \”because the possible exposure was notassociated with their specific occupational duties.\”[[10\/]] These provisions in the Field Operations Manual do not have theforce and effect of law. Del Monte Corp., 9 BNA OSHC 2136, 2140, 1981CCH OSHD ? 25,586, p. 31,914 (No. 11865, 1981) (the purpose of themanual’s guidelines are to promote agency efficiency and do not accordimportant procedural or substantive rights to individuals).”