“Docket No. 86-0351 SECRETARY OF LABOR, Complainant, v. CONSOLIDATED FREIGHTWAYS CORP., Respondent.OSHRC Docket No. 86-0351DECISION Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:The Secretary of Labor (Secretary) through the OccupationalSafety and Health Administration (OSHA) cited Consolidated Freightways Corporation(Consolidated) for a serious violation of 29 C.F.R. ?1910.132(a)[[1\/]] for failing torequire that employees use personal protective equipment necessary to protect againstexposure to a corrosive. The OSHA area director proposed a penalty of $720. Anadministrative law judge of the Review Commission affirmed the citation as another-than-serious violation, and assessed a penalty of $100. Review was directed by thisCommission on whether the judge erred in finding that Consolidated knew, or with theexercise of reasonable diligence should have known, of the alleged violation and whetherhe erred in reducing the classification of the alleged violation to other-than-serious.Based on a review of the record as a whole, we find that the judge did not err in findingthat Consolidated either knew or with the exercise of reasonable diligence could haveknown of the violation. However, we modify the judge’s decision, find that the violationis properly classified as serious, [[2\/]] and assess a penalty of $720.I. BackgroundAt Consolidated’s Consolidation Center in Tonawanda, New York,dockmen loading and unloading trailers handle hazardous materials on a daily basis. Thedockmen are supervised by the dock foreman, who reports to the freight operations manager,who in turn reports to both the terminal manager and to the assistant terminal manager.On Monday, January 27, 1986, the Consolidation Center receivedtwo twenty-gallon cardboard drums containing a red, corrosive powder dye called Flexo RedNB 540 (\”Flexo Red\”), also known as Rhodamine B. Similar containers of Flexo Redhave been shipped through the terminal on a weekly basis for at least the past twelveyears. The two drums mentioned above were being returned to the original shipper, possiblybecause one of the drums was punctured.Dockman Sam Longo unloaded the drums from a trailer, placedthem in a pushcart, and loaded them on the right side of another trailer. Longo statedthat it was his understanding that the drums contained a \”hazardous\” and\”corrosive\” material, but that when he moved them, he saw no seepage.Longo further testified that Dock Foreman Wahab Aljuwani latertold him that one of the two drums he loaded in the trailer was leaking and that he shouldget a roll of masking tape and patch the hole.[[3\/]] When Longo returned to the trailer,he found that the drums had been moved and that the leaking drum had left a trail of dust\”four inches high\” across the trailer. Longo tipped the drum on its side andplaced tape over a puncture near the bottom of the drum.While he was repairing the drum, Longo noticed a placardaffixed to it warning that the drum contained a corrosive substance. Although he waswearing a pair of heavy duty work gloves made of cloth, leather and canvas, with a clothliner, Longo’s hands were stained by the Flexo Red dye. He immediately went to the restroom to wash his hands, but was unable to remove the red stain.Dockman Tim Mislin, a union steward, entered the restroom whenLongo was trying to wash the Flexo Red from his hands. Learning that Longo \”was hurtby a material\” to which he had been exposed, Mislin went to the trailer to read theproduct label on the drum to see if the substance was harmful.[[4\/]] While he was readingthe label, some of the Flexo Red blew into Mislin’s face. He suddenly felt nauseous,\”started spitting out red stuff,\” and began vomiting. Both Mislin and Longoreceived permission from Freight Operations Manager Robert Daminski to go to the hospital.Daminski, who was familiar with Flexo Red because of previousspills, inspected the spill to see what had caused the problem. He knew it was \”avery potent dye,\” but he did not know that it was corrosive. Daminski did not noticeany warning labels or tags on either of the drums. He looked at the bill of lading, whichnormally indicates a material’s hazard class, but did not recall whether it indicated thatFlexo Red was corrosive. Without determining the hazard class of the Flexo Red orreferring to any safety guidebooks, Daminski directed dock foreman Aljuwani to clean upthe spill. Daminski did not tell Aljuwani to require his subordinates to use any personalprotective equipment while cleaning up the powder, but only to \”clean up the spill,get the drum transferred [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 a corrosivedry powder should be cleaned up with a broom and shovel . Shortly after the spill,Daminski discovered that Flexo Red was a corrosive when he pulled the copy of the bill oflading, enabling him to inform the hospital of the substance to which Longo and Mislin hadbeen exposed.When Aljuwani noticed the leaking drum of Flexo Red, heobtained the bill 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 he told a temporarydockman named Cimino[[5\/]] to \”get yourself some gloves, rubber gloves, and whateverelse you need,\” and to \”[p]ut the [damaged] drum into another drum . . . [,]sweep up the residue, put that in a drum, and pack it up.\” While Cimino was movingthe punctured drum around, the tape came off, releasing some of the Flexo Red. Cimino thenput the drum down on its side, and the metal lid of the drum fell off, releasing Flexo Red\”in abundance.\” He then put the lid back on, stood the drum back up, andresealed it with masking tape. Aljuwani testified that Cimino was not wearing a\”yellow suit . . . or anything like that\” when he cleaned up the spill. Aljuwaniwas not sure whether Cimino was wearing rubber gloves or a mask. Dockman William Schukrafttestified that Cimino only used a pair of work gloves like those \”that all dockmenwear.\”Patrick J. Brady, Consolidated’s terminal manager, testifiedthat the procedures to follow when a spill or a leak of a hazardous substance occurs arecontained in Consolidated’s Emergency Response Guidebook and its Hazardous MaterialsManual. Both publications are distributed to the terminal manager and assistant terminalmanager and are also available to the freight operations manager and dock foreman. TheEmergency Response Guidebook is not generally available for dockmen to use, and Brady\”never heard a dockman ask for one,\” although he was sure that they were madeaware of the Guidebook during their training. Brady testified that a dockman would requireauthorization from the dock foreman to see the Guidebook or Manual, and that such arequest could be refused.Brady testified that when a corrosive solid like Flexo Red isspilled, the dock foreman is not required to refer to the Emergency Response Guidebookbecause it is only a \”guideline for him to use in conjunction with hisjudgment.\” Brady stated that even when certain personal protective equipment iscalled for by the Emergency Response Guidebook, employees are not required to use theequipment if they do not think it is appropriate. He testified that a spill of a corrosivepowder is usually considered to be only an \”incident\” rather than an emergency,and therefore the protective equipment indicated in the Emergency Response Guidebook neednot be used. However, Brady stated as follows:What I subsequently learned about this particular commodity isthat it becomes airborne with very, very little disturbance, and you can’t see it beingairborne with the naked eye, but the effects are certainly there. Having that knowledgetoday, I would consider it an emergency. I would have closed the door to the trailer andhad the trailer pulled away from the dock and put into an isolated area and have peoplewith self-contained breathing apparatus come in to effect the clean-up.During his testimony, Brady stated that he did not know ifemployees received specific training in how to clean up spills of corrosive materials, buthe knew that they had general training in cleaning up spills as part of the hazardousmaterials training program. Brady further testified that employees were told to refer tothe Emergency Response Guidebook for step-by-step procedures on how to clean up a specifictype of spill. In addition, the employees were told to immediately notify the dock foremanof a spill. However, a dockman can respond to a situation before contacting the dockforeman.II.Whether the judge erred in concluding that Consolidated knew, or with the exercise ofreasonable diligence could have known, of the alleged violative condition.A.The judge found that \”[a]t all times concerned, [Consolidated] knew, or with theexercise of due diligence should have known, of the alleged violation.\” The judgebased this finding on Consolidated’s failure to have an adequate safety training program,and on his finding that \”the safety training program that [Consolidated] had was notadequately communicated to its employees or adequately enforced.\” [[6\/]]On review, Consolidated argues that Aljuwani failed to followproper procedures when he failed to make sure that the employees wore personal protectiveequipment when handling the spill and that Consolidated could not have known of Aljuwani’sfailure to follow company policy. It claims that because it took all necessary precautionsto prevent the occurrence of the violation, Aljuwani’s unsafe act cannot be imputed to it.Consolidated further argues that the \”evidence at the hearing demonstrated that ithad a safety program for dealing with hazardous materials that was comprehensive, thoroughand aggressive.\” It claims that both Terminal Manager Brady and Freight OperationsManager Daminski understood that Dock Foreman Aljuwani had been told to require thedockmen’s use of personal protective equipment when cleaning up spills or leaks ofhazardous materials.The Secretary argues that Consolidated’s failure to provide andrequire the use of personal protective equipment was not an isolated occurrence. Shepoints out that neither Daminski nor Aljuwani gave instructions to Cimino to use personalprotective equipment when cleaning up the spill. In addition, the Secretary argues thatConsolidated’s safety program was inadequately communicated, enforced and implemented,\”leaving too many important decisions, i.e., the use of personal protectiveequipment, to the dockmen.\” The Secretary further points out that despite the regularmovement of hazardous materials, including Flexo Red, through the Consolidation Center,neither Daminski nor Aljuwani had any specific training in cleaning up dry corrosivechemical spills. She also notes that employees Sam Longo, Richard Bamberg, WilliamSchukraft, Tim Mislin, James O’Brien, Paul Tartick, and Bernard Wittmeyer had not receivedtraining in the use of personal protective equipment and were not familiar with eitherConsolidated’s Hazardous Materials Manual or its Emergency Response Guidebook.B.In order to satisfy her burden of proving knowledge, theSecretary must prove that a cited employer either knew, or with the exercise of reasonablediligence could have known, of the presence of the violative condition. Seibel ModernManufacturing & Welding Corp., 15 BNA OSHC 1218, 1221, 1991 CCH OSHD ? 29,442, p.39,678 (No. 88-821, 1991). The actual or constructive knowledge of an employer’s foremancan be imputed to 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, the violative conditionwas the failure of Dockman Longo to wear appropriate personal protective equipment whenhandling the Flexo Red.The record demonstrates that Aljuwani told Longo about the leakand that Longo attempted to patch it as a dockman normally would. By the time Aljuwanitold Dockman Cimino to re-pack the leaking drum of Flexo Red and to sweep up the residue,he had learned from the bill of lading that the leaking drum contained a corrosivematerial. Although Aljuwani told Cimino to \”get rubber gloves or whatever else youneed,\” he did not require either Longo or Cimino to use the appropriate personalprotective equipment while cleaning up the Flexo Red. Instead, he let the employees decidewhat protective equipment to use even though he knew they had not received training inselecting or using the personal protective equipment necessary to protect against exposureto a corrosive. In fact, Aljuwani himself did not know what personal protective equipmentshould be used while cleaning up a spill of a corrosive powder or other hazardousmaterial. Thus, the evidence establishes that Aljuwani knew or should have known of theviolation.Once the Secretary has made a prima facie showing of employerknowledge through its supervisory employee, the employer can rebut that showing byestablishing that the failure of the supervisory employee to follow proper procedures wasunpreventable. In particular, the employer must establish that it had relevant work rulesthat it adequately communicated 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 Brock v. L. E. Myers Co., 818 F.2d1270, 1277 (6th Cir. 1987), cert. denied, 484 U.S. 989 (No. 87-246, 1987). UnderCommission case law, the supervisor’s knowledge of the violations, both actual andconstructive, is imputable to the employer for the purpose of proving employer knowledgeof the violations unless the employer establishes that it took all necessary precautionsto prevent the violations, including adequate instruction and supervision of itssupervisor.\u00a0 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 themisconduct is strong evidence that the employer’s safety program was lax.\u00a0 Id.Consolidated claims that its safety program for dealing withhazardous materials 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 that Consolidated’ssafety program would prevent the recurrence of the situation that occurred here.\u00a0 Themanuals and handbooks it refers to are the Emergency Response Guidebook, the HazardousMaterials Manual, the Freight Handling Handbook, and the Driver Salesman and DockworkersSafety Handbook.\u00a0 Of these documents, only the Emergency Response Guidebookspecifically describes what types of safety equipment are to be used while containing andcleaning up a spill of hazardous materials.\u00a0 the other documents merely directemployees to contact their supervisors for directions.\u00a0 While each dockman was toldto immediately notify a foreman in case of a spill of hazardous materials, TerminalManager Brady testified that a dockman has the discretion to respond to a spill or leakbefore contacting the dock foreman.Brady also testified that the dock foreman is allowed to decidewhether to follow the Emergency Response Guidebook or even to refer to the Guidebookbecause it is only \”a guideline for him to use in conjunction with hisjudgment.\”[[7\/]] Even where the Emergency Response Guidebook indicates that certainpersonal protective equipment should be worn, employees of Consolidated are not requiredto use the equipment if they do not think it is appropriate, even though they have notbeen trained in the criteria to be considered and the guidelines to be followed in makingthat determination. The dockmen received training in the handling of hazardous materials,but this training involved how to transport and store hazardous materials, not how toclean up spills of hazardous material.The evidence also demonstrates that Consolidated’s work ruleswere not adequately communicated. Few of the dockmen knew of the existence of theHazardous Materials Manual or Emergency Response Guidebook. Even had they been aware oftheir existence, the dockmen were only permitted to review the manual and the guidebookwhen they were off duty.In addition, we conclude that Consolidated failed toeffectively enforce its safety program for dealing with hazardous spills. AlthoughConsolidated asserts that the dock foreman’s violation of company policy was an isolatedoccurrence, the evidence establishes that Consolidated left it to the judgment of the dockforeman to decide whether to refer to the Emergency Response Guidebook. Thus, Aljuwani,who had no training in the cleaning up of corrosive spills, was not in violation ofcompany policy when he allowed employees to clean up the Flexo Red without firstconsulting the guidebook to determine what personal protective equipment was required. Wetherefore conclude that Consolidated has failed to establish that Aljuwani’s assertedfailure to follow proper procedures was unpreventable. Dock Foreman Aljuwani’s knowledgeof the violation is imputed to Consolidated.III.Whether the judge erred in reducing the classification of the alleged violation of 29C.F.R. ? 1910.132(a) from serious to other-than-serious.A. Consolidated does not dispute the effects of the exposure to Flexo Red that wereexperienced by its employees. Four employees, Longo, Mislin, Wittmeyer, and O’Brien,testified regarding the effects of their exposure. In addition to employees Longo andMislin, driver\/salesman Wittmeyer was exposed to Flexo Red on the day of the initialspill. Wittmeyer testified that the day after his exposure, he had a bad headache, blurredvision, and a skin rash, but that he did not seek medical attention at the time.On Friday, January 31, four days after the initial exposure,some of the Flexo Red that was still \”blowing around the yard\” blew into thefaces of a number of employees, most of whom also had been exposed on Monday, January 27.After this exposure, Mislin alleged that he became sick asecond time. Both Mislin and dockman O’Brien, who was also exposed, were taken to thehospital. Mislin vomited, his eyes burned, then swelled and became sensitive to light, andhe stated that he also suffered from headaches, rashes, and gastric problems. Mislin wasreferred to an ophthalmologist, a specialist in internal medicine, and a dermatologist,and he did not report to work for approximately seven and one-half weeks. O’Brienexperienced breathing problems, gastric problems, and painful burning and tearing of hiseyes. After he was told that he had been exposed to a corrosive, O’Brien visited hisfamily doctor, who referred him to an internal specialist for his diarrhea. O’Brientestified that he also visited an \”eye doctor\” who required him to wear an eyepatch for four days. His eye symptoms continued for a week, and his gastric symptomscontinued for \”[a]bout a month.\” He eventually missed a total of eighteen daysfrom work between January and May. Wittmeyer, who was also re-exposed, began wearingprescription eyeglasses for the first time in March of 1986, approximately two monthsafter the spill, and was under an \”eye specialist’s\” care for over one yearafter the accident. However, no evidence was offered to show that the ophthalmologic carewas provided only for symptoms of exposure to Flexo Red. Wittmeyer still had burning eyesand blurred vision at the time of the hearing. Wittmeyer did not miss any work, and hereceived regular medical exams for his symptoms, which included regular checkups for hiseyes. Consolidated did not rebut any of the employees’ testimony regarding their injuriesand lost work time.Dr. Dunn, an ophthalmologist appearing as an expert witness forthe Secretary, testified that Flexo Red is toxic to the eye and that exposure to asufficient quantity could cause a temporary loss of vision. He recommended that eyeprotection and a respirator be used when handling Flexo Red because of the dye’s toxiceffect on the mucous membranes, nose, mouth, and conjunctiva of the eye.Dr. Dunn further testified that his knowledge of the possibleeffects of Flexo Red was derived solely from three articles which were published nearlyone hundred years ago. Two of the articles relied upon by Dr. Dunn discussed experimentswhere unknown quantities of various dyes, including Rhodamine B, were introduced into theeyes of rabbits. The exposure produced symptoms of conjunctivitis and scarified epitheliumof the cornea that lasted up to three weeks, but which did not result in permanent ordisabling effects. Dr. Dunn acknowledged that these studies would \”not be directlytransferable to humans\” since the eye of a rabbit \”reacts much more strongly tocaustic agents\” and that workers would \”wash their eyes out, whereas we wouldnot expect the rabbit to do that.\” The third article relied upon by Dr. Dunndescribes a case where some powdered analog of \”Rhodamine\” [[8\/]] blew into theeye of a worker, causing increased eye secretion, reddened conjunctiva, and scarifiedepithelium of the cornea. The article stated that the patient’s eye was free of irritationwithin two weeks of the exposure, indicating that there was no permanent damage of anykind to the eye.B. The judge found that the exposure to Flexo Red harmed Consolidated’s employees, and thatthe harm \”was clearly established even without the physician’s opinion.\”However, he found that the Secretary did not prove that the violation was serious becauseshe did not establish that the employees faced a substantial probability of death orserious physical harm as a result of their exposure to Flexo Red.[[9\/]] In reaching thisconclusion, the judge only discussed the testimony of Dr. Dunn and did not discuss theemployees’ testimony about their own injuries. The judge found that the medical researchpresented by Dr. Dunn was \”not enough to justify an opinion on the degree of harmthat could be caused by [Flexo Red].\” The judge also found that \”Dr. Dunn’sopinion on the serious nature of the harm was weakened because, as he testified, it wasmostly based on three articles.\”The Secretary argues that the judge erred In reducing theclassification from serious to other-than-serious \”because the actual injuriessustained by the employees, together with the technical data and expert medical opinionevidence, established that there was a substantial chance of serious physical harmwhenever there is exposure to Flexo Red, a toxic chemical dye,\” The Secretary claimsthat the \”adverse health effects were serious because the employees experienced areduction in efficiency in one or more parts of the body, and the substantial nature ofthat reduction was established by the need for medical treatment.\” The Secretarycontends that \”[a]lthough the Act itself does not set forth a bright line test forclassifying a violation as serious or other-than- serious, OSHA has provided guidance inits Field Operations Manual.\” The Field Operations Manual defines \”seriousphysical harm\” as:Impairment of the body in which part of the body is madefunctionally useless or is substantially reduced in efficiency on or off the job. Suchimpairment may be permanent or temporary, chronic or acute. Injuries involving suchimpairment would usually require treatment by a medical doctor.OSHA Instruction CPL 2.45B, Field Operations Manual, ChapterIV, section B.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’scase-by-case determinations have generally been consistent with the Secretary’sdefinition\” of what constitutes a serious violation, and cites Mahone Grain Corp., 10BNA OSHC 1275, 1982 CCH OSHD ? 25,836 (No. 77-3041, 1981), for the proposition thatpermanent disability is not an essential factor for a violation to be classified asserious. The Secretary claims that \”[t]he Commission has readily acknowledged thatthe seriousness of a violation can be based on an injury which may not have any lastingeffect beyond the healing period, as in bone fractures.\” In that regard, theSecretary relies on Brown-McKee, Inc., 8 BNA OSHC 1247, 1980 CCH OSHD ? 24,409 (No.76-982, 1980) (the violation of the standard was serious because a fourteen to fifteenfoot fall to a steel platform could result in a fracture, broken neck or death), and PPGIndustries, 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 they were exposed to aten to fifteen foot fall is a serious violation because a fall from such a distance couldresult in broken bones or serious physical harm). The Secretary further argues that\”[t]he evidence in this case must also be viewed in light of prior Commission lawregarding eye injuries,\” citing Vanco Construction, Inc., 11 BNA OSHC 1058, 1983-84CCH OSHD ? 25,372 (No. 79-4945, 1982) , aff’d, 723 F. 2d 410 (5th Cir. 1984) (Commissionfound that given the \”delicateness of the eye,\” serious physical harm would besubstantially probable if the eye were injured).Consolidated claims that \”[t]he Secretary must establish,not a possibility, but ‘a substantial probability’ of the consequences that would warrantthe classification of a violation as serious.\” Consolidated argues that it\”should not be held accountable for any injuries that are not foreseeable at the timeof the incident, particularly when the known medical evidence suggests that theconsequences are mild and temporary.\” Consolidated contends that Mahone Grain doesnot support the Secretary’s position. Consolidated points out that in Mahone Grain, unlikehere, \”the affected employees required hospitalization for a condition that couldlead to death.\” Here, it contends that there was no evidence that exposure to FlexoRed could lead to death.C.Consolidated suggests that it should not be held liable for the injuries that occurredbecause they were not foreseeable and because the medical evidence indicates that theywere mild and temporary. However, the foreseeability of an injury is irrelevant indetermining whether a violation is serious. Under Commission precedent, a seriousviolation is established if an accident is possible and there is a substantial probabilitythat death or serious physical harm could result from the accident. Dravo Corp., 7 BNAOSHC 2095, 2101, 1980 CCH OSHD ? 24,158, p. 29,370 (No. 16317, 1980), pet. for reviewdenied, 639 F.2d 772 (3d Cir. 1980).Here, there is no dispute that an accident did occur. Also,Consolidated does not dispute that the employees who were exposed to the Flexo Red powdersuffered a variety of debilitating effects from their exposures that in some casespersisted long after the exposure. O’Brien experienced breathing and gastric problems aswell as painful burning and tearing in his eyes. He missed a total of eighteen days fromwork between January and May. Mislin’s eyes burned and swelled and became sensitive tolight. He also experienced gastric problems and was referred to three differentspecialists. Mislin did not return to work for approximately seven and one-half weeksafter his exposure. Wittmeyer was under a doctor’s care for his eye problems for more thana year after the accident. At the time of the hearing, more than a year after he wasexposed to Flexo Red, his eyes still burned and his vision was still blurred.If the symptoms suffered by Consolidated’s employees had quickly dissipated, it would bedifficult for us to find that they amounted to serious physical harm. However, theexposure to Flexo Red significantly impaired 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. Mahone Grain, 10 BNA OSHCat 1279, 1982 CCH OSHD at p. 32,317-2 (No. 77-3041, 1981). We therefore conclude thatConsolidated’s failure to use sufficient personal protective equipment to protect againstemployee exposure to Flexo Red was a serious violation of the Act.In her citation, the Secretary proposed a penalty of $720 for aserious violation. The judge assessed a penalty of $100 for an other-than-seriousviolation. Having considered the penalty factors enumerated in section 17(k) of the Act,29 U.S.C. ? 666(k), we assess a penalty of $720.IV. OrderAccordingly, we find a serious violation of 29 C.F.R.?1910.132(a) and assess a penalty of $720.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerSECRETARY OF LABOR, Complainant v. CONSOLIDATED FREIGHTWAYS CORP. Respondent OSHRC Docket No. 86-0351DECISION AND ORDERThis case arose under 29 U.S.C. sec. 651 et seq. of theOccupational Safety and Health Act of 1970 (the Act). As a result of an inspection by theOccupational Safety and Health Administration [OSHA] of the Respondent’s premises on orabout January 31, 1986 to February 28, 1986, Citation #1 was issued on or about March 5,1986, charging that the Respondent violated sec. 5(a)(2) of the Act by the seriousviolation of the standard at 29 C.F.R. 1910.132(a) in that protective equipment was notused by employees handling corrosive materials.On or about March 26, 1986, the Respondent filed Notice ofContest to the Citation and the penalty proposed therefor.The pertinent sections of the Act and the standard are appendedto this decision under appropriate titles.BACKGROUNDThe Respondent is a carrier operating trucks that transportfreight of all kinds packed in drums, cartons, or other containers that vary in size,weight, destination, contents, etc. Some of the freight carried includes materials thatmay be dangerous to health and safety; and some may be stored or moved from one truck toanother before reaching a final destination.In the instant case, while freight was being moved from onetruck to another by employees in the Respondent’s terminal, a powdery corrosive material[referred to as \”Rhodamine B\” or \”Flexo\” or \”the red dye\”]seeped out of the drum containing it when the drum split open. When handling the leakingdrum, an employee [Longo] used no protective equipment except two pairs of heavy dutygloves. His hands were stained by the corrosive substance…Tr. 325-327. Another employee[Mislin] who was also wearing gloves, came close enough to the leaking drum to read itslabel…Tr. 434-438. Another employee [Cimino] swept the corrosive substance while wearingonly a pair of \”work gloves\” as protective equipment…Tr. 398,399.[Some other employees were possibly exposed to the allegedhazardous condition but they are not discussed in the Decision because the possibleexposure was not associated with their specific occupational duties].SAFETY TRAINING PROGRAMDid the Respondent have a safety training program that was bothadequate and enforced? There is no question that the Respondent had a safety trainingprogram that included video illustrations, lectures, reading materials, rules, the use ofpersonal protective equipment, and other measures intended to protect the safety of theemployees.However, the provisions of the safety program were not alwaysfollowed by employees, and proper training and instructions were not always given to them.There were also flaws in it — for example, although the Respondent provided manuals ofsafety instructions, some were kept in places that were not readily accessible to allemployees and, in some cases, 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: the provisions of the safety program were notuniformly enforced by the Respondent. Violation of the rules did not always subjectemployees to disciplinary action, and failure to follow the Respondent’s safety programwas occasionally overlooked. . . Tr. 164, 306, 311, 466.I find that the Respondent did not have a safety trainingprogram that was both adequate and enforced.KNOWLEDGE Supervisory personnel of the Respondent knew of the hazardousconditions and 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 physicalharm to employees? The evidence is clear that employees who were in good health sufferedspells of headaches, diarrhea, coughing, nausea, skin irritation, intestinal discomfort,and eye inflammation — or various combinations of such symptoms — immediately afterbeing exposed to the foreign substance in question. There was no other explanation for theattacks; and the only employees so affected were the ones who had been exposed to it. Ifit 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 thetestimony of a physician [Dr. Dunn] but the harm to the employees was clearly establishedeven without the physician’s opinion.When the symptoms of injury or illness are consistent with acause, and no other cause has even been suggested by the evidence or reasonable inferencestherefrom, it is my opinion a finding is warranted that the cause of the symptoms has beenestablished.I find that the corrosive substance that is the subject of the citation caused physicalharm to the Respondent’s employees.DEGREE OF HARMWas the harm to affected employees severe enough to meet the test of \”asubstantial probability that death or serious physical harm could result\” from thealleged hazardous condition?The Complainant relied on the testimony of Dr. Dunn to prove the allegation.\u00a0 Iwas very favorably impressed by Dr. Dunn, and I find that he was an extremelywell-qualified expert who was completely honest and candid in his opinions.\u00a0 However,there simply is not enough medical research in existence to justify an opinion on thedegree of harm that could be caused by Rhodamine B powder.\u00a0 In the first place, Dr.Dunn’s world-wide search going back a hundred years revealed almost no medical literatureon Rhodamine B.\u00a0 What there was consisted of three articles, written in German,describing three experiments.\u00a0 There was even some question on whether the experimentreferred to Rhodamine B or an analogue of it [\”analogue\” refers to anything thatis similar to something else].\u00a0 The research indicated that the only instance where ahuman being was treated for Rhodamine was one person in 1986; and Dr. Dunn acknowledgedthat the article \”probably would not have gotten published today\” ….Tr.604-625, 698-729.Dr. Dunn’s opinion on the serious nature of the harm wasweakened because, 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 established that there isa substantial probability that death or serious physical harm could result from theexposure of employees to Rhodamine B.FINDINGS OF FACTSHaving hear the testimony, observed the witness, and examined the exhibits, thefollowing Findings of Fact are made:1. At all times concerned, the Respondent regularly received,handled or worked with goods which had moved across state lines. 2. As concerns Item #1(a) of Citation #1, the Respondent’semployees did not use personal protective equipment when handling or being exposed totoxic chemicals.3. The Respondent did not have an adequate safety trainingprogram. 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 #1exposed the Respondent’s employees to sustaining harm because of the hazard of chemicalpoisoning.6. One or more officers or supervisory personnel of theRespondent knew of the hazardous conditions described herein and knew that employees wereexposed to such hazard.CONCLUSIONS OF LAW1. At all times concerned, the Respondent was an employerengaged in a business affecting commerce within the meaning of the Act; and theOccupational Safety & Health Review Commission has jurisdiction over the subjectmatter and the parties.2. At all times concerned, the Respondent knew, or with theexercise of due diligence should have known, of the alleged violation.3. On the date in question, the Respondent was not incompliance with the 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 having been given to29 U.S.C. sec. 666(j), it is ordered:1. Item 1(a) of Citation #1 is affirmed as an other thanserious violation and a penalty of $100 assessed therefor.So ordered.FOSTER FURCOLOJudge, OSHRCDated: October 4, 1988Boston, Massachusetts\u00a0\u00a0\u00a0APPENDIX THE ACT2. Section 654 [section 5 (a) (2)] Employer \”…shallcomply with occupational safety and health standards…\”7. Section 666 [section 17 (c)] \”…employer who hasreceived a citation for 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 each suchviolation.\”8. Section 666 [section 17 (j)] \”…assess all civilpenalties…giving due consideration to … the size of the business … gravity of theviolation, the good faith of the employer, and the history or previous violations.\”9. Section 666 [section 17 (k)] \”…a serious violationshall be deemed to exist…if there is a substantial probability that death or seriousphysical harm could result … unless the employer did not, and could not…know of thepresence of the violation.\”THE STANDARD29 C.F.R. 1910.132 (a): \”Protective equipment…shall beprovided, used… wherever it is necessary by reason of…chemical hazards… encounteredin a manner capable of causing injury or impairment in the function of any part of thebody through absorption, inhalation or physical contact.\”SECRETARY OF LABOR, Complainant, v. CONSOLIDATED FREIGHTWAYS CORP., Respondent.Docket No. 86- 0351ERRATUM Due to clerical error, the date on page 20 of the Commission decision issued October 17,1991, was inadvertently omitted. A corrected copy of page 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 protective equipment for eyes,face, head, and extremities, protective clothing, respiratory devices, and protectiveshields and barriers, shall be provided, used, and maintained in a sanitary and reliablecondition wherever it is necessary by reason of hazards of processes or environment,chemical hazards, radiological hazards, or mechanical irritants encountered in a mannercapable of causing injury or impairment in the function of any part of the body throughabsorption, inhalation or physical contact.[[2\/]] Section 17(k) of the Act, 29 U.S.C. ?666(k), defines aserious violation as follows:[A] serious violation shall be deemed to exist in a place of employment if there is asubstantial probability that death or serious physical harm could result from a conditionwhich exists, or from one or more practices, means, methods, operations, or processeswhich have been adopted or are in use, in such place of employment unless the employer didnot, and could not with the exercise of reasonable diligence, know of the presence of theviolation.[[3\/]] Aljuwani claims that he only spoke to Longo to tell himthat one of the drums he had loaded was leaking, but he did not tell Longo to do anythingabout it. However, it is undisputed that a dockman’s duties include taping or repackagingdamaged freight.[[4\/]] When questioned whether anyone else was present at thetrailer, Mislin testified:Sam Longo — when I first went there, no. When I got halfway through the label is when Ifelt sick and was –was spitting and got real sick at that time. The only person I seenwas Longo, and I think I passed [dockman] Schukraft running towards the office, but I–Iwas pretty well worrying about where I was going to– going to throw up.Longo testified that dock foreman Aljuwani was also present while Mislin was reading thelabel, and that Aljuwani also inspected the label at that time.[[5\/]] Cimino’s first name is not in the record. He did nottestify at the hearing and no evidence was presented to show whether he was injured by hisexposure to the Flexo Red.[[6\/]] The judge also found that Consolidated’s supervisorypersonnel \”knew of the hazardous conditions and that employees were not usingadequate personal protective equipment.\” The judge supported this finding by citingtestimony of dockmen Sam Longo, William Schukraft, Tim Mislin, James O’Brien, and PaulTartick that indicated that management was aware of the practice of dockmen beinginstructed to tape damaged containers containing hazardous materials.[[7\/]] The record indicates that referring to the HazardousMaterials Manual is also up to the supervisor’s discretion.[[8\/]] The article indicated that the dye that the worker wasexposed to was some form of \”Rhodamine\”. The substance at issue here, Flexo RedNB 540, is also known as Rhodamine B. Thus, the Rhodamine that was the subject of thearticle was not necessarily the same dye that injured the employees at the ConsolidationCenter.[[9\/]] In his decision, the judge only discussed the Flexo Redexposure of dockmen Longo, Mislin and Cimino. He did not discuss the exposure of employeesO’Brien and Wittmeyer \”because the possible exposure was not associated with theirspecific occupational duties.\”[[10\/]] These provisions in the Field Operations Manual do nothave the force and effect of law. Del Monte Corp., 9 BNA OSHC 2136, 2140, 1981 CCH OSHD ?25,586, p. 31,914 (No. 11865, 1981) (the purpose of the manual’s guidelines are to promoteagency efficiency and do not accord important procedural or substantive rights toindividuals).”