“SECRETARY OF LABOR,Complainant,v.MIKEL COMPANY, INC.,Respondent.OSHRC Docket No. 88-2587 _ORDER_The parties’ Stipulation and Settlement Agreement is approved. Thisorder is issued pursuant to a delegation of authority to the ExecutiveSecretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: June 6, 1989————————————————————————ANN MCLAUGHLAN, SECRETARY OF LABORU.S. DEPARTMENT OF LABOR,Complainant,v.MIKEL COMPANY, INC.Respondent.Docket No. 88-2587 APPEARANCES:WILLIAM G. STATON, ESQUIREU.S. Department of LaborOffice of the SolicitorFor the ComplainantANDREW MIKLOSPresidentMikel Company, Inc.For the Respondent _DECISION AND ORDER_SOMMER, JUDGE:This proceeding arises under the Occupational Safety and Health Act, of1970 (29 U.S.C. 651 _et_ _seq_., hereafter called the \”Act\”).Following an inspection of the Respondent’s business site at 601 East137 Street, Bronx, New York, the Secretary of Labor issued two citationscharging violations as follows: Citation No. 1 alleges seriousviolations of 29 C.F.R. 1910.106(d)(i), .106(d)(4)(v), .106(d)(4)(iii),.106(d)(4)(iv) – added by amendment, .107(b)(5)(i), .107(c)(5),.107(c)(6), .107(c)(7), .107(c)(9), .107(g)(2), settled after trial -.1200(e)(i), .1200(g)(6), .1200(h). Other than serious citation No. 2alleges violations of 29 C.F.R. 1903.2(a)(i) and 29 C.F.R. 1904.2(a).Respondent initially contested all the alleged violations and penalties.Subsequent to the trial a settlement agreement was entered into withrespect to violations charged at 1910.1200(e)(i), 1910.1200(g)(6) and1910.1200h.A hearing was held in New York, New York, on September 19-20, 1988. Bothparties filed post-hearing briefs. No jurisdictional issues are indispute, the parties having pleaded sufficient facts to establish thatthe Respondent is subject to the Act and the Commission has jurisdictionof the parties and of the subject matter.The citation for violations of 29 C.F.R. 1910.1200(e)(i), .1200(g)(6)and .1200(h) were settled after trial and have been disposed off by asettlement agreement. _BACKGROUND_The Mikel Company, Inc. is a New York Corporation located at 597-601East 137 East Street, Bronx, New York, and is engaged in the manufactureof furniture. _DISCUSSION__Alleged violation of 29 C.F.R. 1910.106(d)(4)(i) and 29 C.F.R.1910.106(d)(4)(iv) – item No. 1(a), Serious Citation No. 1_The flammable liquid storage room charges stem from the observations ofthe Compliance Officer that a 5th floor storage room approximately 6’x8′ was observed to be storing flammable solvents (stains, lacquers etc.)His finding that the storage room was constructed of wood and theabsence of a sill were conditions alleged to be in violation of 29C.F.R. 1910.106(d)(4)(i), and the absence of a gravity or mechanicalexhaust system resulted in an alleged violation of 29 C.F.R.1910.106(d)(4)(iv). The foreman told the Compliance Officer that this5th floor room was used for storage, and testified that \”we’ve got a lotof stains and we kept glazes and stuff in there.\” (Tr. 23) Miklosaffirmed this area as being used for storage (Tr. 33). Accordingly, theSecretary established a prima facie case of violations of bothstandards. However, it would appear that the main storage room where thebulk of the flammable liquids are kept is on the first floor, and the5th floor room is merely a small adjunct, being used on a lesser scale.Under these circumstances there is a lesser degree of harm, and apenalty of $100 is warranted herein._Alleged violation of 29 C.F.R. 1910.106(d)(4)(iii) – item No. 1(b) ofSerious Citation No. 1_The Compliance Officer observed that the electrical system in thestorage room, i.e. the light switches, electrical wiring, the light werenot approved for a hazardous location in violation of 29 C.F.R.1910.106(d)14)(iii) since there was a hazard arising from the combustionand flammability of vapors therein. Other than his denial of thisallegation, the Respondent offered no proof to offset the charges.Accordingly, a violation of this standard was established. Under theexisting facts and circumstances a penalty of $100 is appropriate._Alleged violation of 29 C.F.R. 1910.106(d)(4)(v) – item No. 1(c),Serious Citation No. 1_The standard requires that \”in every inside storage room there shall bemaintained one clear aisle at least 3 feet wide. . . \” The ComplianceOfficer found on observation and measurement the aisle space in thestorage room to be 12 inches wide. The Respondent presented no evidenceto offset this charge. On the evidence of record I find a violation ofthis standard. Since only one employee worked therein and there was anaisle although smaller than required, with the hazard in totality lessthan emphasized, a penalty of $75 is deemed appropriate herein._Alleged violation of 29 C.F.R. 1910.107(b)(5)(i) – item No. 2 ofSerious Citation No. 1_The citation alleges that the Respondent violated 29 C.F.R. 1910.107(b)(5)(i) by failing to provide adequate ventilation in the spray booth.The Compliance Officer testified that tests of the air velocity showedan air flow of 70 linear feet per minute and that the standard requiresnot less than 100 linear feet per minute. Additionally, there were nogauges or audible alarm or pressure activated devices present toindicate or insure that the required air velocity is maintained. Theevidence fully establishes the presence of the violation and it isaffirmed. A penalty of $100 for the violation is consistent with thecriteria set forth in section 17(J) of the Act under all the existingfacts and circumstances._Alleged violation of 29 C.F.R. 1910.107(c)(5), (c)(6), and (c)(7) -items 3(a)(b)(c) of Serious citation No. 1_The Respondent was cited for alleged violations of 29 C.F.R.1910.107(c)(5) (Presence of electrical equipment not affirmed for areasreadily ignitable and explosive), 1910.107(c)(6) (nonexplosion proofelectrical wiring and equipment), and 1910.107(c)(7) (electrical lampsnot totally enclosed).To prove these violations, the Secretary must demonstrate by apreponderance of the evidence that the air surrounding the areasinvolved had dangerous concentrations of flammable or explosive vapors.The Secretary failed to present any evidence of the presence of such acondition. The Compliance Officer took no tests to substantiate hisnaked opinion of the explosive nature of the air. Additionally, noevidence was presented that his background, education and experiencequalified him to make any opinion as to the atmosphere present. TheCompliance Officer’s conjecture is insufficient to establish theexistence of an explosive or dangerously flammable atmosphere at thisworksite. Accordingly, the citation is vacated._Alleged violation of 29 C.F.R. 1910.107(e)(9) – item No. 4 of SeriousCitation No. 1_The Respondent was cited for alleged violation of 29 C.F.R.1910.107(e)(9) in that in the transfer of flammable or combustibleliquids from one can to another there was no grounding to preventdischarge sparks of static electricity. The Respondent maintained thatthe drums containing the lacquer are coated to prevent sparking fromstatic electricity, which was not refuted. Hereto the ComplianceOfficer’s testimony as to a hazard was mere conjecture. He observed theprocess yet did not testify he actually observed \”sparks of staticelectricity\”, merely stating the pump on the can \”could cause a spark.\”The Compliance Officer’s conjecture is insufficient to prove aviolation. The proof must be clear and convincing. It cannot be presumedor inferred. In short, the record does not demonstrate that theSecretary has sustained his burden of proof as to the existence of aviolation of 29 C.F.R. 1910.107E) (9) and it is vacated. Moreover, theSecretary’s case further falls since it failed to prove that the areasurrounding where the transfer of liquids was taking place had dangerousconcentrations of flammable or explosive vapors which would be ignitedif there were such sparks of static electricity._Alleged violation of 29 C.F.R. 1910,107(g)(2) – item No. 5 of SeriousCitation No. 1_The Respondent was cited for alleged violation of 29 C.F.R.1910.108(g)(2) for failing to keep the walls, radiator and baffle platesof the paint spray area free of combustible residues. The ComplianceOfficer found a violation because there was paint on the items listedabove. He admitted that in spraying these objects would be covered withpaint (Tr. 182) but that they had to be cleaned periodically (Heindicated a frequency of \”anywhere from 6 months to a year). TheRespondent offered proof that the area is cleaned daily and the paintscraped down every couple of weeks (Tr. 218, 219). Thusly, it isapparent that the Respondent is keeping the spraying area as free fromthe accumulation of deposits of combustible residues as practical.Certainly, he has done more than the Compliance Officer noted wasnecessary therein. There is no proof of the existence of a combustibleresidue on the objects cited. The preponderance of the evidence does notsupport a finding of a violation of 29 C.F.R. 1910.107(g)(2) and it isvacated.The Respondent was cited for alleged violation of 29 C.F.R. 1903.2(a)(1)(failure to post OSHA notice) and 29 C.F.R. 1904.2(a) (failure tomaintain log of occupational injuries and illness for years 1983, 1984,and 1986). No evidence was presented to disprove these allegations andboth citations are affirmed as other than serious with no penalty assessed. _MOTIONS_Motion by the Respondent to dismiss the citations is denied. _FINDINGS OF FACT_All findings of fact relevant to a determination of the contested issueshave been found specially in the above decision. See Rule 52(a) of theFederal Rules of Civil Procedure.All proposed findings of fact or conclusions of law inconsistent withthis decision are denied. _ORDER_1. Citation 1, item 1(a) is affirmed as a serious violation of 29 C.F.R.1910.106(d)(4)(i) and 29 C.F.R. 1910.106(d)(4)(iv) with a penalty of $100.2. Citation No. 1, item 1(b) is affirmed as a serious violation of 29C.F.R. 1910.106(d)(4)(iii) with a penalty of $100.3. Citation 1, item 1(c) is affirmed as a serious violation of 29 C.F.R.1910.106(d)(4)(v) with a penalty of $75.4. Citation 1, item 2 is affirmed as a serious violation of 29 C.F.R.1910.107(b)(5)(i) with a penalty of $100.5. Citation 1, items 3(a), 3(b), 3(c) alleging violations of 29 C.F.R.1910.107(c)(5), (c)(6), and (c)(7) are vacated.6. Citation 1, item 4 alleging a violation of 29 C.F.R. 1910.107(e)(9)is vacated.7. Citation 1, item 5 alleging a violation of 29 C.F.R. 1910.107(g)(2)is vacated.8. Citation 2, items 1 and 2 alleging violations of 29 C.F.R.1903.2(a)(1) and 29 C.F.R. 1904.2(a) is affirmed as other than seriouswith no penalties.SO ORDERED.IRVING SOMMERJudge, OSHRCDATED: 1 FEB 1989Washington, D.C. ELIZABETH DOLE, SECRETARY OF LABOR,Complainant,v.MIKEL COMPANY, INC.Respondent.OSHRC DOCKET No. 88-2587 *STIPULATION AND SETTLEMENT AGREEMENT*I.The parties have reached agreement on a full and complete settlement ofthe instant matter which is presently pending before the Commission.II.The parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereafter \”theCommission\”) has jurisdiction of this matter pursuant to Section 10(c)of the Occupational Safety and Health Act of 1980 (84 Sat. 1590; 29U.S.C. 651 _et_. _seq_.) (hereafter \”the Act\”).(b) Respondent, Mikel Company, Inc., is a corporation with its principalplace of business in Bronx, New York. It is engaged in the manufactureof furniture and during the course of its business respondent usesmaterials and equipment which it receives from places located outsideBronx, New York. Respondent, as a result of the aforesaid activities, isan employer engaged in a business affecting commerce as defined bySection 3(3) and 3(5) of the Act and is subject to the requirements ofthe Act.(c) As a result of an inspection conducted on September 24 throughSeptember 29, 1987, at respondent’s workplace at 601 East 137th Streetin Bronx, New York, a citation for eight serious violations and acitation for two other-than-serious violations were issued to respondenton December 4, 1987 pursuant to Section 9(a) of the Act. A total penaltyof $3,290 was proposed for the violations.(d) Respondent contested the citations and proposed penalties.[[1]]On January 12, 1989, Commission Administrative Law Judge Irving Sommerissued his Decision and Order in which he dismissed items 3(a), (b) and(c) of Serious Citation No. 1 alleging violations of 29 CFR1910.107(c)(5), 1910.107(c)(6) and 1910.107(c)(7), item 4 of SeriousCitation No. 1 alleging a violation of 29 CFR 1910.107(e)(9), and item 5of Serious Citation No. 1 alleging a violation of 29 CFR 1910.108(g)(2).The judge affirmed items 1(a), 1(b), 1(c), alleging violations of 29 CFR1910.106(d)(4)(i) and (4)(iv), 1910.106(d)(4)(iii), 1910.106(d) (4) (v)and item No. 2 of Serious Citation No. 1 alleging a violation of 29 CFR1910.107(b)(5)(i). The judge also affirmed both items of theother-than-serious Citation No. 2 for alleged violations of 29 CFR1903.(a)(1) and 1904.2(a). Thereafter, the Secretary filed a timelyPetition for Review on the dismissal of items 3(b), 3(c) and 4 ofSerious Citation No. 1. The petition was granted by the Commission onMarch 2, 1989.III.Now, the Secretary of Labor and Mikel Company, Inc., in order toconclude this matter without the necessity of further litigation orreview, stipulate as follows:1. The Secretary hereby agrees to withdraw its Petition for Review.2. Respondent hereby agrees to withdraw its Notice of Contest to thealleged serious violation of 29 CFR 1910.107(e)(9) (item No. 4 ofSerious Citation No. 1) and states that the violation has been abatedand shall remain abated.3. Respondent hereby agrees to pay the sum of $1 (1 dollar) for thealleged serious violation of 29 CFR 1910.107(e)(9) within ten (10) daysfrom the date of this agreement by sending a check to the OSHA AreaOffice in Flushing, New York.4. Respondent and Complainant agree that each party shall bear its owncosts.5. Respondent certifies that a copy of this agreement posted at theprincipal place(s) of business of Mikel Company on _______ ___, 1989, inaccordance with Commission Rule 7 and shall remain posted for ten (10)days. No affected employees are involved.Antony F. Gil Andrew MiklosCounsel for the On Behalf ofSecretary of Labor Mikel CompanyFOOTNOTES:[[1\/]] On motion of the Secretary, the complaint was amended at thehearing to separately allege a violation of 29 CFR 1910.106(d)(4)(iv).In addition, also at the hearing, respondent agreed to withdraw itscontest of Items 6, 7, and 8 of Citation No. 1 and the Secretary agreedto reduce the proposed penalties thereto.”