“Docket No. 88-2587 SECRETARY OF LABOR, Complainant, v. MIKEL COMPANY, INC., Respondent.OSHRC Docket No. 88-2587\u00a0ORDERThe parties’ Stipulation and Settlement Agreement isapproved. This order 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, 1989ANN MCLAUGHLAN, SECRETARY OF LABOR U.S. DEPARTMENT OF LABOR,Complainant,v. MIKEL COMPANY, INC. Respondent.Docket No. 88-2587\u00a0APPEARANCES:WILLIAM G. STATON, ESQUIRE U.S. Department of Labor Office of the Solicitor For the Complainant ANDREW MIKLOS President Mikel Company, Inc. For the Respondent \u00a0DECISION AND ORDERSOMMER, JUDGE:This proceeding arises under the Occupational Safety and Health Act, of 1970 (29 U.S.C.651 et seq., hereafter called the \”Act\”).Following an inspection of the Respondent’s businesssite at 601 East 137 Street, Bronx, New York, the Secretary of Labor issued two citationscharging violations as follows: Citation No. 1 alleges serious violations 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 aftertrial – .1200(e)(i), .1200(g)(6), .1200(h). Other than serious citation No. 2 allegesviolations of 29 C.F.R. 1903.2(a)(i) and 29 C.F.R. 1904.2(a). Respondent initiallycontested all the alleged violations and penalties. Subsequent to the trial a settlementagreement was entered into with respect to violations charged at 1910.1200(e)(i),1910.1200(g)(6) and 1910.1200h.A hearing was held in New York, New York, onSeptember 19-20, 1988. Both parties filed post-hearing briefs. No jurisdictional issuesare in dispute, the parties having pleaded sufficient facts to establish that theRespondent is subject to the Act and the Commission has jurisdiction of the parties and ofthe 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 disposedoff by a settlement agreement.\u00a0BACKGROUNDThe Mikel Company, Inc. is a New York Corporationlocated at 597-601 East 137 East Street, Bronx, New York, and is engaged in themanufacture of furniture.\u00a0DISCUSSION 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. 1The flammable liquid storage room charges stem fromthe observations of the Compliance Officer that a 5th floor storage room approximately 6’x8′ was observed to be storing flammable solvents (stains, lacquers etc.) His finding thatthe storage room was constructed of wood and the absence of a sill were conditions allegedto be in violation of 29 C.F.R. 1910.106(d)(4)(i), and the absence of a gravity ormechanical exhaust system resulted in an alleged violation of 29 C.F.R.1910.106(d)(4)(iv). The foreman told the Compliance Officer that this 5th floor room wasused for storage, and testified that \”we’ve got a lot of stains and we kept glazesand stuff in there.\” (Tr. 23) Miklos affirmed this area as being used for storage(Tr. 33). Accordingly, the Secretary established a prima facie case of violations of bothstandards. However, it would appear that the main storage room where the bulk of theflammable liquids are kept is on the first floor, and the 5th floor room is merely a smalladjunct, being used on a lesser scale. Under these circumstances there is a lesser degreeof harm, and a penalty of $100 is warranted herein.Alleged violation of 29 C.F.R. 1910.106(d)(4)(iii)- item No. 1(b) of Serious Citation No. 1The Compliance Officer observed that the electricalsystem in the storage room, i.e. the light switches, electrical wiring, the light were notapproved for a hazardous location in violation of 29 C.F.R. 1910.106(d)14)(iii) sincethere was a hazard arising from the combustion and flammability of vapors therein. Otherthan his denial of this allegation, the Respondent offered no proof to offset the charges.Accordingly, a violation of this standard was established. Under the existing facts andcircumstances 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. 1The standard requires that \”in every insidestorage room there shall be maintained one clear aisle at least 3 feet wide. . . \”The Compliance Officer found on observation and measurement the aisle space in the storageroom to be 12 inches wide. The Respondent presented no evidence to offset this charge. Onthe evidence of record I find a violation of this standard. Since only one employee workedtherein and there was an aisle although smaller than required, with the hazard in totalityless than emphasized, a penalty of $75 is deemed appropriate herein.Alleged violation of 29 C.F.R. 1910.107(b)(5)(i) -item No. 2 of Serious Citation No. 1The citation alleges that the Respondent violated 29C.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 showed an air flow of 70linear feet per minute and that the standard requires not less than 100 linear feet perminute. Additionally, there were no gauges or audible alarm or pressure activated devicespresent to indicate or insure that the required air velocity is maintained. The evidencefully establishes the presence of the violation and it is affirmed. A penalty of $100 forthe violation is consistent with the criteria set forth in section 17(J) of the Act underall the existing facts 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. 1The Respondent was cited for alleged violations of 29C.F.R. 1910.107(c)(5) (Presence of electrical equipment not affirmed for areas readilyignitable and explosive), 1910.107(c)(6) (nonexplosion proof electrical wiring andequipment), and 1910.107(c)(7) (electrical lamps not totally enclosed). To prove these violations, the Secretary mustdemonstrate by a preponderance of the evidence that the air surrounding the areas involvedhad dangerous concentrations of flammable or explosive vapors. The Secretary failed topresent any evidence of the presence of such a condition. The Compliance Officer took notests to substantiate his naked opinion of the explosive nature of the air. Additionally,no evidence was presented that his background, education and experience qualified him tomake any opinion as to the atmosphere present. The Compliance Officer’s conjecture isinsufficient to establish the existence of an explosive or dangerously flammableatmosphere at this worksite. Accordingly, the citation is vacated.Alleged violation of 29 C.F.R. 1910.107(e)(9) -item No. 4 of Serious Citation No. 1The Respondent was cited for alleged violation of 29C.F.R. 1910.107(e)(9) in that in the transfer of flammable or combustible liquids from onecan to another there was no grounding to prevent discharge sparks of static electricity.The Respondent maintained that the drums containing the lacquer are coated to preventsparking from static electricity, which was not refuted. Hereto the Compliance Officer’stestimony as to a hazard was mere conjecture. He observed the process yet did not testifyhe actually observed \”sparks of static electricity\”, merely stating the pump onthe can \”could cause a spark.\” The Compliance Officer’s conjecture isinsufficient to prove a violation. The proof must be clear and convincing. It cannot bepresumed or inferred. In short, the record does not demonstrate that the Secretary hassustained his burden of proof as to the existence of a violation of 29 C.F.R. 1910.107E)(9) and it is vacated. Moreover, the Secretary’s case further falls since it failed toprove that the area surrounding where the transfer of liquids was taking place haddangerous concentrations of flammable or explosive vapors which would be ignited if therewere such sparks of static electricity.Alleged violation of 29 C.F.R. 1910,107(g)(2) -item No. 5 of Serious Citation No. 1The Respondent was cited for alleged violation of 29C.F.R. 1910.108(g)(2) for failing to keep the walls, radiator and baffle plates of thepaint spray area free of combustible residues. The Compliance Officer found a violationbecause there was paint on the items listed above. He admitted that in spraying theseobjects would be covered with paint (Tr. 182) but that they had to be cleaned periodically(He indicated a frequency of \”anywhere from 6 months to a year). The Respondentoffered proof that the area is cleaned daily and the paint scraped down every couple ofweeks (Tr. 218, 219). Thusly, it is apparent that the Respondent is keeping the sprayingarea as free from the accumulation of deposits of combustible residues as practical.Certainly, he has done more than the Compliance Officer noted was necessary therein. Thereis no proof of the existence of a combustible residue on the objects cited. Thepreponderance of the evidence does not support a finding of a violation of 29 C.F.R.1910.107(g)(2) and it is vacated.The Respondent was cited for alleged violation of 29C.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). Noevidence was presented to disprove these allegations and both citations are affirmed asother than serious with no penalty assessed.\u00a0MOTIONSMotion by the Respondent to dismiss the citations isdenied.\u00a0FINDINGS OF FACTAll findings of fact relevant to a determination ofthe contested issues have been found specially in the above decision. See Rule 52(a) ofthe Federal Rules of Civil Procedure.All proposed findings of fact or conclusions of lawinconsistent with this decision are denied.\u00a0ORDER1. Citation 1, item 1(a) is affirmed as a seriousviolation of 29 C.F.R. 1910.106(d)(4)(i) and 29 C.F.R. 1910.106(d)(4)(iv) with a penaltyof $100.2. Citation No. 1, item 1(b) is affirmed as a seriousviolation of 29 C.F.R. 1910.106(d)(4)(iii) with a penalty of $100.3. Citation 1, item 1(c) is affirmed as a seriousviolation of 29 C.F.R. 1910.106(d)(4)(v) with a penalty of $75.4. Citation 1, item 2 is affirmed as a seriousviolation 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) allegingviolations 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 29C.F.R. 1910.107(e)(9) is vacated.7. Citation 1, item 5 alleging a violation of 29C.F.R. 1910.107(g)(2) is vacated.8. Citation 2, items 1 and 2 alleging violations of29 C.F.R. 1903.2(a)(1) and 29 C.F.R. 1904.2(a) is affirmed as other than serious with nopenalties.SO ORDERED.IRVING SOMMER Judge, OSHRCDATED: 1 FEB 1989Washington, D.C.\u00a0\u00a0ELIZABETH DOLE, SECRETARY OF LABOR, Complainant, v. MIKEL COMPANY, INC. Respondent.OSHRC DOCKET No. 88-2587\u00a0STIPULATION AND SETTLEMENT AGREEMENTI.The parties have reached agreement on a full andcomplete settlement of the instant matter which is presently pending before theCommission.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 theOccupational Safety and Health Act of 1980 (84 Sat. 1590; 29 U.S.C. 651 et. seq.)(hereafter \”the Act\”).(b) Respondent, Mikel Company, Inc., is a corporationwith its principal place of business in Bronx, New York. It is engaged in the manufactureof furniture and during the course of its business respondent uses materials and equipmentwhich it receives from places located outside Bronx, New York. Respondent, as a result ofthe aforesaid activities, is an employer engaged in a business affecting commerce asdefined by Section 3(3) and 3(5) of the Act and is subject to the requirements of the Act.(c) As a result of an inspection conducted onSeptember 24 through September 29, 1987, at respondent’s workplace at 601 East 137thStreet in Bronx, New York, a citation for eight serious violations and a citation for twoother-than-serious violations were issued to respondent on December 4, 1987 pursuant toSection 9(a) of the Act. A total penalty of $3,290 was proposed for the violations.(d) Respondent contested the citations and proposedpenalties.[[1]]On January 12, 1989, Commission Administrative LawJudge Irving Sommer issued his Decision and Order in which he dismissed items 3(a), (b)and (c) of Serious Citation No. 1 alleging violations of 29 CFR 1910.107(c)(5),1910.107(c)(6) and 1910.107(c)(7), item 4 of Serious Citation No. 1 alleging a violationof 29 CFR 1910.107(e)(9), and item 5 of Serious Citation No. 1 alleging a violation of 29CFR 1910.108(g)(2). The judge affirmed items 1(a), 1(b), 1(c), alleging violations of 29CFR 1910.106(d)(4)(i) and (4)(iv), 1910.106(d)(4)(iii), 1910.106(d) (4) (v) and item No. 2of Serious Citation No. 1 alleging a violation of 29 CFR 1910.107(b)(5)(i). The judge alsoaffirmed both items of the other-than-serious Citation No. 2 for alleged violations of 29CFR 1903.(a)(1) and 1904.2(a). Thereafter, the Secretary filed a timely Petition forReview on the dismissal of items 3(b), 3(c) and 4 of Serious Citation No. 1. The petitionwas granted by the Commission on March 2, 1989.III.Now, the Secretary of Labor and Mikel Company, Inc.,in order to conclude this matter without the necessity of further litigation or review,stipulate as follows:1. The Secretary hereby agrees to withdraw itsPetition for Review.2. Respondent hereby agrees to withdraw its Notice ofContest to the alleged serious violation of 29 CFR 1910.107(e)(9) (item No. 4 of SeriousCitation No. 1) and states that the violation has been abated and shall remain abated.3. Respondent hereby agrees to pay the sum of $1 (1dollar) for the alleged 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 Area Office in Flushing,New York.4. Respondent and Complainant agree that each partyshall bear its own costs.5. Respondent certifies that a copy of this agreementposted at the principal place(s) of business of Mikel Company on _______ ___, 1989, inaccordance with Commission Rule 7 and shall remain posted for ten (10) days. No affectedemployees are involved. Antony F. Gil\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Andrew Miklos Counsel for the\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On Behalf ofSecretary of Labor\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Mikel CompanyFOOTNOTES: [[1\/]] On motion of the Secretary, the complaint was amended at the hearing to separatelyallege a violation of 29 CFR 1910.106(d)(4)(iv). In addition, also at the hearing,respondent agreed to withdraw its contest of Items 6, 7, and 8 of Citation No. 1 and theSecretary agreed to reduce the proposed penalties thereto.”