“Docket No. 80-2666 SECRETARY OF LABOR,Complainant,v.SCHULTE CORPORATION,Respondent.OSHRC Docket No. 80-2666DECISION Before:\u00a0 BUCKLEY, Chairman, and CLEARY, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”).\u00a0 The Commission is an adjudicatory agency, independentof the Department of Labor and the Occupational Safety and Health Administration.\u00a0 Itwas established to resolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions.\u00a0 See section10(c) of the Act, 29 U.S.C. ? 659(c).A decision of Administrative Law Judge Joe D. Sparks is before the Commission for review.\u00a0 The judge found that Schulte Corporation (\”Schulte\”) violated theoccupational safety standards at 29 C.F.R. ?? 1910.94(d)(9)(v), 1910.94(d)(9)(viii), and1910.94(d)(9)(vii).\u00a0 He further found that the violation of section 1910.94(d)(9)(v)was serious in nature. The Commission agrees with the judge that Schulte violated thethree standards but is divided on whether he properly classified the violation1910.94(d)(9)(v) as serious.[[1]]Pursuant to an employee complaint, a compliance officer from the Occupational Safety andHealth Administration inspected Schulte’s workplace.\u00a0 Schulte manufactures bathroomaccessories including fixtures.\u00a0 To finish these fixtures, Schulte electroplatesthem.\u00a0 Schulte’s electroplating process requires the fixtures to be immersed in aseries of tanks filled with chemical solutions.\u00a0 The tanks contain different chemicalsolutions depending on the type of finish needed for the part.\u00a0 Each chemicalsolution has a different pH level — a measure which gauges the relative acidity of thesolution.\u00a0 Depending on how acidic or alkaline the solutions are, employees couldsuffer chemical burns if the solution contacts their skin or eyes.\u00a0 There are fiveprincipal electroplating lines at the Schulte workplace.\u00a0 Two of the lines areautomatic.\u00a0 Racks of parts are dipped into a series of tanks by machines.\u00a0 Theother three lines are hand-dip lines which require employees to insert and remove racks ofparts manually.\u00a0 A rack of parts weighs between 10 and 20 pounds.Periodic ExaminationsDuring the inspection, the compliance officer was told that some of the tanks containedchromic acid, an extremely corrosive and acidic solution which can cause erosions,ulceration’s and perforation of the nasal septum.\u00a0 Although Schulte employees weregiven pre-employment physical examinations, they were not given any subsequent exams.\u00a0 Because the employees exposed to chromic acid were not provided with periodicexaminations, the Secretary cited Schulte for violating 29 C.F.R. ?1910.94(d)(9)(viii).[[2]]Judge Sparks found that Schulte violated 29 C.F.R. ? 1910.94(d)(9)(viii) because Schulteadmitted that some of its chemical solutions contained chromic acid and that its employeeswere not given physical examinations beyond their pre-employment physical.\u00a0 Becauseemployees were rotated at the different work stations and the incidence of chemicalsplashes was not very high, the judge found that the chance of nasal ulceration wasremote.\u00a0 He therefore found that the violation was nonserious and assessed nopenalty.We affirm this portion of Judge Sparks’ decision.\u00a0 The evidence is unrebutted thatsome of the tanks contained chromic acid. Although Schulte claims that the Secretary neverestablished that the solutions in the tanks were strong enough to create a hazard, thecompliance officer testified that the solution in at least one tank on the day of theinspection contained one tenth of one percent chromic acid.\u00a0 The Secretary’s expertwitness then specifically testified that an employee could receive chromic ulcers fromdirect contact with a solution containing one tenth of one percent chromic acid and thatit was not the strength of the solution so much as the presence of the chromic ion in thechromic acid which presented the hazard.The employees who worked at the tanks containing chromic acid were exposed to the dangerof contacting the chromic acid and thus contracting chromic ulcers.\u00a0 The danger ofdirect contact with chromic acid was established by the evidence that nine employees hadreceived injuries from contact with chemical solutions during the past year.\u00a0 Underthe circumstances, Schulte should have conducted periodic examinations of those employeesworking at tanks containing chromic acid.\u00a0 The evidence established that Schulte didnot conduct such periodic examinations and thus violated the standard.[[3]]Eyewash FacilitiesDuring the inspection, the compliance officer also noted that the antique line was 60 feetfrom the closest eyewash and the chrome-nickel line was 125 feet from an eyewash. \u00a0The pathways to both eyewashes were partially obstructed.\u00a0 Because the Secretarybelieved that a worker who was splashed with the acidic chemical solutions contained inthe tanks could not reach the water before the chemical caused some kind of injury, theSecretary cited Schulte for a violation of 29 C.F.R. ? 1910.94(d)(9)(vii).[[4]]In finding a violation of section 1910.94(d)(9)(vii), Judge Sparks relied on testimonyfrom Schulte’s superintendent of plating, Mr. Klimecki, that if an employee was splashedwith nitric acid, the employee should remove it \”very quickly.\”\u00a0 Klimeckiestimated that the acid should be washed off within \”a few seconds — 15-30seconds.\”\u00a0 Judge Sparks said, \”Considering the short time within which towash off the chemicals before injury, the location of the required clean cold water is notsufficiently near to comply with the cited regulation.\”\u00a0 Judge Sparkscharacterized the violation as nonserious and assessed no penalty.We affirm this portion of the judge’s decision.\u00a0 In Plessey, Inc., 74 OSAHRC77\/C1, 2 BNA OSHC 1302, 1974-75 CCH OSHD ? 18,907 (No. 946, 1974), the Commission foundthat the eyewash standard at 29 C.F.R. ? 1910.94(d)(9)(vii) was not vague when examinedin light of the facts of the case and the injuries that the standard was designed toprevent.\u00a0 The Commission considers the strength of the corrosive material and theconfiguration of the work area when deciding whether the standard has been violated. GibsonDiscount Center, 78 OSAHRC 30\/C1, 6 BNA OSHC 1526, 1527, 1978 CCH OSHD ? 22,669 pp.27,357-58 (No. 14657, 1978).\u00a0 In this case, the solutions in both the chrome-nickeland antique lines were described as \”very acidic.\”\u00a0 The closest water tothe antique line was 60 feet away.\u00a0 The closest water to the chrome-nickel line was125 feet away.\u00a0 Both routes were partially obstructed.\u00a0 We agree with thejudge’s finding of fact that under the circumstances employees splashed with the solutionswould not be able to get to the rinse water in the short amount of time available toprevent a chemical burn.Eye ProtectionDuring the inspection, the compliance officer also observed Schulte employees dippingracks of parts into solutions of cyanide salts, sulfuric acid, sodium hydroxide, chromicacid and nitric acid.\u00a0 In accordance with Schulte’s policy, the employees werewearing rubber aprons, chemical gloves, boots and safety glasses with side-shields whenthey dipped the racks or removed the racks from the tanks.\u00a0 The employees were notwearing tight-fitting goggles or face shields.\u00a0 The Secretary believed that Schulteemployees were exposed to the danger of the chemicals in the tanks splashing up under thesafety glasses with side shields and into the employees’ eyes.\u00a0 This hazard,according to the Secretary, could be abated if the employees wore tight-fitting chemicalgoggles.\u00a0 The Secretary cited Schulte for an alleged serious violation of 29 C.F.R.? 1910.94(d)(9)(v).[[5]]Judge Sparks found a violation of the standard.\u00a0 He concluded that employees wereexposed to \”a danger of splashing\” when they added parts to the chemicalsolutions.\u00a0 Since Schulte’s employees did not wear either the tight-fitting gogglesor face shields required by the standard, Judge Sparks found a serious violation. \u00a0However, the judge lowered the proposed penalty of $490 to $100 because the recorddemonstrated that the safety glasses worn by Schulte’s employees were \”reasonablyeffective.\”We agree that the Secretary has established a violation of 29 C.F.R. ? 1910.94(d)(9)(v).\u00a0 Schulte argues that the language in the standard — \”when additions are madeto the tanks, or when acids and chemicals are removed from the tanks\” — limits thestandard’s applicability to situations in which employees are engaged in adding chemicalsto or removing them from the tanks.\u00a0 Schulte contends that no violation can be foundwhere, as here, employees are dipping racks of parts into the tanks.[[6]]\u00a0 We rejectthis argument.\u00a0 The Commission has held that the words \”for example,\” whichprecede the language in the standard on which Schulte relies, mean that the standard’srequirement for tight-fitting chemical goggles or face shields is not limited to employeesadding chemicals to or removing chemicals from tanks.\u00a0 Pratt & WhitneyAircraft, 81 OSAHRC 39\/A2, 9 BNA OSHC 1653, 1663, 1981 CCH OSHD ? 25,359 p. 31,510(No. 13401, 1981).\u00a0 The standard also applies when a danger of splashing arises fromadding parts to a tank.\u00a0 Id.Schulte also argues that the Secretary is interpreting the standard so that employees mustwear tight-fitting goggles or face shields whenever there is the mere possibility ofsplashing.\u00a0 This broad reading of the standard, according to Schulte, is notjustified by the language of the standard.\u00a0 The Commission agrees that the standard’slanguage \”whenever there is a danger of splashing\” requires the Secretary todemonstrate that there is more than a theoretical possibility that an employee could besplashed with a chemical solution.\u00a0 However, in this case, a danger of splashing wasestablished by the Secretary’s evidence that nine employees had received chemical burns inthe past year and that at least one employee was splashed in the eyes when lowering a rackof parts into a tank containing chemical solutions.\u00a0 The Secretary established thatthe employees working at chemical tanks were exposed to much more than merely atheoretical possibility of being injured by a chemical splash.\u00a0 Schulte thus violatedthe standard by not requiring employees doing such work to wear tight-fitting chemicalgoggles or face shields.The Commissioners disagree, however, on the severity of the violation.\u00a0 CommissionerCleary would affirm Judge Sparks’ finding of a serious violation and the judge’sassessment of a $100 penalty.\u00a0 If an employee was splashed in the eye with thecorrosive material in the tanks, the employee could sustain a serious eye injury, evenblindness.\u00a0 Violation of this standard is not a trifling matter, and characterizingthe violation as de minimis is inappropriate.\u00a0 Wright & Lopez, Inc., 81OSAHRC 92\/D10, 10 BNA OSHC 1108, 1981 CCH OSHD ? 25,728 (No. 76-256, 1981); SouthwesternElectric Power Co., 80 OSAHRC 81\/C7, 8 BNA OSHC 1974, 1980 CCH OSHD ? 24,732 (Nos.77-3391 and 77-3890, 1980).Chairman Buckley would find the violation de minimis because abatement of the violationwould have only a negligible effect on the safety of employees.\u00a0 Schulte employeeswore safety glasses with canvas side flaps while adding parts to the tanks.[[7]] Accordingto the Secretary, these glasses did not provide the employees with sufficient protectionbecause chemicals could still splash up under the glasses and into the employees’ eyes.\u00a0 Although the Secretary suggested that the employees wear tight-fitting chemicalgoggles, the standard permits employers the option of using either tight-fitting chemicalgoggles or face shields.\u00a0 Testimony at the hearing revealed that Schulte hadpreviously required employees to wear tight-fitting goggles when adding chemicals to thetanks, but the goggles fogged over and employees complained of headaches when wearingthem.\u00a0 Schulte switched to requiring employees to wear face shields when addingchemicals to the tanks.\u00a0 Based on this experience, it is evident that, if Schulte isrequired to have employees dipping parts into the tanks wear either goggles or faceshields, both Schulte and its employees will choose the face shields — a permissiblechoice under the standard.\u00a0 Face shields, like safety glasses with side shields,would protect employees against a direct splash to the eyes, but the employees would stillbe susceptible to chemicals splashing underneath the face shield because a face shielddoes not provide a tight seal around the eyes.\u00a0 The safety of the Schulte employeeswould not be enhanced by wearing face shields instead of the safety glasses with sideshields.\u00a0 Where abatement in accordance with the terms of a standard would notimprove employee safety or health, a violation is properly characterized as de minimis.\u00a0 Clifford B. Hannay & Son, Inc., 78 OSAHRC 12\/A2, 6 BNA OSHC 1335,1978 CCH OSHD ? 22,525 (No. 15983, 1978).Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action can be taken by theCommission with the affirmative vote of two members.\u00a0 The two Commission members aredivided on the characterization of the violation of 29 C.F.R. ? 1910.94(d)(9)(v). \u00a0To resolve this impasse, the members have agreed to affirm that portion of the judge’sdecision but accord it the precedential value of an unreviewed judge’s decision. \u00a0 SeeLife Science Products Co., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ?22,313 (No. 14910, 1977), aff’d sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir.1979).Accordingly, the judge’s decision is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: MAR 21 1985FOOTNOTES: [[1]] As established by the Act, the Commission is composed of three members.\u00a0 Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Currently, the Commission has two membersas a result of a vacancy.[[2]] 29 C.F.R. ? 1910.94(d)(9)(viii) provides,Operators with sores, burns or other skin lesions requiring medical treatment shall not beallowed to work at their regular operations until so authorized by a physician.\u00a0 Anysmall skin abrasions, cuts, rash, or open sores which are found or reported shall betreated by a properly designated person so that chances of exposures to the chemicals areremoved.\u00a0 Workers exposed to chromic acids shall have a periodicexamination made of the nostrils and other parts of the body to detect incipientulceration.\u00a0 (Emphasis added.)[[3]] Schulte claims that the standard is vague because it does not definethe term \”periodic examinations.\”\u00a0 In response to an interrogatory, theSecretary said that the examinations should be conducted yearly.\u00a0 No evidence waspresented at the trial concerning how often the examinations should take place.\u00a0 Theneed for examinations will depend on many factors including the strength of the chemicalsolutions and the length of exposure.\u00a0 Without defining the term\”periodic,\” we note that Schulte never gave its employees any examinationsbeyond their pre-employment physical and so violated the standard.Schulte also takes issue with the Secretary’s claim that the examinations must beperformed by medical personnel.\u00a0 Again, no evidence was presented on whether it isnecessary or required that medical personnel perform these examinations and we do notdecide whether medical personnel must perform these examinations in order to conform withthe standard.\u00a0 In this case, Schulte performed no examinations of any kind andtherefore violated the standard.[[4]] 29 C.F.R. ? 1910.94(d)(9)(vii) provides,Near each tank containing a liquid which may burn, irritate, or otherwise be harmful tothe skin if splashed upon the worker’s body, there shall be a supply of clean cold water.[[5]] 29 C.F.R. ? 1910.94(d)(9)(v) provides,Whenever there is a danger of splashing, for example, when additions are made to thetanks, or when acids and chemicals are removed from the tanks, the employees so engagedshall be required to wear either tight-fitting chemical goggles or an effective faceshield.[[6]] Schulte has attached to its brief an affidavit which, the companyasserts, demonstrates that the drafters of the standard intended it to have the meaningnow urged by Schulte.\u00a0 Schulte was in possession of the affidavit at the hearing yetoffers no persuasive reason why it failed either to attempt to introduce the affidavit atthat time or to call the affiant to testify.\u00a0 Treating the inclusion of the affidavitas a motion to reopen the record, we deny the motion.\u00a0 See Seattle CrescentContainer Service, 79 OSAHRC 91\/A2, 7 BNA OSHC 1895, 1898-99, 1979 CCH OSHD ? 24,002pp. 29,132-33 (No. 15242, 1979).\u00a0 We further note that, under Commission Rule 69, 29C.F.R. ? 2200.69, affidavits are admissible in evidence only if the parties agree totheir admission.[[7]] The record shows that the one employee who was splashed in the eyes andinjured was not wearing safety glasses when adding parts to a tank.\u00a0 However, duringthe inspection that led to the citation, the employees engaged in adding parts werewearing safety glasses with side shields, and the record shows that this was Schulte’snormal practice.\u00a0 The Secretary has not argued that there was a violation based onthe incident in which the employee was injured and there is no evidence that this incidentwas not simply an isolated, unpreventable occurrence.\u00a0 Therefore, although theincident is relevant to whether the operation presented a danger of splashing, it does notform a part of the violation and does not show that the safety glasses with side shieldswere inferior to face shields in protecting employees against being splashed in the eye.”