“UNITED STATES OF AMERICAOCCUPATIONALSAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3624 TECHNO PRODUCTS, INC., DBA TECHNO TRUCK MANUFACTURING CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February11, 1976?DECISIONBEFOREBARNAKO, Chairman; MORAN and CLEARY, Commissioners.BARNAKO,Chairman:This matter involves the question whether Administrative LawJudge William E. Brennan erred in (1) vacating a notification alleging thatRespondent (Techno) failed to abate a violation for having an inadequate supplyof fire extinguishers on the ground that the cited standard is vague and (2)vacating for failure of proof a notification alleging failure to abate aviolation for having a locked exit door. For the reasons given below we vacatethe notification as to the first allegation and affirm it as to the second.The Fire Extinguisher ChargeTechno was first inspected by Complainant (Labor) on December19, 1972. Thereafter Labor issued a citation alleging that Techno had violatedthe Occupational Safety and Health Act of 1970 (29 U.S.C. ? 651 et seq., hereinafter?the Act?) by failing to comply with, inter alia, 29 C.F.R. ? 1910.107(f)(4)[1]1because it did not provide an adequate supply of portable fire extinguishers ina spray paint booth area. The citation was not contested and therefore became afinal order (29 U.S.C. ? 659(a)). On June 1, 1973 Labor conducted areinspection and then issued a notification alleging the failure to correct theviolation.The facts of record establish that at the time of bothinspections, Techno had provided both a 25-pound CO2 fire extinguisher and asprinkler system for the spray paint booth area. The inspector opined that anadditional extinguisher was necessary, but conceded that another inspectormight reach a different conclusion.As noted above, the Judge concluded that the cited standardis vague, and, accordingly, vacated the notification. In finding the standardvague, however, the Judge did not look beyond its literal wording, whereas wehad said before that broad terms may acquire meaning when read in light of otherregulations or codes. Modern Automotive Services, Inc., 6 OSAHRC 738,BNA 1 OSHC 1544, CCH E.S.H.G. para. 17,369 (1974).In this regard, it was error for the Judge to read 29 C.F.R.? 1910.107(f)(4) when there is another general industry standard that clarifiesthe cited standard. Specifically, the standard at 29 C.F.R. ? 1910.157(c)(1)(i)provides as follows:The number of fire extinguishers needed toprotect a property shall be determined as prescribed herein, considering thearea and arrangement of the building or occupancy, the severity of the hazard,the anticipated classes of fires, and the distances to be traveled to reachextinguishers.?Inasmuchas this standard appears in Subpart L which is entitled Fire Protection, it isapparent that the general industry standards, read as a whole, set forth anobjective performance measure for determining the number and types of fireextinguishers that are necessary according to the kinds of fire hazards thatmay occur in a workplace. The cited standard is therefore not objectionable forbeing imprecise.[2]The facts are that fire extinguishing apparatus consisting ofthe portable extinguisher and the sprinkler system were available in the spraypaint booth area. The only evidence of inadequacy considering the area, natureof the hazard, and the other factors specified in 1910.157(c)(1)(i) is theopinion of Labor?s compliance officer. And he minimized the probative value ofhis opinion by conceding that the extinguishing equipment provided by Technomight be sufficient.Accordingly, a preponderance of the evidence does notestablish a failure to abate the alleged violation of 29 C.F.R. ?1910.107(f)(4). Kit Mfg. Co., 16 OSAHRC 80, BNA 2 OSHC 1672, CCHE.S.H.G. para. 19,415 (1975); Franklin Lumber Co., 9 OSAHRC 922, BNA 2OSHC 1077, CCH E.S.H.G. para. 18,206 (1974); Armor Elevator Co., 5OSAHRC 260, BNA 1 OSHC 1409, CCH E.S.H.G. para. 16,958 (1973).The Locked Exit ChargeLabor?s notification also alleged that Techno failed to abatea violation of the Act for failure to comply with 29 C.F.R. ? 1910.36(b)(4)[3]because it did not maintain free and unobstructed egress from its plant in thatone exit was locked.The facts are that the building in which Techno conducts itsbusiness has four exits. At the time of both inspections the door to onepedestrian exit in the rear of the building was padlocked on the inside forsecurity reasons since on at least one prior occasion an armed intruder hadentered the building. A similar pedestrian door in the front of the buildingwas not equipped with a lock. The building also has a 13-foot wide entryway forvehicles and a loading dock entry, both of which were equipped with overheaddoors which are lockable but are kept open during the working day. However,only the two pedestrian exits are intended by Techno for use by persons. Anaverage of 15 employees work in this building.Subsequent to the reinspection Techno unlocked the rear doorbut felt that by so doing it exposed its employees to the hazard of armedintruders. However, Labor indicated that it would approve of a push-bar type oflock, that is, a device which allows a door to be locked on the outside onlywhile remaining unlocked on the inside, and Techno?s superintendent stated thatTechno intended to install such a lock.The Judge reasoned that the standard does not require thatall exits be maintained so as to provide free and unobstructed egress. Rather,he concluded, it requires that all occupants of the building have free andunobstructed egress. Accordingly, he vacated because he concluded that theemployees working in the building had such egress either through the frontpedestrian door or through either overhead door. We reverse.As Judge Brennan properly determined, the first sentence ofthe cited standard by its terms requires only that some means of free andunobstructed egress by provided. However, the Judge erred because he failed toconsider the second sentence prohibiting a ?lock or fastening to prevent freeescape from the inside of any building . . ..? The padlock on the rearpedestrian door has precisely this effect; it prevents free escape. And whilewe are sympathetic to Techno?s legitimate concern for the security of itsemployees, we have since indicated, on substantially similar facts, thatsecurity considerations are not sufficient justification for locking an exitdoor in a manner so as to deny ready egress to employees. Pratt and WhitneyAircraft, 16 OSAHRC 345,394, BNA 2 OSHC 1713, CCH E.S.H.G. para. 19,443(1975). Moreover, the record shows that Techno could with Labor?s approvalprovide a lock to serve its security needs which would comply as well with theegress requirements of the standard. Accordingly, the evidence establishes afailure to abate.[4]Turning now to the penalty, we consider Labor?s proposedpenalty of $285 for the failure to abate this violation to be unreasonablyhigh. The gravity is reduced by the existence of the heretofore mentionedsprinkler system and the unlocked front pedestrian exit. Considering also thatonly a small number of employees work in the building we find the gravity to below to moderate. The parties also stipulated that Techno?s size is relativelysmall, and its motive for locking the exit indicates that this action was takenin good faith. We conclude that a penalty so $100 is appropriate.Accordingly, the notification alleging failure to abate isvacated as to the 29 C.F.R. ? 1910.107(f)(4) charge and affirmed as to the 29C.F.R. ? 1910.36(b)(4) charge. A penalty of $100 is assessed. The Judge?sdecision is modified so as to be consistent with this decision and as modifiedis affirmed. So ORDERED.?FORTHE COMMISSION:?WilliamS. McLaughlinExecutiveSecretaryDATE:FEB 11, 1976?MORAN,Commissioner, Concurring in Part, Dissenting in Part:The holding of the latter part of the opinion is that 15employees were exposed to fire hazard even though they worked in a buildingwhere there were three doors they could use to escape from their work area inthe event of fire. The author of that opinion is head of a government agencywhich has three times more employees working on the 4th floor of an officebuilding from which there are only two exits which employees could use in eventof fire. It is clear to me that Techno employees can escape a fire in theirworkplace at least four times more readily than can the OSAHRC employees forwhose safety Mr. Barnako is responsible.I point this out?not to question the adequacy of OSAHRC?sexisting protection from fire hazard?but to demonstrate both the assonance ofthe Commission?s ruling in this case and the triumph of form over substancewhich it represents.It is my view that Judge Brennan correctly decided this case,and his decision should be affirmed in its entirety for the reasons given byhim. Since I agree with his determination that the charge of noncompliance with29 C.F.R. ? 1910.36(b)(4) cannot be sustained on the evidence in this case, Iwould vacate the subsequent notification of a failure to abate which pertainsthereto.Judge Brennan properly concluded that section 1910.36(b)(4)does not require that all exits must be maintained so as to provide free andunobstructed egress from all parts of the building. That standard providesthat:?In every building or structure exits shall be so arrangedand maintained as to provide free and unobstructed egress from all parts of thebuilding or structure at all times when it is occupied. No lock or fastening toprevent free escape shall be installed except in mental, penal orcorrective institutions where supervisory personnel is continually on duty andeffective provisions are made to remove occupants in case of fire or otheremergency.? (Emphasis added.)?As Judge Brennan noted, there is nothing within thisregulation to indicate how many such exits must be provided.The record establishes that 15 employees worked at therespondent?s worksite which had four doors. Aside from the locked rear door,there was another exit door and two overhead doors. All of the latter threeremained unlocked during business hours. Any one of them was available as anexit in case of an emergency.[5]Since there were three alternate exits, locking the rear door in no wayprevented ?free escape? from the building.?I amalso compelled to take issue with the following statement in the foregoingopinion:?Andwhile we are sympathetic to Techno?s legitimate concern for the security of itsemployees we have since indicated, on substantially similar facts that securityconsiderations are not sufficient justification for locking an exit door in amanner so as to deny ready egress to employees. Pratt and Whitney Aircraft,16 OSAHRC 345, 394, BNA 2 OSHC 1713, CCH E.S.H.G. para. 19,443 (1975).?The instant case is readily distinguishable from the caserelied on by my colleagues. In Secretary v. Pratt and Whitney Aircraft, supraat 393?394, Judge Bates states:?Let it suffice to say, in accord with the above-listedfindings of fact that the Secretary sustained his burden of proving throughsubstantial evidence that the reasonable safety of numbers of employee-occupants[more than 100] in the Respondent?s assembly room . . . was endangered in thatonly one ?means of egress? (Door A), was available to such occupants, and thatdoor was available only on the first and second shifts and particular week-endshifts when the work shift was large. No ?means of egress,? within thedefinition of same, above, would therefor be available to assembly roomoccupants on those occasions when Door A was locked an [sic] unmanned or indeedunder conditions when Door A was in manned, open operation, but blocked byfire, smoke or other emergency conditions. (Emphasis added.) \u00a0I feel it only fair to note however, that the above describedpatently hazardous situation apparently resulted from the Respondent?s effortsto comply with Department of Defense (D.O.D.) security regulations pertainingto the safeguarding of classified defense information, in this case by thesecurement of the assembly room area . . .. While such security compliance isnecessary and under normal circumstances laudable, in this case it appears thatit conflicts with the parallel, if not superior interest of employee health andsafety as represented by 29 CFR 1910.36(b)(8) of the OSHA safety regulations.In this age of technical efficiency and sophistication there appears to be noreason why the Respondent could not install appropriate exit facilities for theSafety of its assembly room employees which would be in joint compliance withboth security (D.O.D.) and safety (O.S.H.A.) regulations.?It should be rather obvious that the reliance on this case ismisplaced?a maximum of one exit for 100 employees vis-a-vis three exits for 15employees. Not only have my colleagues cited a case in which the facts werestrikingly dissimilar, but they have also misconstrued the holding therein. Asis indicated above, Judge Bates held that when the need for safeguardingclassified information conflicts with the need to protect the safety and healthof employees, the latter being paramount shall take precedence.In the case at hand there was no such conflict. The rear doorwas locked for the protection of the employees from intrusion by undesirables.The quintessence of the Act is to assure so far as possible safe and healthfulworking conditions. 29 U.S.C. ? 651(b). It is rather extraordinary that themajority would reject the respondent?s efforts in this regard. Barring one doorto protect employees from the hazard of intruders?even though there were threeother ways employees could exit in case of fire?is a violation of the law,Messrs. Barnako and Cleary say. It is apparently of no concern that intruderspresented more of a safety threat than did fire because there is nothing intheir regulation book on that one.Since both opinions in this decision refer several times toJudge Brennan?s decision, the full text of the same is attached hereto asAppendix A.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONALSAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3624 TECHNO PRODUCTS, INC., DBA TECHNO TRUCK MANUFACTURING CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: May 31,1974DECISIONAND ORDERAPPEARANCES:For the Secretary of Labor W.S. Kloepfer Associate Regional Solicitor 881 Federal Office Building 1240 EastNinth Street Cleveland, Ohio 44119 Attn: Gregory B. Taylor, Esq.\u00a0For the Respondent Richard A.Fromson, Esquire Nadler, Sokolsky and Bahas 1000 One Public Square BuildingCleveland, Ohio 44113\u00a0Brennan, W.E.; A.L.J.This is an action arisingunder the provisions of Section 10(c) of the Occupational Safety and Health Actof 1970, 29U.S.C. 659(c), (hereinafter the Act), to review an?Amended Notification of Failure to Correct alleged Violation and of ProposedAdditional Penalty? issued pursuant to Sections 9(b) and 17(d) of the Act, onJune 19, 1973, by the Secretary of Labor through the Area Director of theOccupational Safety and Health Administration for Cleveland, Ohio (hereinafterComplainant) to Techno Products, Inc., of Cleveland, Ohio, (hereinafterRespondent).On January5, 1973 the Complainant issued a Nonserious Citation to Respondent containing13 numbered Items together with a Notification of Proposed Penalty in the totalamount of $465.00.On January22, 1973 an Amended Nonserious Citation was issued to Respondent in which theoriginal Item No. 2 was withdrawn and Item No. 1 was amended. The AmendedNotification of Proposed Penalty reduced the proposed penalty for Item No. 1from $150.00 to $50.00, and withdrew the original proposed penalty of $45.00for Item No. 2, resulting in a total proposed penalty of $320.00.The AmendedNonserious Citation and amended proposed penalties were not contested byRespondent and became the final Order of the Review Commission by operation ofSection 10(a) of the Act.After theexpiration of the latest abatement date set forth in the Amended NonseriousCitation, a reinspection of Respondent?s plant located at 1961 East 61st Streetin Cleveland was made on June 1, 1973. On June 5, 1973 the Complainant issuedto Respondent a Notification of Failure to abate 8 of the 12 conditions setforth in the Amended Citation, (Items numbered 1, 2, 3, 4, 5, 9, 10 and 12) andproposed additional penalties in the total amount of $1880.00.On June 19,1973 an Amended Notification of Failure to abate was issued which withdrewItems numbered 2 and 10 from the Original Notification, as well as the $200.00proposed additional penalty for each of these items, resulting in a proposedadditional penalty for failure to abate of $1480.00.Pursuant toSection 10(c) of the Act, Respondent, through its President, gave notice of itsintention to contest the Amended Notification and Proposed penalties.After thefiling of the Secretary?s Complainant and Respondent?s Answer by its counsel,this case came on for hearing at Cleveland, Ohio on November 7, 1973.No otherperson desired party status.TheComplainant?s brief and findings were filed on December 20, 1973. TheRespondent did not file any post hearing documents.Having considered the entire record herein, thetestimony and demeanor of the witnesses, the exhibits, stipulations,representations and admissions of the parties, it is concluded that thesubstantial evidence of record considered as a whole supports the followingfindings of fact and conclusions of law.The parties stipulated thefollowing:??????????? The correct name ofRespondent is Techno Products, Inc., doing business as Techno TruckManufacturing Company. It is an Ohio Corporation with its principal officelocated at 20850 St. Clair Avenue, Cleveland, Ohio. It is engaged in themanufacture of food handling equipment and deals extensively in interstatecommerce. It is the smallest such business in the general area having totalsales during 1972 of approximately $900,000. The worksite involved in this caseis one of Respondent?s two plants, located on East 61st Street in Clevelandwhere it employs 15 employees. Respondent has no known history of priorviolations of laws or regulations affecting the health or safety of employees.The conditions alleged not tohave been corrected on June 1, 1973 are set forth in the Complaint as follows: Item Regulation Abatement Dates Violation 1 29 CFR 1910.107(c)(2) & (6), (e)(2), (f)(4), (g)(2) & (7) 2\/28\/73 \u00a0Failed to provide and\/or maintain adequate spray booth operation: a. Heater located less than 20 feet from spray booth not separated by partition. b. Electrical overhead fixtures within spray booth and outside (but less than 20 feet from) not approved type. c. Quantity of combustible liquids kept in vicinity exceeds one day?s supply. d. Inadequate supply of portable fire extinguishers. e. Accumulation of combustible residues in spray booth. f. Inadequate ?No Smoking? signs in vicinity of spray booth (employee smoking in paint supply room adjacent to spray booth). \u00a0 3 29 CFR 1910.141(a)(1)(i) & (ii) 5\/30\/73 Failed to maintain adequate housekeeping: a. Restroom adjacent to spray booth. b. Materials scattered in storage area. c. General plant area?floors flooded with water. \u00a0 4 29 CFR 1910.212(a)(1) 2\/28\/73 Failed to provide adequate guarding of belts on power drill and compressor. \u00a0 \u00a0 29 CFR 1910.212(a)(5) 2\/28\/73 Failed to provide adequate guarding fan blades. 9 29 CFR 1910.157(d)(2)(i) 1\/3\/73 Failed to maintain monthly inspection of portable fire extinguishers. \u00a0 12 29 CFR 1910.36(b)(4) 3\/2\/73 Failed to maintain exit in a manner which provides free and unobstructed egress (exit in rear of plant locked). \u00a0 TheComplainant produced one witness, Compliance Officer Szakovits, who made boththe original inspection on December 19, 1972 and the routine reinspection onJune 1, 1973.Item No. 1As to thisItem, the Compliance Officer (hereinafter CO) testified that the first threeconditions, Item 1(a), (b), and (c) had been corrected upon reinspection, butthe last three conditions, Item 1(d)(e) and (f) had not been corrected (Tr. 50,51).Item No. 1(d)??Inadequate supply of portable fireextinguishers.?TheStandard relied upon by Complainant as to this charge, as set forth at 29 CFR 1910.107(f)(4), provides:(4) Portable extinguishers.An adequate supply of suitable portable fire extinguishers shall be installednear all spraying areas.\u00a0The C.O.testified to having observed one fire extinguisher ?. . . in the immediate area. . .? of the paint spray booth on the original inspection, and to having seenit again on the reinspection. After the original inspection at the closingconference he advised Respondent that in his opinion, two fire extinguisherswould constitute an ?adequate supply? under the circumstances, which includedthe presence of an overhead spinkler system which the C.O. did not determine tobe operational because to make this determination would be ?impractical?. (Tr.15, 58, 59, 60).TheRespondent, evidently questioning what was meant by ?an adequate supply ofsuitable portable fire extinguishers . . .? as set forth in the cited Standard,met with the Area Director, Mr. Bowman on January 19, 1973, which resulted in aletter from Mr. Bowman dated January 22, 1973. In this letter, Mr. Bowmanstated that the cited Standard, ?. . . means there must be a minimum of two (2)fire extinguishers.? (Exh. C?1, Tr. 15?19).The Respondentdefends against this charge on the ground that the Standard is vague andunspecific and subject to varying interpretations by various complianceofficers or inspectors. Indeed the C.O. here readily admitted that someoneother than himself might have a different opinion as to what number of fireextinguishers might be considered ?an adequate supply . . .?, all other factsbeing equal (Tr. 60).? In myopinion the cited Standard is vague and nonspecific. What is ?an adequatesupply . . .? of portable fire extinguishers, and what constitutes ?. . .suitable . . .? extinguishers are not specified in this Standard. As ChairmanMoran has pointed out, ?The enforcement of vague standards . . . results indenial of the respondent?s right to due process of law. This constitutionalrequirement affords to parties against whom regulations are enforced the rightto have fair warning of the conduct which is prohibited or required wheneverthe violation of such regulations are subject to civil or criminal sanctions.It also requires that a party be free from arbitrary application of the lawwhich can vary with each individual enforcement official.? (Secretary of Labor v. Santa Fe TrailTransport Company; OSHRC Docket No. 331, \/18\/73).Based uponthe Commission decision in the Santa Fe case supra and theauthorities therein cited, the charge encompassed in Item No. 1(d) and penaltyproposed thereon must be vacated.Item No.1(e)??Accumulation of combustible residues in spray booth.?TheStandard relied upon, as set forth at 29 CFR 1910.107(g)(2), provides:(2)Cleaning. All spraying areas shall be kept as free from the accumulation ofdeposits of combustible residues as practical, with cleaning conducted daily ifnecessary. Scrapers, spuds, or other such tools used for cleaning purposesshall be of nonsparking material.\u00a0The C.O. testified as to this charge that uponreinspection, ?There was an accumulation of residue on the fixtures, the pipingand all the walls.? of the paint spray booth (Tr. 15). Further, ?It was notmaintained, there were indications of deposits on the piping and also thefixtures and also the wall was, or had accumulation of paint.? (Tr. 20). Hephotographed this scene which photograph was admitted as Exh. C?2 #2. He wastold by Respondent that the paint used in this booth was combustible (Tr. 21).He further testified that on his follow-up inspection on June 1st, the residueshad been reduced (Tr. 21). He explained the basis for his conclusion as to thischarge, ?. . . was just my observation of the interior of the booth itself.There was an accumulation on the interior of the booth.? (Tr. 22). He testifiedthat due to the nature of the articles painted in this spray booth there was aconsiderable amount of paint which would accumulate on the interior of thebooth and adjacent pipes. He did not ascertain the volume of painting done inthis booth during any given period, and could not recall instructing Respondentthat daily cleaning would be necessary (Tr. 64?71). In fact, there is noshowing in the Complainant?s evidence, that any further reduction of the paintaccumulation in the spray booth could have ?practically? been accomplished byRespondent.Respondent?splant foreman Mr. Milliron testified that the normal procedure at this worksiteis to paint 64 carts at any given time, as Respondent ships this number ofunits routinely in its standard shipments. This painting process usually takestwo days. After the 64 carts are painted, ?. . . the painter scrapes the floorand the walls, changes the filter and generally cleans the area.? (Tr. 98).As to thiscase, under the Standard allegedly violated, the Complainant has the burden ofestablishing by substantial evidence that ?. . . spraying areas . . .? are not?. . . kept as free from the accumulation of deposits of combustible residuesas practical, with cleaning conducted daily if necessary.? (29 CFR 1910.107(g)(2)underlining supplied). To meet this burden, there must be some showing that areduction of residue, beyond that accomplished by Respondent, is practical.Upon thestate of the evidence of this record, the Complainant has not met this burdenof proof and thus this charge and the proposed penalty based thereon must bevacated.Item No.1(f) ?Inadequate ?No Smoking? signs in vicinity of spray booth (employeesmoking in paint supply room adjacent to spray booth).??????????? The Standard relied upon, as set forth at 29 CFR 1910.107(g)(7)provides:(7) ?No Smoking? signs. ?Nosmoking? signs in large letters on contrasting color background shall beconspicuously posted at all spraying areas and paint storage rooms.\u00a0The COtestified that upon his reinspection a ?No Smoking? sign was displayed in thearea of the paint spray booth, but this sign was ?. . . quite small anddifficult to read.? (Tr. 22). Although he did not measure these signs, heopinioned that the sign was ?several inches high? with an overall length ofabout ?one foot?. (Tr. 22 to 74). He stated, ?The signs should be large enoughto indicate a hazard before the employee walks into the area where the problemis because he is not walking in the area to read the signs. In this particularcase, I felt it was not adequate and Section 1910.145 of the Federal Register,page 22239 covers the requirement for signs and so forth and after reviewingthat section I felt that the signs in this particular case were not adequate.?(Tr. 22, 23).The CO readily admitted that no information wasgiven Respondent after the original inspection concerning the exact size of therequired signs (Tr. 71, 72). This one ?No Smoking? sign he observed on thereinspection was also present during his original inspection. Although hesuggested that additional ?No Smoking? signs had been posted at other locationsin the plant, the condition at the spray booth was not altered on June 1st fromthe time of the original inspection (Tr. 73?77).Mr.Stribinger, Respondent?s superintendent testified that prior to thereinspection, sometime in March or April, seven additional ?No Smoking? signswere ordered but had not been received on June 1st. Since that date however,these signs have been received and posted throughout the plant including oneadditional sign near the spray booth. These new signs were ?. . . the biggestthat we could buy,?they are good size, red background with white letters.? (Tr.130, 131).It is notedthat the C.O. relied upon a Standard (29 CFR 1910.145), which spells out thespecifics as to the required sizes of various signs, including ?No Smoking?signs, in concluding that Respondent failed to abate this violation, but neverreferred the Respondent to this Standard, or indeed, never gave the Respondentany information as to required sizes. Thus Respondent, in attempting to bringits plant into complete compliance, ordered the ?biggest? signs available.Further, additional signs were ordered prior to the reinspection, but, as faras the evidence of record establishes, were not received not through any faultof Respondent. Thus it is concluded, that although there was a technicalfailure to abate Item No. 1(f), this failure was due to circumstances beyondRespondent?s control and consequently, any penalty for this failure is notreasonable or appropriate. Therefore, this charge will be affirmed but nopenalty assessed.Item No. 3??Failed tomaintain adequate housekeeping:a. Restroom adjacent to spraybooth.b. Materials scattered instorage area.c. General plant area?floorsflooded with water.?\u00a0TheStandard relied upon, as set forth at 29 CFR 1910.141(a)(1)(i) and (ii)provides:(a) General requirements.(1) Housekeeping.(i) All places of employment,passageways, storerooms, and service rooms shall be kept clean and orderly andin a sanitary condition.\u00a0(ii) The floor of everyworkroom shall be maintained in a clean and, so far as possible, a drycondition. Where wet processes are used, drainage shall be maintained and falsefloors, platforms, mats, or other dry standing places should be provided wherepracticable.\u00a0As to thischarge, the C.O. testified that ?there were deposits or accumulations of dustson lockers in the toilet area, washing facilities and so forth.? (Tr. 23).However, his real concern was some broken windows and ?. . . debris scatteredall over the storage area . . .?. (Tr. 23). The evidence reveals that at thetime of the reinspection, the Respondent was building the new storage areainvolved, installing storage racks and moving material into this new area,which work had not been completed on June 1st. Approximately 15 to 20 percentof the window panes in an interior wall were broken. No broken glass was foundon the floor of this area however. The CO felt that the broken panes within thewindow frame presented a hazard to Respondent?s employees installing the newstorage racks (Tr. 23?26). He found this condition corrected however when hereinspected for a second time in mid-June (Tr. 23).Upon cross examination it was brought out that as tothe rest room, the dust found by the CO was on top of lockers and onwindowsills. The CO admitted ?. . . that some areas were clean, some areas maynot have been cleaned.? (Tr. 78). At the time of the reinspection, thisfacility was not completely enclosed and the work of constructing the newstorage area, near the rest room, undoubtedly contributed significantly to thedust problem.As to ItemNo. 3c. ?floors flooded with water?., the CO testified that on the originalinspection there was a leaking roof which resulted in some water on the plantfloor. However when reinspected on June 1st, the leak in the roof had beenrepaired and the plant floor was dry.Mr.Stribinger, Respondent?s superintendent testified that Respondent has haddifficulty keeping a maintenance man in its employ, but at the time of hearingit had two such employees on its payroll. Further, that the mens room at theworksite is cleaned once a day. Additionally he confirmed that fact that theleak in the roof had been repaired by Respondent?s own employees by June 1st.(Tr. 131?133).On thisstate of the evidence I conclude that the Secretary has not proven the chargeconnected with Item No. 3. The dust found in the rest room was a conditioncaused by the construction work being carried on by Respondent, and was acondition beyond the reasonable control of Respondent on June 1st. Thiscondition has been rectified. The ?materials scattered in [the] storage area?,in part had been rectified on June 1, and the remaining material was due to therenovation of the storage area. The ?flooded floors?, and cause thereof werecorrected upon reinspection. The broken window panes are not specificallycovered by the Standard relied upon and in any event, this condition wascorrected by mid-June. Thus the charges embraced by Item No. 3 and penaltyproposed thereon must be vacated.Item No.4??Failed to provide adequate guarding of belts on power drill and compressor.?The Standard relied upon, asset forth at 29CFR 1910.212(a)(1) provides:(a) Machine guarding?(1)Types of guarding. One or more methods of machine guarding shall be provided toprotect the operator and other employees in the machine area from hazards such asthose created by point of operation, ingoing nip points, rotating parts, flyingchips and sparks. Examples of guarding methods are?barrier guards, two-handtripping devices, electrenic safety defices, etc.\u00a0Theevidence reveals that on the original inspection, a drill at Respondent?s 61stStreet plant was not adequately guarded in the opinion of the CO. Uponreinspection however, this particular drill had been ?. . . taken out ofservice.? (Tr. 28) and a new drill installed, which, in the CO?s opinion alsowas not properly guarded (Tr. 28, 29).On thesefacts of course, the charge of failure to abate cannot be sustained because theoffending drill on June 1st was a different drill than originally cited.However, the evidence further reveals that when this new drill was installed,it was determined that its motor was not sufficient. Consequently, the guardingon this drill, and its motor was removed prior to June 1st, and it was in thiscondition when inspected by the CO on June 1. Thus, this drill was notoperative on June 1st. (Tr. 95).As to the ?compressor? the CO?s testimony concerningthis piece of equipment is vague at best. He testified that the compressor,located next to a wall in the production area, when he observed it uponreinspection, was partially but not totally guarded. The unguarded drive beltand pulley were next to the wall and there was not sufficient room for anemployee to fit between the wall and compressor. Although he did not measurethis compressor the CO believed that an employee could reach over thecompressor and be exposed to a ?minimum? hazard. (Tr. 29?34). Upon crossexamination the CO admitted that he could not say, either from his notes orrecollection, that there was or was not a steel mesh cage completely guardingthe compressor on June 1st. (Tr. 81, 82).Respondent?splant foreman, Mr. Milliron testified that prior to the original inspection,the compressor in question was not guarded. However, prior to the reinspection,a heavy wire mesh cage was built and installed around the compressor and thiscage was in place on June 1st. (Tr. 94).Upon thisstate of the evidence of record it is concluded that the charge embraced underItem No. 4 has not been proven by Complainant. Thus this charge and the penaltyproposed thereon must be vacated.Item No. 5?Failed to provide adequate guarding fan blades.?TheStandard relied upon, as set forth at 29 CFR 1910.212(a)(5) provides:(5) Exposure of blades. Whenthe periphery of the blades of a fan is less than seven (7) feet above the flooror working level, the blades shall be guarded. The guard shall have openings nolarger than one half (1\/2) inch.\u00a0The COtestified that upon his reinspection, one floor fan located in the welding areawas inadequately guarded. This fan did have a metal guard over the blades assupplied by the manufacturer but this guard had openings larger than 1\/2 inchas required by the Standard. (Tr. 35?50). Upon cross examination the COadmitted that of about 5 such fans in Respondent?s plant, all but one had hadadditional guarding installed. (Tr. 83?84).Respondent?splant foreman testified to having personally fabricated and installedadditional wire mesh guarding on four of Respondent?s fans, but readilyadmitted to not having installed the additional guarding on the fan in questionon June 1st. (Tr. 95?96).Upon thisstate of the evidence I conclude that abatement had not been accomplished as tothis one fan, whereas it had been accomplished as to four fans. Further, in myview, the imposition of any penalty for this infraction, in light of all thecircumstances presented by this record, and based upon the extremely minimalemployee exposure to this similarly minimal hazard, will not further theobjectives of the Act. Thus the penalty proposed will be vacated.\u00a0Item No. 9?Failed to maintain monthly inspection of portable fire extinguishers.?TheStandard relied upon, as set forth at 29 CFR 1910.157(d)(2)(i) provides:(2) Inspection. (i)Extinguishers shall be inspected monthly, or at more frequent intervals whencircumstances require, to insure they are in their designated places, to insurethey have not been actuated or tampered with, and to detect any obviousphysical damage, corrosion, or other impairments.\u00a0The CO testified that upon his reinspection, he checkedthe maintenance tags on an unspecified number of portable fire extinguishers inRespondent?s plant. These tags bore a stamped date of ?October 1972?, the samedate he observed during his original inspection. He therefore concluded thatthese extinguishers had not been inspected monthly. (Tr. 40?44). Upon crossexamination the CO could not recall whether he had asked anyone if monthlyinspections had been made. (Tr. 85).The plantforeman testified that his ?normal practice? was to check the 12 fire extinguishersin the plant monthly and readily admitted that he had not made any notation orrecord of these inspections. (Tr. 92?93, 100).It is notedthat the Standard relied upon does not require that any record or notation ofthe monthly inspections be made or maintained. Thus, based upon the evidence ofthis record it is concluded that monthly inspections had been made ofRespondent?s portable fire extinguishers and the Complainant has not proven itscharge under Item No. 9. This charge and the penalty proposed thereon must bevacated.Item No. 12?Failed to maintain exit in a manner which provides free and unobstructedegress (exit in rear of plant locked).TheStandard relied upon, as set forth at 29 CFR 1910.36(b)(4) provides:(4) In every building orstructure exits shall be so arranged and maintained as to provide free andunobstructed egress from all parts of the building or structure at all timeswhen it is occupied. No lock or fastening to prevent free escape from theinside of any building shall be installed except in mental, penal, orcorrective institutions where supervisory personnel is continually on duty andeffective provisions are made to remove occupants in case of fire or otheremergency.\u00a0The COtestified that on the original inspection, a rear exit door in Respondent?splant was padlocked on the inside, which condition remained unchanged on June1st. (Tr. 44?46).Upon crossexamination it was brought out that during the original closing conferencethere was ?considerable discussion? concerning this condition as it related toemployee safety. Additionally, upon the suggestion of the CO the hinges on thisdoor had been changed so that the door swung outward. (Tr. 85?86).Respondent?sPresident, Mr. Isaacs testified that the rear exit door had been padlockedbecause at sometime prior to the original inspection, an armed, disgruntled,ex-employee had entered the premises through this door, which abutted an alley,which was ?. . . not a very pleasant experience.? Thus, in order to protect hisemployees and premises, the door had been kept locked. (Tr. 120?121).He furthertestified that this plant has four doors, the one locked door, one exit door atthe front of the plant, and two overhead doors, one of which is 13 feet wide toallow vehicle entry the other overhead door being used at a loading dock. Threeof the four doors remain unlocked during business hours. (Tr. 121). Since June1st, in order to comply with the CO?s recommendation, the rear exit door hasbeen left unlocked despite potential danger, and efforts are being made to findan appropriate method to secure this exit. This testimony was confirmed byRespondent?s Superintendent. (Tr. 134?135). There are 15 employees atRespondent?s worksite.Under the express terms of the Standard relied upon,it is concluded that the charge under Item No. 12 has not been proven. It isnoted that this Standard does not require that all exits be maintainedso as to provide free and unobstructed egress from all parts of the building orstructure. Rather, the precise terms and obvious intent of this Standard isthat free and unobstructed egress for all occupants of the, building orstructure must be maintained when the building is occupied. Upon the evidenceof this record, it is impossible for me to, conclude that the 15 employeesnormally occupying this premises did not have ?free and unobstructed? egressfrom this building through either the front exit or through either of two 13foot wide overhead doors, none of which were locked during business hours. Thusthis charge and the penalty proposed thereon must be vacated.At alltimes involved in this case, Respondent furnished employment to its employeesat the worksite hereinbefore identified. The Act is applicable to suchemployment within the meaning of Section 4(a) thereof and the Commission hasjurisdiction of the parties and the subject matter herein pursuant to theprovisions of Section 10 thereof.Based uponthe foregoing findings and conclusions and pursuant to the provisions ofSections 10(c) and 12(j), of the Act, it is hereby, ORDERED:1. That thecharges of failure to abate Items numbered 1a, b, c, d, and e; Item No. 3; ItemNo. 4, Item No. 9 and Item No. 12 and the penalties proposed thereon areVACATED.2. That thecharges of failure to abate Item No. 1(f) and Item No. 5, as specified in theforegoing findings, are AFFIRMED. No penalties are assessed thereon.\u00a0WILLIAM E. BRENNANJudge, OSHRCDated: May 1, 1974Washington, D.C.[1] The cited standard provides:(4)Portable extinguishers. An adequate supply of suitable portable fireextinguishers shall be installed near all spraying areas.[2]Commissioner Cleary concurs but also notes that in his view the Commission doesnot have authority to determine whether a standard is vague. See his opinionsin United States Steel Corp., BNA 2 OSHC 1343, CCH E.S.H.G. para. 19,047(1947); Santa Fe Trail Transport Co., 5 OSAHRC 840, BNA 1 OSHC 1457, CCHE.S.H.G. para. 17,029 (1973), rev?d, 505 F.2d 869 (10th Cir. 1974); DivescoRoofing & Insulating Co., 4 OSARC 339, BNA 1 OSHC 1279, CCH. E.S.H.G.para. 16,443 (1973).[3]The cited standard provides:In every building or structure exits shall be soarranged and maintained as to provide free and unobstructed egress from allparts of the building or structure at all times when it is occupied. No lock orfastening to prevent free escape from the inside of any building shall beinstalled except in mental, penal, or corrective institutions where supervisorypersonnel is continually on duty and effective provisions are made to removeoccupants in case of fire.[4]We further note that only one of the three means of egress on which the Judge?sdecision relies was a pedestrian exit, and that, although the issue is notbefore us, a side-hinged, swinging type of exit door is required by 29 C.F.R. ?1910.37(f)(2). Indeed, Techno indicated that the two entryways equipped withoverhead doors were not intended for personnel use. However, since we affirmLabor?s charge on a different basis, we need not determine whether the Judgeerred in his conclusion that Techno?s employees had adequate means ofunobstructed egress from the building.[5]The Commission decision indicates that only ?the two pedestrian exits areintended by Techno for use by persons.? I submit that normal usage of theremaining two doors is irrelevant because in an emergency situation a person ofcommon sense could be expected to disregard normal usage and utilize them as ameans of ?free escape.?”