“Docket No. 89-1791 SECRETARY OF LABOR,Complainant,v.TRINITY INDUSTRIES, INC.,Respondent.OSHRC Docket No. 89-1791DECISIONBefore: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:As a result of an inspection by the Occupational Safety andHealth Administration (\”OSHA\”), Trinity Industries, Inc. was issued twocitations containing a number of items. The only item remaining on review[[1]] alleges another-than-serious violation of 29 C.F.R. ? 1910.178(1)[[2]] for failure to satisfy therequirement that \”[m]ethods shall be devised to train operators in the safe operationof powered industrial trucks.\” OSHA proposed no penalty for this item. At issue iswhether Review Commission Administrative Law Judge Louis G. LaVecchia erred in concludingthat the Secretary proved the alleged violation.Background At Trinity’s steel fabrication plant in San Antonio, Texas,there were five forklift trucks used to transport sheet steel plate in the shop bay area.Trinity employed ten or eleven \”authorized forklift operators\” at the plant, allwith 15 to 30 years of experience as forklift operators.The Secretary argues in her brief that \”[a]t a minimumthis standard [section 1910.178(1)] requires that an employer issue instructions on howforklift operators may recognize and avoid unsafe conditions.\”‘ At the hearing, theSecretary elicited testimony from Howard Shelton, Trinity’s assistant plant manager at thetime of the inspection, that the forklift operators had not received \”any actualtraining\” for two and a half years. The compliance Officer who conducted theinspection testified that on-the-job training could be sufficient under the standard if itcovered subjects that he considered essential, and employees demonstrated knowledgethereof. He testified that when he questioned at least one employee to determine the levelof knowledge of these subjects, the answers were, in his opinion, \”notsatisfactory.\”In his decision, the Judge concluded that the Secretary had mether burden of proof in this case, particularly finding that \”[t]he record, in factdemonstrates no evidence of a\” program, and no evidence the plant’s operators havehad any training.\”Discussion A review of the record reveals that, contrary to the judge’sfinding, there is evidence on training introduced by Trinity in the record. When asked ondirect examination, if Trinity’s forklift operators were \”all previously experiencedand trained\” (emphasis added) assistant manager Shelton responded in the affirmative.Moreover, Sheldon further testified that he has \”observed\” the operators’driving to see if they were proficient in maneuvering forklifts, and they all were. Healso stated that there have not been any forklift accidents at the plant. Sheltontestified that the \”on-the-job\” training that he told the compliance officerabout consisted of the following:[W]e have got one person designated, which is our maintenanceforeman. If we should hire a new employee to operate a fork truck, he would be tested torun the fork truck. He would be–this would be done outside the plant in our yard orsomething outside where we got steel that he can move around without anyone beingaround[,] to find out if the man is even capable of doing this type of job.He further stated that Trinity had not hired any new forklifttruck operators at the plant for 15 to 20 years. The Secretary has the burden of proving her case by apreponderance of the evidence. E.g., Regina Constr. Co., 15 BNA OSHC 1044, 1046, 1991 CCHOSHD ? 29,354, p. 39,467 (No. 87-1309, 1991); Astra Pharmaceutical Prods., 9 BNA OSHC2126, 2129, 1981 CCH OSHD ? 25,578, pp. 31,899-900 (No. 78-6247, 1981), aff’d inpertinent part, 681 F.2d 69 (1st Cir. 1982). The Secretary’s evidence includes Shelton’stestimony that no actual training had been provided for two and a half years. However, thestandard does not state how often training must be provided. The Secretary also relies onthe compliance officer’s testimony that he had asked questions about subjects that heconsidered essential and received unsatisfactory answers. However, he did not describewith any specificity what questions he asked or what answers he received.[[3]]That evidence must be balanced against Trinity’s evidence thatits forklift operators were monitored by Shelton and \”trained,\” and that therewas a foreman designated to test and evaluate any new employee. Weighing theabove-described evidence presented by the Secretary against that introduced by Trinity, weconclude that the Secretary has not proven a violation by a preponderance of the evidence.See Trinity Indus., 15 BNA OSHC 1579, 1590, 1992 CCH OSHD ? 29,662, p. 40,193 (No.88-1545, 1992) (Secretary failed to prove required radiation survey not conducted); E.I.du Pont de Nemours & Co., 10 BNA OSHC 1320, 1325, 1982 CCH OSHD ? 25,883, p. 32,381(No. 76-2400, 1982) (Secretary failed to prove shower facilities not \”suitable\”as standard required); see also Granite City Terminals Corp., 12 BNA OSHC 1741, 1745-46& n.8, 1986-87 CCH OSHD ? 27,547, p. 35,774 & n.8 (No. 83-882-S, 1986) (Secretaryfailed to show alternative method provided was unsafe).Based on this record, we cannot determine whether the trainingwas inadequate under this standard. Therefore, because the Secretary has the burden ofproof, we conclude that, based on the specific record in this case, the Secretary hasfailed to establish a violation by a preponderance of the evidence [[4]]. Cf. PhiladelphiaNewspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986) (burden of proof is deciding factorwhen necessary facts cannot be determined conclusively from record).Order Based on the Secretary’s failure to meet her burden of proof,we vacate citation no. 2, item 5, which alleges an other-than-serious violation of section1910.178(l).Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: July 23, 1992SECRETARY OF LABOR,Complainant,v.TRINITY INDUSTRIES, INC.,Respondent.OSHRC Docket No. 89-1791APPEARANCES: Mary E. Witherow, EsquireDallas, TexasFor the Complainant.Robert E. Rader, Jr., EsquireDavid P. Blanke, Esquire Dallas, TexasFor the Respondent.DECISION AND ORDERLAVECCHIA, Judge:This is a proceeding brought before the Occupational Safety andHealth Review Commission (\”the Commission\”) pursuant to ? 10 of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et seq. (\”theAct\”).The Occupational Safety and Health Administration(\”OSHA\”) conducted an inspection of Respondent’s steel fabrication plant in SanAntonio, Texas, on April 4, 1989, which resulted in two citations. Citation 1 allegesserious violations of 29 C.F.R. ? 1910.180(b)(2) 1910.180(c)(2), 1910.212(a)(3)(ii) and1910.243(b) (2). Citation 2 alleges \”other\” violations of 29 C.F.R. ?1910.106(e)(2)(iv)(d), 1910.134(b)(10), 1910.134(b)(11), 1910.134(e)(5)(i) and1910.178(1).Respondent timely contested the citations and a hearing tookplace on May 15, 1990, in San Antonio, Texas. Jurisdiction was not in issue and noadditional persons intervened. Both parties have submitted post-trial briefs, and thismatter is ripe for decision.29 C.F.R. ? 1910.180(b)(2)Vern Bechtel testified. He has been an OSHA compliance officer(\”CO\”) for almost 20 years and he conducted the subject inspection. He wasaccompanied by Neil Foreman, Trinity’s corporate safety director, John McCasland, theplant manager, and Howard Shelton, the assistant plant manager. (Tr. 4-6; 9-10).During his inspection, Bechtel observed a used, reconditionedcrane that did not have hand holds or steps to facilitate access to the cab, which createda fall hazard. He did not see employees enter the cab, but the plant manager told him thecrane was used regularly. Bechtel estimated the crane was ten years old, but said he wouldnot be surprised if it dated from the late 60’s. He identified Exhibits C-1 and C-2 asphotos he took of the crane, and C-3 as the American National Safety Institute(\”ANSI\”) standard B30.5-1968, which the OSHA standard incorporates by reference.(Tr. 10-16; 60).Howard Shelton also testified. He is the plant manager of theSan Antonio facility; he was assistant manager at the time of the inspection. He hasworked for Trinity for over 11 years; his previous positions include maintenancesupervisory positions. He said the crane in C-2 was constructed in 1967. (Tr. 123-27).The subject standard provides as follows:All new crawler, locomotive, and truck cranes constructed andutilized on or after August 31, 1971, shall meet the design specifications of the AmericanNational Standard Safety Code for Crawler, Locomotive, and Truck Cranes, ANSI B30.5-1968.Crawler, locomotive, and truck cranes constructed prior to August 31, 1971, should bemodified to conform to those design specifications by February 15, 1972, unless it can beshown that the crane cannot feasibly or economically be altered and that the cranesubstantially complies with the requirements of this section. (Emphasis added).Exhibit C-3 shows paragraph 5-1.8.3(b) of ANSI standardB30.5-1968, which provides as follows:On all crawler, truck- and wheel-mounted cranes suitable handholds and\/or steps shall be provided to facilitate entrance to and exit from theoperator’s cab and the truck cab.The Secretary contends the record demonstrates a violation.However, as Respondent points out, the Commission has held, based on the standard’shistory, \”that the provisions of section 1910.180 . . . must be considered advisoryif the crawler, locomotive, or truck crane was ‘constructed and utilized’ prior to August31, 1971.\” General Dynamics Corp., 80 OSAHRC 42\/C7, 8 BNA OSHC 1360, 1362,1980 CCH OSHD ? 24,415 (No. 78-3290, 1980). The only evidence in regard to the crane’sconstruction date was the testimony of Howard Shelton, which was not refuted by theSecretary. Based on that testimony, the cited crane is subject to the second sentence of1910.180(b)(2), which, according to General Dynamics, is advisory, rather than mandatory.Since there can be no violation of an advisory standard, the citation is vacated.29 C. F. R. ? 1910.180(c)(2)Vern Bechtel testified that he and the management officialswith him could not find a load rating chart in the cab of the crane shown in C-2. Althoughthey did not tell him he could not enter the cab, he did not do so because of the lack ofsteps. The glass and doors on the cab allowed him to see its entire interior from theground, although he could not see the area behind the operator’s seat which housed themachinery and was covered by sheet metal. Bechtel said the lack of a chart was hazardousbecause the operator would not know the crane’s lifting capability and other informationwhich would prevent accidents. (Tr. 16-21; 60-63).Neil Foreman is Trinity’s corporate safety director. Hetestified he had not been inside the cab before the inspection and did not know if it hada chart. Bechtel did not direct his to enter the cab; however, later that day, Forman andShelton did so and found two load rating charts. One was on a clipboard in a metal pocketon the door frame. The other was attached to the cab with a wire fastener back to theleft-hand side of the operator; it was visible from the operator’s seat. Both charts werelegible and in plastic protectors. Foreman said all parts of the cab were not visible fromthe ground and that the charts could not be seen from there. (Tr. 102-06; 120).Howard Shelton testified he and Foreman found two charts in thecab after the inspection. One was on a clipboard in the side pocket beside the driver’sseat. The other was in a plastic guard with one end fastened to the cab’s roof. It was an8 1\/2 x 11\” sheet that hung down about eye level behind and to the left of theoperator’s seat; the operator could read it by turning his head. It had load capabilityand rating information on it. Shelton said he could not see the chart or all of the cab’sinterior from the ground because it was too high up. (Tr. 127-28; 146-47; 150-51).The subject standard provides as follows:A substantial and durable rating chart with clearly legibleletters and figures shall be provided with each crane and securely fixed to the crane cabin a location easily visible to the operator while seated at his control station.Although the CO believed he could clearly see the cab’s entireinterior from the ground, I conclude, based on the record, that he was unable to do so.C-2 shows an obscured view of the area behind the operator’s seat, and Bechtel’s owntestimony indicates he could not see that area. Respondent’s witnesses said there was achart behind the seat which was visible to the operator. [[1]] The Secretary assertsRespondent’s witnesses are not credible because they did not advise the CO or OSHA aboutthe charts. (Tr. 120-21; 146). However, I observed the demeanor of Foreman and Shelton andfound no reason to not credit their testimony. The citation is vacated. 29 C.F.R. 1910.212(a)(3)(ii)Vern Bechtel observed a Pacific hydraulic press brake that hadno guard to keep an operator’s hands out of the point of operation. He did not see itoperate, but the plant manager told him it was used and that it had never had a guard. Thepress is actuated with a foot pedal that causes the ram to descend and close an metalpieces inserted into it, making a 90-degree bond in the metal. The manager printed outpieces on the floor that had been used in the press; some of them wore 40\” x 8\”and had 2\” bonds in them. Bechtel identified Exhibits C-4 and C-5 an photos he tookof the press with the ram open; C-5 showed some of the pieces he saw. Although the managerdid not say where an operator’s hands would be when the ran contacted the metal, Bechtelsaid they would be within inches of the point of operation because of the size of thepieces and bonds he saw. He did not know the speed of the press, but said it would beslow. He said the unguarded press was hazardous and could result in finger amputation. Hedid not know if the press had caused any injuries. (Tr. 21-27; 63-66).Neil Foreman and Howard Shelton also testified about the pressbrake. Both have seen it operate, and Shelton has operated it. The operator holds themetal to be bent with both hands it positions its bend marks as the ram descends. Theram’s very slow, and it becomes even slower as the ram gives metal, which gives theoperator time to align the bend marks. The operator’s hands are on the metal when the ramcontents its removes his hands. The operator’s foot must be on the pedal to lower the ram,and it stops if the operator removes his foot. Hydraulic failure would not cause the ramto fall. Both foreman and Shelton said the press was not hazardous, and Shelton said noone had ever been injured on it. Foreman said the pedal in 3.5 feet from the point ofoperation. (Tr. 114-16; 121; 328-30)The relevant portion of the subject standard provides asfollows:The point of operation of machines whose operation exposes anemployee to injury, shall be guarded.For the standard to apply, the operation of the brake pressmust represent a likelihood of injury. Respondent’s witnesses described the operation, butdid not say how close an operator’s fingers would be to the ram. The CO did not see theoperation, but believed the press was hazardous based on the metal pieces he saw.According to the CO, some of the pieces he saw are shown in C-5. However, he did notindicate where the pieces appear in C-5, and I am unable to discern them with anycertainty upon viewing the photograph. The only clear evidence in regard to material usedin the press was the CO’s testimony about the 40\” x 8\” pieces that had 2\”bends in them, although he failed to indicate where the pieces were bent. Obviously, ifthe bond was made on the 8\” side, with the operator holding onto and positioning themetal, the operator’s fingers would be dangerously close to the ram. On the other hand, ifthe bend was made at the end of a 40\” piece of metal, with the operator holding ontothe other end, the possibility of injury would be remote. Based on the record, I am unableto conclude that the operation of the brake press represented a likelihood of injury. Thecitation is vacated.29 C.F.R. ? 1910.243(b)(2)Vern Bechtel saw employees using a pneumatic drill which wasfed air pressure through a hose connected to the manager told him the pressure was between85 and 90 p.s.i. The hose consisted of various sections joined by a tube secured by wirewrapped around it. He identified Exhibits C-6, C-8 and C-9 as photos he took and C-7 as adrawing he made of the hose. The hose had bulges in it, which indicated it was weakened;it was also weakened by the splices. Bechtel said either of these conditions could causethe hose to rupture, and then, because of the air pressure, whip around and strike anemployee, which would likely result in eye injury, lacerations or fractures. He knows ofcases where this has occurred. He said hoses should be designed to withstand 300 p.s.i.,and that they should be replaced when they first exhibit bulges. If they are spliced,quick disconnects or threaded air couplings that connect to the hose with teeth should beused. Although none of the splicing he saw was leaking, his opinion was that it was notacceptable, and that it was not made for the purpose of splicing hoses. (Tr. 27-35;68-71).Neil Foreman testified he had run a test on a portion of thecited hose. It was put in a soap and water mixture and subjected to up to 300 p.s.i. Thesplices held, and there were no bubbles from air leaks. (Tr. 117-18).Howard Shelton testified that all of the hose used in the plantis two-ply, 300 p.s.i. hose. There were about 5,000 feet of hose in the plant at the timeof the inspection, and the only bulges found were in the cited hose. The plant buys itssplice fittings and wire connectors from Dixon, a hose repair product manufacturer.Sta-put is the brand name of the fittings and connectors the plant buys, and they are madeto repair air hoses. Shelton described the fitting as a barbed steel insert. The hoseslides over both ends of it, and wire is pulled tight around it with a banding tube.Shelton has never seen leaks in the splices, and saw none when Foreman tested them. (Tr.130-32). Shelton said no one had ever been injured because of faultyfittings or hoses. The plant has a policy for inspecting hosing, which consists ofchecking them for leaks before each use and a weekly report foremen fill out for equipmentrepair. The plant has safety meetings in which employees are told to check hoses for leaksand how to repair them. They abide by the Policy and are subject to discipline if they donot. He had no knowledge of anyone being disciplined for not inspecting hoses. He also hadno knowledge of the bulges before the inspection. (Tr. 133-34:148).The subject standard provides as follows:Hose and hose connections used for conducting.compressed air toutilization equipment shall be designed for the pressure and service to which they aresubjected.The foregoing demonstrates the citation was issued because ofthe bulges in the hoses unacceptable splicing. Based on the record, I conclude theSecretary has not shown a violation in regard to the splicing. However, she has shown aviolation in regard to the bulges. Even though there have been no injuries because offaulty hoses, as the CO testified, the bulges indicated a weakened hose that could ruptureand cause serious injury to employees.Respondent asserts the condition occurred because of anisolated instance of employee misconduct. The Commission recognizes the defense ofunpreventable employee misconduct where the employer can show that it both established andadequately communicated work rules designed to prevent the violation. Jensen Constr.Co., 79 OSAHRC 49\/D3, 7 BNA OSHC 1477, 1479, 1979 CCH OSHD ? 23,664 (No. 76-1538,1979). Respondent did present evidence of a policy of checking hoses for leaks. However,it presented no evidence that employees were instructed to inspect hoses for bulges and toreplace them if any were found; therefore, unpreventable employee misconduct has not beenshown. The citation is affirmed, and the Secretary’s proposed penalty of $600.00 isassessed. This penalty is appropriate in light of Respondent’s size, history, good faithand the gravity of the violation.29 C.F.R. ? 1910.106(e)(2)(iv)(d)Vern Bechtel testified he observed 55-gallon drums in the shoparea. He identified Exhibit C-10 as a photo he took of one of them. Although he did nottest the drum contents, he determined they contained Chemline coolant HDC Number 396 fromeither labels on the drums or the employer’s material safety data sheets. The coolant iscombustible because it has a flash point of 102 degrees Fahrenheit. The drums hadgata-type valves, which, if left in an open position, would cause the contents to flowonto the ground. There was evidence this had occurred. Because the drums contained acombustible substance, the standard required them to have self-closing valves, whichautomatically stop the contents from flowing out when the valve is released. Bechtel saidthe condition created a fire hazard. (Tr. 36-41: 72-73).Neil Foreman and Howard Shelton testified that the drumscontained a mixture of 50 parts of water to one part of Chemline HDC-396 coolant, and thatthe mixture’s flashpoint was over 200 degrees Fahrenheit. Shelton said the mixture is usedon saw blades and drill bits. He also said the coolant is combustible before it isdiluted. (Tr. 116-17; 134-35).The subject standard provides, in pertinent part: Flammable or combustible liquids shall be drawn from ortransferred into vessels, containers, or portable tanks within a building only through aclosed piping system, from safety cans, by means of a device drawing through the top, orfrom a container or portable tanks by gravity through an approved self-closing valve.As Respondent points out, 1910.106 (a) (18) defines\”combustible liquids\” as liquids with a flashpoint at or above 100 degreesFahrenheit. The standard also divides combustible liquids into \”Class IIliquids\” (those with a flashpoint above 100 and below 140 degrees) and \”ClassIII liquids\” (those with a flashpoint above 140 degrees). Class III liquids arefurther divided into \”Class IIIA liquids\” (those with a flashpoint above 140degrees and below 200 degrees) and \”Class IIIB liquids\” (those with a flashpointabove 200 degrees). The standard does not apply to Class IIIB liquids. See 1910.106 (a)(18) (ii) (b). The CO did not test the drum contents, and both Foremen and Sheltontestified that the coolant, in the diluted form in which it was stored, had a flash pointof over 200 degrees. Since the evidence does not demonstrate the standard applied to thedrum contents, the citation is vacated.29 C.F.R. ? 1910.134(b)(10)Vern Bechtel testified he observed an employee, Gassim Sharim,wearing a dust respirator. Management told him a doctor gave employees physicals beforethey started work, but did not know if they were physically capable of wearingrespirators. The manager had the plant nurse call the doctor, who said pulmonary functiontests were not given. Bechtel said this was the ordinary test given, but did not know ifit was required to ascertain fitness for respirator use. He said employees must bemedically determined to be capable of wearing respirators because using them requires morephysical exertion in breathing and can cause respiratory distress. (Tr. 41-43; 73-76).Howard Shelton testified that a doctor with an occupationalmedical clinic in San Antonio gives employees physicals before they begin work, and thatthis practice was in effect at the time of the inspection. Employees also receive yearlyphysicals. The doctor determines if employees are fit to wear respirators and decides thepertinent health and physical conditions. Shelton did not know how the doctor determinedthis; he said the doctor could, but was not required to, administer a pulmonary functiontest. Shelton receives written reports from the doctor. (Tr. 135-36; 148-49).The subject standard provides as follows:Persons should not be assigned to tasks requiring use ofrespirators unless it has been determined that they are physically able to perform thework and use the equipment. The local physician shall determine what health andphysical conditions are pertinent. The respirator user’s medical status should bereviewed periodically (for instance, annually). (Emphasis added).Respondent notes that the Commission has addressed the subjectstandard, in General Elec. Co., 80 OSAHRC 127\/F10, 9 BNA OSHC 1185, 1980 CCH OSHD? 25,079 (No. 76-2982, 1980). In that case, the Commission found that 1910.134 (b) (10)was adopted verbatim from the source standard developed by the American National StandardsInstitute, which states that \”[t]he provisions of this standard are mandatory innature where the word ‘shall’ is used and advisory in nature where the word ‘should’ isused.\” Id. at 1186. Therefore, while the second sentence of the standard ismandatory, the first and third sentences are advisory.The citation charges as follows:Persons were assigned to tasks requiring use of respirators andit had not been determined that they were physically able to perform the work and use theequipment, and the respirator user’s medical status was not reviewed periodically (forinstance annually).The wording of the charge demonstrates Respondent was citedpursuant to the first and third sentences of the standard, however, a violation cannot bepredicated on the basis of these sentences, as they are advisory. Id. at 1184.However, even though Respondent was not cited pursuant to the second sentence, which ismandatory, the record shows that it complied with that portion of the standard. Thecitation is vacated.29 C.F.R. 1910, 134(b)(12)Vern Bechtel testified he saw Gassim Sharim, the employeewearing the dust respirator, mixing paint with a mechanical paint mixer. The respiratorwas not approved for mixing paint. He saw Sharim’s supervisor call him away and change hisrespirator to a cartridge respirator, which was approved for mixing paint. He saw anotheremployee wearing a cartridge respirator spraying paint in the same area. Bechtel talked toSharim and learned his usual job was machine operator helper; he did not usually mixpaint, but had been doing so for about 1.5 hours a week for two weeks. On the day of theinspection, he had been wearing the dust respirator for about 20 minutes. Bechtel saiddust respirators do not protect against exposure to chemicals; vapors or fumes canpenetrate them and cause respiratory irritation. (Tr. 42-46; 82-85).Bechtel identified Exhibit R-2 as a photo he took of Sharim andthe area where he was mixing paint. It was near the end of the building, which was openand had natural ventilation. Bechtel did not conduct any tests, and did not know ifSharim’s exposure was actually hazardous. He said the condition was cited as a potentialhazard because the paint contained alcohol and ethylene glycol and had an inhalationhazard rating of two; he determined this from the paint’s label and the employer’smaterial satiety data sheet. He classified the violation as nonserious because of Sharim’slimited exposure. (Tr. 45-47; 76-85).Howard Shelton testified that Sharim’s job was that of wheelabrader helper. He described the abrader as a blasting machine with a dust collector. Hesaid Trinity provides a dust respirator to anyone who wants one, and that Sharim wore oneeven though he was not exposed to dust. He said Sharim mixed point occasionally; on atypical day he would mix paint for 30 to 40 minutes. When the CO saw him, he was in theback of the paint bay, eight to ten feet from where the whole back of the building isopen. (Tr. 136-39). The subject standard provides, in pertinent part:Approved or accepted respirators shall be used when they areavailable. The respirator furnished shall provide adequate respiratory protection againstthe particular hazard for which it is designed in accordance with standards established bycompetent authorities.Respondent contends it had no obligation pursuant to thestandard because there was no evidence its employee was exposed to any hazard, actual orpotential. I disagree. The CO testified the paint was potentially hazardous because of itscontents and its inhalation hazard rating, which he determined from the label andTrinity’s material safety data sheet. Moreover, the record shows Respondent recognized thepotential hazard of exposure to the paint used. The employee spraying paint wore acartridge respirator, and Sharim’s supervisor called him away to replace his respirator.Finally, the record clearly shows there were respirators approved for mixing paintavailable at the plant. The standard requires approved respirators to be used when theyare available; accordingly, Sharim was required to use one in this instance. Even thoughthe hazard may have been lessened by Sharim’s limited exposure and the open area in whichhe worked, the record nevertheless establishes a nonserious violation. The citation isaffirmed. No penalty is assessed.[[2]]29 C.F.R. 1910.134(a)(5)(i)Vern Bechtel testified that when he talked to Gassim Sharim, helearned he had not been instructed in the proper use of the new cartridge respirator hehad received. He had \”signed\” for it, but had not been fitted for it. He did notknow how to put it on and was unable to demonstrate how to test it for proper fit. Hethought the respirator was designed to fit everyone, and that leaks could be detected byfeeling air passing between the mask and cheek. He did not know the hazards of an improperfit. Sharim said he had seen 3M training films, although Bechtel was not familiar withthem. Bechtel said Sharim had sideburns, a moustache and the beginning of a beard, but didnot know if these prevented him from getting a good seal. (Tr. 47-50; 86-89).Howard Shelton testified that plant employees are trained tofit test their respirators, and that this policy was in effect at the time of theinspection. The 3M respirator training program, which demonstrates fit testing, has beenshown at the plant once in the 2.5 years Shelton has been there. The 3M distributor visitsthe plant about once a year to demonstrate fitting techniques on a one-on-one basis withemployees and to discuss what type of respirators to use and where to use them. Plantforeman also employees in respirator use. To Shelton’s knowledge, there are no plantemployees who have not been trained in fit testing. Although there have been any newemployees in about ten years, if one were hired, he would see the 3M film and his foremanwould give him further instructions. (Tr. 125; 139-42).Shelton was present when the CO interviewed Sharim,and thoughtSharim tried to demonstrate how to fit test the respirator; it appeared Sharim knew how toperform a fit test. He said Sharim is difficult to understand because his English is notgood. Sharim had a growth, rather than a full beard; Shelton did not think it wouldprevent him from getting a good seal. (Tr. 142-43).The subject standard provides as follows:Every respirator wearer shall receive fitting instructionsincluding demonstrations and practice in how the respirator should be worn, how to adjustit, and how to determine if it fits properly. Respirators shall not be worn whenconditions prevent a good face seal. Such conditions may be a growth of beard, sideburns,a skull cap that projects under the facepiece, or temple pieces on glasses. Also, theabsence of one or both dentures can seriously affect the fit of a facepiece. The worker’sdiligence in observing these factors shall be evaluated by periodic check. To assureproper protection, the facepiece fit shall be checked by the wearer each time he puts onthe respirator. This may be done by following the manufacturer’s facepiece fittinginstructions.Respondent contends it did not violate the standard because ofthe training it provided employees.\u00a0 However, it also demonstrates that Sharim didnot receive fitting instructions when he received the new respirator and that he did notknow how to properly fit test it.\u00a0 [[3]] That he was unable to do so, and that heshowed a general lack of knowledge of proper respiratory use, indicate Respondent’straining was deficient. Shelton implied the CO may have misunderstood Sharim.\u00a0However, the CO’s testimony evidenced no misunderstanding; to the contrary, his statementsabout what Sharim told him were unequivocal.\u00a0 The evidence demonstrates Sharim didnot receive adequate instruction in proper respirator use, and the 1910.134 (b)(11)discussion, supra, demonstrates the hazards of the condition.\u00a0 Respondent’s otherarguments need not be addressed, since the record clearly established a nonseriousviolation.\u00a0 The citation is affirmed. No penalty is assessed.[[4]]29 C.F.R. ? 1910.178(1)Vern Bechtel testified he learned the plant had five forklifttrucks which employees used. Management told him designated operators received on-the-jobtraining, but gave no explanation of the training. Bechtel said OSHA feels formal trainingis required because of the high incidence of accidents involving industrial trucks. Formaltraining addresses the safety aspects and handling characteristics of forklifts andincludes slides, films, workbooks, eye exams, testing and certification upon coursecompletion. He said on-the-job training would be acceptable if it provided the essentialinformation formal training would give an employee demonstrated knowledge of thatinformation. (Tr. 50-54, ).Howard Shelton testified that all of the plant’s operators have15 to 30 years of experience, and that operators have been hired for 15 to 20 years. Hesaid there were ten or eleven designated operators at the time of the inspection. He hasobserved their driving and believes they are proficient in forklift operation. Althoughthe plant has conducted no training in the 2.5 years he has been there, the maintenanceforeman is designated to conduct on-the-job training. If a new employee were hired tooperate a forklift, he would be tested on it to determine if he was capable of performingthe job. (Tr. 125; 143-45; 150).The subject standard provides as follows:Only trained and authorized operators shall be permitted tooperate a powered industrial truck. Methods shall be devised to train operators in thesafe operation of powered industrial trucks.While not specifying formal training, the second sentence of the standard, as I read it:requires operators to have ongoing training in regard to the safe operation of industrialtrucks. Respondent asserts the record shows it has an extensive training program. Therecord, in fact, demonstrates no evidence of a training program, and no evidence theplant’s operators have had any training. Shelton himself admitted none has been given inthe 2.5 years he has been at the facility. Moreover, even though the evidence shows theoperators have a number of years of experience, experience does not satisfy the standard,which explicitly requires training. A nonserious violation is established, and thecitation is affirmed. No penalty is assessed.[[5]]Conclusions of Law1.\u00a0 Respondent, Trinity Industries, Inc., is engaged in abusiness affecting commerce and has employees within the meaning of ? 3 (5) of the Act.The Commission has jurisdiction of the parties and of the subject matter of theproceeding.2.\u00a0 On April 4, 1989, Respondent was not in violation of29 C.F.R. if ?? 1910.280(b)(2), 1.920.180(c)(2), 1910.212(a)(7)(ii),1910.106(e)(2)(iv)(d) and 1910.134(b)(10).3. On April 4, 1989, Respondent was in serious violation of 29C.F.R. ? 1910.243(b)(2).4. On April 4, 1989, Respondent was in nonserious violation of29 C.F.R. ?? 1910.134(b) (11), 1910.134(e) (5) (i) and 1910.178(1). OrderOn the basis of the foregoing Findings of Fact and Conclusionsof Law, it is ORDERED that:1. Items 1, 2 and 3 of serious citation number 1 are VACATED.2. Item 4 of serious citation number 1 is AFFIRMED, and apenalty of $600.00 is assessed.3. Items 1 and 2 of \”other\” citation number 2 areVACATED. 4. Items 3, 4 and 5 of \”other\” citation number 2 areAFFIRMED, and no penalties are assessed.Louis G. LaVecchiaAdministrative Law JudgeDATE: February 27, 1991FOOTNOTES:[[1]] By our order dated January 17, 1992, we acknowledgedreceipt of the Secretary’s withdrawal of the other three items that had been directed forreview. [[2]] The standard provides:? 1910.178 Powered industrial trucks…..(1) Operator training. Only trained and authorized operatorsshall be permitted to operate a powered industrial truck. Methods shall be devised totrain operators in the safe operation of powered industrial trucks.[[3]] Most of the compliance officer’s testimony concerned hisviews on what sort of program the standard requires. Acknowledging that it was a\”judgement call\” as to which elements should be included, he supported provisionof ongoing, formal training for forklift operators in light of the generally highincidence of industrial truck accidents. He noted that some industrial truck manufacturershave developed formal training programs that address the safety aspects and handlingcharacteristics of forklifts and include slides, films, workbooks, eye exams, and tests.The Secretary cites no Commission or court decision on the cited standard that adoptsthese views. Moreover, as noted above, the Secretary acknowledged in her brief that therequirements of the standard can be satisfied, albeit minimally, by instructions inrecognition and avoidance of unsafe conditions. Therefore, instead of such lengthytestimony on what the compliance officer considered to be an ideal program, one thatclearly exceeds the minimal instructions that the Secretary acknowledges are required, theSecretary could have, for example, questioned Shelton on cross-examination as to exactlywhat he meant when he testified on direct examination that Trinity’s operators had been\”trained.\”[[4]]We therefore need not reach Trinity’s argument that thestandard is unenforceably vague.\u00a0[[1]] Although Foreman and Shelton said there were two charts,the one on the clipboard, as they described it, would not satisfy the standardrequirements.[[2]] No penalty was proposed for this citation item.[[3]] The CO’s testimony is credited over that of Shelton onthis point, since Shelton’s statement, that he \”thought\” Sharim tried todemonstrate a fit test, indicates he did not clearly recall what he saw.[[4]] No penalty was proposed for this citation item.[[5]]No penalty was proposed for this citation item.”