“SECRETARY OF LABOR,Complainant,v.VAK-PAK, INC.,Respondent.OSHRC Docket No. 79-1569_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor (\”the Secretary\”) under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).The decision of an administrative law judge of the Commission wasdirected for review to consider whether the judge erred in concludingthat Respondent, Vak-Pak, Inc. (\”Vak-Pak\”), was a \”business affectingcommerce\” under section 3(5) of the Act, 29 U.S.C. ? 652(5). For thereasons that follow, we conclude that the Secretary failed to prove thatVak-Pak was a business affecting commerce and vacate the citationsissued in this case.[[1]]Vak-Pak manufactures water filtration equipment for swimming pools atits facility in Jacksonville, Florida. It has eleven employees. In itsanswer to the Secretary’s complaint, Vak-Pak denied that it was abusiness affecting commerce within the meaning of the Act. At thehearing, Vak-Pak’s president testified that the company was not coveredby the Act because it did not \”deal\” in interstate commerce.The industrial hygienist (\”IH\”) who conducted the inspection for theSecretary obtained information with respect to interstate commerce atthe opening conference, which she wrote on an OSHA form. However, theIH was unable to recall the information at the hearing, and the form wasnot introduced into evidence. When asked whether she was told by theplant manager that the company ordered some chemicals that weremanufactured in California, the IH answered, \”I think there was, yes.\”Vak-Pak’s president testified about the company’s suppliers and its useof certain materials and equipment. He stated that the company usedmethyl ethyl ketone peroxide, polyester resins, and acetone. Thepresident also said that Vak-Pak used stationary and paper clips andthat Vak-Pak executives made long distance telephone calls. Vak-Pakcorrectly notes that he did not testify that these calls were out ofstate. In response to questions by the Secretary’s attorney, Vak-Pak’spresident testified that its supplier, Dynamic Sales, was located inFlorida and that he did not know where that company got its supplies. He also testified that he was aware of Rolochem Corporation and that itmight be located in California. No connection between Rolochem andDynamic Sales was established on the record, although one mayexist.[[2]] The president further stated that the filtration equipmentmanufactured by Vak-Pak was shipped by trucks owned by Vak-PaK; themanufacturer of the trucks was not mentioned.In addition, in response to a question unrelated to the commerce clauseissue, concerning monitoring for styrene, Vak-Pak’s president statedthat he had called Morris Chemical Company, \”the ones that supply mewith my chemicals,\” to obtain information on styrene vapors. MorrisChemical, described as reluctant to give this information, was notidentified. The president went on to say that: \”I did get enoughinformation to find that 3-M, which we had been buying en masse from hasfacilities to test the equipment.\”The judge, citing _Godwin v. OSHRC_, 540 F.2d 1013 (9th Cir. 1976),concluded that \”[t]he types of materials and equipment used byrespondent at its manufacturing facility clearly results in the businessaffecting commerce within the meaning of the Act.\” Vak-Pak argues thatthe judge’s finding was in error, since there was no proof that itshipped any products out of state, purchased products from outsideFlorida, or used products manufactured outside Florida. The Secretarycontends that the judge’s finding on the commerce issue is supported bythe evidence. The Secretary relies upon Vak-Pak’s use of variousmaterials and chemicals in its operations, its use of trucks to ship itsfinished product, and testimony by the IH and by Vak-Pak’s presidentwhich, in the Secretary’s view, establishes that some chemicals used byVak-Pak more likely than not were manufactured outside Florida. TheSecretary also argues that Vak-Pak is \”in a class of employers, _i.e_.,manufacturers,\” whose activities affect interstate commerce. Further,the Secretary requests that the Commission take judicial notice that oneof Vak-Pak’s suppliers, 3-M, is engaged in the production anddistribution of goods for commerce.We vacate the citation because the Secretary failed to establish thatVak-Pak was \”engaged in a business affecting commerce . . . . \” See 29U.S.C. ? 652(5).[[3]] To establish that an employer was engaged in abusiness affecting interstate commerce, the Secretary must presentevidence of activities which either directly or indirectly have aneffect on interstate commerce. _See_ _Austin Road Co. v._ _OSHRC_, 683F.2d 905 (5th Cir. 1982)(\”Austin Road\”). In this case, the Secretaryfailed to present such evidence.The Secretary attempted to demonstrate that Vak-Pak’s purchases ofcertain goods affected interstate commerce. At a minimum, therefore,the Secretary must show that the goods were purchased out of state ormanufactured out of state. _See_ _e.g_., _Avalotis_ _Painting Co._, 81OSAHRC 7\/B1, 9 BNA OSHC 1226, 1227, 1981 CCH OSHD ? 25,157, p. 31,056(No. 76-4774, 1981). Here, however, the Secretary did not establishthat Vak-Pak purchased goods from out of state or that it purchasedgoods from within the state that were manufactured outside the state.We do not find that testimony by the industrial hygienist or Vak-Pak’spresident concerning the sources of Vak-Pak’s supplies is sufficient toestablish an effect upon interstate commerce. Although the IH statedthat she was told that Vak-Pak used chemicals manufactured inCalifornia, this testimony was qualified by the words \”I think.\” ThePresident’s testimony indicates that Vak-Pak bought supplies from aFlorida distributor that may in turn have been supplied by RolochemCorporation and that Vak-Pak’s president \”thinks\” that Rolochem islocated in California. This testimony is not definite enough toestablish that these purchases affected interstate commerce. We notethat testimony of this sort is precisely the type of evidence that theFifth Circuit found insufficient in _Austin Road_, _supra_. In thatcase, testimony by the compliance officer that Austin used \”a BucyrusErie hydraulic boom crane which he _believed_ was made in Bucyrus,Michigan\” was held to be inadequate to establish the Secretary’s case. 683 F.2d at 907.We also decline to find an effect upon commerce based upon judicialnotice that one of Vak-Pak’s supplier’s, \”3-M,\” is Minnesota, Mining &Manufacturing Company, which is incorporated in Minnesota. This \”fact\”does not satisfy the Secretary’s burden. On this record we do not knowwhat it is that Vak-Pak purchased from 3-M, where it was purchased orwhere it was manufactured. The Secretary has simply not adducedsufficient evidence to determine whether Vak-Pak is subject to thejurisdiction of the Act. _See_ _Austin Road_, _supra_.While Vak-Pak is a manufacturer of water filtration equipment forswimming pools, there was no evidence that such business is interstatein nature or affects interstate commerce.[[4]] For a specializedindustry such as manufacturing water filtration equipment, we find itinappropriate to take judicial notice of an effect upon interstatecommerce. _See_, _e.g._, _Austin Road_, 683 F.2d at 908; _Wirtz v. MissHollywood, Inc_., 370 F.2d 326 (5th Cir. 1967)(court did not takejudicial notice of the interstate nature of Miami, Florida clothingbusiness). We also conclude that the Commission’s decision in _ClarenceM. Jones_, _supra_ (company engaged in construction is in a class ofactivity engaged in interstate commerce), should not be extended toreach operations such as Vak-Pak’s. Further, we do not accept theSecretary’s invitation to declare that all employers engaged inmanufacturing, regardless of the nature of the business, affect commerceand hence are covered under the Act, since we have been presented withno authority which shows that such a conclusion is appropriate.Accordingly, the citations in this case are vacated.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUL 20 1984CLEARY, Commissioner, dissenting:I disagree with the majority’s finding that the evidence in this case\”does not establish that VAK-PAK purchased goods from out of state orthat it purchased goods from within the state that were manufacturedoutside the state.\” I therefore disagree with the conclusion thatVAK-PAK was not shown to be \”engaged in a business affecting commerce .. . . \” 29 U.S.C. ? 652(5). Accordingly, I dissent.Case law holds that commerce coverage is established if a businesspurchases products and supplies that have been manufacturedout-of-state. _Avalotis Painting Co_., 81 OSAHRC 7\/B1, 9 BNA OSHC 1226,1227, 1981 CCH OSHD ? 25,157, p. 31,056 (No. 76-4774, 1981). The recordin this case amply demonstrates that VAK-PAK made purchases of suppliesand materials from out-of-state sources. The industrial hygienist whoconducted the inspection testified that she was told at the pre-hearingconference by a VAK-PAK representative that the company purchasedchemical supplies from a California-based company named Rolochem. Thistestimony was directly corroborated by VAK-PAK’s president at thehearing. The president also stated that VAK-PAK had made purchases \”enmasse\” from the 3M Company.The majority, however, disagrees that this evidence establishes thatVAK-PAK uses products that have moved in Interstate commerce. Themajority finds that the testimony concerning VAK-PAK purchases fromRolochem \”is not definite enough . . . .\” The majority reasons that thistestimony is of the sort found insufficient to establish commercecoverage in _Austin Road Co. v_. _OSHRC_, 638 F.2d 905 (5th Cir. 1982). However, that case involved the sufficiency of an administrative lawjudge’s findings, and not, as here, the sufficiency of the factualrecord itself. The _Austin Road_ court itself recognized thisimportant distinction: \”[T]he accepted factual findings provide thebasis for review: we need not glean the evidence, but look only to theadministrative findings of fact.\” 683 F.2d at 90 (footnote omitted). Because the administrative law judge found that the compliance officerinspecting Austin Road’s job site testified \”inconclusively\” about theBucyrus Erie crane, it is hardly surprising that the Fifth Circuit chosenot to disturb that finding on review. The majority’s reliance on_Austin Road_ is therefore somewhat misplaced. In my view the testimonyestablishes by a preponderance of the evidence that VAK-PAK purchasedchemical supplies from a California company. The fact that the witnessesused the terms \”I think\” or \”I believe\” does not sufficiently weakentheir testimony. It remains that two witnesses corroborated the factthat one of VAK-PAK’s suppliers is based in California. Such evidenceestablishes commerce coverage under the Act. _See_ _Avalotis Painting_,_supra_.I would also take official notice that the 3M Company, one of VAK-PAK’ssuppliers, is engaged in interstate commerce. It is no answer to say,as the majority does, that \”[w]e do not know what it is that VAK-PAKpurchased from 3M, where it was purchased or where it wasmanufactured.\” The question is whether it is subject to reasonabledispute that VAK-PAK’s president was referring to the Minnesota Mining &Manufacturing Company. _See_ Fed.R.Evid. 201(b). In my view it isnot, and I note in this regard that the Supreme Court itself hasrecently seen fit to refer to this corporation solely as \”the 3MCompany.\” _See_ _United States v. Knotts_, 103 S.Ct. 1081, 1083(1983). I also note that the Ninth Circuit has taken judicial notice ofthe fact that Weyerhauser and Sears Roebuck are engaged in theproduction and distribution of goods for commerce, based on testimonythat a company used materials and tools manufactured by Weyerhauser andCraftsman (Sears Roebuck). _Usery v. Franklin R. Lacy_, 628 F.2d 1226,1229 n.3 (9th Cir. 1980). Accordingly, I would take official noticethat the 3M Company is engaged in the production and distribution ofgoods for commerce and is a supplier of VAK-PAK. On this basis, I alsofind that VAK-PAK’s activities affected interstate commerce.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ) telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] This case was also directed for review to consider whether allegedviolations of 29 C.F.R. ?? 1910.1000(b)(1), 1910.1000(e) and1910.134(a)(2) should be vacated on the ground that the Secretary’ssample analyses were erroneously admitted into evidence and accordedprobative weight. Because vacate the citations on the commerce issue,we do not reach the issue regarding the admissibility and sufficiency ofthe evidence.[[2]] Vak-Pak’s president’s testimony on this point is ambiguous, at best:Q. They [Rolochem] are not located anywhere in Florida, are they?A. Yes, sir.Q. They have a supplier in Florida, is that what it is?A. The people we buy that from is Dynamic Sales in Orlando, Florida.Q. But, they have to get it from the folks in Anaheim, is it, oris it Santa Ana?A. I don’t know where they get it from.[[3]] Congress declared as its purpose and policy in passing the Actthat the Secretary of Labor be authorized \”to set mandatory occupationalsafety and health standards _applicable to businesses affectinginterstate commerce_ . . . . 29 U.S.C. ? 651(b)(3) (emphasis added). _See_ _also_ 29 U.S.C. ? 652(5) (Congress defined \”employer\” as a\”person engaged in a business affecting commerce\”). Congress intended,therefore, to have the Act cover only those businesses which affectinterstate commerce, not all businesses that have employees who may besubject to injury.[[4]] This case is different from _Godwin v. OSHRC_, _supra_, the caserelied upon by the judge. In that case there was evidence that thecited activity, the clearing of land for the purpose of growing grapes,was an integral part of the interstate business of wine manufacturing. There was no similar evidence produced in this case.”