“Docket No. 79-1569 SECRETARY OF LABOR,Complainant,v.VAK-PAK, INC.,Respondent.OSHRC Docket No. 79-1569DECISION 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor (\”the Secretary\”) underthe Act and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29U.S.C. ? 659(c).The decision of an administrative law judge of the Commission was directedfor review to consider whether the judge erred in concluding that Respondent, Vak-Pak,Inc. (\”Vak-Pak\”), was a \”business affecting commerce\” under section3(5) of the Act, 29 U.S.C. ? 652(5).\u00a0 For the reasons that follow, we conclude thatthe Secretary failed to prove that Vak-Pak was a business affecting commerce and vacatethe citations issued in this case.[[1]]Vak-Pak manufactures water filtration equipment for swimming pools at itsfacility in Jacksonville, Florida.\u00a0 It has eleven employees.\u00a0 In its answer tothe Secretary’s complaint, Vak-Pak denied that it was a business affecting commerce withinthe meaning of the Act.\u00a0 At the hearing, Vak-Pak’s president testified that thecompany was not covered by the Act because it did not \”deal\” in interstatecommerce.The industrial hygienist (\”IH\”) who conducted the inspection forthe Secretary obtained information with respect to interstate commerce at the openingconference, which she wrote on an OSHA form.\u00a0 However, the IH was unable to recallthe information at the hearing, and the form was not introduced into evidence.\u00a0 Whenasked whether she was told by the plant manager that the company ordered some chemicalsthat were manufactured in California, the IH answered, \”I think there was, yes.\”Vak-Pak’s president testified about the company’s suppliers and its use ofcertain materials and equipment.\u00a0 He stated that the company used methyl ethyl ketoneperoxide, polyester resins, and acetone.\u00a0 The president also said that Vak-Pak usedstationary and paper clips and that Vak-Pak executives made long distance telephone calls.\u00a0Vak-Pak correctly notes that he did not testify that these calls were out of state.\u00a0 In response to questions by the Secretary’s attorney, Vak-Pak’s president testifiedthat its supplier, Dynamic Sales, was located in Florida and that he did not know wherethat company got its supplies.\u00a0 He also testified that he was aware of RolochemCorporation and that it might be located in California.\u00a0 No connection betweenRolochem and Dynamic Sales was established on the record, although one may exist.[[2]]\u00a0The president further stated that the filtration equipment manufactured by Vak-Pakwas shipped by trucks owned by Vak-PaK; the manufacturer 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 stated that he had calledMorris Chemical Company, \”the ones that supply me with my chemicals,\” to obtaininformation on styrene vapors.\u00a0 Morris Chemical, described as reluctant to give thisinformation, was not identified.\u00a0 The president went on to say that:\u00a0 \”Idid get enough information 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 by respondent at itsmanufacturing facility clearly results in the business affecting commerce within themeaning of the Act.\” Vak-Pak argues that the judge’s finding was in error, sincethere was no proof that it shipped any products out of state, purchased products fromoutside Florida, or used products manufactured outside Florida.\u00a0 The Secretarycontends that the judge’s finding on the commerce issue is supported by the evidence.\u00a0 The Secretary relies upon Vak-Pak’s use of various materials and chemicals in itsoperations, its use of trucks to ship its finished product, and testimony by the IH and byVak-Pak’s president which, in the Secretary’s view, establishes that some chemicals usedby Vak-Pak more likely than not were manufactured outside Florida.\u00a0 The Secretaryalso argues that Vak-Pak is \”in a class of employers, i.e.,manufacturers,\” whose activities affect interstate commerce. Further, the Secretaryrequests that the Commission take judicial notice that one of Vak-Pak’s suppliers, 3-M, isengaged in the production and distribution of goods for commerce.We vacate the citation because the Secretary failed to establish that Vak-Pakwas \”engaged in a business affecting commerce . . . . \” See 29 U.S.C. ?652(5).[[3]]\u00a0 To establish that an employer was engaged in a business affectinginterstate commerce, the Secretary must present evidence of activities which eitherdirectly or indirectly have an effect on interstate commerce.\u00a0 See AustinRoad Co. v. OSHRC, 683 F.2d 905 (5th Cir. 1982)(\”Austin Road\”).\u00a0In this case, the Secretary failed to present such evidence.The Secretary attempted to demonstrate that Vak-Pak’s purchases of certain goods affectedinterstate commerce.\u00a0 At a minimum, therefore, the Secretary must show that the goodswere purchased out of state or manufactured out of state.\u00a0 See e.g., AvalotisPainting Co., 81 OSAHRC 7\/B1, 9 BNA OSHC 1226, 1227, 1981 CCH OSHD ? 25,157, p.31,056 (No. 76-4774, 1981).\u00a0 Here, however, the Secretary did not establish thatVak-Pak purchased goods from out of state or that it purchased goods from within the statethat 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 to establish aneffect upon interstate commerce.\u00a0 Although the IH stated that she was told thatVak-Pak used chemicals manufactured in California, this testimony was qualified by thewords \”I think.\”\u00a0 The President’s testimony indicates that Vak-Pak boughtsupplies from a Florida distributor that may in turn have been supplied by RolochemCorporation and that Vak-Pak’s president \”thinks\” that Rolochem is located inCalifornia.\u00a0 This testimony is not definite enough to establish that these purchasesaffected interstate commerce.\u00a0 We note that testimony of this sort is precisely thetype of evidence that the Fifth Circuit found insufficient in Austin Road, supra.\u00a0 In that case, testimony by the compliance officer that Austin used \”a BucyrusErie hydraulic boom crane which he believed was made in Bucyrus, Michigan\” washeld to be inadequate to establish the Secretary’s case.\u00a0 683 F.2d at 907.We also decline to find an effect upon commerce based upon judicial noticethat one of Vak-Pak’s supplier’s, \”3-M,\” is Minnesota, Mining &Manufacturing Company, which is incorporated in Minnesota.\u00a0 This \”fact\”does not satisfy the Secretary’s burden.\u00a0 On this record we do not know what it isthat Vak-Pak purchased from 3-M, where it was purchased or where it was manufactured. TheSecretary has simply not adduced sufficient evidence to determine whether Vak-Pak issubject to the jurisdiction of the Act. See Austin Road, supra.While Vak-Pak is a manufacturer of water filtration equipment for swimming pools, therewas no evidence that such business is interstate in nature or affects interstatecommerce.[[4]]\u00a0 For a specialized industry such as manufacturing water filtrationequipment, we find it inappropriate to take judicial notice of an effect upon interstatecommerce.\u00a0 See, e.g., Austin Road, 683 F.2d at 908; Wirtz v.Miss Hollywood, Inc., 370 F.2d 326 (5th Cir. 1967)(court did not take judicial noticeof the interstate nature of Miami, Florida clothing business).\u00a0 We also conclude thatthe Commission’s decision in Clarence M. Jones, supra (company engaged inconstruction is in a class of activity engaged in interstate commerce), should not beextended to reach operations such as Vak-Pak’s. Further, we do not accept the Secretary’sinvitation to declare that all employers engaged in manufacturing, regardless of thenature of the business, affect commerce and hence are covered under the Act, since we havebeen presented with no 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:\u00a0 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 or that itpurchased goods from within the state that were manufactured outside the state.\”\u00a0 I therefore disagree with the conclusion that VAK-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 business purchasesproducts and supplies that have been manufactured out-of-state.\u00a0 Avalotis PaintingCo., 81 OSAHRC 7\/B1, 9 BNA OSHC 1226, 1227, 1981 CCH OSHD ? 25,157, p. 31,056 (No.76-4774, 1981).\u00a0 The record in this case amply demonstrates that VAK-PAK madepurchases of supplies and materials from out-of-state sources.\u00a0 The industrialhygienist who conducted the inspection testified that she was told at the pre-hearingconference by a VAK-PAK representative that the company purchased chemical supplies from aCalifornia-based company named Rolochem. This testimony was directly corroborated byVAK-PAK’s president at the hearing.\u00a0 The president also stated that VAK-PAK had madepurchases \”en masse\” from the 3M Company.The majority, however, disagrees that this evidence establishes that VAK-PAKuses products that have moved in Interstate commerce.\u00a0 The majority finds that thetestimony concerning VAK-PAK purchases from Rolochem \”is not definite enough . . ..\” The majority reasons that this testimony is of the sort found insufficient toestablish commerce coverage in Austin Road Co. v. OSHRC, 638 F.2d 905 (5thCir. 1982).\u00a0 However, that case involved the sufficiency of an administrative lawjudge’s findings, and not, as here, the sufficiency of the factual record itself. \u00a0The Austin Road court itself recognized this important distinction: \u00a0\”[T]he accepted factual findings provide the basis for review:\u00a0 we need notglean the evidence, but look only to the administrative findings of fact.\” \u00a0 683F.2d at 90 (footnote omitted).\u00a0 Because the administrative law judge found that thecompliance officer inspecting Austin Road’s job site testified \”inconclusively\”about the Bucyrus Erie crane, it is hardly surprising that the Fifth Circuit chose not todisturb that finding on review.\u00a0 The majority’s reliance on Austin Road istherefore somewhat misplaced.\u00a0 In my view the testimony establishes by apreponderance of the evidence that VAK-PAK purchased chemical supplies from a Californiacompany. The fact that the witnesses used the terms \”I think\” or \”Ibelieve\” does not sufficiently weaken their testimony.\u00a0 It remains that twowitnesses corroborated the fact that one of VAK-PAK’s suppliers is based inCalifornia.\u00a0 Such evidence establishes commerce coverage under the Act.\u00a0 SeeAvalotis Painting, supra.I would also take official notice that the 3M Company, one of VAK-PAK’ssuppliers, is engaged in interstate commerce.\u00a0 It is no answer to say, as themajority does, that \”[w]e do not know what it is that VAK-PAK purchased from 3M,where it was purchased or where it was manufactured.\”\u00a0 The question is whetherit is subject to reasonable dispute that VAK-PAK’s president was referring to theMinnesota Mining & Manufacturing Company.\u00a0 See Fed.R.Evid. 201(b). \u00a0In my view it is not, and I note in this regard that the Supreme Court itself has recentlyseen fit to refer to this corporation solely as \”the 3M Company.\”\u00a0 SeeUnited States v. Knotts, 103 S.Ct. 1081, 1083 (1983).\u00a0 I also note that theNinth Circuit has taken judicial notice of the fact that Weyerhauser and Sears Roebuck areengaged in the production and distribution of goods for commerce, based on testimony thata company used materials and tools manufactured by Weyerhauser and Craftsman (SearsRoebuck).\u00a0 Usery v. Franklin R. Lacy, 628 F.2d 1226, 1229 n.3 (9th Cir.1980).\u00a0 Accordingly, I would take official notice that the 3M Company is engaged inthe production and distribution of goods for commerce and is a supplier of VAK-PAK.\u00a0On this basis, I also find that VAK-PAK’s activities affected interstate commerce.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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) and 1910.134(a)(2) should bevacated on the ground that the Secretary’s sample analyses were erroneously admitted intoevidence and accorded probative weight.\u00a0 Because vacate the citations on the commerceissue, we do not reach the issue regarding the admissibility and sufficiency of theevidence.[[2]] Vak-Pak’s president’s testimony on this point is ambiguous, at best:Q.\u00a0 They [Rolochem] are not located anywhere in Florida, are they? A.\u00a0 Yes, sir.Q.\u00a0 They have a supplier in Florida, is that what it is?A.\u00a0 The people we buy that from is Dynamic Sales in Orlando, Florida. Q.\u00a0 But, they have to get it from the folks in Anaheim, is it, oris it Santa Ana?A.\u00a0 I don’t know where they get it from.[[3]] Congress declared as its purpose and policy in passing the Act that theSecretary of Labor be authorized \”to set mandatory occupational safety and healthstandards applicable to businesses affecting interstate commerce . . . . 29 U.S.C.? 651(b)(3) (emphasis added).\u00a0 See also 29 U.S.C. ? 652(5) (Congressdefined \”employer\” as a \”person engaged in a business affectingcommerce\”).\u00a0 Congress intended, therefore, to have the Act cover only thosebusinesses which affect interstate commerce, not all businesses that have employees whomay be subject to injury.[[4]] This case is different from Godwin v. OSHRC, supra, thecase relied upon by the judge.\u00a0 In that case there was evidence that the citedactivity, the clearing of land for the purpose of growing grapes, was an integral part ofthe interstate business of wine manufacturing.\u00a0 There was no similar evidenceproduced in this case.”