SECRETARY OF LABOR,
Complainant,

v.

GENERAL MOTORS CORPORATION,
ARLINGTON PLANT,
Respondent

OSHRC Docket No. 85-1082

ORDER

The Commission approves the Parties' settlement agreement as to item 1 of the citation. The judge's decision becomes the final order of the Commission as to item 2 of the citation.


FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary


Dated: APR 27, 1987






SECRETARY OF LABOR,
Complainant,

v.

GENERAL MOTORS CORP.,
ARLINGTON PLANT,
Respondent.

OSHRC DOCKET NO. 85-1082

DECISION AND ORDER

Appearances:
James J. Manzanares, Esq., of Dallas, for the complainant.
Jaimie R. Goodman, Esq., of Detroit, Michigan, for the respondent.

PROCEDURAL HISTORY

BLYTHE, Judge:

This is a case arising under the Access to Employee Exposure and Medical Records standard, 29 C.F.R. 1910.20, and involves one citation containing two nonserious items issued August 27, 1985, to the respondent, General Motors Corp., Arlington Plant ("GM"), after an inspection August 19, 1985, by an industrial hygienist of the Occupational Safety and Health Administration ("OSHA") as the result of an employee complaint. GM filed notice of contest by letter dated September 23, 1985, thus invoking the jurisdiction of the Occupational Safety and Health Review Commission ("the Commissioner") under § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651-678 ("the Act"). Subsequently the Secretary of Labor ("the Secretary") filed a formal complaint, and GM filed an answer thereto.

This case came on regularly for hearing January 23, 1986, in Dallas, Texas. Both parties filed post-hearing briefs.

DISCUSSION AND OPINION

1. The alleged violation of 29 C.F.R. 1910.20(g)(1)(iii)

Item 1 of citation 1 alleges a nonserious violation of 29 C.F.R. 1910.20(g)(1)(iii), as follows:

29 C.F.R. 1910.20(g)(1)(iii): Employee(s) exposed to toxic substances or harmful physical agents were not informed of their rights to access to records pertaining to such exposure:

(a) Employees working in tool crib area near column PG were exposed to KSGM degreaser (95% Trichloroethylene) were not informed of their rights to records pertaining to exposure.

Section 1910.20(g)(1) provides:

(g) Employee Information

(1) Upon an employee's first entering into employment, and at least annually thereafter, each employer shall inform employees exposed to toxic substances or harmful physical agents of the following:

(i) The existence, location, and availability of any records covered by this section;

(ii) the person responsible for maintaining and providing access to records; and

(iii) each employee's right', of access to these records.

Although GM is alleged to have violated only §1910.2(g)(1)(iii),  it is necessary to consider subparagraphs (i) and (ii) to see what "these records" in subparagraph (iii) means.

Although subparagraph (i) makes "these records" mean "any record covered by this section" the citation itself narrows the scope of inquiry to employee exposure records. Under §1919.20(c)(5),

"Employee exposure record" means a record containing any of the following kinds of information concerning employee exposure to toxic substances or harmful physical agents.

(i) environmental (workplace) monitoring or measuring, including personal, area, grab, wipe, or other form of sampling as well as related collection and analytical methodologies, calculations, and other background data relevant to interpretation of the results obtained:

(ii) biological monitoring results which directly assess the absorption of a substance or agent by body systems (e.g. the level of chemical in the blood, urine, breath, hair, fingernails, etc.) but not including results which assess the biological effect of a substance or agent;

(iii) material safety data sheets; or

(iv) in the absence of the above, any other record which reveals the identity (e.g., chemical, common, or trade name) of a toxic substance or harmful physical agent.

The Secretary in his brief contends that GM's employees were not informed of their right to access to: [a] material safety data sheets; [b] "data related to monitoring of the environment in which they work;" [c] "records that reveal the identity of the substance that was used;" [d] "any medical records the company may have on them." With regard to the last named, the citation does not cover medical records, so testimony regarding them will be disregarded. The other three categories come within the definition of "employee exposure record," but under that definition (ii) satisfies the requirement of (iii) if material safety data sheets are available, as they were here.

"KSGM," the degreaser identified in the citation as the "toxic substance or harmful physical agent" here involved, is the trade name of a solvent used by GM to clean parts of welding guns during maintenance. The manufacturer's material safety data sheet (Exhibit R-1) lists the contents as 9S percent 1,1,1- trichloroethane (methyl chloroform and 5 percent 1,1,2-trichloroethane and 1,2,2- trifluoroethane.

The citation erroneously lists "trichloroethylene" (a more toxic substance than 1,1,1-- trichloroethane) as the primary ingredient of KSGM. The OSHA industrial hygienist, Luis ViIlanueva, testified that he was so informed by GM representatives during the inspection (which they denied), and that he had requested, but had not been supplied, the material safety data sheet for KSGM (also denied by GM's witnesses). In any event, this error was called to the attention of OSHA's area director, James Knorpp,during an informal conference after the citation was issued (Tr. 57). Yet the Secretary did not move to amend the citation and complaint until after the hearing. GM opposes this motion. It also objects under Rule 408, F . R . E., to consideration of testimony arising from the informal conference on the ground that the informal conference involved settlement negotiations.

Rule 408, made applicable by Commission Rule 72, 29 C.F.R. 2200.72, provides, in pertinent part

... This rule does not require the exclusion of any evident otherwise discoverable merely because- it. is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

The correct identity of the chemical was "otherwise discoverable" and was offered for "another purpose" than the purported settlement offer, so the objection under Rule 408 is overruled.

It is apparent that GM knew from the outset that the primary chemical in KSGM was misnamed and that no prejudice will result if, as the Secretary belatedly requests, the citation and complaint are amended to conform to the evidence under Rule 15(b), F.R.Civ.2., made applicable by Commission Rule 2(b), 29 C.F.R. 2200.2(b). The motion is granted.

The next question is whether the chemicals in KSGM are "toxic substances or harmful physical agents." As defined in § 1910.20(c)(ii),

"Toxic substance or harmful physical agent" means any chemical substance, biological agent (bacteria, virus, fungus, etc.), or physical stress (noise, heat, cold, vibration. repetitive motion, ionizing and non-ionizing radiation, hypo- or hyperbaric pressure, etc.) which:

(i) is regulated by any Federal law or rule due to a hazard to health,

(ii) is listed in the latest printed edition of the National Institute for Occupational Safety and Health (NIOSH) Registry of Toxic Effects of Chemical Substances (RTECS) (See Appendix B),

(iii) has yielded positive evidence of an acute or chronic health hazarded in human, animal or other biological testing conducted by, or known to, the employer, or

(iv) has a material safety data sheet available to the employer indicating that the material may pose a hazard to human health.

Both 1,1,1-and 1,1,2-trichloroethanes are listed in the NIOSH Registry (Exhibit C-1), but GM contends that that is not dispositive of the matter and that the Secretary must prove that KSGM is a harmful substance in the manner in which it was used and that employees were exposed to it.

GM points out that its employees were required to wear protective gloves and glasses when cleaning parts in the degreaser, that the vat is covered when not in use, and that there is no evidence that the permissible exposure limits ("PEL") for these chemicals was exceeded.

Under Table Z-1 of 29 C.F.R. 1910.1000, the PEL (8-hour time weighted average) for 1,1,1-trichloroethane is 350 p.p.m., and for 1,1,2-trichoroethane and 1,2,2-trifluoroethane is 1,000 p.p.m. GM tested the environment around the before the citation was issued and found the level of 1,1,1-trichoroethane far below the PEL (Tr. 72). Moreover, the exposure was for short periods so no TWA could be calculated.

Section 1910.20(c)(8) provides:

"Exposure" or "exposed" means that an employee is subjected to a toxic substance or harmful physical agent in the course of employment through any route of entry (inhalation, ingestion, skin contact or absorption, etc.), and includes past exposure, but does include situations where the employer can demonstrate that the toxic substance or harmful physical agent is not used, handled, stored, generated, or present in the workplace in any manner different from typical non-occupational situations.

Joanne Pritchard, who works in GM's hazardous materials and hazard communications program, testified that trichloroethane is used in common household fabric cleaners (Tr. 82). On this basis GM contends that it comes within the exception in the last clause of the exposure definition. However, this is not the same thing as contemplated by the words, "not used, handled, stored,...or present in the workplace in any manner different from typical non-occupational situations." A clear-cut example would be the use of this chemical from a small can to clean fabrics in GM's plant. The situation here is not comparable to household use.

Ms. Pritchard, incidentally, conceded that, since trichloroethane is listed by NIOSH in RTECS and can defat the skin and cause dermatitis, "you could say it is a harmful physical agent" (Tr. 76, 82).

RTECS shows that both 1,1,1- and 1,1,2-trichloroethane are the subject of continuing studies on carcinogenicity in animals and that the latter is a "suspected' carcinogen in animals.

Actual exposure need not be proved under §1910.20(c)(8), supra; it may be "potential (e.g.., accidental or possible)".  Here there is a "'potential" for "accidental or possible" exposure to the skin, at least.

All of the foreqoinq has been necessary to reach the main issue: Whether GM properly informed employees of their "rights of access" to employee exposure records, specifically the material safety data sheet and environmental monitoring data on KSGM. Section 1910.20(g)(1) requires that employees be so informed "[u]pon...first entering into employment, and at least annually thereafter."

The Secretary produced two witnesses, Johnny R. Hunt and Howard G. Huff, who worked in the vicinity of the degreaser (and in Hunt's case used it). Huff testified to the effect that he had never been informed of his right to have access to the records in question until GM set up classes some two months after the inspection (Tr. 25). Hunt was not sure when he was so informed but thought it was after the inspection (Tr. 21-14). GM's witnesses regarding this subject were John D. Jackson, maintenance supervisor of the department housing the degreaser in question, and William E. Elmore, a supervisor to safety department. Jackson testified that KSGM was a harmless solvent, that he was never told it was a harmful substance (Tr. 97) and that if he was told a substance was harmful he would tell employees of their right to see the material safety date sheet (Tr. 95).

Elmore testified that new employees are given a booklet (Exhibit R-2) which, among other things, tells them about the use of bulletin boards in the plant (but does not inform employees of any rights pertinent here); that a notice posted on the bulletin boards indicated that material safety date sheets were available at the safety office
(Tr. 99); that employees or their union representatives sometimes do request such data sheets (Tr. 108); that the union representatives has access to all the data sheets in the safety office (Tr. 108); and that no specific requests were ever received for a data sheet on 1,1,1-tricloroethane (Tr. 110).

There was no testimony about informing employees regarding the environmental testing for 1,1,1- trichloroethane described by Ms. Pritchard.

In sum, it is apparent that at the time of the inspection GM did not have in place an organized program to inform employees entering into employment, and annually thereafter, of their right of access to employee exposure records. I therefore find a violation of 29 C.F.R. 1910.20(g)(1)(ii).

GM contends that if there is a violation it should be characterized as de minimis. A violation may be so characterized "where it has only a negligible relationship to safety and health and where it is thus inappropriate to require that the violation be abated or to assess a penalty." National Rolling Mills Co., 76 OSAHRC 121/D7, 4 BNA OSHC 1719, 1976-77 CCH OSHD (P) 21,114 (No. 7987, 1976). GM contends that in the way it uses KSGM the risk of injury is slight, justifying a de minimis characterization. This misses the point, for the purpose of § 1910.20(g) is to inform employees about toxic substances and harmful physical agents in the workplace so they may avoid injuries and illnesses. This purpose will be served by requiring abatement, which would not be required if the violation were to be characterized as de minimis. The violation must be characterized as other-than-serious.

II. The alleged-violation of 29 C.F.R. 1910.20(g)(2).

Item 2 alleges a nonserious violation of 29 C.F.R. 1910.20(g)(2) in that

Employees working in tool crib area near column PG were not provided with or copy made available of 29 CFR 1910.20 and its appendices.

The cited standard provides:

Each employer shall make readily available to employees a copy of this standard and its appendices, and shall distribute to employees any informational materials concerning this standard which are made available to the employer by the Assistant Secretary of Labor for Occupational Safety and Health.

GM's witnesses, Jackson and Elmore, testified that before citation was issued copies of this standard were posted on bulletin boards at strategic locations throughout the plant and were also available to employees and their union representatives at the safety office, the security office, and the main maintenance office. Employees Hunt and Huff testified that they had never seen this standard posted on the bulletin boards. The inspector, Villanueva, did not. check the bulletin boards. Thus the testimony of Jackson and Elmore is essentially uncontradicted.

I find that §1910.20 and its appendices were "readily available" to GM's employees, including those in the "tool crib area near column PG", is set forth in the citation.

FINDINGS OF FACT

1. GM operates an automobile assembly plant in Arlington, Texas, and is engaged in a business affecting commerce within the meaning of §3(5) of the Act.

2. On August 19, 1985, an OSHA industrial hygienist, pursuant to an employee complaint, inspected a portion of GM's Arlington plant, that is, the tool crib area near column PG, where there was a degreaser vat used by the WEMR department to clean parts of welding guns.

3. The degreaser was a v measuring about 3' X 5' X 3' deep, with a lid that was kept closed except when parts were being cleaned. The parts were lowered
into the vat in a basket and a pump was turned on to circulate the solvent. Sometimes a brush was used to remove residue adhering to the parts.Employees using the degreaser were required to wear protective gloves and glasses, and face masks were available for use at the option of the employees. Frequency of use of the degreaser varied from twice a day to once a week.

4. The solvent in the degreaser, bearing the trade name "KSGM," was composed of 95 percent 1,1,1-trichloroethane and 5 percent 1 ,1,2-trichloroethane and 1,2,2-trifluoroethane. Both 1,1,1-trichloroethane and 1,1,2-trichloroethane are listed in the NIOSH Registry of Toxic Effects of Chemical Substances ("RTECS"). These chemicals are toxic substances.

5. Prior to issuance of the citation herein, GM had tested the environment of the degreaser to determine the airborne 1,1,1-trichloroeethane.There is no evidence that affected employees were informed of their right of access to record of such tests.

6. GM had a material safety data sheet for KSGM. Affected employees were not informed of their right of access to such records as required by 9. C.F.R. 1910.20 (g) (1)(iii).

7. Prior to August 19, 1985, GM did not have in place a program to ensure that employees exposed to toxic substances or harmful physical agents, upon first ..... its employment and at least annually thereafter, were informed of their right of access to employee exposure records.



8. GM knew or in the exercise of reasonable diligence could have known that it was in violation of 29 C.F.R. 1910.20(g)(1)(iii).

9. Prior to the issuance of the citation GM made copies of 29 C.F.R. 1910.20 and its appendices readily available to its employees at its safety office, its security office, and its main maintenance office and by posting same on bulletin boards strategically located in the plant.

CONCLUSION OF LAW

1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2. On August 19, 1985, GM was in nonserious violation of 29 C.F.R. 1910.20(g)(1)(iii).

3. On said date GM was not in violation of 29 C.F.R 1910.20(g)(2).


O R D E R

It is ORDERED that:

1. Item 1 of citation 1, for nonserious violation of 29 C.F.R. 1910.20(g)(1)(iii), is AFFIRMED.

2. Item 2 of citation 1, for nonserious violation of 29 C.F.R. 1910.20(g)(2), is VACATED.

 

DEE C. BLYTHE
Administrative Law Judge

Date: May 9, 1986