Docket No. 86-0351

SECRETARY OF LABOR,
Complainant,
v.
CONSOLIDATED FREIGHTWAYS CORP.,
Respondent.

OSHRC Docket No. 86-0351

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:

The Secretary of Labor (Secretary) through the Occupational Safety and Health Administration (OSHA) cited Consolidated Freightways Corporation (Consolidated) for a serious violation of 29 C.F.R. §1910.132(a)[[1/]] for failing to require that employees use personal protective equipment necessary to protect against exposure to a corrosive. The OSHA area director proposed a penalty of $720. An administrative law judge of the Review Commission affirmed the citation as an other-than-serious violation, and assessed a penalty of $100. Review was directed by this Commission on whether the judge erred in finding that Consolidated knew, or with the exercise of reasonable diligence should have known, of the alleged violation and whether he erred in reducing the classification of the alleged violation to other-than-serious. Based on a review of the record as a whole, we find that the judge did not err in finding that Consolidated either knew or with the exercise of reasonable diligence could have known of the violation. However, we modify the judge's decision, find that the violation is properly classified as serious, [[2/]] and assess a penalty of $720.

I. Background

At Consolidated's Consolidation Center in Tonawanda, New York, dockmen loading and unloading trailers handle hazardous materials on a daily basis. The dockmen are supervised by the dock foreman, who reports to the freight operations manager, who in turn reports to both the terminal manager and to the assistant terminal manager.

On Monday, January 27, 1986, the Consolidation Center received two twenty-gallon cardboard drums containing a red, corrosive powder dye called Flexo Red NB 540 ("Flexo Red"), also known as Rhodamine B. Similar containers of Flexo Red have been shipped through the terminal on a weekly basis for at least the past twelve years. The two drums mentioned above were being returned to the original shipper, possibly because one of the drums was punctured.

Dockman Sam Longo unloaded the drums from a trailer, placed them in a pushcart, and loaded them on the right side of another trailer. Longo stated that it was his understanding that the drums contained a "hazardous" and "corrosive" material, but that when he moved them, he saw no seepage.

Longo further testified that Dock Foreman Wahab Aljuwani later told him that one of the two drums he loaded in the trailer was leaking and that he should get a roll of masking tape and patch the hole.[[3/]] When Longo returned to the trailer, he found that the drums had been moved and that the leaking drum had left a trail of dust "four inches high" across the trailer. Longo tipped the drum on its side and placed tape over a puncture near the bottom of the drum.

While he was repairing the drum, Longo noticed a placard affixed to it warning that the drum contained a corrosive substance. Although he was wearing a pair of heavy duty work gloves made of cloth, leather and canvas, with a cloth liner, Longo's hands were stained by the Flexo Red dye. He immediately went to the rest room to wash his hands, but was unable to remove the red stain.

Dockman Tim Mislin, a union steward, entered the restroom when Longo was trying to wash the Flexo Red from his hands. Learning that Longo "was hurt by a material" to which he had been exposed, Mislin went to the trailer to read the product label on the drum to see if the substance was harmful.[[4/]] While he was reading the label, some of the Flexo Red blew into Mislin's face. He suddenly felt nauseous, "started spitting out red stuff," and began vomiting. Both Mislin and Longo received permission from Freight Operations Manager Robert Daminski to go to the hospital.

Daminski, who was familiar with Flexo Red because of previous spills, inspected the spill to see what had caused the problem. He knew it was "a very potent dye," but he did not know that it was corrosive. Daminski did not notice any warning labels or tags on either of the drums. He looked at the bill of lading, which normally indicates a material's hazard class, but did not recall whether it indicated that Flexo Red was corrosive. Without determining the hazard class of the Flexo Red or referring to any safety guidebooks, Daminski directed dock foreman Aljuwani to clean up the spill. Daminski did not tell Aljuwani to require his subordinates to use any personal protective equipment while cleaning up the powder, but only to "clean up the spill, get the drum transferred [to another container], and clean up whatever remains." Daminski testified that his "main concern" was to prevent the dye from "getting out into the air or onto any other freight." He stated that a corrosive dry powder should be cleaned up with a broom and shovel . Shortly after the spill, Daminski discovered that Flexo Red was a corrosive when he pulled the copy of the bill of lading, enabling him to inform the hospital of the substance to which Longo and Mislin had been exposed.

When Aljuwani noticed the leaking drum of Flexo Red, he obtained the bill of lading for the drum and saw that there was a sticker on the bill identifying the contents of the drum as corrosive. He testified that he told a temporary dockman named Cimino[[5/]] to "get yourself some gloves, rubber gloves, and whatever else you need," and to "[p]ut the [damaged] drum into another drum . . . [,] sweep up the residue, put that in a drum, and pack it up." While Cimino was moving the punctured drum around, the tape came off, releasing some of the Flexo Red. Cimino then put the drum down on its side, and the metal lid of the drum fell off, releasing Flexo Red "in abundance." He then put the lid back on, stood the drum back up, and resealed it with masking tape. Aljuwani testified that Cimino was not wearing a "yellow suit . . . or anything like that" when he cleaned up the spill. Aljuwani was not sure whether Cimino was wearing rubber gloves or a mask. Dockman William Schukraft testified that Cimino only used a pair of work gloves like those "that all dockmen wear."

Patrick J. Brady, Consolidated's terminal manager, testified that the procedures to follow when a spill or a leak of a hazardous substance occurs are contained in Consolidated's Emergency Response Guidebook and its Hazardous Materials Manual. Both publications are distributed to the terminal manager and assistant terminal manager and are also available to the freight operations manager and dock foreman. The Emergency Response Guidebook is not generally available for dockmen to use, and Brady "never heard a dockman ask for one," although he was sure that they were made aware of the Guidebook during their training. Brady testified that a dockman would require authorization from the dock foreman to see the Guidebook or Manual, and that such a request could be refused.

Brady testified that when a corrosive solid like Flexo Red is spilled, the dock foreman is not required to refer to the Emergency Response Guidebook because it is only a "guideline for him to use in conjunction with his judgment." Brady stated that even when certain personal protective equipment is called for by the Emergency Response Guidebook, employees are not required to use the equipment if they do not think it is appropriate. He testified that a spill of a corrosive powder is usually considered to be only an "incident" rather than an emergency, and therefore the protective equipment indicated in the Emergency Response Guidebook need not be used. However, Brady stated as follows:

What I subsequently learned about this particular commodity is that it becomes airborne with very, very little disturbance, and you can't see it being airborne with the naked eye, but the effects are certainly there. Having that knowledge today, I would consider it an emergency. I would have closed the door to the trailer and had the trailer pulled away from the dock and put into an isolated area and have people with self-contained breathing apparatus come in to effect the clean-up.

During his testimony, Brady stated that he did not know if employees received specific training in how to clean up spills of corrosive materials, but he knew that they had general training in cleaning up spills as part of the hazardous materials training program. Brady further testified that employees were told to refer to the Emergency Response Guidebook for step-by-step procedures on how to clean up a specific type of spill. In addition, the employees were told to immediately notify the dock foreman of a spill. However, a dockman can respond to a situation before contacting the dock foreman.

II.

Whether the judge erred in concluding that Consolidated knew, or with the exercise of reasonable diligence could have known, of the alleged violative condition.

A.

The judge found that "[a]t all times concerned, [Consolidated] knew, or with the exercise of due diligence should have known, of the alleged violation." The judge based this finding on Consolidated's failure to have an adequate safety training program, and on his finding that "the safety training program that [Consolidated] had was not adequately communicated to its employees or adequately enforced." [[6/]]

On review, Consolidated argues that Aljuwani failed to follow proper procedures when he failed to make sure that the employees wore personal protective equipment when handling the spill and that Consolidated could not have known of Aljuwani's failure to follow company policy. It claims that because it took all necessary precautions to prevent the occurrence of the violation, Aljuwani's unsafe act cannot be imputed to it. Consolidated further argues that the "evidence at the hearing demonstrated that it had a safety program for dealing with hazardous materials that was comprehensive, thorough and aggressive." It claims that both Terminal Manager Brady and Freight Operations Manager Daminski understood that Dock Foreman Aljuwani had been told to require the dockmen's use of personal protective equipment when cleaning up spills or leaks of hazardous materials.

The Secretary argues that Consolidated's failure to provide and require the use of personal protective equipment was not an isolated occurrence. She points out that neither Daminski nor Aljuwani gave instructions to Cimino to use personal protective equipment when cleaning up the spill. In addition, the Secretary argues that Consolidated's safety program was inadequately communicated, enforced and implemented, "leaving too many important decisions, i.e., the use of personal protective equipment, to the dockmen." The Secretary further points out that despite the regular movement of hazardous materials, including Flexo Red, through the Consolidation Center, neither Daminski nor Aljuwani had any specific training in cleaning up dry corrosive chemical spills. She also notes that employees Sam Longo, Richard Bamberg, William Schukraft, Tim Mislin, James O'Brien, Paul Tartick, and Bernard Wittmeyer had not received training in the use of personal protective equipment and were not familiar with either Consolidated's Hazardous Materials Manual or its Emergency Response Guidebook.

In order to satisfy her burden of proving knowledge, the Secretary must prove that a cited employer either knew, or with the exercise of reasonable diligence could have known, of the presence of the violative condition. Seibel Modern Manufacturing & Welding Corp., 15 BNA OSHC 1218, 1221, 1991 CCH OSHD ś 29,442, p. 39,678 (No. 88-821, 1991). The actual or constructive knowledge of an employer's foreman can be imputed to the employer. Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965, 1986-87 CCH OSHD ś 27,651, p. 36,033 (No. 82-928, 1986). Here, the violative condition was the failure of Dockman Longo to wear appropriate personal protective equipment when handling the Flexo Red.

The record demonstrates that Aljuwani told Longo about the leak and that Longo attempted to patch it as a dockman normally would. By the time Aljuwani told Dockman Cimino to re-pack the leaking drum of Flexo Red and to sweep up the residue, he had learned from the bill of lading that the leaking drum contained a corrosive material. Although Aljuwani told Cimino to "get rubber gloves or whatever else you need," he did not require either Longo or Cimino to use the appropriate personal protective equipment while cleaning up the Flexo Red. Instead, he let the employees decide what protective equipment to use even though he knew they had not received training in selecting or using the personal protective equipment necessary to protect against exposure to a corrosive. In fact, Aljuwani himself did not know what personal protective equipment should be used while cleaning up a spill of a corrosive powder or other hazardous material. Thus, the evidence establishes that Aljuwani knew or should have known of the violation.

Once the Secretary has made a prima facie showing of employer knowledge through its supervisory employee, the employer can rebut that showing by establishing that the failure of the supervisory employee to follow proper procedures was unpreventable. In particular, the employer must establish that it had relevant work rules that it adequately communicated and effectively enforced. E.g., H.E. Wiese, Inc., 10 BNA OSHC 1499, 1505, 1982 CCH OSHD ś 25,985, p. 32,614 (Nos. 78-204 & 78-205, 1982), aff'd per curium, 705 F.2d 449 (5th Cir. 1983); see Brock v. L. E. Myers Co., 818 F.2d 1270, 1277 (6th Cir. 1987), cert. denied, 484 U.S. 989 (No. 87-246, 1987). Under Commission case law, the supervisor's knowledge of the violations, both actual and constructive, is imputable to the employer for the purpose of proving employer knowledge of the violations unless the employer establishes that it took all necessary precautions to prevent the violations, including adequate instruction and supervision of its supervisor. Daniel Construction Co., 10 BNA OSHC 1549, 1552, 1982 CCH OSHD ś 26,027, p. 32,672 (No. 16265, 1982). Evidence that a supervisor was involved in the misconduct is strong evidence that the employer's safety program was lax. Id.

Consolidated claims that its safety program for dealing with hazardous materials was "comprehensive, thorough and aggressive" because "[m]anuals and handbooks were provided to the employees" and "[s]afety meetings were held frequently." however, it does not appear that Consolidated's safety program would prevent the recurrence of the situation that occurred here. The manuals and handbooks it refers to are the Emergency Response Guidebook, the Hazardous Materials Manual, the Freight Handling Handbook, and the Driver Salesman and Dockworkers Safety Handbook. Of these documents, only the Emergency Response Guidebook specifically describes what types of safety equipment are to be used while containing and cleaning up a spill of hazardous materials. the other documents merely direct employees to contact their supervisors for directions. While each dockman was told to immediately notify a foreman in case of a spill of hazardous materials, Terminal Manager Brady testified that a dockman has the discretion to respond to a spill or leak before contacting the dock foreman.

Brady also testified that the dock foreman is allowed to decide whether to follow the Emergency Response Guidebook or even to refer to the Guidebook because it is only "a guideline for him to use in conjunction with his judgment."[[7/]] Even where the Emergency Response Guidebook indicates that certain personal protective equipment should be worn, employees of Consolidated are not required to use the equipment if they do not think it is appropriate, even though they have not been trained in the criteria to be considered and the guidelines to be followed in making that determination. The dockmen received training in the handling of hazardous materials, but this training involved how to transport and store hazardous materials, not how to clean up spills of hazardous material.

The evidence also demonstrates that Consolidated's work rules were not adequately communicated. Few of the dockmen knew of the existence of the Hazardous Materials Manual or Emergency Response Guidebook. Even had they been aware of their existence, the dockmen were only permitted to review the manual and the guidebook when they were off duty.

In addition, we conclude that Consolidated failed to effectively enforce its safety program for dealing with hazardous spills. Although Consolidated asserts that the dock foreman's violation of company policy was an isolated occurrence, the evidence establishes that Consolidated left it to the judgment of the dock foreman to decide whether to refer to the Emergency Response Guidebook. Thus, Aljuwani, who had no training in the cleaning up of corrosive spills, was not in violation of company policy when he allowed employees to clean up the Flexo Red without first consulting the guidebook to determine what personal protective equipment was required. We therefore conclude that Consolidated has failed to establish that Aljuwani's asserted failure to follow proper procedures was unpreventable. Dock Foreman Aljuwani's knowledge of the violation is imputed to Consolidated.

III.

Whether the judge erred in reducing the classification of the alleged violation of 29 C.F.R. § 1910.132(a) from serious to other-than-serious.

A.

Consolidated does not dispute the effects of the exposure to Flexo Red that were experienced by its employees. Four employees, Longo, Mislin, Wittmeyer, and O'Brien, testified regarding the effects of their exposure. In addition to employees Longo and Mislin, driver/salesman Wittmeyer was exposed to Flexo Red on the day of the initial spill. Wittmeyer testified that the day after his exposure, he had a bad headache, blurred vision, and a skin rash, but that he did not seek medical attention at the time.

On Friday, January 31, four days after the initial exposure, some of the Flexo Red that was still "blowing around the yard" blew into the faces of a number of employees, most of whom also had been exposed on Monday, January 27.

After this exposure, Mislin alleged that he became sick a second time. Both Mislin and dockman O'Brien, who was also exposed, were taken to the hospital. Mislin vomited, his eyes burned, then swelled and became sensitive to light, and he stated that he also suffered from headaches, rashes, and gastric problems. Mislin was referred to an ophthalmologist, a specialist in internal medicine, and a dermatologist, and he did not report to work for approximately seven and one-half weeks. O'Brien experienced breathing problems, gastric problems, and painful burning and tearing of his eyes. After he was told that he had been exposed to a corrosive, O'Brien visited his family doctor, who referred him to an internal specialist for his diarrhea. O'Brien testified that he also visited an "eye doctor" who required him to wear an eye patch for four days. His eye symptoms continued for a week, and his gastric symptoms continued for "[a]bout a month." He eventually missed a total of eighteen days from work between January and May. Wittmeyer, who was also re-exposed, began wearing prescription eyeglasses for the first time in March of 1986, approximately two months after the spill, and was under an "eye specialist's" care for over one year after the accident. However, no evidence was offered to show that the ophthalmologic care was provided only for symptoms of exposure to Flexo Red. Wittmeyer still had burning eyes and blurred vision at the time of the hearing. Wittmeyer did not miss any work, and he received regular medical exams for his symptoms, which included regular checkups for his eyes. Consolidated did not rebut any of the employees' testimony regarding their injuries and lost work time.

Dr. Dunn, an ophthalmologist appearing as an expert witness for the Secretary, testified that Flexo Red is toxic to the eye and that exposure to a sufficient quantity could cause a temporary loss of vision. He recommended that eye protection and a respirator be used when handling Flexo Red because of the dye's toxic effect on the mucous membranes, nose, mouth, and conjunctiva of the eye.

Dr. Dunn further testified that his knowledge of the possible effects of Flexo Red was derived solely from three articles which were published nearly one hundred years ago. Two of the articles relied upon by Dr. Dunn discussed experiments where unknown quantities of various dyes, including Rhodamine B, were introduced into the eyes of rabbits. The exposure produced symptoms of conjunctivitis and scarified epithelium of the cornea that lasted up to three weeks, but which did not result in permanent or disabling effects. Dr. Dunn acknowledged that these studies would "not be directly transferable to humans" since the eye of a rabbit "reacts much more strongly to caustic agents" and that workers would "wash their eyes out, whereas we would not expect the rabbit to do that." The third article relied upon by Dr. Dunn describes a case where some powdered analog of "Rhodamine" [[8/]] blew into the eye of a worker, causing increased eye secretion, reddened conjunctiva, and scarified epithelium of the cornea. The article stated that the patient's eye was free of irritation within two weeks of the exposure, indicating that there was no permanent damage of any kind to the eye.

B.

The judge found that the exposure to Flexo Red harmed Consolidated's employees, and that the harm "was clearly established even without the physician's opinion." However, he found that the Secretary did not prove that the violation was serious because she did not establish that the employees faced a substantial probability of death or serious physical harm as a result of their exposure to Flexo Red.[[9/]] In reaching this conclusion, the judge only discussed the testimony of Dr. Dunn and did not discuss the employees' testimony about their own injuries. The judge found that the medical research presented by Dr. Dunn was "not enough to justify an opinion on the degree of harm that could be caused by [Flexo Red]." The judge also found that "Dr. Dunn's opinion on the serious nature of the harm was weakened because, as he testified, it was mostly based on three articles."

The Secretary argues that the judge erred In reducing the classification from serious to other-than-serious "because the actual injuries sustained by the employees, together with the technical data and expert medical opinion evidence, established that there was a substantial chance of serious physical harm whenever there is exposure to Flexo Red, a toxic chemical dye," The Secretary claims that the "adverse health effects were serious because the employees experienced a reduction in efficiency in one or more parts of the body, and the substantial nature of that reduction was established by the need for medical treatment." The Secretary contends that "[a]lthough the Act itself does not set forth a bright line test for classifying a violation as serious or other-than- serious, OSHA has provided guidance in its Field Operations Manual." The Field Operations Manual defines "serious physical harm" as:

Impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job. Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would usually require treatment by a medical doctor.

OSHA Instruction CPL 2.45B, Field Operations Manual, Chapter IV, section B.1.b.(3)(a)1 (June 15, 1989) amended by OSHA Instruction CPL 2.45B CH-1 (Dec. 31, 1990)(emphasis original).[[10/]]

The Secretary contends that "[t]he Commission's case-by-case determinations have generally been consistent with the Secretary's definition" of what constitutes a serious violation, and cites Mahone Grain Corp., 10 BNA OSHC 1275, 1982 CCH OSHD ś 25,836 (No. 77-3041, 1981), for the proposition that permanent disability is not an essential factor for a violation to be classified as serious. The Secretary claims that "[t]he Commission has readily acknowledged that the seriousness of a violation can be based on an injury which may not have any lasting effect beyond the healing period, as in bone fractures." In that regard, the Secretary relies on Brown-McKee, Inc., 8 BNA OSHC 1247, 1980 CCH OSHD ś 24,409 (No. 76-982, 1980) (the violation of the standard was serious because a fourteen to fifteen foot fall to a steel platform could result in a fracture, broken neck or death), and PPG Industries, Inc., 6 BNA OSHC 1050, 1977-78 CCH OSHD ś 22,344 (No. 15426, 1977) (employer's failure to require employees' use of safety belts when they were exposed to a ten to fifteen foot fall is a serious violation because a fall from such a distance could result in broken bones or serious physical harm). The Secretary further argues that "[t]he evidence in this case must also be viewed in light of prior Commission law regarding eye injuries," citing Vanco Construction, Inc., 11 BNA OSHC 1058, 1983-84 CCH OSHD ś 25,372 (No. 79-4945, 1982) , aff'd, 723 F. 2d 410 (5th Cir. 1984) (Commission found that given the "delicateness of the eye," serious physical harm would be substantially probable if the eye were injured).

Consolidated claims that "[t]he Secretary must establish, not a possibility, but 'a substantial probability' of the consequences that would warrant the classification of a violation as serious." Consolidated argues that it "should not be held accountable for any injuries that are not foreseeable at the time of the incident, particularly when the known medical evidence suggests that the consequences are mild and temporary." Consolidated contends that Mahone Grain does not support the Secretary's position. Consolidated points out that in Mahone Grain, unlike here, "the affected employees required hospitalization for a condition that could lead to death." Here, it contends that there was no evidence that exposure to Flexo Red could lead to death.

C.

Consolidated suggests that it should not be held liable for the injuries that occurred because they were not foreseeable and because the medical evidence indicates that they were mild and temporary. However, the foreseeability of an injury is irrelevant in determining whether a violation is serious. Under Commission precedent, a serious violation is established if an accident is possible and there is a substantial probability that death or serious physical harm could result from the accident. Dravo Corp., 7 BNA OSHC 2095, 2101, 1980 CCH OSHD ś 24,158, p. 29,370 (No. 16317, 1980), pet. for review denied, 639 F.2d 772 (3d Cir. 1980).

Here, there is no dispute that an accident did occur. Also, Consolidated does not dispute that the employees who were exposed to the Flexo Red powder suffered a variety of debilitating effects from their exposures that in some cases persisted long after the exposure. O'Brien experienced breathing and gastric problems as well as painful burning and tearing in his eyes. He missed a total of eighteen days from work between January and May. Mislin's eyes burned and swelled and became sensitive to light. He also experienced gastric problems and was referred to three different specialists. Mislin did not return to work for approximately seven and one-half weeks after his exposure. Wittmeyer was under a doctor's care for his eye problems for more than a year after the accident. At the time of the hearing, more than a year after he was exposed to Flexo Red, his eyes still burned and his vision was still blurred.

If the symptoms suffered by Consolidated's employees had quickly dissipated, it would be difficult for us to find that they amounted to serious physical harm. However, the exposure to Flexo Red significantly impaired the eyes of Consolidated's employees. Cf. Vanco Construction, Inc., 11 BNA OSHC at 1061-62, 1983 CCH OSHD at p. 33,454. Harm of this severity is substantial enough to be characterized as serious. Mahone Grain, 10 BNA OSHC at 1279, 1982 CCH OSHD at p. 32,317-2 (No. 77-3041, 1981). We therefore conclude that Consolidated's failure to use sufficient personal protective equipment to protect against employee exposure to Flexo Red was a serious violation of the Act.

In her citation, the Secretary proposed a penalty of $720 for a serious violation. The judge assessed a penalty of $100 for an other-than-serious violation. Having considered the penalty factors enumerated in section 17(k) of the Act, 29 U.S.C. § 666(k), we assess a penalty of $720.

IV. Order

Accordingly, we find a serious violation of 29 C.F.R. §1910.132(a) and assess a penalty of $720.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

SECRETARY OF LABOR,
Complainant
v.
CONSOLIDATED FREIGHTWAYS CORP.
Respondent

OSHRC Docket No. 86-0351

DECISION AND ORDER

This case arose under 29 U.S.C. sec. 651 et seq. of the Occupational Safety and Health Act of 1970 (the Act). As a result of an inspection by the Occupational Safety and Health Administration [OSHA] of the Respondent's premises on or about January 31, 1986 to February 28, 1986, Citation #1 was issued on or about March 5, 1986, charging that the Respondent violated sec. 5(a)(2) of the Act by the serious violation of the standard at 29 C.F.R. 1910.132(a) in that protective equipment was not used by employees handling corrosive materials.

On or about March 26, 1986, the Respondent filed Notice of Contest to the Citation and the penalty proposed therefor.

The pertinent sections of the Act and the standard are appended to this decision under appropriate titles.

BACKGROUND

The Respondent is a carrier operating trucks that transport freight of all kinds packed in drums, cartons, or other containers that vary in size, weight, destination, contents, etc. Some of the freight carried includes materials that may be dangerous to health and safety; and some may be stored or moved from one truck to another before reaching a final destination.

In the instant case, while freight was being moved from one truck to another by employees in the Respondent's terminal, a powdery corrosive material [referred to as "Rhodamine B" or "Flexo" or "the red dye"] seeped out of the drum containing it when the drum split open. When handling the leaking drum, an employee [Longo] used no protective equipment except two pairs of heavy duty gloves. His hands were stained by the corrosive substance...Tr. 325-327. Another employee [Mislin] who was also wearing gloves, came close enough to the leaking drum to read its label...Tr. 434-438. Another employee [Cimino] swept the corrosive substance while wearing only a pair of "work gloves" as protective equipment...Tr. 398,399.

[Some other employees were possibly exposed to the alleged hazardous condition but they are not discussed in the Decision because the possible exposure was not associated with their specific occupational duties].

SAFETY TRAINING PROGRAM

Did the Respondent have a safety training program that was both adequate and enforced? There is no question that the Respondent had a safety training program that included video illustrations, lectures, reading materials, rules, the use of personal protective equipment, and other measures intended to protect the safety of the employees.

However, the provisions of the safety program were not always followed by employees, and proper training and instructions were not always given to them. There were also flaws in it -- for example, although the Respondent provided manuals of safety instructions, some were kept in places that were not readily accessible to all employees and, in some cases, those that were accessible were not available during working hours. Tr. 273-276, 320-322, 333-337, 375-379, 387, 390, 393, 402, 426, 428-430, 472-479, 495-499, 522-523. As concerns employment: the provisions of the safety program were not uniformly enforced by the Respondent. Violation of the rules did not always subject employees to disciplinary action, and failure to follow the Respondent's safety program was occasionally overlooked. . . Tr. 164, 306, 311, 466.

I find that the Respondent did not have a safety training program that was both adequate and enforced.

KNOWLEDGE

Supervisory personnel of the Respondent knew of the hazardous conditions and that employees were not using adequate personal protective equipment ... Tr. 311-339, 399-401, 434, 479-480, 495-496.

HARM

Was the corrosive substance [Rhodamine B] the cause of physical harm to employees? The evidence is clear that employees who were in good health suffered spells of headaches, diarrhea, coughing, nausea, skin irritation, intestinal discomfort, and eye inflammation -- or various combinations of such symptoms -- immediately after being exposed to the foreign substance in question. There was no other explanation for the attacks; and the only employees so affected were the ones who had been exposed to it. If it was not the cause, what else was?... Tr. 332, 366-368, 435-447, 483-485, 528-531.

The testimony of the laymen employees was corroborated by the testimony of a physician [Dr. Dunn] but the harm to the employees was clearly established even without the physician's opinion.

When the symptoms of injury or illness are consistent with a cause, and no other cause has even been suggested by the evidence or reasonable inferences therefrom, it is my opinion a finding is warranted that the cause of the symptoms has been established.

I find that the corrosive substance that is the subject of the citation caused physical harm to the Respondent's employees.

DEGREE OF HARM

Was the harm to affected employees severe enough to meet the test of "a substantial probability that death or serious physical harm could result" from the alleged hazardous condition?
The Complainant relied on the testimony of Dr. Dunn to prove the allegation. I was very favorably impressed by Dr. Dunn, and I find that he was an extremely well-qualified expert who was completely honest and candid in his opinions. However, there simply is not enough medical research in existence to justify an opinion on the degree of harm that could be caused by Rhodamine B powder. In the first place, Dr. Dunn's world-wide search going back a hundred years revealed almost no medical literature on Rhodamine B. What there was consisted of three articles, written in German, describing three experiments. There was even some question on whether the experiment referred to Rhodamine B or an analogue of it ["analogue" refers to anything that is similar to something else]. The research indicated that the only instance where a human being was treated for Rhodamine was one person in 1986; and Dr. Dunn acknowledged that the article "probably would not have gotten published today" ....Tr. 604-625, 698-729.

Dr. Dunn's opinion on the serious nature of the harm was weakened because, as he testified, it was mostly based on three articles...Tr. 622,625.

In view of these circumstance, I find that it has not been established that there is a substantial probability that death or serious physical harm could result from the exposure of employees to Rhodamine B.

FINDINGS OF FACTS

Having hear the testimony, observed the witness, and examined the exhibits, the following Findings of Fact are made:

1. At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across state lines.

2. As concerns Item #1(a) of Citation #1, the Respondent's employees did not use personal protective equipment when handling or being exposed to toxic chemicals.

3. The Respondent did not have an adequate safety training program.

4. The safety training program that the Respondent had was not adequately communicated to its employees or adequately enforced.

5. The conditions described in Item #1(a) of Citation #1 exposed the Respondent's employees to sustaining harm because of the hazard of chemical poisoning.

6. One or more officers or supervisory personnel of the Respondent knew of the hazardous conditions described herein and knew that employees were exposed to such hazard.

CONCLUSIONS OF LAW

1. At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety & Health Review Commission has jurisdiction over the subject matter and the parties.

2. At all times concerned, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violation.

3. On the date in question, the Respondent was not in compliance with the standard at 29 C.F.R. 1910.132(a) and the Complainant has sustained the burden of proving the Respondent violated sec. 5(a) of the Act (sec. 654).

ORDER

The whole record having been considered, and due consideration having been given to 29 U.S.C. sec. 666(j), it is ordered:

1. Item 1(a) of Citation #1 is affirmed as an other than serious violation and a penalty of $100 assessed therefor.

So ordered.

FOSTER FURCOLO
Judge, OSHRC

Dated: October 4, 1988
Boston, Massachusetts

APPENDIX THE ACT

2. Section 654 [section 5 (a) (2)] Employer "...shall comply with occupational safety and health standards..."

7. Section 666 [section 17 (c)] "...employer who has received a citation for a violation of this Act ... specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation."

8. Section 666 [section 17 (j)] "...assess all civil penalties...giving due consideration to ... the size of the business ... gravity of the violation, the good faith of the employer, and the history or previous violations."

9. Section 666 [section 17 (k)] "...a serious violation shall be deemed to exist...if there is a substantial probability that death or serious physical harm could result ... unless the employer did not, and could not...know of the presence of the violation."

THE STANDARD

29 C.F.R. 1910.132 (a): "Protective equipment...shall be provided, used... wherever it is necessary by reason of...chemical hazards... encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact."

SECRETARY OF LABOR,
Complainant,
v.
CONSOLIDATED FREIGHTWAYS CORP.,
Respondent.

Docket No. 86- 0351

ERRATUM

Due to clerical error, the date on page 20 of the Commission decision issued October 17, 1991, was inadvertently omitted. A corrected copy of page 20 is attached.

Ray H. Darling, Jr.
Executive Secretary

Dated: October 24, 1991

FOOTNOTES:

[[1/]] The text of the standard is as follows:
1910.132 General requirements.
(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[[2/]] Section 17(k) of the Act, 29 U.S.C. §666(k), defines a serious violation as follows:
[A] serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[[3/]] Aljuwani claims that he only spoke to Longo to tell him that one of the drums he had loaded was leaking, but he did not tell Longo to do anything about it. However, it is undisputed that a dockman's duties include taping or repackaging damaged freight.

[[4/]] When questioned whether anyone else was present at the trailer, Mislin testified:
Sam Longo -- when I first went there, no. When I got halfway through the label is when I felt sick and was --was spitting and got real sick at that time. The only person I seen was Longo, and I think I passed [dockman] Schukraft running towards the office, but I--I was pretty well worrying about where I was going to-- going to throw up.
Longo testified that dock foreman Aljuwani was also present while Mislin was reading the label, and that Aljuwani also inspected the label at that time.

[[5/]] Cimino's first name is not in the record. He did not testify at the hearing and no evidence was presented to show whether he was injured by his exposure to the Flexo Red.

[[6/]] The judge also found that Consolidated's supervisory personnel "knew of the hazardous conditions and that employees were not using adequate personal protective equipment." The judge supported this finding by citing testimony of dockmen Sam Longo, William Schukraft, Tim Mislin, James O'Brien, and Paul Tartick that indicated that management was aware of the practice of dockmen being instructed to tape damaged containers containing hazardous materials.

[[7/]] The record indicates that referring to the Hazardous Materials Manual is also up to the supervisor's discretion.

[[8/]] The article indicated that the dye that the worker was exposed to was some form of "Rhodamine". The substance at issue here, Flexo Red NB 540, is also known as Rhodamine B. Thus, the Rhodamine that was the subject of the article was not necessarily the same dye that injured the employees at the Consolidation Center.

[[9/]] In his decision, the judge only discussed the Flexo Red exposure of dockmen Longo, Mislin and Cimino. He did not discuss the exposure of employees O'Brien and Wittmeyer "because the possible exposure was not associated with their specific occupational duties."

[[10/]] These provisions in the Field Operations Manual do not have the force and effect of law. Del Monte Corp., 9 BNA OSHC 2136, 2140, 1981 CCH OSHD ś 25,586, p. 31,914 (No. 11865, 1981) (the purpose of the manual's guidelines are to promote agency efficiency and do not accord important procedural or substantive rights to individuals).