Docket No. 299

AMERICAN MOTORS CORPORATION

OSHRC Docket No. 299

Occupational Safety and Health Review Commission

July 2, 1973

Before MORAN, Chairman; VAN NAMEE, Commissioner.

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: On September 14, 1972, Judge William E. Brennan issued a decision whereby he affirmed 17 and vacated 12 alleged non-serious violations of safety health standards and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq., hereinafter "the Act"). Civil penalties in the aggregate of $279 were assessed.

Thereafter, pursuant to the authority granted by section 12(j) of the Act, I directed review of the Judge's decision. In directing review I requested briefs on the question of whether 29 C.F.R. 1910.252(f)(2)(i) requires mechanical ventilation when the physical restrictions specified by the standard are not present.

We have reviewed the record, the decision of the Judge and Complainant's brief. n1 Based on such review we conclude that it was error to affirm the alleged violation of 29 C.F.R. 1910.252(f)(2)(i)(c) (item 24 of the citation) and assess a penalty therefor. Accordingly, the Judge's decision is affirmed only to the extent that it is consistent herewith.

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n1 Both parties were afforded the opportunity to file briefs on review. The Commission has not received a brief from Respondent.

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The relevant facts are as follows: During an inspection of Respondent's workplace Complainant's safety and health compliance officer observed a welder performing an arc welding operation on steel with Imperial 75 wire. According to the compliance officer the work was being performed in an area of approximately 50 by 50 feet (2,500 square feet), and the welder was located about 20 feet away from the nearest wall. He was screened on one side by a 2-1/2 foot wide backdrop curtain. The curtain was attached on one end to an H beam (used as a building or floor support column) having dimensions of 1 by 1 feet. Mechanical ventilation was not provided.

It was upon these facts that Complainant predicated his issuance of the citation for an alleged non-serious violation of 29 C.F.R. 1910.252(f)(2)(i)(c). The standard, in pertinent part, is as follows:

(2) Ventilation for general welding and cutting -- (1) General. Mechanical ventilation shall be provided when welding or cutting is done on metals not covered in subparagraphs (5) through (12) of this paragraph . . .

(a) In a space of less than 10,000 cubic feet per welder.

(b) In a room having a ceiling height of less than 16 feet.

(c) In confined spaces or where the welding space contains partitions, balconies, or other structural barriers to the extent that they significantly obstruct cross ventilation.

Complainant's theory both prior to and at the hearing was that the welder's area was a "confined space" and the near wall, back drop curtain and the H beam constitute "structural barriers" which "significantly obstruct cross ventilation."

Judge Brennan concluded that the welder's area could not reasonably be called a "confined space" nor could a 2-1/2 foot wide curtain combined with a one foot beam be reasonably called "structural barriers" which "significantly obstruct cross ventilation" of the area. We agree.

Nevertheless, Judge Brennan affirmed the alleged violation. He concluded that subparagraph (2) requires mechanical ventilation. That is, he concluded that the standard is absolute and requires that mechanical ventilation be provided whenever welding is performed on metals not covered by subparagraphs (5) through (12) of paragraph (f) (29 C.F.R. 1910.252(f)).

We do not agree with that interpretation. By its plain terms the standard requires that mechanical ventilation be provided only in the event that the conditions of subdivisions (a), (b), or (c) of subparagraph (2) are fulfilled. In this case the allegation was that the conditions of subdivision (c), i.e., welding was being performed in a confined space containing structural barriers that significantly obstruct cross ventilation, existed in Respondent's workplace. If that had been the case Respondent's failure to provide mechanical ventilation would have constituted a violation of the standard. The conditions were not established. Accordingly, there was no violation.

Complainant apparently agrees that the conditions specified by at least one of the subdivisions must be fulfilled in order to establish a violation of the standard. He does not seek affirmance in reliance of the Judge's decision nor does he seek affirmance on the ground that the H beam and curtain are structural barriers within the meaning of the standard. Rather, he now advances the theory that the violation should be affirmed because the ceiling in the welding area was less than 16 feet high n2. Specifically, he now argues that the low ceiling is a structural barrier which significantly obstructs cross ventilation.

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n2 In this regard he relies on the testimony of Respondent's witness who said that the height of the ceiling was 15 feet 2-1/2 inches, Complainant's witness testified that the ceiling was over 16 feet high.

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The argument must be rejected. The precise situationis covered by subdivision (b) of the standard. Were we to accept Complainant's argument, we must of necessity rewrite the standard to eliminate subdivision (b). The conclusion follows because acceptance of the argument renders subdivision (b) redundant to the point that it has no independent meaning since a low ceiling would then be a structural barrier within the meaning of subdivision (c). Under these circumstances, we will not interpret the words "structural barriers" as including a ceiling under 16 feet high.

For the reasons given, it is ORDERED that the Judge's order be and the same is hereby modified in the following particulars:

(1) that portion thereof whereby item 24 of the citation is affirmed is set aside and the said item is vacated; and

(2) that portion thereof which assesses a total civil penalty of $279 is set aside and a penalty of $254 is hereby assessed,

and that the order as modified be and the same is hereby affirmed.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE, OSAHRC: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, Pub. Law 91-596; 29 U.S.C. 651 et seq.; (hereinafter Act), to review a Citation for Non-Serious Violations issued by the Secretary of Labor, (hereinafter Secretary) pursuant to Section 9(a) of the Act, and penalties based upon the alleged violations proposed by the Secretary pursuant to Section 10(a) of the Act.

The record of this case reflects the following matters:

1. On November 30, 1971, the Secretary, pursuant to Section 9(a) of the Act, through the Occupational Safety and Health Administration, issued to American Motors Corporation, 3880 N. Richards Street, Milwaukee, Wisconsin, (hereinafter Respondent), a Citation for Non-Serious Violations alleging biolations of Section 5(a)(2) of the Act in that Respondent failed to comply with 29 occupational safety and health standards duly promulgated under Section 6 of the Act (R.p.1). n1

2. By his Notification of Proposed Penalty also dated November 30, 1971, the Secretary, pursuant to Section 10(a) of the Act, notified the Respondent of his intention to propose penalties in the total amount of $379.00 for the alleged violative conditions (R.p.2).

3. The Respondent pursuant to Section 10(c) of the Act, through a letter from its Director of Industrial Relations dated December 9, 1971, gave notice of its intention to contest both the Citation and proposed penalties (R.p.3).

4. Pursuant to Section 10(c) of the Act, this case was thereafter referred to the Occupational Safety and Health Review Commission, (hereinafter Commission) for hearing, notice of receipt thereof being given to the parties of record by the Commission on December 15, 1971 (R.p.4).

5. On December 27, 1971, the Secretary filed his Complaint with the Commission and certified service thereof upon the Respondent and authorized employee representatives (R.p.6).

6. Although reference is made in Commission Docket File No. 299 of Respondent's "answer" n2 no such document can be located therein, perhaps due to some questions Respondent raised concerning the Commission's interim rules of procedure, (R.p.7), or failure to forward the "answer" to the Commission.

7. By letters dated January 3 and 4, 1972, Respondent notified the Commission of its personal service of its Notice of Contest upon two authorized employee representatives involved in this case (R. pp. 8, 9).

8. On January 24, 1972, this case was assigned to Commission Judge Leon J. Moran, notice of said action being given the parties by the Commission the same date (R.p.11).

9. By notice dated January 28, 1972, this case was scheduled for hearing in Milwaukee, Wisconsin for March 29, 1972 (R.p.H-1).

10. On March 7, 1972, this case was reassigned to the writer due to the illness of Judge Moran, notice thereof being given to the parties by the Commission on the same date (R.p.12, H-2).

11. The hearing was held as scheduled, in Milwaukee, Wisconsin. The Respondent on May 1, and the Secretary on May 4, 1972 filed Proposed Findings of Fact, Conclusions of Law and Briefs, and a Reply Brief was filed by the Secretary on May 8, 1972 (R.pp.H-16, 17, 18).

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n1 References are to pages in Commission Docket File No. 299; to the transcript of the hearing held herein (Tr. ) and to exhibits in evidence (Exh. ).

n2 See Complainant's Brief (p.2) and Proposed Findings of Fact (p.2, 3, 5, 14).

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Having considered the entire record herein, the representations and admissions of the parties, the transcript of testimony and exhibits, it is concluded that the substantial evidence on the record considered as a whole, supports the following;

FINDINGS OF FACT

1. No affected employees or authorized representative of affected employees expressed any desire at or before the hearing to participate in these proceedings as a party of record (Tr. 2).

2. In his Complaint, the Secretary withdrew Items numbered 14, 15 and 17 of the Citation herein, on the grounds that the effective date of the Standards set forth at 29 CFR 1910.179(b)(6), (Item No. 14) and 29 CFR 1910.179(c)(3) -- (Item No. 15) had been delayed to February 15, 1972, and thus were not in effect during the inspection of Respondent's workplace during October 1971. The Secretary further concluded that there were "insufficient facts to support the charge that respondent violated 29 CFR 1910.179(n)-(1)" -- (Item No. 17). The Secretary's proposed penalty was therefore reduced $25.00 by withdrawing Item No. 15 and $25 by withdrawing Item No. 17, resulting in an amended proposed penalty in the total amount of $329.00 (Tr. 5, 6; R. p. 6-Complaint pp. 7, 8).

3. At the outset of the hearing the Secretary's motion to dismiss Items numbered 19, 20, 21, 22 and 29 of the Citation herein, on the grounds of insufficient evidence, was granted without objection. No penalties had been proposed as to these Items (Tr. 3-6 Rp. 1, 2).

4. The Secretary's further motion to amend Item No. 5 of the Citation by substituting "1-9" in the parenthetical clause thereof for the numbers "1-29, 1-7" was also granted with the agreement of Respondent. (Tr. 3).

5. The following stipulation entered into on the morning of the hearing, was entered in the record.

STIPULATION

It is hereby stipulated between the parties as follows:

(a) AMERICAN MOTORS CORPORATION, hereinafter called Respondent, is and at all times hereinafter mentioned was a Delaware Corporation having its principal office at 14250 Plymouth Road, Detroit, Michigan.

(b) Respondent is engaged in the manufacture of automobiles in many states and foreign countries and in the sale of said automobiles throughout the United States and many foreign countries.

(d) Respondent admits ownership and control of the equipment, machinery, and premises referred to in the Citation and Complaint.

(e) Respondent represents that there are no other companies engaged in the manufacture of automobiles in the general area of Milwaukee, Wisconsin, the location of the workplace at which the violations alleged in the Complaint occurred. Respondent is the fourth largest automobile manufacturer in the United States and has annual sales of approximately $1 billion.

(f) Respondent represents that there have been no previous violations by the Respondent of laws or regulations affecting the health or safety of employees.

(g) The average daily number of employees of the Respondent for the current year at the workplace referred to in the Citation and Complaint is 3,200.

(h) Respondent admits that service upon the Respondent of the Citation, Notice of Proposed Penalty and Complaint was proper.

(a) Respondent admits violation of Section 5(a)(2) of the Occupational Safety and Health Act and the occupational safety and health standards duly promulgated pursuant to Section 6 of the Act as alleged in paragraph IV(a)(1), 3, 4, 5 (with regard to Secs. 1-8 and 1-9, Bldg. 1 only), 6, 7, 8, 10, 12, 13, 14, 15, 20, 22, 24, and 25 of the Complaint (Items 1, 3, 4, 5, 6, 7, 8, 10, 12, 13, 16, 18, 23, 25, 27, and 28 of the Citation respectively).

(b) With regard to paragraph IV(a)(2) of the Complaint (Item 2 of the Citation), Respondent admits that goods and materials were protruding in aisles and passageways in Sec. 1-29, Bldg. 1.

(c) With regard to paragraph IV(a)(9) of the Complaint (Item 9 of Citation), Respondent admits that there was a hole approximately 3" by 4" and 3" deep in the floor in Sec. 27A, Bldg. 2.

(d) With regard to paragraph IV(a)(11) of the Complaint (Item 11 of Citation), Respondent admits that an electrode holder was placed in a position where it could come in physical contact with a compressed gas tank; however, Respondent asserts that the electrode holder could not make electrical contact with the compressed gas tank.

(e) With regard to paragraph IV(a)(21) of the Complaint (Item 24 of Citation), Respondent admits the existence of a welding site in Sec. 1-7, Bldg. 1 where Imperial 75 welding wire was being used; however, Respondent denies that said site contained structural barriers which significantly obstruct cross ventilation.

(f) With regard to paragraph IV(a)(24) of the Complaint (Item 27 of Citation), Respondent admits that the operator of a portable stone grinder was not wearing protective face equipment.

(g) With regard to paragraph IV(a)(26) of the Complaint (Item 29 of Citation), Respondent admits that said operator of a spray booth was not using a respirator.

The Respondent does not contest the proposed assessment of penalties for any item of violation admitted herein or determined as a result of the hearing in this matter (Tr. 12-16).

6. As a result of the amendments, admissions and stipulation detailed supra, there remained at issue for hearing, Items numbered 2, 5 (with respect only to a fire extinguisher located in section 1-21 of Building 1 at Respondent's Milwaukee plant), 9, 11, 24 and 26 of the Citation (Tr. 9).

7. On October 1, 12, 13 and 14, 1971, Compliance Officer Wasko of the Occupational Safety and Health Administration conducted an inspection of Respondent's automobile manufacturing plant located at 3880 North Richards Street, Milwaukee, Wisconsin (hereinafter workplace), which resulted in the issuance of the Secretary's Citation and proposed penalties on November 30, 1971. During this inspection he was accompanied by representatives of both the Respondent and its employees (Tr. 20-22, R-pl, 2).

8. Item No. 2 of the Citation alleges that Respondent failed to comply with the Standard set forth at 29 CFR 1910.176(a) in that:

"Employer failed to provide clear aisles and passageways (Sec. 1-29, Bldg. 1)" (R.p.1).

This alleged violation is set forth as follows in the Complaint:

"Failed, where mechanical handling equipment is used, to keep aisles and passageways clear" (R.p.6 para IV(a)(2)).

No penalty was proposed for this condition (R.p.2). The Standard in question provides:

(a) Use of mechanical equipment. Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard. Permanent aisles and passageways shall be appropriately marked (Exh. G-1).

9. Mr. Wasko testified that during his inspection of Section 1-29, Building 1 of Respondent's workplace, he ". . . observed material protruding into the main aisle, and some side passageways, also their (there were) powered industrial trucks operating in the aisleway" (Tr. 22). He later clarified the "material" he observed in the main aisle as racks of unicides (A unicide is a stamped side of an automobile body) (Tr. 115). He did not determine what the other "material" was which he observed in any side passageways. He offered the opinion that this condition created a hazard, in that "A powered industrial truck could possibly strike against the material thereby injuring the operator and/or passers by in the area" (Tr. 23) (Tr. 22-25).

On cross examination it developed that Mr. Wasko did not measure either the width or length of the main aisle, nor did he measure how far into the aisle the stack of unicides protruded. The dimensions of any mechanical equipment in use was not ascertained. He was unable to identify a photograph proffered of this particular site (Tr. 47-52).

10. The Respondent concedes that a stack of unicides, standing on end, did protrude into the main aisle at this location. However, Respondent's Assistant Plant Manager testified that the main aisle in question is 15 feet wide, and the unicides protruded approximately 2 to 4 feet into this aisle. Further, that this material as observed was temporarily in said position as the inventory of unicides was being arranged (Some unicides were at the time being off loaded from railway cars and because different automobile models have different unicides, it is necessary to arrange the inventory in a certain order) (Tr. 115). This witness further testified that this condition normally would not persist for more than 5 minutes during this sorting process (Tr. 98-100; Stip. p.3 para II(b)).

In the opinion of Respondent's Director of Industrial Relations, whose responsibilities include supervision of safety practices (Tr. 106), the stack of protruding unicides was a temporary condition and was not in any way a hindrance to the passage of vehicles because in fact, powered industrial trucks were used to place the stacks in the observed position. Further, that there was no reasonable probability of these stacks being struck by a vehicle because of the 15 foot width of the aisle, in his words, "I'd say you'd have to be blind. They are fifteen foot aisles" (Tr. 116) (Tr. 106-108, 115, 116).

Based upon the evidence of record it is clear that the rack of unicides did not create a condition at this site where there was insufficient safe clearances in this aisle, that this condition was temporary, and further, that there was no reasonable probability of hazard created by this condition. The substantial evidence of record does not support the allegation of non-compliance with 29 CFR 1910.176(a) as set forth in Item No. 2 of the Citation.

11. Item No. 5 of the Citation, as amended, alleges that Respondent failed to comply with the Standard set forth at 29 CFR 1910.157(a) in that:

"Employer failed to provide that all the general requirements for portable fire extinguishers be met" (Secs. 1-8, 1-9, 1-21, Bldg. 1) (R.p.1 as amended).

This alleged violation is set forth as follows in the Complaint:

"Failed to maintain its portable fire extinguishers in accordance with general requirements in that, among other things, fire extinguisher were obstructed and obscured from view and not properly mounted" (Secs. 1-8, 1-9, 1-21 Bldg. 1) (R. p. 6 para IV(5)).

No penalty was proposed for these conditions, which conditions as to Bldg. 1 sections 1-8 and 1-9 were admitted. (R.p.2, Tr. 14, para. II(a) Stipulation).

The Standard in question provides:

(a) General requirements -- (1) Operable condition. Portable extinguishers shall be maintained in a fully charged and operable condition, and kept in their designated places at all times when they are not being used.

(2) Location. Extinguishers shall be conspicuously located where they will be readily accessible and immediately available in the event of fire. They shall be located along normal paths of travel. . . . (5) Mounting of Extinguishers. Extinguishers shall be installed on the hangers or in the brackets supplied, mounted in cabinets, or set on shelves unless the extinguishers are of the wheeled type (Exh. G-2).

12. Mr. Wasko testified that during his inspection of Section 1-21 of Building 1 of Respondent's workplace, he observed a fire extingusiher on the floor in a congested area, not mounted and not in its designated place, which condition was contrary to the provisions of the Standard cited Finding No. 11 supra, and which condition, in his opinion constituted a hazard in that the extinguisher could be struck and damaged and rendered inoperable and in the event of fire, an employee might not be able to readily locate the extinguisher.

Although both Respondent and employee representatives were present, this condition was not pointed out to them when observed, but was discussed during the closing conference (Tr. 25-28, 52-54, 100, 108, Exh. G-2).

There is no substantial evidence that this observed condition did not exist, and Respondent's argument that . . . "Mr. Wasko's recollection was hazy and he quite possible(y) was confused with other areas where the company has already admitted to a violation pertaining to fire extingusihers," (Resp. Brief p. 4) is not supported in this record.

13. Item No. 9 of the Citation alleges that Respondent failed to comply with the Standard set forth at 29 CFR 1910.22(a)(3) in that:

"Employer failed to provide a floor free of holes (Sec. 27A, Bldg 2)" (R.p.1).

The Complaint sets forth this alleged violation as follows:

"Failed to keep the floor free of holes" (Sec. 27A, Bldg. 2) (R.p.6, para IV(9)).

A $25.00 penalty is proposed for this violation (R.p.2). The Standard in question provides as follows: "To facilitate cleaning, every floor, working place, and passageway shall be kept free from protruding nails, splinters, holes, or loose boards" (Exh. G-3).

14. Mr. Wasko testified that during his inspection of Section 27A of Building 2 of Respondent's workplace, he observed ". . . a hole in the floor about two to three inches wide, about four or five inches long, and about two, three inches deep --" (Tr. 29) in a floor made of wooden blocks, which condition was contrary to the Standard cited in Finding No. 13 supra, and which condition, in his opinion constituted a hazard in that the hole impeded cleaning, and . . . it could constitute an unhealthy atmosphere for employees, and also constitute a tripping hazard" (Tr. 31). He further testified that this particular location was approximately 15 by 35 or 40 feet in area and that this area was clean. Further that an employee advised him that missing blocks in this type of floor was a reoccurring condition and that Respondent replaced such blocks continually (Tr. 29-33, 54-59).

The Respondent in its Stipulation admitted that a hole approximately 3" X 4" and 3" deep did exist at this location. Its assistant Plant Manager testified that blocks in this floor measure 2-5/8" X 6-1/4", that about 4" of one block was missing, not the entire block and further that this area was clean (Tr. 10, Stip. para II(c)).

The opinion of Mr. Wasko as to a "tripping hazard" goes beyond the standard relied upon by the Secretary. The evidence of record supports the inference that the partial missing block condition was a temporary condition, representing a reoccurring problem with this type floor which Respondent has routinely corrected in the past, and resulted in an extremely slight if any interference with cleaning.

In view of the evidence of record, this minor infraction does not have a direct or immediate but rather a remote relationship to the safety or health of Respondent's employees and may reasonably be classified as a "de minimis" violation within the meaning of Section 9(a) of the Act and Section 1903.14 of the Secretary's Regulations (29 CFR 1903.14). It is therefore concluded that Item No. 9 of the Citation should be vacated to arrive a just result herein.

15. Item No. 11 of the Citation alleges that Respondent failed to comply with the Standard set forth at 29 CFR 1910.252(b)(4)(vii) in that:

"Employer failed to provide a condition where electrode holder, not in use, could not make electrical contact with compressed gas tank" (Sec. 1-3, Bldg. 1) (R.p.1).

The Complaint sets forth this alleged violation as follows:

"Failed to place electrode holders in a position so that when not in use they could not make electrical contact with compressed gas tank" (Sec. 1-3, Bldg. 1) (R.p.6, para. IV(11)).

No penalty was proposed for this condition (R.p.2).

The Standard in question provides:

"Electrode holders. Electrode holders when not in use shall be so placed that they cannot make electrical contact with persons, conducting objects, fuel or compressed gas tanks" (Exh. G-4).

16. Mr. Wasko testified that during his inspection of Section 1-3 of Building 1 of Respondent's workplace he observed" . . . an electrode holder attached to a cable, and an electric arc welder, not in use, but resting in close proximity to a compressed gas tank, or cylinder" (Tr. 33). He testified that the distance between the electrode and tank, ". . . would be a matter possibly of a couple of feet" (Tr. 33). He ventured the opinion that this condition was contrary to the cited Standard and constituted a hazard, ". . . based on the fact that -- the compressed gas tank could become grounded by some means or other, and become part of the circuit, when the electrode holder would come close enough to strike an arc, maybe that an arc may be struck, the arc would meet and burn part of the cylinder, weakening and reducing the thickness and weakening the wall. The gas under pressure could force a hole in the wall, and then the gas escaping would propel the tank like a missile, just essentially like a filled-up balloon nozzle when released the balloon would go any which way at high speed" (Tr. 35, 36). He further stated that the "believed" the tank in question contained carbon dioxide and there was no danger of fire or explosion (Tr. 36). Upon cross examination, this witness was rather vague and conjectural as to how this tank, resting on a cement floor, could become grounded so as to make an electrical circuit (Tr. 59-63).

The Respondent in its Stipulation admitted, ". . . that an electrode holder was placed in a position where it could come in physical contact with a compressed gas tank; however, Respondent asserts that the electrode holder could not make electrical contact with the compressed gas tank" (Stip. para II(d)).

Respondent's Director of Industrial Relations, who as a marine engineer was knowledgeable of and had done welding operations, testified that the possibility of the electrode making an electrical contact with the tank was "ridiculous" (Tr. 127) because it would be necessary to attach the ground wire from the electrical welder to the tank and simultaneously press the welding rod in the electrode against the tank (Tr. 125-128).

Because of the vague, conjectural and indefinite testimony of the inspecting compliance officer, it is concluded that the substantial evidence of this record does not establish that there was a reasonable possibility of the electrode in question making an "electrical contact" with the compressed gas tank. The allegation of failure to comply with 29 CFR 1910.252(b)(4)(vii) has not been adequately supported and Item No. 11 of the citation must be vacated.

17. Item No. 24 of the Citation alleges that Respondent failed to comply with the Standard set forth at 29 CFR 1910.252(f)(2)(i)(c) in that:

"Employer failed to provide mechanical ventilation at welding site using Imperial 75 welding wire and containing structural barriers" (Sec. 1-7, Bldg. 1)

(R.p.1).

This alleged violation is phrased as follows in the Complaint:

"Failed to provide mechanical ventilation at a welding site, which contains structural barriers which significantly obstruct cross ventilation, where Imperial 75 welding wire was being used (Sec. 1-7, Bldg. 1) (R. p. 6, para IV(21).

The Standard in question provides:

(2) Ventilation for general welding and cutting -- (i) General. Mechanical ventilation shall be provided when welding or cutting is done on metals not covered in subparagraphs (5) through (12) of this paragraph. (For specific materials, see the ventilation requirements of subparagraphs (5) through (12) of this paragraph).

. . . (c) In confined spaces or where the welding space contains partitions, balconies, or other structural barriers to the extent that they significantly obstruct cross ventilation (Exh. G-5).

18. Mr. Wasko testified that during his inspection of Section 1-7 of Respondent's Building 1 he observed a welding site at this location where an employee was welding using an electrical arc welder. He observed ". . . a curtain drawn, in the direction that we were facing" (Tr. 36). He further observed ". . . fumes rising under and over the helmet, vertically upwards, and no horizontal deviation of the smoke plume" (Tr. 36). He testified, "That there were obstructions in the area. We had a vertical I -- beam column to which the curtain was attached. And there was a wall of the building some twenty feet to one side. There was no mechanical ventilation" (Tr. 36, 37).

He further stated that the welding being done did not involve the types of metal referred in subparagraphs (5) through (12) of the cited Standard. In his opinion the observed condition was not in compliance with the cited Standard because, "There was no evidence of cross ventilation. There were structural barriers in the area" (Tr. 39). It was his further opinion that a hazard existed because welding fumes were ". . . not being diluted sufficiently, or being removed laterally from the working area of the welder. The welder could become sick with metal fever or welder's fever, for instance" (Tr. 39, 40).

On cross examination it was developed that this welder was in a large room, the area in question being about 50 feet square. The nearest wall to this area was approximately 20 feet, that the ceiling was over 16 feet high and the welder had a curtain on one side of him, and "Probably at least two" (Tr. 66) sides of the welding site were open. In the witnesses opinion the "structural barriers" present at this site were the wall of the building 20 feet away, the curtain and the structural I beam which was about 1 foot square (Tr. 63-69).

In its Stipulation, the Respondent admitted, ". . . the existence of a welding site in Sec. 1-7, Bldg. 1 where Imperial 75 welding wire was being used; however, respondent denies that said site contained structural barriers which significantly obstruct cross ventilation" (Stip. para II(e), Tr. 15).

The Assistant Plant Manager of Respondent testified that the nearest wall to this site was exactly 20 feet, that there was "a shield on the table that he does his welding on, to protect anybody from sparks or arc, -- that stood maybe eighteen inches above the table" (Tr. 102), that there was no curtain at all at this site but there was a ". . . sheet metal curtain, which is another twenty feet" (Tr. 103) and in his opinion there were no structural barriers. He confirmed the existence of a 1 foot square supporting I beam within a few inches of the welders bench (Tr. 101-103). He further testified that the distance from floor to ceiling at this site is 15 feet 2-1/2 inches (Tr. 105).

The testimony of Respondent's Director of Industrial Relations, who was at this site with Mr. Wasko during the inspection as was the Assistant Plant Manager, confirms the existence of the I-beam near the welder's bench. He further testified that there was ". . . a small backdrop curtain, which I believe is behind him. I would guess approximately two, two- and-a-half feet wide" (Tr. 109). It was his opinion that there were no barriers preventing cross ventilation as the area was "wide open" (Tr. 109). He further described this room as having six or seven large windows on its west wall, about 30 feet from the site in question, which could be opened depending on the desires of women spot welders working near the windows, and the weather, and to doorways in the east wall approximately 16' wide and "considerably higher" than a man, used by industrial trucks to go from the room in question to another inside area. He further confirmed the lack of any mechanical ventilation at this welding site although there was and "exhaust system" at another location in this room, which did not beneficially effect air flow at the welding site (Tr. 109-114).

The evidence thus reveals a conflict as to the existence of a "curtain" in close proximity to the site in question. In any event, it is concluded that the site in question can not reasonably be described as a "confined space" within the provisions of subparagraph (c) of the Standard in question, nor can either a 2-1/2 foot wide backdrop curtain or a 1 foot square I beam reasonably be construed to be "structural barriers" which "significantly" obstructed cross ventilation at this site within the meaning of this subparagraph. The substantial evidence thus does not support the allegation of non-compliance with subparagraph(c) of the cited Standard. However, this evidence does establish the lack of any "Mechanical ventilation" as required by subparagraph (2) of this standard, and thus a failure to comply with 29 CFR 1910.252(f)(2) is established upon this uncontroveted evidence.

19. Item No. 26 of the Citation alleges the Respondent's non-compliance with the Standard set forth at 29 CFR 1910.179(n)(3)(i) in that:

"Employer failed to provide a well-secured carpet roll load in a lifting device of a P & H Hoist" (Sec. 27, Bldg. 2) (R. p. 1).

The Complaint phrases this alleged violation as follows:

"Failed to properly secure a carpet roll load in a lifting device of a P & I hoist" (Sec. 27, Bldg. 2) (R.p.6 para IV (23)).

The Standard in question provides:

"Moving the load. (i) The load shall be well secured and properly balanced in the sling or lifting device before it is lifted more than a few inches" (Exh. G-6).

20. Mr. Wasko testified that during his inspection of Section 27 of Respondent's Building 2 he observed a P & H hoist which ran on an overhead trolly. To its lifting cable was attached a rigid lifting device shaped like an inverted U measuring approximately 60 inches wide at its opening. The ends of each leg of this device were hook shaped. This device was used to lift and move rolls of carpet from industrial hand carts a distance of about 50 feet to a cutting and molding machine. This was accomplished by inserting a metal rod into the core of a carpet roll, lowering the hooks on the lifting device, placing the ends of the rod in the hooks, then lifting the roll and moving the hoist along the overhead trolly to the carpet machine. Three widths of carpet rolls were utilized by Respondent, 42, 45 and 56 inches (Tr. 83). Mr. Wasko testified that both ends of the rod in use were about 2 inches less in diameter than the rest of the rod, so that when the hooks were attached to the ends of the rod, ". . . this larger diameter of the rod would tend to prevent the rod from moving laterally, horizontally" (Tr. 40). He ". . . observed with a slight tilt, the carpet roll could move laterally. The width of the carpet roll was some three to four inches shorter at each end than the fixed frame of the sling" (Tr. 41). He further ". . . noted that there was no safety latches on the hooks. The rods could possibly be raised up out of the throat of the hooks and out of the sling" (Tr. 41).

In his opinion this condition was contrary to the cited standard because the load was not well secured in the lifting device so that it could move laterally, ". . . and if the load was not bearing down on the rod, and the rod then bearing down on the side hook, the end of the rod could possibly be lifted out of the hook one end or the other, the load could fall," and employees could be injured (Tr. 42). He further stated his opinion that a hazard existed because with a slight tilt of the rigid lifting device, if an employee had his hand on the frame and a carpet roll shifted horizontally, the employees hand might be caught or pinched (Tr. 43) (Tr. 40-45).

On cross examination it was developed that a demonstration was conducted with this lifting device at the time of the inspection in which different sized carpet rolls were tilted on the lifting device to various angles including a severe angle. The witness testified that although he saw a carpet roll move horizontally when the bar was only slightly tilted no carpet rolls were dislodged from the lifting device. The witness acknowledged that if this equipment were used properly carpet rolls could not be unhooked from the lifting device. He further testified that he observed no obstructions between the hand carts holding the rolls of carpet and the carpet machine along the route traveled by the overhead crane, and based upon this condition "There would be hardly no chance whatsoever" of a carpet roll becoming dislodged from the lifting device (Tr. 75). The witness finally testified that the essential hazard he believed to exist was the danger of an employees hand or fingers being caught between a carpet roll and the leg of the U shaped lifting device if the employee pulled the loaded hoist by its leg and the carpet roll shifted against the leg (Tr. 69-81).

21. The Secretary produced the testimony of two of Respondent's employees who worked with the carpet hoist in question. They testified that each carpet roll weighs from 350 to 600 pounds and in a normal day's work, about 50 rolls are handled as previously described. Further that in the past they had experienced difficulties when hand carts would arrive at this site with rolls of carpet stacked too high. In using the hoist to attempt to lift the top roll from the highly stacked load, there was insufficient vertical lifting distance which necessitated dragging the carpet roll from the top of the stack during which procedure, some rolls become dislodged from the lifting device, falling to the floor. Additionally, one witness testified that he had his hand pinched once between a leg of the lifting device and the flange of the larger diameter center section of the carpet rod as he pulled a load by the leg of the lifting device (Tr. 81-96).

22. Respondent's manager of safety and security testified to a second demonstration with the lifting device in question after the inspection during which attempts were again made to dislodge a carpet roll from the hoist which were unsuccessful. Mr. Wasko was present during this demonstration and his suggestions on ways to dislodge the carpet roll were followed but the load was not dislodged. The depth of the hooks on each leg of the device had been increased by welding a 2 to 2 inch piece of metal onto the hooks. He further testified that neither he nor his office received any complaints concerning any injuries involved with the carpet hoist operation here at issue (Tr. 120-125).

23. Respondent, through its foreman of the carpet operation in question, readily acknowledged that at the beginning of the model year in August, a problem did exist with too highly stacked carpet loads arriving at the site in question. Instructions were issued to Respondent's trucking department to reduce the height of the loads. Further the carpet employees were instructed not to attempt to off load a cart which was stacked too highly but to advise the foreman who had the trucking department come and reduce the height of the load. This problem was corrected by the time of the Secretary's inspection. He further acknowledged ordering extensions to be added to the hooks of the lifting device after the initial inspection to increase the stability of the device and to make the lifting operating easier for the employees. He further testified that employees are instructed in the use of this device. These instructions include the use of a chain from the overhead motor of the hoist which was to be used to pull the hoist along the overhead trolly. Employees were cautioned not to use the legs of the device to move the load, but to use the chain for that purpose and not to put their hands on the loaded device. These instructions also included directions to balance any load before lifting it with the hoist (Tr. 129-134).

It is clear from the evidence of record that although a problem with falling carpet rolls had existed at Respondent's work place at the beginning of the model year, this problem had been corrected and instructions issued, which if followed, would prevent further accidents. It is further established that if Respondent's instructions concerning balancing the loads, and use of the chain to move the loads, were followed, there was no danger to employees' hands from carpet rolls shifting horizontally in this lifting device. Indeed, the inspecting compliance officer conceded the lack of hazard if these instructions were followed.

It is concluded that the substantial evidence of record does not establish Respondent's failure to comply with the standard set forth at 29 CFR 1910.179(n)(3)(i) and Item No. 26 of the Citation and the $25 penalty proposed thereon must be vacated.

24. The proposed penalties for any item of violation either admitted or found to have existed as a result of the hearing herein are not contested by Respondent (Stip. para. III, Tr. 16).

CONCLUSIONS OF LAW

1. Jurisdiction of this action is conferred upon the Commission by Section 10(c) of the Act.

2. At all times involved in this case, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

3. At all times involved in this case, Respondent furnished employment to its employees at a workplace located at 3880 North Richards Street, Milwaukee, Wisconsin and the Act is applicable to such employment within the meaning of Section 4(a) of the Act.

4. On November 30, 1971, the Secretary pursuant to the provisions of Sections 9(a) and 10(a) of the Act, issued to this Respondent a Citation for Non-Serious Violations and a Notification of Proposed Penalty in the total amount of $379.00.

5. On December 13, 1971, pursuant to the provisions of Section 10(c) of the Act, this Respondent thnely filed with the Secretary his notification of intent to contest the citation and proposed penalties. The Secretary thereupon transmitted this case to the Commission which, pursuant to the provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.

6. The Citation, Notification of Proposed Penalties and Notice of Contest were served by and upon the respective parties hereto consistent with the provisions of Section 10 of the Act and notice was given employees of their right to participate in these proceedings.

7. The Secretary has withdrawn Items numbered 14, 15, 17, 19, 20, 21, 22 and 29 of the Citation, which reduced the proposed penalties from $379 to $329.

Item number 5 of the citation was amended by substituting section number 1-9 for section numbers 1-29 and 1-7 of Building 1 -- the site of the alleged violation charged in this Item.

8. The Respondent has admitted violation of Section 5(a)(2) of the Act by failing to comply with the following occuational safety and health standards duly promulgated pursuant to Section 6 of the Act, set forth in Part 1910 of Title 29 to the Code of Federal Regaultions, as alleged in the following Items of the Citation:

.176(b) -- Item No. 1

.23(d)(e) -- Item No. 3

.23(a)(7) and (8) -- Item No. 4

.157(a) -- 5 with respect to sections 1-8 and 1-9 of Building 1.

.157(d)(1), (3)(i) and (iv) -- Item No. 6.

.25(d)(1) -- Item No. 7

.22(a)(2) -- Item No. 8

.22(a)(1) -- Item No. 10

.252(d)(1)(vii) -- Item No. 12

.179(b)(5) -- Item No. 13

.179(j)(2)(iv) -- Item No. 16

.179(n)(3)(vii) -- Item No. 18

.252(a)(2)(iv)(c) -- Item No. 23

.178(m)(2) -- Item No. 25

.133(a)(1) -- Item No. 27

.95(b)(1) -- Item No. 28

9. The substantial evidence of record considered in its entirety does not establish that Respondent violated Section 5(a)(2) of the Act by failure to comply with the following occupational safety and health standars set forth in following items of the Citation:

29 CFR 1910.176(a) -- Item No. 2

29 CFR 1910.252(b)(4)(vii) -- Item No. 11

29 CFR 1910.179(n)(3)(i) -- Item No. 26

10. The substantial evidence of record considered in its entirety does establish that Respondent violated Section 5(a)(2) of the Act by failing to comply with the following occupational safety and health standards set forth in the following Items of the Citation:

29 CFR 1910.157(a) -- Item No. 5 in that in Section 1-21 of Building 1 of Respondent's workplace a portable fire extinguisher was not kept in its designated place at all times when not in use;

29 CFR 1910.252(f)(2) in that in Section 1-7 of Building 1 of Respondent's workplace mechanical ventilation was not provided when welding was being conducted using Imperial 75 welding wire.

11. The substantial evidence of record considered in its entirety does not support the alleged non-serious violation of Section 5(a)(2) of the Act and the Standard set forth at 29 CFR 1910.22(a)(3) as set forth in Item No. 9 of the Citation herein. Respondent's failure to have repaired the small hole in the floor of Section 27 A of Building 2 of its workplace on the date of the inspection herein is reasonably classified as de minimis within the meaning of Section 9(a) of the Act and Section 1903.14 of the Secretary's Regulations, 29 CFR 1903.14.

12. The reaonsableness of the various abatement dates was not put in issue in these proceedings.

13. The penalties proposed based upon Items numbered 9 and 26 of the Citation herein, in view of the foregoing, are vacated.

14. Due consideration having been given to the provisions of Section 17(j) of the Act as applicable to the evidence of record, and weighing particularly the gravity of the violations herein admitted or found to exist, it is concluded that a civil penalty in the total amount of $279.00 is appropriate and obtains a just result.

Based upon the foregoing findings and conclusions, and pursuant to the provisions of Section 10(c) of the Act, it is hereby,

ORDERED:

1. That the Citation for Non-Serious Violations dated November 30, 1971, directed to the Respondent herein is amended by striking Items numbered 14, 15, 17, 19, 20, 21, 22 and 29 thereof, and is further amended by vacating Items numbered 2, 9, 11 and 26, and, as amendd, is AFFIRMED.

2. That the Secretary's proposed penalties in the total amount of $379.00 based upon the original Citation is modified by reducing the total amount thereof to $279.00.

3. Pursuant to Section 17(j) of the Act, said civil penalty in the total amount of $279.00 is hereby accessed against the Respondent herein based upon the violations herein found or admitted to have existed, payment thereof to be made to the Secretary within thirty days of the issuance of the final order herein.