Docket No. 668

CALIFORNIA ROTOGRAVURE COMPANY

OSHRC Docket No. 668

Occupational Safety and Health Review Commission

January 28, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision of Judge Garl Watkins. Judge Watkins concluded that Respondent had committed non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) by violating the standards published at 29 C.F.R. 1910.178(m)(9) and 29 C.F.R. 1910.23(c)(1). The Judge further concluded, inter alia, that Respondent had not violated the standard published at 29 C.F.R. 1910.106(e)(2)(iv)(a). No penalties were assessed.

We have reviewed the record and adopt the decision of the Judge to the extent it is consistent herewith.

Alleged Violation of 29 C.F.R. 1910.178(m)(9)

This standard provides as follows:

An overhead guard shall be used as protection against falling objects. It should be noted that an overhead guard is intended to offer protection from the impact of small packages, boxes, bagged material, etc., representative of the job application, but not to withstand the impact of a falling capacity load.

The facts are that Respondent, a printer, uses wooden [*2] skids, or pallets, for the shipment of books. These pallets are handled by two forklift trucks, neither of which was equipped with an overhead guard at the time of the inspection. Empty pallets, stored in an outside paved yard in stacks 7 feet high, are moved into Respondent's pressroom or bindery as needed by a Clark forklift which has a mast height also of 7 feet. Damaged pallets are taken into the carpentry shop for repair by a Yale forklift in stacks approximately 5 feet high. This forklift has a mast height of 5 feet, 6 inches.

When used in the carpentry shop the Yale forklift is operated only in the center of the shop which contains no stored materials other than pallets. The paved yard where undamaged pallets are removed by the Clark forklift is also clear except for the stacks of pallets themselves.

Judge Watkins concluded that a violation existed on these facts. We do not agree.

In order to establish a violation of this standard there must be proof of a danger of falling objects sufficient to require an overhead guard. Hennis Freight Lines, Inc., Since the pallet [*3] stacks are not above the mast of either forklift while being carried it is extremely unlikely that a stack or portion thereof could fall over the top of the mast onto the operator. Thus it cannot be said that there is a danger of falling objects requiring an overhead guard during movement of the forklift.

In addition, the evidence does not establish that either forklift would ever lift a pallet stack above the mast prior to moving the stack. Nor is there any evidence of the height at which the pallets are stacked when they are brought into the pressroom, bindery, or carpentry shop. Therefore we cannot conclude that an overhead guard is required during these operations. Lastly, the evidence does not establish that any pallet stack is unstable so that it might fall if bumped into, and there is no evidence of other stored materials which could fall from overhead onto the forklift operator.

Accordingly, we vacate for failure of proof.

Alleged Violation of 29 C.F.R. 1910.23(c)(1)

The cited standard requires that "[e]very open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing . . . ." A "platform" is defined at 29 [*4] C.F.R. 1910.21(a)(4) as a "working space for persons, elevated above the surrounding floor or ground . . . ."

It is undisputed that an open-sided flat roof over Respondent's office 8 feet, 6 inches high did not have a railing. It is also undisputed that Respondent's employees occasionally would ascend to this roof to place material in storage and to handle stored material. On these facts the Judge found a violation and we agree.

Unlike Ventre Packing Company, Inc., Therefore, at such times the roof is a "platform" because it is being used as a "working space." Since it had no guardrail a violation exists and we affirm. We further agree with the Judge that on the facts no penalty is appropriate.

Alleged Violation of 29 C.F.R. 1910.106(e)(2)(iv)(a)

The requirement of this standard is that "[f]ammable liquids shall be kept in covered containers when not actually in use." Subparagraph (a)(19) thereof defines a "flammable liquid" as "any liquid having a flash-point [*5] below 140 degrees F. and having a vapor pressure not exceeding 40 pounds per square inch (absolute) at 100 degrees F."

It is undisputed that solvent used in Respondent's pressroom was stored in three drums which were uncovered. Respondent's plant engineer testified that this solvent is tolusol and the record establishes that "tolusol" is a trade name for toluence. There is hearsay evidence that tolusol or toluene is a flammable liquid under the above-quoted definition, but this hearsay was not corroborated in any manner.

On this record Judge Watkins vacated for failure of proof, stating, inter alia, that there was no evidence that the solvent in question is flammable according to the definition in the standard. Plainly this statement is erroneous. However, the error is harmless under the circumstances since we normally will not allow a citation to stand solely on the basis of hearsay evidence. * Milprint, Inc., The hearsay evidence as to flammability being uncorroborated, the Judge's vacation for failure of proof will be affirmed.

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* In his opinion, Commissioner Cleary construes our decision in B & K Paving Company, 11 OSAHRC 444, BNA 2 OSHC 1173, CCH E.S.H.G. para. 18,570 (1974), as standing for the proposition that uncorroborated hearsay is sufficient to support the finding of a violation. We do not read that opinion as expansively as does he for we held that in the normal case uncorroborated hearsay will not support a violation (2 OSHC at 1174, E.S.H.G. at 22,535).

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According, Judge Watkins' order is amended so as to vacate the portion of the citation alleging violation of 29 C.F.R. 1910.178(m)(9) and his decision, as amended, is affirmed to the extent it is consistent herewith. It is so ORDERED.

CONCURBY: MORAN (In Part); CLEARY (In Part)

DISSENTBY: MORAN (In Part); CLEARY (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part, dissenting in part: Except for the action on the § 1910.23(c)(1) charge, I concur with the disposition. Because I do not believe that the roof of respondent's office is a platform within the meaning of the standard, I dissent from the finding that a violation of the [*7] Act has been established based upon a failure to comply with the requirements of the occupational safety and health standard codified at 29 CFR § 1910.23(c)(1).

The record shows that Respondent's office is an enclosed structure located within its carpentry shop. It abuts the wall of the carpentry shop on one side and is surrounded by the shop on its other three sides.

The government safety officer testified that from the floor of the carpentry shop he saw various materials, the nature of which he could not determine from his vantage point, stored on the roof of the office. He stated that these materials appeared to be reasonably near the edge of the roof, but could not estimate what that distance might be. He testified further that the area appeared to be used exclusively for storage and was not a work area.

Respondent's plant engineer testified that the area is a dead storage space explaining that it is an area in which items for which the company has no further use are placed. Among the items stored there were a lawnmower that had not been used for four or five years, light fixtures which had been there since 1969, a hospital bed frame since 1965, and a small amount of plastic [*8] pipe, also since 1965. He stated that these items were placed as far back on the roof as possible, and that he did not believe there was any danger of their falling off.

He could not remember if any items had been placed on the roof since 1969, although he indicated that he had requested employees on occasion to ascend to the roof by means of a step ladder to place items in storage. It was stipulated by the parties that employees climbed up to this area for the purpose of handling stored items.

It is clear that the roof of the office was a storage area, and that the only reason employees were ever on the roof was to place or remove stored items. What is not clear from the evidence however is if, or how frequently, employees had climbed up to the area since 1969. The stipulation and some testimony suggests that they may have done so occasionally since that time.

The standard under which respondent was cited requires that opensided platforms or floors four feet or more above ground have guardrails. It is complainant's contention that the standard is applicable because the roof of the office is a platform within the meaning of the standard. For the purposes of this [*9] standard, a platform is defined in § 1910.21(a)(4) as follows:

A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.

This definition leaves no doubt in my mind that the storage area over the office is not a platform. What the Commission has done to find the standard applicable to respondent, however, is to reason that the occasional presence of employees in a storage area transforms that area into a working space for persons, and then to impose on that conclusion a second metamorphosis: the fact that an area is a working space automatically transforms an elevated structure, whatever it might be, into a platform. I submit that there are defects in both of the links in this chain of reasoning, and that it leads to a result that is not consistent with either the purpose or the plain meaning of the standard.

The definition of a platform first specifies that it is a working space for persons, then amplifies on the meaning of that term by giving examples of area for the operation of machinery or equipment. The common sense definition of a working space is an area where employees [*10] must be in order to perform their jobs. The examples given in the definition confirm that this is the intended meaning. A storage area that employees might go to and come from, in order to place unwanted items there, and where no one is stationed is not such a working space.

The terms working space and storage space mean quite different things, even to those who have not been edified by reading the definition in the standard. The inspector himself recognized this when he stated that this was a storage area and not a work area. The lead opinion, however, fails to recognize the distinction when it transforms an area into a working space because an employee is occasionally present in it.

The second equation in the reasoning advanced in the lead opinion postulates that the roof of the office becomes a "platform" because it is used as a "working space." The import of this statement is that every elevated flat surface automatically becomes a platform once used as a working space. This vastly broadens the scope of the standard. Thus, in this case we are told that the roof of the office becomes a platform because employees set foot on it. As I indicated in Secretary v. [*11] Ventre Packing Co., Inc., 4 OSAHRC 544 (1973), I do not agree with the notion that if employees work on top of a structure it thereby becomes a platform because it is their working space. In Ventre Packing, we were told that the extension of a walk-in cooler would have become a platform if employees had set foot on it. Such an extension of the scope of the standard fails to inform those to whom it applies of its coverage and pulls within its ambit structures it was never intended to apply to, a position I explained in more detail in Secretary v. S. D. Mullins Co., Inc., 4 OSAHRC 1415 (1973).

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur with the lead opinion insofar as it affirms the non-serious violation of the Act for non-compliance with the standard at 29 CFR § 1910.23(c)(1) and vacates the citation for the alleged non-compliance with the standard at 29 CFR § 1910.178(m)(9). I disagree, however, with my colleague's disposition of the alleged non-serious violation of the Act for non-compliance with the standard at 29 CFR § 1910.106(e)(2)(iv)(a).

The facts underlying the alleged non-compliance with the standard at 29 [*12] CFR § 1910.178(m)(9) are set forth in the lead opinion. Respondent contends, and Commissioner Van Namee has found, that "[s]ince the pallet stacks are not above the mast of either forklift while being carried . . ." there is no danger of falling objects so as to require an overhead guard. Judge Watkins found himself unable to agree with this reasoning. I agree with the lead opinion that the citation should be vacated, but, like Judge Watkins, I cannot agree with this reasoning.

Commissioner Van Namee employs the Commission's decision in Hennis Freight Lines, Inc., No. 498 (April 13, 1973) to reverse the Judge and vacate the citation. In Hennis Freight, however, the Commission held that 29 CFR § 1910.178(m)(9) requires overhead guarding whenever there is a possibility of falling objects. In interpreting the standard at issue we said:

This phrasing [of 29 CFR § 1910.178(m)(9)] indicates rather plainly that if there is no possibility of falling objects, there is no requirement for an overhead guard (emphasis added).

After reviewing the facts in this case, I agree that there is no danger of pallets falling over the forklift mast onto the operator in this case, but [*13] this conclusion only accounts for the operator's protection from the stack of pallets being transported. If pallets are stacked to heights above the operator's head, this fact alone is sufficient to create the possibility of pallets falling from a stack and onto an unprotected area of the forklift. n1

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n1 The lead opinion states that "the evidence does not establish that any pallet stack is unstable so that it might fall if bumped into . . . ." The relative stability of the pallet stacks, that is, the probability of a pallet falling, is something to be considered only in determining the degree of gravity in assessing an appropriate penalty under the criteria of section 17(j) of the Act. Baltz Bros. Packing Co., No. 91 (February 8, 1973) (Burch, Commissioner, concurring).

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The Secretary of Labor would sustain his burden of proof and establish a prima facie non-serious violation under the standard at issue by proving that there is a possibility of objects falling onto the forklift operator and that respondent's [*14] forklift truck lacks an overhead guard. In this case, the parties, by stipulation, established that respondent's forklifts lacked overhead guards. The testimony revealed that pallets were stacked to heights of five and seven feet. Complainant, however, failed to establish the relationship between the height of the pallet stacks and the height of the forklift operator while using either of the trucks so as to demonstrate the possibility of pallets falling from the stacks and onto the operator. Had this possibility been demonstrated, I would have affirmed the complainant's citation. See Anheuser-Busch, Inc., No. 2441 (December 24, 1974) (Cleary, Commissioner, dissenting).

Therefore, in light of complainant's failure to establish a prima facie violation, I concur with the lead opinion's disposition of this item.

II.

Concerning the alleged non-compliance with the standard at 29 CFR § 1910.106(e)(2)(iv)(a), n2 the parties, by stipulation, established that the compliance officer observed three uncovered drums of drying solvent during his inspection of respondent's pressroom. The record further established that the drying solvent was "Tolusol" which is a brand [*15] name for toluene trifluoride (toluene).

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n2 This standard is set out in the lead opinion.

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The Judge vacated the complainant's citation and proposed penalty finding "no evidence" on the record to prove that toluene is a flammable liquid under OSHA's definition. My colleague finds the Judge's statement to be "erroneous," but concludes that the error is harmless since the only evidence of flammability within the Act's definition is uncorroborated hearsay which is insufficient to support the citation. I disagree and would find the evidence sufficient to sustain complainant's citation.

The definition of flammable liquids under the Act is found at 29 CFR § 1910.106(a)(19) which states:

§ 1910.106 Flammable and combustible liquids.

(a) Definitions

(19) Flammable liquids shall mean any liquid having a flashpoint below 140 degrees F. and having a vapor pressure not exceeding 40 pounds per square inch (absolute) at 100 degrees F.

The compliance officer, during his testimony, demonstrated that the Act's [*16] definition for flammable liquids is precisely the same definition used by the National Fire Protection Association (NFPA) and that under the NFPA, toluene is considered a flammable liquid. I take official notice of the NFPA standards for flammable and combustible liquids. These NFPA standards, found in NFPA No. 30-1969, were taken verbatim by the Secretary of Labor and promulgated, pursuant to section 6 of the Act, as the national occupational safety and health standards for flammable and combustible liquids. n3 Thus, I conclude that toluene is a combustible liquid within the meaning of the standard.

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n3 29 CFR § 1910.115 Sources of Standards.

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Even if I were to agree that the evidence of flammability is hearsay in nature, I would still disagree with my colleague on the sufficiency of the evidence to sustain the citation.

This Commission, in B & K Paving Co., No. 59 (September 5, 1974) citing Richardson v. Perales, 402 U.S. 389 (1971), has held that uncorroborated hearsay "is sufficiently probative [*17] to support a finding of a violation." In Richardson v. Perales, the respondent, Pedro Perales, was claimant in a disability benefits claim hearing under the Social Security Act. The only evidence adverse to the claimant, upon which the eventual finding was based, consisted of unsworn medical reports of doctors who had examined Perales, but were not present at the hearing. The reports were uncorroborated but not inconsistent Addressing itself to the hearsay nature of the evidence, the Supreme Court stated:

. . . a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant . . . n4

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n4 402 U.S. at 402.

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The validity of a finding in an administrative proceeding is established by determining whether, upon consideration of the record as a whole, the finding is in accordance with the reliable, probative, and substantial evidence. n5 Applying this test to the evidence before us, I deem it to be sufficiently reliable and probative to support the complainant's citation. The evidence on the issue of whether toluene (Tolusol) is flammable within the definition at 29 CFR § 1910.106(a)(19) is based upon the findings and classifications published by the NFPA -- the source of the Act's standards in this area. The respondent challenged neither the reliability and probative value of the NFPA publication nor the ultimate finding of flammability within the standard.

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n5 5 U.S.C. § 556(d).

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Accordingly, I would reverse the Judge and find respondent in violation of the Act for its non-compliance with the standard at 29 CFR § 1910.106(e)(2)(iv)(a).

[The Judge's decision referred to herein follows]

WATKINS, JUDGE: [*19] Respondent, California Rotogravure Company, operates a rotogravure printing business of some size and complexity. It has about three hundred and fifty employees. Of these slightly over one hundred work on a full time basis in the press room and twenty to thirty more work part time -- usually three or four days a week. The record does not disclose how the shifts are arranged but normally no more than thirteen are on duty in the press room at one time.

The press room is three hundred feet square. Included in its installations are five very large presses, one hundred and thirty-two feet long, twenty-two feet high and nine feet wide.

Number and size of other buildings are not disclosed. The carpenter shop is a separate building and is in the shape of a quonset hut. The company operates six fork lift trucks, two of which are involved in one of the items of the Citation.

The company prints three weekly magazines regularly, accounting for about four million copies a week. It is not clear whether they form part of the rotogravure sections of the Sunday editions of the Los Angeles Times, which are printed by Respondent. Other work appears to be less regular and its volume [*20] was not disclosed. One witness mentioned printing for Sears Roebuck and Company.

A two day inspection of the entire work place on February 3 and 4, 1972 produced a citation for violation of standards adopted under the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ), alleging five non-serious violations. They are of a relatively minor nature, but particularly interesting because of the type of violations alleged in the kind of business conducted.

After all were contested one item was abandoned by its omission from the Complaint of the Secretary. In this action under Section 10 of the Act, there are at issue four alleged non-serious violations -- with $150.00 total proposed penalties; involving respectively; failure to require the use of protective goggles in handling acids, absence of an overhead guard from two forklift trucks, absence of a railing on an open sided floor which is a storage area on the roof of the carpenter shop office, and failure to cover containers of flammable liquids when they are not actually in use. The hearing was in Los Angeles on July 6, 1972. No party other than the Secretary and the Respondent appeared although adequate notice [*21] of all proceedings was given to additional parties named as authorized employee representatives and to unknown, unnamed parties by posting.

Before the hearing, Counsel for the Secretary and the Respondent entered into a five page stipulation on undisputed facts. This was not as a result of a pre-trial conference and was not requested. The initiative of Miss Theresa Kalinski for the Secretary and Mr. Robert A. Miller for the Respondent in taking the time and going to the trouble of getting up this stipulation -- thereby simplifying some issues and saving hearing time -- is to be highly commended.

Following is the Citation. After each item is quoted the pertinent allegation of the Secretary's Complaint, followed by the standard alleged to have been violated and that portion of the pre-hearing stipulation applicable to it.

February 22, 1972

". . . . An inspection of a workplace under your ownership, operation, or control located at 11041 VanOwen St., North Hollywood, California February 3 and 4, 1972, and discussed and described as follows Printing of paper inserts for various paper agencies has been conducted. On the basis of the inspection it is alleged that you [*22] have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Citation:

Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected -- Proposed Penalty

1 -- 1910.133(a)(1) -- Protective gloves and eye wear provided but not used by employee handling acid in the etch room -- Abated immediately -- $0.00

Complaint:

V.A. On February 3 and 4, 1972, and at times prior thereto, Respondent violated the standards set forth at 29 C.F.R. 1910.133(a)(1), in that Respondent failed to require an employee to use protective eye equipment where there is a reasonable probability of injury which could be prevented by the use of such equipment.

Standard: 29 C.F.R. 1910.133(a)(1):

(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous [*23] environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

Stipulation:

I. 8. On February 3, 1972, an employee employed in the etching room of Respondent's establishment was drawing muriatic acid from a drum. This employee was not wearing either eye protection or protective gloves. The protective equipment was available, but not worn by the employee.

Citation:

Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected -- Proposed Penalty

3 -- 1910.178(m)(9) -- One Yale and one Clark fork truck not provided with overhead guard to protect against falling objects -- March 8, 1972 -- $60.00

Complaint:

V.B. On February 3 and 4, 1972, and at times prior thereto, Respondent violated the standards set forth at 29 C.F.R. 1910.178(m)(9), in that Respondent failed to provide, on two fork lift trucks, an overhead guard as protection against falling objects.

Standard: 29 C.F.R. 1910.178(m)(9):

An overhead guard shall be used as protection [*24] against falling objects. It should be noted that an overhead guard is intended to offer protection from the impact of small packages, boxes, bagged material, etc., representative of the job application, but not to withstand the impact of a falling capacity load.

Stipulation:

I. 9. In the paper storage area, a Yale forklift truck was being operated for the purpose of moving pallets. The forklift truck was not equipped with an overhead guard for the operator's protection.

10. In the paper storage area, the above mentioned forklift truck was used to stack pallets, weighing approximately 35 pounds to a height of approximately seven feet.

11. In the carpenter shop, a Clark forklift truck was being operated without being equipped with an overhead guard to protect the operator.

Citation:

Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected -- Proposed Penalty

4 -- 1910.93(c)(1) -- Open sided floor on platform over the carpenter shop office used for storage in excess of 7 feet from floor level without the required standard railing or the equivalent -- March 8, 1972 -- $30.00

[*25] Complaint:

V.C. On February 3 and 4, 1972, and at times prior thereto, the Respondent violated the standards set forth at 29 C.F.R. 1910.23(c)(1) in that it failed to provide on a platform over the carpentry shop on such open sided floor or platform which was in excess of four feet above adjacent floor or ground level a standard railing, or its equivalent, on all open sides.

Standard: 29 C.F.R. 1910.23(c)(1):

Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass.

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

Stipulation:

I. 12. The area over the carpenter shop office area is being used to store various items. This storage area is located eight feet, six inches above the surrounding floor level.

13. The storage area over the carpenter shop office was not equipped with [*26] a standard guard railing or equivalent.

14. Employees were required to ascend the storage platform referred to above for the purpose of handling the stored items.

Citation:

Item Number -- Standard or regulation alleged violation -- Date on which alleged violation must be corrected -- Proposed Penalty

5 -- 1910.106(e)(2)(iv)(a) -- Flammable liquids not in actual use are not covered as required -- Abated immediately -- $60.00

Complaint:

V.D. On February 3 and 4, 1972, and at times prior thereto, the Respondent violated the standards set forth at 29 C.F.R. 1910.106(e)(2)(iv)(a), in that flammable liquids were not kept in covered containers when not actually in use.

Standard: 29 C.F.R. 1910.106(e)(2)(iv)(a):

Flammable liquids shall be kept in covered containers when not actually in use.

Stipulation:

I. 15. A drying solvent was stored in the pressroom in the following containers: one 55 gallon drum; two 40 gallon drums, and 10 five gallon containers.

16. The drums and containers of solvent described above were placed in various areas of the pressroom.

17. The containers of solvent were completely opened, that is, the entire top of each container was removed. [*27]

Following is the balance of the stipulation of the parties with those parts quoted above omitted.

In an effort to expedite the hearing of this matter, the parties have entered into the following stipulations:

The following facts are admitted and require no further proof at hearing:

1. Respondent, California Rotogravure Company, is a Division of Publication Corporation, a corporation, and maintains a place of business at 11041 VanOwen Street, North Hollywood, California.

2. Respondent is engaged in the printing and the sale of newspaper inserts.

3. Respondent at its aforesaid place of business receives goods from and ships goods to points outside the State of California.

4. On February 3 and 4, 1972, an authorized representative of the Secretary of Labor, United States Department of Labor, conducted an inspection of Respondent's aforesaid place of business.

5. On February 22, 1972, an authorized representative of the Secretary of Labor issued a citation pursuant to Section 9(a) of the Act. The citation alleged violations of the following standards:

(a) 29 CFR 1910.133(a)(1)

(b) 29 CFR 1910.242(b)

(d) 29 CFR 1910.23(c)(1)

(e) [*28] 29 CFR 1910.106(e)(2)(iv)(a)

6. On February 28, 1972, a notification of proposed penalties was mailed to the Respondent setting forth the following proposed penalties:

Citation No. 1, Item 1: No penalty

Citation No. 1, Item 2: Deleted

Citation No. 1, Item 3: $60.00

Citation No. 1, Item 4: $30.00

Citation No. 1, Item 5: $60.00

The parties stipulated that if the Judge finds that the violations alleged by the Secretary did, in fact, occur, the penalty assessed by the Secretary's representative is reasonable.

7. On March 21, 1972, the Respondent filed with the representative of the Secretary of Labor a notification of intent to contest the citation and the proposed penalty under Section 10(a) of the Act.

The parties agreed that the Judge may find as a matter of law that (1) respondent was and is an employer engaged in a business affecting commerce who has employees within the meaning of Section 3(3)(5) and (6) of the Act; (2) the Secretary of Labor, pursuant to the authority vested in him by Section 6(a) of the Act, duly issued and promulgated the safety and health standard regarding the personal protective equipment and specifying the devices, safeguards, and working conditions [*29] required to be provided and maintained by employers who are engaged in a business affecting commerce who have employees; (3) the Commission has jurisdiction of the subject matter of this hearing.

Richard F. Schubert, Solicitor of Labor

Altero D'Agostini, Regional Solicitor

John M. Orban, Associate Regional Solicitor

s/ Theresa Kalinski

Theresa Kalinski, Attorney, UNITED STATES DEPARTMENT OF LABOR Attorneys for Petitioner

GIBSON, DUNN & CRUTCHER

WILLARD Z. CARR, JR.

ROBERT A. MILLER

s/ Robert A. Miller

Robert A. Miller, Attorney

Attorneys for Respondent

The four alleged violations along with the evidence applicable to each will be discussed separately.

Handling of Acid Without Goggles. This item of the Citation must fall for two reasons. First, there is a failure of proof. There is insufficient evidence to show what the "muriatic acid" was, its concentration, or whether it could be harmful to anyone's face or eyes. If it was in fact of such strength that it might cause harm to eyes or face, there is no evidence that the manner in which it was "handled" was such as to make it probable -- or even possible -- for it to come in contact with the face or eyes [*30] of the employee.

Secondly, and assuming the first problem of proof had been met, evidence of an isolated instance of one employee on one occasion at an unknown time and under unknown circumstances failing to wear goggles which were on a shelf immediately adjacent to the "acid" tank when a sign clearly visible admonished him to "wear eye protection"; is insufficient to establish the violation by an employer of a standard which imposes a burden on both the employer to furnish the equipment and the employee to use it.

As indicated, the evidence is very sketchy. First, we have paragraph I of the Stipulation:

Next we have Respondent's exhibits 1(A) and 1(B). There are two such stations in the press room. They look alike. A fair inference from all the testimony probably is that the area photographed is the one involved in the Citation.

Exhibit 1(A) shows the smaller sign referring only to [*31] protective equipment but with both the goggles and gloves in their accustomed place on the shelf. Exhibit 1(B) is the same except for a larger sign put up after the OSHA inspection.

The other evidence bearing on this item of the Citation may be summarized as follows. Both gloves and goggles have been provided for employees handling "acid" for quite a long period of time. The superintendent of the etching room was insistent that his employees use them. The record does not disclose who was the employee in the incident in question.

Robert Gellatly, Respondent's plant engineer, who accompanied the compliance officer on his walkaround inspection saw an employee filling a "jug" with "acid." He was not wearing goggles. Gloves and goggles were on the shelf right beside him and by the "acid" drum. Mr. Zimmerman, a union representative, who went along on the walkaround said the particular employee had been instructed to wear goggles and gloves. Some time the year previous, a glove had developed a small leak in a crack and an employee had received a small burn on his hand.

It should be noted there is no evidence of any action or bodily movement of any kind on the part of the unnamed [*32] employee other than Mr. Gellatly's affirmative answer to a question asking whether he was with the compliance officer when they encountered "an employee filling a jug of acid?"; and the stipulation that the employee was "drawing muriatic acid from a drum."

Muriatic acid is a synonym or "old name" for hydrochloric acid. ASH, DANGEROUS PROPERTIES OF INDUSTRIAL MATERIALS, page 821 (3rd ed.). Although it is also soluble in alcohol, ethers, aldehydes and esters, hydrogen chloride is "very soluble in water." Hydrochloric acid as we usually see it is hydrogen chloride in solution in water. MAILE & SHARP, A NEW DICTIONARY OF CHEMISTRY, page 295 (4th ed.).

Even in its strongest form when not under pressure a very high percentage of hydrochloric acid is water. It is used for a great many things and at different strengths and concentrations. In a very weak form it can do no damage to the skin or eyes and in fact is used by humans internally to neutralize an alkaline condition. (For encyclopedic treatment of hydrochloric acid, see Encyclopedia of Chemical Technology, 2nd Edition, Volume XI, Kirk-Othmer).

The specific used of the "acid" in Respondent's plant is unknown. It [*33] is extremely unlikely the hydrochloric acid was so weak as to be harmless to eyes or skin when Respondent provided protective equipment for eyes and hands and insisted on its use. There is, however, no evidence to the contrary. The evidence of protection is insufficient evidence of concentration of the liquid on February 3 or 4, 1972.

Assuming for the purposes of further discussion however, that the acid would have been harmful to an employee's eyes, the Secretary has still failed to meet his burden of proof. The mandate of the standard is that the employer provide the equipment and the employee use it. In the face of this we have one isolated incident, and an absence of evidence on all of the facts except those stated. Standing alone this is not a violation by the Respondent. Standard Glass Co., Inc., Docket No. 259.

Forklift Trucks Without Overhead Guards. Two of Respondent's forklift trucks, a Clark and a Yale, did not have overhead guards to protect the operator from falling objects.

Testimony indicates that books and magazines are placed on wooden pallets for shipment. When the pallets are returned they are placed in stacks approximately seven feet high in a [*34] level concrete paved storage area. The Clark is used to transport the stacks of empty pallets to the press room or bindery as they are needed.

A mast on the forklift between the driver and the load is something over seven feet high. When the load is lifted, it also raises so that it remains at all times between the load of pallets and the forklift operator. There is no evidence the particular truck is used in any other manner. At the time of the inspection it was not in use.

The Yale forklift has a mast which is five feet, six inches high, but it carriers lower loads. Its use appears from the record to be only to carry smaller loads of damaged pallets to the carpentry shop for repair, and to return them.

Counsel for Respondent advances an intriguing argument which as we understand it is something like this. The purpose of the standard requiring the overhead guard is to protect the operator of the forklift from falling objects being carried by it. He suggests that if Respondent had on the premises a forklift truck which never has been and never would be used for any purpose, the absence of a guard would not be a violation. Counsel then argues that since there is [*35] no danger to the operator from the pallets carried, there is no violation of the standard.

We find ourselves unable to agree with this reasoning. It would be interesting and perhaps exciting to engage in a discussion of Counsel's theory but it would not be productive.

Aside from other considerations, the theory questions the wisdom of the Secretary's regulation. It is not the function of this Commission to pass on the validity of the standard when there is no claim that it is arbitrary, capricious, unconstitutionally vague or otherwise defective in some such manner.

The evidence is uncontradicted that Respondent owned and operated the two forklift trucks without the guards required by the standard. However slight the increase in hazard may have been, there was a violation of the regulation.

Absence of Guard on Storage Platform Over Carpenter Shop Office. The area on top the carpenter shop office was correctly described as "a dead storage space." It is seldom used. Various items were stored there, however, and employees found it necessary to ascend the eight feet, six inches, to the level of the area on infrequent occasions. Among the items stored were a lawnmower which [*36] had not been used for four or five years, light fixtures which had been there since 1969, a hospital bed frame since 1965 and a small amount of plastic pipe, also since 1965.

The evidence is not clear as to how often workmen were in the area below the edge of the carpenter shop office roof, where they would be in a position to be injured by falling articles. They were there infrequently although probably much more often than it would be necessary for one of them to climb on top the roof.

The area was not a workplace for anybody nor was it a place where employes would normally walk while going about their regular duties. What the record is not too clear about is why employees were there occasionally. This is not necessary to a decision on this item of the Citation. Hazard to an employee below the edge of the roof from objects falling from it was, for all practical purposes, non-existent.

There was an open-sided floor within the meaning of 29 CFR 1910.23(c)(1) and the Respondent was in violation of the standard as alleged.

Containers of Flammable Liquids Not Covered. This alleged violation must also fall because of failure of proof -- in this case proof that the [*37] liquid involved was in fact flammable as defined by the Secretary.

The Secretary has defined flammable liquid as follows:

Flammable liquids shall mean any liquid having a flashpoint below 140 degrees F. and having a vapor pressure not exceeding 40 pounds per square inch (absolute) at 100 degrees F.

(i) Flammable liquids shall be divided into two classes of liquids as follows:

(ii) Class I liquids shall include those having flashpoints below 100 degrees F. and may be subdivided as follows:

(a) Class IA shall include those having flashpoints below 73 degrees F. and having a boiling point below 100 degrees F.

(b) Class IB shall include those having flashpoints below 73 degrees F. and having a boiling point at or above 100 degrees F.

(iii) Class II liquids shall include those having flashpoints at or above 100 degrees F. and below 140 degrees F.

NOTE: The volatility of liquids is increased when artificially heated to temperatures equal to or higher than their flashpoints. When so heated Class II and III liquids shall be subject to the applicable requirements for Class I or [*38] II liquids. This section may also be applied to high flashpoint liquids when so heated even though these same liquids when not heated are outside of its scope. 29 C.F.R. 1910.106(a)(19)

We take it to be a correct rule that by adopting the definition the Secretary thereby imposed upon himself the burden of proving that any liquid he alleges to be flammable meets the definition. This may not require analysis and testing in every case, but it will come close to this requirement.

This holding may seem strange at first glance because the record is replete with evidence of the extreme measures to which Respondent went in an unsuccessful attempt to get its employees to comply with its own rules to keep solvent containers covered. However, it did so to prevent fires -- to prevent the spreading of something that would burn easily -- and no doubt to protect its employees from breathing fumes; rather than to protect against a "flammable liquid" as that term is defined by the Secretary.

Robert Gellatly, Respondent's chief engineer, testified:

Q. The printing solvent in the containers was a flammable liquid?

A. Yes, it was flammable.

The only professionnal qualification of [*39] this witness in the record is testimony that he had been chief engineer of Respondent since 1965 with duties principally in the area of keeping the plant running and production going. In context his answer indicates he was using the word in its generally accepted sense. Literally, the word means "able to flame." In common use it means anything that will burn easily.

No citation of authority is necessary for the rule that unless the contrary appears from the context, words will be deemed to have their common, ordinary, generally accepted meaning. There is no evidence that any witness except Scroggins knew anything about the Secretary's definition. All were talking in general terms about the danger of fire.

Webster's New World Dictionary, College Edition, defines "flammable" as "easily set on fire; that which will burn readily or quickly; inflammable." "Inflammable" is defined as "one easily set on fire; that will burn readily or quickly; combustible. Anything inflammable."

A review of the evidence may be helpful. William Scroggins, Jr., Compliance Officer, testified as follows.

A. Coming from the main office building and going into the pressroom -- pressroom area [*40] -- when you first came up the first few steps and walk into the room -- the door -- the first 55-gallon drum was right near the door area before you got to the aisle.

The two 40-gallon drums -- I believe they were -- were on down the aisle a little further away.

Q. Were these containers of liquid identified or labeled in any way?

A. They had labels on them. I cannot say for sure about those particular three drums. A drum was noted that was tolusol and this is what this material was.

In further investigating and comments with the company's representative it was stated that this was toluene and was used to thin the ink which is used in the printing press.

Q. Did you make any determination regarding this substance known by the trade name tolusol or otherwise toluene?

A. Are you saying did I look it up to see what it was?

Q. Yes. Did you make any determination?

A. Yes, I did.

Q. And what determination did you make?

A. That it was a flammable material.

Q. On what basis did you reach that conclusion?

A. From the sources that I checked.

Q. What sources did you check?

A. I checked the NFPA.

Q. NFPA. Would you please state what that is?

A. [*41] National Fire Protection Association.

Q. Go ahead.

A. Also on dangerous properties by Saxe. Then I have a National Safety Council graph -- a little chart that we carry for ready references and also checked against that.

Q. Do you have the graph and the volume which you previously described with you?

A. Yes, I do.

Q. Now as I understand it the first material that you used was your check sheet, is that correct or check list?

A. This is a ready guide that we check first off.

Q. Now that check list, did it define or did it identify this particular substance that you are referring to as a flammable material?

A. Yes, ma'am, it does. We used a flash-point.

Q. Based on that chart you arrived at the conclusion that it was a flammable material?

A. Yes, ma'am.

Q. The chart itself, does it have any indication or designation as to the source of the information on which the charts makes a determination that it is a flammable?

A. Yes, ma'am. It references National Fire Protection Association.

Q. That is the NFPA you referred to?

A. Right.

Q. Would you please state the description of a flammable liquid under NFPA?

A. Flammable liquid is defined to [*42] mean any liquid having a flash point below 140 degrees fahrenheit and having a vapor pressure not exceeding 40 pounds per square inch at 100 degrees fahrenheit 37.8 degrees centigrade.

Q. Does the NFPA have a listing of commonly used flammable liquids?

A. Yes, ma'am.

Q. Is tolusol listed as a flammable liquid?

A. Yes, ma'am.

Q. What other documents or volume did you use in making your determination as to the flammability of tolusol?

A. We used dangerous properties of industrial materials by Saxe --

Q. -- By who, sir?

A. By Saxe -- N. Orbin Saxe.

Q. Did that volume also list or identify this substance as a flammable liquid?

A. Yes, ma'am. (Emphasis added)

It is evident Mr. Scroggins did not know what was in the open containers. They looked similar to closed containers which had the trade name "Tolusol" on them. He was told by "company representative" that the substance was toluene. He then referred to a chart, certain texts and other authorities -- none of which are in evidence -- and from them concluded that Tolusol or toluene was flammable.

This is not a case of being asked to base a finding on hearsay evidence. This might be permissible in some cases. [*43] The hearsay on which Mr. Scroggins's finding was based is not before us. His testimony that the liquid was flammable is therefore without value.

An industrial hygienist acting on behalf of the Secretary took samples from the particular opened containers at a slightly later time. The record is silent as to who he was or what he did with the samples.

It should be emphasized that no adverse inference is drawn from the failure of the Secretary to produce evidence about the solvent samples taken by his industrial hygienist. This is not a case where a party fails to produce a witness under his control and an inference may be drawn from this failure that the testimony of the witness would have been adverse to the party. The rule does not apply here because there is no evidence that the industrial hygienist analyzed or tested the solvent, or knew anything about its properties. Nor does this decision purport to be a holding that in every case a scientific analysis and testing must be done on every liquid alleged to be "flammable."

The Secretary has simply failed to prove by preponderance of the evidence that the particular liquid, (by inference a "solvent"), which his compliance [*44] officer found in uncovered containers in the pressroom, was "flammable" within the Secretary's own definition. There is in fact no evidence about the properties of the liquid except that everybody thought it would burn easily and that its fumes might be disagreeable or harmful to employees.

On the question of penalties the record shows Respondent to have been completely cooperative throughout the inspection and following it. Although not required to do so because of the contest, the two violations were abated as soon as possible. A railing was constructed along the edge of the carpenter shop office roof within the "next day or so." Overhead guards were installed on the Clark and Yale Forklift trucks as soon as they could be obtained and before the abatement date of March 8, 1972 set in the Citation. Respondent had no history of previous violations.

Respondent has had an effective safety program. The exact time it started is not disclosed by the record but the evidence clearly shows it was in effect well before 1965. Cooperation of the five unions representing Respondent's employees has been enlisted and obtained. Industrial accidents have been decreased. Again the exact [*45] length of the period is not disclosed but during some period of time since the present safety director assumed his duties in 1970 industrial accidents have been reduced almost fifty percent. Danger to employees from both violations was minimal. In the case of the forklift trucks it is probably true as contended by Counsel that there was no increased hazard so long as the trucks were used according to directions. Employees seldom went up to the roof of the carpenter shop office. Articles stored there were probably twenty feet from the only unprotected edge. There was no danger to persons below from objects falling off in any situation short of collapse of the entire building.

Considering the entire record there would seem to be no useful purpose served by imposing monetary penalties for the two violations found. All penalties are therefore abated.

We are not unmindful of the case of Thorlief Larsen and Son, Docket No. 370. The record here, however, contains sufficient evidence to form the basis of a judgment on the question of penalties; with full consideration of all factors set out in Sec. 17(j) of the Act.

Based on the entire record, the undersigned hereby [*46] makes the following:

FINDINGS OF FACT

Respondent, California Rotogravure Company, is a Division of Publication Corporation, a corporation, and maintains a place of business at 11041 VanOwen Street, North Hollywood, California. It is engaged in the printing and the sale of newspaper inserts. It receives goods from and ships goods to points outside the State of California.

II.

On February 3 and 4, 1972, an authorized representative of the Secretary of Labor, United States Department of Labor, conducted an inspection of Respondent's place of business.

III.

On February 22, 1972, an authorized representative of the Secretary of Labor issued a Citation pursuant to Section 9(a) of the Act. The Citation alleged violations of the following standards:

(a) 29 CFR 1910.133(a)(1)

(b) 29 CFR 1910.242(b)

(d) 29 CFR 1910.23(c)(1)

(e) 29 CFR 1910.106(e)(2)(iv)(a)

IV.

On February 28, 1972, a notification of proposed penalty was mailed to the Respondent setting forth the following proposed penalties:

Citation No. 1, Item 1: No penalty

Citation No. 1, Item 3: $60.00

Citation No. 1, Item 4: $30.00

Citation No. 1, Item 5: $60.00

Item 2 of the [*47] Citation was abandoned by the Secretary by its omission from the Complaint.

Respondent contested the Citation and all its items. After the Complaint was filed, issues were joined and the case came on for hearing on July 5, 1972 at Los Angeles, California. There was full compliance with applicable procedural rules regarding notice to additional parties and none appeared.

VI.

The Secretary has failed to meet his burden of proving a violation of 29 CFR 1910.133(a)(i) for two reasons:

(a) He has not proved that the muriatic acid was of such strength or concentration that it would be harmful to one whose eyes or face came in contact with it, or that the method and manner of "drawing" the substance from the drum was such as to present a "probability" that it would be splashed on the face or eyes of such person; or in any event there is no proof that a "reasonable probability of injury" could "be prevented by" protective equipment.

(b) Respondent complied with the standard in question under all the facts as shown by the record by providing suitable protective equipment. Even if the substance were of such strength as to be likely to injure an employee and the method used such [*48] as to create a probability of injury, the one isolated instance of "drawing" the acid was not such as to constitute a violation of the standard. The employer had no knowledge or notice of the incident and the method used was in violation of instructions given to all employees. There is no evidence that such a violation had occurred before.

VII.

On February 3 or 4, 1972, Respondent owned and operated two forklift trucks without overhead guards for protection of employees against falling objects. It is reasonable to assess no monetary penalty for this violation.

VIII.

On February 3 or 4, 1972, Respondent failed to provide an open sided storage platform over the office of the carpenter shop with a guard as required by the standard. This was an area where a small number of items were kept in "dead storage" for a long period of time. They were sufficiently removed from the edge of the platform, which was more than eight feet above the floor below, that there was no danger of their falling off the edge -- absent a collapse of the entire building. It is reasonable to assess no monetary penalty for this violation.

IX.

The Secretary has failed to meet his burden of proving [*49] a violation of 29 CFR 1910.106(e)(2)(iv)(a). There is a failure of proving by a preponderance of the evidence that the containers of solvent in the press room of Respondent's without covers were "flammable liquids" as that term is defined in 29 CFR 1910.106(a)(19).

Based upon the foregoing Findings of Fact and upon all facts stipulated, admitted or proved by uncontradicted credible evidence, the undersigned further makes the following:

CONCLUSIONS OF LAW

Respondent at all times mentioned herein was an employer within the meaning of Section 3(3), (5) and (6) of the Act and as such had maintained a place of business and had employees at its work place at 11041 VanOwen Street, North Hollywood, California. The Commission has jurisdiction of the parties and the subject matter of this proceeding. These conclusions refer to the disposition of a Citation and alleged violations by Respondent of the Occupational Safety and Health Act of 1970, Supra, on February 3 and 4, 1972.

II.

Respondent was not in violation of 29 CFR 1910.133(a)(1) as alleged in Item 1 of the Citation and paragrah V.A. of the Secretary's Complaint. As to this alleged violation, the Complaint should [*50] be dismissed, the Citation dismissed, and the proposed penalty vacated.

III.

Respondent was in violation of 29 CFR 1910.178(m)(9) as alleged in Item 3 of the Citation and paragraph V.B. of the Secretary's Complaint. The proposed penalty therefor should be vacated.

IV.

Respondent was in violation of 29 CFR 1910.23(c)(1) as alleged in Item 4 of the Citation and paragraph V.C. of the Secretary's Complaint. The Citation should be affirmed and the proposed penalty vacated.

Respondent was not in violation of 29 CFR 1910.106(e)(2)(iv)(a) as alleged in Item 5 of the Citation and paragraph V.D. of the Secretary's Complaint. As to this alleged violation, the Complaint should be dismissed, the Citation dismissed and the proposed penalty vacated.

VI.

The Secretary having abandoned Item 2 of the Citation which alleged the violation of 29 CFR 1910.242(b) by omitting it from its Complaint herein this Citation should be dismissed and the proposed penalty vacated.

ORDER

Based upon the foregoing, it is hereby

ORDERED that the following disposition be made of five items of the Citation issued to Respondent, California Rotogravure Company, on February 22, 1972, based upon its [*51] maintenance, ownership and operation of a workplace at 11041 VanOwen Street, North Hollywood, California on February 3 and 4, 1972.

It is hereby ORDERED that Items, 1, 2 and 5 of the Citation be dismissed and the proposed penalties for the violations alleged therein be vacated. It is further ORDERED that the allegations of the Complaint of the Secretary insofar as they pertain to such items be dismissed.

II.

It is further ORDERED that Items 3 and 4 of the Citation be affirmed, that the allegations of the Secretary's Complaint referring thereto be affirmed, that the proposed penalties for the violations alleged there in be vacated.