Pratt & Whitney Aircraft Group, Division of United Technologies Corporation

Plain-English summary

Pratt & Whitney used open tanks containing hydrochloric acid, nitric acid, cleaner, and water to pickle aircraft parts at its Middletown facility. The Commission vacated an employee-instruction item because orientation, on-the-job training, tank warning signs, employee experience, and the obvious acid hazards supplied reasonable instruction under the circumstances. It also vacated glove and apron items, holding that standards requiring an employer to "provide" equipment mean that it must make the equipment available, not require employees to use it, and the Secretary did not prove that suitable equipment was unavailable. The commissioners disagreed over whether splashing presented a significant risk to employees' eyes, but agreed that any goggles violation was other-than-serious and warranted no penalty. To resolve the impasse, they affirmed the judge's goggles ruling without precedential value.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.94(d)(9)(i), 29 C.F.R. § 1910.94(d)(9)(iii), 29 C.F.R. § 1910.94(d)(9)(iv), and 29 C.F.R. § 1910.94(d)(9)(v)
• Outcome: Instruction, glove, and apron items vacated; goggles item affirmed as other-than-serious without precedential value and with no penalty.
• Key point: A standard directing an employer to "provide" protective equipment requires availability, not mandatory use, unless the standard says otherwise.

Full text (OSHRC public release)

Docket No. 80-5830

SECRETARY OF LABOR,

Complainant,

v.

PRATT & WHITNEY AIRCRAFT GROUP,

DIVISION OF UNITED TECHNOLOGIES

CORPORATION,

Respondent.

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS,

AFL-CIO, CANEL LODGE NO. 700,

Authorized Employee

Representative

OSHRC Docket No. 80-5830

DECISION

Before:  BUCKLEY, Chairman, and RADER, Commissioner.[[*]]

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29
U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29
U.S.C. �� 651-678 ("the Act").  The Commission is an adjudicatory agency,
independent of the Department of Labor and the Occupational Safety and Health
Administration ("OSHA").  It was established to resolve disputes arising
out of enforcement actions brought by the Secretary of Labor ("the Secretary")
under the Act and has no regulatory functions.  See section 10(c) of the Act,
29 U.S.C. � 659(c).

The Secretary issued a citation to Pratt & Whitney Aircraft Group ("P
& W"), a division of United Technologies Corporation, alleging violations of an
employee instruction standard and three personal protective equipment standards at its
facility in Middletown, Connecticut.  At issue is whether Administrative Law Judge
David J. Knight erred in concluding that P & W committed the four alleged
violations.  We vacate the three items in the citation alleging that P & W failed
to properly instruct employees, provide protective gloves, and provide protective
aprons.  We affirm without precedential value the judge's conclusion that P & W
failed to require the wearing of goggles or face shields, and we characterize that
violation as other-than-serious.

In P & W's Electro-Chemical Machine ("ECM") Department two principal
operations were performed.  First, airplane parts were machined to a specified size
and shape by an electro-chemical process in room-sized ECM's.  Then, parts were moved
to the "pickling line" where they were "pickled," or cleaned, by
dipping them into tanks containing solutions that removed residual deposits that had
accumulated on the parts during machining.  The "pickling line" consisted
of seven open surface tanks, one containing a 35% hydrochloric acid solution, one with a
35% nitric acid solution, one with alkali cleaner, and four with water.  Each tank
was 4 feet wide, 6 feet long, and 8 feet deep, and was sunken such that it stood only 3
feet above the floor.  The parts, which were round and generally large, were moved
vertically and from tank to tank by means of a motorized hoist which ran along a track
above the line of tanks.  The ECM operator would control the direction of the hoist
by pressing a button while standing in front of the pickling line.  At times, smaller
parts were dipped into the tanks by hand.  Sometimes employees hand-dipped small
bottles or buckets into the acid solution tanks to get solution to use in operations at
the ECM.

Item 1A:  29 C.F.R. � 1910.94(d)(9)(i), Alleged Failure to Give
Instructions

Item 1A of the citation alleges that P & W violated 29 C.F.R. � 1910.94(d)
(9)(i) because employees working at the hydrochloric and nitric acid solution tanks at the
pickling line were not instructed in the hazards of their jobs, in applicable personal
protection, and in first aid procedures.  The standard provides:

� 1910.94 Ventilation .

(d) Open surface tanks --

(9) Personal protection .  (i) All employees working in and around
open-surface tank operations must be instructed as to the hazards of their respective
jobs, and in the personal protection and first aid procedures applicable to these hazards.

Skin contact with either of the acid solutions can cause pain, burning, redness,
and scarring; eye contact with either of them can result in reduced vision or blindness.

Judge Knight concluded that P & W had violated all three of the requirements
of the standard.  We shall consider these requirements in turn.

Instruction in job hazards .  The judge's conclusion that P & W had
not instructed its ECM operators in the hazards of their jobs rests on several
findings.  First, the judge found, "Foreman Batiste's instructions were general
and devoid of any specifics concerning safety."  P & W argues that this
finding is contradicted by the record.  We agree.  Foreman Batiste testified
that as part of the orientation program for new employees he told them that the tanks in
the pickling line contain hydrochloric and nitric acids and alkalines.  Batiste also
warned them to "watch out" for the pickling area, told them that if they get any
acid on their hands it should be washed off, and pointed out that there is an eyewash or
shower for that purpose.  Experienced ECM operator Arnold Chick stated that when
training new employees at the pickling line he told them "[w]hat acid does to you if
you come in contact with it."

Second, the judge noted that ECM operators John Luman, Brian Pinney, Charles
Clark, and Paul Schmelke, who were trained by operators other than Chick, "did not
know of the dangers of these acids or even of the names of acids as a result of their
training." However, those same operators admitted that they had read the
"caution" signs on the acid tanks which identified the acid and stated that it
"CAUSES BURNS."  See Butler Lime & Cement Co. v. OSHRC ,
658 F.2d 544, 551 (7th Cir. 1981) (employer may communicate ten-foot clearance rule by
sign).  Moreover, Pinney and Clark testified that the operators who trained them told
them that the tank acids would "burn your fingers."  Clark also testified
that "everybody in the department knows that if you stick your bare hand in the acid,
you're going to get burned."  Similarly, employees Luman and Schmelke testified
that they knew that contact with tank acids could harm them.

Finally, the judge suggested that P & W had no "effective formalized
safety training program."[[1]]  We disagree with the judge's implication that
the standard requires a "formalized safety program."  Rather, we have
construed another standard like the one here as requiring employers to give instructions
that are reasonable under the circumstances.  See Rochester Products
Division, General Motors Corp ., 85 OSAHRC 12 BNA OSHC 1324, 1330, 1985 CCH OSHD
� 27,257, pp. 35,221-22 (No. 80-5439, 1985) (opinion of Chairman Buckley) (section
1926.21 (b)(2)); Dravo Engineers and Constructors , 84 OSAHRC 20/B6, 11 BNA OSHC
2010, 2011-12, 1984 CCH OSHD � 26,930, p. 34,507 (No. 81-748, 1984) (section 1926.21
(b)(2)).  In determining the reasonableness of instructions, we must consider such
factors as the obviousness of the hazard, Butler Lime & Cement Co. v. OSHRC ,
658 F.2d at 548 (need not tell adults not to come into contact with live wires), the
experience of the employees, the likelihood that an accident would occur, and the degree
of harm that would result from an accident.

The burn hazard from the acids was obvious to the ECM operators based on their
knowledge, common sense, and experience.  The corrosive property of acids is a matter
of common knowledge, and, as part of their experience at the pickling line, P & W's
ECM operators saw that the acid solutions ate away at the deposits on the metal parts
being dipped in the two tanks.

As evidence that the likelihood of an accident involving the acids was negligible,
P & W introduced its OSHA No. 200 forms, which 29 C.F.R. � 1904.2 requires employers
to maintain, for the two and one-half years preceding the inspection.  Those forms
show that there was no reportable injury resulting from acid contact during that time
period in the ECM Department at the Middletown facility.  Injury records are relevant
evidence to establish the presence or absence of a hazard.  General Motors Corp .,
GM Parts Division , 84 OSAHRC 23/A2, 11 BNA OSHC 2062, 2065-66, 1984 CCH OSHD �
26,961, p. 34,611 (Nos. 78-1443 & 79-4478, 1984), aff'd , 764 F.2d 32 (1st Cir.
1985).

Moreover, Dr. Richard Wilcox, senior physician at the Middletown plant, reviewed
the medical records of all the employees who had ever worked in the ECM Department at that
plant.  Those records demonstrate that from 1969 to the time of the hearing, which
was over a year after the inspection, there were eleven incidents of ECM Department
employees being splashed with hydrochloric or nitric acid.  In all those cases, first
aid was applied, and no impairment or lost time on the job resulted.   It is
noteworthy that not all of those eleven instances of splashing set forth in the medical
records necessarily occurred at the pickling line because presumably operations at the ECM
itself, some of which involved the use of acid solution taken in bottles or buckets from
the pickling line, were also included in the ECM Department medical reports.

In light of the obviousness of the hazard, the knowledge gained by the employees
from their experience, and the small likelihood of harm to the employees, we find that the
instructions in the dangers of the acids in the tanks given by foreman Batiste during
orientation, by experienced ECM operators during on-the-job training, and by the signs on
the tanks were adequate.  We therefore do not find any inadequacies of instruction in
the hazard which would serve as a basis for citation item 1A.

Instruction in personal protection .  Judge Knight stated in his
decision that P & W had an implied duty under the standard to instruct employees so
that they understand what personal protective equipment they must use to protect
themselves in different situations at the pickling line.  He determined that, based
on the testimony of the ECM operators and foreman Batiste, P & W had not fulfilled
that duty.  ECM operators Luman, Pinney, and Schmelke stated that they were never
told what specific types of personal protective equipment to wear while working at the
acid tanks.  ECM operator Clark stated that the only such instruction that he
received was an oral warning from an experienced ECM operator during training to wear
rubber gloves.  Judge Knight stated that "as a matter of course" ECM
operators did not wear gloves, aprons, and face shields or goggles because "no
effective disciplinary program was in force to assure the use of proper equipment."
 He found that, when they did wear gloves, ECM operators wore ones that were too
short or cracked to prevent acid contact with skin because they were not properly
instructed about the need for protection.  We note at the outset that section
1910.94(d)(9)(i) does not require employers to provide protective equipment or enforce its
use; other standards elsewhere in section 1910.94(d)(9) may do that, as we note below.
 The standard here requires only that employers give instructions as to personal
protection.  We find that that requirement of the standard was met.

ECM operators admitted that it is "common sense" to wear protective
equipment when exposed to acid and to wear gloves when placing one's hands into an acid
tank.  Putting that common sense into practice, the ECM operators did wear some
protective equipment while working at the pickling line.  Luman wore rubber gloves,
an apron, safety glasses, and a face shield.  Pinney wore, when they were available,
rubber gloves and safety glasses or goggles, and he sometimes wore a face shield.  
Clark wore gloves when dipping small parts into the tanks, and Schmelke wore gloves on
occasion.

According to foreman Batiste, when he brings a new employee to an experienced ECM
operator for training for a few days, he tells the new employee to wear certain protective
equipment, such as rubber gloves and safety glasses, which can be obtained from the crib
in the next department.  He tries to place a new employee with an operator who is
conscientious about wearing protective gear and performing the job properly and can
explain the procedures to the employee.  Experienced ECM operator Chick stated that
he had been instructed to wear gloves and safety glasses and, when training new employees
at the pickling line, he had told them where the personal protective equipment was
located.

Judge Knight once again considered Batiste's instructions to be too general and
those given on the job by experienced ECM operators to be inadequate under section
1910.94(d)(9)(i).  We do not share that view.  Just as the obviousness of a
hazard bears on the instructions that need be given, the obviousness of the methods of
protection from the hazard bears on the detail of instruction in their use.  The ECM
operators admitted that it is common sense to use personal protection when working at acid
tanks.  Because the use of such protection is obvious, P & W need not provide
extensive instructions on the matter.  Batiste's orientation and the experienced ECM
operators' explanations given to new employees, along with the example set by experienced
ECM operators, constituted reasonable instructions in the use of personal protective
equipment under the circumstances of this case.  We therefore find no inadequacies in
the personal protection instruction to support the citation item.

Instruction in first aid .  According to Judge Knight, P & W
employees must be instructed to flush any area of their skin or eyes that comes into
contact with either of the acids immediately; otherwise permanent harm could result.
  Based on the testimony of the ECM operators and Batiste, the judge determined that
P & W's employees were not adequately instructed as to what first aid treatment to
apply if they contacted the acid.  ECM operator Schmelke testified that he was never
told what to do if one of the acids got on his skin.  However, foreman Batiste
informed employees about the eyewash and shower and told them to wash their hands if they
got acid on them.  Pinney and Clark stated that when they got acid on their hands
while wearing gloves, they took off their gloves and rinsed or washed their hands.
 One ECM operator testified that he knew from the signs on the tanks to wash off any
contact area.  Those signs, which the ECM operators testified that they had read,
stated:  "IN CASE OF CONTACT FLUSH SKIN and/or EYES WITH WATER FOR 15 MINUTES
AND GET MEDICAL ATTENTION."[[2]]  We conclude that the specific language of the
signs on each tank, which the ECM operators testified that they had read, and Batiste's
instructions to employees about the use of nearby eyewash facilities, constitute
reasonable instructions under the circumstances.  Finding no inadequacies in the
first aid instruction and no other inadequacies as alleged, we vacate the citation item.

Items 1C & 1D; 29 C.F.R. �� 1910.94(d)(9)(iii) & (iv), Alleged
Failure to Provide Gloves and Aprons

Items 1C and 1D of the citation allege that P & W violated 29 C.F.R. ��
1910.94(d)(9)(iii) and (iv) in that it did not "provide" impervious gloves and
aprons for employees working at open surface tanks.  The standards state:

� 1910.94  Ventilation .

(d) Open surface tanks --

(9) Personal protection .

(iii) All persons required to handle work wet with a liquid other than water shall be
provided with gloves impervious to such a liquid and of a length sufficient to prevent
entrance of liquid into the tops of the gloves.  The interior of gloves shall be kept
free from corrosive or irritating contaminants.

(iv) All persons required to work in such a manner that their clothing may become wet
shall be provided with such aprons, . . . made of rubber, or of other materials impervious
to liquids other than water, as are required to keep their clothing dry.  Aprons
shall extend well below the top of boots to prevent liquid splashing into the boots.

Provision of dry, clean, cotton clothing along with rubber shoes or short boots and an
apron impervious to liquids other than water shall be considered a satisfactory substitute
where small parts are cleaned, plated, or acid dipped in open tanks and rapid work is
required.

At the hearing, the Secretary focused primarily on the compliance officer's
testimony that P & W employees were not using gloves and aprons.  To P & W's
objection that the standards do not mandate that the employer require the use of gloves
and aprons, but instead that the employer "provide" the equipment, the Secretary
argued that such a construction would be "wooden" and out of keeping with the
remedial purpose of the Act.

Judge Knight affirmed the two citation items.  He evidently agreed with the
Secretary's position, though his reasoning was somewhat different.  The judge
characterized the instruction standard, section 1910.94(d)(9)(i), as a general,
introductory statement that "binds the specifics that follow [ i.e ., the
standards on personal protection] into a unified whole."  The judge reasoned
that the instruction standard implicitly requires that employees be made to understand the
conditions under which protective equipment "must" be used.  Inasmuch as
"aprons were not worn" and "no effective disciplinary program was in force
to assure the use of [gloves]," the judge concluded that P & W had not
"provided" gloves and aprons within the meaning of section 1910.94(d)(9).

P & W argues that the judge's construction was erroneous because it had the effect of
interpreting the word "provide" in the cited standards as meaning "require
the use of," an interpretation far beyond the literal words of the standards.
 We agree.  We conclude for the reasons that follow that the word
"provide" ordinarily does not signify a requirement of use and, contrary to the
judge's view, we do not find that section 1910.94(d)(9) suggests the word should not be
given its ordinary meaning.

In Borton, Inc. v. OSHRC , 734 F.2d 508 (10th Cir. 1984), the Tenth Circuit
reversed a Commission decision holding that the requirement in 29 C.F.R. �
1926.451(a)(13) that an access ladder be "provided" should be read as implicitly
requiring that the ladder be used, in order to effectuate the broad, remedial purpose of
the Act.  Borton, Inc ., 82 OSAHRC 17/E13, 10 BNA OSHC 1462, 1465, 1982 CCH
OSHD � 25,983, p. 32,599 (No. 77-2115, 1982), rev'd , 734 F.2d 508 (10th Cir.
1984).  The Tenth Circuit held that the employer had met its obligation of providing
a ladder by making a ladder available, without requiring its use.  The court stated
that "the term 'provide' is not ambiguous . . . . Thus there is no need to look
beyond the face of � 1926.451(a)(13) to discover the meaning of 'provide.'"
 734 F.2d at 510, citing the earlier Tenth Circuit decision in Usery v. Kennecott
Copper Corp ., 577 F.2d 1113, 1118-19 (10th Cir. 1977) ("We do not agree that the
Secretary may read 'shall be provided' to mean 'shall require use.'"), aff'g
76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1402, 1976-77 CCH OSHD � 20,860, p. 25,042 (No. 5958,
1976).

The Commission has considered a number of cases in which the Secretary has argued
that the term "shall provide" means "shall require the use of."
 Generally, the Commission has read the term to impose a supply requirement rather
than a use requirement.[[3]]  In no case has the Commission implied a use requirement
from a provision requirement except when related standards contained an explicit use
requirement.[[4]]  We need not reach the question of whether these latter cases
should be followed and standards requiring provision should be construed together with
closely-related standards explicitly requiring use.  As we shall discuss below, there
is no provision in section 1910.94(d) that suggests a use requirement.  Instead, all
this case presents is whether a single standard that uses the term "provide"
should be construed to require the use of provided equipment.

The word "provide" is not ambiguous.  Dictionaries define the word as
meaning "supply," "furnish," and "equip," and give no
connotation of mandating use.[[5]]  Moreover, other standards in section
1910.94(d)(9), the section concerning personal protection at open surface tanks, show that
terms other than "provide" were employed when their drafters intended to impose
upon employers an obligation to ensure the use of protective equipment.  Section
1910.94(d)(9)(v) states that employees "shall be required to wear" goggles or
face shields, and section 1910.94(d)(9)(vi) declares that employees "shall be
required to wear" adequate respirators in certain emergencies.  By contrast, the
standards cited in this case, as well as sections 1910.94(d)(9)(ii) (foot protection),
(ix) (washing facilities), and (X) (locker space), all contain the words "shall be
provided."  The Secretary could have promulgated a standard imposing a use
requirement as suggested by the Second Circuit in a case involving a similar
standard,[[6]] but he has not. Instead he has chosen to rely solely on a consensus
standard of the American National Standards Institute ("ANSI") (see 29 C.F.R.

� 1910.99 (source of standards), which distinguishes between equipment the employer need
only provide and equipment which the employer must both provide and require to be used.
 The Commission, as an adjudicatory body, lacks authority to rewrite the standards
and may not impose on them a meaning that would deprive employers of fair notice of the
conduct required or prohibited.  See Diamond Roofing Co. v. OSHRC , 528
F.2d 645, 650 (5th Cir. 1976); Cape and Vineyard Division v. OSHRC, 512 F.2d 1148,
1152-53 (1st Cir. 1975); Lisbon Contractors, Inc ., 84 OSAHRC 19/A2, 11 BNA OSHC
1971, 1973-74, 1984 CCH OSHD � 26,924, p. 34,500 (No. 80-97, 1984).[[7]]  Finally,
we disagree with the judge's heavy reliance on section 1910.94 (d)(9)(i), the general
instruction standard.  The language of that standard offers no basis for holding that
the word "provide" was not used in its ordinary sense.  In stating that
employees "must" be "instructed" in "personal protection . . .
applicable to [open surface tank] hazards," the standard does not suggest that
employers must require the wearing of the personal protection about which employees are
instructed.

We therefore conclude that sections 1910.94 (d)(9)(iii) and (iv), that state that
employers shall "provide" gloves and aprons, require only that that protective
equipment must be made available.

Having concluded that the cited standards require no more than that gloves and aprons be
provided, we must consider whether P & W satisfied that requirement.  Gloves and
aprons were kept in cribs at different locations in the building.  The Secretary put
forth no evidence that gloves and aprons were not available at the cribs other than the
one nearest the ECM Department.  Indeed, the Secretary's counsel focused his
questioning more on the use of the gloves and aprons than on their availability.
 This accorded with the testimony of the Supervisor of Industrial Hygiene at OSHA
that the citation would not have been issued if P & W had required the use of gloves
and aprons.  Moreover, it was P & W's counsel who elicited the only testimony
regarding the availability of gloves and aprons at the other cribs.

It was established that employees could obtain gloves and aprons from the crib by
completing a voucher and presenting it to the crib attendant.  Gloves and aprons were
usually available at the crib nearest the ECM Department, except at very busy times. 
One ECM operator testified that if he ever would have problems getting the equipment from
the crib nearest the ECM Department, he would report it to his foreman and go to another
crib for the items.  Moreover, another ECM operator testified that a pair of gloves
usually could be found lying near the pickling line.  Although there was some
testimony by ECM operators that gloves and aprons of insufficient size or thickness to
protect employees had been distributed at the crib, it was not established that such
distribution was a frequent occurrence or that at those times the crib contained no fully
protective gloves and aprons for which the insufficient gear could have been
exchanged.  We therefore conclude that the Secretary failed to prove that P & W
did not provide gloves and aprons to its employees working at the pickling line, and we
vacate items 1C and 1D.

Item 1E:  29 C.F.R. � 1910.94(d)(9)(v), Alleged Failure to Require the Wearing of
Goggles

The Secretary contends in citation item 1E that P & W committed a violation of
29 C.F.R. � 1910.94(d)(9)(v) because it did not require employees to wear goggles or face
shields at the pickling line.  The standard provides:

� 1910.94  Ventilation.

(d) Open surface tanks --

(9) Personal protection .

(v) Whenever there is a danger of splashing, for example, when additions are made
manually to the tanks, or when acids and chemicals are removed from the tanks, the
employees so engaged shall be required to wear either tightfitting chemical goggles or an
effective face shield.  See � 1910.133.

Some ECM operators and a foreman did not generally wear goggles or face
shields.  However, the standard requires that employees be required to wear goggles
or face shields only when there is a "danger of splashing."  ECM operator
Luman testified that he had seen acid splash out from open surface tanks due to the force
exerted by parts swinging down into the tanks.  He also stated that he had never had
acid splash in his eyes.  However, he testified, "A lot of times you'd lift [a
part] up and you thought you had it right. That you had judged the part.  And yet it
would come down."  As a result, acid splashed on Luman's "upper arm"
while he was wearing the longest gloves that P & W provided, which were 18 inches long
and covered about three quarters of Luman's arm. ECM operator Schmelke testified that he
had seen acid splash out of the tanks "on occasion" as a result of parts
swinging as they were lowered into the tanks.  Pinney stated that even though he had
not gotten splashed with acid from the tanks, acid splashing "can happen"
particularly when parts with pockets, or depressions in their sides, are being lifted from
the dip tank because the acid remaining in the pockets splashes out.

Based on that evidence, Judge Knight found in his decision that splashes
endangering the head area had occurred due to parts being dipped and acid pouring from the
pockets in parts being lifted out of the tanks.  P & W contends that no violation
was proven because the Secretary did not show that any employee working at the tanks was
engaged in a procedure that had resulted or could result in acid splashing onto the face.

Because section 1910.94(d)(9)(v) requires that there be a "danger of
splashing" for the standard to apply, the Secretary must show that such a danger
existed in order to establish a violation.  In Schulte Corp ., 85 OSAHRC
/, 12 BNA OSHC 1222, 1225, 1985 CCH OSHD � 27,210, p. 35,127 (No. 80-2666, 1985),
the Commission stated that in order to prove that there was a "danger of
splashing" under section 1910.94(d)(9)(v) the Secretary must establish that
"there is more than a theoretical possibility that an employee could be splashed with
a chemical solution."  Because the standard uses the term "danger,"
the Secretary must show that the cited condition presents a significant risk of harm.
  Anoplate Corp ., No. 80-4109 (March 4, 1986).  See Pratt &
Whitney Aircraft v. Donovan , 715 F.2d 57, 63-64 (2d Cir. 1983); Pratt &
Whitney Aircraft v. Secretary of Labor , 649 F.2d 96, 104 (2d Cir. 1981).

Chairman Buckley would conclude that a danger of splashing was proven.  He
notes that the nature of the pickling operation is such that there is more than a
theoretical possibility that employees would be splashed with acid from parts hitting the
surface of the tanks, or from acid that had collected in pockets in the parts when they
poured out into the tanks below.  Although there was no evidence of an employee being
splashed in the face at the pickling line, ECM operator Luman testified that "[a] lot
of times" acid splashes from parts rapidly descending into tanks had occurred as high
as his upper arm above his long gloves, which is not that far from his face.  It is
apparent that the height and direction of splashes are unpredictable.  Whether a
splash could reach an employee's face, or eyes, depends on such factors as the speed at
which the part is travelling down into the tank and the distance from the employee.  Cf .
Vanco Construction, Inc ., 82 OSAHRC 71/A2, 11 BNA OSHC 1058, 1060-61, 1983-84 CCH
OSHD � 26,372, pp. 33,453-54 (No. 79-4945, 1982), aff'd , 723 F.2d 410 (5th Cir.
1984) (section 1926.102(a)(1)--potential eye and face injury from concrete chips). 
The record is silent as to how tall ECM operator Luman is, so we assume he is a man of
average height.  Had the parts descended more quickly and a shorter employee been in
Luman's place when he was splashed on his upper arm, splashing into the face would have
been likely to have occurred.  Moreover, P & W's medical records show that eleven
instances of acid splashing had occurred in the ECM Department, albeit not all may have
been at the tanks.  Chairman Buckley concludes that, given the unpredictable height
of splashes and the hazardousness of the acids, the record as a whole demonstrates a
significant risk, and hence a danger, of splashing within the meaning of the
standard.  Because goggles or face shields were not generally worn, he finds a
violation of the standard.  However, in light of the relatively close proximity of
flushing facilities, the testimony that prompt washing would prevent permanent damage, and
P & W's low injury rate, Chairman Buckley concludes that there was not a substantial
probability of serious injury and would affirm this citation item as other-than-serious.

In Commissioner Rader's view, the evidence does not show a significant risk of
chemical solution splashing into an employee's eyes, and thus does not show that a
violation of section 1910.94(d)(9)(v) was committed.  There was no evidence that any
employee working at the pickling line had ever been splashed in the eyes with the
hydrochloric or nitric acid solution, or that such a splash had ever occurred at head
level.  In addition, as noted earlier, P & W's OSHA No. 200 forms for the two and
one-half years preceding the inspection showed no reportable injury from acid contact in
the ECM Department.  Commissioner Rader therefore concludes that no significant risk
of acid splashing into the employees' eyes was shown, and he would vacate the citation
item.  In any event, Commissioner Rader would agree with the Chairman that any
violation of section 1910.94 (d)(9)(v) in this case would be other- than-serious because
of the low injury rate and nearness of flushing facilities.

Section 12(f) of the Act, 29 U.S.C. � 661(e), states that official action can be
taken by the Commission with the affirmative votes of two members.  Accordingly,
Chairman Buckley and Commissioner Rader agree to reverse Judge Knight's decision on this
item insofar as he characterized it as serious.  They agree that any violation would
be other-than-serious.  They also agree that, taking into consideration the factors
in section 17(j) of the Act, 29 U.S.C. � 666(i), especially the low gravity of the
violation, no penalty should be assessed.  To resolve their impasse on the item
itself and to permit this case to proceed to a final resolution, the members have agreed
to affirm the judge's decision as to the item itself but accord it the precedential value
of an unreviewed judge's decision. See Life Science Products Co. , 77 OSAHRC
200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD � 22,313 (No. 14910, 1977), aff'd sub nom .
Moore v. OSHRC , 591 F.2d 991 (4th Cir. 1979).

We therefore vacate items 1A, 1C, and ID, which respectively allege violations of
sections 1910.94(d)(9)(i), (iii), and (iv).  We also conclude that item 1E should be
characterized as other-than-serious and that no penalty should be assessed.   Because
of an impasse, Judge Knight's decision affirming item 1E itself becomes a final order of
the Commission.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  APR 18 1986

The Administrative Law Judge decision in this matter is unavailable in this format. To
obtain a copy of this document, please request one from our Public Information Office by
e-mail ( [email protected] ), telephone
(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[*]] Commissioner Wall did not participate in this decision.

[[1]] We note that P & W offered a 20-hour course on the ECM Department in
which employees were told what acids were in the tanks at the pickling line and what
precautions to take when working at the "hazardous" line.  The ECM course
was given only when P & W had enough employees to constitute a class; therefore, there
were some P & W employees who had not yet taken the course when the OSHA inspection
occurred.

[[2]] P& W was also cited for failure to comply with 29 C.F.R. �
1910.145(c)(3), which provides:  "Safety instruction signs shall be used where
there is a need for general instructions and suggestions relative to safety
measures."  The judge vacated that item, concluding that the caution signs on
the acid tanks satisfied that requirement.  The Secretary suggests that the warning
sign erected in compliance with section 1910.145(c)(3) should not be considered compliance
with section 1910.94(d)(9)(i), lest a redundancy in the standards be created.  We do
not need to consider that suggestion because we do not rely solely on the first-aid
portions of the signs to find that first-aid instructions were given.

[[3]] Hillsdale Lumber & Manufacturing, Inc ., 77 OSAHRC 54/D2, 5 BNA
OSHC 1281, 1282, 1977-78 CCH OSHD � 21,766, p. 26,154 (No. 5815, 1977) (construing �
1910.213(b)(5)); Kennecott Copper , 4 BNA OSHC at 1401-02, 1976-77 CCH OSHD at p.
25,042 (� 1910.28(a)(12) "only requires that a ladder be provided ... If the
Secretary had intended to require the use of a ladder, he should have so stated in the
standard."); Cam Industries, Inc ., 74 OSAHRC 10/C4, 1 BNA OSHC 1564, 1565 n.
2, 1973-74 CCH OSHD � 17,373, p. 21,903 n. 2 (No. 258, 1974) (construing �
1910.133(a)(1)).

[[4]] See Clarence M. Jones , 83 OSAHRC 23/A27, 11 BNA 1529, 1531-32,
1983-84 CCH OSHD � 26,516, p. 33,750 (No. 77-3676, 1983) (� 1926.102(a)(1) construed in
light of � 1926.28(a)); Truax & Hovey Drywall Corp ., 78 OSAHRC 47/A14, 6 BNA
OSHC 1654, 1656 & n. 4, 1978 CCH OSHD � 22,799, p. 27,532 & n. 4 (No. 14516,
1978) (� 1926.451(a)(13) construed in light of � 1926.450 (a)(1)'s requirement of use of
ladders); Ray Boyd Plaster & Tile, Inc ., 78 OSAHRC 47/D8, 6 BNA OSHC 1648,
1652-53 & n. 6, 1978 CCH OSHD � 22,794, p. 27,520 & n. 6 (No. 76-814, 1978) (�
1926.451(a)(13) construed as above); Turnbull Millwork Co ., 77 OSAHRC 205/C8, 6 BNA
OSHC 1148, 1149, 1977-78 CCH OSHD � 22,388, p. 26,990 (No. 15047, 1977) (�
1910.213(a)(15) requires use of combs or jigs since it requires their provision when saw
guards required by various standards in � 1910.213 cannot be used); G.A. & F.C.
Wagman, Inc ., 74 OSAHRC 78/B10, 2 BNA OSHC 1297, 1298, 1974-75 CCH OSHD � 18,882, pp.
22,702-03 (No. 1284, 1974) (� 1926.106(a) construed in light of � 1926.106(b)'s
requirement that life jackets be inspected before and after use).  See also
Borton, Inc ., 10 BNA OSHC at 1465 n. 3, 1982 CCH OSHD at p. 32,598 n. 3 (majority
member relying in addition on related standards requiring "use").

[[5]] See Random House Dictionary 1157 (1971); Webster's Third New International
Dictionary 1827 (1971).  See also Asbestos Textile Co .,
84 OSAHRC, 12 BNA OSHC 1062, 1066, 1984 CCH OSHD � 27,101, pp. 34,950-51 (No. 79-3831,
1984) (views of Chairman Buckley); Borton, Inc. , 10 BNA OSHC at 1467-69, 1982 CCH
OSHD at pp. 32,600-03 (Rowland, dissenting).

[[6]] In General Electric Co. v. OSHRC , 540 F.2d 67, 69 (2d Cir. 1976), the
court stated:

If the employer were a guarantor of the employee's use, a serious question would
arise as to whether such an interpretation [of � 1910.133(a)(1)] would exceed the
legislative requirements.  See Brennan v. OSHRC and Hendrix, d/b/a Alsea Lumber Co .,
511 F.2d 1139, 1144-45 (9th Cir. 1975).  We do note, however, that if employers are
to be held to an obligation requiring something more than instructing employees to use
protective equipment but something less than guaranteeing use, the promulgation of a
standard fleshing out the employer's obligation would provide useful guidance to
employers, the Commission, and reviewing courts.

[[7]] Indeed, the Secretary has shown in his own rulemaking that he understands
there to be a distinction between "provide" and "use."   One
provision of the asbestos standard, section 1910.1001(d)(3), requires the employer to
"provide, and require the use of, special clothing," while other provisions,
sections 1910.1001(d)(4)(i) and (ii), require only that the employer "provide"
change rooms and lockers.  Provisions of the relatively recent ethylene oxide
standard, section 1910.1047(g)(1) and (4), require the employer to "provide"
respirators and protective clothing and "ensure" that they are used, while
subsections (i)(1)(i)(B) and (i)(2)(i) require that the employer only "make available
medical examinations."  One provision of the relatively new hearing conservation
standard, section 1910.95(i)(1), states that employers "shall make hearing protectors
available" when noise is 85 or more decibels, while another provision, subsection
(i)(2), states that the employer "shall ensure that hearing protectors are worn"
in specific circumstances.  The Secretary also discussed the reasons for the
difference in language.  See 46 Fed. Reg. 42622, 42629 (1981) and 46 Fed. Reg. 4078,
4111, 4151-2 (1981).