Seibel Modern Manufacturing & Welding Corporation

Plain-English summary

Seibel used pairs of employees to fit and tack-weld large metal battery cases, with welders wearing shaded helmets while helpers wore only clear prescription glasses. The Commission held that clear lenses were not "proper eye protection" because the welding standard and its related specifications required some degree of shaded protection for helpers exposed to welding arcs. Earlier OSHA inspections without citations did not establish that the operation was safe or excuse compliance. Seibel did not prove a greater-hazard defense because it presented no evidence that a variance was unavailable or inappropriate. The Commission remanded for findings on whether shaded lenses were infeasible during precision fitting and whether alternatives such as jigs were feasible, holding that the employer bears the burden on both questions.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.252(e)(2)(i)(a)
• Outcome: The judge's vacation was reversed and the case was remanded to decide the infeasibility defense.
• Key point: An employer claiming infeasibility must prove both that the standard's required protection is infeasible and that no feasible alternative protection exists.

Full text (OSHRC public release)

Docket No. 88-0821

SECRETARY OF LABOR,

Complainant,

v.

SEIBEL MODERN MANUFACTURING &

WELDING CORPORATION,

Respondent.

OSHRC Docket No. 88-0821

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

At issue is a single serious citation item alleging that
"[h]elpers or attendants" did not have "proper" eye protection while
performing tack welding operations.[[1/]] The administrative law judge vacated the
citation item on the basis that the helpers involved in this case were not exposed to
hazards necessitating eye protection. The judge did not reach other issues, including the
employer's affirmative defenses. For the reasons that follow, we reverse the judge's
decision and remand the case for a determination consistent with the principles of law
discussed herein.

I. The Employer's Tack Welding Operation

During several months in late 1987 and early 1988, Gordon
DeLeys, a compliance officer with the Occupational Safety and Health Administration
("OSHA"), of the United States Department of Labor, conducted an inspection of
Seibel Modern Manufacturing & Welding Corporation ("Seibel" or "the
employer") [[2/]] Seibel manufactures industrial-size, metal battery cases at a
fabrication shop in Lancaster, New York. On five separate occasions at the shop during his
inspection, Compliance Officer DeLeys observed a tack welding operation performed by two
welders with two helpers, working in pairs.[[3/]] Each pair of employees, a welder and a
helper, were fitting together, and tack welding into position, metal pieces of battery
cases. Tack welding holds the metal pieces precisely in place for the next step in the
manufacturing process, continuous welding.

Seibel has two tack welding operations, a one-employee
operation for small battery cases (30-50 pounds), and the two-employee operation at issue
here, handling large battery cases (up to 1,000 pounds or more). In the two-employee
operation, which Compliance Officer DeLeys observed, the welders were wearing welding
helmets having appropriately shaded lenses. However, the helpers eye protection consisted
solely of, at best, street-wear prescription spectacles having clear (unshaded) lenses.
Because the welders and helpers were the same distance (approximately two feet) from the
arcs, Compliance Officer DeLeys believed that the helpers, like the welders, should be
equipped with appropriately shaded lenses. The risk created by the absence of this
protection was welding flash--that is, corneal burns which, if repeated, could lead to
blindness.

Seibel's president, Leon Seibel, who testified at the hearing,
was "not personally aware of any cases of weld[ing] flash that either of my two
[helpers] have indicated to me." One helper had worked in the tack welding operation
for eight years; and the other had worked for twenty-five years. President Seibel
suggested that helpers did not need shaded lenses because the metal pieces being welded
often shielded the arc from view and, in any instance where metal was not successfully
shielding an arc, the welder could usually cup a gloved hand around it, to block the
helper's view. Nevertheless, Compliance Officer DeLeys observed the helpers looking toward
bare arcs and, on the basis of these observations, estimated that the arcs were unshielded
25 percent of the time. President Seibel acknowledged a possibility that the arcs were not
always shielded, and he posited that a helper could, as a last resort, look away from an
arc. However, as we will describe in greater detail, the president's testimony describing
the operation tends to confirm that a helper generally needs to watch whether the metal
pieces are fitting together correctly. Compliance Officer DeLeys testified along the same
lines, that a helper frequently must look toward the arc to assure that he is holding the
metal pieces in the correct position.

President Seibel testified that the helpers use rulers and must
be able to see well enough for precision within plus or minus 1/32 inch. Therefore,
according to the president and the employer's expert witness, Gary Howard, of Mills
Welding Supply, the helpers could not wear the safety glasses or goggles with deep shaded
lenses that were suggested by Compliance Officer DeLeys.[[4/]] President Seibel
particularly noted that deep-shaded lenses would prevent a helper from seeing the ruler
markings while he is lining up the metal pieces and fitting them together. According to
President Seibel, a welder wears a deep-shaded lens while making a tack weld only in order
to be able to see during that short time: "[T]he light [from the arc] is generally so
bright that [a welder] would not be able to see what he [is] doing unless he ha[s] a
shaded lens." But, President Seibel indicated, if a helper were required at all times
to wear safety glasses or goggles having deep-shaded lenses, he would not be able to see
during the process of assembling the metal pieces, which is done in ordinary light, in
preparation for the tack welding.

Compliance Officer DeLeys suggested that this difficulty could
be eliminated by having the helpers wear welding helmets or flip down shades, and flip
these temporary forms of eye protection down only when ready for a tack weld. President
Seibel indicated, in reply, that a helper cannot "shake his head down similar to what
a welder does" (to cause a flip-down helmet to fall into place over the face). A
helper's hands are occupied with keeping the large, often warped metal pieces from
shifting, and the action of flipping a helmet into position could contribute to
imprecision:

Q. What, if anything, would prevent your [helper] from lining
up the material with the ruler or measuring device, [then] when he had it lined up,
putting on a dark shaded eye protection, and then communicating to the tack welder,
proceed?

A. He would not be able to see what the material has done as soon as he put his eye shade
on compared to when the tacking operation commences.

Q. He has already lined it up, what is there for him to--

A. It doesn't--it doesn't stay lined up as easily as you are alluding to....[I]t is
essentially level material and when it is sheared, it in most cases will get a slight bow
to it and in doing so[,] when we put the material together, certain force has to be
exerted to spring the material into position and [to hold it] there at the instantaneous
point where it has to be tacked. And if he were to have a dark shade on, he would not be
able to see the ruler operation[:] the ruler dimension he is trying to [adhere to] as he
is holding the material and trying to spring it in[to] position.

The rulers used by Seibel were yellow with black markings. In
response to questioning by the Secretary's attorney, Seibel's president testified that
Seibel had not tried using "magnified rulers.[[5/]]

Nor had Seibel tried using a jig, which is a mechanical device
used to hold pieces of metal in the correct position while they are being assembled.
President Seibel testified, however, that a helper could not be replaced with a jig
because, for the largest battery cases, the jig would have to be "enormous."
Also, a jig would need to be adjustable to fit many different-size cases, or there would
need to be many different-size jigs:

[W]e have about 5,000 different sizes and we only run these
battery cases sometimes one or two at a time[,] maybe five or ten at a time. A jig
operation is out of the question.

Specifically:

[W]e can not have a jig for every size. We get new sizes
constantly, new dimensions constantly[;] the dimensions are [often] changed and it would
be strictly inappropriate to be able to jig up that particular material and if we could,
we would have a long time ago, believe me.

Moreover:

You can not make [a jig] adjustable for as many varied sizes
and types. They are not all square steel boxes. Some are rectangular, some have
indentations in them, some have appurtenances that have to be added to them[;] they have
different types of hinging on them in some cases. Lifting apparatuses have to be attached
to them. Without you knowing the operation, it is extremely difficult for me to try to
describe all the different things that go on in that particular operation to a point in
time.

Q. Correct me if I am wrong. But what you are saying is not [that] it would be impossible,
but rather [that] it would be very time consuming and therefore very costly.

A. No. I am saying it would be impossible.

President Seibel went on to note that making adjustments to a
jig on a piece-by-piece basis "sounds very simple the way you are describing it and I
wish it could be that simple, but it is not." The most substantial problem would be
that the jig could not properly hold in place the many heavier metal pieces that are
"slightly bowed," therefore requiring pressure to force (or "spring")
them into the precise position.

In addition, President Seibel suggested that there could be an
increased risk of welding flash if helpers began to depend on flip-down eye protection.
According to President Seibel's testimony, a helper without any eye protection could
shield himself behind the metal pieces and, if that proved ineffective, the welder could
cup his gloved hand around the arc. However, if a helper had eye protection to put on,
neither he nor the welder would concentrate any longer on providing shielding; instead,
the welder might proceed with the weld while the helper was still trying to adjust his
flip-down lenses or shake down his helmet. As President Seibel stated: "If a [helper]
mistimes his helmet coming down to when he tells the [welder] to tack the two pieces of
metal and my [welder] does not use a hand over the arc flash as they have alluded to, then
we would have more probability of having weld[ing] flash to my [helpers]."

II. The Secretary's Proof of a Violation

To establish a violation of a standard, the Secretary must show
by a preponderance of the evidence that: (1) the cited standard applies, (2) its terms
were not met, (3) employees had access to the violative condition, and (4) the employer
knew or could have known of it with the exercise of reasonable diligence. See, e.g.,
Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD � 29,239, p. 39,157 (No.
87-1359, 1991). In this case, there is no question of applicability, as the cited standard
covers "all arc welding" operations and covers "[h]elpers"; no
question of access, as the helpers could and did look toward the welding arcs in the
normal course of tack-welding work; and no question of knowledge, as Seibel knew of the
conditions under which the helpers were working. The one question relating to the
Secretary's burden of proof is whether the terms of the standard were not met, that is,
specifically, whether Seibel failed to comply with the cited standard's requirement for
"proper eye protection." Seibel contends that clear lenses were sufficient eye
protection for the helpers, and therefore "proper" within the meaning of the
standard, because of a relative lack of hazard from the welding operation as it was
performed at Seibel's fabrication shop. Former Administrative Law Judge Foster Furcolo
agreed, concluding that the "uncontradicted testimony that the Respondent's method of
welding had been carried on for some 25 years without any accident or injury to any
employee" shows "that its method of welding is non[ ]hazardous."  For
the following reasons, we set aside the judge's decision and hold that the cited standard
was violated in this case.

The cited standard, 29 C.F.R. � 1910.252(e)(2)(i)(a), governs
the "selection" of "[e]ye protection" for employees involved in
welding. It explicitly requires that "[h]elmets or hand shields shall be used during
all arc welding operations" and that "[h]elpers or attendants shall be provided
with proper eye protection." See note 1 supra. The standard does not specify that the
degree of protection "proper" for helpers is the same as for welders, but in a
nearby, related standard, 29 C.F.R. � 1910.252(e)(2)(ii), there are apparently
comprehensive "[s]pecifications for protectors" that imply that lenses having a
degree of shading are part of "proper" eye protection. In other words, the
specifications indicate that clear lenses are not "proper" protection. Notably,
two of the specifications are the following:

Lenses shall bear some permanent distinctive marking by which
the source and shade may be readily identified. The following is a guide for the selection
of the proper shade numbers.

These recommendations may be varied to suit the individual's needs.[[6/]]

Also, the final specification of 1910.252(e)(2)(ii) states:

All filter lenses...shall meet the test for transmission of
radiant energy prescribed in ANSI Z87.1-1968--American National Standard Practice for
Occupational and Educational Eye and Face Protection.

The significant piece of information to be gleaned from the
referenced ANSI test is that clear lenses are not "filter lenses," and are not
meant to give the same type of protection. ANSI section 6.3.3.3.3 states that
"[c]lear lenses shall transmit not less than 89 percent of the incident luminous
radiation" (emphasis added). But ANSI section 6.3.3.3.2 states that "[f]ilter
lenses shall meet the radiant-energy-transmission requirements specified in Table 1."
Filter lenses, as defined by the latter ANSI section, are shade numbers 4 through 14.
Shade numbers 1.7 through 3 are "[a]bsorptive lenses," according to section
6.3.3.3.1, which also specifies that this type of lens must meet the
"radiant-energy-transmission requirements" of Table 1. The table limits not only
luminous transmissions but infrared and ultraviolet. Actually, according to the table,
even the lightest shade number--1.5 (which apparently is not even an absorptive
lens)--cuts luminous transmittance to 55-67 percent, infrared to 25 percent, and
ultraviolet to 0.2 to 65 percent (different percentages for four different wavelengths).
In sum, these lenses--filter, absorptive, and other shades--must meet specific
requirements limiting transmittance across the full spectrum of light. Clear lenses,
however, are not subject to these requirements and actually must not fail to transmit most
of the luminous portion of the spectrum.

On review, [[7]] Seibel maintains that the cited standard does not state or imply
that shaded lenses are "proper" eye protection in an arc welding operation
employing an electrode smaller than the ones listed in the guide accompanying the cited
standard, see note 6 supra , and Seibel endorse the judge's rationale that
the Secretary failed to prove a hazard.  As we have discussed, however, and as the
Secretary argues, the cited standard implicitly presumes a hazard where clear lenses,
only, are being used.  For every employee involved in arc welding, welders and
helpers alike, the standards, requires a degree of eye protection that includes shaded
lenses.  CF. Vanco Construction, Inc. , 11 BNA OSHC 1058, 1071, 1983-84
CCH OSHD � 26,372, p. 33,454 (No. 79-4945, 1982), aff'd , 723 F.2d 410 (5th Cir.
1984) (a broadly worded eye protection standard is not vague because there is a
"guide in the selection of eye and face protection"  that informs employers
of appropriate protection for various operations).  The fact that smaller electrodes
of the size used by Seibel are not listed in the guide associated with the cited standard
  does not mean that helpers exposed to arcs from such electrodes may work without
protection.  The "guide" is exactly that, a guide, and employers must make
reasonable efforts apply its guidance to their own operations.  Cf. , Towne
Construction Co. , 12 BNA OSHC 2185, 2188-89, 1986-87 CCH OSH  � 27,760, pp.
36,310-11 (No. 83-1262, 1986), aff'd 847 F.2d 1187 (6th Cir. 1988) (load chart
listing some weight limits applicable to specified situations provides sufficient notice
to use an extrapolation method to determine the precise limit in other situations).[[8/]]
Because the cited standard presumes a hazard where clear lenses rather than shaded lenses
are being used, the employer is not free to leave helpers unprotected. The Secretary has
established that Seibel was not using a "proper" degree of protection.

III. Seibel's Reliance upon Previous OSHA Inspections

Seibel's brief raises a defense based on several earlier OSHA
inspections, which did not result in any citations concerning eye protection for the
helpers. President Seibel states in the brief:

Since the other, much more experienced, compliance officers in
more comprehensive inspections did not find any safety problems whatsoever in this area,
and since the manner of assembling these battery cases is continuous throughout the work
day and has not changed in forty years, I would assume [that Compliance Officer DeLeys']
inexperience and obvious lack of immediate knowledge led him to an erroneous conclusion.

Also, at the hearing, President Seibel had testified:

[I]n all the previous inspections[,] and we have had more
thorough and comprehensive inspections the last 2 or 3 times than what we received this
particular time, and none of those operations which have not changed, have they ever
minutely mentioned anything at all concerning our assembly and welding operations.
Regarding shading for the fitters, in no way did they mention anything regarding eye
protection for the two man operation and they have viewed that operation completely.

In short, Seibel infers from the uneventful prior inspections that there must have been no
hazard, and Seibel asks us to draw the same inference against OSHA, despite the cited OSHA
standard's presumption of a hazard. We should not, Seibel basically contends, hold the
employer liable where OSHA had earlier opportunities to issue citations but chose not to
do so.

In other cases, the Commission has rejected essentially the
same contention, that is, that the failure of OSHA to cite certain conditions deprived the
employer of notice that those conditions were either hazardous or in violation of OSHA
standards. The Commission has cautioned employers against freely drawing such inferences
from uneventful inspections, however, for "[c]ertainly, an employer is required to
comply with a standard regardless of whether it has previously been informed that a
violation exists." Simplex Time Recorder Co., 12 BNA OSHC 1591, 1596, 1984-85 CCH
OSHD � 27,456, p. 35,572 (No. 82-12, 1985). In Columbian Art Works, Inc., 10 BNA OSHC
1132, 1133, 1981 CCH OSHD � 25,737, p. 32,102 (No. 78-29, 1981), the Commission more
pointedly warned: "OSHA's failure to issue a citation following an inspection does
not grant an employer immunity from enforcement of applicable occupational safety and
health standards."

That the employer lacked notice of any noncompliance was the
argument rejected in Columbian Art Works and a related case, GAF Corp., 9 BNA OSHC 1451,
1457, 1981 CCH OSHD � 25,281, pp. 31,246-47 (No. 77-1811, 1981). These cases implicitly
rule against deducing from uneventful prior inspections that particular operations are
nonhazardous. See also International Harvester Co. v. OSHRC, 628 F.2d 982, 985 n.3 (7th
Cir. 1980) (earlier failure to cite for violation of a particular standard is not a
decision that the employer was complying). Cf. Cedar Construction Co. v.OSHRC, 587 F.2d
1303, 1306 (D.C. Cir. 1978) ("[w]e believe that recognizing such a right [to rely on
uneventful prior inspections] would discourage self-enforcement of the Act by businessmen
who have far greater knowledge about conditions at their workplaces than do OSHA
inspectors").

In Cardinal Industries, 14 BNA OSHC 1008, 1011, 1989 CCH OSHD
� 28,510, p. 37,801 (No. 82-427, 1989), the Commission upheld an employer's view that
"the circumstances of the earlier OSHA inspections deprived it of fair notice"
of a requirement to use safety belts. However, the earlier inspection had produced a
citation for the very same condition as was later cited, the earlier compliance officer
had actually indicated approval of the very form of abatement that was later alleged to be
insufficient, and "it was far from clear that any OSHA standard addressed that
particular fall hazard." 14 BNA OSHC at 1011-12, 1989 CCH OSHD at p. 37,801.[[9/]]

In Cardinal, there was a second lack-of-notice argument, which
is more closely analogous to the situation now before us. The Commission rejected this
second argument because the earlier citation had not included the condition and had not
prescribed its abatement. During the earlier inspection and during a follow-up inspection,
the compliance officer had been in the vicinity of the condition, but "the mere fact
of Mershon twice inspecting this area and not detecting violations does not exculpate
Cardinal." 14 BNA OSHC at 1013, 1989 CCH OSHD p. 37,803. In rejecting the employer's
argument, the Commission cited Columbian Art Works and Lukens Steel Co. , 10
BNA OSHC 1115, 1981 CCH OSHD � 25,742 (No. 76-1053, 1981).

Lukens is particularly pertinent to the case now before
us:

According to Respondent, this [prior] failure to issue a
citation [for] the pouring platform supports an inference that the employees wore
appropriate equipment. We disagree. The Commission's function is to decide the cases
before it, not to rule on the propriety of the Secretary's actions in other cases . . . .
Accordingly, we will not speculate on the Secretary's determinations in an earlier
inspection. Further, because compliance with the Act is a continuing obligation, an
employer cannot deny the existence of or its knowledge of a cited hazard by relying on the
Secretary's earlier failure to cite the condition. . . . Consequently, the Secretary's
failure to cite conditions on the pouring platform during the earlier inspection does not
"exculpate" the Respondent or preclude a finding that the violation now before
us was willful.

10 BNA OSHC at 1126, 1981 CCH OSHD at p. 32,122 (case cites
omitted).

In essence, the mere fact of prior inspections does not give
rise to an inference that OSHA made an earlier decision that there was no hazard, and does
not preclude the Secretary from pursuing a later citation. For this reason, Seibel's
argument must be rejected. In this case, the Secretary could properly cite Seibel for
violating the OSHA standard. Also, as we have discussed, the Secretary has established a
violation. We turn therefore to Seibel's other affirmative defenses, which the judge did
not consider.

IV. The Affirmative Defense of Greater Hazard

A. Contentions of the Parties

Seibel contends that the wearing of shaded lenses would have
endangered the fitters. "[A]ny uncovered weld would have to be timed exactly... so
that the shaded lens[es] in the helmets are in position at the correct time,"
otherwise the employer "might have occur[re]nces of weld[ing] flash whereas now we
have had none." Also, if a helper cannot "see what he is doing, the situation to
him becomes more dangerous since the materials are quite heavy with sharp corners and
edges." [[10/]]

The Secretary contends that Seibel's argument is "mere
speculation." She argues:

Respondent seems to assert that having no shaded lenses at all
would be better than having shaded lenses which possibly may not be in the proper position
one hundred percent of the time... [T]he Commission has rejected an all-or-nothing
approach. Moreover . . . welders have often failed to cover the weld arc with their hands
even when helmets were not worn by the fitters. In view of the incidence of exposure
presently occurring, it cannot be said that respondent has demonstrated an increased
hazard.

The Secretary further notes that, "[b]ecause the welding
operation is a regular part of respondent's business, no excuse appears for Seibel's
failure to seek a variance if it believed its claim had merit."

B. The Elements of the Defense

To establish a defense of greater hazard, an employer must
prove that: (1) the hazards created by complying with the standard are greater than those
of noncompliance, (2) other methods of protecting employees from the hazards are not
available, and (3) a variance is not available or application for a variance is
inappropriate. See Spancrete Northeast, Inc., 15 BNA OSHC 1020, 1022-23, 1991 CCH OSHD �
29,313, pp. 39,356-39,357 (No. 86-521, 1991). These three elements are now
well-established in court precedent. Id. at n. 3 (listing cases). An employer's proof of
the unavailability or inappropriateness of a variance is particularly important. E.g.,
PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 895 (1st Cir. 1981). In this case, Seibel
has not presented any evidence of the unavailability or inappropriateness of a variance.
On the contrary, the fact that the citation involves a regular and recurring operation at
a permanent workplace strongly suggests that a variance application would be appropriate.
Therefore, Seibel has not established this defense.

V. The Affirmative Defense of Infeasibility

A. Contentions of the Parties

Seibel contends that shaded lenses at number 5 or greater would
prevent a fitter from seeing what he is doing. "Our fitter has to measure
accurately," Seibel states. In testimony, President Seibel drew the conclusion that
production errors could become more frequent if a fitter had to put on shaded lenses
because, as Seibel argues, a fitter has to "handle the material with both hands to
effect the required gaps, [overlapping] of [the] material, etc. as the tacks are
performed." The fitters function could not be supplanted by the use of jigs:

[It is] out of the question except for the very smallest cases
that are ordered in quantities of twenty-five or more at a time. In that case, we do
utilize a jig fixture with one person to handle, assemble and tack a case.

But, arguing the infeasibility of jigs for the two-person tack
welding operations, Seibel asserts that "[w]e have reviewed our battery case assembly
operation continuously for forty years," thereby implying that Seibel's own studies
of its operations have continuously revealed that the functions now performed by helpers
cannot instead be performed by jigs.

The Secretary contends that Seibel, never having tried to use
either appropriate eye protection or jigs, cannot simply assert that there would always be
operational impediments to the use of eye protection The Secretary points out that:

Even if . . . shaded lenses would have some effect on the
fitter's ability to keep the [metal battery case] pieces lined up, there is no real
evidence as to what number of defective welds could be expected . . . . Nor is there
evidence as to the consequences of misaligned pieces. Can the pieces be rewelded or must
they be scrapped? Is there a rejection/repair rate that reasonably must be borne?

Also: Since respondent's expert agreed that even a 1.5 or 1.7
shade lens is 'certainly better than a clear lens,' and since there is no evidence
negating the possible use of at least a 1.5 or a 1.7 lens, a violation is established on
this basis alone.

Similarly, the Secretary claims that jigs probably could be
used to a "substantial" extent:

Seibel's testimony indicates that the weight of the finished
battery cases ranges from 30 pounds up to 1000 pounds, but there is no evidence of the
numbers of cases manufactured in various size categories. There is similarly no indication
of the relative numbers of cases with an irregular configuration. These gaps in the
evidence work against respondent, which bears the burden of proving its affirmative
defense.

The Secretary asserts that an employer must do at least as much
as is capable of being done, citing Bratton Furniture Manufacturing Co., 11 BNA OSHC 1433,
1434, 1983-84 CCH OSHD � 26,538, p. 33,858 (No. 81-799-S, 1983).

B. The Case Law Defining Infeasibility

From the outset of the Act's enforcement, the Commission has
been faced with employers' claims that technological or economic problems precluded
compliance with cited standards. Until relatively recently, our cases ruling on such
claims stated that the employers must show that the abatement method required under the
terms of the standard is "impossible" to use, in that it is physically
impossible to implement or, if implemented, would preclude performance of necessary work.
E.g., M.J. Lee Construction Co., 7 BNA OSHC 1140, 1144, 1979 CCH OSHD � 23,330, p. 28,227
(No. 15094, 1979). In the mid-1980's, however, the Commission re-examined its precedent,
and the many court cases stemming from it, and articulated a potentially less stringent
test, "infeasibility". Dun-Par Engineered Form Co. , 12 BNA OSHC 1949, 1956-59,
1986-87 CCH OSHD � 27,650, pp. 36,020-024 (No. 79-2553, 1986), rev'd in part, 843 F.2d
1135 (8th Cir. 1988) ("Dun-Par I-A"); compare Spancrete Northeast, Inc., 15 BNA
OSHC at 1023, 1991 CCH OSHD at p. 39,357 (employer might have basis to assert
infeasibility in a case where impossibility had not been raised) . That is, an employer
could establish a defense by showing that compliance would be "infeasible under the
circumstances." Cleveland Electric Illuminating Co., 13 BNA OSHC 2209, 2213, 1987-90
CCH OSHD � 28,494, p. 37,761 (No. 84-593, 1989), citing Dun-Par I-A, 12 BNA OSHC at
1953-56, 1986-87 CCH OSHD at pp. 36,021-024.

The Secretary asserts in this case that Dun-Par I-A changed
nothing but the terminology.[[11/]] In the Secretary's view, infeasibility necessarily
means impossibility since the Supreme Court, in American Textile Manufacturers Institute
v. Donovan, 452 U.S. 490 (1981) ("ATMI"), defined "feasible" as
"capable of being done."

Thus the Secretary cautions in her brief herein:

[I]f the Commission in Dun-Par intended the defense to be one
of impracticality rather than impossibility, then this is a significant change. See
Century Steel Erectors v. Dole, [888 F.2d 1399 (D. C. Cir. 1989)] ("practical"
defined as "relating to, or manifested in practice or action; not theoretical or
ideal"; the term "applies to things and to persons and implies proven success in
meeting the demands made by actual living or use"; "feasible" means
"capable of being done or carried out").

Contending that an impossibility test would be "more consonant with the Act,"
the Secretary points to court decisions rejecting considerations of
"difficulty," such as interference with existing work practices.

One such decision is the law of the circuit of this case:
Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032 (2d Cir. 1975)
("Underhill'). There, the cited standard prohibited materials storage within 10 feet
of an open floor edge, but the cited subcontractor maintained that compliance would
interfere with a customary work practice, that of allowing reusable shoring and braces to
overhang an open floor edge so that cranes could lift them to other floors. The Second
Circuit observed: "[E]ven if the employer could raise [a] defense [of interference
with work practices], on this record he did not meet his burden of showing that other
means, e.g., strapping, chains, harnesses or the like, were not useable to permit ready
crane removal of the shoring or steel braces." 513 F.2d at 1036 (emphasis added). The
court indicated that employers should carefully consider other "useable" work
practices.

We conclude that there is no conflict between the law of the
circuit and Commission precedent concerning this element of the infeasibility defense;
neither requires proof of impossibility. In fact, the view of the Second Circuit in
Underhill is entirely consistent with the Commission's in Dun-Par I-A. There, the question
was "whether Dun-Par established that guardrails could not have been installed or
would have disrupted the work to such a degree that there was no feasible way to use
guardrails to protect Dun-Par's employees." 12 BNA OSHC at 1959, 1986-87 CCH OSHD at
p. 36,027 (emphasis added). The Commission found that the use of guardrails was
"theoretically possible" because it was physically possible to install them, but
not "feasible" because they were incapable of being used anywhere for a
sufficient length of time to serve any practical purpose of protection. 12 BNA OSHC at
1959-60, 1986-87 CCH OSHD at p. 36,027-028.[[12/]] Compare Dun-Par Engineered Form Co., 12
BNA OSHC 1962, 1966-67, 1985-87 CCH OSHD � 27,651, pp. 36,033-2 to 36,033-3 (No. 82-928,
1986) ("Dun-Par II") (infeasibility defense rejected because the employer failed
to demonstrate that the costs would be "unreasonable" or that the use of
guardrails would be "unreasonable or senseless"; also, the work practices
involving use of a crane to lift shoring materials off a floor could have been altered to
accommodate guardrails).

These cases show that employers must alter their customary work
practices to the extent that alterations are reasonably necessary to accommodate the
abatement measures specified by OSHA standards. That is, employers cannot generally avoid
abatement by relying on industry custom and practice alone. These cases do not stand for
the proposition, however, that employers cannot rely on genuinely practical circumstances
revealing the unreasonableness of an abatement measure. An abatement measure must be
useable, during employees' work activities, for its intended purpose of protecting
employees. If there is no way to use a measure for its intended purpose without
unreasonably disrupting the work activities, the mere fact that the measure's installation
is physically possible does not in our view mean that we should compel the employer to
install the measure. This is why we do not see fit to apply in a literal manner the ATMI
definition of feasibility--"capable of being done"--and why we believe that the
infeasibility test articulated in Dun-Par I-A is the only reasonable test.

C. The Burden of Proof on the Feasibility of Alternative
Measures

Early Commission precedent pertaining to affirmative defenses,
in particular, the affirmative defense of infeasibility and the affirmative defense of
greater hazard, which we have already discussed, established that employers must either
implement the abatement methods prescribed by the OSHA standards or, to the extent the
abatement methods prove unworkable because of infeasibility or greater hazard, implement
an alternative protective measure.[[13/]] As is traditionally the case with affirmative
defenses, the burden of proof under the early Commission precedent rested with the cited
employer who believed that both duties, that is, the duty to comply with the standard and
the duty to provide alternative protection, were incapable of performance because of
physical conditions or work operations that were ongoing and inalterable, or
counterproductive because of greater hazards. E.g. M.J. Lee, 7 BNA OSHC at 1144, 1979 CCH
OSHD at p. 28,227. Cf., Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 2131 n.16,
1981 CCH OSHD � 25,578, pp. 31,901 n.16 (No. 78-6247, 1981) (burden of proof in
Commission adjudication's is the preponderance of the evidence).

In particular, to establish the affirmative defense that was
known as the impossibility defense, an employer had to show "that (1) compliance with
the requirements of the cited standard either would be functionally impossible or would
preclude performance of required work, and (2) alternative means of employee protection
are unavailable." Id. Prior, to the inspection in this case, however, the
Commission's decision in Dun-Par I-A changed the defense from impossibility to
infeasibility, as we have discussed, and altered the burden of proof with respect to the
two elements of the defense, in that they were divided between the parties. That is, if an
employer showed the infeasibility of the cited standard's abatement measure, the burden of
proof shifted to the Secretary to show the feasibility of an alternative abatement
measure. Dun-Par I-A, 12 BNA OSHC at 1956-59, 1986-87 CCH OSHD at pp. 36,024-27.

The question of whether the Commission should reconsider its
reallocation of the burdens of proof arose in April 1988 (prior to the November 1988
hearing in this case), when the United States Court of Appeals for the Eighth Circuit, in
response to the Secretary's appeal of Dun-Par I-A, reversed the Commission's ruling,
holding that the Commission had erred in reallocating the burden of proof on alternative
means of employee protection. Secretary v. Dun-Par Engineered Form Co., 843 F. 2d at
1137-40. The court's decision does not apply directly to the Seibel case, which arose in a
different circuit, but in April 1989 (after the hearing in this case, but before the
parties filed their arguments on review), a two-member Commission, in a decision
implementing the court's decision and remand order, confirmed only tentatively that the
commission would continue to follow its reallocation of the burden of proof. Dun-Par
Engineered Form Co, 13 BNA OSHC 2147, 2150, 1987-90 CCH OSHD � 28,495, p.37,764 (No.
79-2553, 1989) ("Dun-Par I-B").[[14/]]

The parties in this case were directed to file their review
briefs in late 1989. The Secretary relied on the Eighth Circuit's opinion to justify
having not shouldered the burden of proof as to alternative measures for the purpose of
the infeasibility defense:

The Secretary disagrees with the Commission's reallocation of
the burden of proof . . . . [T]he Commission overruled long-standing precedent that . . .
the employer must show . . . there are no alternative abatement methods. . . . For the
reasons set forth in the Eighth Circuit's decision . . . the employer must retain the
burden . . . .

Seibel, appearing pro se and apparently unaware that the law
had changed, argued only that it had established the infeasibility of alternative
measures.

We now overrule Dun-Par I-A to the extent that it reallocates the burden of proof
regarding the infeasibility of any alternative measures. For the reasons given in the
Eighth Circuit's opinion, with which we agree, we hold that any employer seeking to be
excused from implementing a cited standard's abatement measure on the basis of its
infeasibility has the burden of establishing either that an alternative protective measure
was used or that there was no feasible alternative measure. As noted, the parties have
tried and argued this time is though the Commission never reallocated the burden or prove.
Therefore, there remains only the matter of making appropriate findings of fact and
conclusion of law as to whether Seibel has met the burden of proof.

D. Remand for Factual Findings and Legal Conclusion on the
Affirmative Defense of Infeasibility.

As our recitation of the facts at the outset of this opinion
suggests, Seibel's affirmative defense of infeasibility is highly fact-dependent; there
are close questions of fact that are difficult to resolve. The administrative law judge
did not examine the evidence and did not decide whether the employer met the standard of
proof regarding both elements of the defense, i.e., the infeasibility of the abatement
measure required by the cited standard (shaded lenses) and the infeasibility of any
alternative measure (jigs). Therefore, a remand is appropriate.[[15/]] Compare, Kaspar
Wire Works, Inc., 13 BNA OSHC 1261, 1262, 1986-87 CCH OSHD � 27,882 p. 36,554-55 (No.
85-1060, 1987) (remand for the judge to address affirmative defenses apparently overlooked
in his decision).

Seibel is appearing pro se and expresses a legitimate concern
to minimize its litigation expenses. Therefore, we particularly note that Seibel need not
refile the arguments that have already been extensively presented to us and that our
primary objective in remand is to put the case back before an administrative law judge for
the purpose of resolution of Seibel's infeasibility defense. Our intent is to assure that
Seibel and the Secretary are not denied the careful and complete factual review that is
provided by orderly administrative procedures.

VII. Order

Accordingly, we reverse the decision of the judge and remand
this case for further proceedings consistent with this opinion, including an appropriate
disposition of Seibel's affirmative defense of infeasibility.

Edwin G. Foulke,

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: August 9, 1991

SECRETARY OF LABOR,

Complainant

v.

SEIBEL MODERN MANUFACTURING

AND WELDING COMPANY

Respondent

OSHRC DOCKET NO. 88-0821

DECISION AND ORDER

This case arose under 29 USC, sec. 651 et seq. of the
Occupational Safety and Health Act of 1970 (the Act). As a result of an inspection by the
Occupational Safety and Health Administration [OSHA] of the Respondent's premises,
Citation #1 was issued charging that the Respondent violated sec. 5(a)(2) of the Act by
the serious violation of the standard at 29 CFR 1910.252(e)(2)(i)(a), respectively item #3
of Citation #1.

On or about April 6, 1988, the Respondent filed Notice of
Contest to said item 3 of Citation #1 and the penalty proposed therefor.

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

PRELIMINARY

There is little disagreement about the facts. The alleged
hazard concerned employees who were engaged in welding. One employee, called a
"tacker", would do the actual welding on material held by another employee,
called a "fitter". The tacker and fitter worked at a table facing each other
with the part being assembled between them on the table. The tacker wore a shield but the
fitter wore no special protective glasses [some employees wore regular glasses]. The
tacker wore a glove (on one hand). Both the tacker and fitter were about 24 inches from
the radiant energy of the welding, which was in plain view of management personnel in the
area.

TESTIMONY

Seibel, the Respondent's president, testified that in 3/4ths of the welds, the
material itself is between the welding arc and the fitter; and that the gloved hand of the
tacker is cupped over the weld entirely in most cases ...Tr. 57, 63-68. In his opinion,
the operation was not hazardous and he is not aware of any cases of weld flash even though
one fitter worked for 25 years and one for 8 years ... Tr. 63.

The Compliance Officer, DeLeys, testified that there were times
when the fitter was not protected by either the glove or the material ... Tr. 100. He also
conceded that his inspection was the first time he had ever seen a 2-man welding
operation...

Tr. 28.

The Respondent's witness, Howard, testified that he had been a
welder and fitter for 8 years and that the Respondent's operation gives the fitter
adequate protection... Tr. 77-82.

RECORD OF INJURIES

The mere absence of any injury does not necessarily lead to the
conclusion that there is no hazard; however, it is at least of some weight on the question
of whether a hazardous condition exists. And the fewer the number of injuries and the
greater the length of time without injury are both of some consequence in answering that
question. In the instant case, there is uncontradicted testimony that the Respondent's
method of welding had been carried on for some 25 years without any accident or injury to
any employee. That record certainly supports the Respondent's contention that its method
of welding is nonhazardous.

DISCUSSION

I was very favorably impressed by the Compliance officer
(DeLeys). However, he had the burden of proof. He had to overcome the opinion of the
Respondent's president [Seibel] and the Respondent's expert [Howard] who had both had
years of experience whereon the Compliance Officer had never before seen a 2-man
operation. In addition, the opinion of the Respondent's witnesses was corroborated by the
Respondent's years of operation without injury or accident. It was simply too much to be
overcome by the Compliance Officer.

I find that the Complainant has not sustained the burden of
proving that the Respondent violated the standard at 29 C.F.R. 1910.252(e)(2)(i)(a).

CONCLUSIONS OF LAW

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

2. The Complainant has not sustained the burden of proving the
   Respondent violated Sec. 5(a)(2) of the Act (See. 654).

ORDER

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

1. Item 3 of Citation #1 is vacated, together with the proposed
   penalty.

So ordered.

FOSTER FURCOLO

Judge, OSHRC

Dated: March 28, 1989

Boston, Massachusetts

APPENDIX

THE ACT

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

2. Section 666 [section 17(b)] "... employer who has
   received a citation for a serious violation... of this Act ... shall be assessed a civil
   penalty of up to $1,000 for each such violation."

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

THE STANDARD

29 CFR 1910.252(e)(2)(i)(a): "Helmets or hand shields
shall be used during all arc welding ... Helpers or attendants shall be provided with
proper eye protection."

FOOTNOTES:

[[1/]] The cited standard is 29 C.F.R. � 1910.252(e)(2)(i)(a), which provides:

Helmets or hand shields shall be used during all arc welding or arc cutting operations,
excluding submerged arc welding. Helpers or attendants shall be provided with proper eye
protection.

[[2/]] We have amended the caption of this case to correct an
apparent error as to the employer's name, which was originally docketed as "Seibel
Modern Manufacturing & Welding Company." The employer's briefs and other
submissions state the name as "Seibel Modern Manufacturing & Welding Corp."

[[3/]] In testimony, the welders were called
"tackers," and the helpers, "fitters." In this decision, however, we
will use the terminology of the cited standard.

[[4/]] Lens shades are numbered (1.5 through 14) to designate
progressively deeper shades. Compliance Officer DeLeys and OSHA's technical support group,
which he consulted, believed that Seibel's helpers should wear shade number 10, which
Seibel's welders wore. Expert Howard testified that shade number 10 is appropriate for
welders who are using 85-90 amp welding equipment, which is the kind of welding equipment
that Seibel was using. Expert Howard and President Seibel both believed, however, that
even shade number 5 would be too dark for Seibel's helpers to wear.

[[5/]] President Seibel further testified that he was "not
sure there is a magnified ruler that can be used in this particular instance." Their
use was not further explored.

[[6/]] The guide to which the latter provision refers
recommends a shade number 12 for "[g]as-shielded arc welding (ferrous)" using
electrodes ranging from 5/32 down to 1/16 inch. Seibel's gas-metal arc welding or MIG
(metal inert gas) welding process employed a smaller electrode than the guide mentions.
Seibel's electrode was .035 inch, closer to 1/32 than 1/16 inch (which is .0625 inch).
Compliance Officer DeLeys and the OSHA technical support group that he consulted therefore
recommended a shade number 10, rather than shade number 12, as specified by the guide.

[[8/]] Moreover, aside from the guidance given in the standard,
in this case there is opinion evidence suggesting that this employer could actually have
recognized the need for shaded lenses. Seibel's expert witness testified that shade
numbers 1.5 or 1.7 would be advisable for the helpers. (Compliance officer DeLeys
testified, however, that he would not have accepted such a slight shade.) Also, president
Seibel had already realized that the welders needed shaded lenses, and Union Carbide, the
manufacturer of Seibel's welding equipment, recommended shaded lenses for
"observers" of welding.

[[9/]] See also Hamilton Die Cast, Inc., 11 BNA OSHC 2169,
2172, 1984-85 CCH OSHD � 26,983, p. 34,690 (No. 79-1686, 1984) (''[i]n view of the
general nature of the cited standard and the lack of any express language specifically
addressing die casting machines, HDC cannot reasonably be said to have been on notice of a
requirement to guard....once the Secretary had informed HDC that guarding was not needed
at such times").

[[10/]] President Seibel first made this point in argument, but
it finds some support in his testimony and other record evidence. He had discussed the
matter of a helper's not being able to see through shaded lenses, and he had described the
unwieldiness of the metal battery case pieces their large size, considerable weight,
awkward shape and bowed condition. He had also offered into evidence photographs of
fitters holding large, flat and thin pieces of metal with sharp corners and ragged edges.
The photographs show that the fitters can sometimes wear gloves but do not always do so:
for example, one photograph shows a fitter wearing one glove (on the hand holding a metal
piece) and having one hand bare (holding pliers onto another metal piece); another
photograph shows the same fitter holding a metal piece with his bare hands.

[[11/]] The Secretary did not appeal the part of Dun-Par I-A
that dealt with an employer's burden to establish the infeasibility of the abatement
method specified in a cited standard.

[[12/]] Therefore, the Commission decided that it would be
unreasonable to limit the employers' defense to impossibility: "Strict application of
an 'impossibility' defense does not accommodate considerations of reasonableness or common
sense, or reflect the strong sense of the practical." 12 BNA OSHC at 1955, 1986-87
CCH OSHD at p. 36,023.

[[13/]] See Universal Sheet Metal, 2 BNA OSHC 1061, 1062,
1973-74 CCH OSHD � 18,163, p. 22,341 (No. 657, 1974) (safety belts used in alternative to
guardrails); George A. Hormel and Co., 2 BNA OSHC 1190, 1192-93, 1974-75 CCH OSHD �
18,685, pp. 22,582-83 (No. 1410, 1974) (safety harness as alternative to guardrails);
American Bridge, 2 BNA OSHC 1222, 1223, 1974-75 CCH OSHD � 18,702, p. 22,593 (No. 2249,
1974) (factual indication that neither cited abatement nor alternative was usable); Cimpl
Packing, 2 BNA OSHC 1436, 1437 n.2, 1974-75 CCH OSHD � 19,127, p. 22,847 n.2 (No. 1987,
1974) (failure to explore use of alternative measure); Garrison & Associates, Inc., 3
BNA OSHC 1110, 1974-75 CCH OSHD � 19,550, p. 23,344 (No. 4235, 1975) (cited standard's
additional measure-- hand tools--used in alternative to required machine guarding, which
might have been unusable); Central Steel and Tank, 3 BNA OSHC 1711, 1712, 1975-76 CCH OSHD
� 20,172, p. 24,017 (No. 2346, 1975) ("[e]ven accepting the validity of this
claim"--that the cited standard's methods of machine guarding could not be
used--"the record does not establish that no practical means of protecting against
the hazard exists"). See also Taylor Building Associates, 5 BNA OSHC 1083, 1085 n.6,
1977-78 CCH OSHD � 21,592, p. 25,910 n.6 (No. 3735, 1977) and other cases cited therein,
especially Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1975-76 CCH OSHD �
20,691 (No. 12775, 1976) , and Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD �
20,690 (No. 3694, 1976), which involve the multiple-employer worksite defense.

[[14/]] Former Commissioner Arey stated: "I leave for
another day the question of whether current Commission precedent is correct; or whether
the Eighth Circuit's position should be adopted. Commission precedent still places the
burden on the Secretary of showing a feasible alternative means of protection when literal
compliance with a standard is infeasible." Former Chairman Buckley stated: "I
concur with Commissioner Arey's disposition of this case, given the mandate imposed on the
Commission by the Eighth Circuit . . . . " and "[I]t is with reluctance that I
follow the Eighth Circuit's decision . . . . " 13 BNA OSHC at 2151 & 2153,
1987-90 CCH OSHD at pp. 37,766 & 37,767.

[[15/]] "[T]he Commission is the fact-finder, and the
judge is an arm of the Commission for that purpose." Accu-Namics, Inc. v. OSHRC, 515
F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976) (emphasis in the
original). The Commission has authority to make factual findings where the administrative
law judge did not, Accu-Namics, 515 F.2d at 834, but ordinarily an administrative law
judge does resolve these factual issues first and the Commission then exercises a review
function. This bi-level procedure within an administrative agency was conceived to benefit
the parties, and the benefits of it are particularly evident in cases of close questions
of fact. Cf., Ed Taylor Constr. Co. v. OSHRC, 931 F.2d 1458, 1462-64 (11th Cir. 1991)
(citation item vacated because vacancies on the Commission denied the employer an
opportunity for Commission review of the administrative law judge's factual findings,
under the preponderance of the evidence test). At the next level of adjudication--review
by a federal court of appeals--the factual findings of the Commission are conclusive as
long as they are supported by substantial evidence. 29 U.S.C. � 660(a).