Trinity Industries, Inc.

Plain-English summary

Trinity used five forklifts at its San Antonio steel-fabrication plant, operated by employees with 15 to 30 years of experience. OSHA alleged that Trinity had not devised adequate methods to train those operators. The record showed that management monitored operator proficiency and that a designated foreman would test any new operator, although no new operator had been hired for many years. OSHA relied on the absence of recent formal training and an inspector's view that an employee gave unsatisfactory answers, but the inspector did not identify the questions or answers with enough specificity. Because the standard did not prescribe a training frequency and the evidence did not establish that Trinity's method was inadequate, the Commission vacated the item. No penalty had been proposed for it.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.106(e)(2)(iv)(d), 1910.134(b)(10), 1910.134(b)(11), 1910.134(e)(5)(i), 1910.178(l), 1910.180(b)(2), 1910.180(c)(2), 1910.212(a)(3)(ii), and 1910.243(b)(2)
• Outcome: Forklift-training item vacated; no penalty had been proposed for that item.
• Key point: The Secretary must prove that an employer's actual operator-training method is inadequate, not merely that it lacks the inspector's preferred formal features.

Full text (OSHRC public release)

Docket No. 89-1791

SECRETARY OF LABOR,

Complainant,

v.

TRINITY INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 89-1791

DECISION

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

BY THE COMMISSION:

As a result of an inspection by the Occupational Safety and
Health Administration ("OSHA"), Trinity Industries, Inc. was issued two
citations containing a number of items. The only item remaining on review[[1]] alleges an
other-than-serious violation of 29 C.F.R. � 1910.178(1)[[2]] for failure to satisfy the
requirement that "[m]ethods shall be devised to train operators in the safe operation
of powered industrial trucks." OSHA proposed no penalty for this item. At issue is
whether Review Commission Administrative Law Judge Louis G. LaVecchia erred in concluding
that the Secretary proved the alleged violation.

Background

At Trinity's steel fabrication plant in San Antonio, Texas,
there were five forklift trucks used to transport sheet steel plate in the shop bay area.
Trinity employed ten or eleven "authorized forklift operators" at the plant, all
with 15 to 30 years of experience as forklift operators.

The Secretary argues in her brief that "[a]t a minimum
this standard [section 1910.178(1)] requires that an employer issue instructions on how
forklift operators may recognize and avoid unsafe conditions."' At the hearing, the
Secretary elicited testimony from Howard Shelton, Trinity's assistant plant manager at the
time of the inspection, that the forklift operators had not received "any actual
training" for two and a half years. The compliance Officer who conducted the
inspection testified that on-the-job training could be sufficient under the standard if it
covered subjects that he considered essential, and employees demonstrated knowledge
thereof. He testified that when he questioned at least one employee to determine the level
of knowledge of these subjects, the answers were, in his opinion, "not
satisfactory."

In his decision, the Judge concluded that the Secretary had met
her burden of proof in this case, particularly finding that "[t]he record, in fact
demonstrates no evidence of a" program, and no evidence the plant's operators have
had any training."

Discussion

A review of the record reveals that, contrary to the judge's
finding, there is evidence on training introduced by Trinity in the record. When asked on
direct examination, if Trinity's forklift operators were "all previously experienced
and trained" (emphasis added) assistant manager Shelton responded in the affirmative.
Moreover, Sheldon further testified that he has "observed" the operators'
driving to see if they were proficient in maneuvering forklifts, and they all were. He
also stated that there have not been any forklift accidents at the plant. Shelton
testified that the "on-the-job" training that he told the compliance officer
about consisted of the following:

[W]e have got one person designated, which is our maintenance
foreman. If we should hire a new employee to operate a fork truck, he would be tested to
run the fork truck. He would be--this would be done outside the plant in our yard or
something outside where we got steel that he can move around without anyone being
around[,] to find out if the man is even capable of doing this type of job.

He further stated that Trinity had not hired any new forklift
truck operators at the plant for 15 to 20 years.

The Secretary has the burden of proving her case by a
preponderance of the evidence. E.g., Regina Constr. Co., 15 BNA OSHC 1044, 1046, 1991 CCH
OSHD � 29,354, p. 39,467 (No. 87-1309, 1991); Astra Pharmaceutical Prods., 9 BNA OSHC
2126, 2129, 1981 CCH OSHD � 25,578, pp. 31,899-900 (No. 78-6247, 1981), aff'd in
pertinent part, 681 F.2d 69 (1st Cir. 1982). The Secretary's evidence includes Shelton's
testimony that no actual training had been provided for two and a half years. However, the
standard does not state how often training must be provided. The Secretary also relies on
the compliance officer's testimony that he had asked questions about subjects that he
considered essential and received unsatisfactory answers. However, he did not describe
with any specificity what questions he asked or what answers he received.[[3]]

That evidence must be balanced against Trinity's evidence that
its forklift operators were monitored by Shelton and "trained," and that there
was a foreman designated to test and evaluate any new employee. Weighing the
above-described evidence presented by the Secretary against that introduced by Trinity, we
conclude that the Secretary has not proven a violation by a preponderance of the evidence.
See Trinity Indus., 15 BNA OSHC 1579, 1590, 1992 CCH OSHD � 29,662, p. 40,193 (No.
88-1545, 1992) (Secretary failed to prove required radiation survey not conducted); E.I.
du Pont de Nemours & Co., 10 BNA OSHC 1320, 1325, 1982 CCH OSHD � 25,883, p. 32,381
(No. 76-2400, 1982) (Secretary failed to prove shower facilities not "suitable"
as standard required); see also Granite City Terminals Corp., 12 BNA OSHC 1741, 1745-46
& n.8, 1986-87 CCH OSHD � 27,547, p. 35,774 & n.8 (No. 83-882-S, 1986) (Secretary
failed to show alternative method provided was unsafe).

Based on this record, we cannot determine whether the training
was inadequate under this standard. Therefore, because the Secretary has the burden of
proof, we conclude that, based on the specific record in this case, the Secretary has
failed to establish a violation by a preponderance of the evidence [[4]]. Cf. Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986) (burden of proof is deciding factor
when necessary facts cannot be determined conclusively from record).

Order

Based on the Secretary's failure to meet her burden of proof,
we vacate citation no. 2, item 5, which alleges an other-than-serious violation of section
1910.178(l).

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: July 23, 1992

SECRETARY OF LABOR,

Complainant,

v.

TRINITY INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 89-1791

APPEARANCES:

Mary E. Witherow, Esquire

Dallas, Texas

For the Complainant.

Robert E. Rader, Jr., Esquire

David P. Blanke, Esquire

Dallas, Texas

For the Respondent.

DECISION AND ORDER

LAVECCHIA, Judge:

This is a proceeding brought before the Occupational Safety and
Health Review Commission ("the Commission") pursuant to � 10 of the
Occupational Safety and Health Act of 1970, 29 U.S.C. � 651 et seq. ("the
Act").

The Occupational Safety and Health Administration
("OSHA") conducted an inspection of Respondent's steel fabrication plant in San
Antonio, Texas, on April 4, 1989, which resulted in two citations. Citation 1 alleges
serious violations of 29 C.F.R. � 1910.180(b)(2) 1910.180(c)(2), 1910.212(a)(3)(ii) and
1910.243(b) (2). Citation 2 alleges "other" violations of 29 C.F.R. �
1910.106(e)(2)(iv)(d), 1910.134(b)(10), 1910.134(b)(11), 1910.134(e)(5)(i) and
1910.178(1).

Respondent timely contested the citations and a hearing took
place on May 15, 1990, in San Antonio, Texas. Jurisdiction was not in issue and no
additional persons intervened. Both parties have submitted post-trial briefs, and this
matter is ripe for decision.

29 C.F.R. � 1910.180(b)(2)

Vern Bechtel testified. He has been an OSHA compliance officer
("CO") for almost 20 years and he conducted the subject inspection. He was
accompanied by Neil Foreman, Trinity's corporate safety director, John McCasland, the
plant manager, and Howard Shelton, the assistant plant manager. (Tr. 4-6; 9-10).

During his inspection, Bechtel observed a used, reconditioned
crane that did not have hand holds or steps to facilitate access to the cab, which created
a fall hazard. He did not see employees enter the cab, but the plant manager told him the
crane was used regularly. Bechtel estimated the crane was ten years old, but said he would
not be surprised if it dated from the late 60's. He identified Exhibits C-1 and C-2 as
photos he took of the crane, and C-3 as the American National Safety Institute
("ANSI") standard B30.5-1968, which the OSHA standard incorporates by reference.
(Tr. 10-16; 60).

Howard Shelton also testified. He is the plant manager of the
San Antonio facility; he was assistant manager at the time of the inspection. He has
worked for Trinity for over 11 years; his previous positions include maintenance
supervisory positions. He said the crane in C-2 was constructed in 1967. (Tr. 123-27).

The subject standard provides as follows:

All new crawler, locomotive, and truck cranes constructed and
utilized on or after August 31, 1971, shall meet the design specifications of the American
National Standard Safety Code for Crawler, Locomotive, and Truck Cranes, ANSI B30.5-1968.
Crawler, locomotive, and truck cranes constructed prior to August 31, 1971, should be
modified to conform to those design specifications by February 15, 1972, unless it can be
shown that the crane cannot feasibly or economically be altered and that the crane
substantially complies with the requirements of this section. (Emphasis added).

Exhibit C-3 shows paragraph 5-1.8.3(b) of ANSI standard
B30.5-1968, which provides as follows:

On all crawler, truck- and wheel-mounted cranes suitable hand
holds and/or steps shall be provided to facilitate entrance to and exit from the
operator's cab and the truck cab.

The Secretary contends the record demonstrates a violation.
However, as Respondent points out, the Commission has held, based on the standard's
history, "that the provisions of section 1910.180 . . . must be considered advisory
if the crawler, locomotive, or truck crane was 'constructed and utilized' prior to August
31, 1971." General Dynamics Corp. , 80 OSAHRC 42/C7, 8 BNA OSHC 1360, 1362,
1980 CCH OSHD � 24,415 (No. 78-3290, 1980). The only evidence in regard to the crane's
construction date was the testimony of Howard Shelton, which was not refuted by the
Secretary. Based on that testimony, the cited crane is subject to the second sentence of
1910.180(b)(2), which, according to General Dynamics, is advisory, rather than mandatory.
Since there can be no violation of an advisory standard, the citation is vacated.

29 C. F. R. � 1910.180(c)(2)

Vern Bechtel testified that he and the management officials
with him could not find a load rating chart in the cab of the crane shown in C-2. Although
they did not tell him he could not enter the cab, he did not do so because of the lack of
steps. The glass and doors on the cab allowed him to see its entire interior from the
ground, although he could not see the area behind the operator's seat which housed the
machinery and was covered by sheet metal. Bechtel said the lack of a chart was hazardous
because the operator would not know the crane's lifting capability and other information
which would prevent accidents. (Tr. 16-21; 60-63).

Neil Foreman is Trinity's corporate safety director. He
testified he had not been inside the cab before the inspection and did not know if it had
a chart. Bechtel did not direct his to enter the cab; however, later that day, Forman and
Shelton did so and found two load rating charts. One was on a clipboard in a metal pocket
on the door frame. The other was attached to the cab with a wire fastener back to the
left-hand side of the operator; it was visible from the operator's seat. Both charts were
legible and in plastic protectors. Foreman said all parts of the cab were not visible from
the ground and that the charts could not be seen from there. (Tr. 102-06; 120).

Howard Shelton testified he and Foreman found two charts in the
cab after the inspection. One was on a clipboard in the side pocket beside the driver's
seat. The other was in a plastic guard with one end fastened to the cab's roof. It was an
8 1/2 x 11" sheet that hung down about eye level behind and to the left of the
operator's seat; the operator could read it by turning his head. It had load capability
and rating information on it. Shelton said he could not see the chart or all of the cab's
interior from the ground because it was too high up. (Tr. 127-28; 146-47; 150-51).

The subject standard provides as follows:

A substantial and durable rating chart with clearly legible
letters and figures shall be provided with each crane and securely fixed to the crane cab
in a location easily visible to the operator while seated at his control station.

Although the CO believed he could clearly see the cab's entire
interior from the ground, I conclude, based on the record, that he was unable to do so.
C-2 shows an obscured view of the area behind the operator's seat, and Bechtel's own
testimony indicates he could not see that area. Respondent's witnesses said there was a
chart behind the seat which was visible to the operator. [[1]] The Secretary asserts
Respondent's witnesses are not credible because they did not advise the CO or OSHA about
the charts. (Tr. 120-21; 146). However, I observed the demeanor of Foreman and Shelton and
found no reason to not credit their testimony. The citation is vacated.

29 C.F.R. 1910.212(a)(3)(ii)

Vern Bechtel observed a Pacific hydraulic press brake that had
no guard to keep an operator's hands out of the point of operation. He did not see it
operate, but the plant manager told him it was used and that it had never had a guard. The
press is actuated with a foot pedal that causes the ram to descend and close an metal
pieces inserted into it, making a 90-degree bond in the metal. The manager printed out
pieces on the floor that had been used in the press; some of them wore 40" x 8"
and had 2" bonds in them. Bechtel identified Exhibits C-4 and C-5 an photos he took
of the press with the ram open; C-5 showed some of the pieces he saw. Although the manager
did not say where an operator's hands would be when the ran contacted the metal, Bechtel
said they would be within inches of the point of operation because of the size of the
pieces and bonds he saw. He did not know the speed of the press, but said it would be
slow. He said the unguarded press was hazardous and could result in finger amputation. He
did not know if the press had caused any injuries. (Tr. 21-27; 63-66).

Neil Foreman and Howard Shelton also testified about the press
brake. Both have seen it operate, and Shelton has operated it. The operator holds the
metal to be bent with both hands it positions its bend marks as the ram descends. The
ram's very slow, and it becomes even slower as the ram gives metal, which gives the
operator time to align the bend marks. The operator's hands are on the metal when the ram
contents its removes his hands. The operator's foot must be on the pedal to lower the ram,
and it stops if the operator removes his foot. Hydraulic failure would not cause the ram
to fall. Both foreman and Shelton said the press was not hazardous, and Shelton said no
one had ever been injured on it. Foreman said the pedal in 3.5 feet from the point of
operation. (Tr. 114-16; 121; 328-30)

The relevant portion of the subject standard provides as
follows:

The point of operation of machines whose operation exposes an
employee to injury, shall be guarded.

For the standard to apply, the operation of the brake press
must represent a likelihood of injury. Respondent's witnesses described the operation, but
did not say how close an operator's fingers would be to the ram. The CO did not see the
operation, but believed the press was hazardous based on the metal pieces he saw.
According to the CO, some of the pieces he saw are shown in C-5. However, he did not
indicate where the pieces appear in C-5, and I am unable to discern them with any
certainty upon viewing the photograph. The only clear evidence in regard to material used
in the press was the CO's testimony about the 40" x 8" pieces that had 2"
bends in them, although he failed to indicate where the pieces were bent. Obviously, if
the bond was made on the 8" side, with the operator holding onto and positioning the
metal, the operator's fingers would be dangerously close to the ram. On the other hand, if
the bend was made at the end of a 40" piece of metal, with the operator holding onto
the other end, the possibility of injury would be remote. Based on the record, I am unable
to conclude that the operation of the brake press represented a likelihood of injury. The
citation is vacated.

29 C.F.R. � 1910.243(b)(2)

Vern Bechtel saw employees using a pneumatic drill which was
fed air pressure through a hose connected to the manager told him the pressure was between
85 and 90 p.s.i. The hose consisted of various sections joined by a tube secured by wire
wrapped around it. He identified Exhibits C-6, C-8 and C-9 as photos he took and C-7 as a
drawing he made of the hose. The hose had bulges in it, which indicated it was weakened;
it was also weakened by the splices. Bechtel said either of these conditions could cause
the hose to rupture, and then, because of the air pressure, whip around and strike an
employee, which would likely result in eye injury, lacerations or fractures. He knows of
cases where this has occurred. He said hoses should be designed to withstand 300 p.s.i.,
and that they should be replaced when they first exhibit bulges. If they are spliced,
quick disconnects or threaded air couplings that connect to the hose with teeth should be
used. Although none of the splicing he saw was leaking, his opinion was that it was not
acceptable, and that it was not made for the purpose of splicing hoses. (Tr. 27-35;
68-71).

Neil Foreman testified he had run a test on a portion of the
cited hose. It was put in a soap and water mixture and subjected to up to 300 p.s.i. The
splices held, and there were no bubbles from air leaks. (Tr. 117-18).

Howard Shelton testified that all of the hose used in the plant
is two-ply, 300 p.s.i. hose. There were about 5,000 feet of hose in the plant at the time
of the inspection, and the only bulges found were in the cited hose. The plant buys its
splice fittings and wire connectors from Dixon, a hose repair product manufacturer.
Sta-put is the brand name of the fittings and connectors the plant buys, and they are made
to repair air hoses. Shelton described the fitting as a barbed steel insert. The hose
slides over both ends of it, and wire is pulled tight around it with a banding tube.
Shelton has never seen leaks in the splices, and saw none when Foreman tested them. (Tr.
130-32).

Shelton said no one had ever been injured because of faulty
fittings or hoses. The plant has a policy for inspecting hosing, which consists of
checking them for leaks before each use and a weekly report foremen fill out for equipment
repair. The plant has safety meetings in which employees are told to check hoses for leaks
and how to repair them. They abide by the Policy and are subject to discipline if they do
not. He had no knowledge of anyone being disciplined for not inspecting hoses. He also had
no knowledge of the bulges before the inspection. (Tr. 133-34:148).

The subject standard provides as follows:

Hose and hose connections used for conducting.compressed air to
utilization equipment shall be designed for the pressure and service to which they are
subjected.

The foregoing demonstrates the citation was issued because of
the bulges in the hoses unacceptable splicing. Based on the record, I conclude the
Secretary has not shown a violation in regard to the splicing. However, she has shown a
violation in regard to the bulges. Even though there have been no injuries because of
faulty hoses, as the CO testified, the bulges indicated a weakened hose that could rupture
and cause serious injury to employees.

Respondent asserts the condition occurred because of an
isolated instance of employee misconduct. The Commission recognizes the defense of
unpreventable employee misconduct where the employer can show that it both established and
adequately communicated work rules designed to prevent the violation. Jensen Constr.
Co. , 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1479, 1979 CCH OSHD � 23,664 (No. 76-1538,
1979). Respondent did present evidence of a policy of checking hoses for leaks. However,
it presented no evidence that employees were instructed to inspect hoses for bulges and to
replace them if any were found; therefore, unpreventable employee misconduct has not been
shown. The citation is affirmed, and the Secretary's proposed penalty of $600.00 is
assessed. This penalty is appropriate in light of Respondent's size, history, good faith
and the gravity of the violation.

29 C.F.R. � 1910.106(e)(2)(iv)(d)

Vern Bechtel testified he observed 55-gallon drums in the shop
area. He identified Exhibit C-10 as a photo he took of one of them. Although he did not
test the drum contents, he determined they contained Chemline coolant HDC Number 396 from
either labels on the drums or the employer's material safety data sheets. The coolant is
combustible because it has a flash point of 102 degrees Fahrenheit. The drums had
gata-type valves, which, if left in an open position, would cause the contents to flow
onto the ground. There was evidence this had occurred. Because the drums contained a
combustible substance, the standard required them to have self-closing valves, which
automatically stop the contents from flowing out when the valve is released. Bechtel said
the condition created a fire hazard. (Tr. 36-41: 72-73).

Neil Foreman and Howard Shelton testified that the drums
contained a mixture of 50 parts of water to one part of Chemline HDC-396 coolant, and that
the mixture's flashpoint was over 200 degrees Fahrenheit. Shelton said the mixture is used
on saw blades and drill bits. He also said the coolant is combustible before it is
diluted. (Tr. 116-17; 134-35).

The subject standard provides, in pertinent part:

Flammable or combustible liquids shall be drawn from or
transferred into vessels, containers, or portable tanks within a building only through a
closed piping system, from safety cans, by means of a device drawing through the top, or
from a container or portable tanks by gravity through an approved self-closing valve.

As Respondent points out, 1910.106 (a) (18) defines
"combustible liquids" as liquids with a flashpoint at or above 100 degrees
Fahrenheit. The standard also divides combustible liquids into "Class II
liquids" (those with a flashpoint above 100 and below 140 degrees) and "Class
III liquids" (those with a flashpoint above 140 degrees). Class III liquids are
further divided into "Class IIIA liquids" (those with a flashpoint above 140
degrees and below 200 degrees) and "Class IIIB liquids" (those with a flashpoint
above 200 degrees). The standard does not apply to Class IIIB liquids. See 1910.106 (a)
(18) (ii) (b). The CO did not test the drum contents, and both Foremen and Shelton
testified that the coolant, in the diluted form in which it was stored, had a flash point
of over 200 degrees. Since the evidence does not demonstrate the standard applied to the
drum contents, the citation is vacated.

29 C.F.R. � 1910.134(b)(10)

Vern Bechtel testified he observed an employee, Gassim Sharim,
wearing a dust respirator. Management told him a doctor gave employees physicals before
they started work, but did not know if they were physically capable of wearing
respirators. The manager had the plant nurse call the doctor, who said pulmonary function
tests were not given. Bechtel said this was the ordinary test given, but did not know if
it was required to ascertain fitness for respirator use. He said employees must be
medically determined to be capable of wearing respirators because using them requires more
physical exertion in breathing and can cause respiratory distress. (Tr. 41-43; 73-76).

Howard Shelton testified that a doctor with an occupational
medical clinic in San Antonio gives employees physicals before they begin work, and that
this practice was in effect at the time of the inspection. Employees also receive yearly
physicals. The doctor determines if employees are fit to wear respirators and decides the
pertinent health and physical conditions. Shelton did not know how the doctor determined
this; he said the doctor could, but was not required to, administer a pulmonary function
test. Shelton receives written reports from the doctor. (Tr. 135-36; 148-49).

The subject standard provides as follows:

Persons should not be assigned to tasks requiring use of
respirators unless it has been determined that they are physically able to perform the
work and use the equipment. The local physician shall determine what health and
physical conditions are pertinent. The respirator user's medical status should be
reviewed periodically (for instance, annually). (Emphasis added).

Respondent notes that the Commission has addressed the subject
standard, in General Elec. Co. , 80 OSAHRC 127/F10, 9 BNA OSHC 1185, 1980 CCH OSHD
� 25,079 (No. 76-2982, 1980). In that case, the Commission found that 1910.134 (b) (10)
was adopted verbatim from the source standard developed by the American National Standards
Institute, which states that "[t]he provisions of this standard are mandatory in
nature where the word 'shall' is used and advisory in nature where the word 'should' is
used." Id. at 1186. Therefore, while the second sentence of the standard is
mandatory, the first and third sentences are advisory.

The citation charges as follows:

Persons were assigned to tasks requiring use of respirators and
it had not been determined that they were physically able to perform the work and use the
equipment, and the respirator user's medical status was not reviewed periodically (for
instance annually).

The wording of the charge demonstrates Respondent was cited
pursuant to the first and third sentences of the standard, however, a violation cannot be
predicated on the basis of these sentences, as they are advisory. Id. at 1184.
However, even though Respondent was not cited pursuant to the second sentence, which is
mandatory, the record shows that it complied with that portion of the standard. The
citation is vacated.

29 C.F.R. 1910, 134(b)(12)

Vern Bechtel testified he saw Gassim Sharim, the employee
wearing the dust respirator, mixing paint with a mechanical paint mixer. The respirator
was not approved for mixing paint. He saw Sharim's supervisor call him away and change his
respirator to a cartridge respirator, which was approved for mixing paint. He saw another
employee wearing a cartridge respirator spraying paint in the same area. Bechtel talked to
Sharim and learned his usual job was machine operator helper; he did not usually mix
paint, but had been doing so for about 1.5 hours a week for two weeks. On the day of the
inspection, he had been wearing the dust respirator for about 20 minutes. Bechtel said
dust respirators do not protect against exposure to chemicals; vapors or fumes can
penetrate them and cause respiratory irritation. (Tr. 42-46; 82-85).

Bechtel identified Exhibit R-2 as a photo he took of Sharim and
the area where he was mixing paint. It was near the end of the building, which was open
and had natural ventilation. Bechtel did not conduct any tests, and did not know if
Sharim's exposure was actually hazardous. He said the condition was cited as a potential
hazard because the paint contained alcohol and ethylene glycol and had an inhalation
hazard rating of two; he determined this from the paint's label and the employer's
material satiety data sheet. He classified the violation as nonserious because of Sharim's
limited exposure. (Tr. 45-47; 76-85).

Howard Shelton testified that Sharim's job was that of wheel
abrader helper. He described the abrader as a blasting machine with a dust collector. He
said Trinity provides a dust respirator to anyone who wants one, and that Sharim wore one
even though he was not exposed to dust. He said Sharim mixed point occasionally; on a
typical day he would mix paint for 30 to 40 minutes. When the CO saw him, he was in the
back of the paint bay, eight to ten feet from where the whole back of the building is
open. (Tr. 136-39).

The subject standard provides, in pertinent part:

Approved or accepted respirators shall be used when they are
available. The respirator furnished shall provide adequate respiratory protection against
the particular hazard for which it is designed in accordance with standards established by
competent authorities.

Respondent contends it had no obligation pursuant to the
standard because there was no evidence its employee was exposed to any hazard, actual or
potential. I disagree. The CO testified the paint was potentially hazardous because of its
contents and its inhalation hazard rating, which he determined from the label and
Trinity's material safety data sheet. Moreover, the record shows Respondent recognized the
potential hazard of exposure to the paint used. The employee spraying paint wore a
cartridge respirator, and Sharim's supervisor called him away to replace his respirator.
Finally, the record clearly shows there were respirators approved for mixing paint
available at the plant. The standard requires approved respirators to be used when they
are available; accordingly, Sharim was required to use one in this instance. Even though
the hazard may have been lessened by Sharim's limited exposure and the open area in which
he worked, the record nevertheless establishes a nonserious violation. The citation is
affirmed. No penalty is assessed.[[2]]

29 C.F.R. 1910.134(a)(5)(i)

Vern Bechtel testified that when he talked to Gassim Sharim, he
learned he had not been instructed in the proper use of the new cartridge respirator he
had received. He had "signed" for it, but had not been fitted for it. He did not
know how to put it on and was unable to demonstrate how to test it for proper fit. He
thought the respirator was designed to fit everyone, and that leaks could be detected by
feeling air passing between the mask and cheek. He did not know the hazards of an improper
fit. Sharim said he had seen 3M training films, although Bechtel was not familiar with
them. Bechtel said Sharim had sideburns, a moustache and the beginning of a beard, but did
not know if these prevented him from getting a good seal. (Tr. 47-50; 86-89).

Howard Shelton testified that plant employees are trained to
fit test their respirators, and that this policy was in effect at the time of the
inspection. The 3M respirator training program, which demonstrates fit testing, has been
shown at the plant once in the 2.5 years Shelton has been there. The 3M distributor visits
the plant about once a year to demonstrate fitting techniques on a one-on-one basis with
employees and to discuss what type of respirators to use and where to use them. Plant
foreman also employees in respirator use. To Shelton's knowledge, there are no plant
employees who have not been trained in fit testing. Although there have been any new
employees in about ten years, if one were hired, he would see the 3M film and his foreman
would give him further instructions. (Tr. 125; 139-42).

Shelton was present when the CO interviewed Sharim,and thought
Sharim tried to demonstrate how to fit test the respirator; it appeared Sharim knew how to
perform a fit test. He said Sharim is difficult to understand because his English is not
good. Sharim had a growth, rather than a full beard; Shelton did not think it would
prevent him from getting a good seal. (Tr. 142-43).

The subject standard provides as follows:

Every respirator wearer shall receive fitting instructions
including demonstrations and practice in how the respirator should be worn, how to adjust
it, and how to determine if it fits properly. Respirators shall not be worn when
conditions prevent a good face seal. Such conditions may be a growth of beard, sideburns,
a skull cap that projects under the facepiece, or temple pieces on glasses. Also, the
absence of one or both dentures can seriously affect the fit of a facepiece. The worker's
diligence in observing these factors shall be evaluated by periodic check. To assure
proper protection, the facepiece fit shall be checked by the wearer each time he puts on
the respirator. This may be done by following the manufacturer's facepiece fitting
instructions.

Respondent contends it did not violate the standard because of
the training it provided employees.  However, it also demonstrates that Sharim did
not receive fitting instructions when he received the new respirator and that he did not
know how to properly fit test it.  [[3]] That he was unable to do so, and that he
showed a general lack of knowledge of proper respiratory use, indicate Respondent's
training was deficient. Shelton implied the CO may have misunderstood Sharim. 
However, the CO's testimony evidenced no misunderstanding; to the contrary, his statements
about what Sharim told him were unequivocal.  The evidence demonstrates Sharim did
not receive adequate instruction in proper respirator use, and the 1910.134 (b)(11)
discussion, supra, demonstrates the hazards of the condition.  Respondent's other
arguments need not be addressed, since the record clearly established a nonserious
violation.  The citation is affirmed. No penalty is assessed.[[4]]

29 C.F.R. � 1910.178(1)

Vern Bechtel testified he learned the plant had five forklift
trucks which employees used. Management told him designated operators received on-the-job
training, but gave no explanation of the training. Bechtel said OSHA feels formal training
is required because of the high incidence of accidents involving industrial trucks. Formal
training addresses the safety aspects and handling characteristics of forklifts and
includes slides, films, workbooks, eye exams, testing and certification upon course
completion. He said on-the-job training would be acceptable if it provided the essential
information formal training would give an employee demonstrated knowledge of that
information. (Tr. 50-54, ).

Howard Shelton testified that all of the plant's operators have
15 to 30 years of experience, and that operators have been hired for 15 to 20 years. He
said there were ten or eleven designated operators at the time of the inspection. He has
observed their driving and believes they are proficient in forklift operation. Although
the plant has conducted no training in the 2.5 years he has been there, the maintenance
foreman is designated to conduct on-the-job training. If a new employee were hired to
operate a forklift, he would be tested on it to determine if he was capable of performing
the job. (Tr. 125; 143-45; 150).

The subject standard provides as follows:

Only trained and authorized operators shall be permitted to
operate a powered industrial truck. Methods shall be devised to train operators in the
safe operation of powered industrial trucks.

While not specifying formal training, the second sentence of the standard, as I read it:
requires operators to have ongoing training in regard to the safe operation of industrial
trucks. Respondent asserts the record shows it has an extensive training program. The
record, in fact, demonstrates no evidence of a training program, and no evidence the
plant's operators have had any training. Shelton himself admitted none has been given in
the 2.5 years he has been at the facility. Moreover, even though the evidence shows the
operators have a number of years of experience, experience does not satisfy the standard,
which explicitly requires training. A nonserious violation is established, and the
citation is affirmed. No penalty is assessed.[[5]]

Conclusions of Law

1.  Respondent, Trinity Industries, Inc., is engaged in a
business affecting commerce and has employees within the meaning of � 3 (5) of the Act.
The Commission has jurisdiction of the parties and of the subject matter of the
proceeding.

2.  On April 4, 1989, Respondent was not in violation of
29 C.F.R. if �� 1910.280(b)(2), 1.920.180(c)(2), 1910.212(a)(7)(ii),
1910.106(e)(2)(iv)(d) and 1910.134(b)(10).

3. On April 4, 1989, Respondent was in serious violation of 29
   C.F.R. � 1910.243(b)(2).

4. On April 4, 1989, Respondent was in nonserious violation of
   29 C.F.R. �� 1910.134(b) (11), 1910.134(e) (5) (i) and 1910.178(1).

Order

On the basis of the foregoing Findings of Fact and Conclusions
of Law, it is ORDERED that:

1. Items 1, 2 and 3 of serious citation number 1 are VACATED.

2. Item 4 of serious citation number 1 is AFFIRMED, and a
   penalty of $600.00 is assessed.

3. Items 1 and 2 of "other" citation number 2 are
   VACATED.

4. Items 3, 4 and 5 of "other" citation number 2 are
   AFFIRMED, and no penalties are assessed.

Louis G. LaVecchia

Administrative Law Judge

DATE: February 27, 1991

FOOTNOTES:

[[1]] By our order dated January 17, 1992, we acknowledged
receipt of the Secretary's withdrawal of the other three items that had been directed for
review.

[[2]] The standard provides:

� 1910.178 Powered industrial trucks.

....

(1) Operator training. Only trained and authorized operators
shall be permitted to operate a powered industrial truck. Methods shall be devised to
train operators in the safe operation of powered industrial trucks.

[[3]] Most of the compliance officer's testimony concerned his
views on what sort of program the standard requires. Acknowledging that it was a
"judgement call" as to which elements should be included, he supported provision
of ongoing, formal training for forklift operators in light of the generally high
incidence of industrial truck accidents. He noted that some industrial truck manufacturers
have developed formal training programs that address the safety aspects and handling
characteristics of forklifts and include slides, films, workbooks, eye exams, and tests.
The Secretary cites no Commission or court decision on the cited standard that adopts
these views. Moreover, as noted above, the Secretary acknowledged in her brief that the
requirements of the standard can be satisfied, albeit minimally, by instructions in
recognition and avoidance of unsafe conditions. Therefore, instead of such lengthy
testimony on what the compliance officer considered to be an ideal program, one that
clearly exceeds the minimal instructions that the Secretary acknowledges are required, the
Secretary could have, for example, questioned Shelton on cross-examination as to exactly
what he meant when he testified on direct examination that Trinity's operators had been
"trained."

[[4]]We therefore need not reach Trinity's argument that the
standard is unenforceably vague.

[[1]] Although Foreman and Shelton said there were two charts,
the one on the clipboard, as they described it, would not satisfy the standard
requirements.

[[2]] No penalty was proposed for this citation item.

[[3]] The CO's testimony is credited over that of Shelton on
this point, since Shelton's statement, that he "thought" Sharim tried to
demonstrate a fit test, indicates he did not clearly recall what he saw.

[[4]] No penalty was proposed for this citation item.

[[5]]No penalty was proposed for this citation item.