Nordam Group

Plain-English summary

Nordam manufactured and repaired aerospace products at a Tulsa facility where employees ground fiberglass parts. OSHA originally alleged that the company failed to provide side shields or goggles, while the judge found that several employees wore no eye protection at all. The Commission allowed OSHA to amend the citation because Nordam had recognized and tried the issue of whether it ensured employees used eye protection. Crediting the compliance officer's observations, the Commission affirmed the serious violation and assessed a $1,875 penalty. A separate eyewash-facility item had been vacated by the judge and was not at issue on review.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.133(a)(1) and 1910.151(c)
• Outcome: Serious eye-protection violation affirmed with a $1,875 penalty; the separate eyewash item remained vacated
• Key point: A citation may be amended to match an issue actually tried when the employer squarely recognized the issue and presented evidence on it.

Full text (OSHRC public release)

SECRETARY OF LABOR,

                             Comp lainant,

                 v.                                     OSHRC D ocket No. 99-0954

NORDAM GROUP,

                             Respon dent.


                                         DECISION

Before: RO GERS , Chairman; EISE NBRE Y, Comm issioner.
BY THE COMMISSION:
NORDAM Group (“ NOR DAM ”) is an aerospace repair and manufacturing company
with approximately 2,300 employees worldwide. NORDAM ’s main facility is in Tulsa,
Oklahoma. In response to an employee complaint that fiberglass dust was entering an
accounting office fro m an adja cent space referred to a s the “interior finish-out area,” the
Occupational Safety and Health Administration (“OSHA”) inspected NOR DAM’s T ulsa
facility on March 25, 1999. This inspection was conducted by Industrial Hygienist (“IH”)
Tori Felicia Kay Contreras. During part of her inspection, Contreras was accompanied by
Reasha Saltsman, an e mployee of Sherwill E nvironm ental Hea lth and Saf ety Consultan ts
(“Sherwill”), a company hired by NORDA M to administer its safety program s. Sherwill is
owned and managed by Robert Sherwin Jr. As a result of Contreras’s inspection, the
Secretary issued one citation with two items. Item 1, the only item at issue on review, alleges
that NORDA M violated 29 C.F.R. § 1910.133(a)(1)1 by failing to provide side shields and/or

1
29 C.F.R . § 1910.13 3 provide s, in pertinent p art:

      § 1910.133 Eye and face protection
         (a) General Req uirements. (1) The employer shall ensure that each affected
      employee uses appropriate eye or face protection when exposed to eye or face
      hazards from flying particles, molten metal, liquid chemicals, acids or cau stic
      liquids, chemical gases or vapors, or potentially injurious light radiation.

                                                                    2001 OSHRC N o. 11

2

goggles to employees who were sanding and grinding fiberglass parts. The citation states:

   Protective eye equipment was not required where there was a reasonab le probability

of injury that co uld be prev ented by such equipme nt:

   In the finish layou t departme nt, 2 the employer did not provide side shields
   and/or goggles to employees engaged in sanding and grinding of fiberglass
   parts. This hazard exposes employees to eye irritation and corneal abrasions.


   Administrative Law Judge Stephen Simko Jr. affirmed the citation for a violation of

§ 1910.133(a)(1). Judge Simko did not address whether NORDA M failed to provide
employees with side shields or goggles. Rather, he found that a number of e mployees wore
no form of eye protection, and that NORDA M violated the standard because it did not
enforce written rules which require that employees wear eye protection in the interior finish-
out area. Judge Simko classified the violation of § 1910.133(a)(1) as serious, and assessed
a penalty of $1,875.

                                    I. Amendment

A. Background

     (2) The employer shall ensure that each affected employee uses eye protection that
   provides side protection when there is a hazard from flying objects. Detachable side
   protectors (e.g. clip-on or slide-on side shields) meeting the pertinent re quiremen ts
   of this se ction are accep table.

2
At the end of the hearing, the Secretary moved to amend citation 1, items 1 and 2 to state
that the location of the violations was the interior finish-out department, not the finish layout
departme nt. Despite NORDAM’s objection, Judge Simko granted this motion in his Decision
and Order, finding that Saltsm an, who represented NORDAM during the inspection and
testified at the hearing, “cle arly understood that the location of the alleged violations was the
interior finish-out area of the second floor of its facility.” On review, NORDAM has not
objected to this ruling, and we do n ot address it.
 3

      After this case was directed for review , the Secretary filed a “Motion to Amend and

Memorandum in Support.” In her memorandum, the Secretary argues that the Commission
should amend citation 1, item 1 to “add a violation actually tried by the parties and found by
the judge, namely, the failure of re spon dent to en sure the w earin g of eye protection by eight
of respondent’s employees on March 25, 1999.” The Secretary claims that “although Judge
Simko d id not expre ssly state that he was amending the . . . citation to add an allegation of
violation based on the failure of several employees to wear any form of e ye protection w hile
exposed to airborne fiberglass, [he] implicitly did so by affirming the citation based on
precise ly that factu al findin g.”
Thereafter, NORD AM filed an “Objection to Secretary’s Motion to Amend,” arguing
that it did not know it was trying the unpleaded issue of whether it failed to ensure that
employees used eye pro tection. NO RDA M argu es that, althoug h certain w itnesses “made
references in their testimony to the number of people wearin g safety glasses,” these
references were “[d ]iscussions in the course of testimony concerning certain background
facts” and were “a far cry from . . . an effort to e stablish those facts in def ense again st a
specific, well-pleaded allegation.” NORDA M also claims that it would be prejudiced by
amendment of the citatio n. Had it known it was trying the issue of whether it ensured that
employees used eye protection, NORDAM argues, “it might have been able to produce other
witnesses present during [the] inspection that would have refuted such an allegation and
submitted evidence concerning NORDAM’s enforcement policy.”

B. Discussion
Federal Rule of C ivil Procedu re 15(b) go verns am endmen t of pleadin gs in
Commission proceedings.3 As the Commission noted in McWilliams Forge Co., 11 BNA

3
Rule 15(b) provides:
(b) Amendments to Conform to the Evidence.
[1] When issues not raised by the pleadings are tried by express or implied consent of
 4

OSHC 2128, 2 129, 19 84-85 CCH OSH D ¶ 26 ,979, p. 3 4,669 (No. 80-58 68, 1984),
“amendment under the first half of Rule 15(b) is proper only if two findings can be made –
that the parties tried an unpleaded issue and that they consented to do so.” (E mphasis in
original). Consent will be found only when the parties “squarely recognized” that they were
trying an unp leaded issue. See, e.g., Armour Food Co., 14 BNA OSHC 1817, 1824, 1987-90
CCH OSHD ¶ 29,088, p. 38,885 (No. 86-247, 1990). Consent is not implied by a party’s
failure to object to ev idence that is r elevant to both pleaded and unpleaded issues, at least in
the absence of some o bvious attemp t to raise th e unple aded is sue. McW illiams F orge C o.,
11 BN A OS HC a t 2130, 1 984-8 5 CC H OS HD a t p. 34,66 9.
Even if a party objects to the use of evidence in support of an unpleaded charge, the
pleadings may be amended under the second half of Rule 15(b) if the objecting party does
not suffer prejud ice. See Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC
1105, 1993-95 CCH OSHD ¶ 30,048, p. 41,269-70 (No. 88-572, 1993)(post-hearing sua
sponte amendment by the judge upheld where no prejudice shown). “To determine whether
a party has suffered prejudice, it is proper to look at whether the party had a fair oppor tunity

the parties, they shall be treated in all respects as if they had been raised in the pleadings.
Such amendmen t of the pleadings as ma y be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any party at any time, even
after judgment; but failure so to amend does not affect the result of the trial of these issues.
[2] If evidence is objected to at the trial on the ground that it is not within the issues
made by the pleadings, the court may allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the action will be subserved thereby and the
objecting party fails to satisfy the court that the admission of such evidence would prejudice
him in maintaining his action or defense upon the merits. The court may grant a continuance
to enable the objecting party to meet such evidence.

(Brack eted nu mbers added ).
 5

to defend a nd whe ther it could have offered any additional evidence if the case were r etried.”
ConAgra Flour Milling Co., 15 BNA OSHC 1817, 1822, 1991-93 CCH O SHD ¶ 29,808,
p. 40,592 (No. 88 -2572, 1992).
In this case, we find that NORDAM “squarely recognized” and consented to trying
the unpleaded issue of whether it ensured that employees used eye protection. N ORDA M’s
attorney questioned witnesses repeatedly regarding the company’s eye protection policies and
its enforcement of these policies. Contrary to NORDAM’s assertion, much of the testimony
elicited did not concern mere “background facts.” For example, Sherwin was asked several
questions related to whether safety glasses are required in the interior finish-out area, and
whether employees comply with this re quirement. These q uestions, and other ques tions to
the same effect, were not followed by any questions related to whether NORDAM provides
side shields or goggles. NORDAM also introduced into evidence personnel files and an
office memo in an attempt to show that it enforces safety rules.4 In addition, the Secretary’s
attorney asked nu merous q uestions reg arding the e nforcem ent of eye pro tection rules,
questions to w hich NO RD AM did n ot ob ject. Bec ause NO RD AM “squ arely recognized” that
it was trying the issue of w hether it ensured that employees used eye protection, and in fact
introduced fairly extensive testimony and documentary evidence on this issue, we grant the
Secretary’s motion to amend the citation.5

4
NORD AM’s attorney stated that he was introducing the personnel files, which included
records of disciplina ry actions, to show that “we have a rule and regulation, and we expect
it to be en forced .”
5
Based on our finding that NORDA M consented to trial of the unpleaded issue, we need not
consider whether it would be prejudiced by amendment of the complaint. In any event, it
does not appear that NORDAM w ould be prejudiced by amendment. As noted above,
NORD AM’s attorney elicited a significant amount of testimony related to the enforcement
of safety rules, including testimo ny related to the enforcement of eye protection rules.
NORDAM also introduced documentary evidence related to the enforcement of such rules.
Although NOR DAM claims that it would b e prejudice d by amend ment bec ause it could have
produced other witnesses to refute Contreras’s testimony, it does not identify these witnesses
 6

       II. Did NORDAM Ensure that Employees Used Eye Protection?

A. Background
IH Contreras testified that during her inspection of the interior finis h-out area, a nd in
the presence of Saltsman, she observed several employees grinding fiberglass parts. These
employees were “ve ry close dow n to the product[,] and there was a lot of fiberglass coming
off of the parts th emselves.” Contreras said that, as she watched the employees grinding,
“[n]one of the ones that I observed doing this process were wearing safety glasses, or side
shields, or goggles.” Contreras further testified that, of the eight to ten employees she
observed in the interior finish-out area, two w ere wearing safety glasses and the others were
not w earin g any form of eye protection.6 Saltsman, on the other hand , testified that she did
not see any employee in the interior finish-out area who was not wearing safety glasses.
Saltsman indicated tha t, in any event, NORDA M employees are not required to wear sa fety
glasses as long as they stay within aisle ways marked by yellow lines on the f loor. Fina lly,
Saltsman testified that, during the exit conference at the end of the inspectio n, Contrera s did
not mention that she had seen employees without safety glasses. Instead, Contreras
mentioned only that she had seen employees without side shields or goggles.
Judge Simko relied on Contreras’s testimony in finding that NORDAM violated
§ 1910.1 33(a)(1 ). In particular, he relied on Contreras’s statement that, other than the two
employees she observed in the interior finish-out area wearing safety glasses, no employees
were wearing any form of eye protection. Judge Simko found that Contreras’s testimony on
this issue was more credible than that of Saltsman. J udge Sim ko stated tha t he based h is

and does not e xplain how their testimon y would differ from that of Saltsman and Sherwin,
which addres sed N ORD AM ’s enfo rceme nt of sa fety rules.
6
Contreras was unsure of the total number of employees in the interior finish-out area,
stating: “ It was m aybe ten; e ight to te n.”
 7

credibility finding on the behavior and demeanor of the witnesses at the hearing, and also on
testimony from Sh erwin that, to some extent, corro borated C ontreras’s testim ony. Sherw in
testified on cross-examination that, although NO RD AM supe rviso rs en forc e eye protection
rules, “f rom tim e to time . . . there ar e peop le left tha t don’t a dhere to the rules .”

B. Discussion
To establish a vio lation of an occupatio nal safety or he alth standard , the Secretary
must show: (1) the applicab ility of the cited stand ard, (2) the em ployer’s nonc omplianc e with
the standard’s terms, (3) employee ac cess to the violative conditions, and (4 ) the employer’s
actual or constructive knowledge of the violation (i.e., the employer either knew, or with the
exercise of reason able diligenc e could ha ve know n, of the vio lative con ditions) . Atlantic
Battery Co., 16 BNA OSHC 2131, 2138, 1993-95 CCH OSH D ¶ 30,636, p. 42,452 (No. 90-
1747, 1 994).
Applicab ility and Exposure. By its terms, § 191 0.133(a)(1 ) applies w hen an em ployee is
“exposed to eye or face hazards from flying particles.” IH Contreras testified that during her
inspection she observed employees grinding fiberglass parts without eye protection.
Contreras said that these employees “were very close down to the product, and there was a
lot of fiberglass coming off of the parts themselves.” Although NORDAM introduced
evidence to rebut Contreras’s testimony that certain employees were not using eye protection,
it did not introduce any evidence to rebut her statement that she observed employees grinding
fiberglass parts. Because NORDAM also does not dispute Contreras’s statements that the
grinding produced flying particles in the form of fiberglass dust and tha t employees were
working “very close do wn to the produ ct,” we find both that § 1910.133(a)(1) applies to the
work in the interior finish-out area and that certain em ployees were expose d to the hazard
contemplated by the standard . NOR DAM ’s policy exem pting employees lo cated with in
marked aisle ways from wearing eye protection is not relevant to our determination that
employees engaged in grinding -- wherever located -- were exposed to the cited hazard.
 8

Noncompliance. To establish noncompliance, the Secreta ry must show that NO RDA M failed
to ensure that exposed employees used appropriate eye or face protection. Contreras testified
that she observed two employees in the interior finish-out area wearing safety glasses, and
that the several o ther emp loyee s in th at are a wh o she obse rved grinding , wore no eye
protection at all. The only evidence NORDAM offered to rebut these statements was
Saltsman’s testimony that she did not see any employee who was not wearing safety glasses.
Howeve r, Judge Simko rejected Saltsman’s testimony when he credited that of Contreras.
Judge Simko based his credibility finding on several factors, including his observation of the
behavior and demeanor of the witnesses, as well as on corroborating testimony from
Sherwin. The Commission will ordinarily accept a credibility finding when it is based on the
judge’s observatio n of a w itness’s dem eanor and is clearly explain ed. C. Ka ufman , Inc., 6
BNA OSH C 129 5, 1297 , 1977-78 CCH OSH D ¶ 22,481, p. 27 ,099 (No. 1424 9, 1978).
Although NORDA M argues that Contreras was “not at all certain about what s he obs erved,”
its only support fo r this argument is that Con treras qualified her testimony by stating “I think
only two emp loyees had the ir glasses on.” (Empha sis added). T here was no u ncer taint y,
however, about Contreras’s testimony that there were employees who were not wearing any
form of eye protection while exposed to flying particles. This establishes the violation.
NORDAM has failed to persuade us that the judge’s credibility finding should be reversed,
and we acce pt that finding. As a result, we find that there is no credible evidence to rebut
Contreras’s statement that several employees were grinding without eye protection, and
conclude that NO RDA M failed to comply with § 1910.133(a)(1) by allowing e mployees to
work without such protection when they were exposed to the hazard of flying particles.
Knowledge. Contreras testified that OSHA inspected NORDA M’s facility because of an
employee complaint that fiberglass dust was entering an accounting office from the adjacent
interior finish-out area. Acc ording to Contreras, the dust entered the accounting office from
the interior finish-out area because “supervisors were going in and out of [a] door” between
the two areas. Contreras also testified that during her inspection, Jesse Evans, the supervisor
 9

in the interior finish-out area, was “in and out of the area.” She said that Evans, who had an
office in the interior finish-out area, “came in and out just to talk to employees and to interact
with people in the area.” These statements, particularly Contreras’s statements regarding
Evans’s continuing presence in the interior finish-out area, support a finding that the
employees grinding without eye protection w ere in plain view of su perv isors . Accord ingly,
we find that NORDAM had at least constructive knowledge of the violativ e cond itions. See,
e.g., A.L. Baumgartner Construction, Inc., 16 BNA OSHC 1995, 1998, 1993-95 CCH OSHD
¶ 30,554, p. 42,273 (No. 92-1022, 1994)(constructive knowledge found where violative
conditions in plain view).
Given these findings, we conclude that the Secretary has established a violation of §
1910.133(a)(1) based on NO RDAM ’s failure to ensure that employees in the interior finish-
out area used eye protection while exposed to the hazard of flying particles.7

                           III. Classification and P enalty


   Judge Simko classified the violation of § 1910.133(a)(1) as serious and assessed a

penalty of $1,875 . On review , neither party contests the classification or amount of the
penalty. Because there is a substantial probability that employees struck in the eye by flying
fiberglass particles would have suffered serious physical harm, we affirm the judge’s
classification of the v iolation . See Stearns-Roger, Inc., 7 BNA OSHC 1919, 1921, 1979 CCH
OSHD ¶ 24,008, p. 29,156 (N o. 76-232 6, 1979)(“ the eye is an esp ecially delicate organ and
. . . any foreign material in the eye presents the potential for injury”). We also affirm the

7
NORDAM twice stated, in response to the Secretary’s objections, that it was not attempting
to establish an u npreven table employee m isconduc t defense to the charge that it violated §
1910.133(a)(1). Thus, we need not address this defense.
 10

judge’s penalty assessment of $1,875 based on consideration of the fac tors in Section 17(j)
of the Occup ational Safety and Health A ct of 1970, 29 U .S.C. § 666(j).

                                   IV. ORDER


   We grant the Secretary’s motion to amen d the citation, and affirm the judge’s finding

that NORDA M violated 29 C.F.R . § 1910.133(a)(1). We assess a penalty of $1,875 for the
violation.8

                                                     /s/
                                                     Thomasina V . Rogers
                                                     Chairman


                                                     /s/
                                                     Ross Eisenbrey

Date: May 18, 2001 Commissioner

8
Given our finding that NORDAM violated 29 C.F.R. § 1910.133(a)(1) by failing to ensure
that employees used eye protection when exposed to the hazard of flying particles, we will
not address whether NORD AM violated this same standard by failing to provide employees
with sid e shield s and/o r gogg les.
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1924 Building - Room 2R90
100 Alabama St. SW
Atlanta, Georgia 30303-3109

   Secretary of Labor,
          Complainant,

   v.                                                        OSHRC Docket No. 99-0954
   Nordam Group,
         Respondent.

Appearances:

   Connie M. Ackerman, Esquire                 Stephen L. Andrew, Esquire
   Mr Richard M Munoz                                 Tulsa, Oklahoma
   Office of the Solicitor                                    For Respondent
   U.S. Department of Labor
          Atlanta, Georgia
                  For Complainant

Before: Administrative Law Judge Stephen J. Simko, Jr.

                      DECISION AND ORDER

Nordam Group (Nordam) is engaged in the aerospace repair and manufacturing business

   with facilities in Tulsa, Oklahoma; San Antonio, Texas; Fort Worth, Texas; and Singapore. It
   employs approximately 2,200 to 2,300 employees worldwide. The Occupational Safety and Health

Administration (OSHA) conducted an inspection of respondent's workplace in Tulsa on March 2 5,
1 999. As a result of this inspection, respondent was issued a citation. Respondent filed a timely
notice contesting the alleged violations and proposed penalties. A hearing was held in Tulsa,
Oklahoma, on September 20, 1 999. For the reasons that follow, Citation No. I, item I, is affirmed
and a penalty of $ 1,875 is assessed; Citation No. I, item 2, is vacated.

                                             Background

    Tori Contreras, an industrial hygienist with OSHA, conducted an inspection of Nordam's facility in

response to an employee complaint that fiberglass dust was coming into the accounting off~office from the
interior finish-out area, an adjacent area where workers sanded interior panels used in business aircraft. Both
work locations were on the second floor. Ms. Contreras also observed the layout area and the G4/GS
departments on the first floor. The inspection focused on the second floor since this was a complaint-based
inspection. The employee complaint concerned condition s in the accountin g off~office and the adjacen t work
area. Nordam hired Sherwill Environmental Health and Safety Consultants (Sherwill) to administer its safety
programs. Ms. Reasha Saltsman, an employee of Sherwill, represented Nordam during the OSHA inspection.

                                         Motion to Amend Citation

    At the conclusion of the hearing, the Secretary moved to amend Citation No. I, items I and 2, to reflect

the location of the alleged violations as the interior finish-out department. Respondent opposed this motion on
due process grounds. After reviewing the transcript and briefs, in addition to observing the testimony and
demeanor of the witnesses, I conclu de that respondent, through its representative, Ms. Saltsman, clearly
understood that the location of the alleged violations was the interior finish-out area on the second floor of its
facility. The Secretary's motion to amend is granted.

                                                 Discussion

The Secretary has the burden of proving the violation:

In order to establish a violation of an occupational safety or health standard, the Secretary has the burden of
proving: ( I ) the applicability of the cited standard, (b) th e employer's noncompliance with the standard's
terms, employee access to the violative conditions, and (d) the employer's actual or constructive knowledge of
the violation, (i e., the employer either knew or, with the exercise of reasonable diligence could have known,
of the violative con ditions).

Atlantic Battery C o., 16 BNA OSHC 2 131, 2138 (No. 90-1747, 1994).

                                            Citation No. 1. Item I

Alleged Serious Violation of 29 C.F.R. § 1910.133(a)(1)

In Citation No. I, item I, the Secretary alleges that:

   Protective eye equipment was not required where there was a reasonable probability of injury that could
   be prevented by such equipment:

           In the finish layout department, the employer did not provide side shields and or goggles to
           employees engaged in sanding and grinding fiberglass parts. This hazard exposes employees to
           eye irritation and corneal abrasions.

The standard at 29 C.F.R. § 1910.133(a), in pertinent part, provides:

(A) General requirements. (1) The employer shall ensure that each affected employee uses appropriate eye or
face protection when exposed to eye or face hazards from flying particles, molten metal, liquid chemicals, acids
or caustic liquids, chemical gases or vapors, or potentially injurious light radiation.
 (2) The employer shall ensure that each affected employee uses eye protection that provides side
protection when there is a hazard from flying objects. Detachable side protectors (e.g., clip-on or slide-on side
shields) meeting the pertinent requirements of this section are acceptable.

    The standard at 29 C.F.R. § 1910.133(a)(1) is clearly applicable to working conditions in respondent's

interior finish-out area. Respondent does not argue that the standard does not apply, that its employees in this
area without eye protection would not be exposed to hazards from flying pa particles, or that it did not know of
these hazardous conditions. Respondent's protective eyewear policy was developed by Sherwill after conducting
a personal protective equipment hazard assessment. Mr. Sherwin, a consultant with Sherwill, testified that
employees in the interior finish-out area are required to wear safety glasses.

    Remaining at issue is whether respondent complied with the terms of the standard by ensuring that its

employees in this area used appropriate eye protection at the time of the inspection. Testimony on this issue is
conflicting and, therefore, credibility must be determined. Ms. Saltsman, with Sherwill, testified that Nordam
requires and provides safety glasses with side shields, and that she saw no employees in this area during the
inspection without safety glasses. She clearly understood that the location in question was the interior finish-out
area. She also testified that employees wear wrap-around safety glasses.

   Ms. Contreras, the OSHA compliance officer, testified that eight of the ten employees wore no safety

glasses while working in this area. She stated that two employees were observed wearing safety glasses of the
type described by Ms. Saltsman.

    On at least two occasions during inspection of this area, Ms. Saltsman was outside the presence of the

compliance officer while Ms. Contreras observed work of employees. Mr. Sherwin, Sherwill's president,
asserted that his supervisors enforce the safety glass requirement, Respondent presented no evidence, however,
to support this bare assertion. Mr. Sherwin admitted that some employees do not adhere to the rules. No
evidence was presented to indicate that respondent took any action to ensure compliance when employees failed
to use their eye protection.

   After considering all testimony and other evidence offered at the hearing, and having observed the

behavior and demeanor of all witnesses at the hearing, I accept the testimony of Ms. Contreras as more credible
and convincing that eight of the ten employees in the area wore no form of eye protection. I conclude that while
respondent may have had written rules requiring employees to wear eye protection in this area, it took no action
to enforce those rules or ensure that these employees actually used such eye protection. Respondent failed to
comply with the terms of the standard. Failure to ensure the use of safety glasses could result in serious physical
eye injury. Respondent violated 29 C.F.R. § 1910 133(a)(1). The violation is serious.

                                          Citation No. 1. Item 2

                                 AllegedViolationof29C.F.R. § 1910.151

   In Citation No. I, item 2, the Secretary alleges that:

   Where employees were exposed to injurious corrosive materials, suitable facilities
   for quick drenching or flushing of the eyes and body were not provided within the

work area for immediate emergency use:

   In the interior layout department, the employer did not provide an eye wash facility for employees
   engaged in sanding and grinding fiberglass parts. This hazard exposes employees to eye irritation and
   corneal abrasions.

   The standard at 29 C.F.R. § 1910.151 (c) provides:

   Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable
   facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for
   immediate emergency use.

    This standard is applicable to working conditions where a person may be exposed to

injurious corrosive materials. [29 C.F.R. § 1910.151(c)]. The threshold question is whether the
fiberglass dust and particles are "injurious corrosive materials."

The term "corrosive" is not defined in 29 C.F.R. § 1910.151. It is, however, defined in 29 C.F.R. § 1910.1200,
Appendix A, as follows:

   Corrosive: A chemical that causes visible destruction of, or irreversible alterations in, living tissue by
   chemical action at the site of contact. For example, a chemical is considered to be corrosive if, when
   tested on the intact skin or albino rabbits by the method described by the U. S. Department of
   Transportation in appendix A to 49 CFR part 173, it destroys or changes irreversibly the structure of the
   tissue at the site of contact following an exposure period of four hours. This term shall not refer to
   action on inanimate surfaces.

   Consistent with this definition, Dorlands Medical Diaionary, 27th Edition, 1988, defines "corrosive" as
   follows:

   Corrosive I. Destructive to the texture or substance of the tissues. 2. a substance that destroys the texture

or substance of the tissues.

Section 1910.1200, Appendix A, defines an "irritant" as follows:

   Irritant: A chemical, which is not corrosive, but which causes a reversible hiflainmatory effect on living
   tissue by chemical action at the site of contact. A chemical is a skin irritant it when tested on the intact
   skin of albino rabbits by the methods of 16 CFR 1500.41 for four hours exposure or by other
   appropriate techniques, it results in an empirical score of five or more. A chemical is an eye irritant if so
   determined under the procedure listed in 16 CFR 1500.42 or other appropriate techniques.

   The hazard communication provisions contained in 29 C.F.R. § 1910.1200require chemical

manufacturers and importers to assess the hazards of such chemicals and require employers to provide
employees information about hazardous chemicals to which they are exposed. One means of such hazard
communication is a material safety data sheet (MSDS). An MSDS must be maintained by employers for
each chemical or group of chemicals present in the workplace where employees may be exposed (See 29
C.F.R. § 1910.1200(b) and (g)). Employers may rely on the evaluation of chemicals by the manufacturer (See
29 C.F.R. § 1910.1200(d) and Appendix E).

   Respondent maintained the MSDS for fiberglass used by employees in the interior finish out area.

That MSDS, prepared by Owens-Corning pursuant to the requirements of the hazard communication
standard at 29 C.F.R. § 1200, described the potential health effects of fibrous glass as follows:

Potential Health Effects:

   ACUTE (short term): Fiber glass continuous filament is a mechanical irritant. Breathing dusts and
   fibers may cause short term irritation of the mouth, nose and throat. Skin contact with dust and fibers
   may cause itching and short term irritation. Eye contact with dust and fibers may cause short term
   mechanical irritation. Ingestion may cause short term mechanical irritation of the stomach and
   intestines. See Section 8 for exposure controls.

   CHRONIC (long term): There is no known health effects connected with long term use or contact with
   this pro duct. See Section 11 of MSDS for more toxicological data. (Exh. C-2)

    The manufacturer evaluated fiberglass continuous f lament as a mechanical irritant, not as a corrosive.

The Secretary, in her standard at 29 C.F.R. § 1910.1200, allows an employer to rely on the MSDS prepared by
the manufacturer. The first aid measure for eye contact in that MSDS is to "flush eyes with running water for at
least 15 minutes" (Exh. C-2). While this constitutes advisable first aid for eye contact, it cannot be interpreted as
a requirement for an eyewash facility where employees are exposed to injurious corrosive materials.

    The Secretary has failed to prove that the fiberglass dust and particles produced by sanding in the interior

finish-out area are injurious corrosive materials. Since these materials have not been shown to be corrosive, the
standard at 29 C.F.R. § 1910.151 © is not applicable.

   Having determined that the cited standard does not apply, it is unnecessary to discuss the other elements of

the Secretary's burden. The alleged violation of 29 C.F.R. § 1910.151(c) is vacated.

                                                  Penalty

    Under § 1 7(j ) of the Act, in determining the appropriate penalty, the Commission must give

due consideration to the size of the employer's business, the gravity of the violation, the good faith
of the employer, and the history of previous violations.

   At the time of the inspection, approximately ten employees were working in the interior finish-out area,

eight of whom were working without safety glasses. Respondent is a large employer with 2,200 to 2,300
employees worldwide. The compliance off~officer determined that the company had no serious violations within
the past three years. She also reviewed the OSHA 200 forms and found several cases where employees had
foreign bodies in their eyes. Respondent had a written program addressing eye protection, but did not effectively
enforce it. Upon due consideration of these factors, a penalty of $1,875 for Citation No. I, item I, is appropriate.

                                       FINDINGS OF FACT AND
                                       CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
 ORDER

                          Based upon the foregoing decision, it is ORDERED:



   1.     Citation No. I, item I, is affirmed as a serious violation and a penalty of $1,875 is

assessed.

   2.     Citation No. 1, item 2, is vacated.


                                                        /s/
                                                        STEPHEN J. SIMKO, JR.

                                                        Judge

Date: January 3, 2000