Mikel Company, Inc.

Plain-English summary

Mikel Company manufactured furniture at a Bronx plant where OSHA cited flammable-liquid storage, spray-finishing, hazard communication, posting, and injury-recordkeeping conditions. The ALJ affirmed several storage-room and spray-booth ventilation items with $375 in penalties, vacated several spray-area electrical and residue items, and affirmed the posting and recordkeeping items without penalties. Hazard communication items had been resolved by a separate post-hearing settlement. The Secretary sought Commission review of three vacated spray-area items. In the settlement approved here, the Secretary withdrew that review petition, while Mikel withdrew its contest to the flammable-liquid transfer grounding item, agreed to keep it abated, and accepted a $1 penalty. The remaining portions of the ALJ's mixed ruling were not changed by this settlement.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.106(d)(4)(i), 1910.106(d)(4)(iii)-(v), 1910.107(b)(5)(i), 1910.107(c)(5)-(7), 1910.107(e)(9), 1910.107(g)(2), 1910.1200(e)(1), 1910.1200(g)(6), 1910.1200(h), 1903.2(a)(1), and 1904.2(a)
• Outcome: Settlement approved; the grounding item was affirmed for $1 and the Secretary withdrew review of the other challenged vacated items.
• Key point: The settlement reinstated only the grounding item under review and otherwise left the ALJ's mixed citation rulings in place.

Full text (OSHRC public release)

Docket No. 88-2587

SECRETARY OF LABOR,

Complainant,

v.

MIKEL COMPANY, INC.,

Respondent.

OSHRC Docket No. 88-2587

ORDER

The parties' Stipulation and Settlement Agreement is
approved. This order is issued pursuant to a delegation of authority to the Executive
Secretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

Dated: June 6, 1989

ANN MCLAUGHLAN, SECRETARY OF LABOR

U.S. DEPARTMENT OF LABOR,

Complainant,

v.

MIKEL COMPANY, INC.

Respondent.

Docket No. 88-2587

APPEARANCES:

WILLIAM G. STATON, ESQUIRE

U.S. Department of Labor

Office of the Solicitor

For the Complainant

ANDREW MIKLOS

President

Mikel Company, Inc.

For the Respondent

DECISION AND ORDER

SOMMER, JUDGE:

This proceeding arises under the Occupational Safety and Health Act, of 1970 (29 U.S.C.
651 et seq ., hereafter called the "Act").

Following an inspection of the Respondent's business
site at 601 East 137 Street, Bronx, New York, the Secretary of Labor issued two citations
charging violations as follows: Citation No. 1 alleges serious violations of 29 C.F.R.
1910.106(d)(i), .106(d)(4)(v), .106(d)(4)(iii), .106(d)(4)(iv) - added by amendment,
.107(b)(5)(i), .107(c)(5), .107(c)(6), .107(c)(7), .107(c)(9), .107(g)(2), settled after
trial - .1200(e)(i), .1200(g)(6), .1200(h). Other than serious citation No. 2 alleges
violations of 29 C.F.R. 1903.2(a)(i) and 29 C.F.R. 1904.2(a). Respondent initially
contested all the alleged violations and penalties. Subsequent to the trial a settlement
agreement was entered into with respect to violations charged at 1910.1200(e)(i),
1910.1200(g)(6) and 1910.1200h.

A hearing was held in New York, New York, on
September 19-20, 1988. Both parties filed post-hearing briefs. No jurisdictional issues
are in dispute, the parties having pleaded sufficient facts to establish that the
Respondent is subject to the Act and the Commission has jurisdiction of the parties and of
the subject matter.

The citation for violations of 29 C.F.R.
1910.1200(e)(i), .1200(g)(6) and .1200(h) were settled after trial and have been disposed
off by a settlement agreement.

BACKGROUND

The Mikel Company, Inc. is a New York Corporation
located at 597-601 East 137 East Street, Bronx, New York, and is engaged in the
manufacture of furniture.

DISCUSSION

Alleged violation of 29 C.F.R. 1910.106(d)(4)(i)
and 29 C.F.R. 1910.106(d)(4)(iv) - item No. 1(a), Serious Citation No. 1

The flammable liquid storage room charges stem from
the observations of the Compliance Officer that a 5th floor storage room approximately 6'x
8' was observed to be storing flammable solvents (stains, lacquers etc.) His finding that
the storage room was constructed of wood and the absence of a sill were conditions alleged
to be in violation of 29 C.F.R. 1910.106(d)(4)(i), and the absence of a gravity or
mechanical exhaust system resulted in an alleged violation of 29 C.F.R.
1910.106(d)(4)(iv). The foreman told the Compliance Officer that this 5th floor room was
used for storage, and testified that "we've got a lot of stains and we kept glazes
and stuff in there." (Tr. 23) Miklos affirmed this area as being used for storage
(Tr. 33). Accordingly, the Secretary established a prima facie case of violations of both
standards. However, it would appear that the main storage room where the bulk of the
flammable liquids are kept is on the first floor, and the 5th floor room is merely a small
adjunct, being used on a lesser scale. Under these circumstances there is a lesser degree
of harm, and a penalty of $100 is warranted herein.

Alleged violation of 29 C.F.R. 1910.106(d)(4)(iii)

• item No. 1(b) of Serious Citation No. 1

The Compliance Officer observed that the electrical
system in the storage room, i.e. the light switches, electrical wiring, the light were not
approved for a hazardous location in violation of 29 C.F.R. 1910.106(d)14)(iii) since
there was a hazard arising from the combustion and flammability of vapors therein. Other
than his denial of this allegation, the Respondent offered no proof to offset the charges.
Accordingly, a violation of this standard was established. Under the existing facts and
circumstances a penalty of $100 is appropriate.

Alleged violation of 29 C.F.R. 1910.106(d)(4)(v) -
item No. 1(c), Serious Citation No. 1

The standard requires that "in every inside
storage room there shall be maintained one clear aisle at least 3 feet wide. . . "
The Compliance Officer found on observation and measurement the aisle space in the storage
room to be 12 inches wide. The Respondent presented no evidence to offset this charge. On
the evidence of record I find a violation of this standard. Since only one employee worked
therein and there was an aisle although smaller than required, with the hazard in totality
less than emphasized, a penalty of $75 is deemed appropriate herein.

Alleged violation of 29 C.F.R. 1910.107(b)(5)(i) -
item No. 2 of Serious Citation No. 1

The citation alleges that the Respondent violated 29
C.F.R. 1910.107 (b)(5)(i) by failing to provide adequate ventilation in the spray booth.
The Compliance Officer testified that tests of the air velocity showed an air flow of 70
linear feet per minute and that the standard requires not less than 100 linear feet per
minute. Additionally, there were no gauges or audible alarm or pressure activated devices
present to indicate or insure that the required air velocity is maintained. The evidence
fully establishes the presence of the violation and it is affirmed. A penalty of $100 for
the violation is consistent with the criteria set forth in section 17(J) of the Act under
all the existing facts and circumstances.

Alleged violation of 29 C.F.R. 1910.107(c)(5),
(c)(6), and (c)(7) - items 3(a)(b)(c) of Serious citation No. 1

The Respondent was cited for alleged violations of 29
C.F.R. 1910.107(c)(5) (Presence of electrical equipment not affirmed for areas readily
ignitable and explosive), 1910.107(c)(6) (nonexplosion proof electrical wiring and
equipment), and 1910.107(c)(7) (electrical lamps not totally enclosed).

To prove these violations, the Secretary must
demonstrate by a preponderance of the evidence that the air surrounding the areas involved
had dangerous concentrations of flammable or explosive vapors. The Secretary failed to
present any evidence of the presence of such a condition. The Compliance Officer took no
tests to substantiate his naked opinion of the explosive nature of the air. Additionally,
no evidence was presented that his background, education and experience qualified him to
make any opinion as to the atmosphere present. The Compliance Officer's conjecture is
insufficient to establish the existence of an explosive or dangerously flammable
atmosphere at this worksite. Accordingly, the citation is vacated.

Alleged violation of 29 C.F.R. 1910.107(e)(9) -
item No. 4 of Serious Citation No. 1

The Respondent was cited for alleged violation of 29
C.F.R. 1910.107(e)(9) in that in the transfer of flammable or combustible liquids from one
can to another there was no grounding to prevent discharge sparks of static electricity.
The Respondent maintained that the drums containing the lacquer are coated to prevent
sparking from static electricity, which was not refuted. Hereto the Compliance Officer's
testimony as to a hazard was mere conjecture. He observed the process yet did not testify
he actually observed "sparks of static electricity", merely stating the pump on
the can "could cause a spark." The Compliance Officer's conjecture is
insufficient to prove a violation. The proof must be clear and convincing. It cannot be
presumed or inferred. In short, the record does not demonstrate that the Secretary has
sustained his burden of proof as to the existence of a violation of 29 C.F.R. 1910.107E)
(9) and it is vacated. Moreover, the Secretary's case further falls since it failed to
prove that the area surrounding where the transfer of liquids was taking place had
dangerous concentrations of flammable or explosive vapors which would be ignited if there
were such sparks of static electricity.

Alleged violation of 29 C.F.R. 1910,107(g)(2) -
item No. 5 of Serious Citation No. 1

The Respondent was cited for alleged violation of 29
C.F.R. 1910.108(g)(2) for failing to keep the walls, radiator and baffle plates of the
paint spray area free of combustible residues. The Compliance Officer found a violation
because there was paint on the items listed above. He admitted that in spraying these
objects would be covered with paint (Tr. 182) but that they had to be cleaned periodically
(He indicated a frequency of "anywhere from 6 months to a year). The Respondent
offered proof that the area is cleaned daily and the paint scraped down every couple of
weeks (Tr. 218, 219). Thusly, it is apparent that the Respondent is keeping the spraying
area as free from the accumulation of deposits of combustible residues as practical.
Certainly, he has done more than the Compliance Officer noted was necessary therein. There
is no proof of the existence of a combustible residue on the objects cited. The
preponderance of the evidence does not support a finding of a violation of 29 C.F.R.
1910.107(g)(2) and it is vacated.

The Respondent was cited for alleged violation of 29
C.F.R. 1903.2(a)(1) (failure to post OSHA notice) and 29 C.F.R. 1904.2(a) (failure to
maintain log of occupational injuries and illness for years 1983, 1984, and 1986). No
evidence was presented to disprove these allegations and both citations are affirmed as
other than serious with no penalty assessed.

MOTIONS

Motion by the Respondent to dismiss the citations is
denied.

FINDINGS OF FACT

All findings of fact relevant to a determination of
the contested issues have been found specially in the above decision. See Rule 52(a) of
the Federal Rules of Civil Procedure.

All proposed findings of fact or conclusions of law
inconsistent with this decision are denied.

ORDER

1. Citation 1, item 1(a) is affirmed as a serious
   violation of 29 C.F.R. 1910.106(d)(4)(i) and 29 C.F.R. 1910.106(d)(4)(iv) with a penalty
   of $100.

2. Citation No. 1, item 1(b) is affirmed as a serious
   violation of 29 C.F.R. 1910.106(d)(4)(iii) with a penalty of $100.

3. Citation 1, item 1(c) is affirmed as a serious
   violation of 29 C.F.R. 1910.106(d)(4)(v) with a penalty of $75.

4. Citation 1, item 2 is affirmed as a serious
   violation of 29 C.F.R. 1910.107(b)(5)(i) with a penalty of $100.

5. Citation 1, items 3(a), 3(b), 3(c) alleging
   violations of 29 C.F.R. 1910.107(c)(5), (c)(6), and (c)(7) are vacated.

6. Citation 1, item 4 alleging a violation of 29
   C.F.R. 1910.107(e)(9) is vacated.

7. Citation 1, item 5 alleging a violation of 29
   C.F.R. 1910.107(g)(2) is vacated.

8. Citation 2, items 1 and 2 alleging violations of
   29 C.F.R. 1903.2(a)(1) and 29 C.F.R. 1904.2(a) is affirmed as other than serious with no
   penalties.

SO ORDERED.

IRVING SOMMER

Judge, OSHRC

DATED: 1 FEB 1989

Washington, D.C.

ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

MIKEL COMPANY, INC.

Respondent.

OSHRC DOCKET No. 88-2587

STIPULATION AND SETTLEMENT AGREEMENT

I.

The parties have reached agreement on a full and
complete settlement of the instant matter which is presently pending before the
Commission.

II.

The parties stipulate as follows:

(a) The Occupational Safety and Health Review Commission (hereafter "the
Commission") has jurisdiction of this matter pursuant to Section 10(c) of the
Occupational Safety and Health Act of 1980 (84 Sat. 1590; 29 U.S.C. 651 et . seq .)
(hereafter "the Act").

(b) Respondent, Mikel Company, Inc., is a corporation
with its principal place of business in Bronx, New York. It is engaged in the manufacture
of furniture and during the course of its business respondent uses materials and equipment
which it receives from places located outside Bronx, New York. Respondent, as a result of
the aforesaid activities, is an employer engaged in a business affecting commerce as
defined by Section 3(3) and 3(5) of the Act and is subject to the requirements of the Act.

(c) As a result of an inspection conducted on
September 24 through September 29, 1987, at respondent's workplace at 601 East 137th
Street in Bronx, New York, a citation for eight serious violations and a citation for two
other-than-serious violations were issued to respondent on December 4, 1987 pursuant to
Section 9(a) of the Act. A total penalty of $3,290 was proposed for the violations.

(d) Respondent contested the citations and proposed
penalties.[[1]]

On January 12, 1989, Commission Administrative Law
Judge Irving Sommer issued his Decision and Order in which he dismissed items 3(a), (b)
and (c) of Serious Citation No. 1 alleging violations of 29 CFR 1910.107(c)(5),
1910.107(c)(6) and 1910.107(c)(7), item 4 of Serious Citation No. 1 alleging a violation
of 29 CFR 1910.107(e)(9), and item 5 of Serious Citation No. 1 alleging a violation of 29
CFR 1910.108(g)(2). The judge affirmed items 1(a), 1(b), 1(c), alleging violations of 29
CFR 1910.106(d)(4)(i) and (4)(iv), 1910.106(d)(4)(iii), 1910.106(d) (4) (v) and item No. 2
of Serious Citation No. 1 alleging a violation of 29 CFR 1910.107(b)(5)(i). The judge also
affirmed both items of the other-than-serious Citation No. 2 for alleged violations of 29
CFR 1903.(a)(1) and 1904.2(a). Thereafter, the Secretary filed a timely Petition for
Review on the dismissal of items 3(b), 3(c) and 4 of Serious Citation No. 1. The petition
was granted by the Commission on March 2, 1989.

III.

Now, the Secretary of Labor and Mikel Company, Inc.,
in order to conclude this matter without the necessity of further litigation or review,
stipulate as follows:

1. The Secretary hereby agrees to withdraw its
   Petition for Review.

2. Respondent hereby agrees to withdraw its Notice of
   Contest to the alleged serious violation of 29 CFR 1910.107(e)(9) (item No. 4 of Serious
   Citation No. 1) and states that the violation has been abated and shall remain abated.

3. Respondent hereby agrees to pay the sum of $1 (1
   dollar) for the alleged serious violation of 29 CFR 1910.107(e)(9) within ten (10) days
   from the date of this agreement by sending a check to the OSHA Area Office in Flushing,
   New York.

4. Respondent and Complainant agree that each party
   shall bear its own costs.

5. Respondent certifies that a copy of this agreement
   posted at the principal place(s) of business of Mikel Company on _ ___, 1989, in
   accordance with Commission Rule 7 and shall remain posted for ten (10) days. No affected
   employees are involved.

Antony F. Gil

Andrew Miklos

Counsel for the

On Behalf of

Secretary of Labor
             Mikel Company

FOOTNOTES:

[[1/]] On motion of the Secretary, the complaint was amended at the hearing to separately
allege a violation of 29 CFR 1910.106(d)(4)(iv). In addition, also at the hearing,
respondent agreed to withdraw its contest of Items 6, 7, and 8 of Citation No. 1 and the
Secretary agreed to reduce the proposed penalties thereto.