United Technologies, Pratt & Whitney

Read the official release (oshrc.gov)

Plain-English summary

Pratt & Whitney operated a plating shop at its West Palm Beach facility, where two maintenance employees were splashed with a cyanide solution during equipment-relocation work. OSHA cited alleged training, protective-equipment, warning-sign, labeling, and hazard-communication violations. The judge affirmed five groups of items and assessed $2,700 in penalties, while vacating the remaining items. During Commission review, the parties filed a stipulation and settlement agreement. The Commission approved that agreement and set aside the judge's decision to the extent it conflicted with the settlement. The official HTML text does not reproduce the settlement terms, so it does not identify the final item-by-item classifications or penalty amount.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.94(d)(9)(i), 1910.132(a), 1910.133(a)(1), 1910.134(e)(3), 1910.145(c)(2)(i), 1910.145(c)(3), 1910.145(f)(5), 1910.1200(f)(5)(i), 1910.1200(f)(8), and 1910.1200(h)
• Outcome: Settled. The Commission incorporated the parties' agreement and displaced inconsistent parts of the judge's decision; the release does not state the final penalty.
• Key point: The Commission made the parties' settlement its final order, but the public text version does not include the agreement's substantive terms.

Full text (OSHRC public release)

Docket No. 90-0660

SECRETARY OF LABOR,

Complainant,

v.

UNITED TECHNOLOGIES, PRATT & WHITNEY,

Respondent.

Docket No. 90-0660

ORDER

This matter is before the Commission on a Direction for
Review entered by Chairman Edwin G. Foulke, Jr. on November 25, 1991.  The parties
have now filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the
representations appearing in the Stipulation and Settlement Agreement, we conclude that
this case raises no matters warranting further review by the Commission.  The terms
of the Stipulation and Settlement Agreement do not appear to be contrary to the
Occupational Safety and Health Act and are in compliance with the Commission's Rules of
Procedure.

Accordingly, we incorporate the terms of the Stipulation
and Settlement Agreement into this order, and we set aside the Administrative Law Judge's
Decision and Order to the extent that it is inconsistent with the Stipulation and
Settlement Agreement.  This is the final order of the Commission in this case.  
See 29 U.S.C. �� 659(c), 660(a), and (b).

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: November 18, 1992

SECRETARY OF LABOR,

Complainant,

v.

UNITED TECHNOLOGIES CORPORATION, PRATT & WHITNEY,

Respondent.

OSHRC Docket No. 90-0660

APPEARANCES

Donald R. McCoy, Esquire, Associate Regional Solicitor,
U.S. Department of Labor, Ft. Lauderdale, Florida, on behalf of complainant.

W. Scott Railton, Esquire, Reed, Smith, Shaw and McClay,
Washington, D.C., on behalf of respondent.

DECISION AND ORDER

SALYERS, Judge:  Pratt & Whitney Aircraft Group
(Pratt & Whitney), a division of United Technologies Corporation, was issued a
citation on January 18, 1990, charging nine alleged serious violations of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 651-678 (Act).  The citation was issued
pursuant to an inspection conducted by OSHA Industrial Hygienist Peter Foreman, who was
assigned the inspection following an incident that occurred on August 23, 1989, when two
Pratt & Whitney employees were splashed with a cyanide solution from a chemical tank.

Item 1 alleges a serious violation of 29 C.F.R. �
1910.94(d)(9)(i) for failing to instruct all employees working in and around open-surface
tank operations as to the hazards of their respective jobs, and in the personal protection
and first aid procedures applicable to those hazards.  Item 2 alleges a serious
violation of 29 C.F.R. � 1910.132(a) for failing to provide and to require the use of
protective head equipment where employees were exposed to the hazard of potential head
injuries.  Item 3 alleges a serious violation of 29 C.F.R. � 1910.132(a) for failing
to provide and to require the use of protective clothing and equipment where employees
were exposed to chemical hazards.

Item 4 alleges a serious violation of 29 C.F.R. �
1910.133(a)(1) for failing to require the use of protective eye and face equipment where
there was a reasonable probability of injure that could be prevented by such equipment.
  Item 5 alleges a serious violation of 29 C.F.R. � 134(e)(e) for failing to prepare
written procedures covering safe use of respirators in dangerous atmospheres that might be
encountered in normal operations or in emergencies.  Item 6(a) alleges a serious
violation of 29 C.F.R. � 1910.145 (c)(2)(i) for failing to use caution signs to warn
employees entering the plating shop that it was a chemical hazard area.  Item 6(b)
alleges a serious violation of 29 C.F.R. � 1910.145(c)(3) for failing to post safety
instruction signs in the plating shop where there was a need for general instructions and
suggestions relative to safety measures.

Item 7 alleges a serious violation of 29 C.F.R. �
1910.145(f)(5) for failing to use danger tags on the energy sources and controls for the
process solution pump for the tank involved in the splashing incident which gave rise to
this case.  Item 8(a), alleging a serious violation of 29 C.F.R. �
1910.1200(f)(5)(i), was withdrawn by the Secretary in her post-hearing brief and will be
vacated by the undersigned (Secretary's brief, pp. 24-25).  Item 8(b) alleges a
serious violation of 29 C.F.R. � 1910.1200(f)(5)(i) for failing to have each container in
the workplace labeled, tagged or marked with the appropriate hazard warning.  Item
8(c) alleges a serious violation of 29 C.F.R. � 1910.1200(f)(8) by removing or defacing
existing labels on incoming containers of hazardous chemicals.  Item 9 alleges a
serious violation of 29 C.F.R. � 1910.1200(h) for failure to provide employees with
information and training on hazardous chemicals in their work area at the time of their
initial assignment, and whenever a new hazard was introduced into their work area.

The incident which gave rise to the present case occurred
at Pratt & Whitney's plant located in West Palm Beach, Florida.  Approximately
8,000 employees work at that plant, which is primarily a research and development facility
for jet and rocket engines (Tr. 1117, 1119).  Some manufacturing work goes on there
(Tr. 1118).  The employees are mostly engineers and technicians; there are
approximately 1,300 hourly positions at the plant (Tr. 1119).

The plating shop, which is the focus of this case, is
located in a rectangular room.  Two of its sides are approximately 150 feet long.
  No dimension was given for the other two sides (Tr. 1120).  The plating shop
at the time of the inspection contained eight rows of open-surface tanks.  The eight
rows were designated with the letters A through H.  Each row contained six to nine
tanks.  Each tank in a row would be designated by its row letter and the tank's
number in the row, e.g., A-1, A-2, A-3, etc. (Tr. 1120-1121).  Some of the tanks
contained chemical solutions and others were rinse tanks (Tr. 1122).

In the summer of 1989, Pratt & Whitney began the
process of relocating the plating lines (Tr. 23, 1141).  This involved emptying out
the tanks, moving pipes and relocating the tanks (Tr. 23, 1131-1132).  This
renovation process was going on when the splashing incident occurred on August 23, 1989.

On that day, William Mousseau and Harry Brockett, both
maintenance pipe fitters for Pratt & Whitney, were in the plating shop, discussing
their next assignment.  Mousseau estimated that they were standing eight to nine feet
from the tank designated as E-3[[1]] (Tr. 21, 38, 118).  The company's "Safety
Engineers Investigation Report," introduced into evidence as Exhibit C-2, states that
Mousseau and Brockett were standing "approximately three to five feet west of the
tank."

While they were talking, an electrician, Donald Stoffel,
was working on the wiring of the tank's pump.  At that time, the pump was
disconnected from a filter unit adjacent to the tank.  Stoffel momentarily energized
the pump (bumped it) to check its rotation.  Because the pump outlet was not
connected to the filter unit, some of the tank's solution discharged, splashing Mousseau
and Brockett.  The solution contained potassium silver cyanide and potassium cyanide,
known as "silver strike solution" (Ex. C-2, Tr. 40-41, 129).

Mousseau was wearing blue jeans, a shirt, socks and
sneakers.  He was splashed on one calf and foot.  Mousseau felt a burning
sensation on his leg and went to a nearby sink and rinsed off his leg (Tr. 41, 43).  
Dale Seams, a solution technician, happened by and told Mousseau that mere rinsing of his
leg was inadequate and that he needed to take a shower.  Mousseau did so and then
reported to the medical station (Tr. 42-43).  Mousseau was examined by a nurse, Ida,
and the company doctor, Dr. McCurdy.  Mousseau was released from the medical station
but was then called back.  From there Mousseau was taken to the emergency room at
Palm Beach Gardens Hospital (Tr. 43-45).

Brockett was splashed with the "silver strike
solution" from the back of his neck down to his socks (Tr. 129).  One of the
platers walked by and told Brockett, "[T]hat's silver cyanide....that stuff will kill
you, that's deadly stuff in that, deadly poison..." (Tr. 130).  Upon hearing
this, Brockett "panicked" and ran out of the plating area.  Brockett got on
his bicycle and rode all the way back to the maintenance shop to shower off.  When he
arrived there, he discovered that the shower was disconnected.  Brockett returned to
the plating area, where he was able to shower (Tr. 131).  At that time Brockett felt
a slight tingling sensation.  He reported to the medical station and was released.
  He was then ordered back to the medical station and was taken from there to the
hospital along with Mousseau (Tr. 132-133, 140).

ITEM 1: 29 C.F.R. � 1910.94(d)(9)(i)

29 C.F.R. � 1910.94(d)(9)(i) provides:

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

A. Res Judicata

Pratt & Whitney argues that the Secretary is barred
from bringing this charge by res judicata.  Pratt & Whitney bases this defense on
a 1986 Review Commission decision, Pratt & Whitney Aircraft Group, Division of
United Technologies Corporation, 12 BNA OSHC 1770, 1986 CCH OSHD � 27,564 (No.
80-5830, 1986).   In Pratt, the Review Commission reversed the administrative law
judge's finding that the company was in violation of � 1910.94(d)(9)(i) and vacated the
citation item.

The Secretary reiterates in her post-hearing brief her
argument made at the hearing that Pratt & Whitney failed to plead res judicata as an
affirmative defense in its answer as required by Commission Rule 36(b)(1), 29 C.F.R. �
2200.36(b)(1).[[2]]  At the beginning of the hearing, Pratt & Whitney moved to
amend its answer to plead res judicata as an affirmative defense (Tr. 15).  The
undersigned granted the motion, noting that the Secretary was aware that Pratt &
Whitney intended to pursue this defense, and was not surprised or prejudiced by the
amendment (Tr. 17-20).  That ruling stands.  Pratt & Whitney's res judicata
defense must be addressed.

For a prior judgment to bar a subsequent action, it is
firmly established (1) that the prior judgment must have been rendered by a court of
competent jurisdiction; (2) that there must have been a final judgment on the merits; (3)
that the parties, or those in privity with them, must be identical in both suits; and (4)
that the same cause of action must be involved in both suits.

Ray v. Tennessee Valley Authority , 677 F.2d 818,
821 (11th Cir. 1982).  Res judicata bars subsequent litigation in matters that were
actually litigated as well as on every ground of recovery which might have been presented.
  Id., at 822.

The Pratt decision was rendered by the Review
Commission, a court of competent jurisdiction; the decision was a final judgment on the
merits; and the Secretary and Pratt, the parties in the present case, were the same
parties in the previous decision.  Thus, the first three elements of the res judicata
defense are met.  The fourth element requires that "the same cause of action
must be involved in both suits."  Here, Pratt and Whitney's defense must
fail.  The events that gave rise to the respective causes of action took place almost
a decade apart, the first in Connecticut, the present one in Florida.  The events
involved different employees engaged in different operations.  The cause of action
are not the same and claim preclusion does not apply.

B. Collateral Estoppel

Pratt & Whitney argues that, if the claim preclusion
of res judicata does not apply to Item 1, then the issue preclusion of collateral estoppel
does.

Although in a broad general sense the term "res
judicata" encompasses the concept of collateral estoppel, strictly speaking they do
have distinct meanings....The doctrine of collateral estoppel precludes relitigation only
of issues that were actually litigated in the initial suit, whether or not the second suit
is based on the same cause of action.

Precision Air Parts, Inc. v. Avco Corp., 736 F.2d
1499, 1501 (11th Cir. 1984).

The formulation of the collateral estoppel standard is
well established:

(1) the issue at stake must be identical to the one
alleged in the prior litigation; (2) the issue must have been actually litigated in the
prior litigation; and (3) the determination of the issue in the prior litigation must have
been a critical and necessary part of the judgement in that earlier action.

McKinnon v. Blue Cross and Blue Shield of Alabama ,
935 F.2d 1187, 1192 (11th Cir. 1991), quoting Greenblatt v. Drexel Burnham Lambert,
Inc., 763 F.2d 1352, 1361 (11th Cir. 1985).

It is Pratt & Whitney's position that the issues in
Pratt were identical to the issues in the present case: "(1) whether Pratt &
Whitney's instructions to employees working around open surface tanks comply with �
1910.94(d)(9)(i), (2) whether Pratt & Whitney is required to ensure that employees
working around open surface tanks use personal protective equipment, and (3) whether
goggles are sufficient eye protection for employees working around open surface
tanks."  (Pratt & Whitney's Brief, p. 53).  If these were in fact the
issues previously litigated, then Pratt & Whitney would have a good argument that the
Secretary should be precluded from litigating them in the instant case.  These
issues, however, are too broadly drawn.  If every employer could preclude the
Secretary from bringing an action in this manner, then the purposes of the Act could be
easily circumvented.

Any employer who was charge with the violation of a
specific standard which was subsequently vacated in a Review Commission hearing would be
free afterward to violate the same standard with impunity.  For example, in Pratt,
the Review Commission vacated the citation for the violation of � 1910.94(d)(9)(i).
  If, as Pratt & Whitney claims, this precludes the Secretary from litigating the
issue of whether its "instructions to employees working around open surface tanks
comply with � 1910.94(d)(9)(i)," the Pratt would have license forever after to fail
to give any instructions whatsoever to its employees working in open tank areas in any of
its facilities.  This produces an untenable result.

It is necessary to examine the underlying factual
situations in both Pratt and the instant case in order to determine whether the precise
issues litigated in Pratt are the same here.  In Pratt, the alleged violation
occurred in the Electro-Chemical Machine Department ("ECM"), where airplane
parts were machined to a specified size and shape by an electro-chemical process.  
These parts were then moved to the "pickling line" where they were
"pickled" or cleaned, by dipping them into open surfaced tanks.  One of the
tanks contained a 35% hydrochloric acid solution, one tank contained a 35% nitric acid
solution, and another tank contained alkali cleaner.  Large parts were moved from
tank to tank with a motorized hoist.  An operator controlled the hoist by pressing a
button while standing in front of the pickling line.  Employees dipped smaller parts
by hand.  Sometimes employees hand-dipped small bottles or buckets into the acid
solution tanks.

The Review Commission held that (Id. at 1772):

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

The present case is distinguishable from Pratt . 
In Pratt , the company's instructions were deemed adequate under specific
circumstances.   The exposed employees were experienced ECM operators who worked on a
daily basis with acid.  The company could rely on the operator's experience and the
common knowledge that acid can cause serious burns.

In contrast, the exposed employees in the present case
were pipefitters and an electrician.  The hazardous substance was a solution
containing cyanide, not acid.  The exposed employees did not work in the plating
department on a daily basis.  While it is common knowledge that ingesting cyanide can
be deadly, it is perhaps less well known that cyanide poses a threat as a result of skin
contact.

The issue confronted in Pratt was: whether instructions in
job hazards, personal protection, and first aid given to experienced operators working on
a daily basis with tanks of acid were adequate under the circumstances.  The issue in
the present case is: whether instructions in job hazards, personal protection, and first
aid given to maintenance personnel unfamiliar with plating operations who were working
around tanks containing cyanide solutions were adequate under the circumstances.  The
issue in the present case is not identical to the issue litigated in Pratt and collateral
estoppel does not apply.

C. Instructions as to Hazards

Having concluded that the litigation of Item 1 is not
precluded by res judicata or collateral estoppel, it must now be determined whether Pratt
& Whitney violated � 1910.94(d)(9)(i) in the instant case.  The Pratt decision
held that the cited standard requires "employers to give instructions that are
reasonable under the circumstances." Pratt, 12 BNA OSHC at 1722.

William Mousseau's duties at the West Palm Beach
facilities were the installation and maintenance of plumbing fixtures.  At the time
of the hearing, Mousseau was working on the plumbing in the plant's cafeteria (Tr. 22).
  In August of 1989, Mousseau was working in the plating department helping with its
renovation.  The job involved "getting rid of tanks, taking tanks out, moving
pipes so they can remove the tanks.  It's basically tearing down one complete section
so it can be redone, rebuilt, and getting another section operational and ready to
go."  (Tr. 23).  Before he was assigned to the renovation work in the
plating department, Mousseau had no experience working with the open surface tanks.  
Mousseau was given information regarding the contents of specific tanks as he moved them
(Tr. 25-26).

Mousseau usually asked Dale Seams, a solution technician,
about the contents of the tanks as he got around to them (Tr. 27): "Well, it's like
if we were getting ready to move something or work around something, you know, he--you
know, immediately I'd either ask him or, you know, somebody would say something about it,
or I'd find out what's in that."

The word "cyanide" was stenciled on tank D-1,
but Mousseau did not notice it until after he was splashed with the tank's contents (Tr.
29).  No one informed Mousseau about the contents of tank D-1 until after the
incident because, Mousseau stated, "basically, I wasn't working on the tank itself,
so I wasn't really, you know, concerned with, you know, having to get anything on me,
'cause I wasn't working on that tank." (Tr. 30-31).

Pratt & Whitney had a labeling system that it used on
the tanks to inform employees of the nature and hazards of their contents.  Mousseau
"really didn't know how to read the labels on the tanks."  (Tr. 33).

Brockett testified that he was given no safety
instructions regarding working around the tanks at the time he was assigned to the plating
department (Tr. 122-123).  Brockett was not aware that tank D-1 contained cyanide
until after he was splashed with its contents.  He stated that "the only
knowledge that I had received was if I asked."  (Tr. 124).  Brockett
received general training as to protective clothing but nothing specific as to what is
required around the tanks of chemicals in the plating department (Tr. 149-150).

In its brief, Pratt & Whitney argues that the
employees were provided with protective equipment, that there were signs in the plating
department warning employees to wear goggles in marked areas, and that both employees had
attended hazard communication training sessions (Tr. 84-88, 206-207, 1332-1333).  The
hazardous communication training took place in 1987 (Tr. 1333).  Pratt & Whitney
contends that these steps were sufficient to meet compliance with � 1910.94(d)(9)(i).

In determining the reasonableness of instructions, we must
consider such factors as the obviousness of the hazard...., the experience of the
employees, the likelihood that an accident would occur, and the degree of harm that would
result from an accident.

Id., 12 BNA OSHC at 1722 (citation omitted).  Each of
these factors will be considered in turn.

(i) THE OBVIOUSNESS OF THE HAZARD

Neither Mousseau nor Brockett were aware that tank D-1
contained cyanide until after they were splashed with its contents.  Pratt &
Whitney claims that the tank was labeled, but Mousseau did not know how to read the
labels.  Brockett was not familiar with the labeling system (Tr. 147).  
Furthermore, Brockett testified that tank D-1's label was "very faded and
discolored" (Tr. 149).

Not only was the hazard not obvious to Mousseau and
Brockett before they were splashed, the seriousness of the accident was not clear to the
employees even after learning that they were splashed with a cyanide solution.  
Mousseau thought it was sufficient to rinse off his leg in a sink.  He had to be told
to take a shower.  The record establishes that the hazard of being splashed with a
cyanide solution was not obvious to Brockett and Mousseau.

(ii) THE EXPERIENCE OF THE EMPLOYEES

Mousseau and Brockett were pipefitters who worked in all
areas of the West Palm Beach facility.  They had no specialized knowledge of the
plating department and had not experience in working with the open surface tanks.  
The employees received information about the tanks on a tank-by-tank basis, and then only
if they asked.

(iii) THE LIKELIHOOD THAT AN ACCIDENT WOULD OCCUR

Besides the actual incident that gave rise to this case,
Brockett testified that he accidentally dropped screwdrivers in tanks on two separate
occasions.  On one occasion he was wearing protective gear and on the other he wasn't
(Tr. 195).

It is clear that a room containing over fifty open surface
tanks (many of which contain hazardous chemicals) which employees must work around
presents the possibility of an accident occurring.  In this case, an accident did
occur.

(iv) DEGREE OF HARM RESULTING FROM ACCIDENT

Mousseau and Brockett were fortunate in that they
sustained no lasting harm from the splashing incident.  Dr. Thomas Wilcox testified
that cyanide is a toxic substance that will kill a person if it is absorbed into his or
her body.  The record discloses that cyanide can be absorbed into a person's body
through the skin (Tr. 1456).  A person does not have to be totally immersed in a vat
of cyanide in order to sustain a toxic exposure (Tr. 1452-1453).  Cyanide is an
extremely poisonous substance, "[A]s little as fifteen milligrams can prove
fatal."  (Tr. 1457).  The Secretary has established that serious physical
harm or death can result from an employees' exposure to cyanide.

The hazard to the employees was not obvious to them, the
employees were not experienced in working in the plating shop, an accident was likely to
occur in the shop, and serious physical harm or death could have resulted from an
accident.  Under these circumstances, Pratt & Whitney failed to give adequate
instructions to its maintenance personnel.  Mousseau and Brockett were not given any
orientation instructions at the time of their initial assignment, and it was left up to
the employees to inquire as to the contents of the individual tanks.

Pratt & Whitney was in serious violation of �
1910.94(d)(9)(i).

ITEM 2: 29 C.F.R. � 1910.132(a)

29 C.F.R. � 1910.132(a), in pertinent part, provides:

Protective equipment, including personal protective
equipment for.......head......shall be provided, used and maintained.......wherever it is
necessary by reason of hazards......encountered in a manner capable of causing injury....

OSHA industrial hygienist Peter Foreman observed two
millwrights in the plating shop removing the tank and duct work for tank H-3 (Tr. 344,
659-660).  The tank and duct work were slightly suspended several inches by crane
hoist (Tr. 659, 963).  The millwrights were not wearing any form of head protection.
  Foreman stated that the millwrights were exposed to hazards from working beneath
the tank and duct work, and also from sharp edges and projections of the steel floor
grating (Tr. 323).

Donald Cooper was one of the millwrights who Foreman
observed working.  Cooper testified that Pratt & Whitney had provided him and his
crew with hard hats, and that the company had a policy requiring them to wear hard hats
whenever there was an overhead hazard.  Cooper and the other millwright had their
hard hats with them that day, but were not wearing them because they perceived no hazards
of head injury in the work they were doing (Tr. 962, 984).

It was not possible for anyone to get underneath the
suspended tank.  The tank was only six inches off the ground.  The purpose of
lifting the tank was to move it; there was no reason for anyone to get under it (Tr. 659,
959).  Cooper explained, "We were only moving it laterally.  We were
bringing it out of one corner, twisting it and sitting it over."  (Tr. 983).

Neither was anyone working beneath the suspended duct work
(Tr. 964-965).  Cooper stated that no one was working directly under the grating.
  The millwrights were working below the level of the grating, but off to the side
where they were not exposed to the sharp edges of the grating (Tr. 965, 967, 979).

The Secretary has failed to prove that Pratt &
Whitney's employees were exposed to the hazard of head injuries.  No overhead hazards
were presented in the operations they were performing.  Pratt & Whitney was not
in violation of � 1910.132(a) for failure to require its employees to use protective head
equipment.

ITEM 3: 29 C.F.R. � 1910.132(a)

29 C.F.R. � 1910.132(a) also provides, in pertinent part:

Protective equipment, including personal protective
equipment for eyes, face, head, and extremities, [and] protective clothing....shall be
provided, used and maintained....whenever it is necessary by reason of....chemical
hazards...encountered in a manner capable of causing injury or impairment in the function
of any part of the body through absorption, inhalation or physical contact.

The Secretary charges that Pratt & Whitney millwrights
in the plating shop were not using chemically impervious suits, aprons, gloves, sleeves
and boots during equipment installation work on and around open surface tanks and pipes
containing hazardous chemicals.

Foreman observed several solution control employees
emptying a tank containing nitric acid.  The solution control employees were wearing
"aprons, boots, respirators, face shields, gloves, and extensive protective
equipment..." (Tr. 344, Exs. C-16, C-17).  At the same time, millwrights were
working around the same tank.  They were disconnecting the ventilation system from
the tank and connecting it to a hoist to lift it and hold it while the tank was being
moved and turned.  The millwrights were wearing tyvek suits and goggles (Tr. 344).

Millwright Donald Cooper testified that Pratt &
Whitney made available protective equipment.  "They always had coveralls and the
gloves, goggles, face shields--anything you needed." (Tr. 971).

Pratt & Whitney argues that the Secretary is
collaterally estopped from litigating whether it was in violation of � 1910.132(a)
because the Review Commission vacated a citation for the violation of � 1910.94(d)(9) in Pratt ,
12 BNA OSHC 1770.  In Pratt , the company was charged with a violation of
�1910.94(d)(9)(iii) and (iv) in that it did not "provide" impervious gloves and
aprons for employees working at open surface tanks.

The cited standards provide:

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

(iv)  All persons required to work in such a manner
that their clothing may become wet shall be provided with such aprons, coats,
jackets, sleeves, or other garments made of rubber, or of other materials impervious to
liquids other than water, as are required to keep their clothing dry.  Aprons shall
extend well below the top of boots to prevent liquid splashing into the boots. 
Provision of dry, clean, cotton along with rubber shoes or short boots and an apron
impervious to liquids other than water shall be considered a satisfactory substitute when
small parts are cleaned, plated, or acid dripped in open tanks and rapid work is
required.  (Emphasis added).

Sections (iii) and (iv) both mandate that protective
equipment "shall be provided" to employees.  The Secretary argued in Pratt
that �� 1910.94(d)(9)(iii) and (iv) should be construed to require the use of protective
equipment.  The Review Commission rejected this argument, holding that the word
"provide" is not ambiguous and could not be strained to mean "use".
  "The Commission, as an adjudicatory body, lacks authority to rewrite the
standards and may not impose on them a meaning that would deprive employers of fair notice
of the conduct required or prohibited."  Id. , 12 BNA OSHC at 1776. 
Because the evidence was undisputed in Pratt , as in the present case, that
protective equipment was available to the employees, the citation for failure to provide
protective equipment was vacated.

In the present case, Pratt & Whitney was cited under
� 1910.132(a), which requires that protective equipment be "provided, used, and
maintained."  Because this standard explicitly mandates that protective
equipment be used as well as provided, it is not the identical issue as was litigated in Pratt . 
Absent identical issues, a collateral estoppel claim must fail.

Pratt & Whitney raises a further argument that has
more merit.  The company argues that �� 1910.94(d)(9)(iii) and (iv) are specific
standards that address protective equipment repaired for employees working around open
surface tanks.  Section 1910.94(d) is captioned "Open surface tanks" and �
1910.94(d)(9) is captioned "Personal protection."  Section 1910.132(a) is a
general standard which is contained within Subpart I, "Personal Protective
Equipment," and is captioned "General requirements."

29 C.F.R. � 1910.5(c)(1) provides in pertinent part:

If a particular standard is specifically applicable to a
condition, practice, means, method, operation, or process, it shall prevail over any
different general standard which might otherwise be applicable to the same condition,
practice, means, method, operation or process.

29 C.F.R. � 1910.5(c)(2) provides:

On the other hand, any standard shall apply according to
its terms to any employment and place of employment in any industry, even though
particular standards are also prescribed for the industry, as in Subpart B or Subpart R of
this part, to the extent that none of such particular standards apply.

It must be determined whether � 1910.94(d)(9) is
"specifically applicable" to the cited condition.  The hazard at issue is
exposure to hazardous chemicals in and around open surface tanks.  The Secretary
specifically cited Pratt & Whitney for failure of its employees to use
"chemically impervious suits, aprons, gloves, sleeves, and boots."  Section
1910.132(a) requires the use of "personal protective equipment for eyes, face, head,
and extremities...whenever it is necessary by reason of...chemical hazards..."  
Section 1910.94(d)(9)(iii) and (iv) specifically require the employer to provide employees
working around open surface tanks with gloves, aprons, coats, jackets, sleeves, and
boots.  Sections 1910.94(d)(9)(iii) and (iv) are clearly more specific to the cited
condition than � 1910.132(a).

The Secretary cites Bratton Corp. , 14 BNA OSHC
1893, 1990 CCH OSHD � 29,152 (No. 83-132, 1990), for the proposition that, where the
"more specific" standard fails to prevent certain hazards, the
"general" standard applies if it provides the protection that the "more
specific" standard omits.   In Bratton , the employer was a steel erection
contractor.  It was charged with a violation of � 1926.28(a),[[3]] a general
standard requiring the wearing of personal protective equipment.  Bratton
argued that � 1926.28(a) did not apply because it was preempted by �
1926.750(b)(2)(i),[[4]] a specific steel erection standard.  The Review Commission
ruled that the general standard was applicable in that case because � 1926.750(b)(2)(i)
addressed only interior fall hazards, affording no protection against exterior fall
hazards.

The Review Commission held:

We agree with the various appellate court decisions that
have drawn a distinction between interior and exterior fall hazards and hold that the
steel erection standards in Subpart R do not preempt application of the general
construction standards to steel erection work "where general standards provide
meaningful protection to employees beyond the protection afforded by the steel erection
standards... Williams Enterprises, Inc. , 11 BNA OSHC 1410, 1416, 1983-84 CCH OSHD
� 26,542, p. 33,877 (No. 79-843, 1983), aff'd in pertinent part , 744 F.2d 170
(D.C. Cir. 1984).

Bratton, 1990 CCH OSHD at p. 38,992.

The Secretary argues that there is a distinction between
the hazards addressed by � 1910.132(a) and � 1910.94(d)(9)(iii) and (iv).  The
Secretary states that item 3 "is not confined to work around open surface tanks in
plating operations and the attendant dripping and splashing hazard.  It pertains to
'employees during equipment installation on and around open surfaces, tanks and
pipes containing hazardous chemicals.'  (Secretary's brief, p. 14, emphasis in
original).   Apparently the Secretary considers the addition of the words
"equipment installation work" and "pipes" in the citation to
significantly alter the meaning of in and around open surface tank operations contained in
� 1910.94(d).   The undersigned disagrees.  The hazard presented in both cases
is contact with hazardous chemicals.  The phrase "equipment installation work on
and around open surface tanks and pipes" encompasses "in and around open surface
tank operations."

The general personal protection equipment standard, �
1910.132(a) is preempted by the more specific standard, � 1910.94(d)(9)(iii) and (iv), as
provided for in � 1910.5(c)(1).  Item 3 is vacated.

Even if the cited standard was not preempted by �
1910.94(iii) and (iv), item 3 would still be vacated because Pratt & Whitney was
denied fair notice.  "An employer lacking fair notice of a standard cannot be
found in violation of the act for failure to comply with that standard."   Bratton ,
1990 CCH OSHD at p. 38, 992.  In Pratt , the company was charged with the
failure to require its employees to use gloves and aprons, just at Pratt & Whitney was
charged in the present case.  The standards cited were �� 1910.94(d)(9)(iii) and
(iv).  The Review Commission vacated the items, holding that the standards
"require only that....protective equipment must be made available."  Pratt ,
12 BNA OSHC at 1776.

It was entirely reasonable for Pratt & Whitney to
assume, based on the Pratt decision, that it was not required by the Act to ensure
that its employees actually used protective equipment, but was only required to make such
equipment available.  To charge Pratt & Whitney with the same violation using a
different standard violates its right to fair notice.

The purpose of OSHA is to obtain safe and healthful
working conditions through promulgation of occupational safety and health standards which
tell employers what they must do to avoid hazardous conditions.  To strain the plain
and natural meaning of words for the purpose of alleviating a perceived safety hazard is
to delay the day when the occupational safety and health regulations will be written in
clear and concise language so that employers will be better able to understand and observe
them.

Diamond Roofing , 528 F.2d 645, 650 (5th Cir. 1976).

In Pratt , the Review Commission noted that the
Secretary "could have promulgated a standard imposing a use requirement as suggested
by the Second Circuit in a case involving a similar standard..." Pratt , 12 BNA
OSHC at 1775.   Her failure to do so cannot be remedied by substituting a general
standard requiring use of a more specific standard that requires only availability. 
Pratt & Whitney was not in violation of � 1910.132(a).

ITEM 4: 29 C.F.R. � 1910.133(a)(1)

29 C.F.R. � 1910.133(a)(1) provides:

Protective eye and face equipment shall be required where
there is a reasonable probability of injury that can be prevented by such equipment.
  In such cases, employers shall make conveniently available a type of protector
suitable for the work to be performed, and employers shall use such protectors.  No
unprotected person shall knowingly be subjected to a hazardous environmental condition.
  Suitable eye protectors shall be provided where machines or operations present the
hazard of flying objects, glare, liquids, injurious radiation, or a combination of these
hazards.

The Secretary alleges that protective face shields were
not use by employees during equipment installation work on and around open surface tanks
and pipes containing hazardous chemicals.  The solution control employees who were
emptying the tank containing nitric acid were wearing full-face piece respirators with a
face protection on them (Ex. C-16, Tr. 361).  Millwrights working around the same
tank were wearing only goggles (Ex. C-11, Tr. 363-364).

In dealing with open surface tanks, reference must be made
to � 1910.94(d)(9)(v), which provides:

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

Section 1910.94(d)(9)(v) requires that either goggles or
face shields be worn by employees working around open surface tanks.  The Secretary
argues that "this provision should not be interpreted as giving the employer the
option of requiring the use of one or the other."  (Secretary's brief, p. 17).
  Pratt & Whitney takes issue with the Secretary's interpretation of the
standard.

As with item 3, supra , the question of fair notice
is raised regarding this item.  In two previous cases to which Pratt & Whitney
was a party, it was found in violation of � 1910.94(d)(9)(v) for failing to require its
employees to wear either goggles or face shields.  In Pratt & Whitney Aircraft ,
9 BNA OSHC 1653, 1981 CCH OSHD � 25,359 (No. 13401, 1981), the company was found in
violation for failing to require the use of either goggles or face shields by its
employees who were working around open surface tanks in the plating department. Having
been issued a Review Commission decision explicitly stating that employees working around
open surface tanks in the plating department must wear either goggles or face shields, it
was only reasonable for Pratt & Whitney to assume that it was on safe ground requiring
its employees to wear one or the other of these protective devices as such circumstances.
  Employers should be able to place some reliance on Review Commission decisions,
especially when they involve the same employer in similar circumstances.

To hold Pratt & Whitney in violation of �
1910.133(a)(1) in this instance would be to work an injustice on the company.  The
undersigned declines to do so.  Pratt & Whitney was not in violation of �
1910.133(a)(1).

ITEM 5: 29 C.F.R. � 1910.134(e)(3)

29 C.F.R. � 1910.134(e)(3) provides:

Written procedures shall be prepared covering safe use of
respirators in dangerous atmospheres that might be encountered in normal operations or in
emergencies.  Personnel shall be familiar with these procedures and the available
respirators.

During his inspections, Foreman observed two empty boxes
outside the wall to the plating department.  At one time the boxes had contained
self-contained breathing apparatuses (SCBAs) (Ex. C-18, Tr. 387).  The SCBAs had been
removed from the plating department sometime in 1988 and given to the fire department (Tr.
1287).  A sign on the cabinets informed employees the SCBAs were removed and to call
the fire department in the event of an emergency (Ex. C-18, Tr. 390).  The SCBAs had
been removed because the company determined that it preferred to use emergency personnel
(Tr. 1287-1289).

The fire department is a separate department within the
facility.  Foreman did not inspect or try to determine what procedures were available
in the fire department regarding the SCBAs (Tr. 543, 1199).

The Secretary has failed to establish a violation of this
standard.  If no SCBAs are available for use, no written procedures are required.
  The Secretary failed to prove that the fire department, which did have SCBAs, did
not have the written procedures covering their use.  Pratt & Whitney was not in
violation of � 1910.134(e)(3).

ITEM 6a: 29 C.F.R. � 1910.145(c)(2)(i)

29 C.F.R. � 1910.145(c)(2)(i) provides:

Caution signs shall be used only to warn against potential
hazards or to caution against unsafe practices.

Pratt & Whitney had caution signs posted at both
entrances to the plating shop (Exs. C-21, R-7, R-8, Tr. 582).  At one entrance of the
plating shop, the caution sign reads, "Caution, safety glasses required in this
area."  (Ex. R-7, Tr. 580-581).  At the other entrance to the plating shop
are a caution sign and a notice that reads, "Safety control area, see foreman before
entering."  (Ex. R-8, Tr. 582).  Foreman testified, and the Secretary
argues, that an adequate warning should at least have said "caution, chemical hazard
area."  (Tr. 414).

The cited standard does not mandate specific language to
be used on the warning signs.  Pratt & Whitney cannot be held in violation of �
1910.145(c)(2)(i) merely because it did not foresee the exact wording that Foreman would
deem appropriate.  Whether Pratt & Whitney violated the standard must be
determined by looking at the adequacy of the signs it actually did post.

The standard provides that caution signs shall be used to
"warn against potential hazards" or "to caution against unsafe
practices."  Pratt & Whitney's sign warning, "Caution, safety glasses
required in this area," is a sign warning against an unsafe practice, i.e., not
wearing safety glasses.  The sign stating, "Safety control area, see foreman
before entering," falls into the first category as a warning against potential
hazards.

Is "Caution, safety control area" adequate to
meet the requirements of � 1910.145(c)(2)(i)?  The Secretary would have accepted
"Caution, chemical hazard area."  The difference then, is between the words
"safety control" and "chemical hazard."  While the latter is more
specific as to the nature of the potential hazard, "Caution, safety control
area" puts any employee reading the sign on notice.  "Safety control
area" implies that there is a reason for safety control, namely a hazardous
condition.  Combined with the word "caution," a reasonable person would be
warned that some potential hazard was present.  Perhaps the warning is not as
detailed as the Secretary wants, but the standard is worded in very broad terms.  If
the Secretary wants to require signs stating "chemical hazard area" in areas
where chemical hazards exist, she must make the standard more explicit.  "The
responsibility to promulgate clear and unambiguous standards is upon the Secretary.  
The test is not what he might possibly have intended, but what he said.  If the
language is faulty, the Secretary has the means and the obligation to amend."  
General Electric Co. v. OSHRC, 583 F.2d 61, 67 (2nd Cir. 1978) (quoting Bethlehem Steel
Corp. v. OSHRC, 573 F.2d 157, 161 (3rd Cir. 1978).

Pratt & Whitney was not in violation of �
1910.145(c)(2)(i).

ITEM 6b: 29 C.F.R. � 1910.145(c)(3)

29 C.F.R. � 1910.145(c)(3) provides:

Safety instruction signs shall be used where there is a
need for general instructions and suggestions relative to safety measures.

Pratt & Whitney had labels posted on each tank,
identifying the tank's contents.  As noted in the discussion of item 1, supra, the
maintenance employee did not understand how to read the labeling system.  The
maintenance personnel were the very employees who most need general instructions as to
safety measures, because they were the ones most unfamiliar with the chemical hazards.
  As was made evident by Mousseau's and Brockett's reaction to being splashed with
the cyanide solution, suggestions relative to safety measures were needed.

Pratt & Whitney was in serious violation of �
1910.145(c)(3).

ITEM 7: 29 C.F.R. � 1910.145(f)(5)

29 C.F.R. � 1910.145(f)(5) provides:

Danger tags shall be used in major hazard situations where
an immediate hazard presents a threat of death or serious injury to employees.  
Danger tags shall be used only in these situations.

No danger tag was placed on the pump for tank D-1 after it
was disconnected.  On August 23, 1989, the electrician Stoeffel activated the pump,
resulting in Mosseau and Brockett getting splashed with the cyanide solution.

Pratt & Whitney argues that the standard is
inapplicable to the situation at issue because it was not a "major hazard"
situation where "an immediate hazard presents a threat of death or serious injury to
employees."  This Court concludes that no "immediate hazard" was
presented.

As long as the pump was not activated, there was no hazard
to anyone of being splashed by the cyanide solution.  "Immediate" connotes
a sudden event with no lapse of time.  It took the intervening force of the
electrician to cause the hazard to the employee.

Support of this interpretation can be found elsewhere in
the standard.  Section 1910.145(f)(6) provides:

Caution tags shall be used in minor hazard situations
where a non-immediate or potential hazard or unsafe practice presents a lesser threat of
employee injury.  Caution tags shall be used only in these situations.

Section 1910.145(f)(7) provides:

Warning tags may be used to represent a hazard level
between "Caution" and "Danger," instead of the required
"Caution" tag, provided that they have a signal word of "Warning," an
appropriate major message, and otherwise meet the general tag criteria of paragraph (f)(4)
of this section.

A warning tag, rather than a danger tag, would have been
the more appropriate tag in this instance.  The warning tag standard requires
"an appropriate major message."  Reference to the definition section of the
standard at � 1910.145(f)(2) reveals that "major message" is defined as
"that portion of a tag's inscription that is more specific than the signal word and
that indicates the specific hazardous condition or the instruction to be communicated to
the employee.  Examples include:

...."Do Not Start," or "Do Not
Use".....

A warning tag containing the major message "Do Not
Activate" was clearly more appropriate to the disconnected pump on tank D-1 than was
a danger tag.  Use of a danger tag would have constituted a violation of �
1910.145(f)(5), which states that danger tags shall be used only in major hazard
situations where an immediate hazard exists.

Pratt & Whitney was not in violation of �
1910.145(f)(5).

ITEM 8b: 29 C.F.R. � 1910.1200(f)(5)(i)

29 C.F.R. 1910.1200(f)(5)(i) provides:

Except as provided in paragraphs (f)(6) and (f)(7) the
employer shall ensure that each container of hazardous chemicals in the workplace is
labeled, tagged or marked with the following information:

(i) Identity of the hazardous chemical(s) contained
therein.......

In item 8b(a), the Secretary alleged that Pratt and
Whitney had several containers which were not labeled with appropriate hazard warnings
identifying hazardous chemicals contained therein.  The citation specified the
following containers as lacking adequate labels: Niposit NL-62R, ExMac 64 Reducer,
Plastisol, Cupric Sulfate, Edwal Hardener Fixer, Picard Acid Wetting Agent, PMC 1609-2,
Edwal Quick Fix, PMC 1632-1, Barrett Snac, and 9 PMC-1622-1.

Foreman observed containers of Niposit NL-62R and Ex Mac
64 Reducer (Ex. C-21).  After looking at the Material Safety Data Sheets (MSDSs),
Foreman determined that the two containers lacked adequate warning labels (Tr. 436-438).
  These containers were labeled with the manufacturer's labels (Tr. 438, 594).

As Pratt & Whitney points out, � 1910.1200(d)(1)
provides:

(emphasis added):

Chemical manufacturers and importers shall evaluate
chemicals produced in their workplaces or imported by them to determine if they are
hazardous.  Employers are not required to evaluate chemicals unless they choose
not to rely on the evaluation performed by the chemical manufacturer or importer for the
chemical to satisfy this requirement.

Because it is undisputed that it was the manufacturer's
labels on the containers of Niposit NL-62R and Ex Mac 64 Reducer, Pratt & Whitney
cannot be held liable for the inadequate labels.

Exhibit C-22 shows a five-gallon jug labeled plastisol
PMC-1671, and "in house" container that had no hazard warning label at all.
  The Secretary failed to prove that the plastisol container contained a hazardous
chemical (Tr. 446-451).  Therefore, Pratt & Whitney cannot be held in violation
for failure to label this container.

Exhibit 23 shows a container of cupric sulfate PMC-1322.
  The Manufacturer's label did not contain warnings of hazards listed in the
chemical's MSDS (Tr. 452).  As it was labeled by the manufacturer, Pratt &
Whitney is not responsible for any of the label's defects.

The MSDS for Edwal Hardener Fixer indicates that it
contains sulfuric acid, acetic acid, and aluminum sulfate, which can cause severe
irritation to the nose, mouth, skin, and respiratory system.  There was no warning
label whatsoever on the container (Tr. 455).  Pratt & Whitney is responsible for
the failure to label this container.

The Picard Acid Wetting Agent was labeled with an
inadequate manufacturer's label, for which Pratt & Whitney was not responsible (Tr.
456).

Exhibit C-25 shows two five-gallon plastic pails labeled
PMC-1632 (Tr. 464).  PMC-1632 contains non-ionic polyoxyethylated detergent, which is
a skin and eye irritant.  There were no warning labels on the container (Tr. 465).

Exhibit C-24 shows a container of Edwal Quick Fix.  
The manufacturer's label is covered over with a Pratt & Whitney label (Tr. 461). 
Because this container is one of the containers at issue in item 8c, it will not be
considered here.

Exhibit C-26 shows a container of Barrett Snac with a
manufacturer's label on it (Tr. 465-467).  Any defects in the label are the
responsibility of the manufacturer.

Exhibit C-27 shows a container marked 9 PMC-1622-1.  
It is labeled with a Pratt & Whitney label and contains no hazard warning.   The
substance is Agent/Wetting - for acid cleaners.  The Secretary did not have an MSDS
for the substance.  Any hazards that the substance may present were not brought out
at the hearing (Tr. 467-468).

Of the substances listed in the citation, only two, Edwal
Hardener Fixant and PMC 1632-1, had defective labels which were Pratt & Whitney's
responsibility.  These two substances posed threats of respiratory, skin, and eye
irritation.

Item 8b(b) alleges that certain tanks and a bottle in the
plating shop were not identified with appropriate hazard warnings.

Pratt & Whitney conceded that the bottle labeled PS
607 was labeled incorrectly (Ex. C-35).  The bottle contained chromic acid and should
have been labeled with an asterisk and a reactivity rating of 1 or 2 instead of a 0 (Tr.
511-512, 1050-1051).

Foreman testified that tank F-2, which contained
hydrochloric acid, should have been marked with a reactivity rating of 2 instead of 0 (Ex.
C-28, Tr. 471), and tank H-3, containing nitric acid solution, should have a reactivity
rating of 1 or 2 instead of 0 (Ex. C-9, Tr. 475-477).

Tank H-5 contained electroless nickel plating solution
(Ex. C-30, Tr. 480).  It should have been marked with a higher reactivity rating than
0 (Tr. 481).

Lynn Hamel is an industrial hygienist for Pratt &
Whitney (Tr. 993-994).  She is in charge of the company's hazardous materials
identification system (HMIS) (Ex. R-14, Tr. 1004).  Pratt & Whitney uses
numerical ratings for reactivity which are set by the National Fire Protection Association
(NFPA).  Hamel testified that she used no independent judgment in assigning the
ratings; they are taken directly from NFPA standard 704 (Ex. R-14, Tr. 1013).

The Secretary offered no evidence other than Foreman's
testimony that the reactivity ratings were inaccurate.  His testimony alone, when
countered by Hamel's testimony and Exhibit R-14, does not meet the Secretary's burden of
proof.  It cannot be determined from the record whether or not the reactivity ratings
were too low.

The Secretary has established with regard to item 8b that
Pratt & Whitney failed to have adequate hazard warnings for two chemical substances,
both of which had the potential to cause skin, eye, and respiratory irritation.  
Pratt & Whitney is in serious violation for those substances only.

ITEM 8c: 29 C.F.R. � 1910.1200(f)(8)

29 C.F.R. 1910.1200(f)(8) provides:

The employer shall not remove or deface existing labels on
incoming containers of hazardous chemicals, unless the container is immediately marked
with the required information.

The Secretary charges that Pratt and Whitney had
containers of hydrochloric acid, hydrofluoric acid, and Edwal Quick Fix on which the
labels were defaced.

Exhibit C-24 shows a container of Edwal Quick, which
contains acetic acid, sodium thiosulfate, ammonium thiosulfate, and boric acid.  The
Pratt & Whitney label covered the back of the manufacturer's label (Tr. 461-463).
  Exhibit C-31 shows a hydrochloric acid container with a label written over in magic
marker.  Exhibit C-32 shows plastic jugs of hydrofluoric acid with white stickers
over the labels of two of them (Tr. 482).  The Secretary has established that the
foregoing labels were obscured and did not convey an adequate warning.

Pratt & Whitney was in serious violation of �
1910.1200(f)(8).

ITEM 9: 29 C.F.R. 1910.1200(h)

29 C.F.R. 1910.1200(h) provides:

Employers shall provide employees with information and
training on hazardous chemicals in their work area at the time of their initial
assignment, and whenever a new hazard is introduced into their work area.

(1) Information .  Employees shall be informed
of:

(i) The requirements of this section;

(ii) Any operations in their work area where hazardous
chemicals are present; and,

(iii) The location and availability of the written hazard
communication program, including the required list(s) of hazardous chemicals, and material
safety data sheets required by this section.

(2) Training .  Employee training shall include
at least:

(i) Methods and observations that may be used to detect
the presence or release of a hazardous chemical in the work area (such as monitoring
conducted by the employer, continuous monitoring devices, visual appearance or odor of
hazardous chemicals when being released, etc.);

(ii) The physical and health hazards of the chemicals in
the work area;

(iii) The measures employees can take to protect
themselves from these hazards, including specific procedures the employer has implemented
to protect employees from exposure to hazardous chemicals, such as appropriate work
practices, emergency procedures, and personal protective equipment to be used; and,

(iv) The details of the hazard communication program
developed by the employer, including an explanation of the labeling system and the
material safety data sheet, and how employees can obtain and use the appropriate hazard
information.

Pratt & Whitney had a very good written hazard
communication training program.  Dr. Isabel Perry put together and implemented the
program, which included a booklet of MSDSs (Exhibit R-1) and training sessions conducted
by Dr. Perry (Tr. 1271).  The course was approximately two hours long and was offered
every thirty days.  Dr. Perry used slides in the course and administered a
questionnaire afterwards (Exs. R-25, R-26, Tr. 1271, 1273, 1275, 1277).

Despite the quality of the written hazard communication
program, there was an apparent problem with its communication to Pratt and Whitney's
employees.  Foreman questioned platers, plumbers, electricians, and the electrical,
pipefitting, and plating shop supervisors (Tr. 287).  Foreman found that there were a
number of inadequacies in the employees' training.  Most employees were aware of the
hazard communication program but many did not know where to find it.  Many were not
aware of the MSDS system.  Some were unsure of the numerical hazard rating system.
  Many did not understand what an "S" meant ("Refer to
supervisor") or what protective equipment they should wear in specific situations.
  They were unaware of the carcinogens they were working with (Tr. 289-291).  
Platers told of sticking their bare hands into tanks containing nickel to neutralize
chemicals they got on their hands.  Skin lesions can develop from such a practice
(Tr. 493-495).

Most of the employees did not understand the labeling
system.  They were unaware of the meaning of an asterisk on a warning label
(indicating a chronic health hazard) (Tr. 295).

The Secretary has established that Pratt & Whitney was
in serious violation of � 1910.1200(h).

PENALTY DETERMINATION

The Commission is the final arbiter of penalties in all
contested cases.  Secretary v. OSAHRC and Interstate Glass Co. , 487 F.2d 438
(8th Cir. 1973).  Under 17(j) of the Act, the Commission is required to fined and
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 in
determining the appropriate penalty.

Pratt & Whitney employed approximately 8,000
employees.  No history of previous violations at that particular facility was shown
and no basis was given for doubting Pratt & Whitney's good faith.  All of the
violations that the Secretary established posed potential hazards of death or serious
physical harm.  After due consideration, the following penalties are deemed
appropriate:

Item

Penalty

1

$1,000

6b

500

8b

100

8c

100

9

1,000

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

ORDER

Based upon the foregoing decision, it is hereby ORDERED
that the items contained in Citation No. 1 shall be disposed of as follows:

ITEM

DISPOSITION

PENALTY

1

Affirmed

$1,000

2

Vacated

-0-

3

Vacated

-0-

4

Vacated

-0-

5

Vacated

-0-

6a

Vacated

-0-

6b

Affirmed

500

7

Vacated

-0-

8a

Vacated

-0-

8b

Affirmed as to

100

Edwal Hardene

Fixant, PMC-1632,

and PS 607

8c

Affirmed

100

9

Affirmed

1,000

Dated this 24th day of October, 1991.

EDWIN G. SALYERS

Judge

FOOTNOTES:

[[1]]  At the time of the splashing incident, the
tank was designated as E-3.  Due to its relocation during the renovation, it was
subsequently designated as D-1.  The tank was referred to as D-1 throughout much of
the testimony.  For the purposes of this decision, it shall be understood that E-3
and D-1 refer to the same tank.

[[2]] Rule 36(b)(1) provides in pertinent part:

The employer shall state in its answer in separate
numbered paragraphs any matter that may constitute...an affirmative defense.....Such
matters include, but are not limited to, the following: .....res judicata........

[[3]] 29 C.F.R. � 1926.28(a) provides:

The employer is responsible for requiring the wearing of
appropriate personal protective equipment in all operations where there is an exposure to
hazardous conditions or where this part indicates the need for using such equipment to
reduce the hazards to the employees.

[[4]] 29 C.F.R. � 1926.750(b)(2)(i) provides:

Where skeleton steel erection is being done, a tightly
planked and substantial floor shall be maintained within two stories or 30 feet, whichever
is less, below and directly under that portion of each tier of beams on which any work is
being performed, except when gathering and stacking temporary floor planks on a lower
floor, in preparation for transferring such planks for use on an upper floor.  Where
such a floor is not practicable, paragraph (b)(1)(ii) of this section applies.`