NORTH AMERICAN ROCKWELL CORPORATION

OSHRC Docket Nos. 2692; 2875 (Consolidated)

Occupational Safety and Health Review Commission

March 28, 1975

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: A decision of Review Commission Judge Henry K. Osterman, dated November 21, 1973, is before this Commission for review pursuant to 29 U.S.C. §   661(i).   That decision held that the respondent violated 29 U.S.C. §   654(a)(2) by failing to provide engineering controls to prevent employee exposure to excessive airborne concentrations of asbestos fibers in contravention of occupational health regulations published as 29 C.F.R. §   1910.93a(b)(1) and (3) and (c)(1).   The Judge assessed a penalty of $800.00.   We reverse these findings as the evidence does not establish that the respondent possessed the requisite knowledge of the violation.

The citation was issued on the basis of a chemical analysis of atmospheric samples that were collected on January 24, 1973, by one of the complainant's inspectors within the breathing zone of one of the respondent's machine operators.   The analysis indicated that the employee was exposed to airborne concentrations of asbestos fibers in excess of the permissible levels provided in 29 C.F.R. §   1910.93a(b)(1) and (3).

Prior to complainant's inspection, the respondent [*2]   had atmospheric tests conducted in the vicinity of the same machine in September 1970, July 1971, and October 1972.   The results of all three tests indicated that there was no asbestos contamination problem being caused by the machine. In October 1971, two of the complainant's representatives examined the second test report and expressed satisfaction therewith.   Furthermore, they commended the respondent for having conducted atmospheric tests on its own initiative.   The Judge determined that these tests had been conducted by a reputable and qualified testing laboratory and that the respondent was entitled to assume that the test results were accurate.   He therefore found that the respondent had exercised reasonable diligence to determine   whether violations existed before the inspection of January 24, 1973.   However, instead of vacating the citation, he reduced the categorization of the violation from serious, as charged in the citation, to nonserious and affirmed the violation as so modified.

Knowledge of the existence of a violation, either actual or constructive, is an essential element of any violation of the Act.   Secretary v. Mountain States Telephone & Telegraph   [*3]     Co., 2 OSAHRC 168 (1972). Therefore, the evidence must establish that the respondent knew or, with the exercise of reasonable diligence, should have known of the existence of the violation.

In the instant case, there is no evidence that the respondent had actual knowledge of the violation before the inspection. Although the Judge correctly found that the respondent in fact had previously exercised reasonable diligence to ascertain whether its machine was causing dangerous atmospheric conditions, his reduction in the severity of the violation was an inadequate remedy.

This case does not present a situation where the respondent can be held liable under the constructive knowledge theory for negligently failing to discover the existence of the violation.   To the contrary, the respondent made reasonable and diligent efforts to discover whether its employees were exposed to an atmospheric hazard and those efforts revealed that no hazard existed.   To find a violation of the Act on the basis of these facts would make employers the insurers of their employees' safety and health, something the Commission has previously held not to be intended by the Act.   Secretary v. Standard Glass   [*4]     Company, Inc.., 1 OSAHRC 594 (1972).

Accordingly, the citation for a violation of 29 C.F.R. §   1910.93a(b)(1) and (3) and (c)(1) and the penalty assessed therefor are vacated.   The remaining orders of the Judge are affirmed.  

CONCURBY: VAN NAMEE

CONCUR:

  VAN NAMEE, COMMISSIONER, concurring: I concur in the vacation ofthe citation.   In my opinion, noncompliance with a standard, of which the employer did not and could not have reasonably known, constitutes a non-serious violation.   CAM Industries, Inc., 7 OSAHRC 30, BNA 1 O.S.H.C. 1564, CCH E.S.H.G.   para. 17,373 (1974).   Such a violation, however, is technical in nature, and I have assented to the vacation of such citations when to find a violation would serve no useful purpose.   Butler Lime & Cement Co., 11 OSAHRC 819, BNA 2 O.S.H.C. 1209, CCH E.S.H.G. para. 18,704 (1974); Abdo S. Allen Co.,   That is the case here.

Respondent (Rockwell) operates a large industrial plant where brake shoes with linings containing asbestos are manufactured. In inspecting Rockwell's plant, Complainant sampled the air in several locations for asbestos fibers. In only [*5]   one location was it alleged that 29 C.F.R. 1910.93a (hereinafter "the asbestos standard" or "the standard") was violated.

The violation allegedly existed at the operator's station of grinder #048.   This machine was used to grind brake linings to their finished dimensions.   During the grinding process dust, containing asbestos fibers, was generated.   Prior to the inspection, Rockwell had installed a vacuum exhaust system to remove the dust at its source so that it would not escape into the air around the grinder. Tests conducted by Rockwell both before and after the inspection indicated that the system effectively removed the dusts so that exposure of the grinder operator to asbestos fibers was well within the limits permitted by the standard.

The asbestos standard contains a comprehensive program for controlling exposure of employees to asbestos. It establishes exposure limits for both an 8-hour time weighted average n1 and for a ceiling concentration. n2 If these limits are exceeded, engineering controls must be implemented to achieve compliance. n3 If engineering controls are not feasible, or while they are being implemented, respirators must be worn. n4 The exposure of all   [*6]   employees who may inhale asbestos fibers must be monitored at least every 6 months to determine whether the limits established by the standard are exceeded. n5

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n1 29 C.F.R. 1910.93a(b)(1)

n2 29 C.F.R. 1910.93a(b)(3)

n3 29 C.F.R. 1910.93a(c)(1)(i)

n4 29 C.F.R. 1910.93a(d)(1)

n5 29 C.F.R. 1910.93a(f)

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  The record establishes that, with respect to the operator's station at grinder #048, Rockwell had conducted the tests required by the standard.   Even prior to the promulgation of the asbestos standard, Rockwell had installed an exhaust system capable of maintaining the concentration of asbestos fibers well within the limits specified in the standard.   Thus, Rockwell had in fact complied with the specific requirements of the standard.   Under these circumstances, no purpose will be served in finding Rockwell in violation due to a single unexplained instance of overexposure at one location in a large plant.

In addition to being cited for violating the asbestos standard, Rockwell was charged with a violation of [*7]   29 1910.134(a)(2), n6 based on the fact that the operator of grinder #048 was not protected from overexposure to asbestos by a respirator. As noted above, however, the asbestos standard provides that respirators shall only be used while engineering controls are being implemented or when such controls are not feasible.   To hold that a respirator should have been worn in this case would mean that respirators would always have to be worn, regardless of whether effective engineering controls have been implemented, for it is always possible that an unpredictable breakdown or malfunction in such controls will lead to a temporary condition of overexposure.   Such a holding would be inconsistent with the asbestos standard, which specifies the use of respirators only as an interim measure or as a last resort.

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n6 This standard states:

Respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee.   The employer shall provide the respirators which are applicable and suitable for the purpose intended.   The employer shall be responsible for the establishment and maintenance of a respiratory protective program which shall include the requirements outlined in paragraph (b) of this section.

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DISSENTBY: CLEARY

DISSENT:

  CLEARY, COMMISSIONER, dissenting: I dissent.   The lead and concurring opinions fail to mention a material fact that was proved by the Secretary of Labor, and that when considered, changes the complexion of the case.

My colleagues note that Rockwell engaged an independent consulting firm to perform air quality tests in its plant and that   these tests revealed asbestos levels within the limits set by the standards at 29 CFR §   1910.93a(b)(1) and (b)(3).   They do not mention, however, that Rockwell manufactures more than one type of brake shoe lining and that the lining being manufactured on the day of the Secretary's inspection was different from that being manufactured while the independent tests were conducted.   During the Secretary's inspection, Rockwell was manufacturing a brake lining that required the grinder operator to remove nearly twice the amount of brake-lining material containing asbestos as is required in the production of the lining that was being manufactured during the independent tests.   The Secretary's compliance officer, a qualified industrial hygienist, testified [*9]   that heavy concentrations of dust and asbestos fibers were visible "in the atmosphere in that area surrounding grinder 048." Indeed, the presence of the visible particles was one of the reasons prompting the hygienist to take air samples in the breathing zone of the grinder operator.   It is not surprising that these tests revealed the presence of asbestos fibers within the employee's breathing zone in amounts that clearly establish a violation of the Act for Rockwell's failure to comply with the standards at 29 CFR §   1910.93a(b)(1), (3) and (c)(1).

A "serious" violation of the Act, as defined in section 17(k), is deemed to exist when (a) respondent has violated the Act by failing to comply with a validly promulgated standard, (b) this non-compliance creates a hazard that could result in injury to an employee, (c) there is a substantial probability that such an injury could result in death or serious physical harm, and (d) the knowledge requirement of section 17(k) has been satisfied.   Standard Glass & Supply Co., No. 585 (April 27, 1973); Automatic Elevator Corp., No. 1049 (July 20, 1973); Emory H. Mixon, No. 403 (December 11, 1973).

In this case, the results of   [*10]   the Secretary's air quality testing persuasively demonstrate respondent's failure to comply with the standards at 29 CFR §   1910.93a(b)(1), (3) and (c)(1).   Rockwell's failure to comply with the standards at issue exposed its employees to dangerously high concentrations of asbestos. Exposure to airborne asbestos in amounts above those limits set by   the Secretary's standards could result in the disease asbestosis. n7 Respondent, at the hearing, stipulated that there is a substantial probability that the disease asbestosis could result in death or serious physical harm. Thus, the only element of a serious violation left in doubt is the knowledge requirement.

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n7 Asbestosis is a lung disease caused by the inhalation of asbestos particles.   See Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 471 (D.C. Cir. 1974).

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Section 17(k) of the Act states, in pertinent part, that "a serious violation shall be deemed to exist . . . unless the employer did not, or could not with the exercise of   [*11]     reasonable diligence, know of the presence of the violation (emphasis added)." In Wabash Ry. Co. v. McDaniels, 107 U.S. 454, 460 (1883), Mr. Justice Harlan, speaking generally of the duty owed by employers to employees to provide safe working conditions, said:

. . . reasonable diligence implies, as between the employer and employee, such watchfulness, caution, and foresight as, under all the circumstances of the particular service, a corporation controlled by careful, prudent officers ought to exercise (emphasis added).

While these words by Mr. Justice Harlan were written some time ago and under different circumstances, his description of "reasonable diligence" is not without significance here because the identical term is involved.

"Reasonable diligence" dictates that Rockwell should have tested the air quality in its plant "under all circumstances" involving production of each type of brake shoe lining. Rockwell's failure to test the plant atmosphere for each of its manufacturing processes amounts to a lack of reasonable diligence.   Rockwell's sampling was simply not representative of conditions under all production conditions.

That an employer's readings [*12]   do not show an exceeding of the prescribed limit of the asbestos standard does not of course excuse a failure to comply with the standard that is otherwise reasonably foreseeable because of the different production conditions.   See Industrial Union Department, AFL-CIO v. Hodgson,   supra. Cf.   Brennan v. O.S.H.R.C. & Raymond Hendrix, d/b/a Alsea Lumber Co., No. 73-1938 (9th Cir., February 24, 1975).

I would find respondent in serious violation of the Act for its failure to comply with the standards at 29 CFR §   1910.93a(b)(1), (3) and (c)(1).

[The Judge's decision referred to herein follows]

OSTERMAN, JUDGE: This is a proceeding initiated by the Respondent, North American Rockwell Corporation, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq., (hereinafter the Act) to contest a Citation issued to Respondent on March 27, 1973 and amended on April 11, 1973.   A Notice of Proposed Penalty was issued on March 27, 1973.

The record disclosed that the original Citation charged Respondent with two Serious Violations on January 24, 1973, i.e., violation of 29 CFR 1910.93a(b)(1) and (3) and (c)(1) [failure to provide [*13]   engineering controls to prevent employee exposure to asbestos atmospheric contamination].   The abatement date for this item was fixed at May 31, 1973.   The second Serious violation charged Respondent with violation of 29 CFR 1910.134(a)(2) [failure to provide respirators].   The abatement date for this violation was fixed at April 27, 1973.   The total proposed penalty was in the amount of $800.00.   The Amended Citation extended the abatement date for the first violation from May 31, 1973 to October 31, 1973.   Notice of Contest was timely filed.   Thereafter on May 3d, 1973 the Secretary filed a Complaint.   Respondent's Answer was filed on May 15.   On May 2d, 1973 Local 274 of the U.A.W. representing the Respondent's employees filed a Notice of Contest directed against the Amended Citation which extended the abatement date from May 31, 1973 to October 31, 1973. n1 On motion filed by the Secretary both contests were consolidated for trial by order dated July 11, 1973.

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n1 At the hearing the Union's representative withdrew his challenge to the original abatement date and stipulated that the amended abatement date is reasonable.

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On the basic issue of whether or not, on January 24, 1973, the atmosphere within the breathing zone of the operator of grinder   number 048, was contaminated by asbestos fibers in excess of permissible levels, the record clearly sustains the allegations made by the Secretary of Labor.

Samples of the atmosphere in the operator's breathing zone of grinder 048 taken by an experienced technician on January 24th and tested by one Willard C. Dixon, a highly qualified chemist employed by the U.S. Public Health Service as an industrial hygienist disclosed the presence of asbestos fibers which exceeded the limits prescribed by 29 CFR 1910.93a.   Mr. Dixon's testimony is very persuasive.   Extended cross-examination by highly competent counsel for the Respondent did not in my view cast any doubt upon the validity of either the methods used to sample the atmosphere or Mr. Dixon's analytical findings.

With respect to the second alleged violation listed in the Citation issued to Respondent [failed to provide respirators in violation of 29 CFR 1910.134(a)(2)] the Respondent made no effort to refute this charge.   [*15]   The testimony of the Secretary's investigator, Mr. Knarr, who observed the operator of grinder 048 and of David Smith the operator of the grinder and of Mr. Vanderroest, Respondent's assistant Personnel Manager leaves no doubt that Respondent on January 24, 1973 failed to require the use of respirators.

The remaining issue for determination is whether the violation of 29 CFR 1910.93a was a "serious" violation within the meaning of Section 17k of the Act.   Section 17k defines a serious violation as one where there is

. . . a substantial probability that death or serious physical harm could result from a condition which exists . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. (Italics mine)

It is conceded by Respondent that the inhalation of asbestos fibers in excess of the levels prescribed by the regulation could result in a substantial probability of death or serious physical harm. The Respondent urges, however, that it did not know of the existence of this violation and, in fact, had received a clean bill of health from a reliable testing laboratory which had conducted several atmospheric tests [*16]   prior to the inspection which resulted in the issuance of the Citation.

  The record discloses that Clayton and Associates of Southfield, Michigan, acting at the request of the Respondent, had performed atmospheric tests in the vicinity of grinder 048 prior to the inspection on January 24, 1973.   The first such test was conducted in September 1970, a second in July or September 1971, and a third test was made in October 1972.   The results of these three tests, although not expressed in terms now required under the regulation, did not indicate the existence of an atmospheric contamination problem in the vicinity of grinder 048.   There is moreover some evidence that in October 1971 two representatives of the Occupational Safety and Health Administration examined and expressed satisfaction with the Clayton report.

Although the validity of the testing procedures used by Clayton and Associates were questioned by counsel for the Secretary it is my opinion that Respondent, having engaged a reputable and qualified testing laboratory to conduct these tests, was entitled to rely upon Clayton's expertise and entitled also to assume the accuracy of the test results obtained.   I conclude [*17]   therefore that the Respondent did exercise reasonable diligence in its efforts to determine whether violations existed prior to the inspection on January 24, 1973, and that consequently the said violations charged to Respondent should not be categorized as "serious" violations.

Having concluded that Respondent's violation of 29 CFR 1910.93a should not be classified as "serious" as defined by Section 17(k) of the Act the remaining question is whether or not the proposed penalty is appropriate under the circumstances herein.

Section 17(c) authorizes the imposition of civil penalties up to $1,000 for each non-serious violation.   Section 17(j) commands that, in assessing penalties, due consideration be given to the employer's size, the gravity of the violation, the good faith of the employer, and the history of previous violations.

The Respondent is a large multi-national corporation employed approximately 540 persons in its Ashtabula plant. In calculating the penalty proposed for the existing violations the Secretary took into consideration not only Respondent's size but also the gravity of the violations, the good faith of the Respondent   and Respondent's history of previous [*18]   violations.   I find that the penalties proposed are appropriate under the circumstances herein.

FINDINGS OF FACT

1.   Respondent, North American Rockwell Corporation, is a large multi-national corporation, which operates a plant which manufactures brake shoes in Ashtabula, Ohio.

2.   Respondent's brake shoe plant employs approximately 450 persons.

3.   Respondent regularly handles materials and products which move across state lines.

4.   On January 24, 1973 the Secretary of Labor, in response to a complaint, conducted an investigation of the Ashtabula plant which included the taking of atmospheric tests in the vicinity of Respondent's grinder No. 048.

5.   The said tests disclosed the presence of asbestos fibers within the breathing zone of the operator of grinder No. 048 which exceeded the safe limits established in 29 CFR 1910.93a(b)(1) and (3) and (c)(1).

6.   The presence in the atmosphere surrounding grinder No. 048 of asbestos fibers in excess of the limits established by 29 CFR 1910.93a created a condition in which there is a substantial probability of death or serious physical harm to an employee required to work in the area of the said grinder.

7.   The Secretary's investigation [*19]   also disclosed that Respondent failed to provide and require the use of respirators for the protection of its employees in the vicinity of grinder No. 048.

8.   Prior to the Secretary's investigation on January 24, 1973 Respondent on its own initiative had retained a reputable and independent testing laboratory to conduct atmospheric tests in the vicinity of grinder No. 048 for the purpose of determining the level of asbestos fibers in the atmosphere.

9.   During the period September 1970 through October 1972 three such tests were conducted.   The results of these tests did not disclose the presence of asbestos fibers in the atmosphere surrounding grinder No. 048 in excess of the permissible limits established by 29 CFR 1910.93a.

  10.   Respondent's initiative in providing for atmospheric testing prior to January 24, 1973 was an exercise of reasonable diligence intended to determine the existence or non-existence of a violation of the atmospheric health and safety standards established by the Secretary.

11.   On the basis of the test results submitted by Respondent's independent testing laboratory Respondent was justified in assuming that no violation existed in the vicinity [*20]   of grinder No. 048 prior to January 24, 1973.

12.   The penalty of $800 proposed by the Secretary for the violations which existed on January 24, 1973 is a reasonable penalty and was properly calculated after due consideration had been given by the Secretary to the criteria established in Section 17(j) of the Act.

CONCLUSIONS OF LAW

1.   Respondent, a corporation, is an "employer" engaged in "commerce" as those terms are defined by Section 3 of the Act.

2.   Respondent is thus subject to the health and safety regulations established by the Secretary of Labor pursuant to the Act for the protection of Respondent's employees.

3.   On January 24, 1973 Respondent was in violation of 29 CFR 1910.93a(b)(1) and (3) and (c)(1).

4.   Although the violation of 29 CFR 1910.93a was one which could result in death or serious physical harm to Respondent's employees, the violation must be treated as a non-serious violation because Respondent had, prior to the Secretary's inspection on January 24, 1973, made reasonable and diligent efforts to determine whether or not a violation existed and because Respondent was entitled to rely upon test results which failed to disclose the existence of dangerously [*21]   high concentration of asbestos fibers in the atmosphere surrounding grinder No. 048.

5.   Because the tests performed by Respondent's testing laboratory did not prior to January 24, 1973 disclose the presence of harmful contaminants in the atmosphere surrounding grinder No. 048, the provisions of 29 CFR 1910.134(a)(2) did not come into play.   Hence, Respondent cannot be held to have been in violation of this regulation on the date of inspection.

  6.   The penalty proposed by the Secretary for Respondent's violation of 29 CFR 1910.93a is valid and appropriate under the circumstances herein and fully in accord with the requirements of Section 17(j) of the Act.

ORDER

Pursuant to Section 10 of the Act and Rule 66 of this Commission's Rules of Procedure it is ORDERED:

1.   That the violation charged in Item 1 of the Citation, as amended [29 CFR 1910.93a) be, and the same hereby is, reduced to the status of a "non-serious" violation and AFFIRMED in all other respects.

2.   That the violation charged in Item 2 of the Citation, as amended [29 CFR 1910.134(a)(2)] be, and the same hereby is, VACATED.

3.   That the penalty of $800 proposed by the Secretary for the violation of 29   [*22]   CFR 1910.93a be, and the same hereby is, AFFIRMED.

4.   The Motion to Strike filed by Local 274, U.A.W. on October 10, 1973 is DENIED.