OSHRC Docket No. 79-3831


Before:  BUCKLEY, Chairman; and CLEARY, Commissioner.

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C 661(i), section 12 (j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulator functions. See section 10(c) of the Act, 29 U.S.C. 659(c).

The issues on review are whether the Secretary proved the certain violations of the asbestos standard, 29 C.F.R. 1910.1001, were willful, and whether a provision of the asbestos standard that requires employers to "provide" certain equipment to employees requires that employers enforce the use of the equipment.  Chairman Buckley and Commissioner Cleary agree that, with respect to several citation items, the decision of Administrative Law Judge Foster Furcolo is correct and should be affirmed.  On the remaining items, the two Commissioners [[1]]are divided.

Item 2(a) - (c), 4(b) and 5: Respirators, Special Clothing,
Fiber Accumulations and Medical Examinations.
Items 2(a) and (b) allege that a respirator used by an employee was not approved for use with asbestos and that there was no respirator program, contrary to sections 1910.1001(d)(2) and (d)(2)(iv)(a).  Item 2(c) alleges that Asbestos Textile failed to provide and require the use of special protective clothing, contrary to section 1910.1001(d)(3).  Item 4(b) alleges that the company failed to free the plant of accumulations of asbestos, contrary to section 1910.1001 (h)(1).  Item 5 alleges a failure to provide comprehensive medical examinations to employees within 30 days of the beginning of their employment, contrary to section 1910.1001(j)(2).  The only question that the members will review with respect to these items is whether the violations were willful. [[2]]  Chairman Buckley and Commissioner Cleary agree that they were not willful and affirm the judge's decision.

To establish that a violation was willful, the Secretary must show that it was committed with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety.  See, e.g., D.A. & L. Caruso, Inc., 84 OSAHRC /, 11 BNA OSHC 2138, 2142, 1984 CCH OSHD 26,985, p. 34,694 (No. 79-5676, 1984); Duquesne Light Co., 84 OSAHRC ,11 BNA OSHC 2033, 2040, 1984 CCH OSHD 26,959, p. 34,603 (No. 79-1682, 1984), pets. for rev. filed, Nos. 84-3520 & 84-3538 (3d Cir. Aug. 20 & 28, 1984).  It is not enough for the Secretary simply to show carelessness or a lack of diligence in discovering or eliminating a violation; nor is a willful charge justified if an employer has made a good faith effort to comply with a standard or eliminate a hazard even though the employer's efforts are not entirely effective or complete.  Marmon Group Inc., 84 OSAHRC / ,11 BNA OSHC 2090, 1984 CCH OSHD 26,975 (No. 79-5363, 1984), pet. for rev. filed, No. 84-2193 (8th Cir. Sept. 17, 1984), citing Mobil Oil Corp., 83 OSAHRC / , 11 BNA OSHC 1700, 1983 CCH OSHD 26,699 (No. 79-4802, 1983).

With respect to the respirator violations, the mixer-- the only employee required to wear a respirator--had been told that asbestos dust is harmful.  He had been ordered to wear a respirator and did so.  He replaced the filters and washed the respirator regularly.  The plant manager acknowledged that there were no written procedures for the use of respirators, but he knew that the mixer was experienced in its use and that the mixer took new filters from the office twice weekly.  The plant manager had discussed the use of respirators with the mixer, had suggested the replacement of the inlet valve, and had never seen the mixer not wearing the respirator when it should have been worn.  The plant manager had read the written material provided with the respirator and concluded--albeit erroneously--that it was approved for use with asbestos.   Both Commissioners agree that these facts do not show that the company intentionally disregarded the requirements of the standards or was plainly indifferent to employee safety.

Similarly, with respect to the protective clothing and accumulation violations, the evidence fails to show willfulness.  The mixer did wear boots and protective gloves and had been provided with five sets of work uniforms.  So far as this record shows, only a head covering was missing.  The accumulation violation in item 4(b) stemmed from the company's failure to clean up small amounts of asbestos that had fallen out of torn bags and that had been present on some unused machinery.  As the judge noted, however, the employer did have housekeeping procedures, which included twice-weekly vacuuming and the immediate taping of torn bags.  While the employer's program was not all it should have been, its shortcomings were not shown to have stemmed from intentional disregard of the asbestos standard or plain indifference to employee safety.

Finally, the Commissioners agree with the judge that the medical examination violation was not willful.  The standard requires in part that medical examinations, including pulmonary function tests and chest X-rays, be given within 30 days from the first date of employment in an occupation exposed to asbestos.  Although medical examinations were as a rule given to employees within 30 days of employment, one examination was given after 40 days and another after approximately 90 days.  In addition, pulmonary function tests were not given to a small number of employees as part of the initial examination.  Asbestos Textile has a high turnover rate among its employees.  The plant has only eight to ten production employees at any one time, but in one year it hired eighty persons to fill those positions.  Also, arranging pulmonary function tests is difficult because the tests must be given at a physician's office 25 miles from the plant.  Under these circumstances, the Commissioners do not find that the company willfully violated the standard.

Accordingly, the judge's decision is affirmed as to items 2(a), 2(b), 2(c), 4(b), and 5.

Items 1(a) - (d) and 3(a): Asbestos Exposure, Dust Controls and Monitoring

Items 1(a) and (b) alleged that an employee of Asbestos Textile was overexposed to asbestos fibers when measured on eight-hour time-weighted average and ceiling bases, contrary to 29 C.F.R. 1910.1001(b)(2) and (3).  Items 1(c) and (d) alleged a lack of engineering controls for asbestos and a lack of wetting, enclosure or ventilation to hold down dust levels when asbestos was emptied from bags, contrary to sections 1910.1001(c)(1)(i) and (c)(2)(ii).  Asbestos Textile does not dispute, and the administrative law judge found, that these violations occurred.  The only issue on review with respect to these items is whether the judge correctly found that the violations were not willful.

In finding that the violations were not willful, the judge noted that the Secretary had relied on references in the testimony to a letter from the employer's insurance carrier that is said to have suggested monitoring for asbestos, but that the letter had never been introduced into evidence and its exact contents had been "left to speculation."  The judge also found that none of the employer's management personnel knew that any standard was being violated.  The plant manager had specifically testified that he was unaware of any violations and the compliance officer conceded that the plant manager did not believe that the situation was hazardous.   The judge also found that the plant manager had taken steps to alleviate the asbestos hazard by taping torn bags of asbestos and vacuuming twice a week to remove accumulations of asbestos dust.

The Secretary argues that the judge's finding should be overturned because, despite the company's history of previous asbestos violations, the plant manager had not been adequately instructed in the requirements of the asbestos standard.

The Commission members are divided on the willfulness issue. Chairman Buckley would affirm the judge's disposition.  In addition to the judge's findings, Chairman Buckley would note that Mr. Gatke, Asbestos Textile's chief operating officer and vice-president of the corporate parent company, had arranged to inform the new plant manager of the requirements of the asbestos standard.  Mr. Gatke had retained the former plant manager as a paid adviser and instructed him to train his successor in the requirements of the OSHA standards.  Cf. Georgia Electric Co. v. Marshall, 595 F.2d 309, 319-20 (5th Cir. 1979) (no effort to acquaint employees with standards).  There is no evidence that Mr. Gatke knew that the new plant manager had been inadequately informed of the standard's requirements, nor can it be said that Mr. Gatke's failure to inquire whether that task was carried out amounted to intentional disregard of the requirements of the Act or plain indifference to employee safety.  The record also shows that the company's insurance carrier did at least some monitoring for asbestos exposure and furnished dust counts to Mr. Gatke.  Mr. Gatke had also planned to have the new manager formally trained in asbestos monitoring techniques.  The previous violations on which the Secretary relies for the willful allegation concerned a different building and industrial operation, which had been closed when the present violations occurred.  When the same operations cited here had been inspected in 1974 by OSHA, no citations for asbestos violations were issued.  Finally, Chairman Buckley notes that Asbestos Textile's conduct as a whole reveals that it did not intentionally disregard its responsibilities under the Act and was concerned about employee safety.  The company furnished a respirator to the single affected employee, provided comprehensive and timely medical examinations to nearly all plant employees, taped torn bags of asbestos, instituted a weekly vacuuming program to remove dust accumulations, and provided protective clothing and separate clothing lockers.  Though some of these steps may not have been in technical compliance with all aspects of the standard, Chairman Buckley finds that they indicate that Asbestos Textile was not plainly indifferent to the safety of its employees. He would therefore affirm the judge's finding that these violations were not willful.

Commissioner Cleary would overturn the judge's finding and characterize the violations as willful.  A key provision of the asbestos standard, the provision that must be followed if dust control is to be intelligently achieved, is the initial monitoring provision.  It requires that, after its 1972 effective date, "every place of employment where asbestos fibers are released . . . be monitored in such a way as to determine whether every employee's exposure to asbestos fibers is below the [exposure] limits . . . ." It then states that "[i]f the limits are exceeded, the employer shall immediately undertake a compliance program . . . ." (Emphasis added.)   Asbestos Textile admits that it never undertook initial monitoring in the rubber department and did not implement dust controls.  These omissions took place despite the clear language of the standard, the company's long history of litigation under the standard,[[3]] and the fact that in 1979, when this litigation arose, its rubber building was processing large amounts of asbestos in ways that openly exposed employees to asbestos dust.[[4]]

The employee who worked most closely with the asbestos was the mixer.   This employee, whose work was familiar to Mr. Gatke, each day slit open about twenty five, one hundred pound bags of raw asbestos and shook out the contents into a mixing machine. Visible clouds of dust were created.  The plant manager possessed no monitoring results, though an OSHA industrial hygienist testified that the plant manager showed her a letter from an insurance company recommending monitoring for asbestos exposure in accordance with OSHA requirements.  However, the plant manager had never been trained in monitoring and he was unaware of the requirements of the OSHA standard.   He had been on the job for only six months and had no previous experience with asbestos.  His predecessor had told him nothing of the standard's requirements.   Mr. Gatke never checked whether his new plant manager was informed of the requirements of the OSHA standard though he had recently visited the plant for about a week.  He knew that the new plant manager had never been trained to monitor asbestos levels, for he had delayed training him for half a year. Though Mr. Gatke had received dust counts, he had no idea whether they showed that the exposure limits had been exceeded or even whether the dust samples were taken in the rubber department.  He had made no effort to determine whether the company had sampled the air in the rubber department.   Under these circumstances, Commissioner Cleary would conclude that the monitoring, overexposure, engineering control, and work practice control violations indicate plain indifference and an intentional disregard of the asbestos standard.

Item 2(d):  Double Clothing Lockers
The Secretary claims with respect to item 2(d) that Asbestos Textile did not require employees to use the two separate clothing lockers that it had provided to each of them.   Section 1910.1001(d)(4)(ii) requires employers to "provide two separate lockers or containers for each employee, so separated or isolated as to prevent contamination of the employee's street clothes from his work clothes."  The administrative law judge, relying on then-outstanding Commission and circuit court precedent, held that the standard imposes no duty on the employer to require employees to use the clothing lockers.  See Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977), aff'g 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976-77 CCH OSHD 20,860 (No. 5958, 1976).  A subsequent Commission decision, on which the Secretary relies to argue that the judge's disposition should be reversed, rejected the previous Commission view and declined to follow the Tenth Circuit decision in Kennecott, holding instead that "a standard that requires an employer to provide a safety device implicitly requires the device to be used."  See Borton, Inc., 82 OSAHRC 17/E13, 10 BNA OSHC 1462, 1982 CCH OSHD 25,983 (No. 77-2115, 1982) [[5]]

Chairman Buckley would affirm the judge's disposition.  He agrees with the Tenth Circuit decisions in Kennecott and Borton, and with Commission precedent prior to the Commission decision in Borton, that standards that require an employer to provide equipment to employees do not implicitly require that the employer force employees to use it.  The word "provide" is not ambiguous; it plainly means "supply," "furnish" and "equip."[[6]]  The term is not normally understood to imply "use" and dictionary definitions do not suggest such a connotation.  Closely-related provisions in the asbestos standard demonstrate that the word was not employed to impose a "use" requirement.  Section 1926.1001(d)(3) requires that employers both "provide, and require the use of, special clothing . . . ." Yet, the cited standard and another change room standard, section 1910.1001(d)(4)(i), use only the word "provide."  This choice of words in the asbestos standard evidently reflects a deliberate policy choice by the Secretary,[[7]] which the Commission as an adjudicative body has no authority to overrule.[[8]]  Chairman Buckley would therefore affirm the judge's decision and hold that Asbestos Textile was not required by the standard to enforce the use of double clothing lockers by its employees.

Commissioner Cleary adheres to the Commission precedent in Borton.   Although he will ordinarily defer to the view of a court of appeals, this question is still open in almost all of the circuits and this case does not arise in the Tenth Circuit.  Commissioner Cleary agrees that if the drafter of a standard clearly expresses an intention to distinguish between providing equipment and enforcing its use, the Commission would be required to construe the standard accordingly.  But in the absence of such a clearly-expressed intention, a standard should be construed so as to best protect employees and effectuate the congressional intention of placing final responsibility for workplace safety and health on employers.  See Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974) (reviewing legislative history).  There is no expressed intention to shift responsibility to employees here.  The words of the standard are not a reliable guide to the Secretary's intent because, as a perusal of all of section 1910.1001 shows, the standard was not drafted to sharply distinguish between the provision and use of safety equipment.  A duty to provide equipment would be a nullity if it were unaccompanied by use, and a duty to require use is implied.   Finally, Commissioner Cleary notes that the preamble to the standard does not suggest that the Secretary intended to not require use of double lockers.  Such a reading would be at odds with the purpose of the standard--to prevent the contamination of employees' street clothing--and would assume that the Secretary was indifferent to whether clothing was stored separately.

Under section 12(f) of the Act, 29 U.S.C. 661(e), official action can be taken by the Commission with the affirmative vote of two members.  To resolve their impasse and permit a resolution of this case, the members affirm the judge's decision with respect to items 1(a), 1(b), 1(c), 1(d), 2(d) and 3(a) but accord this affirmance the precedential value of an unreviewed judge's decision.  See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).  They also affirm the judge's decision with respect to items 2(a), 2(b), 2(c), 4(b) and 5.


Ray H. Darling, Jr.
Executive Secretary

DATED:  OCT 31 1984

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[[1]] As established by the Act, the Commission is composed of three members.   Section 12(a), 29 U.S.C. 661(a).  Currently, the Commission has two members as a result of a vacancy.

[[2]] The employer had argued to the judge that the violations alleged in items 2(c) and 4(b) were not proven and were in any event not shown to have been willful. As to items 2(a), 2(b) and 5, Asbestos Textile argued only the willfulness issue.   The judge affirmed the items because he found that the standards had been violated but he vacated the "willful" characterizations.  The employer did not file a petition for discretionary review of the judge's affirmance of the items.  The Secretary did file a petition, claiming that the violations were willful.  A similar course of events occurred for the other items on review, except item 2(d) where the Secretary asked that the judge's vacation of the item be reversed.  The only issues raised in the direction for review and briefed by the parties were those raised in the petition.  Under these circumstances, the Commissioners have limited review to the items briefed.

[[3]] In 1972, it was cited for violating eight provisions of the asbestos standard in its textile operation, including the engineering control requirement and the exposure limits.   Although it did not contest the citations, it later obtained two abatement extensions, one of which was "reluctantly" granted by a judge who noted that the employer "did not get down to business" in procuring engineering controls.   In 1974, another set of citations alleged eight more asbestos violations, two of them for lack of monitoring; some violations were alleged to have been "repeated."  These citations too were uncontested, and follow-up inspections by OSHA revealed that conditions cited in both 1972 and 1974 had never been corrected, including the 1972 engineering control violation for which the company had received two abatement extensions.  A settlement was reached requiring certain abatement efforts.  In 1975, OSHA re-inspected yet again and proposed additional penalties of $10,500 for the company's failure to abate the 1972 engineering control violation but a judge assessed no penalties because the company's abatement efforts, however inadequate, were in technical compliance with the 1974 settlement.  The company finally closed its textile operation because it could not afford to comply with the asbestos standard.

[[4]] Asbestos Textile's brief relies heavily on the fact that when OSHA inspected the rubber department in 1974, it issued no citations for asbestos violations.   The brief suggests that the company was thus led to believe that the rubber department was in compliance with the asbestos standard.  Commissioner Cleary would reject the argument.  First, no witness testified that the lack of citations for asbestos violations in 1974 was taken to mean that the company was in compliance.   Second, the evidence strongly suggests that the company understood that 1974 inspection was a safety inspection only.  That inspection resulted in the issuance of citations for violations of safety standards; Mr. Gatke testified that he understood that industrial hygienists conduct inspections for violations of health standards and conceded that he did not recall if an industrial hygienist had inspected the rubber department in 1974 or if air samples were taken then.

[[5]] After the Secretary submitted his review brief in this case, the Commission decision in Borton was reversed by the Tenth Circuit.  734 F.2d 508 (10th Cir. 1984).

[[6]] See Webster's Third New International Dictionary 1827 (1977); Random House Dictionary 1157 (1971).

[[7]] See also provisions of the recently-adopted ethylene oxide standard, section 1910.1047(g) (1) ("provide" respirators and "ensure that they are used"), (g)(4) (same as to clothing), (i)(1)(i)(B) and (i)(2)(i) (make medical examinations "available"), published at 49 Fed. Reg. 25734, 25796-98 (1984); and the new hearing conservation standard, section 1910.95(l)(1) (make hearing protectors "available" when noise above 85 dB), and (l)(2) ("ensure that hearing protectors are worn" under specific circumstances).  See 46 Fed. Reg. 42622, 42629 (1981) and 46 Fed. Reg. 4078, 4111, 4151-2 (1981), for a discussion of the reasons for the difference.

[[8]] Lisbon Contractors Inc., 84 OSAHRC, 11 BNA OSHC 1971, 1973-74, 1984 CCH OSHD 26,924, p. 34,500 (No. 80-97, 1984); Moore Petroleum Service Co., 84 OSAHRC , 11 BNA OSHC 2205, 1984 CCH OSHD 27,024 (No. 81-2529, 1984) (lead opinion).