BALDWIN INDUSTRIES, INC.; R. T. VANDERBILT COMPANY

OSHRC Docket No. 78-741

Occupational Safety and Health Review Commission

March 31, 1982

[*1]

Before ROWLAND, Chairman; CLEARY, Commissioner. *

* Commissioner Cottine took no part in the consideration or decision of this case.

COUNSEL:

Office of the Solicitor, USDOL

George D. Palmer, Assoc. Reg. Sol., USDOL

Guy F. Driver, Jr., for the employer

OPINION:

ORDER

BY THE COMMISSION:

The Secretary of Labor alleges that Baldwin Industries, Inc. ("Baldwin") committed nonserious violations of various provisions of the OSHA asbestos standard at 29 C.F.R. 1910.1001. n1 The Secretary contends that NYTAL 200, an industrial talc produced by the Intervenor, R.T. Vanderbilt Company ("Vanderbilt"), and used by Baldwin, contains asbestos fibers, and that Baldwin was therefore required to affix caution labels to containers of NYTAL 200, monitor its workplace for asbestos fibers, and provide medical examinations for employees exposed to airborne asbestos fibers. Administrative Law Judge George O. Taylor, Jr. found that NYTAL 200 does contain asbestos fibers, but he vacated the citation because he concluded that Baldwin did not and could not, with reasonable diligence, know of the presence of asbestos fibers in the talc.

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The cases are hereby severed for decisional purposes. Commission Rule 10, 29 C.F.R. 2200.10.

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Both participating members conclude that the judge's finding that NYTAL 200 contains asbestos fibers is supported by the preponderance of the evidence. They are divided, however, on whether the judge correctly found that Baldwin did not and could not, with reasonable diligence, have known of the presence of asbestos fibers in the talc. Chairman Rowland would adopt the judge's reasoning on this question and he notes that, in the absence of either actual or constructive knowledge of this fact on Baldwin's part, the citation is properly vacated. Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD P25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981 CCH OSHD P25,345 (No. 13732, 1981).

Commissioner Cleary agrees that an employer's actual or constructive knowledge must be shown in order to sustain the finding of a violation. He would find, [*3] however, that Baldwin had the requisite knowledge in this case. Thus, in Commissioner Cleary's view, had Baldwin exercised reasonable diligence it could have known that NYTAL 200 contains asbestos fibers.

Commissioner Cleary would further conclude that Baldwin committed nonserious violations of 29 C.F.R. 1910.1001(f)(1), 1910.1001(g)(2)(i), and 1910.1001(j)(2). Because its employees were exposed to measurable concentrations of airborne asbestos fibers, Commissioner Cleary concludes that [*4] Baldwin violated the monitoring and medical examination provisions of sections 1910.1001(f)(1) and 1910.1001(j)(2) under the interpretation of those standards set forth by the Commission in Research-Cottrell, Inc., 81 OSAHRC 26/B13, 9 BNA OSHC 1489, 1981 CCH OSHD P25,284 (No. 11756, 1981). He would further find that Baldwin violated section 1910.1001(g)(2)(i) by not affixing caution labels to bags containing NYTAL 200.

In order to resolve the impasse created by their differing views on the appropriate disposition of the case, the two participating members agree to vacate the direction for review. See Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD P24,634 (No. 77-3040, 1980). This disposition results in the judge's decision becoming the final order of the Commission. n2 29 U.S.C. 661(i).

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n2 Because Baldwin is not aggrieved by this disposition, we deny its motion to reopen the record without deciding whether reopening of the record would otherwise be appropriate under the circumstances of this case.

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Accordingly, the direction for review is vacated. SO ORDERED.