“SECRETARY OF LABOR.Complainant,v. AMERICAN STERILIZER CO.,Respondent.U.A.W. LOCAL 832,Authorized EmployeeRepresenative.OSHRC DOCKET NO. 86-1179DECISIONBefore: FOULKE, Chairman, WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:At issue in this case is whether the American Sterilizer Company(\”Amsco\”) violated the monitoring requirements of the noise and leadstandards issued by the Secretary’s Occupational Safety and HealthAdministration (\”OSHA\”).The facts are stipulated. At its Erie, Pennsylvania plant, Amsco allowedemployees who were being monitored for exposure to noise and lead toobserve each step in the monitoring process. It further providedmonitored employees with a full explanation of the procedures and theirpurpose \”[a]t the start of the monitoring and at various stepsthroughout.\” In most cases, other affected employees–those who workedin the specific area job classification and shift involved–were awarethat monitoring or testing was taking place. These affected employeeswere also allowed to observe the monitoring, and their questions wereanswered. [[1]] However, based upon its past practice, Amsco declined topermit any union representative in his or her official capacity [[2]] toobserve noise or lead monitoring, despite the union’s standing requestto be present.Following a complaint by officials of Local 832 of the UnitedAutomobile, Aerospace and Agricultural Implement Workers of America(\”U.A.W.\” or \”the union\”), the authorized employee representative forcollective bargaining purposes, OSHA inspected the Erie plant. OSHAsubsequently cited Amsco for nonserious violations of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”) forfailing to comply with the observation of monitoring provisions of 29C.F.R. ?? 1910.95(f) [[3]] and 1910.1025(o)(1). [[4]] The partiesstipulated that during the six months covered by the citation, Amsco hadconducted air lead level monitoring in the plant on seven days, andnoise level monitoring on four days. [[5]]Administrative Law Judge David Knight ruled that Amsco’s decision not topermit a union representative to observe the monitoring violated theobservation requirements of both cited standards. For the reasons givenbelow, we also find that Amsco’s policy violated these requirements. Nopenalties were proposed by the Secretary, and we hold that none arewarranted in this case.*I. Whether it is the employee’s right, or the employer’s right, todesignate a monitoring observer*The basis of the citation is Amsco’s refusal, based on its policy, topermit a union representative to observe the monitoring. Amsco arguesthat its refusal was permissible under the cited standards. Bothstandards provide in essence that \”the employer shall provide affectedemployees or their designated representatives an opportunity to observeany monitoring of employee exposure\” conducted pursuant to those standards.We hold that Amsco violated the standards, because it interfered withthe employees’ qualified right to designate a monitoring observer. Weneed not, and do not, determine in this case how employees who have anauthorized employee representative for collective bargaining purposeswill interact with that representative in designating the monitoringobserver. In that regard, the relationship between the employees andtheir union goes beyond the scope of the Act.By way of background, the cited standards were promulgated under theauthority of section 8(c)(3) of the Act, 29 U.S.C. ? 657(c)(3), whichprovides that: The Secretary, in cooperation with the Secretary of Health and Human Services shall issue regulations requiring employers to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under section 6 of this Act. Such regulations shall provide employees or their representatives with an opportunity to observe such monitoring or measuring, and to have access to the thereof…\/Id\/. (emphasis added). The legislative history of the Act does notdiscuss how that opportunity is to be provided. However, the SenateCommittee Report indicates that section 8(c)(3) was designed for theprotection of employees: Since such exposure [to potentially toxic materials and harmful physical agents] is a matter of crucial concern to affected employees, provision is also made for employee observation of such monitoring and for employee access to the records thereof…S. Rep. No. 91-1282. 91st Cong., 2d Sess.17 (1970), reprinted in 1970U.S. Code Cong. & Admin News 5177.5194.*a. The HCA Preamble*The Preamble to the Hearing Conservation Amendment (\”HCA\”), which is theorigin of section 1910.95(f), [[6]] indicates that the Secretaryconsidered it to be the right of employees to choose whether to observethe monitoring personally or through a representative, subject to thequalification that unreasonable interference with production or themonitoring process would not be allowed. The hearing conservation amendment requires employers to provide monitored employees or their representatives an opportunity to observe any noise exposure measurements that are conducted for compliance with the amendment. Employees may desire to have someone else observe the monitoring, such as a union health and safety representative. Under certain circumstances, an outside professional may be allowed to observe…. …….. The Agency understands that in some circumstances a cessation of work might cause the noise levels to change [due to a large number of employees stopping work to observe the monitoring], and it would not be in the interest of either the worker or the employer to take measurements under conditions that did not reflect the employee’s true exposure. For reasons such as these, the amendment (as did the proposal) specifics that observation shall be permitted so long as it does not interfere with the monitoring process. OSHA does not expect that employee observation of monitoring will be disruptive of the production process or the monitoring itself. While the precise method in which this employee right is exercised will vary from workplace to workplace, it is expected that, in most cases, employees will select a single representative to act as an observer… It has been OSHA’s experience in the context of other health standards that the observation of monitoring by a representative employee successfully implements this provision without undue disruption. In any event the employee right to observe monitoring must be tempered with [a] \”standard of reasonableness,\” and observation which seriously disrupts production or the sampling itself in not permitted.Occupational Noise Exposure, Hearing Conservation Amendment: Final Rule,46 Fed. Reg. 4078.4155-56 (1981) (emphasis added). *b. Amsco’s contentions*Amsco’s makes a number of arguments to the effect that the HCA should beread to permit it to freely deny a union representative the opportunityto observe the monitoring. We must reject Amsco’s arguments. The SupremeCourt has specifically held that the Secretary’s interpretation of OSHAregulations are entitled to deference, if reasonable: In situations in which \”the meaning of [regulatory] language is not free from doubt,\” the reviewing court should give effect to the agency’s interpretation so long as it is \”reasonable,\”…Because applying an agency’s regulation to complex or changing circumstances calls upon the agency’s unique expertise and policymaking authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.Martin v. OSHRC (CF & I Steel Corp.), 111 S. Ct. 1171, 1176 (1991)(citations omitted). Moreover, the Commission has held that where astandard is susceptible to different interpretations, \”the permeable isthe best and most authoritative statement of the Secretary’s legislativeintent.\”Phelps Dodge Corp., 11 BNA OSHC 1441, 1444, 1983-84 CCH OSHD ?26,552, pp. 33,920-21 (No. 80-3203, 1983) aff’d, 725 F.2d 1237, 124099th Cir. 1984). In the HCA Preamble, the Secretary interpreted the HCAmonitoring observation requirements to give the effected employees thequalified right to determine who the monitoring observer will be. Wehold that the Secretary’s interpretation is reasonable, considering thequalification it puts on that right, to prevent unreasonable disruption.Amsco argues specifically that the use of the term \”‘or\” in the citedstandards gives them the \”plain meaning\” that the employer has thechoice of whether, the employees or their representatives\” shall haveopportunity to observe. Amsco relies on L.E. Myers Co., 12 BNA OSHC1609, 1612 n.6, 1986-87 CCH OSHD ? 27,476, p. 35,602 n.6 (No. 82-1137,1986) (term \”or\” normally disjunctive, rather than conjunctive like term\”and\”), rev’d on other grounds, 818 F.2d 1270 (6th Cir. 1987), cert.denied, 484 U.S. 989 (1987). However, the word \”or\” does not resolve theissue of who has the right to designate an observer even assuming that\”or\” has its normal disjunctive meaning. The language of the standarddoes not have the \”plain meaning\” that Amsco urges.Assuming for purposes of argument that the standard’s language is not\”free from doubt,\” because of the use of the disjunctive term \”or,\” theCF & I case, quoted above, makes clear that the Secretary’sinterpretation of it should be given effect, so long as thatinterpretation is reasonable. The Secretary’s statements in the HCAPreamble reasonably resolve ambiguity as to what the HCA provision wasintended to require in this regard. Thus, Amsco’s arguments based on theword \”or\” in the standards are rejected.Amsco asserts that \”since both the Act and the standards areperformance-oriented and favor allowing employers the flexibility toachieve compliance in the most efficient manner, these standards permitthe employer to determine whether, in a given situation, the employeesor their representatives should observe monitoring.\” (Emphasis inoriginal). Amsco argues that this conclusion is supported by thePreamble to the Secretary’s 1983 revisions to the HCA. OccupationalNoise Exposure: Hearing Conservation Amendment: Final Rule, 48 Fed. Reg.9738 (1988).The 1983 Preamble states that the revisions were designed to be moreperformance oriented and to give the employer sufficient flexibility toadapt a program suited to the unique needs of the particular workplace.48 Fed. Reg. at 9741 (1983). [[7]] However, the Secretary’s generalcomments there do not change the previous interpretation of section1910.95(f) set forth in the original HCA Preamble, and that section wasnot modified in the 1983 revisions. 48 Fed. Reg. at 9777. During thatrevision process, OSHA’s only comments on the provision cited here wereconsistent with the original Preamble. Those comments were made whenOSHA lifted the administrative stay on that provision on August 21,1981. 46 Fed. Reg. 42,622 (1981). OSHA stated that: Some comments expressed concern that allowing employees to observe monitoring would disrupt production because employees would leave their work stations en masse to watch the procedure. It has not been OSHA’s experience that employee observation of monitoring is disruptive since in most cases a representative of the employees acts as an observer.46 Fed. Reg. at 42,624. [[8]] Thus, the Secretary has not changed theinterpretation of the HCA monitoring observation provision contained inthe original HCA Preamble.Amsco argues in addition that allowing union representatives to leavetheir jobs in other parts of the plant in order to observe monitoringcould he more disruptive than allowing the affected employees toobserve. It notes that many types of monitoring, including leadmonitoring, must be done over an entire shift. [[9]] As a result, Amscoargues, plant production could be adversely affected if a unionrepresentative had a right to leave his job at the plant and stay at themonitoring site throughout the monitoring. Amsco also identifies eightstandards in addition to the noise and lead standards that have similarobservation requirements. [[10]] Thus, it argues, allowingrepresentatives who work elsewhere the plant to observe monitoring couldhave a great impact on employers who must monitor under a number ofthose standards.The stipulated facts, though extensive nonetheless do not address thequestion of whether there were disruption problems in Amsco’s plant.Even there were a disruption problem of the kind that Amsco suggests, itwould have a right to prevent unreasonable interference with production,or the monitoring itself, under the Secretary’s interpretation. There isno indication that Amsco could not deal effectively with a disruptionproblem under the Secretary’s interpretation.Amsco further argues that it should not be required to provide employeerepresentatives an opportunity to observe its monitoring, because italready is required to give individual employees a great deal ofinformation about noise and lead hazards under the noise and leadstandards. However, that argument challenges the wisdom of the standard,rather than its legality. Amsco has not established that the standard,as the Secretary interprets it, is invalid. Clearly, Amsco’s argumentprovides no basis for vacating the item. E.g., Austin Engg. Co., 12 BNAOSHC 1187, 1188, 1984-85 CCH OSHD ? 27,189, p.35,099 (No. 81-168, 1985)(Commission lacks power to question wisdom of a standard). See, e.g.,Associated Builders and Contractors, Inc. v. OSHA, 862 F.2d 63, 68 (3dCir. 1988) (judicial review of propriety of standard is limited towhether \”the Secretary carried out [her] essentially legislative task ina manner reasonable under the state of the record before [her]\”) cert.denied, 490 U.S. 1065 (1989), 494 U.S. 1003 (1990); Phoenix Roofing,Inc. v. Secretary of Labor, 874 F.2d 1027, 1031 (5th Cir. 1989) (\”anemployer must follow the law even if it has a good faith belief that itsown policy is wiser\”).We therefore reject Amsco’s challenges to the Secretary’s interpretationof the HCA monitoring observation requirements. So far as the recordshows, the Secretary’s interpretation of the cited noise monitoringprovision is reasonable, and we defer to that interpretation. Thus,section 1910.95(f) gives employees the qualified right to designate themonitoring observer(s).*C. Comparison of lead monitoring observation provision to HCA provision*The Preamble to the lead standard does not address whether the employeror employees have the right to designate the observer(s). 43 Fed. Reg.52,952 (1978). However, there is no reason to interpret the leadprovision differently from the noise monitoring provision. TheSecretary, interprets the nearly identical language of the two standardsin the same way. The lead standard was signed by the same AssistantSecretary for OSHA who signed the HCA. [[11]] The principles of the HCAPreamble regarding observation rights are equally reasonable under thelead standard, based on this record. Thus, we defer to the Secretary’sreasonable interpretation of the lead provision at section1910.1025(o)(l) to give employees the same qualified right to designatethe monitoring observer(s) that they have under section 1910.95(f).*2. Whether the employees’ failure to specifically designate arepresentative as monitoring observer affects the outcome*The direction for review raised the issue of whether a violation may befound where, as here, the employees did not specifically designate arepresentative to observe the monitoring. We hold that that factor doesnot affect the outcome of this case. As discussed above, Amsco did notgive the employees a full opportunity to freely choose the observer bythemselves. In fact, the record does not indicate that Amsco evenoffered the employees a specific opportunity to choose who would observethe monitoring. Thus, the failure of employees specifically to designatean observer does not negate a violation, and we find a violation underboth the cited lead and noise standards.As discussed above, we need not, and do not, determine in this case howemployees who have an authorized employee representative for collectivebargaining purposes will interact with that representative indesignating the monitoring observer. We merely hold that Amsco violatedthe cited standards by interfering with the employees’ qualified rightdesignate a monitoring observer.There is no claim that the judge cited in classifying the violation’s asnonserious and in assessing no penalties. Accordingly, we affirmother-than-serious violations of 29 C.F.R. ? 1910.95(f) and1910.1025(o)(1), and access no penalties.Edwin G.Foulke, Jr. ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: January 22, 1992————————————————————————SECRETARY OF LABOR,Complainant v.AMERICAN STERILIZER COMPANY,RespondentandU.A.W., Local 832, Employee RepresentativeOSHRC Docket No. 86-1179Decision & OrderAppearances:For the complainantMarshall H. Harris, Regional SolicitorU. S. Department of Labor Philadelphia, PennsylvaniaBy: _James Swain_, Esq.For the respondent_Edward W. Goebel, Jr., Esq_.McDonald, Illig, Jones & BrittonErie, PennsylvaniaFor the affected employees_Lowell Peterson and Richard W. McHugh, Esq._General Counsel’s Office, UAWDetroit, Michigan_Statement of Proceedings:_American Sterilizer Company (respondent or AMSCO) was cited [[1\/]] bythe Occupational Safety and Health Administration of the U. S.Department of Labor (complainant or OSHA) for the alleged violation of 29 C.F.R. ? 1910.95 Observation monitoring. The employer shall provide affected employees or their representatives with an opportunity to observe any noise measurements conducted pursuant to this section. (Emphasis mine)and 29 C.F.R. ? 1910.1025 (o) Observation of monitoring. (1) Employee observation. The employer shall provide affected employees or their designated representatives an opportunity to observe any monitoring of employee exposure to lead conducted pursuant to paragraph (d) of this section. (Emphasis mine)Specifically, the charge is that the employee representatives were notpermitted to observe the monitoring.Local 832 in Erie, Pennsylvania, of the United Automobile, Aerospace,Agricultural Implement Workers of America (UAW) asserted party statusand participated fully._The Facts_The parties, at the hearing, stipulated the facts:AMSCO manufactures medical sterilization equipment in Erie,Pennsylvania, employing approximately 1,600 persons.It works with union-designated members of the company’s Union SafetyCommittee on certain safety and health matters as well as with otheremployees directly (Tr. 7). It has a full-time Manager of Safety andPlant Protection who is responsible for health and safety matters at theplant, and who retains consultants to work with him with regard tohealth and safety monitoring (Tr. 7).In 1985, a member of the Safety Committee of the union gave AMSCOwritten notice that he wanted to be present at any health or safetymonitoring which took place at the plant (Tr. 4).In the manufacturing process, lead is used and some operations producenoise at high levels. Because of the presence of noise and lead, AMSCOmonitors the levels of these agents in its plant. In March and May 1986,AMSCO performed air lead level monitoring of its employees in certainlocations in the plant (Tr. 4). In February and June, 1986, AMSCOconducted noise level monitoring.AMSCO did not invite a member of the Union’s Safety Committee to bepresent at any of these monitorings (Tr. 5). As a matter of companypractice, no union representative in that capacity may observe despitethe Union’s standing request to be present (Tr. 5).At the time testing began, no formal announcement was made tonon-monitored employees of this fact nor of their right to observe norto obtain an explanation of the procedures nor to receive the results(Tr. 5).When monitoring was occurring with respect to a particular jobspecification in a specific area of the plant, in most cases, employeeswho worked in that area and job classification on that shift were award,that some type of monitoring or testing was taking place (Tr. 5).At the start of the monitoring and at various steps throughout, themonitored employees were given a full explanation of the monitoringprocedures and the purpose of the monitoring ( Tr. 5).On occasion, other employees who were present at the work area listenedto, or had the opportunity to listen to, these explanations, inaccordance with company policy (Tr. 5).During the monitoring, affected employees, both being monitored and notbeing monitored, asked questions concerning the monitoring proceduresand the purposes of the monitoring, and all such questions were answeredby those conducting the monitoring (Tr. 6).In accordance with company policy, the monitored employees and otheraffected employees who were not being monitored could go and see allsteps of the monitoring being conducted at that time (Tr. 6).No formal advance notice was given to affected employees of the endingof monitoring for lead or noise (Tr. 5).AMSCO posted the results of the monitoring at specific locations in theareas where the monitoring took place and gave copies to the monitoredemployees and to the Union’s Safety Committee representatives after thetesting was completed (Tr. 6)._Contentions of the Parties, the Issue, Discussion and Conclusion:_The Commission has recognized that \”and\” or \”or\” may not mean what thedrafter of a statute or regulation intended and, as a result, applyingtheir usual and dictionary meaning could frustrate the point of the law.Secretary v. L. E. Myers Co., High Voltage Systems Div., 12 BNA OSHC1609 at 1612, n. 6 (1986). While that is not the case here, respondent’sanalysis produces a similar result. It argues:I] \”Or\” is disjunctive and means here that the employees have anopportunity to observe the monitoring and, because of the use of theterm \”or\”, the employee representatives are necessarily excluded (Brief,pp. 5-10).II] Congress in adopting section 8(c)(3) [29 U.S.C. ? 657 (c)(3)] underwhich these regulations were promulgated, used the terms \”and\” and \”or\”with care and intended their normal meanings. In fact, respondent pointsout, when this was not sufficient, the complainant changed an \”or\” to an\”and\” in a specific case (providing records to employees and designatedrepresentatives). More importantly, however, the \”or\” in question herehas gone untouched. (Brief, pp. 11-118, 13-14 in particular) [[2\/]]III] The employer chooses the best manner in which to accomplish themandate of the regulation. \”By giving the affected employees anopportunity to observe the monitoring or by giving their designatedrepresentative an opportunity….\” (Emphasis in the original, Brief p. 19).AMSCO must perform many types of monitoring and, If AMSCO was required to allow the union representative to leave his job each time monitoring was to take place some place in the plant and to be at the site of the monitoring, this would double AMSCO’s staff at the monitoring site (Brief, pg. 20).This would affect production since a man (union representative) could beaway from his job for as long as seven days. Each of the many timesAMSCO must monitor would mean that these absences are multiplied greatlyand production would suffer.Hence, argues respondent, the term \”or\” is used purposefullydisjunctive, to give the employer the option (Brief p. 21).IV] Finally, argues respondent, even if AMSCO has violated theseregulations by somehow not properly affording the employees anopportunity to observe the monitoring, the complainant’s recourse is toissue a citation for that violation but not, ipso facto, to require(emphasis respondent’s) union attendance at the monitoring (Brief pp.23-24).Complainant’s major point is just that: Respondent violates the citedstandards by denying the union representative an opportunity to monitorthe monitoring. Secondly, complainant argues that respondent’sopportunity for employees to observe was insufficient.Both complainant and the employee representative (UAW) argue that thestandard’s use of \”representative\” means the collective bargainingrepresentative or union. And the Act together with its regulationsfavors a policy of union involvement. Therefore, respondent may not denythe union an opportunity to observe. That union is the employee’srepresentative and the disjunctive, \”or\”, is never taken to mean aprohibition against him (UAW Brief. pp. 12-14).In fact, runs this argument, \”or\” in the statute and regulations simplymeans that the opportunity to observe must be givena) to the employee when he is not represented by a union, orb) to the union when the employee is so represented (Complainant’sbrief, p. 7 and UAW brief, p. 11).The issue developed by these facts and argument is not whether \”or\”means \”and\” but whether \”or\” must be strictly defined, i.e., if a unionrepresents an employee that union must be given the right to observe tothe exclusion of the employee; if not, the affected employee himselfmust be given the right. Or, may the term be loosely defined, i.e., if aunion represents affected employees, the employer may choose either theemployee of the union as the party holding the right to observe.The Act, section 8(c)(3) [29 U.S.C. ? 657(C)(3)) obliges the complainantto issue regulations guaranteeing \”employees or their representatives\”an opportunity to observe monitoring. The guarantee specifies that theregulations require employers to insure that opportunity to observe.The regulations promulgated under this provision and allegedly violatedhere require that \”[T]he employer shall provide…an opportunity toobserve.\”Nothing in the preface to either regulation or, for that matter, isthere any other source or authority indicating that \”or\” necessarilyexcludes the employee if he is represented by a union as claimed by thecomplainant and the employee-representative. While union representativesplay definite and inclusive roles as these parties point out, thoseroles are not exclusive.The Commission’s rule 22 grants limited exclusiveness to the union as aparty before it. But, should the union elect not to participate,individual employees may become a party. See, Secretary v. U.S. SteelCorp.,11 8NA OSHC 1301, which overruled the holding in Secretary v.Babcock & Wilcox, 8 BNA OSHC 2102, that where a union which elected notto participate, the individual employee could not become a party. In theU.S. Steel Corp., above, Chairman Rowland points out that where Congressintended the union to be the exclusive actor for employees, itaccomplished that intent citing 29 U.S.C. ? 669(a)(6) \”.. a writtenrequest by any employer or authorized representative of employees….\”11 BNA OSHC at 1364, n. 4.Further, the preface to the final regulation on noise exposure (ofwhich, administrative notice is being taken) shows that complainantconsidered that observing the monitoring process to be a basic right ofthe employees as well as the explanation of the process. 48 F.R. at9752. Workers who observe then become more aware of the hazard and, inturn, increase the effectiveness of the program. Id Or, an employee maydesire to have someone else observe such as a union health and safetyrepresentative. 46 F.R. at 4156. Those, persons, too, are entitled to anexplanation of the process. Id.Thus, it does not appear that the framers of the regulation intended anyparty to have exclusive rights. The right to observe is the employee’sright which the employer must accord. The employee may wish to have hisrepresentative observe which the drafters acknowledged by assuring \”theaffected employees or their [designated] representatives\” the right toobserve.This regulation, I conclude, allows the employee to elect to have hisrepresentative observe the monitoring in his stead.By the very same token, the employer may not sua sponte elect betweenthe employee and his representative and satisfy the demand of theregulation. As noted above, the right is the employee’s or hisrepresentative if the former so chooses.Hence, \”or\” is used in the Act and its regulations in its disjunctivesense: the employee himself must be given an opportunity toknowledgeably observe the monitoring or elect to have his representativeso observe in his stead. The employer may not choose who shall observe;nor may the union claim to be the exclusive observer. [[3\/]]But the employee’s choice is not unfettered. For example, with regard tothe noise standard, complainant noted in the rule-making proceeding theproblem also described in respondent’s brief–that A number of comments of suggested that the observation provisions would be disruptive to the production process and to the monitoring itself. 46 F.R. 4156These comments included possibilities that all workers might exercisetheir rights so that machinery would not be operated; or the employeesmight interfere with the monitoring process by stopping work to observeand the entire process might become too expensive for the employer. Id.While complainant, according to this preface to rule, did not expect anydisruption in the production process or the monitoring itself becausethe likely event would be that \”employees would select a single observerto act as an observer\” (46 F.R. 4156, col. 3), it was acknowledged thatthe situation will vary from place to place but: In any event, the employee right to observe monitoring must be tempered with \”standard of reasonableness,\” and observation which seriously disrupts production or the sampling itself is not permitted. Id., col. 3.Since it appears that complainant (1) had before it a proposal forexclusive representation at observation, (2) elected to leave this tothe employee’s choice for the specified reason of enhanced safetyawareness and (3) tempered that choice because of the possibility thatthe development of some situations would emasculate the effectiveness ofthe regulation’s purpose and acknowledged that a standard ofreasonableness must govern, then \”or\” in the regulations must mean thateither the employee or one of his choosing may observe the monitoringproviding the production process or monitoring itself is notunreasonably upset by the observation. Synthetic Organic Chemicalmanufacturers Assoc. v. Brennan, 503 F.2d 1155, 1159-60 (1974)Applying this to the issue presented produces the result that(1) Respondent violated the standards cited by unilaterally permittingonly the employee to observe the monitoring and excluding the employee’srepresentative without regard to the employee’s privilege of election(stipulated fact that no union representative in that capacity mayobserve as a matter of company policy); and(2) The union has no exclusive right to observe by virtue of itsposition as the employee representative. This depends on the employee’selection and that the observation may not disrupt the process ofproduction or monitoring.Therefore, the order below affirms the citation. How future observationof the monitoring will be must first be left to the parties’ (employerand employee) determination. Whatever system is devised must bereasonable in terms of the respondent’s needs and the purpose of theregulation. Hence, should another citation erupt, the issue there shouldbe only the reasonableness of the observation process developed._ORDER: _Based on the stipulated facts and conclusions of law reached afterconsidering the parties’ arguments and proposals, which to the extentshown are adopted or rejected as having insufficient support in thepreponderance of the evidence or precedent, it is ORDERED that thecitation issued August 14, 1986, alleging other-than-serious violationsof 29 C.F.R. ? 1910.95(f) and 1025(o)(1) be affirmed with the lastsentence of these allegations of [\”The Employee Representatives (U. A.W.) were not permitted to observe monitoring \”] deleted.DAVID J. KNIGHTJudge, OSHCDated: March 18, 1988Boston, Massachusetts————————————————————————FOOTNOTES[[1]] After the monitoring, the results were posted in the monitoredarea, and copies were given to monitored employees and unionrepresentatives.[[2]] The term \”union representative,\” as used subsequently in thisdecision, refers to an individual acting in his or her official capacity.[[3]] ? 1910.95 Occupational noise exposure. (f) Observation of Monitoring. The employer shall provide affected employees or their representatives with an opportunity to observe any noise measurements conducted pursuant to this section.[[4]] ? 1910.1025 Lead. (o) Observation of monitoring. (1) Employee observation. The employer shall provide affected employees or their designated representatives an opportunity to observe any monitoring of employee exposure to lead conducted pursuant to paragraph (d) of this section.[[5]] The duty to monitor employee exposure arises under section 1910.95(d) of the noise standard and section 1910.1025(d) of the lead standard.[[6]] That provision originally was designated as section 1910.95(i). 46fed. Reg. 4161, 4162 (1981).[[7]] The passage relied on by Amsco states in full: The revised amendment being issued today has adopted a performance approach insofar as possible. This is in marked contrast with the detailed specifications of the January [1981] amendment, which did not fully consider the mandate of Section 6(b)(5) of the Act that standards he expressed in terms of performance criteria where practicable. The revised amendment generally allows the employer to choose his own method of complying with the obligations imposed by the amendment This approach is particularly appropriate where the standard applies to many different types of industrial settings and work environments. The flexibility inherent in the performance approach allows the employer, who is familiar with the unique circumstances and problems of his workplace, to use this knowledge to develop the most effective and efficient mechanism to protect his employees. The employer is given sufficient leeway to adopt a hearing conservation program which will be compatible with all of the peculiarities of the work environment and the needs of his business, rather than having to implement a number of requirements that would be inadequate, inappropriate or unnecessary in his working environment, merely because they are required by the standard. The performance approach allows and even encourages employers to develop creative and innovative methods of meeting the obligations imposed by the amendment. Id. (emphasis added)[[8]] In the 1983 HCA revisions, OSHA revoked part of the original noisemonitoring observation provision (1910.95(i)(2)). 48 Fed. Reg. at 9777. However, the provision cited here was not changed. The revoked provision had stated specific rights of observers to have the procedures explained, observe all relevant steps, and record the results. See, 46 Fed. Reg. at 4162.[[9]] For example, full shift monitoring is required in at least somesituations for: Lead (? 1910.1025(d)(l)(ii); Asbestos, (? 1910.1001(d)(6); Inorganic arsenic (? 1910.1018(c)(l)); Coke oven emissions (? 1910.1029(c)(1)); 1.2 dibromo 3 chloropropane (? 1910.1044(f)(l)); Acrylonitride (? 1910.1045(c)(l)); and Ethylene oxide (? 1910.1047(d)(l))[[10]] The other standards are: Asbestos (? 1910.100 (n)(1)). Vinyl chloride (? 1910.1017(d)(5)): Inorganic arsenic (? 1910.1018(r)(1)). Coke oven emissions (? 1910.1029(n)(1)), Cotton dust (? 1901.1043(2)(l)): 1.2-dibromo 3-chloropropane (? 1910.1044(q)(1): Acrylonitrile (? 1910.1045(r)(1)) and Ethylene oxide (? 1910.1017 (l)(1)).[[11]] The lead standard was promulgated on November 14, 1978. The HCAwas originally promulgated on January 16, 1981. [[1\/]] Under the Occupational Safety and Health Act of 1970, 29 U.S.C.?? 651, et. seq., citations are issued after inspection and may becontested within a 15-working day period. See ? 658(a) and 659(a). Thecitations were issued on August 14, 1986, and respondent’s notice ofcontest is dated August 27, 1986. At the hearing all parties wererepresented by counsel. Final briefs by all were filed by February 12,1987. Respondent, in its answer to the complaint, admits to thejurisdiction of the Commission.[[2\/]] Respondent’s point that Secretary v. RSR Corporation., 11 BNAOSHC 1163, where the Commission affirmed a decision holding \”or\” means\”and\”, is not controlling here because that question was specificallyexcluded from Commission consideration on appeal. The decision onlydealt with it from an aspect of willfulness. See 11 BNA at 1180.[[3\/]] That only the employee representative be allowed to observe wassuggested to the complainant in the rule-making proceeding precedingpromulgation of the noise standard. It is not reflected in the finalstandard. It is not reflected in the final standard. 46 F.R. 4156, col. 3.”