“Docket No. 86-1179, American Sterilizer Co. SECRETARY OF LABOR. Complainant, v.\u00a0AMERICAN STERILIZER CO.,Respondent.U.A.W. LOCAL 832,Authorized EmployeeRepresenative.OSHRC DOCKET NO. 86-1179DECISION Before: FOULKE, Chairman, WISEMAN and MONTOYA, Commissioners. BY THE COMMISSION:At issue in this case is whether the American SterilizerCompany (\”Amsco\”) violated the monitoring requirements of the noise and leadstandards issued by the Secretary’s Occupational Safety and Health Administration(\”OSHA\”).The facts are stipulated. At its Erie, Pennsylvania plant,Amsco allowed employees who were being monitored for exposure to noise and lead to observeeach step in the monitoring process. It further provided monitored employees with a fullexplanation of the procedures and their purpose \”[a]t the start of the monitoring andat various steps throughout.\” In most cases, other affected employees–those whoworked in the specific area job classification and shift involved–were aware thatmonitoring or testing was taking place. These affected employees were also allowed toobserve the monitoring, and their questions were answered. [[1]] However, based upon itspast practice, Amsco declined to permit any union representative in his or her officialcapacity [[2]] to observe 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 for collective bargainingpurposes, OSHA inspected the Erie plant. OSHA subsequently cited Amsco for nonseriousviolations of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678(\”the Act\”) for failing to comply with the observation of monitoring provisionsof 29 C.F.R. ?? 1910.95(f) [[3]] and 1910.1025(o)(1). [[4]] The parties stipulated thatduring the six months covered by the citation, Amsco had conducted air lead levelmonitoring in the plant on seven days, and noise level monitoring on four days. [[5]]Administrative Law Judge David Knight ruled that Amsco’sdecision not to permit a union representative to observe the monitoring violated theobservation requirements of both cited standards. For the reasons given below, we alsofind that Amsco’s policy violated these requirements. No penalties were proposed by theSecretary, and we hold that none are warranted in this case.I. Whether it is the employee’s right, or theemployer’s right, to designate a monitoring observerThe basis of the citation is Amsco’s refusal, based on itspolicy, to permit a union representative to observe the monitoring. Amsco argues that itsrefusal was permissible under the cited standards. Both standards provide in essence that\”the employer shall provide affected employees or their designated representatives anopportunity to observe any monitoring of employee exposure\” conducted pursuant tothose standards.We hold that Amsco violated the standards, because itinterfered with the employees’ qualified right to designate a monitoring observer. We neednot, and do not, determine in this case how employees who have an authorized employeerepresentative for collective bargaining purposes will interact with that representativein designating the monitoring observer. In that regard, the relationship between theemployees and their union goes beyond the scope of the Act.By way of background, the cited standards were promulgatedunder the authority of section 8(c)(3) of the Act, 29 U.S.C. ? 657(c)(3), which providesthat: 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 theAct does not discuss how that opportunity is to be provided. However, the Senate CommitteeReport indicates that section 8(c)(3) was designed for the protection 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), reprintedin 1970 U.S. Code Cong. & Admin News 5177.5194.a. The HCA PreambleThe Preamble to the Hearing Conservation Amendment(\”HCA\”), which is the origin of section 1910.95(f), [[6]] indicates that theSecretary considered it to be the right of employees to choose whether to observe themonitoring personally or through a representative, subject to the qualification thatunreasonable interference with production or the monitoring 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 contentionsAmsco’s makes a number of arguments to the effect that the HCAshould be read to permit it to freely deny a union representative the opportunity toobserve the monitoring. We must reject Amsco’s arguments. The Supreme Court hasspecifically held that the Secretary’s interpretation of OSHA regulations are entitled todeference, 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 a standard issusceptible to different interpretations, \”the permeable is the best and mostauthoritative statement of the Secretary’s legislative intent.\”Phelps Dodge Corp., 11BNA OSHC 1441, 1444, 1983-84 CCH OSHD ? 26,552, pp. 33,920-21 (No. 80-3203, 1983) aff’d,725 F.2d 1237, 1240 99th Cir. 1984). In the HCA Preamble, the Secretary interpreted theHCA monitoring observation requirements to give the effected employees the qualified rightto determine who the monitoring observer will be. We hold that the Secretary’sinterpretation is reasonable, considering the qualification it puts on that right, toprevent unreasonable disruption.Amsco argues specifically that the use of the term\”‘or\” in the cited standards gives them the \”plain meaning\” that theemployer has the choice of whether, the employees or their representatives\” shallhave opportunity to observe. Amsco relies on L.E. Myers Co., 12 BNA OSHC 1609, 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 othergrounds, 818 F.2d 1270 (6th Cir. 1987), cert. denied, 484 U.S. 989 (1987). However, theword \”or\” does not resolve the issue of who has the right to designate anobserver even assuming that \”or\” has its normal disjunctive meaning. Thelanguage of the standard does not have the \”plain meaning\” that Amsco urges.Assuming for purposes of argument that the standard’s languageis not \”free from doubt,\” because of the use of the disjunctive term\”or,\” the CF & I case, quoted above, makes clear that the Secretary’sinterpretation of it should be given effect, so long as that interpretation is reasonable.The Secretary’s statements in the HCA Preamble reasonably resolve ambiguity as to what theHCA provision was intended 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 standardsare performance-oriented and favor allowing employers the flexibility to achievecompliance in the most efficient manner, these standards permit the employer to determinewhether, in a given situation, the employees or their representatives should observemonitoring.\” (Emphasis in original). Amsco argues that this conclusion is supportedby the Preamble to the Secretary’s 1983 revisions to the HCA. Occupational Noise Exposure:Hearing Conservation Amendment: Final Rule, 48 Fed. Reg. 9738 (1988).The 1983 Preamble states that the revisions were designed to bemore performance oriented and to give the employer sufficient flexibility to adapt aprogram suited to the unique needs of the particular workplace. 48 Fed. Reg. at 9741(1983). [[7]] However, the Secretary’s general comments there do not change the previousinterpretation of section 1910.95(f) set forth in the original HCA Preamble, and thatsection was not modified in the 1983 revisions. 48 Fed. Reg. at 9777. During that revisionprocess, OSHA’s only comments on the provision cited here were consistent with theoriginal Preamble. Those comments were made when OSHA lifted the administrative stay onthat 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 notchanged the interpretation of the HCA monitoring observation provision contained in theoriginal HCA Preamble.Amsco argues in addition that allowing union representatives toleave their jobs in other parts of the plant in order to observe monitoring could he moredisruptive than allowing the affected employees to observe. It notes that many types ofmonitoring, including lead monitoring, must be done over an entire shift. [[9]] As aresult, Amsco argues, plant production could be adversely affected if a unionrepresentative had a right to leave his job at the plant and stay at the monitoring sitethroughout the monitoring. Amsco also identifies eight standards in addition to the noiseand lead standards that have similar observation requirements. [[10]] Thus, it argues,allowing representatives who work elsewhere the plant to observe monitoring could have agreat impact on employers who must monitor under a number of those standards.The stipulated facts, though extensive nonetheless do notaddress the question of whether there were disruption problems in Amsco’s plant. Eventhere were a disruption problem of the kind that Amsco suggests, it would have a right toprevent unreasonable interference with production, or the monitoring itself, under theSecretary’s interpretation. There is no indication that Amsco could not deal effectivelywith a disruption problem under the Secretary’s interpretation.Amsco further argues that it should not be required to provideemployee representatives an opportunity to observe its monitoring, because it already isrequired to give individual employees a great deal of information about noise and leadhazards under the noise and lead standards. However, that argument challenges the wisdomof the standard, rather than its legality. Amsco has not established that the standard, asthe Secretary interprets it, is invalid. Clearly, Amsco’s argument provides no basis forvacating the item. E.g., Austin Engg. Co., 12 BNA OSHC 1187, 1188, 1984-85 CCH OSHD ?27,189, p.35,099 (No. 81-168, 1985) (Commission lacks power to question wisdom of astandard). See, e.g., Associated Builders and Contractors, Inc. v. OSHA, 862 F.2d 63, 68(3d Cir. 1988) (judicial review of propriety of standard is limited to whether \”theSecretary carried out [her] essentially legislative task in a manner reasonable under thestate 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)(\”an employer must follow the law even if it has a good faith belief that its ownpolicy is wiser\”).We therefore reject Amsco’s challenges to the Secretary’sinterpretation of the HCA monitoring observation requirements. So far as the record shows,the Secretary’s interpretation of the cited noise monitoring provision is reasonable, andwe defer to that interpretation. Thus, section 1910.95(f) gives employees the qualifiedright to designate the monitoring observer(s).C. Comparison of lead monitoring observation provisionto HCA provisionThe Preamble to the lead standard does not address whether theemployer or employees have the right to designate the observer(s). 43 Fed. Reg. 52,952(1978). However, there is no reason to interpret the lead provision differently from thenoise monitoring provision. The Secretary, interprets the nearly identical language of thetwo standards in the same way. The lead standard was signed by the same AssistantSecretary for OSHA who signed the HCA. [[11]] The principles of the HCA Preamble regardingobservation rights are equally reasonable under the lead standard, based on this record.Thus, we defer to the Secretary’s reasonable interpretation of the lead provision atsection 1910.1025(o)(l) to give employees the same qualified right to designate themonitoring observer(s) that they have under section 1910.95(f).2. Whether the employees’ failure to specificallydesignate a representative as monitoring observer affects the outcomeThe direction for review raised the issue of whether aviolation may be found where, as here, the employees did not specifically designate arepresentative to observe the monitoring. We hold that that factor does not affect theoutcome of this case. As discussed above, Amsco did not give the employees a fullopportunity to freely choose the observer by themselves. In fact, the record does notindicate that Amsco even offered the employees a specific opportunity to choose who wouldobserve the monitoring. Thus, the failure of employees specifically to designate anobserver does not negate a violation, and we find a violation under both the cited leadand noise standards.As discussed above, we need not, and do not, determine in thiscase how employees who have an authorized employee representative for collectivebargaining purposes will interact with that representative in designating the monitoringobserver. We merely hold that Amsco violated the cited standards by interfering with theemployees’ qualified right designate a monitoring observer.There is no claim that the judge cited in classifying theviolation’s as nonserious and in assessing no penalties. Accordingly, we affirmother-than-serious violations of 29 C.F.R. ? 1910.95(f) and 1910.1025(o)(1), and accessno penalties. Edwin G.Foulke,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Jr. ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: January 22, 1992SECRETARY 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 respondentEdward W. Goebel, Jr., Esq.McDonald, Illig, Jones & Britton Erie, PennsylvaniaFor the affected employeesLowell Peterson and Richard W. McHugh, Esq.General Counsel’s Office, UAWDetroit, Michigan Statement of Proceedings:American Sterilizer Company (respondent or AMSCO) was cited[[1\/]] by the Occupational Safety and Health Administration of the U. S. Department ofLabor (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 representativeswere not permitted to observe the monitoring.Local 832 in Erie, Pennsylvania, of the United Automobile,Aerospace, Agricultural Implement Workers of America (UAW) asserted party status andparticipated fully.The FactsThe 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 UnionSafety Committee on certain safety and health matters as well as with other employeesdirectly (Tr. 7). It has a full-time Manager of Safety and Plant Protection who isresponsible for health and safety matters at the plant, and who retains consultants towork with him with regard to health and safety monitoring (Tr. 7).In 1985, a member of the Safety Committee of the union gaveAMSCO written notice that he wanted to be present at any health or safety monitoring whichtook place at the plant (Tr. 4).In the manufacturing process, lead is used and some operationsproduce noise at high levels. Because of the presence of noise and lead, AMSCO monitorsthe levels of these agents in its plant. In March and May 1986, AMSCO performed air leadlevel monitoring of its employees in certain locations in the plant (Tr. 4). In Februaryand June, 1986, AMSCO conducted noise level monitoring.AMSCO did not invite a member of the Union’s Safety Committeeto be present at any of these monitorings (Tr. 5). As a matter of company practice, nounion representative in that capacity may observe despite the Union’s standing request tobe 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 nor to obtain anexplanation 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, employees who worked in thatarea and job classification on that shift were award, that some type of monitoring ortesting was taking place (Tr. 5).At the start of the monitoring and at various steps throughout, the monitored employeeswere given a full explanation of the monitoring procedures and the purpose of themonitoring ( Tr. 5).On occasion, other employees who were present at the work arealistened to, or had the opportunity to listen to, these explanations, in accordance withcompany policy (Tr. 5). During the monitoring, affected employees, both being monitoredand not being monitored, asked questions concerning the monitoring procedures and thepurposes of the monitoring, and all such questions were answered by those conducting themonitoring (Tr. 6).In accordance with company policy, the monitored employees andother affected employees who were not being monitored could go and see all steps of themonitoring being conducted at that time (Tr. 6).No formal advance notice was given to affected employees of theending of monitoring for lead or noise (Tr. 5).AMSCO posted the results of the monitoring at specificlocations in the areas where the monitoring took place and gave copies to the monitoredemployees and to the Union’s Safety Committee representatives after the testing wascompleted (Tr. 6).Contentions of the Parties, the Issue, Discussion andConclusion:The Commission has recognized that \”and\” or\”or\” may not mean what the drafter of a statute or regulation intended and, as aresult, applying their usual and dictionary meaning could frustrate the point of the law.Secretary v. L. E. Myers Co., High Voltage Systems Div., 12 BNAOSHC 1609 at 1612, n. 6 (1986). While that is not the case here, respondent’s analysisproduces a similar result. It argues:I] \”Or\” is disjunctive and means here that theemployees have an opportunity 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)] under which 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 here has goneuntouched. (Brief, pp. 11-118, 13-14 in particular) [[2\/]]III] The employer chooses the best manner in which toaccomplish the mandate of the regulation. \”By giving the affected employees anopportunity to observe the monitoring or by giving their designated representative anopportunity….\” (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 be away from his job for as long as seven days. Each of the many times AMSCO mustmonitor would mean that these absences are multiplied greatly and production would suffer.Hence, argues respondent, the term \”or\” is usedpurposefully disjunctive, to give the employer the option (Brief p. 21).IV] Finally, argues respondent, even if AMSCO has violatedthese regulations by somehow not properly affording the employees an opportunity toobserve the monitoring, the complainant’s recourse is to issue a citation for thatviolation but not, ipso facto, to require (emphasis respondent’s) union attendance at themonitoring (Brief pp. 23-24).Complainant’s major point is just that: Respondent violates thecited standards by denying the union representative an opportunity to monitor themonitoring. Secondly, complainant argues that respondent’s opportunity for employees toobserve was insufficient.Both complainant and the employee representative (UAW) arguethat the standard’s use of \”representative\” means the collective bargainingrepresentative or union. And the Act together with its regulations favors a policy ofunion involvement. Therefore, respondent may not deny the union an opportunity to observe.That union is the employee’s representative and the disjunctive, \”or\”, is nevertaken to mean a prohibition against him (UAW Brief. pp. 12-14).In fact, runs this argument, \”or\” in the statute andregulations simply means 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’s brief, p. 7 and UAWbrief, 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 union represents an employee that union must be given the right to observe tothe exclusion of the employee; if not, the affected employee himself must be given theright. Or, may the term be loosely defined, i.e., if a union represents affectedemployees, the employer may choose either the employee of the union as the party holdingthe right to observe.The Act, section 8(c)(3) [29 U.S.C. ? 657(C)(3)) obliges thecomplainant to issue regulations guaranteeing \”employees or theirrepresentatives\” an opportunity to observe monitoring. The guarantee specifies thatthe regulations require employers to insure that opportunity to observe.The regulations promulgated under this provision and allegedlyviolated here require that \”[T]he employer shall provide…an opportunity toobserve.\” Nothing in the preface to either regulation or, for thatmatter, is there any other source or authority indicating that \”or\” necessarilyexcludes the employee if he is represented by a union as claimed by the complainant andthe employee-representative. While union representatives play definite and inclusive rolesas these parties point out, those roles are not exclusive.The Commission’s rule 22 grants limited exclusiveness to theunion as a party before it. But, should the union elect not to participate, individualemployees may become a party. See, Secretary v. U.S. Steel Corp.,11 8NA OSHC 1301, whichoverruled the holding in Secretary v. Babcock & Wilcox, 8 BNA OSHC 2102, that where aunion which elected not to participate, the individual employee could not become a party.In the U.S. Steel Corp., above, Chairman Rowland points out that where Congress intendedthe union to be the exclusive actor for employees, it accomplished that intent citing 29U.S.C. ? 669(a)(6) \”.. a written request by any employer or authorizedrepresentative of employees….\” 11 BNA OSHC at 1364, n. 4.Further, the preface to the final regulation on noise exposure(of which, administrative notice is being taken) shows that complainant considered thatobserving the monitoring process to be a basic right of the employees as well as theexplanation of the process. 48 F.R. at 9752. Workers who observe then become more aware ofthe hazard and, in turn, increase the effectiveness of the program. Id Or, an employee maydesire to have someone else observe such as a union health and safety representative. 46F.R. at 4156. Those, persons, too, are entitled to an explanation of the process. Id.Thus, it does not appear that the framers of the regulationintended any party to have exclusive rights. The right to observe is the employee’s rightwhich the employer must accord. The employee may wish to have his representative observewhich the drafters acknowledged by assuring \”the affected employees or their[designated] representatives\” the right to observe.This regulation, I conclude, allows the employee to elect tohave his representative observe the monitoring in his stead.By the very same token, the employer may not sua sponte electbetween the employee and his representative and satisfy the demand of the regulation. Asnoted above, the right is the employee’s or his representative if the former so chooses.Hence, \”or\” is used in the Act and its regulations inits disjunctive sense: the employee himself must be given an opportunity to knowledgeablyobserve the monitoring or elect to have his representative so observe in his stead. Theemployer may not choose who shall observe; nor may the union claim to be the exclusiveobserver. [[3\/]]But the employee’s choice is not unfettered. For example, withregard to the noise standard, complainant noted in the rule-making proceeding the problemalso 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 mightexercise their rights so that machinery would not be operated; or the employees mightinterfere with the monitoring process by stopping work to observe and the entire processmight become too expensive for the employer. Id.While complainant, according to this preface to rule, did notexpect any disruption in the production process or the monitoring itself because thelikely event would be that \”employees would select a single observer to act as anobserver\” (46 F.R. 4156, col. 3), it was acknowledged that the situation will varyfrom 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 proposalfor exclusive representation at observation, (2) elected to leave this to the employee’schoice for the specified reason of enhanced safety awareness and (3) tempered that choicebecause of the possibility that the development of some situations would emasculate theeffectiveness of the regulation’s purpose and acknowledged that a standard ofreasonableness must govern, then \”or\” in the regulations must mean that eitherthe employee or one of his choosing may observe the monitoring providing the productionprocess or monitoring itself is not unreasonably upset by the observation. SyntheticOrganic Chemical manufacturers 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 unilaterallypermitting only the employee to observe the monitoring and excluding the employee’srepresentative without regard to the employee’s privilege of election (stipulated factthat no union representative in that capacity may observe as a matter of company policy);and(2) The union has no exclusive right to observe by virtue ofits position as the employee representative. This depends on the employee’s election andthat the observation may not disrupt the process of production or monitoring.Therefore, the order below affirms the citation. How futureobservation of the monitoring will be must first be left to the parties’ (employer andemployee) determination. Whatever system is devised must be reasonable in terms of therespondent’s needs and the purpose of the regulation. Hence, should another citationerupt, the issue there should be only the reasonableness of the observation processdeveloped.ORDER: Based on the stipulated facts and conclusions of law reachedafter considering the parties’ arguments and proposals, which to the extent shown areadopted or rejected as having insufficient support in the preponderance of the evidence orprecedent, it is ORDERED that the citation issued August 14, 1986, allegingother-than-serious violations of 29 C.F.R. ? 1910.95(f) and 1025(o)(1) be affirmed withthe last sentence of these allegations of [\”The Employee Representatives (U. A. W.)were not permitted to observe monitoring \”] deleted.DAVID J. KNIGHTJudge, OSHC Dated: March 18, 1988Boston, MassachusettsFOOTNOTES[[1]] After the monitoring, the results were posted in themonitored area, and copies were given to monitored employees and union representatives.[[2]] The term \”union representative,\” as usedsubsequently in this decision, refers to an individual acting in his or her officialcapacity.[[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 undersection 1910.95 (d) of the noise standard and section 1910.1025(d) of the lead standard.[[6]] That provision originally was designated as section1910.95(i). 46 fed. 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 theoriginal noise monitoring 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 atleast some situations 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 HCA was originally promulgated on January 16, 1981.\u00a0[[1\/]] Under the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651, et. seq., citations are issued after inspection and may be contestedwithin a 15-working day period. See ? 658(a) and 659(a). The citations were issued onAugust 14, 1986, and respondent’s notice of contest is dated August 27, 1986. At thehearing all parties were represented by counsel. Final briefs by all were filed byFebruary 12, 1987. Respondent, in its answer to the complaint, admits to the jurisdictionof the Commission.[[2\/]] Respondent’s point that Secretary v. RSR Corporation.,11 BNA OSHC 1163, where the Commission affirmed a decision holding \”or\” means\”and\”, is not controlling here because that question was specifically excludedfrom Commission consideration on appeal. The decision only dealt with it from an aspect ofwillfulness. See 11 BNA at 1180.[[3\/]] That only the employee representative be allowed toobserve was suggested to the complainant in the rule-making proceeding precedingpromulgation of the noise standard. It is not reflected in the final standard. It is notreflected in the final standard. 46 F.R. 4156, col. 3.”