“SECRETARY OF LABOR,Complainant,v.ASBESTOS TEXTILE COMPANY, INC.,Respondent.OSHRC Docket No. 79-3831_DECISION_Before: BUCKLEY, Chairman; and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C ? 661(i), section 12 (j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatorfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).The issues on review are whether the Secretary proved the certainviolations of the asbestos standard, 29 C.F.R. ? 1910.1001, werewillful, and whether a provision of the asbestos standard that requiresemployers to \”provide\” certain equipment to employees requires thatemployers enforce the use of the equipment. Chairman Buckley andCommissioner Cleary agree that, with respect to several citation items,the decision of Administrative Law Judge Foster Furcolo is correct andshould 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 notapproved 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 ofspecial protective clothing, contrary to section 1910.1001(d)(3). Item4(b) alleges that the company failed to free the plant of accumulationsof asbestos, contrary to section 1910.1001 (h)(1). Item 5 alleges afailure to provide comprehensive medical examinations to employeeswithin 30 days of the beginning of their employment, contrary to section1910.1001(j)(2). The only question that the members will review withrespect to these items is whether the violations were willful. [[2]] Chairman Buckley and Commissioner Cleary agree that they were notwillful and affirm the judge’s decision.To establish that a violation was willful, the Secretary must show thatit was committed with intentional, knowing or voluntary disregard forthe requirements of the Act or with plain indifference to employeesafety. See, e.g., D.A. & L. Caruso, Inc., 84 OSAHRC \/, 11 BNA OSHC2138, 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 forthe Secretary simply to show carelessness or a lack of diligence indiscovering or eliminating a violation; nor is a willful chargejustified if an employer has made a good faith effort to comply with astandard or eliminate a hazard even though the employer’s efforts arenot entirely effective or complete. Marmon Group Inc., 84 OSAHRC \/ ,11BNA 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., 83OSAHRC \/ , 11 BNA OSHC 1700, 1983 CCH OSHD ? 26,699 (No. 79-4802, 1983).With respect to the respirator violations, the mixer– the only employeerequired to wear a respirator–had been told that asbestos dust isharmful. He had been ordered to wear a respirator and did so. Hereplaced the filters and washed the respirator regularly. The plantmanager acknowledged that there were no written procedures for the useof respirators, but he knew that the mixer was experienced in its useand that the mixer took new filters from the office twice weekly. Theplant manager had discussed the use of respirators with the mixer, hadsuggested the replacement of the inlet valve, and had never seen themixer not wearing the respirator when it should have been worn. Theplant manager had read the written material provided with the respiratorand concluded–albeit erroneously–that it was approved for use withasbestos. Both Commissioners agree that these facts do not show thatthe company intentionally disregarded the requirements of the standardsor was plainly indifferent to employee safety.Similarly, with respect to the protective clothing and accumulationviolations, the evidence fails to show willfulness. The mixer did wearboots and protective gloves and had been provided with five sets of workuniforms. So far as this record shows, only a head covering wasmissing. The accumulation violation in item 4(b) stemmed from thecompany’s failure to clean up small amounts of asbestos that had fallenout of torn bags and that had been present on some unused machinery. Asthe judge noted, however, the employer did have housekeeping procedures,which included twice-weekly vacuuming and the immediate taping of tornbags. While the employer’s program was not all it should have been, itsshortcomings were not shown to have stemmed from intentional disregardof the asbestos standard or plain indifference to employee safety.Finally, the Commissioners agree with the judge that the medicalexamination violation was not willful. The standard requires in partthat medical examinations, including pulmonary function tests and chestX-rays, be given within 30 days from the first date of employment in anoccupation exposed to asbestos. Although medical examinations were as arule given to employees within 30 days of employment, one examinationwas given after 40 days and another after approximately 90 days. Inaddition, pulmonary function tests were not given to a small number ofemployees as part of the initial examination. Asbestos Textile has ahigh turnover rate among its employees. The plant has only eight to tenproduction employees at any one time, but in one year it hired eightypersons to fill those positions. Also, arranging pulmonary functiontests is difficult because the tests must be given at a physician’soffice 25 miles from the plant. Under these circumstances, theCommissioners 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 andMonitoring _Items 1(a) and (b) alleged that an employee of Asbestos Textile wasoverexposed to asbestos fibers when measured on eight-hour time-weightedaverage 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 forasbestos and a lack of wetting, enclosure or ventilation to hold downdust levels when asbestos was emptied from bags, contrary to sections1910.1001(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 thejudge correctly found that the violations were not willful.In finding that the violations were not willful, the judge noted thatthe Secretary had relied on references in the testimony to a letter fromthe employer’s insurance carrier that is said to have suggestedmonitoring for asbestos, but that the letter had never been introducedinto evidence and its exact contents had been \”left to speculation.\” The judge also found that none of the employer’s management personnelknew that any standard was being violated. The plant manager hadspecifically testified that he was unaware of any violations and thecompliance officer conceded that the plant manager did not believe thatthe situation was hazardous. The judge also found that the plantmanager had taken steps to alleviate the asbestos hazard by taping tornbags of asbestos and vacuuming twice a week to remove accumulations ofasbestos dust.The Secretary argues that the judge’s finding should be overturnedbecause, despite the company’s history of previous asbestos violations,the plant manager had not been adequately instructed in the requirementsof the asbestos standard.The Commission members are divided on the willfulness issue. ChairmanBuckley would affirm the judge’s disposition. In addition to thejudge’s findings, Chairman Buckley would note that Mr. Gatke, AsbestosTextile’s chief operating officer and vice-president of the corporateparent company, had arranged to inform the new plant manager of therequirements of the asbestos standard. Mr. Gatke had retained theformer plant manager as a paid adviser and instructed him to train hissuccessor in the requirements of the OSHA standards. Cf. GeorgiaElectric Co. v. Marshall, 595 F.2d 309, 319-20 (5th Cir. 1979) (noeffort to acquaint employees with standards). There is no evidence thatMr. Gatke knew that the new plant manager had been inadequately informedof the standard’s requirements, nor can it be said that Mr. Gatke’sfailure to inquire whether that task was carried out amounted tointentional disregard of the requirements of the Act or plainindifference to employee safety. The record also shows that thecompany’s insurance carrier did at least some monitoring for asbestosexposure and furnished dust counts to Mr. Gatke. Mr. Gatke had alsoplanned to have the new manager formally trained in asbestos monitoringtechniques. The previous violations on which the Secretary relies forthe willful allegation concerned a different building and industrialoperation, 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, ChairmanBuckley notes that Asbestos Textile’s conduct as a whole reveals that itdid not intentionally disregard its responsibilities under the Act andwas concerned about employee safety. The company furnished a respiratorto the single affected employee, provided comprehensive and timelymedical examinations to nearly all plant employees, taped torn bags ofasbestos, instituted a weekly vacuuming program to remove dustaccumulations, and provided protective clothing and separate clothinglockers. Though some of these steps may not have been in technicalcompliance with all aspects of the standard, Chairman Buckley finds thatthey indicate that Asbestos Textile was not plainly indifferent to thesafety of its employees. He would therefore affirm the judge’s findingthat these violations were not willful.Commissioner Cleary would overturn the judge’s finding and characterizethe violations as willful. A key provision of the asbestos standard,the provision that must be followed if dust control is to beintelligently achieved, is the initial monitoring provision. Itrequires that, after its 1972 effective date, \”every place of employmentwhere asbestos fibers are released . . . be monitored in such a way asto determine whether every employee’s exposure to asbestos fibers isbelow the [exposure] limits . . . .\” It then states that \”[i]f thelimits are exceeded, the employer shall immediately undertake acompliance program . . . .\” (Emphasis added.) Asbestos Textile admitsthat it never undertook initial monitoring in the rubber department anddid not implement dust controls. These omissions took place despite theclear language of the standard, the company’s long history of litigationunder the standard,[[3]] and the fact that in 1979, when this litigationarose, its rubber building was processing large amounts of asbestos inways 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 openabout twenty five, one hundred pound bags of raw asbestos and shook outthe contents into a mixing machine. Visible clouds of dust werecreated. The plant manager possessed no monitoring results, though anOSHA industrial hygienist testified that the plant manager showed her aletter from an insurance company recommending monitoring for asbestosexposure in accordance with OSHA requirements. However, the plantmanager had never been trained in monitoring and he was unaware of therequirements of the OSHA standard. He had been on the job for only sixmonths and had no previous experience with asbestos. His predecessorhad told him nothing of the standard’s requirements. Mr. Gatke neverchecked whether his new plant manager was informed of the requirementsof the OSHA standard though he had recently visited the plant for abouta week. He knew that the new plant manager had never been trained tomonitor asbestos levels, for he had delayed training him for half ayear. Though Mr. Gatke had received dust counts, he had no idea whetherthey showed that the exposure limits had been exceeded or even whetherthe dust samples were taken in the rubber department. He had made noeffort to determine whether the company had sampled the air in therubber department. Under these circumstances, Commissioner Clearywould conclude that the monitoring, overexposure, engineering control,and work practice control violations indicate plain indifference and anintentional disregard of the asbestos standard._Item 2(d): Double Clothing Lockers_The Secretary claims with respect to item 2(d) that Asbestos Textile didnot require employees to use the two separate clothing lockers that ithad provided to each of them. Section 1910.1001(d)(4)(ii) requiresemployers to \”provide two separate lockers or containers for eachemployee, so separated or isolated as to prevent contamination of theemployee’s street clothes from his work clothes.\” The administrativelaw judge, relying on then-outstanding Commission and circuit courtprecedent, held that the standard imposes no duty on the employer torequire employees to use the clothing lockers. See Usery v. KennecottCopper Corp., 577 F.2d 1113 (10th Cir. 1977), aff’g 76 OSAHRC 81\/A2, 4BNA OSHC 1400, 1976-77 CCH OSHD ? 20,860 (No. 5958, 1976). A subsequentCommission decision, on which the Secretary relies to argue that thejudge’s disposition should be reversed, rejected the previous Commissionview and declined to follow the Tenth Circuit decision in Kennecott,holding instead that \”a standard that requires an employer to provide asafety 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 withthe Tenth Circuit decisions in Kennecott and Borton, and with Commissionprecedent prior to the Commission decision in Borton, that standardsthat require an employer to provide equipment to employees do notimplicitly require that the employer force employees to use it. Theword \”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 theword was not employed to impose a \”use\” requirement. Section1926.1001(d)(3) requires that employers both \”provide, and require theuse of, special clothing . . . .\” Yet, the cited standard and anotherchange room standard, section 1910.1001(d)(4)(i), use only the word\”provide.\” This choice of words in the asbestos standard evidentlyreflects a deliberate policy choice by the Secretary,[[7]] which theCommission as an adjudicative body has no authority to overrule.[[8]] Chairman Buckley would therefore affirm the judge’s decision and holdthat Asbestos Textile was not required by the standard to enforce theuse 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 casedoes not arise in the Tenth Circuit. Commissioner Cleary agrees that ifthe drafter of a standard clearly expresses an intention to distinguishbetween providing equipment and enforcing its use, the Commission wouldbe required to construe the standard accordingly. But in the absence ofsuch a clearly-expressed intention, a standard should be construed so asto best protect employees and effectuate the congressional intention ofplacing final responsibility for workplace safety and health onemployers. See Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir.1974) (reviewing legislative history). There is no expressed intentionto shift responsibility to employees here. The words of the standardare not a reliable guide to the Secretary’s intent because, as a perusalof all of section 1910.1001 shows, the standard was not drafted tosharply distinguish between the provision and use of safety equipment. A duty to provide equipment would be a nullity if it were unaccompaniedby use, and a duty to require use is implied. Finally, CommissionerCleary notes that the preamble to the standard does not suggest that theSecretary intended to not require use of double lockers. Such a readingwould be at odds with the purpose of the standard–to prevent thecontamination of employees’ street clothing–and would assume that theSecretary was indifferent to whether clothing was stored separately.Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action canbe taken by the Commission with the affirmative vote of two members. Toresolve their impasse and permit a resolution of this case, the membersaffirm 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 ofan unreviewed judge’s decision. See Life Science Products Co., 77OSAHRC 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.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: OCT 31 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050) or TTY (202-606-5386).FOOTNOTES:[[1]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Currently, the Commissionhas two members as a result of a vacancy.[[2]] The employer had argued to the judge that the violations allegedin items 2(c) and 4(b) were not proven and were in any event not shownto have been willful. As to items 2(a), 2(b) and 5, Asbestos Textileargued only the willfulness issue. The judge affirmed the itemsbecause he found that the standards had been violated but he vacated the\”willful\” characterizations. The employer did not file a petition fordiscretionary review of the judge’s affirmance of the items. TheSecretary did file a petition, claiming that the violations werewillful. A similar course of events occurred for the other items onreview, except item 2(d) where the Secretary asked that the judge’svacation of the item be reversed. The only issues raised in thedirection for review and briefed by the parties were those raised in thepetition. Under these circumstances, the Commissioners have limitedreview to the items briefed.[[3]] In 1972, it was cited for violating eight provisions of theasbestos standard in its textile operation, including the engineeringcontrol requirement and the exposure limits. Although it did notcontest the citations, it later obtained two abatement extensions, oneof which was \”reluctantly\” granted by a judge who noted that theemployer \”did not get down to business\” in procuring engineeringcontrols. In 1974, another set of citations alleged eight moreasbestos violations, two of them for lack of monitoring; some violationswere alleged to have been \”repeated.\” These citations too wereuncontested, and follow-up inspections by OSHA revealed that conditionscited in both 1972 and 1974 had never been corrected, including the 1972engineering control violation for which the company had received twoabatement extensions. A settlement was reached requiring certainabatement efforts. In 1975, OSHA re-inspected yet again and proposedadditional penalties of $10,500 for the company’s failure to abate the1972 engineering control violation but a judge assessed no penaltiesbecause the company’s abatement efforts, however inadequate, were intechnical compliance with the 1974 settlement. The company finallyclosed its textile operation because it could not afford to comply withthe asbestos standard.[[4]] Asbestos Textile’s brief relies heavily on the fact that when OSHAinspected the rubber department in 1974, it issued no citations forasbestos violations. The brief suggests that the company was thus ledto believe that the rubber department was in compliance with theasbestos standard. Commissioner Cleary would reject the argument. First, no witness testified that the lack of citations for asbestosviolations in 1974 was taken to mean that the company was in compliance. Second, the evidence strongly suggests that the company understoodthat 1974 inspection was a safety inspection only. That inspectionresulted in the issuance of citations for violations of safetystandards; Mr. Gatke testified that he understood that industrialhygienists conduct inspections for violations of health standards andconceded that he did not recall if an industrial hygienist had inspectedthe rubber department in 1974 or if air samples were taken then.[[5]] After the Secretary submitted his review brief in this case, theCommission decision in Borton was reversed by the Tenth Circuit. 734F.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 oxidestandard, section 1910.1047(g) (1) (\”provide\” respirators and \”ensurethat 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 noiseabove 85 dB), and (l)(2) (\”ensure that hearing protectors are worn\”under specific circumstances). See 46 Fed. Reg. 42622, 42629 (1981) and46 Fed. Reg. 4078, 4111, 4151-2 (1981), for a discussion of the reasonsfor 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 PetroleumService Co., 84 OSAHRC , 11 BNA OSHC 2205, 1984 CCH OSHD ? 27,024 (No.81-2529, 1984) (lead opinion).”