“Docket No. 79-3831 SECRETARY OF LABOR,Complainant,v.ASBESTOS TEXTILE COMPANY, INC.,Respondent.OSHRC Docket No. 79-3831DECISION Before:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of labor and the Occupational Safetyand Health Administration (\”OSHA\”).\u00a0 It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulator functions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).The issues on review are whether the Secretary proved the certain violationsof the asbestos standard, 29 C.F.R. ? 1910.1001, were willful, and whether a provision ofthe asbestos standard that requires employers to \”provide\” certain equipment toemployees requires that employers enforce the use of the equipment.\u00a0 Chairman Buckleyand Commissioner Cleary agree that, with respect to several citation items, the decisionof Administrative Law Judge Foster Furcolo is correct and should be affirmed.\u00a0 On theremaining items, the two Commissioners [[1]]are divided.Item 2(a) – (c), 4(b) and 5: Respirators, Special Clothing, Fiber Accumulations and Medical Examinations.Items 2(a) and (b) allege that a respirator used by an employee was not approved foruse with asbestos and that there was no respirator program, contrary to sections1910.1001(d)(2) and (d)(2)(iv)(a).\u00a0 Item 2(c) alleges that Asbestos Textile failed toprovide and require the use of special protective clothing, contrary to section1910.1001(d)(3).\u00a0 Item 4(b) alleges that the company failed to free the plant ofaccumulations of asbestos, contrary to section 1910.1001 (h)(1).\u00a0 Item 5 alleges afailure to provide comprehensive medical examinations to employees within 30 days of thebeginning of their employment, contrary to section 1910.1001(j)(2).\u00a0 The onlyquestion that the members will review with respect to these items is whether theviolations were willful. [[2]]\u00a0 Chairman Buckley and Commissioner Cleary agree thatthey were not willful and affirm the judge’s decision.To establish that a violation was willful, the Secretary must show that it was committedwith intentional, knowing or voluntary disregard for the requirements of the Act or withplain indifference to employee safety.\u00a0 See, e.g., D.A. & L. Caruso, Inc., 84OSAHRC \/, 11 BNA OSHC 2138, 2142, 1984 CCH OSHD ? 26,985, p. 34,694 (No. 79-5676, 1984);Duquesne Light Co., 84 OSAHRC ,11 BNA OSHC 2033, 2040, 1984 CCH OSHD ? 26,959, p. 34,603(No. 79-1682, 1984), pets. for rev. filed, Nos. 84-3520 & 84-3538 (3d Cir. Aug. 20& 28, 1984).\u00a0 It is not enough for the Secretary simply to show carelessness or alack of diligence in discovering or eliminating a violation; nor is a willful chargejustified if an employer has made a good faith effort to comply with a standard oreliminate a hazard even though the employer’s efforts are not entirely effective orcomplete.\u00a0 Marmon Group Inc., 84 OSAHRC \/ ,11 BNA OSHC 2090, 1984 CCH OSHD ? 26,975(No. 79-5363, 1984), pet. for rev. filed, No. 84-2193 (8th Cir. Sept. 17, 1984), citingMobil Oil Corp., 83 OSAHRC \/ , 11 BNA OSHC 1700, 1983 CCH OSHD ? 26,699 (No. 79-4802,1983).With respect to the respirator violations, the mixer– the only employeerequired to wear a respirator–had been told that asbestos dust is harmful.\u00a0 He hadbeen ordered to wear a respirator and did so.\u00a0 He replaced the filters and washed therespirator regularly.\u00a0 The plant manager acknowledged that there were no writtenprocedures for the use of respirators, but he knew that the mixer was experienced in itsuse and that the mixer took new filters from the office twice weekly.\u00a0 The plantmanager had discussed the use of respirators with the mixer, had suggested the replacementof the inlet valve, and had never seen the mixer not wearing the respirator when it shouldhave been worn.\u00a0 The plant manager had read the written material provided with therespirator and concluded–albeit erroneously–that it was approved for use with asbestos.\u00a0 Both Commissioners agree that these facts do not show that the companyintentionally disregarded the requirements of the standards or was plainly indifferent toemployee safety.Similarly, with respect to the protective clothing and accumulationviolations, the evidence fails to show willfulness.\u00a0 The mixer did wear boots andprotective gloves and had been provided with five sets of work uniforms.\u00a0 So far asthis record shows, only a head covering was missing.\u00a0 The accumulation violation initem 4(b) stemmed from the company’s failure to clean up small amounts of asbestos thathad fallen out of torn bags and that had been present on some unused machinery.\u00a0 Asthe judge noted, however, the employer did have housekeeping procedures, which includedtwice-weekly vacuuming and the immediate taping of torn bags.\u00a0 While the employer’sprogram was not all it should have been, its shortcomings were not shown to have stemmedfrom intentional disregard of the asbestos standard or plain indifference to employeesafety.Finally, the Commissioners agree with the judge that the medical examinationviolation was not willful.\u00a0 The standard requires in part that medical examinations,including pulmonary function tests and chest X-rays, be given within 30 days from thefirst date of employment in an occupation exposed to asbestos.\u00a0 Although medicalexaminations were as a rule given to employees within 30 days of employment, oneexamination was given after 40 days and another after approximately 90 days.\u00a0 Inaddition, pulmonary function tests were not given to a small number of employees as partof the initial examination.\u00a0 Asbestos Textile has a high turnover rate among itsemployees.\u00a0 The plant has only eight to ten production employees at any one time, butin one year it hired eighty persons to fill those positions.\u00a0 Also, arrangingpulmonary function tests is difficult because the tests must be given at a physician’soffice 25 miles from the plant.\u00a0 Under these circumstances, the Commissioners do notfind that the company willfully violated the standard.Accordingly, the judge’s decision is affirmed as to items 2(a), 2(b), 2(c),4(b), and 5.Items 1(a) – (d) and 3(a): Asbestos Exposure, Dust Controls and MonitoringItems 1(a) and (b) alleged that an employee of Asbestos Textile wasoverexposed to asbestos fibers when measured on eight-hour time-weighted average andceiling bases, contrary to 29 C.F.R. ?? 1910.1001(b)(2) and (3).\u00a0 Items 1(c) and(d) alleged a lack of engineering controls for asbestos and a lack of wetting, enclosureor ventilation to hold down dust levels when asbestos was emptied from bags, contrary tosections 1910.1001(c)(1)(i) and (c)(2)(ii).\u00a0 Asbestos Textile does not dispute, andthe administrative law judge found, that these violations occurred.\u00a0 The only issueon review with respect to these items is whether the judge correctly found that theviolations were not willful.In finding that the violations were not willful, the judge noted that theSecretary had relied on references in the testimony to a letter from the employer’sinsurance carrier that is said to have suggested monitoring for asbestos, but that theletter had never been introduced into evidence and its exact contents had been \”leftto speculation.\”\u00a0 The judge also found that none of the employer’s managementpersonnel knew that any standard was being violated.\u00a0 The plant manager hadspecifically testified that he was unaware of any violations and the compliance officerconceded that the plant manager did not believe that the situation was hazardous.\u00a0 The judge also found that the plant manager had taken steps to alleviate theasbestos hazard by taping torn bags of asbestos and vacuuming twice a week to removeaccumulations of asbestos dust.The Secretary argues that the judge’s finding should be overturned because,despite the company’s history of previous asbestos violations, the plant manager had notbeen adequately instructed in the requirements of the asbestos standard.The Commission members are divided on the willfulness issue. Chairman Buckleywould affirm the judge’s disposition.\u00a0 In addition to the judge’s findings, ChairmanBuckley would note that Mr. Gatke, Asbestos Textile’s chief operating officer andvice-president of the corporate parent company, had arranged to inform the new plantmanager of the requirements of the asbestos standard.\u00a0 Mr. Gatke had retained theformer plant manager as a paid adviser and instructed him to train his successor in therequirements of the OSHA standards.\u00a0 Cf. Georgia Electric Co. v. Marshall, 595 F.2d309, 319-20 (5th Cir. 1979) (no effort to acquaint employees with standards).\u00a0 Thereis no evidence that Mr. Gatke knew that the new plant manager had been inadequatelyinformed of the standard’s requirements, nor can it be said that Mr. Gatke’s failure toinquire whether that task was carried out amounted to intentional disregard of therequirements of the Act or plain indifference to employee safety.\u00a0 The record alsoshows that the company’s insurance carrier did at least some monitoring for asbestosexposure and furnished dust counts to Mr. Gatke.\u00a0 Mr. Gatke had also planned to havethe new manager formally trained in asbestos monitoring techniques.\u00a0 The previousviolations on which the Secretary relies for the willful allegation concerned a differentbuilding and industrial operation, which had been closed when the present violationsoccurred.\u00a0 When the same operations cited here had been inspected in 1974 by OSHA, nocitations for asbestos violations were issued.\u00a0 Finally, Chairman Buckley notes thatAsbestos Textile’s conduct as a whole reveals that it did not intentionally disregard itsresponsibilities under the Act and was concerned about employee safety.\u00a0 The companyfurnished a respirator to the single affected employee, provided comprehensive and timelymedical examinations to nearly all plant employees, taped torn bags of asbestos,instituted a weekly vacuuming program to remove dust accumulations, and providedprotective clothing and separate clothing lockers.\u00a0 Though some of these steps maynot have been in technical compliance with all aspects of the standard, Chairman Buckleyfinds that they indicate that Asbestos Textile was not plainly indifferent to the safetyof its employees. He would therefore affirm the judge’s finding that these violations werenot willful.Commissioner Cleary would overturn the judge’s finding and characterize theviolations as willful.\u00a0 A key provision of the asbestos standard, the provision thatmust be followed if dust control is to be intelligently achieved, is the initialmonitoring provision.\u00a0 It requires that, after its 1972 effective date, \”everyplace of employment where asbestos fibers are released . . . be monitored in such a way asto determine whether every employee’s exposure to asbestos fibers is below the [exposure]limits . . . .\” It then states that \”[i]f the limits are exceeded, the employershall immediately undertake a compliance program . . . .\” (Emphasis added.)\u00a0 Asbestos Textile admits that it never undertook initial monitoring in the rubberdepartment and did not implement dust controls.\u00a0 These omissions took place despitethe clear language of the standard, the company’s long history of litigation under thestandard,[[3]] and the fact that in 1979, when this litigation arose, its rubber buildingwas processing large amounts of asbestos in ways that openly exposed employees to asbestosdust.[[4]]The employee who worked most closely with the asbestos was the mixer.\u00a0 This employee, whose work was familiar to Mr. Gatke, each day slit open abouttwenty five, one hundred pound bags of raw asbestos and shook out the contents into amixing machine. Visible clouds of dust were created.\u00a0 The plant manager possessed nomonitoring results, though an OSHA industrial hygienist testified that the plant managershowed her a letter from an insurance company recommending monitoring for asbestosexposure in accordance with OSHA requirements.\u00a0 However, the plant manager had neverbeen trained in monitoring and he was unaware of the requirements of the OSHA standard.\u00a0 He had been on the job for only six months and had no previous experience withasbestos.\u00a0 His predecessor had told him nothing of the standard’s requirements.\u00a0 Mr. Gatke never checked whether his new plant manager was informed of therequirements of the OSHA standard though he had recently visited the plant for about aweek.\u00a0 He knew that the new plant manager had never been trained to monitor asbestoslevels, for he had delayed training him for half a year. Though Mr. Gatke had receiveddust counts, he had no idea whether they showed that the exposure limits had been exceededor even whether the dust samples were taken in the rubber department.\u00a0 He had made noeffort to determine whether the company had sampled the air in the rubber department.\u00a0 Under these circumstances, Commissioner Cleary would conclude that the monitoring,overexposure, engineering control, and work practice control violations indicate plainindifference and an intentional disregard of the asbestos standard.Item 2(d):\u00a0 Double Clothing LockersThe Secretary claims with respect to item 2(d) that Asbestos Textile did not requireemployees to use the two separate clothing lockers that it had provided to each of them.\u00a0 Section 1910.1001(d)(4)(ii) requires employers to \”provide two separatelockers or containers for each employee, so separated or isolated as to preventcontamination of the employee’s street clothes from his work clothes.\”\u00a0 Theadministrative law judge, relying on then-outstanding Commission and circuit courtprecedent, held that the standard imposes no duty on the employer to require employees touse the clothing lockers.\u00a0 See Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10thCir. 1977), aff’g 76 OSAHRC 81\/A2, 4 BNA OSHC 1400, 1976-77 CCH OSHD ? 20,860 (No. 5958,1976).\u00a0 A subsequent Commission decision, on which the Secretary relies to argue thatthe judge’s disposition should be reversed, rejected the previous Commission view anddeclined to follow the Tenth Circuit decision in Kennecott, holding instead that \”astandard that requires an employer to provide a safety device implicitly requires thedevice to be used.\”\u00a0 See Borton, Inc., 82 OSAHRC 17\/E13, 10 BNA OSHC 1462, 1982CCH OSHD ? 25,983 (No. 77-2115, 1982) [[5]]Chairman Buckley would affirm the judge’s disposition.\u00a0 He agrees withthe Tenth Circuit decisions in Kennecott and Borton, and with Commission precedent priorto the Commission decision in Borton, that standards that require an employer to provideequipment to employees do not implicitly require that the employer force employees to useit.\u00a0 The word \”provide\” is not ambiguous; it plainly means\”supply,\” \”furnish\” and \”equip.\”[[6]]\u00a0 The term is notnormally understood to imply \”use\” and dictionary definitions do not suggestsuch a connotation.\u00a0 Closely-related provisions in the asbestos standard demonstratethat the word was not employed to impose a \”use\” requirement.\u00a0 Section1926.1001(d)(3) requires that employers both \”provide, and require the use of,special clothing . . . .\” Yet, the cited standard and another change room standard,section 1910.1001(d)(4)(i), use only the word \”provide.\”\u00a0 This choice ofwords in the asbestos standard evidently reflects a deliberate policy choice by theSecretary,[[7]] which the Commission as an adjudicative body has no authority tooverrule.[[8]]\u00a0 Chairman Buckley would therefore affirm the judge’s decision and holdthat Asbestos Textile was not required by the standard to enforce the use of doubleclothing lockers by its employees.Commissioner Cleary adheres to the Commission precedent in Borton.\u00a0 Although he will ordinarily defer to the view of a court of appeals, this questionis still open in almost all of the circuits and this case does not arise in the TenthCircuit.\u00a0 Commissioner Cleary agrees that if the drafter of a standard clearlyexpresses an intention to distinguish between providing equipment and enforcing its use,the Commission would be required to construe the standard accordingly.\u00a0 But in theabsence of such a clearly-expressed intention, a standard should be construed so as tobest protect employees and effectuate the congressional intention of placing finalresponsibility for workplace safety and health on employers.\u00a0 See Brennan v. OSHRC(Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974) (reviewing legislative history).\u00a0 Thereis no expressed intention to shift responsibility to employees here.\u00a0 The words ofthe standard are not a reliable guide to the Secretary’s intent because, as a perusal ofall of section 1910.1001 shows, the standard was not drafted to sharply distinguishbetween the provision and use of safety equipment.\u00a0 A duty to provide equipment wouldbe a nullity if it were unaccompanied by use, and a duty to require use is implied.\u00a0 Finally, Commissioner Cleary notes that the preamble to the standard does notsuggest that the Secretary intended to not require use of double lockers.\u00a0 Such areading would be at odds with the purpose of the standard–to prevent the contamination ofemployees’ street clothing–and would assume that the Secretary was indifferent to whetherclothing was stored separately.Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action can betaken by the Commission with the affirmative vote of two members.\u00a0 To resolve theirimpasse and permit a resolution of this case, the members affirm the judge’s decision withrespect to items 1(a), 1(b), 1(c), 1(d), 2(d) and 3(a) but accord this affirmance theprecedential value of an unreviewed judge’s decision.\u00a0 See Life Science Products Co.,77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No. 14910, 1977), aff’d subnom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).\u00a0 They also affirm the judge’sdecision with respect to items 2(a), 2(b), 2(c), 4(b) and 5.FOR THE COMMISSIONRay H. Darling, Jr. Executive Secretary DATED:\u00a0 OCT 31 1984The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 three members.\u00a0 Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Currently, the Commission has two membersas a result of a vacancy.[[2]] The employer had argued to the judge that the violations alleged initems 2(c) and 4(b) were not proven and were in any event not shown to have been willful.As to items 2(a), 2(b) and 5, Asbestos Textile argued only the willfulness issue.\u00a0 The judge affirmed the items because he found that the standards had been violatedbut he vacated the \”willful\” characterizations.\u00a0 The employer did not filea petition for discretionary review of the judge’s affirmance of the items.\u00a0 TheSecretary did file a petition, claiming that the violations were willful.\u00a0 A similarcourse of events occurred for the other items on review, except item 2(d) where theSecretary asked that the judge’s vacation of the item be reversed.\u00a0 The only issuesraised in the direction for review and briefed by the parties were those raised in thepetition.\u00a0 Under these circumstances, the Commissioners have limited review to theitems briefed.[[3]] In 1972, it was cited for violating eight provisions of the asbestos standard in itstextile operation, including the engineering control requirement and the exposure limits.\u00a0 Although it did not contest the citations, it later obtained two abatementextensions, one of which was \”reluctantly\” granted by a judge who noted that theemployer \”did not get down to business\” in procuring engineering controls.\u00a0 In 1974, another set of citations alleged eight more asbestos violations, two ofthem for lack of monitoring; some violations were alleged to have been\”repeated.\”\u00a0 These citations too were uncontested, and follow-upinspections by OSHA revealed that conditions cited in both 1972 and 1974 had never beencorrected, including the 1972 engineering control violation for which the company hadreceived two abatement extensions.\u00a0 A settlement was reached requiring certainabatement efforts.\u00a0 In 1975, OSHA re-inspected yet again and proposed additionalpenalties of $10,500 for the company’s failure to abate the 1972 engineering controlviolation but a judge assessed no penalties because the company’s abatement efforts,however inadequate, were in technical compliance with the 1974 settlement.\u00a0 Thecompany finally closed 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 for asbestos violations.\u00a0 The brief suggests that the company was thus led to believe that the rubberdepartment was in compliance with the asbestos standard.\u00a0 Commissioner Cleary wouldreject the argument.\u00a0 First, no witness testified that the lack of citations forasbestos violations in 1974 was taken to mean that the company was in compliance.\u00a0 Second, the evidence strongly suggests that the company understood that 1974inspection was a safety inspection only.\u00a0 That inspection resulted in the issuance ofcitations for violations of safety standards; Mr. Gatke testified that he understood thatindustrial hygienists conduct inspections for violations of health standards and concededthat he did not recall if an industrial hygienist had inspected the rubber department in1974 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.\u00a0 734 F.2d 508 (10thCir. 1984).[[6]] See Webster’s Third New International Dictionary 1827 (1977); RandomHouse Dictionary 1157 (1971).[[7]] See also provisions of the recently-adopted ethylene oxide standard,section 1910.1047(g) (1) (\”provide\” respirators and \”ensure that they areused\”), (g)(4) (same as to clothing), (i)(1)(i)(B) and (i)(2)(i) (make medicalexaminations \”available\”), published at 49 Fed. Reg. 25734, 25796-98 (1984); andthe new hearing conservation standard, section 1910.95(l)(1) (make hearing protectors\”available\” when noise above 85 dB), and (l)(2) (\”ensure that hearingprotectors are worn\” under specific circumstances).\u00a0 See 46 Fed. Reg. 42622,42629 (1981) and 46 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 CCHOSHD ? 26,924, p. 34,500 (No. 80-97, 1984); Moore Petroleum Service Co., 84 OSAHRC , 11BNA OSHC 2205, 1984 CCH OSHD ? 27,024 (No. 81-2529, 1984) (lead opinion).”