“SECRETARY OF LABOR,Complainant,v.EQUITABLE SHIPYARDS, INC.,Respondent.OSHRC Docket Nos. 81-208981-168581-1762_DECISION_Before: BUCKLEY, Chairman; WALL Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), 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 has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).Equitable Shipyards, Inc. maintains a ship and barge constructionfacility in Madisonville, Louisiana. On June 3, 1981, Richard K.Crawford, an industrial hygienist for OSHA, monitored three Equitableemployees to measure their exposure to fumes produced by welding. TheSecretary subsequently issued a two-item citation to Equitable in OSHRCDocket No. 81-2089. Item la alleges that Equitable violated themaritime standard formerly at 29 C.F.R. ? 1916.31(a)(1)(ii) by notproviding general mechanical ventilation of sufficient capacity toproduce the air changes necessary to maintain the fumes within \”safelimits.\” Subitem 1b alleges that Equitable violated the maritimestandard formerly at section 1916.82(d)(1) when its employees wereexposed to \”unsafe concentrations\” of welding fumes while not protectedby air-line or filter respirators approved for use in welding fumes. Judge Paul L. Brady affirmed both items. We conclude that the Secretaryfailed to prove that Equitable’s welders were exposed to dangerousconcentrations of welding fumes and vacate both items.I.Section 1916.31(a)(1)(ii), since redesignated section 1915.51(b)(1)(ii),provides:? 1916.31 _Ventilation and protection in welding, cutting and heating_.(a) _Mechanical ventilation; requirements_. (1) For purposes of thissection, mechanical ventilation shall meet the following requirements:(ii) General mechanical ventilation shall be of sufficient capacity andso arranged as to produce the number of air changes necessary tomaintain welding fumes and smoke within _safe limits_. [Emphasis added.]Section 1916.82(d)(1), since redesignated section 1915.152(d)(1), provides:? 1916.82 _Respiratory protection_.(d) _Protection against particulate contaminants not immediatelydangerous to life_. (1) When employees are exposed to unsafeconcentrations of particulate contaminants, such as dust and fumes,mists and fogs or combinations of solids and liquids, they shall beprotected by either air line or filter respirators, except as otherwiseprovided in the regulations of this part. [Emphasis added.]To establish that section 1916.31( a)(ii) was violated, the Secretarymust prove that the mechanical ventilation provided by Equitable was notsufficient to maintain welding fumes within \”safe limits.\” Similarly,to prove section 1916.82(d)(1) was violated, the Secretary must proveEquitable employees were exposed to \”unsafe concentrations\” of weldingfumes. The question here is whether the Secretary properly measured theconcentrations of the fumes.During the inspection, OSHA industrial hygienist Crawford placed deviceson Equitable employees Melvin Glass, Richard Revere, and Thomas Sharp tomonitor their exposures to air contaminants while they were weldinginside the hull of a barge under construction. Mr. Crawford removed thesampling devices at the end of the employees’ eight-hour work shifts. The results of the monitoring showed that the employees were exposed toconcentrations of fumes generated by welding in excess of thoserecommended by the American Conference of Governmental IndustrialHygienists. Equitable argues, however, that these results areunreliable because the devices were improperly placed.Industrial hygienist Crawford had clipped cassette sampling devices ontothe shirt collars of the employees. Equitable vigorously argued beforeJudge Brady that the cassettes should have been placed behind theemployees’ welding hoods. It presented the testimony of Equitablewitness Jerry Riddles, a certified safety professional who had givenseminars for the Texas Safety Association and was employed byEquitable’s parent company to help run its safety and health program. Mr. Riddles testified that to accurately sample the concentration ofwelding fumes breathed by employees, the cassette sampling device\”should be within the confines of the welding shield.\” In explaininghis view, he first noted that welders will spend about fifty percent oftheir time bent over metal that is horizontal. He then explained:If the cassette is put on the outside of the hood, the direct vapors,fumes, are hitting cassette itself. If it’s monitored inside thebreathing zone with [the cassette] inside the hood, the fumes hit thehood; the welding hood shield forms as disperse and go around the hoodand upward. Some are drawn in, but nothing like the direct exposure tothe cassette off of the molten metal.Mr. Riddles also testified that he had conducted tests with samplingdevices both outside and inside welding hoods and that \”the one underthe hood…always [shows a] lower concentration….\”The Secretary presented, however, the testimony of two OSHA employees,industrial hygienist Crawford and R. Dean Wingo, OSHA’s regionalindustrial hygienist. Mr. Wingo testified that the placement of thesampling devices on the employees’ collars was proper because thedevices were within the breathing zone of the employees, \”a one-foot[radius] sphere around the employee’s head.\” He therefore testifiedthat it did not make any difference whether the sampling devices wereinside or outside the employees’ welding hoods. He further testifiedthat he had attempted to conduct tests with sampling devices placedinside welding hoods but had not been able to keep the sampling devicesaffixed to the welding hoods because of the welders’ need to constantlypull their helmets up and down. Mr. Crawford testified that he hadclipped the sampling cassettes to employees’ shirt collars on the basisof an OSHA manual and because the cassettes would in that position bewithin the \”breathing zone\” of the employees.Judge Brady found that the Secretary’s sampling procedure was proper. He based his finding on the testimony of the Secretary’s expert, Wingo,whose testimony he found \”most creditable.\” The judge stated that Mr.Wingo testified that the procedure used in this case for testing wascorrect . . . . Also, the primary purpose of welding hood is to protectthe welder against splatter and radiation during the welding process andnot as a respiratory protective device. [Wingo] stated that thecassette containing the filter should be placed within the employeebreathing zone which is a one-foot sphere around his head and, inaddition, it is not practical to place the cassette under the hood. . . .The Secretary argues that the judge correctly credited Mr. Wingo and theCommission should accept the judge’s evaluation of Mr. Wingo’scredibility. The Secretary also argues that Mr. Riddles’s tests, inwhich he recorded less exposure inside welding hoods, were not shown tohave been conducted under laboratory conditions, and that theirstatistical significance was not presented. Further, Mr. Riddles was nottestifying as an expert industrial hygienistAlthough the question before us is a technical industrial hygiene issue,the Secretary’s review brief presents it to us as primarily involvingthe relative credibility of witnesses. One witness, industrialhygienist Crawford, did refer in his testimony to provisions of OSHA’s_Industrial Hygiene Field Operations Manual_ (\”the IHFOM\”) [[1\/]] butthe parties did not provide the judge with a copy of the manual orcitations to the particular sections involved. Judge Brady thereforehad no opportunity to examine the testimony of the witnesses in light ofits actual provisions. On review, however, Equitable cites twoadministrative law judge decisions that refer expressly to not only theIHFOM but also several additional publications that address the properplacement of sampling devices when measuring airborne concentrations ofwelding fumes. We have reviewed the IHFOM, as well as those otherpublications. As we shall discuss below, a close examination of theIHFOM shows that Mr. Crawford relied upon the wrong air samplingprovision. The other publications cited in the judge’s decisions alsoare illuminating. To resolve this technical issue, we therefore thinkit appropriate to take official notice under section 7(d) of theAdministrative Procedure Act, 5 U.S.C. ? 556(e), of the IHFOM and thoseother materials.[[2]] For these reasons, the issue before us involvesmore than the conventional credibility question discussed by the Secretary.At the time of the inspection, OSHA compliance officers were expected tofollow the guidelines in the IHFOM for conducting health inspections. The section of the IHFOM dealing with sampling certain air contaminantsprescribed a general rule for placing sampling cassettes and a specificrule for placing them when sampling for welding fumes. These rules areas follows:Chapter V _OSHA Standardized Method for Sampling Total Dust, MetalFumes, and Liquid Aerosols_II. _Sampling Procedure_B. _In Field_.6. Attach the cassette assembly to the shirt label of the employee inorder to approximate the breathing zone.C. For welding fumes, the cassette should be located under the weldinghood in the breathing zone.It would seem that industrial hygienist Crawford followed the generalrule for air contaminants rather than the specific rule for welding fumes.The failure to OSHA to follow the IHFOM does not automaticallyinvalidate a citation. _See_ _FMC Corp_., 77 OSAHRC 153\/D4, 5 BNA OSHC1707, 1710, 1977-78 CCH OSHD ? 22,060, p. 26,573 (No. 13155, 1977)(Field Operations Manual). The Commission noted in _FMC_, however, that\”this is not to say that the contests of the manual can never beaccorded significance.\” 5 BNA OSHC at 1710 n. 10, 1977-78 CCH OSHD atp. 22,060 n. 10. We find that the IHFOM’s requirement that a samplingcassette be under a welding hood when testing for welding fumes isprobative evidence of what the proper sampling technique is.As we have noted, some of the evidence on sampling methods introducedinto this record by the Secretary’s attorneys in this litigation isseemingly inconsistent with the special rule in the IHFOM for weldingfumes. Inasmuch as the IHFOM’s sampling provision are not binding onthe Secretary, he may repudiate them if he finds them incorrect orunduly stringent. The Secretary does not, however, expressly claim thatthe technique he used is as good or better than those required by theIHFOM; his brief does not mention the IHFOM. We shall therefore referto the IHFOM with all the other evidence here to determine whether thesampling cassettes were properly placed.In evaluating the probative value of the IHFOM, three points stand out: First, the IHFOM speaks directly and precisely to the question beforeus, drawing a sharp distinction between a general case and the specificcase here. Thus, it contains a separate chapter (Ch. V) detailingOSHA’s standardized method for sampling metal fumes and givingstep-by-step descriptions of sampling procedures. Second, the IHFOM wasintended to comprehensively govern OSHA’s sampling techniques for aircontaminants, not merely provide informal advice to field personnel. The IHFOM provides that all sampling should be performed according tothe standard methods it describes. Ch. I, sections E.4.c and F.5. Third, it speaks not to a question of law but to a technical industrialhygiene question; its answer to that question represents the consideredopinion of OSHA’s national technical staff charged with prescribing themethodology for workplace inspections. We therefore accord the IHFOMsubstantial weight here.The successor to the IHFOM continues its special rule for weldingfumes. On March 30, 1984 the Secretary issued the _Industrial_ _HygieneTechnical Manual_ (\”the IHTM\”) to replace much of the IHFOM. Like theIHFOM, the IHTM requires placement of the sampling cassette deviceinside and employee’s welding hood. A section entitled \”SpecialSampling Procedures\” states in part that \”[i]n sampling for employeeexposure to air contaminants generated during burning and weldingoperations, ensure that the filter cassette is located inside theemployee’s welding hood.\” _Id_., Ch. II, ? F.2.a (emphasis added.)The IHFOM and the IHTM therefore support Mr. Riddles’s testimony. Mr.Riddles’s view is buttressed also by standards issued by two respectedsafety and health organizations. OSHA’s claim that excessive fumeswere produced by welding here is based on a threshold limit valueprescribed by the American Conference of Governmental IndustrialHygienists (ACGIH) in its publication, _Threshold Limit Values forChemical Substances and Physical Agents in the Workroom Environment for1979_ (1979). However, the ACGIH publication strongly implies that todetermine whether a threshold limit value has been exceeded, fumesgenerated by welding must be measured inside the welding hood. Itsdiscussion of welding fumes ends with the following statement: \” Mostwelding, even with primitive ventilation, does not produce exposuresinside the welding helmet above 5 mg\/M3. That which does, should becontrolled.\” _Id_. at 46.[[\/3]] That the ACGIH expressly focuses onthe level of fumes inside the welding helmet as the criterion fordetermining whether to introduce additional ventilation again supportsMr. Riddles’s testimony.Another private standard to much the same effect as the IHFOM wasjointly published in 1985 by the American National Standards Institute(ANSI) and the American Welding Society (AWS) to prescribe proceduresfor sampling welding fumes. Section 7.1.1 of ANSI\/AWS F1.1-1985,_Method for Sampling Airborne Particulates Generated by Welding andAllied Processes_, provides that \”[s]amples shall be taken within thewelder’s helmet.\”[[4]] It also states that the distance between thesampling device and an employee’s mouth should be only about twoinches. A picture in the ANSI\/AWS standard also shows precisely how andwhere the cassette is to be placed inside the welding hood. Althoughthe ANSI\/AWS standard has not been adopted as an OSHA standard, it isevidence of what well informed safety professionals familiar withwelding believe is the proper way to sample welding fumes.As we have noted, Judge Brady did not in his decision evaluate thesignificance of the IHFOM ‘s special provision requiring that cassettesfor sampling welding fumes be place inside the welding hood. This isbecause neither the parties nor the witnesses introduced, mentioned orotherwise brought the special welding fumes provision to the judge’sattention. The judge also did not have before him the IHTM or theANSI\/AWS standard, for they were issued after he made his findings onthis point. Yet, these publications lend substantial support toRiddles’s testimony.Judge Brady was, of course, aware of the conflicting testimony ofMessrs. Wingo find Riddle. He decided the issue in favor of theSecretary, stating that the issue was resolved . . . by Mr. Dean Wingo .. . whose testimony was most creditable.\” But it is not clear thatJudge Brady made a credibility finding. He neither mentioned norexplained why he rejected Mr. Riddles’s testimony. He did not statethat Mr. Wingo had a greater propensity than Mr. Riddles to speaktruthfully or that Mr. Wingo had greater expertise in the matter. Hedid not attribute his evaluation to any quality of the witnesses that hehad observed as they testified. In any event, we have many times statedthat a judge’s credibility evaluation must be explained if theCommission is to defer to it. _See generally_ _C. Kaufman, Inc_., 78OSAHRC 3\/C1, 6 BNA OSHC 1295, 1297-98, 1977-78 CCH OSHD ? 22,481, pp.27,099-27,100 (No. 14249, 1978) and _P & Z Co_., 77 OSAHRC 211\/F5, 6 BNAOSHC 1189, 1192, 1977-78 CCH OSHD ? 22,413, p. 27,024 (No. 76-431,1977). Finally, Judge Brady did not have before him the two OSHApublications and the ANSI\/AWS publication. We are therefore able toview Mr. Wingo’s testimony in a considerably different light than JudgeBrady did.Mr. Wingo’s testimony that the placement of the cassette made nodifference was not based on any test results. Instead, his opinion wasbased on four points: his general view that placing a sampling cassettewithin an employee’s general breathing zone was sufficient; that he wasnot satisfied by the empirical evidence he had seen that the location ofa sampling cassette is significant when measuring welding fumes; that itwas not possible to keep the sampling cassette affixed to welding hood;and that welding hoods were not primarily designed as respiratoryprotection devices. We are not convinced by Mr. Wingo’s testimony.That OSHA, ACGIH, ANSI and AWS all prescribed that sampling cassettesare to be placed inside the welding hood persuades us that the locationadvocated by Mr. Wingo is not appropriate for measuring welding fumes. We also are unconvinced by the implication in Mr. Wingo’s testimony thatcassettes cannot be placed inside the welding hood. For one thing, Mr.Wingo did not testify that they could never be so placed; he stated onlythat it could not be done with the cassettes that OSHA used in thiscase. The ANSI\/AWS standard illustrates a way that cassettes can beclipped to the inside of a welding hood; we also doubt that OSHA, ACGIH,ANSI and AWS would have prescribed that method if it were trulyimpractical. Finally, that welding hoods are not primarily designed asrespiratory protection devices is beside the point if, as OSHA, ACGIH,ANSI and AWS all seem to believe, they have the effect of deflectingwelding fumes from the mouth and nose of a welder.In sum, we agree with Equitable that the Secretary must prove thatsampling cassettes for welding fumes were placed inside the weldinghood. We also find that the Secretary failed to prove that they were. As we have said, industrial hygienist Crawford clipped the cassettes tothe shirt collars of three employees. When he did so, none of the threeemployees were wearing a welding hood. Crawford nevertheless testifiedthat, although he did not see the monitored employees at all timesduring the day, every time he did see them with their welding hoods overtheir faces the sampling devices were located under the welding hoods ofthe employees. Judge Brady did not evaluate this testimony in hisdecision. We shall do so ourselves. _See generally C.Kaufman_, 6 BNAOSHC at 1298, 1977-78 CCH OSHD p. 27,100.We are not convinced by Crawford’s testimony that the cassettes were inthe proper place. Employee Glass, the only one of the three monitoredemployees who testified at the hearing, testified that the samplingdevice was outside his welding hood when the hood was down and he waswelding. Mr. Riddles testified, moreover, that the sampling devicesshown attached to the shirt collars of the three monitored employees inthe Secretary’s photographic exhibits C-7, C-8, and C-9 would not beinside the welding hoods of the employees. We view those exhibits thesame way. The exhibits show the sampling devices attached to theemployees’ shirt collars. All three employees were wearingopen-collared shirts. On two of the employees, the devices rested nearthe employees’ hearts; on the third employee, the device rested in thesame general area, but was on the right side of the employee’s chest. Although the Secretary introduced no evidence on the size of the weldinghoods used here, it seems implausible to us that any commonly usedwelding hood could have regularly covered the cassettes depicted in thephotographic exhibits. In sum, despite the testimony of Mr. Crawfordthat the sampling devices were under the welding hoods when he happenedto notice them, we are not convinced that they were regularly so locatedduring the entire period that the cassettes were worn.Because we find that the Secretary has not proved the propriety ofMr.Crawford’s sampling technique, we are unable to find that the resultsobtained from the sampling show that the employees were exposed tounsafe concentrations of welding fumes. Accordingly, we will vacatecitation items la and 1b, in Docket No. 81-2089.Judge Brady’s decision of April 8, 1982, affirmed citation itemsalleging Equitable’s noncompliance with 29 C.F.R. ? 1916.82(e)(OSHRCDocket No. 81-1685) and 29 C.F.R. ? 1916.35(e)(4)(OSHRC Docket No.81-1762), and vacated a citation item alleging Equitable’s noncompliancewith 29 C.F.R. ? 1916.36(b)(4)(OSHRC Docket No. 81-1762). The partiesdo not dispute the judge’s action on those citation items. Accordingly,the citation item alleging noncompliance with section 1916.82(e) inDocket No. 81-1685 is affirmed, the citation item alleging noncompliancewith section 1916.35(e)(4) in Docket No. 81-1762 is affirmed, and thecitation item alleging noncompliance with section 1916.36(b)(4) inDocket No. 81-1762 is vacated. Items 1a and 1b of the citation inDocket No. 81-2089 are vacated for the reasons we have discussed, unlessthe Secretary requests an opportunity to introduce evidence contrary toofficially-noticed documents within 15 days of this decision.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAR 26, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.EQUITABLE SHIPYARDS, INC.,Respondent.OSHRC Docket Nos.81-1685, 81-1762 and 81-2089(Consolidated)APPEARANCES:Eve Chesbro, Esquire, Office of the Solicitor, U. S. Department ofLabor, Dallas, Texas, on behalf of complainant.Robert E. Rader, Jr., Esquire, McCarty, Wilson, Rader andMash, Ennis, Texas, on behalf of respondent._DECISION ON REMAND_BRADY, Judge: This cast was remanded by the Commission for the purposeof taking the testimony of respondent’s former safety director, TimDorman. It was believed Mr. Dorman’s testimony could be crucial inresolving certain conflicting testimony relating to employee use ofrespirators for protection against welding fumes.The initial decision in 81-2089 was concerned with allegations ofemployee use of the unapproved 3M Model 8710 type respirator. It wasbased on the record as a whole; but chiefly, the testimony of IndustrialHygienist Cannon as it related to employee Mayfield. The Commission didnot agree that the conclusions reached in the decision were supported inthe record and held respondent should have the opportunity to presentthe testimony of Mr. Dorman who did not testify at the hearing.The conflicting testimony in this case involved that of IndustrialHygienist Crawford and employee Melvin Glass. During the course of hisinspection, Crawford positively identified the respirators worn byEmployees, Glass, Revere and Sharp as the unapproved Model 8710. Mr.Glass, however, was equally unequivocal in testifying that he wore theapproved Model 9920 at the time of the inspection. The record showsthat Dorman accompanied Crawford at the time of the inspection whenCrawford observed welders Glass, Revere and Sharp.Pursuant to the Commission’s order of remand, respondent’s applicationto take the deposition of Tim Dorman was granted. Such action was takenover the objection of the Secretary who pointed out that, at the time ofthe hearing, it did not appear a subpoena had been properly served inorder to invoke its enforcement. Counsel for both parties appeared forthe deposition.Mr. Dorman testified that he recalled when Messrs. Crawford and Cannonconducted the testing of the five employee welders subsequent to theinitial inspection (Tr. 10). At that time, he saw \”a couple of fellows\”wearing 9920 respirators. He agreed they were not accompanied when theyentered the holds to weld but assumed they all wore 9920’s (Tr. 13). Mr. Dorman acknowledged the distinction between the 9920 respirator andthe 8710 but indicated such difference was easily detectable only if onewere specifically looking for either type (Tr. 10). During the initialinspection, he observed Crawford interview an employee who wore a 9920(Tr. 13).It is clear from the testimony of Mr. Dorman that he assembled the fivewelders and was present when Mr. Crawford conducted air sampling tests. Although he observed two employees wearing 9920 respirators, they werenot identified nor did he give any other testimony concerning use ofrespirators by the other welders. Accordingly, his testimony failed toresolve the conflicting testimony of Crawford and Glass.The conflict in the testimony must be resolved in favor of complainant. The evidence of record discloses that Industrial Hygienist Crawford, asafety professional, not only testified as to his observations at thetime of the inspection but also wrote down the NIOSH approval numberfrom the respirator Mr. Glass was wearing. This documentation, made inthe course of the inspection, shows the NIOSH number corresponded tothat of the unapproved 8710 respirator which was received intoevidence. This evidence, in light of no further evidence in support ofGlass’ testimony, is convincing and sufficiently supports theallegations that the standard was violated.Dated this 28th day of October, 1985.PAUL L. BRADYJudge————————————————————————SECRETARY OF LABORComplainant,v.EQUITABLE SHIPYARDS, INC.,Respondent.OSHRC Docket Nos. 81-1685, 81-1762,& 81-2089_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 regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).Administrative Law Judge Paul L. Brady affirmed a citation alleging thatEquitable Shipyards, Inc.(\”Equitable\”) failed to protect certainemployees against overexposure to welding fumes by assuring that theemployees wore respirators and by providing sufficient mechanicalventilation. In addition to arguing that it has not violated the citedstandards, Equitable contends that (1) all evidence gathered by theSecretary of Labor during his inspection of Equitable’s workplace shouldbe suppressed because there was no probable cause for the inspection;(2) The judge erred in declining to enforce a subpoena Equitable hadissued to Tim Dorman, Equitable’s safety director at the time of thealleged violations; and (3) the judge erred in not ordering theSecretary to turn over to Equitable written statements the Secretary hadobtained from certain Equitable employees. We conclude that Equitable’smotion to suppress was properly denied. We further conclude, however,that the judge erred in declining to enforce the Dorman subpoena andthat a remand for further proceedings is therefore required.IEquitable operates a shipyard in Madisonville, Louisiana. Following acomplaint by employees of unsafe working conditions, two OSHA complianceofficers attempted to inspect the facility. When Equitable refused toconsent to the inspection, OSHA obtained a warrant from a federalmagistrate authorizing it to inspect the areas in the shipyard that werementioned in the employee complaint. Equitable again refused to permitthe compliance officers to conduct the inspection and filed suit infederal district court seeking to have the warrant quashed on the groundit was not supported by probable cause. The district court found therewas probable cause to support the warrant and ordered that theinspection be conducted according to its terms. Ultimately, theinspection was conducted, and Equitable was cited for violating severalOSHA standards on the basis of information gathered during the inspection.Equitable argues that the evidence gathered during the inspection shouldbe suppressed and the citations vacated because probable cause forissuance of the warrant was lacking. We reject the argument.In Chairman Buckley’s view, the Commission has no authority to review orset aside the probable cause determination made by a federal judge ormagistrate who issues a search warrant. _Brooks Woolen Co_., OSHRCDocket Nos. 79-45 and 79-128, slip op. at 2-3 (April 10, 1985) (view ofChairman Buckley). Where an inspection was conducted pursuant to awarrant, the Commission can consider challenges to the warrant based onallegations that the Secretary acted illegally in obtaining or executingthe warrant. _Id_. In this case, Equitable claims no misconduct on theSecretary’s part; it argues only that the probable cause determinationmade by the magistrate and upheld by the district court judge was inerror. As the Commission has no authority to rule on such an argument,Chairman Buckley would deny the motion to suppress. _Id_.; _BeautyCraft Tile of the Southwest, Inc._, 84 OSAHRC, 12 BNA OSHC 1082, 1083,1984 CCH OSHD ? 27,091, pp. 34,929-30 (No. 80-471, 1984).Commissioner Cleary finds the warrant is supported by probable cause. The Secretary sought the warrant after receiving a formal, signedcomplaint from five employees listing a number of purportedly unsafeconditions in the Erection and Rake areas of Equitable’s shipyard. Thecomplaint stated that employees were exposed to toxic air contaminantsfrom painting and welding operations, to fire hazards due to improperlymaintained welding equipment, to fall hazards due to improperlytightened safety lines, to a slipping hazard due to oil leaking on bargedecks, and to electrical shock due to improperly maintained weldinglines and to welding in wet and rainy weather. The warrant applicationset forth the substance of the employee complaint and sought to inspectonly those areas of the shipyard mentioned in the complaint. Thewarrant that was issued was similarly limited. The informationpresented in the warrant application was sufficient to establishprobable cause for the limited-scope warrant that the magistratedissued. _See_ _Sarasota Concrete Co_. 81 OSAHRC 48\/A2, 9 BNA OSHC 1608,1615-16, 1981 CCH OSHD ? 25,360, pp. 31,534-35 (No. 78-5264, 1981),_aff’d_, 693 F. 2d 1061 (11th Cir. 1982)Even if the warrant was not supported by probable cause, CommissionerCleary would not suppress the evidence. The Supreme Court has held thatevidence should not be suppressed when an officer acting with objectivegood faith has obtained a warrant from a judge or magistrate and actedwithin its scope. _United State. v. Leon_, 104 S.Ct. 3405, 3420 (1984). Commissioner Cleary would apply that same rule to Commissionproceedings. _Davis Metal Stamping, Inc._, OSHRC Docket No. 78-5775(April 15, 1985). In this case, the compliance officers who inspectedEquitable’s workplace were clearly entitled to rely on the validity ofthe warrant. The warrant had been duly issued by a magistrate and, priorto its execution, the magistrate’s probable cause determination had beenupheld by the federal district court. Equitable does not argue that thecompliance officers acted in other than good faith in obtaining andexecuting the warrant and does not advance any reason why they were notentitled to rely on the warrant’s validity. _Cf. United_ _States v.Leon_, 104 S.Ct. at 3421-22 (suppression of evidence is appropriate ifmagistrate was misled by knowingly or recklessly false information in anaffidavit, or if affidavit was \”so lacking in indicia of probable causeas to render official belief in its existence entirely unreasonable.\”) Because the compliance officers conducted the inspection in objectivelyreasonable reliance on the validity of the warrant, there is no basis tosuppress the evidence. _See_ _Donovan v. Federal Clearing Die CastingCo_., 695 F.2d 1020 (7th Cir. 1982).IIEquitable next asserts that the Judge erred in refusing to enforce asubpoena issued to Equitable’s safety director, Tim Dorman. Dorman wasthe company’s principal representative during the inspection. At thetime of the hearing, Dorman was no longer employed by Equitable and hadmoved to San Francisco. Equitable attempted to obtain Dorman’stestimony by means of a subpoena. _See_ 29 C.F.R. ? 2200.55 (Commissionrule governing subpoenas). The facts surrounding service of thesubpoena are not fully developed in the record, but Dorman apparentlyreceived notice of it for he wrote a letter to Equitable’s counseldeclining to appear at the hearing. At the outset of the hearing,Equitable moved for enforcement of the subpoena. The judge reservedruling at that point. When Equitable renewed its motion at the close ofits evidence, the judge denied the motion, stating that Dorman’stestimony \”is not crucial to this proceeding.\”We conclude that the judge erred in declining to enforce the subpoena onthat ground. On at least one material issue of fact, there is a sharpconflict in the evidence, and Dorman’s testimony could be crucial inresolving that point. Moreover, as Equitable’s safety director andrepresentative during the inspection, Dorman would ordinarily beexpected to be an important witness forEquitable. Under the circumstances, fundamental fairness requires thatEquitable be given the opportunity to obtain Dorman’s testimony.The issue on which there is conflicting evidence concerns the type ofrespirator certain Equitable employees were using during theinspection. One of the citation items on review alleges that fivewelders were exposed to excessive levels of welding fumes while notwearing respirators approved for use against welding sample. Althoughfour of the employees were observed by the Secretary’s complianceofficers to be wearing respirators, the Secretary alleged that thoserespirator not approved for welding fumes. The Secretary also allegedthat the fifth employee was not wearing any respirator at all. Equitable contends that it provided respirators approved for use againstwelding fumes and that its employees were required to wear suchrespirators whenever welding. The company further contends that theevidence does not support the Secretary’s allegation that the fiveemployees in question were not wearing proper respirators.During the inspection, OSHA compliance officers monitored the fiveemployees to determine the concentrations of welding fumes to which theywere exposed. Compliance officer Crawford monitored three of theemployees: Glass, Revere, and Sharp. Crawford was accompanied byDorman during this phase of the inspection. Crawford testified thatGlass, Revere, and Sharp wore 3M model 8710 respirators, which provideprotection against dust but are not approved for welding fumes. Crawford stated that he wrote down the NIOSH approval number from therespirator that Glass was wearing. That number, TC-21C-132, correspondsto the approval number of the 8710 respirator that was introduced intoevidence. Crawford further testified that the 8710 respirator appearedsignificantly different from the 3M model 9920 respirator that Equitableclaims the employees were wearing and which is approved for weldingfumes. Samples of both respirators were introduced into evidence andsupport Crawford’s testimony that two respirators are distinct inappearance and could not be confused.Of the three employees observed by Crawford, only Glass testified. Whenshown a 9920 respirator, Glass stated that it was the type of respiratorhe had been at the time of inspection. Glass answered affirmativelywhen asked if he was absolutely positive that the 9920 was the type ofrespirator he been wearing. stating: \”You wear one every day of yourlife while you’re working, you ought to recognize it.\” Glass was nolonger working for Equitable at the time of the hearing and had noapparent interest in the outcome of the case.Two employees, Cooper and Mayfield, were monitored by compliance officerCannon, who was accompanied by Equitable’s safety inspector Stein. Cannon testified that Cooper was wearing a model 8710 respirator. Hedid not observe the model number on the respirator but identified it asan 8710 because it possessed two straps instead of only one. Steinidentified the respirator that Cooper was wearing as a 9920. Therespirator samples introduced into evidence show that both the 8710 and9920 have two straps.Cannon testified that Mayfield was not wearing any type of respiratorand had no respirator with him when he went into the wing wall, where heperformed welding that day. However, Cannon stated that he placed thesampling cassettes, on the employees before they went into the wing walland that he would not have seen if Mayfield put on a respirator insidethe wing wall. Nevertheless, Cannon was certain that Mayfield did notuse a respirator inside the wing wall. He stated, \”Every time he cameout, he didn’t take one off, and as far as I know, he had noneavailable. He may have had one available, but he was not utilizingone.\” Stein testified that both Cooper and Mayfield had respirators withthem when they went into the wing wall, and he did not observe either ofthem welding without wearing a respirator.The judge did not resolve the conflicts in the evidence. Instead, hebelieved the parties had stipulated that the employees in question werewearing 8710 respirators at the time of the inspection and, on thisbasis, he affirmedEquitable argues on review that no such stipulation wasAt the beginning of the motion of the hearing devoted to the wellcitation. Equitable’s counsel did express a willingness tostipulated to the type of respirators being worn, but no suchstipulation was ever completed. After the Secretary’s counsel statedher intention to call several Equitable employees as witnesses, thefollowing exchange ensued:Judge BRADY: You don’t have any problem with that, do you, Mr.Rader?MR. RADER [Counsel for Equitable]: No, Your Honor. Of course, again, Idon’t know, but if the purpose of calling – employees is to testify thatthey wore this particular respirator, then we would stipulate that.JUDGE BRADY: Let’s get off the record to discuss this.(Off-the-record discussion).JUDGE BRADY: Let’s go back on the record. During the off-the-recorddiscussion meeting of the parties, there has been a stipulationreached. Do you want to cite the terms of the agreement, Mr. Rader?MR. RADER: Your Honor, it’s my understanding that the Secretary intendsto call some employee witnesses for thepurpose of establishing that on a day personal monitoring was conducted,that their work load was normal, that the ventilation was normal. Andwe’re certainly willing to stipulated to that point.MS. GANNAWAY [Counsel for the Secretary]: Right Your Honor. Forclarification, the purpose being that the Secretary is establishing thatthis was a routine work day, that it’s representative of the nature andthe extent and the quantityof work performed by these workers on a typical work day, that there wasnothing out of the ordinary on the day of personal monitoring.The exchange cannot be construed to include a stipulation thatEquitable’s 8710 respirators. The offer by Equitable’s counsel tostipulate to the type of respirator did not mention a model number, andthere had been no previous mention at the hearing of the 8710 respiratorthat would indicate that the previous mention at the hearing of the 8710respirator that would indicate that the reference to \”this particularrespirator\” meant the model 8710.[[1]] Moreover, the stipulation thatwas ultimately entered involved only the representativeness of the workload and ventilation on the day monitoring was performed, not the typeof respirator being worn. The subsequent course of the hearing is alsoinconsistent with any suggestion that the parties understood there was astipulation concerning the type of respirator the welders were using. The parties introduced conflicting evidence on the point, and each sidecross-examined the other party’s witnesses who testified on thesubject. At no time during the hearing did either party suggest thatthis lengthy testimony was unnecessary because a stipulation hadresolved the issue.In declining to enforce the subpoena on the basis that Dorman’stestimony was not crucial, the judge apparently acted on his belief thatthe parties had stipulated that the welders wore unapprovedrespirators. However, that issue not only remains in dispute, theevidence on it is sharply contradictory. In particular, Crawford’stestimony positively identifying the respirators worn by Glass, Revere,and Sharp as 8710’s conflicts with Glass’ equally unequivocal testimonythat he was wearing a 9920. Dorman accompanied Crawford during theportion of the inspection when Crawford observed Glass, Revere, andSharp. Equitable made an offer of proof that Dorman would testify thatthe employees were respirators.[[2]] Under these circumstances,Equitable is entitled to the opportunity to present Dorman’s testimony.[[3]] We reject the argument that Dorman’s testimony is not neededbecause other persons Revere and Sharp, could shed additional light onthe issue. We are unwilling to second guess counsel’s choice of onewitness over another; that several persons may have knowledge of aparticular fact should not preclude from presenting the witness of itschoice.The Secretary argues in his brief to the Commission that the subpoenashould not be enforced because it was not properly served on Dorman. Wesee no reason to resolve this point now. First, it is not clear thatthe Secretary may raise this objection; in general, a party lacksstanding to raise objections to a subpoena issued to another person. _See_ _Lee Way Motor Freight_, 75 OSAHRC 20\/E12, 3 BNA OSHC 1843, 1846,1975-76 CCH OSHD ? 20,250, p. 24,144-45 (No. 7674, 1975. Second, thejudge did not base his ruling on the Secretary’s objection and has notyet had occasion to consider it. Where there is a question as towhether a subpoena was properly served, a definitive ruling can be madein a proceeding to enforce the subpoena. _National Labor RelationsBoard v_. _Strickland_, 321 F.2d 811, 814 (6th Cir. 1963).IIIDuring the inspection, the compliance officers obtained writtenstatements from a number of Equitable employees. Equitable sought toobtain those statements through discovery and submitted to the Secretarywritten forms signed by nineteen employees authorizing the release oftheir statements to Dorman, who was then still Equitable’s safetydirector. The Secretary refused to produce the statements and the judgedid not order them produced. Equitable contends that the judge erred infailing to order the Secretary to turn over the statements.We find it unnecessary to resolve this issue. Equitable had claimedbefore the judge that the employees’ statements pertained to \”several\”citation items and that the employees had made effective waivers of theinformer’s privilege. The judge did not order disclosure. In hisdecision, the judge affirmed several citation items and modified one toa _de_ _minimis_ notice. Equitable sought and obtained discretionaryreview of the judge’s disposition of only two of these items — subitems1(a) and 1(b) of serious citations 2 in docket no. 81-2089. These itemsallege that five named employees were overexposed to welding and ironoxide fumes on June 3, 1981, that mechanical ventilation was inadequate,and employees were not wearing the appropriate respirators. TheSecretary argues in answering brief on review, and Equitable does not inits reply brief dispute, that the issue of the production of thestatements does not pertain to the citation items still in controversy. Aside from a technical dispute over where personal sampling devicesshould have been placed on the five employees, the only disputedquestion of fact on review is whether the five employees wearingrespirators approved for welding fumes. The nineteen statements thatEquitable sought were made by any of those five employees about twomonths before the alleged violations before us occurred. Equitabledoes not seek the disclosure of any statements made by the fiveemployees and it has not produced any written waivers signed by them. Although the statements sought were apparently relevant to two otheritems that the judge had respectively affirmed without penalty and hadmodified to a _de_ _minimis_ notice, Equitable did not seekdiscretionary review as to them. We therefore have no occasion at thistime to address the disclosure issue.Accordingly, the judge’s decision is set aside to the extent it isinconsistent with this decision, and the case is remanded for furtherproceedings in accordance with Part II of this opinion.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 18 1985————————————————————————SECRETARY OF LABOR,Complainant,v.EQUITABLE SHIPYARDS, INC.,Respondent.OSHRC Docket Nos.81-1685, 81-1762 & 81-2089(Consolidated)APPEARANCES:Bobbie J. Gannaway, Esquire, Office of the Solicitor, U. S. Departmentof Labor, Dallas, Texas, on behalf of complainantRobert E. Rader, Jr., Esquire, Ennis, Texas, on behalf of respondent_DECISION AND ORDER_BRADY, Judge: This proceeding is brought pursuant to section 10 of theOccupational Safety and Health Act of 1970 (\”Act\”) to contest threecitations and proposed penalties issued by the Secretary of Labor(\”Secretary\”) pursuant to section 9(a) of the Act. Respondent is chargedwith violating specific occupational safety and health standards atMadisonville, Louisiana, where it is engaged in ship and bargeconstruction. Three separate dockets have been consolidated into theproceeding for purposes of hearing and decision._Preliminary Matters_Respondent’s answer to the complaint in this case contains an allegationthat the inspection herein was conducted pursuant to an illegal warrantand, therefore, evidence obtained as a result of the inspection must besuppressed for lack of sufficient probable cause. At the commencementof the hearing, respondent renewed the motion to suppress all evidenceunder the precedent of _Secretary v. Sarasota Concrete Co_., 81 OSAHRC48\/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ? 25,360 (No. 78-5264, 1981). At that time respondent was permitted to examine Mr. Carl Groseregarding his affidavit, upon which the warrant was issued. The recorddiscloses that following a hearing on the validity of the warrant, aUnited States District Court judge entered an order on March 26, 1981,denying respondent’s motion for a preliminary injunction and itsapplication to quash the warrant.Clearly, respondent had ample opportunity to be heard on any question ofprobable cause at the time of the hearing in the District Court. Inaddition, the order of March 26, 1981, must be held determinative as itwas entered prior to the Commissions decision on April 28, 1981, in_Sarasota Concrete Co_., _supra_._Alleged Violation of 29 C.F.R. ? 1916.35(a)(4)_The standard, which relates to fuel gas and oxygen manifolds used inwelding, requires:When not in use, manifold and header hose connections shall be capped.The citation describes the alleged violation as follows:Manifold and header base connections were not capped in the Rake EndErection Areas; threads were exposed to damage and or accumulation ofgrease\/oil.Mr. Richard Crawford, industrial hygienist, testified that he observedthe violative conditions as depicted in Exhibits C-2 and C-3 in morethan one location. He explained further that oxygen leaking without thecaps in place can be easily ignited (Tr. 81-82).The evidence indicates that caps had beat provided and even bars hadbeen placed across the manifolds in an attempt to protect the threads,but respondent argues it is impossible to continually provide therequired protection (Tr. 107). The alleged conditions are not denied,but respondent contends no hazard has been shown to exist as a resultthereof.When asserting employee conduct has prevented an employer fromcompliance with a standard, it is necessary that the employer show thatit has established work rules designed to prevent the violation, hasadequately communicated these rules to its employees, has taken steps todiscover violations, and has effectively enforced the rules whenviolations have been discovered. _Asplundh Tree_ _Expert Co_. 78 OSAHRC77\/E12, 6 BNA OSHC 1951,1978 CCH OSHD ? 23,033 (No. 16162, 1978);_Mountain States_ _Telephone & Telegraph Co_., 78 OSAHRC 30\/A2, 6 BNAOSHC 1504, 1978 CCH OSHD ? 22,668 (No. 13266, 1978), _appeal_ _filed_,No. 78-1438 (10th Cir., June 2, 1978).In this case respondent introduced evidence of its safety program andwork rules, which were communicated to employees. There has been afailure, however, to demonstrate that such rules were effectivelyenforced regarding these alleged violative conditions. The record showsthat the inspections were conducted on February 19, March 31, and April1, 1981. On a follow-up inspection June 3,1981, the condition was againfound to exist. Since there is a showing respondent was aware of thecondition at the time of the initial inspection, it cannot be heard toargue there is effective enforcement of rules when a violation has beenso recently discovered (Tr. 86).Even though the inspecting officer did not recall whether employees werein the immediate vicinity of the uncapped manifold and hose connections,the evidence sufficiently shows there was access to the hazard. Hestated employees were in the area of the manifolds and \”walkingvirtually in all directions in the (Tr. 83). Further, the recordreveals a great deal of welding was taking place which required activeuse of the manifolds by employees, as shown in Exhibits C-2 and C-3, atthe time of the initial and follow-up inspections._Alleged Violation of 29 C.F.R. ? 1916.36(b)(4) _The standard which pertains to welding cables provides as follows:Only cable free from repair or splices for a minimum distance of ten(10) feet from the cable end to which the electrode holder is connectedshall be used, except that cables with standard insulated connectors orwith splices whose insulating quality is equal to that of the cable arepermitted.The alleged violation is described in the citation as follows:Rake End Area, Central Welding Unit location–D.C. Lincoln Welding Unit,account #2834, serial #A-424116, was in operation with electrode lead inpoor repair, i.e. insulation missing and wire nearly severed.Mr. Crawford testified that he observed an employee of respondent usingcable which was in need of repair as depicted in Exhibits C-4 and C-5(Tr. 87).Respondent does not deny use of the worn and frayed cable but assertedthe defense of an isolated incident of employee misconduct. Even thoughrespondent did not call the employee using the cable as a witness, therecord sufficiently establishes adequate precautions were taken tocomply with the standard.Mr. Bruce Stein, a yard safety inspector, testified that respondent hasa program for inspecting and repairing cable and of effectivelycommunicating and enforcing such a program. He stated that newemployees are required to attend a safety orientation program, areprovided safety manuals (Ex. R-5) and are subsequently, required toattend safety meetings at least twice per month (Tr. 294-298, 324-325).The evidence is not disputed that respondent had approximately 25,000feet of welding cable on the ground in the rake and erection areas. Thefact that only one cable was in need of repair in two places must beviewed as an effective demonstration of administering its work rules toprevent the violation (Tr. 300). Under the circumstances, it has notbeen sufficiently established that respondent possessed knowledge of theviolative condition essential to proof of a violation in light of theasserted defense. Respondent is deemed to have done all that reasonablycould have been expected of it to insure compliance with the standard. _See_ _Floyd S. Pike Electrical Contractor, Inc_., 78 OSAHRC 50\/E1, 6BNA OSHC 1675, 1978 CCH OSHD ? 22,805 (No. 3069, 1978)._Alleged Violation of 29 C.F.R. ? 1916.82(e)_This standard applies to respiratory protective equipment and states inpertinent part as follows:Protection against combinations of gaseous and particulate contaminantsnot immediately dangerous to life. (1) When employees are exposed tocombinations of gaseous and particulate contaminants not immediatelydangerous to life, as in spray painting, they shall be protected byrespiratory protective equipment approved for use in the type andconcentration of the contaminants ….The alleged violation is described in the citation as:Employees, while spray painting the outside sections of barges, wereprovided with and instructed to use \”3M Model 8711\” disposable paintspray respirators. That model was not approved by the NationalInstitute for Occupational Safety and Health.There is no dispute that spray painting is only permitted with\”approved\” use of respiratory equipment, and respondent conducted suchoperations with an unapproved 3M 8711 model respirator (Tr. 119-120).Respondent contends that the Model 3M 8711 is as good as or better thana respirator which is NIOSH approved. Mr. Crawford agreed that if suchwas the case, there would be no immediate relationship to safety andhealth (Tr. 124). Complainant insists, however, that if the respiratoris not \”approved\” for a work operation, the employer should be requiredto establish the effectiveness of such a respirator.Complainant agreed to reduce the nonserious, no penalty classificationto a _de_ _minimis_ character if respondent furnished an affidavit froma qualified respirator expert that the 3M 8711 is appropriate for use inpaint spray operations (Tr. 34).Attached to respondent’s brief was a copy of an affidavit of a Mr. Jerrywho states that he is involved in the development of products in thesafety and health field, including the Model 8711 respirator, for the 3MCompany. He avers that in his capacity he has knowledge of the design,industries and capabilities of the Model 8711 respirator and, when usedin with instructions, it will perform as well as, if not better than,conventional NIOSH\/MSHA approved spray respirators. Although anaffidavit was not provided counsel for the Secretary prior to filingbriefs as anticipated, the circumstances warrant a finding of a _de__minimis_ violation.The standard specifically applies to particulate contaminants which are\”not dangerous to life.\” The evidence does not show the existence of aparticular hazard through use of the respirator, but the only issuerelates to employee protection with \”approved\” respiratory equipment.Mr. Crawford stated that the employees in the exterior paintingoperation were exposed to paint particulates and vapors, and themanufacturer represents that the respirator provides the necessaryprotection for employees against such spray and vapor.The brochure of the 3M Company which relates to the Model 8711 states:NIOSH\/MSHA APPROVAL STATUSThe 3M Brand Spray Paint Respirator #8711 is not approved by NIOSH\/MSHAat this time because there are no performance testing criteria for thistype of respirator. NIOSH\/MSHA has been requested to developperformance criteria tests for this type of spray paint respirator. Wehave on file data to show that the #8711 respirator performs as well asif not better than a NIOSH\/MSHA approved respirator for spray paintingapplications.Considering all the evidence, the violation comes within the purview ofthose that are so remotely related to employee health as not to warrantimposition of an abatement requirement or assessment of a penalty. Therefore, it is held to be _de_ _minimis_. _See_ _SouthwesternElectric Power Co_., 80 OSAHRC 81\/C7, 8 BNA OSHC 1974, 1980 CCH OSHD ?24,732 (Nos. 77-3890 & 77- 3391)._Alleged Violations of 29 C.F.R. ? 1916.31(a)(1)(ii) and 1916.82(d)(1)_The standard at section 1916.31(a)(1)(ii) pertains to mechanicalventilation for welding and states as follows:General mechanical ventilation shall be of sufficient capacity and soarranged as to produce the number of air changes necessary to maintainwelding fumes and smoke within safe limits.Section 1916.82(d)(1) relates to personal respiratory protection foremployees and states:_Protection against particulate contaminants not immediately dangerousto life_. (1) When employees are exposed to unsafe concentrations orparticulate contaminants, such as dusts and fumes, mists and fogs orcombinations of solids and liquids, they shall be protected by eitherair line or filter respirators, except as otherwise provided in theregulations of this part.The alleged violations are described in the citation as:(a) During the day shift on June 3, 1981, employees while welding,inside the wing walls of barges in the erection area and inside of therake ends of barges in the rake area, were exposed to eight (S) hourtime weighted average concentrations of welding fumes (total) and ironoxide fume in excess of the American Conference of GovernmentalIndustrial Hygienists’ threshold limit values [welding fumes – 5.0mg\/M3, iron oxide fume — 10.0 mg\/M3] as follows:1) rake areaa. employee number 1 welding fumes – 26.85mg\/M3iron oxide fume – 11.26 mg\/M3b. employee number 2welding fumes – 20.78 mg\/M3iron oxide fume – 19.16 mg\/M3c. employee number 3welding fumes -8.47 mg\/M32) erection areaa. employee number 1welding fumes – 7.81 mg\/M3b. employee number 2welding fumes – 10.25 mg\/M3The violation of section 1916.82(d)(1) is described as:Four of the employees wore 3M Number 8710 Dust Masks and one wore norespirator at all. 3M Number 8710 Dust Masks were not approved forprotection against welding fumes and would not protect wearers from fumeexposure. In addition two of the employees wore the mask over a fullbeard which would have prevented a proper face to face piece seal.Respondent did not refute the evidence of personal monitoring resultsthat established five employees were overexposed to welding fumeparticulates and\/or iron oxide fumes (Ex. C-10). This included Mr.Crawford’s testimony that failure to provide sufficient generalmechanical ventilation to welders in the rake and erection areasresulted in the exposure of employees to fumes beyond safe limits inviolation of section 1916.82(d)(1) (Tr. 189-190). The question wasraised, however, the method of sampling by placing the cassette orfilter outside the welding hood. It was indicated that there is lessexposure inside the hood.The issue was resolved, however, by Mr. Dean Wingo, an expert onrespirators whose testimony was most creditable. He testified that theprocedure used in this case for testing was correct (Tr. 414). Also,the primary purpose of a welding hood is to protect the welder againstsplatter and radiation during the welding process and not as arespiratory protective device. He stated that the cassette containingthe filter should be placed within the employee breathing zone which isa one-foot sphere around his head and, in addition, it is not practicalto place the cassette under the hood (Tr. 423-424). Mr. Crawford statedthat if respondent’s employees used proper respirators, the citationwould not have included the alleged violation of 29 C.F.R. ?1916.82(d)(1) (Tr. 225). Respondent, therefore, asserts that thecentral issue is whether proper respirators were provided its weldersand whether rules for use thereof were enforced.The evidence clearly establishes that four welders were using 3M 8710dust mask respirators, which are not sufficient for protection againstwelding fumes and\/or iron oxide fumes, and one employee was observedwearing no respirator at all (Ex. C-10; Tr. 137). The evidence alsoestablishes, and there is no dispute, that respondent had a writtenrespiratory program which provided that NIOSH approved 3M Model 9920respirators are to be used for protection against welding fumes. Clearly, use of Model 9920 would provide the required protection, butthe question presented is the adequacy of respondent’s program for theiruse. Mr. Stein, the yard safety inspector, testified that respondent’spolicy was communicated to the employees through new employeeorientation and the respective foremen in the work areas (Tr. 311).The crucial question in this instance is whether the safety rule wasproperly enforced by respondent. The monitoring results as revealed inExhibit C-10 show that Mr. Melvin Glass, a welder, was wearing a Model8710 dust respirator. He was subsequently called as a witness forrespondent and testified he was wearing the approved Model 9920respirator at the time he was monitored (Tr. 280, 282). His testimonywas, thus, in direct conflict with Mr. Crawford, the inspectingofficer. Respondent contends the inspector erroneously believed thewelders were wearing Model 8710 but, in fact, wore Model 9920 asrequired by the safety policy.Without determining the veracity of the testimony presented, it is notedthat the complainant, during its case in chief, was prepared to offertestimony by several employees that they wore unapproved masks ratherthan the Model 9920 respirator. The parties stipulated this fact, andcomplainant’s subpoenaed witnesses were released prior to theconflicting testimony of Mr. Glass (Tr. 136-137). Even if it wereassumed Mr. Glass wore the approved respirator, the evidence remainsthat three employees wore the unapproved type respirator and one waswithout any protection. Since it is established that four employeeswere without proper protection, it must be held the safety policy ofrespondent was either not adequately communicated to the employees or itwas not adequately enforced. _See_ _Floyd S. Pike ElectricalContractor, Inc_., _supra_. The defense of isolated incident ofemployee misconduct is, therefore, without merit and the standard wasviolated as alleged.The violations having been established, it must now be determinedwhether they are of a serious nature as alleged. For a violation to bedetermined serious under Section 17(k) of the Act, there must be asubstantial probability that death or serious physical harm could resulttherefrom. The record clearly reflects that employees were exposed toexcessive concentrations of welding and iron oxide fumes whichnecessarily show a substantial probability that serious physical harmcould result. The violations must, therefore, be held as serious withinthe meaning of the Act.The next question for determination concerns the amount of penalty to beassessed for the violations. Under section 17(j) of the Act, theCommission is required to find and give \”due consideration\” to the sizeof the employee’s business, the gravity of the violation, the good faithof the employer, and the history of previous violations in determiningthe assessment of an appropriate penalty. The gravity of the offense isthe principal factor to be considered. _Nacirema Operating Company,Inc_., 72 OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,032 (No.4, 1972). The Commission stated in _Secretary v. National Realty_ _andConstruction Co. Inc_., 72 OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCHOSHD ? 15,188 (No. 85, 1971), that the elements to be considered indetermining the gravity are: (1) the number of employees exposed to therisk of injury; (2) the duration of exposure; (3) the precautions takenagainst injury, if any; and (4) the degree of probability of occurrenceof injury.Weighing all the foregoing factors in light of the circumstances,including respondent’s attempts at compliance, it is concluded that apenalty in the amount of $200 is deemed appropriate._FINDINGS OF FACT_1. Equitable Shipyards, Inc., at all times hereinafter mentioned,maintained a place of business, at Highway 21, Madisonville, Louisiana,where it is engaged in ship and barge construction.2. On February 19, March 31 and April 1, 1981, authorizedrepresentatives of the Secretary conducted inspections of theaforementioned work site. As a result of the inspections, respondentwas issued three citations with notice of proposed penalties.3. In the rake end and erection areas of respondent’s work site manifoldand header hose connections were not capped. Caps were provided, but thesafety rule requiring use of such capping was not adequately enforced. 4. Approximately 25,000 feet of welder’s cable was being used at thetime of the inspection. 5. Employees spray painting the outside sections of barges at the timeof the inspections used \”3M Model 8711\” disposable paint sprayrespirators which were not approved by NIOSH. Use of such respiratorsfor the work being performed is not deemed to have an immediaterelationship to the employees’ health or safety.6. Employees working inside the wing walls of barges were withoutsufficient general mechanical ventilation to maintain welding fumes andsmoke within safe limits.7. Welders inside the wing walls were not protected by respiratorsagainst the welding and\/or iron oxide fumes._CONCLUSIONS OF LAW_1. Equitable Shipyards, Inc., at all times pertinent hereto, was anemployer engaged in a business affecting commerce within the meaning ofsection 3(5) of the Occupational Safety and Health Act of 1970, and theCommission has jurisdiction of the parties and subject matter hereinpursuant to section 10(c) of the Act.2. Respondent is, and at all times pertinent hereto, required to complywith the safety and health regulations promulgated by the Secretarypursuant to section 6(a) of the Act.3. Respondent was in violation of the standard at 29 C.F.R. ?1916.35(a)(4) at the time of the inspections herein.4. Respondent was not in violation of the standard at 29 C.F.R. ?1916.36(b)(4) at the time of the inspections herein.5. Respondent was in violation of the standard at 29 C.F.R. ?1916.82(e) at the time of the inspections herein. The violation was ofa _de_ _minimis_ nature.6. Respondent was in violation of the standard at 29 C.F.R. ?1916.31(a)(1)(ii) at the time of the inspections herein.7. Respondent was in violation of the standard at 29 C.F.R. ?1916.82(d)(1) at the time of the inspections herein.Upon the basis of the foregoing findings of fact and conclusions of law,and the entire record, it is ORDERED:1. That part or Citation No. 2 of Docket No. 81-1762 allegingviolations of 29 C.F.R. ? 1916.35(a)(4) is hereby affirmed.2. That part of Citation No. 2 of Docket No. 81-1762 alleging aviolation of 29 C.F.R. ? 1916.36(b)(4) is hereby vacated.3. That Citation No. 1 of Docket No. 81-1685 is hereby affirmed as a_de_ _minimis_ violation.4. That Citation No. 2 of Docket No. 81-2089 is affirmed and a penaltyin the amount of $200 is hereby assessed.Dated this 8th day of April, 1982.PAUL L. BRADYJudgeSECRETARY OF LABOR,Complainant,EQUITABLE SHIPYARDS, INC.,Respondent.OSHRC DOCKET NOS.81-168581-176281-2089_ORDER_No response having been received from the Secretary, in accordance withthe Commission decision issued March 26, 1987, these cases are finalorders as of the date of this order.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APRIL 14, 1987————————————————————————FOOTNOTES:[[1\/]] The text of the IHFOM as of January 1, 1979, is reproduced in CCHEmployment Safety & Health Guide, OSHA Field Operations Manual andIndustrial Hygiene Field Operations Manual (1979).[[2]] Section 7(d) states in part that \”[w]hen an agency decision restson official notice of a material fact not appearing in the evidence inthe record, a party is entitled, on timely request, to an opportunity toshow the contrary.\” We will afford the Secretary this opportunity.[[3\/]] The latest edition of the ACGIH booklet also contains the samestatement. See ACGIH, _Threshold Limit Values for_ _Chemical Substancesin the Work Environment for 1984-85_, 47 (1984).[[4]] The section states in full:7. _Sampling Technique _7.1 _Breathing Zone Helmet Test_7.1.1 Samples shall be taken within the welder’s helmet. The filtercassette assembly may be inserted through a hole in the helmet orclipped and positioned inside the helmet as shown in Fig. 1. In eithercase, the cassette inlet shall be positioned so that it is maintainedapproximately 2 in. (50 mm) from the center line of the breathing zoneat the welder’s mouth level while the helmet is down in the weldingposition. The cassette inlet shall not be positioned in the upwarddirection. Inlet extension tubes are not permitted. Properly assembledclosed face filter cassette assemblies shall be employed (i.e. with onlythe plug removed)..[[1]] Immediately prior to the quoted exchange, the Secretary hadpresented his case on a different respirator item, which alleged thatspray painters were not protected by approved respirators. TheSecretary’s evidence showed, and the parties stipulated, thatEquitable’s spray painters had been using 3M model 8711 respirators. Itis possible that counsel’s reference to \”this particular respirator\”arose out of a misunderstanding as to which citation item was beingdiscussed and was meant to refer to the previously discussed 8711respirators.[[2]] The judge stated that even if Glass was wearing a 9920 respiratorduring the inspection, Equitable would still be in violation becausethree other employees were wearing unapproved respirators and one wasnot wearing any respirator at all. We do not agree that the recordsupports these conclusions. First, if Glass’ testimony that he wore a9920 respirator is believed, Crawford’s testimony that Revere and Sharpwere wearing unapproved respirators must be rejected, for Crawfordtestified that Revere and Sharp were wearing the same type of respiratoras Glass. Second, Cannon’s testimony that Cooper wore an unapprovedrespirator was based primarily on his observation that Cooper’srespirator had two straps. However, the 9920 respirator, like the 8710,has two straps, and Stein testified that the respirator Cooper wore wasa 9920. Thus, the record does not support a finding that Cooper wore anunapproved respirator. Finally neither Cannon nor Stein couldpositively state whether Mayfield wore a respirator he was welding, asneither could see him during that time. Their testimony conflicted onwhether Mayfield had a respirator with him when he went into the wingtank. Without a credibility determination, we cannot find that Mayfieldwas not protected by a respirator when welding. _See_ _EvansvilleMaterials_ 77 OSAHRC 143\/M9, 3 BNA ,OSHC 1741, 1742, 1975-76 CCH OSHD ?20,187, p.24,046 (No. 3444, 1975).[[3]] At one point, Equitable suggested that Dorman’s deposition couldbe taken as an alternative to his appearance at the hearing. On remand,the parties should consider this possibility. _See_ section 12(h) ofthe Act, 29 U.S.C. ? 661(g)(Commission may order testimony taken by deposition); 29 C.F.R. ?2200.70 (deposition in lieu of testimony).”