“Docket No. 81-1685_81-1762_81-2089SECRETARY OF LABOR,Complainant,v.EQUITABLE SHIPYARDS, INC.,Respondent.OSHRC Docket Nos. 81-2089 81-1685 81-1762DECISION Before:\u00a0 BUCKLEY, Chairman; WALL Commissioner.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act has no regulatory functions. See section 10(c) of the Act, 29 U.S.C.? 659(c).Equitable Shipyards, Inc. maintains a ship and bargeconstruction facility in Madisonville, Louisiana.\u00a0 On June 3, 1981, Richard K.Crawford, an industrial hygienist for OSHA, monitored three Equitable employees to measuretheir exposure to fumes produced by welding.\u00a0 The Secretary subsequently issued atwo-item citation to Equitable in OSHRC Docket No. 81-2089.\u00a0 Item la alleges thatEquitable violated the maritime standard formerly at 29 C.F.R. ? 1916.31(a)(1)(ii) by notproviding general mechanical ventilation of sufficient capacity to produce the air changesnecessary to maintain the fumes within \”safe limits.\”\u00a0 Subitem 1b allegesthat Equitable violated the maritime standard formerly at section 1916.82(d)(1) when itsemployees were exposed to \”unsafe concentrations\” of welding fumes while notprotected by air-line or filter respirators approved for use in welding fumes.\u00a0 JudgePaul L. Brady affirmed both items.\u00a0 We conclude that the Secretary failed to provethat Equitable’s welders were exposed to dangerous concentrations of welding fumes andvacate both items.I.Section 1916.31(a)(1)(ii), since redesignated section1915.51(b)(1)(ii), provides:? 1916.31\u00a0 Ventilation and protection inwelding, cutting and heating.(a) Mechanical ventilation; requirements.\u00a0 (1) For purposes of this section,mechanical ventilation shall meet the following requirements:(ii) General mechanical ventilation shall be ofsufficient capacity and so arranged as to produce the number of air changes necessary tomaintain welding fumes and smoke within safe limits.\u00a0 [Emphasis added.]Section 1916.82(d)(1), since redesignated section1915.152(d)(1), provides: ? 1916.82\u00a0 Respiratory protection.(d) Protection against particulate contaminants not immediately dangerous to life.(1) When employees are exposed to unsafe concentrations of particulate contaminants, suchas dust and fumes, mists and fogs or combinations of solids and liquids, they shall beprotected by either air line or filter respirators, except as otherwise provided in theregulations of this part. [Emphasis added.] To establish that section 1916.31( a)(ii) was violated, the Secretary must prove that themechanical ventilation provided by Equitable was not sufficient to maintain welding fumeswithin \”safe limits.\”\u00a0 Similarly, to prove section 1916.82(d)(1) wasviolated, the Secretary must prove Equitable employees were exposed to \”unsafeconcentrations\” of welding fumes.\u00a0 The question here is whether the Secretaryproperly measured the concentrations of the fumes.During the inspection, OSHA industrial hygienistCrawford placed devices on Equitable employees Melvin Glass, Richard Revere, and ThomasSharp to monitor their exposures to air contaminants while they were welding inside thehull of a barge under construction.\u00a0 Mr. Crawford removed the sampling devices at theend of the employees’ eight-hour work shifts.\u00a0 The results of the monitoring showedthat the employees were exposed to concentrations of fumes generated by welding in excessof those recommended by the American Conference of Governmental Industrial Hygienists.\u00a0 Equitable argues, however, that these results are unreliable because the deviceswere improperly placed.Industrial hygienist Crawford had clipped cassettesampling devices onto the shirt collars of the employees.\u00a0 Equitable vigorouslyargued before Judge Brady that the cassettes should have been placed behind the employees’welding hoods.\u00a0 It presented the testimony of Equitable witness Jerry Riddles, acertified safety professional who had given seminars for the Texas Safety Association andwas employed by Equitable’s parent company to help run its safety and healthprogram.\u00a0 Mr. Riddles testified that to accurately sample the concentration ofwelding fumes breathed by employees, the cassette sampling device \”should be withinthe confines of the welding shield.\”\u00a0 In explaining his view, he first notedthat welders will spend about fifty percent of their time bent over metal that ishorizontal.\u00a0 He then explained:If the cassette is put on the outside of the hood, the direct vapors, fumes, are hittingcassette itself.\u00a0 If it’s monitored inside the breathing zone with [the cassette]inside the hood, the fumes hit the hood; the welding hood shield forms as disperse and goaround the hood and upward.\u00a0 Some are drawn in, but nothing like the direct exposureto the cassette off of the molten metal.Mr. Riddles also testified that he had conductedtests with sampling devices both outside and inside welding hoods and that \”the oneunder the hood…always [shows a] lower concentration….\”The Secretary presented, however, the testimony oftwo OSHA employees, industrial hygienist Crawford and R. Dean Wingo, OSHA’s regionalindustrial hygienist.\u00a0 Mr. Wingo testified that the placement of the sampling deviceson the employees’ collars was proper because the devices were within the breathing zone ofthe employees, \”a one-foot [radius] sphere around the employee’s head.\”\u00a0 Hetherefore testified that it did not make any difference whether the sampling devices wereinside or outside the employees’ welding hoods.\u00a0 He further testified that he hadattempted to conduct tests with sampling devices placed inside welding hoods but had notbeen able to keep the sampling devices affixed to the welding hoods because of thewelders’ need to constantly pull their helmets up and down.\u00a0 Mr. Crawford testifiedthat he had clipped the sampling cassettes to employees’ shirt collars on the basis of anOSHA manual and because the cassettes would in that position be within the \”breathingzone\” of the employees.Judge Brady found that the Secretary’s samplingprocedure was proper.\u00a0 He based his finding on the testimony of the Secretary’sexpert, Wingo, whose testimony he found \”most creditable.\”\u00a0 The judgestated that Mr. Wingo testified that the procedure used in this case for testing wascorrect . . . . Also, the primary purpose of welding hood is to protect the welder againstsplatter and radiation during the welding process and not as a respiratory protectivedevice.\u00a0 [Wingo] stated that the cassette containing the filter should be placedwithin the employee breathing 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 correctlycredited Mr. Wingo and the Commission should accept the judge’s evaluation of Mr. Wingo’scredibility.\u00a0 The Secretary also argues that Mr. Riddles’s tests, in which herecorded less exposure inside welding hoods, were not shown to have been conducted underlaboratory conditions, and that their statistical significance was not presented. Further,Mr. Riddles was not testifying as an expert industrial hygienistAlthough the question before us is a technical industrial hygiene issue, the Secretary’sreview brief presents it to us as primarily involving the relative credibility ofwitnesses.\u00a0 One witness, industrial hygienist Crawford, did refer in his testimony toprovisions of OSHA’s Industrial Hygiene Field Operations Manual (\”theIHFOM\”) [[1\/]] but the parties did not provide the judge with a copy of the manual orcitations to the particular sections involved.\u00a0 Judge Brady therefore had noopportunity to examine the testimony of the witnesses in light of its actual provisions.\u00a0 On review, however, Equitable cites two administrative law judge decisions thatrefer expressly to not only the IHFOM but also several additional publications thataddress the proper placement of sampling devices when measuring airborne concentrations ofwelding fumes.\u00a0 We have reviewed the IHFOM, as well as those other publications.\u00a0 As we shall discuss below, a close examination of the IHFOM shows that Mr. Crawfordrelied upon the wrong air sampling provision. The other publications cited in the judge’sdecisions also are illuminating.\u00a0 To resolve this technical issue, we therefore thinkit appropriate to take official notice under section 7(d) of the Administrative ProcedureAct, 5 U.S.C. ? 556(e), of the IHFOM and those other materials.[[2]]\u00a0 For thesereasons, the issue before us involves more than the conventional credibility questiondiscussed by the Secretary.At the time of the inspection, OSHA complianceofficers were expected to follow the guidelines in the IHFOM for conducting healthinspections.\u00a0 The section of the IHFOM dealing with sampling certain air contaminantsprescribed a general rule for placing sampling cassettes and a specific rule for placingthem when sampling for welding fumes.\u00a0 These rules are as follows:Chapter V OSHA Standardized Method for SamplingTotal Dust, Metal Fumes, and Liquid Aerosols II.\u00a0 Sampling ProcedureB.\u00a0 In Field.6.\u00a0 Attach the cassette assembly to the shirtlabel of the employee in order to approximate the breathing zone. C.\u00a0 For welding fumes, the cassette should belocated under the welding hood in the breathing zone.It would seem that industrial hygienist Crawfordfollowed the general rule for air contaminants rather than the specific rule for weldingfumes.The failure to OSHA to follow the IHFOM does not automatically invalidate a citation.\u00a0 See FMC Corp., 77 OSAHRC 153\/D4, 5 BNA OSHC 1707, 1710, 1977-78 CCHOSHD ? 22,060, p. 26,573 (No. 13155, 1977) (Field Operations Manual).\u00a0 TheCommission noted in FMC, however, that \”this is not to say that the contestsof the manual can never be accorded significance.\”\u00a0 5 BNA OSHC at 1710 n. 10,1977-78 CCH OSHD at p. 22,060 n. 10.\u00a0 We find that the IHFOM’s requirement that asampling cassette be under a welding hood when testing for welding fumes is probativeevidence of what the proper sampling technique is.As we have noted, some of the evidence on samplingmethods introduced into this record by the Secretary’s attorneys in this litigation isseemingly inconsistent with the special rule in the IHFOM for welding fumes. \u00a0Inasmuch as the IHFOM’s sampling provision are not binding on the Secretary, he mayrepudiate them if he finds them incorrect or unduly stringent.\u00a0 The Secretary doesnot, however, expressly claim that the technique he used is as good or better than thoserequired by the IHFOM; his brief does not mention the IHFOM.\u00a0 We shall thereforerefer to the IHFOM with all the other evidence here to determine whether the samplingcassettes were properly placed.In evaluating the probative value of the IHFOM, threepoints stand out:\u00a0 First, the IHFOM speaks directly and precisely to the questionbefore us, drawing a sharp distinction between a general case and the specific casehere.\u00a0 Thus, it contains a separate chapter (Ch. V) detailing OSHA’s standardizedmethod for sampling metal fumes and giving step-by-step descriptions of samplingprocedures.\u00a0 Second, the IHFOM was intended to comprehensively govern OSHA’s samplingtechniques for air contaminants, not merely provide informal advice to fieldpersonnel.\u00a0 The IHFOM provides that all sampling should be performed according to thestandard methods it describes.\u00a0 Ch. I, sections E.4.c and F.5.\u00a0 Third, it speaksnot to a question of law but to a technical industrial hygiene question; its answer tothat question represents the considered opinion of OSHA’s national technical staff chargedwith prescribing the methodology for workplace inspections.\u00a0 We therefore accord theIHFOM substantial weight here.The successor to the IHFOM continues its special rule for welding fumes.\u00a0 On March30, 1984 the Secretary issued the Industrial Hygiene Technical Manual(\”the IHTM\”) to replace much of the IHFOM.\u00a0 Like the IHFOM, the IHTMrequires placement of the sampling cassette device inside and employee’s welding hood.\u00a0 A section entitled \”Special Sampling Procedures\” states in part that\”[i]n sampling for employee exposure to air contaminants generated during burning andwelding operations, ensure that the filter cassette is located inside the employee’swelding hood.\”\u00a0 Id., Ch. II, ? F.2.a (emphasis added.)The IHFOM and the IHTM therefore support Mr. Riddles’s testimony.\u00a0 Mr. Riddles’s viewis buttressed also by standards issued by two respected safety and health organizations.\u00a0 OSHA’s claim that excessive fumes were produced by welding here is based on athreshold limit value prescribed by the American Conference of Governmental IndustrialHygienists (ACGIH) in its publication, Threshold Limit Values for Chemical Substancesand Physical Agents in the Workroom Environment for 1979 (1979).\u00a0 However, theACGIH publication strongly implies that to determine whether a threshold limit value hasbeen exceeded, fumes generated by welding must be measured inside the welding hood. \u00a0Its discussion of welding fumes ends with the following statement:\u00a0 \” Mostwelding, even with primitive ventilation, does not produce exposures inside the weldinghelmet above 5 mg\/M3.\u00a0 That which does, should be controlled.\”\u00a0 Id.at 46.[[\/3]]\u00a0 That the ACGIH expressly focuses on the level of fumes inside thewelding helmet as the criterion for determining whether to introduce additionalventilation again supports Mr. Riddles’s testimony.Another private standard to much the same effect as the IHFOM was jointly published in1985 by the American National Standards Institute (ANSI) and the American Welding Society(AWS) to prescribe procedures for sampling welding fumes.\u00a0 Section 7.1.1 of ANSI\/AWSF1.1-1985, Method for Sampling Airborne Particulates Generated by Welding and AlliedProcesses, provides that \”[s]amples shall be taken within the welder’shelmet.\”[[4]]\u00a0 It also states that the distance between the sampling device andan employee’s mouth should be only about two inches.\u00a0 A picture in the ANSI\/AWSstandard also shows precisely how and where the cassette is to be placed inside thewelding hood.\u00a0 Although the ANSI\/AWS standard has not been adopted as an OSHAstandard, it is evidence of what well informed safety professionals familiar with weldingbelieve is the proper way to sample welding fumes.As we have noted, Judge Brady did not in his decision evaluate the significance of theIHFOM ‘s special provision requiring that cassettes for sampling welding fumes be placeinside the welding hood.\u00a0 This is because neither the parties nor the witnessesintroduced, mentioned or otherwise brought the special welding fumes provision to thejudge’s attention.\u00a0 The judge also did not have before him the IHTM or the ANSI\/AWSstandard, for they were issued after he made his findings on this point.\u00a0 Yet, thesepublications lend substantial support to Riddles’s testimony.Judge Brady was, of course, aware of the conflictingtestimony of Messrs. Wingo find Riddle.\u00a0 He decided the issue in favor of theSecretary, stating that the issue was resolved . . . by Mr. Dean Wingo . . . whosetestimony was most creditable.\”\u00a0 But it is not clear that Judge Brady made acredibility finding.\u00a0 He neither mentioned nor explained why he rejected Mr.Riddles’s testimony.\u00a0 He did not state that Mr. Wingo had a greater propensity thanMr. Riddles to speak truthfully or that Mr. Wingo had greater expertise in the matter.\u00a0 He did not attribute his evaluation to any quality of the witnesses that he hadobserved as they testified.\u00a0 In any event, we have many times stated that a judge’scredibility evaluation must be explained if the Commission is to defer to it.\u00a0 Seegenerally C. Kaufman, Inc., 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1297-98, 1977-78CCH OSHD ? 22,481, pp. 27,099-27,100 (No. 14249, 1978) and P & Z Co., 77OSAHRC 211\/F5, 6 BNA OSHC 1189, 1192, 1977-78 CCH OSHD ? 22,413, p. 27,024 (No. 76-431,1977).\u00a0 Finally, Judge Brady did not have before him the two OSHA publications andthe ANSI\/AWS publication.\u00a0 We are therefore able to view Mr. Wingo’s testimony in aconsiderably different light than Judge Brady did.Mr. Wingo’s testimony that the placement of thecassette made no difference was not based on any test results.\u00a0 Instead, his opinionwas based on four points:\u00a0 his general view that placing a sampling cassette withinan employee’s general breathing zone was sufficient; that he was not satisfied by theempirical evidence he had seen that the location of a sampling cassette is significantwhen measuring welding fumes; that it was not possible to keep the sampling cassetteaffixed to welding hood; and that welding hoods were not primarily designed as respiratoryprotection devices.\u00a0 We are not convinced by Mr. Wingo’s testimony.That OSHA, ACGIH, ANSI and AWS all prescribed thatsampling cassettes are to be placed inside the welding hood persuades us that the locationadvocated by Mr. Wingo is not appropriate for measuring welding fumes.\u00a0 We also areunconvinced by the implication in Mr. Wingo’s testimony that cassettes cannot be placedinside the welding hood.\u00a0 For one thing, Mr. Wingo did not testify that they couldnever be so placed; he stated only that it could not be done with the cassettes that OSHAused in this case. The ANSI\/AWS standard illustrates a way that cassettes can be clippedto the inside of a welding hood; we also doubt that OSHA, ACGIH, ANSI and AWS would haveprescribed that method if it were truly impractical.\u00a0 Finally, that welding hoods arenot primarily designed as respiratory protection devices is beside the point if, as OSHA,ACGIH, ANSI and AWS all seem to believe, they have the effect of deflecting welding fumesfrom the mouth and nose of a welder.In sum, we agree with Equitable that the Secretarymust prove that sampling cassettes for welding fumes were placed inside the weldinghood.\u00a0 We also find that the Secretary failed to prove that they were. \u00a0 As wehave said, industrial hygienist Crawford clipped the cassettes to the shirt collars ofthree employees.\u00a0 When he did so, none of the three employees were wearing a weldinghood.\u00a0 Crawford nevertheless testified that, although he did not see the monitoredemployees at all times during the day, every time he did see them with their welding hoodsover their faces the sampling devices were located under the welding hoods of theemployees.\u00a0 Judge Brady did not evaluate this testimony in his decision. \u00a0 Weshall do so ourselves. See generally C.Kaufman, 6 BNA OSHC at 1298, 1977-78 CCHOSHD p. 27,100.We are not convinced by Crawford’s testimony that the cassettes were in the proper place.\u00a0 Employee Glass, the only one of the three monitored employees who testified at thehearing, testified that the sampling device was outside his welding hood when the hood wasdown and he was welding.\u00a0 Mr. Riddles testified, moreover, that the sampling devicesshown attached to the shirt collars of the three monitored employees in the Secretary’sphotographic exhibits C-7, C-8, and C-9 would not be inside the welding hoods of theemployees.\u00a0 We view those exhibits the same way.\u00a0 The exhibits show the samplingdevices attached to the employees’ shirt collars.\u00a0 All three employees were wearingopen-collared shirts.\u00a0 On two of the employees, the devices rested near theemployees’ hearts; on the third employee, the device rested in the same general area, butwas on the right side of the employee’s chest.\u00a0 Although the Secretary introduced noevidence on the size of the welding hoods used here, it seems implausible to us that anycommonly used welding hood could have regularly covered the cassettes depicted in thephotographic exhibits.\u00a0 In sum, despite the testimony of Mr. Crawford that thesampling devices were under the welding hoods when he happened to notice them, we are notconvinced that they were regularly so located during the entire period that the cassetteswere worn.Because we find that the Secretary has not proved thepropriety of Mr.Crawford’s sampling technique, we are unable to find that the resultsobtained from the sampling show that the employees were exposed to unsafe concentrationsof welding fumes.\u00a0 Accordingly, we will vacate citation items la and 1b, in DocketNo. 81-2089.Judge Brady’s decision of April 8, 1982, affirmed citation items alleging Equitable’snoncompliance with 29 C.F.R. ? 1916.82(e)(OSHRC Docket No. 81-1685) and 29 C.F.R. ?1916.35(e)(4)(OSHRC Docket No. 81-1762), and vacated a citation item alleging Equitable’snoncompliance with 29 C.F.R. ? 1916.36(b)(4)(OSHRC Docket No. 81-1762).\u00a0 The partiesdo not dispute the judge’s action on those citation items.\u00a0 Accordingly, the citationitem alleging noncompliance with section 1916.82(e) in Docket No. 81-1685 is affirmed, thecitation item alleging noncompliance with section 1916.35(e)(4) in Docket No. 81-1762 isaffirmed, and the citation item alleging noncompliance with section 1916.36(b)(4) inDocket No. 81-1762 is vacated.\u00a0 Items 1a and 1b of the citation in Docket No. 81-2089are vacated for the reasons we have discussed, unless the Secretary requests anopportunity to introduce evidence contrary to officially-noticed documents within 15 daysof this decision.FOR THE COMMISSION Ray H. Darling, Jr.Executive SecretaryDATED:\u00a0 MAR 26, 1987SECRETARY 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 of Labor, Dallas, Texas, on behalf of complainant.Robert E. Rader, Jr., Esquire, McCarty, Wilson, Raderand Mash, Ennis, Texas, on behalf of respondent.DECISION ON REMANDBRADY, Judge:\u00a0 This cast was remanded by theCommission for the purpose of taking the testimony of respondent’s former safety director,Tim Dorman.\u00a0 It was believed Mr. Dorman’s testimony could be crucial in resolvingcertain conflicting testimony relating to employee use of respirators for protectionagainst welding fumes.The initial decision in 81-2089 was concerned withallegations of employee use of the unapproved 3M Model 8710 type respirator. It was basedon the record as a whole; but chiefly, the testimony of Industrial Hygienist Cannon as itrelated to employee Mayfield. The Commission did not agree that the conclusions reached inthe decision were supported in the record and held respondent should have the opportunityto present the testimony of Mr. Dorman who did not testify at the hearing.The conflicting testimony in this case involved thatof Industrial Hygienist Crawford and employee Melvin Glass.\u00a0 During the course of hisinspection, Crawford positively identified the respirators worn by Employees, Glass,Revere and Sharp as the unapproved Model 8710.\u00a0 Mr. Glass, however, was equallyunequivocal in testifying that he wore the approved Model 9920 at the time of theinspection.\u00a0 The record shows that Dorman accompanied Crawford at the time of theinspection when Crawford observed welders Glass, Revere and Sharp.Pursuant to the Commission’s order of remand,respondent’s application to take the deposition of Tim Dorman was granted.\u00a0 Suchaction was taken over the objection of the Secretary who pointed out that, at the time ofthe hearing, it did not appear a subpoena had been properly served in order to invoke itsenforcement.\u00a0 Counsel for both parties appeared for the deposition.Mr. Dorman testified that he recalled when Messrs.Crawford and Cannon conducted the testing of the five employee welders subsequent to theinitial inspection (Tr. 10).\u00a0 At that time, he saw \”a couple of fellows\”wearing 9920 respirators.\u00a0 He agreed they were not accompanied when they entered theholds to weld but assumed they all wore 9920’s (Tr. 13).\u00a0 Mr. Dorman acknowledged thedistinction between the 9920 respirator and the 8710 but indicated such difference waseasily detectable only if one were specifically looking for either type (Tr. 10).\u00a0During the initial inspection, he observed Crawford interview an employee who wore a 9920(Tr. 13).It is clear from the testimony of Mr. Dorman that heassembled the five welders and was present when Mr. Crawford conducted air samplingtests.\u00a0 Although he observed two employees wearing 9920 respirators, they were notidentified nor did he give any other testimony concerning use of respirators by the otherwelders.\u00a0 Accordingly, his testimony failed to resolve the conflicting testimony ofCrawford and Glass.The conflict in the testimony must be resolved infavor of complainant.\u00a0 The evidence of record discloses that Industrial HygienistCrawford, a safety professional, not only testified as to his observations at the time ofthe inspection but also wrote down the NIOSH approval number from the respirator Mr. Glasswas wearing.\u00a0 This documentation, made in the course of the inspection, shows theNIOSH number corresponded to that of the unapproved 8710 respirator which was receivedinto evidence.\u00a0 This evidence, in light of no further evidence in support of Glass’testimony, is convincing and sufficiently supports the allegations that the standard wasviolated.Dated this 28th day of October, 1985.PAUL L. BRADYJudgeSECRETARY OF LABORComplainant,v.EQUITABLE SHIPYARDS, INC.,Respondent.OSHRC Docket Nos. 81-1685, 81-1762, & 81-2089DECISION Before:\u00a0 BUCKLEY, Chairman, and CLEARY,Commissioner.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).Administrative Law Judge Paul L. Brady affirmed acitation alleging that Equitable Shipyards, Inc.(\”Equitable\”) failed to protectcertain employees against overexposure to welding fumes by assuring that the employeeswore respirators and by providing sufficient mechanical ventilation.\u00a0 In addition toarguing that it has not violated the cited standards, Equitable contends that (1) allevidence gathered by the Secretary of Labor during his inspection of Equitable’s workplaceshould be suppressed because there was no probable cause for the inspection; (2) The judgeerred in declining to enforce a subpoena Equitable had issued to Tim Dorman, Equitable’ssafety director at the time of the alleged violations; and (3) the judge erred in notordering the Secretary to turn over to Equitable written statements the Secretary hadobtained from certain Equitable employees.\u00a0 We conclude that Equitable’s motion tosuppress was properly denied.\u00a0 We further conclude, however, that the judge erred indeclining to enforce the Dorman subpoena and that a remand for further proceedings istherefore required.IEquitable operates a shipyard in Madisonville,Louisiana.\u00a0 Following a complaint by employees of unsafe working conditions, two OSHAcompliance officers attempted to inspect the facility.\u00a0 When Equitable refused toconsent to the inspection, OSHA obtained a warrant from a federal magistrate authorizingit to inspect the areas in the shipyard that were mentioned in the employee complaint.\u00a0 Equitable again refused to permit the compliance officers to conduct the inspectionand filed suit in federal district court seeking to have the warrant quashed on the groundit was not supported by probable cause.\u00a0 The district court found there was probablecause to support the warrant and ordered that the inspection be conducted according to itsterms.\u00a0 Ultimately, the inspection was conducted, and Equitable was cited forviolating several OSHA standards on the basis of information gathered during theinspection.Equitable argues that the evidence gathered duringthe inspection should be suppressed and the citations vacated because probable cause forissuance of the warrant was lacking.\u00a0 We reject the argument.In Chairman Buckley’s view, the Commission has noauthority to review or set aside the probable cause determination made by a federal judgeor magistrate who issues a search warrant.\u00a0 Brooks Woolen Co., OSHRC DocketNos. 79-45 and 79-128, slip op. at 2-3 (April 10, 1985) (view of Chairman Buckley). Wherean inspection was conducted pursuant to a warrant, the Commission can consider challengesto the warrant based on allegations that the Secretary acted illegally in obtaining orexecuting the warrant.\u00a0 Id.\u00a0 In this case, Equitable claims no misconducton the Secretary’s part; it argues only that the probable cause determination made by themagistrate and upheld by the district court judge was in error. \u00a0 As the Commissionhas no authority to rule on such an argument, Chairman Buckley would deny the motion tosuppress.\u00a0 Id.; Beauty Craft Tile of the Southwest, Inc., 84 OSAHRC, 12BNA OSHC 1082, 1083, 1984 CCH OSHD ? 27,091, pp. 34,929-30 (No. 80-471, 1984).Commissioner Cleary finds the warrant is supported byprobable cause.\u00a0 The Secretary sought the warrant after receiving a formal, signedcomplaint from five employees listing a number of purportedly unsafe conditions in theErection and Rake areas of Equitable’s shipyard.\u00a0 The complaint stated that employeeswere exposed to toxic air contaminants from painting and welding operations, to firehazards due to improperly maintained welding equipment, to fall hazards due to improperlytightened safety lines, to a slipping hazard due to oil leaking on barge decks, and toelectrical shock due to improperly maintained welding lines and to welding in wet andrainy weather.\u00a0 The warrant application set forth the substance of the employeecomplaint and sought to inspect only those areas of the shipyard mentioned in thecomplaint.\u00a0 The warrant that was issued was similarly limited.\u00a0 The informationpresented in the warrant application was sufficient to establish probable cause for thelimited-scope warrant that the magistrated issued.\u00a0 See Sarasota ConcreteCo. 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 probablecause, Commissioner Cleary would not suppress the evidence.\u00a0 The Supreme Court hasheld that evidence should not be suppressed when an officer acting with objective goodfaith has obtained a warrant from a judge or magistrate and acted within its scope.\u00a0 UnitedState. v. Leon, 104 S.Ct. 3405, 3420 (1984). \u00a0 Commissioner Cleary would applythat same rule to Commission proceedings.\u00a0 Davis Metal Stamping, Inc., OSHRCDocket No. 78-5775 (April 15, 1985).\u00a0 In this case, the compliance officers whoinspected Equitable’s workplace were clearly entitled to rely on the validity of thewarrant. The warrant had been duly issued by a magistrate and, prior to its execution, themagistrate’s probable cause determination had been upheld by the federal districtcourt.\u00a0 Equitable does not argue that the compliance officers acted in other thangood faith in obtaining and executing the warrant and does not advance any reason why theywere not entitled to rely on the warrant’s validity.\u00a0 Cf. United States v.Leon, 104 S.Ct. at 3421-22 (suppression of evidence is appropriate if magistrate wasmisled by knowingly or recklessly false information in an affidavit, or if affidavit was\”so lacking in indicia of probable cause as to render official belief in itsexistence entirely unreasonable.\”)\u00a0 Because the compliance officers conductedthe inspection in objectively reasonable reliance on the validity of the warrant, there isno basis to suppress the evidence.\u00a0 See Donovan v. Federal Clearing DieCasting Co., 695 F.2d 1020 (7th Cir. 1982).IIEquitable next asserts that the Judge erred inrefusing to enforce a subpoena issued to Equitable’s safety director, Tim Dorman. Dormanwas the company’s principal representative during the inspection.\u00a0 At the time of thehearing, Dorman was no longer employed by Equitable and had moved to San Francisco. \u00a0Equitable attempted to obtain Dorman’s testimony by means of a subpoena.\u00a0 See29 C.F.R. ? 2200.55 (Commission rule governing subpoenas).\u00a0 The facts surroundingservice of the subpoena are not fully developed in the record, but Dorman apparentlyreceived notice of it for he wrote a letter to Equitable’s counsel declining to appear atthe hearing.\u00a0 At the outset of the hearing, Equitable moved for enforcement of thesubpoena.\u00a0 The judge reserved ruling at that point.\u00a0 When Equitable renewed itsmotion at the close of its evidence, the judge denied the motion, stating that Dorman’stestimony \”is not crucial to this proceeding.\”We conclude that the judge erred in declining toenforce the subpoena on that ground.\u00a0 On at least one material issue of fact, thereis a sharp conflict in the evidence, and Dorman’s testimony could be crucial in resolvingthat point.\u00a0 Moreover, as Equitable’s safety director and representative during theinspection, Dorman would ordinarily be expected to be an important witness forEquitable.\u00a0 Under the circumstances, fundamental fairness requires that Equitable begiven the opportunity to obtain Dorman’s testimony.The issue on which there is conflicting evidenceconcerns the type of respirator certain Equitable employees were using during theinspection.\u00a0 One of the citation items on review alleges that five welders wereexposed to excessive levels of welding fumes while not wearing respirators approved foruse against welding sample.\u00a0 Although four of the employees were observed by theSecretary’s compliance officers to be wearing respirators, the Secretary alleged thatthose respirator not approved for welding fumes.\u00a0 The Secretary also alleged that thefifth employee was not wearing any respirator at all.\u00a0 Equitable contends that itprovided respirators approved for use against welding fumes and that its employees wererequired to wear such respirators whenever welding.\u00a0 The company further contendsthat the evidence does not support the Secretary’s allegation that the five employees inquestion were not wearing proper respirators.During the inspection, OSHA compliance officersmonitored the five employees to determine the concentrations of welding fumes to whichthey were exposed.\u00a0 Compliance officer Crawford monitored three of the employees:\u00a0 Glass, Revere, and Sharp.\u00a0 Crawford was accompanied by Dorman during thisphase of the inspection.\u00a0 Crawford testified that Glass, Revere, and Sharp wore 3Mmodel 8710 respirators, which provide protection against dust but are not approved forwelding fumes.\u00a0 Crawford stated that he wrote down the NIOSH approval number from therespirator that Glass was wearing.\u00a0 That number, TC-21C-132, corresponds to theapproval number of the 8710 respirator that was introduced into evidence.\u00a0 Crawfordfurther testified that the 8710 respirator appeared significantly different from the 3Mmodel 9920 respirator that Equitable claims the employees were wearing and which isapproved for welding fumes.\u00a0 Samples of both respirators were introduced intoevidence and support Crawford’s testimony that two respirators are distinct in appearanceand could not be confused.Of the three employees observed by Crawford, onlyGlass testified.\u00a0 When shown a 9920 respirator, Glass stated that it was the type ofrespirator he had been at the time of inspection.\u00a0 Glass answered affirmatively whenasked if he was absolutely positive that the 9920 was the type of respirator he beenwearing. stating:\u00a0 \”You wear one every day of your life while you’re working,you ought to recognize it.\”\u00a0 Glass was no longer working for Equitable at thetime of the hearing and had no apparent interest in the outcome of the case.Two employees, Cooper and Mayfield, were monitored bycompliance officer Cannon, who was accompanied by Equitable’s safety inspectorStein.\u00a0 Cannon testified that Cooper was wearing a model 8710 respirator. \u00a0 Hedid not observe the model number on the respirator but identified it as an 8710 because itpossessed two straps instead of only one.\u00a0 Stein identified the respirator thatCooper was wearing as a 9920.\u00a0 The respirator samples introduced into evidence showthat both the 8710 and 9920 have two straps.Cannon testified that Mayfield was not wearing anytype of respirator and had no respirator with him when he went into the wing wall, wherehe performed welding that day.\u00a0 However, Cannon stated that he placed the samplingcassettes, on the employees before they went into the wing wall and that he would not haveseen if Mayfield put on a respirator inside the wing wall. Nevertheless, Cannon wascertain that Mayfield did not use a respirator inside the wing wall.\u00a0 He stated,\”Every time he came out, he didn’t take one off, and as far as I know, he had noneavailable.\u00a0 He may have had one available, but he was not utilizing one.\” Steintestified that both Cooper and Mayfield had respirators with them when they went into thewing wall, and he did not observe either of them welding without wearing a respirator.The judge did not resolve the conflicts in theevidence. Instead, he believed the parties had stipulated that the employees in questionwere wearing 8710 respirators at the time of the inspection and, on this basis, heaffirmedEquitable argues on review that no such stipulation was At the beginning of the motion of the hearing devoted to the well citation. \u00a0Equitable’s counsel did express a willingness tostipulated to the type of respirators being worn, but no such stipulation was evercompleted.\u00a0 After the Secretary’s counsel stated her intention to call severalEquitable employees as witnesses, the following exchange ensued: Judge BRADY:\u00a0 You don’t have any problem withthat, do you, Mr.Rader?MR. RADER [Counsel for Equitable]:\u00a0 No, YourHonor.\u00a0 Of course, again, I don’t know, but if the purpose of calling – employees isto testify that they wore this particular respirator, then we would stipulate that.JUDGE BRADY:\u00a0 Let’s get off the record todiscuss this.(Off-the-record discussion).JUDGE BRADY:\u00a0 Let’s go back on the record.\u00a0During the off-the-record discussion meeting of the parties, there has been astipulation reached.\u00a0 Do you want to cite the terms of the agreement, Mr. Rader? MR. RADER:\u00a0 Your Honor, it’s my understandingthat the Secretary intends to call some employee witnesses for thepurpose of establishing that on a day personal monitoring was conducted, that their workload was normal, that the ventilation was normal.\u00a0 And we’re certainly willing tostipulated to that point.MS. GANNAWAY [Counsel for the Secretary]: \u00a0Right Your Honor.\u00a0 For clarification, the purpose being that the Secretary isestablishing that this 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 was nothing out ofthe ordinary on the day of personal monitoring.The exchange cannot be construed to include astipulation that Equitable’s 8710 respirators.\u00a0 The offer by Equitable’s counsel tostipulate to the type of respirator did not mention a model number, and there had been noprevious mention at the hearing of the 8710 respirator that would indicate that theprevious mention at the hearing of the 8710 respirator that would indicate that thereference to \”this particular respirator\” meant the model 8710.[[1]] \u00a0Moreover, the stipulation that was ultimately entered involved only the representativenessof the work load and ventilation on the day monitoring was performed, not the type ofrespirator being worn.\u00a0 The subsequent course of the hearing is also inconsistentwith any suggestion that the parties understood there was a stipulation concerning thetype of respirator the welders were using.\u00a0 The parties introduced conflictingevidence on the point, and each side cross-examined the other party’s witnesses whotestified on the subject.\u00a0 At no time during the hearing did either party suggestthat this lengthy testimony was unnecessary because a stipulation had resolved the issue.In declining to enforce the subpoena on the basisthat Dorman’s testimony was not crucial, the judge apparently acted on his belief that theparties had stipulated that the welders wore unapproved respirators.\u00a0 However, thatissue not only remains in dispute, the evidence on it is sharply contradictory.\u00a0 Inparticular, Crawford’s testimony positively identifying the respirators worn by Glass,Revere, and Sharp as 8710’s conflicts with Glass’ equally unequivocal testimony that hewas wearing a 9920.\u00a0 Dorman accompanied Crawford during the portion of the inspectionwhen Crawford observed Glass, Revere, and Sharp.\u00a0 Equitable made an offer of proofthat Dorman would testify that the employees were respirators.[[2]]\u00a0 Under thesecircumstances, Equitable is entitled to the opportunity to present Dorman’s testimony.[[3]]\u00a0 We reject the argument that Dorman’s testimony is not needed because otherpersons Revere and Sharp, could shed additional light on the issue.\u00a0 We are unwillingto second guess counsel’s choice of one witness over another; that several persons mayhave knowledge of a particular fact should not preclude from presenting the witness of itschoice.The Secretary argues in his brief to the Commission that the subpoena should not beenforced because it was not properly served on Dorman.\u00a0 We see no reason to resolvethis point now.\u00a0 First, it is not clear that the Secretary may raise this objection;in general, a party lacks standing to raise objections to a subpoena issued to anotherperson.\u00a0 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.\u00a0 Second, the judgedid not base his ruling on the Secretary’s objection and has not yet had occasion toconsider it.\u00a0 Where there is a question as to whether a subpoena was properly served,a definitive ruling can be made in a proceeding to enforce the subpoena.\u00a0 NationalLabor Relations Board v. Strickland, 321 F.2d 811, 814 (6th Cir. 1963).IIIDuring the inspection, the compliance officersobtained written statements from a number of Equitable employees.\u00a0 Equitable soughtto obtain those statements through discovery and submitted to the Secretary written formssigned by nineteen employees authorizing the release of their statements to Dorman, whowas then still Equitable’s safety director.\u00a0 The Secretary refused to produce thestatements and the judge did not order them produced.\u00a0 Equitable contends that thejudge erred in failing to order the Secretary to turn over the statements.We find it unnecessary to resolve this issue. \u00a0Equitable had claimed before the judge that the employees’ statements pertained to\”several\” citation items and that the employees had made effective waivers ofthe informer’s privilege.\u00a0 The judge did not order disclosure.\u00a0 In his decision,the judge affirmed several citation items and modified one to a de minimisnotice.\u00a0 Equitable sought and obtained discretionary review of the judge’sdisposition of only two of these items — subitems 1(a) and 1(b) of serious citations 2 indocket no. 81-2089.\u00a0 These items allege that five named employees were overexposed towelding and iron oxide fumes on June 3, 1981, that mechanical ventilation was inadequate,and employees were not wearing the appropriate respirators.\u00a0 The Secretary argues inanswering brief on review, and Equitable does not in its reply brief dispute, that theissue of the production of the statements does not pertain to the citation items still incontroversy.\u00a0 Aside from a technical dispute over where personal sampling devicesshould have been placed on the five employees, the only disputed question of fact onreview is whether the five employees wearing respirators approved for welding fumes.\u00a0 The nineteen statements that Equitable sought were made by any of those fiveemployees about two months before the alleged violations before us occurred. \u00a0Equitable does not seek the disclosure of any statements made by the five employees and ithas not produced any written waivers signed by them.\u00a0 Although the statements soughtwere apparently relevant to two other items that the judge had respectively affirmedwithout penalty and had modified to a de minimis notice, Equitable did notseek discretionary review as to them.\u00a0 We therefore have no occasion at this time toaddress the disclosure issue.Accordingly, the judge’s decision is set aside to theextent it is inconsistent 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 SECRETARY DATED:\u00a0 APR 18 1985SECRETARY 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. Department of Labor, Dallas, Texas, on behalf of complainantRobert E. Rader, Jr., Esquire, Ennis, Texas, onbehalf of respondent DECISION AND ORDERBRADY, Judge:\u00a0 This proceeding is broughtpursuant to section 10 of the Occupational Safety and Health Act of 1970 (\”Act\”)to contest three citations and proposed penalties issued by the Secretary of Labor(\”Secretary\”) pursuant to section 9(a) of the Act. Respondent is charged withviolating specific occupational safety and health standards at Madisonville, Louisiana,where it is engaged in ship and barge construction.\u00a0 Three separate dockets have beenconsolidated into the proceeding for purposes of hearing and decision.Preliminary MattersRespondent’s answer to the complaint in this case contains an allegation that theinspection herein was conducted pursuant to an illegal warrant and, therefore, evidenceobtained as a result of the inspection must be suppressed for lack of sufficient probablecause.\u00a0 At the commencement of the hearing, respondent renewed the motion to suppressall evidence under the precedent of Secretary v. Sarasota Concrete Co., 81 OSAHRC48\/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ? 25,360 (No. 78-5264, 1981).\u00a0 At that time respondent was permitted to examine Mr. Carl Grose regarding his affidavit,upon which the warrant was issued.\u00a0 The record discloses that following a hearing onthe validity of the warrant, a United States District Court judge entered an order onMarch 26, 1981, denying respondent’s motion for a preliminary injunction and itsapplication to quash the warrant.Clearly, respondent had ample opportunity to be heardon any question of probable cause at the time of the hearing in the District Court. \u00a0In addition, the order of March 26, 1981, must be held determinative as it was enteredprior 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 in welding, requires:When not in use, manifold and header hose connectionsshall be capped.The citation describes the alleged violation asfollows:Manifold and header base connections were not cappedin the Rake End Erection Areas; threads were exposed to damage and or accumulation ofgrease\/oil.Mr. Richard Crawford, industrial hygienist, testified that he observed the violativeconditions as depicted in Exhibits C-2 and C-3 in more than one location.\u00a0 Heexplained further that oxygen leaking without the caps in place can be easily ignited (Tr.81-82).The evidence indicates that caps had beat provided and even bars had been placed acrossthe manifolds in an attempt to protect the threads, but respondent argues it is impossibleto continually provide the required protection (Tr. 107).\u00a0 The alleged conditions arenot denied, but respondent contends no hazard has been shown to exist as a result thereof.When asserting employee conduct has prevented anemployer from compliance with a standard, it is necessary that the employer show that ithas established work rules designed to prevent the violation, has adequately communicatedthese rules to its employees, has taken steps to discover violations, and has effectivelyenforced the rules when violations have been discovered.\u00a0 Asplundh Tree ExpertCo. 78 OSAHRC 77\/E12, 6 BNA OSHC 1951,1978 CCH OSHD ? 23,033 (No. 16162, 1978); MountainStates Telephone & Telegraph Co., 78 OSAHRC 30\/A2, 6 BNA OSHC 1504, 1978CCH OSHD ? 22,668 (No. 13266, 1978), appeal filed, No. 78-1438 (10th Cir.,June 2, 1978).In this case respondent introduced evidence of itssafety program and work rules, which were communicated to employees.\u00a0 There has beena failure, however, to demonstrate that such rules were effectively enforced regardingthese alleged violative conditions. The record shows that the inspections were conductedon February 19, March 31, and April 1, 1981.\u00a0 On a follow-up inspection June 3,1981,the condition was again found to exist.\u00a0 Since there is a showing respondent wasaware of the condition at the time of the initial inspection, it cannot be heard to arguethere is effective enforcement of rules when a violation has been so recently discovered(Tr. 86).Even though the inspecting officer did not recallwhether employees were in the immediate vicinity of the uncapped manifold and hoseconnections, the evidence sufficiently shows there was access to the hazard.\u00a0 Hestated employees were in the area of the manifolds and \”walking virtually in alldirections in the (Tr. 83).\u00a0 Further, the record reveals a great deal of welding wastaking place which required active use of the manifolds by employees, as shown in ExhibitsC-2 and C-3, at the 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 cablesprovides as follows:Only cable free from repair or splices for a minimumdistance of ten (10) feet from the cable end to which the electrode holder is connectedshall be used, except that cables with standard insulated connectors or with splices whoseinsulating quality is equal to that of the cable are permitted.The alleged violation is described in the citation asfollows:Rake End Area, Central Welding Unit location–D.C.Lincoln Welding Unit, account #2834, serial #A-424116, was in operation with electrodelead in poor repair, i.e. insulation missing and wire nearly severed.Mr. Crawford testified that he observed an employee of respondent using cable which was inneed of repair as depicted in Exhibits C-4 and C-5 (Tr. 87).Respondent does not deny use of the worn and frayedcable but asserted the defense of an isolated incident of employee misconduct. \u00a0Eventhough respondent did not call the employee using the cable as a witness, the recordsufficiently establishes adequate precautions were taken to comply with the standard.Mr. Bruce Stein, a yard safety inspector, testifiedthat respondent has a program for inspecting and repairing cable and of effectivelycommunicating and enforcing such a program.\u00a0 He stated that new employees arerequired to attend a safety orientation program, are provided safety manuals (Ex. R-5) andare subsequently, required to attend safety meetings at least twice per month (Tr.294-298, 324-325).The evidence is not disputed that respondent had approximately 25,000 feet of weldingcable on the ground in the rake and erection areas.\u00a0 The fact that only one cable wasin need of repair in two places must be viewed as an effective demonstration ofadministering its work rules to prevent the violation (Tr. 300).\u00a0 Under thecircumstances, it has not been sufficiently established that respondent possessedknowledge of the violative condition essential to proof of a violation in light of theasserted defense. Respondent is deemed to have done all that reasonably could have beenexpected of it to insure compliance with the standard.\u00a0 See Floyd S. PikeElectrical Contractor, Inc., 78 OSAHRC 50\/E1, 6 BNA 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 protectiveequipment and states in pertinent part as follows:Protection against combinations of gaseous andparticulate contaminants not immediately dangerous to life.\u00a0 (1) When employees areexposed to combinations of gaseous and particulate contaminants not immediately dangerousto life, as in spray painting, they shall be protected by respiratory protective equipmentapproved for use in the type and concentration of the contaminants ….The alleged violation is described in the citationas:Employees, while spray painting the outside sectionsof barges, were provided with and instructed to use \”3M Model 8711\” disposablepaint spray respirators.\u00a0 That model was not approved by the National Institute forOccupational Safety and Health.There is no dispute that spray painting is onlypermitted with \”approved\” use of respiratory equipment, and respondent conductedsuch operations with an unapproved 3M 8711 model respirator (Tr. 119-120).Respondent contends that the Model 3M 8711 is as goodas or better than a respirator which is NIOSH approved.\u00a0 Mr. Crawford agreed that ifsuch was the case, there would be no immediate relationship to safety and health (Tr.124).\u00a0 Complainant insists, however, that if the respirator is not\”approved\” for a work operation, the employer should be required to establishthe effectiveness of such a respirator.Complainant agreed to reduce the nonserious, nopenalty classification to a de minimis character if respondent furnished anaffidavit from a 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 anaffidavit of a Mr. Jerry who states that he is involved in the development of products inthe safety and health field, including the Model 8711 respirator, for the 3M Company.\u00a0He avers that in his capacity he has knowledge of the design, industries andcapabilities of the Model 8711 respirator and, when used in with instructions, it willperform as well as, if not better than, conventional NIOSH\/MSHA approved sprayrespirators.\u00a0 Although an affidavit was not provided counsel for the Secretary priorto filing briefs as anticipated, the circumstances warrant a finding of a de minimisviolation.The standard specifically applies to particulatecontaminants which are \”not dangerous to life.\”\u00a0 The evidence does not showthe existence of a particular hazard through use of the respirator, but the only issuerelates to employee protection with \”approved\” respiratory equipment.Mr. Crawford stated that the employees in theexterior painting operation were exposed to paint particulates and vapors, and themanufacturer represents that the respirator provides the necessary protection foremployees 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 notapproved by NIOSH\/MSHA at this time because there are no performance testing criteria forthis type of respirator.\u00a0 NIOSH\/MSHA has been requested to develop performancecriteria tests for this type of spray paint respirator.\u00a0 We have on file data to showthat the #8711 respirator performs as well as if not better than a NIOSH\/MSHA approvedrespirator for spray painting applications.Considering all the evidence, the violation comeswithin the purview of those that are so remotely related to employee health as not towarrant imposition of an abatement requirement or assessment of a penalty. \u00a0Therefore, it is held to be de minimis.\u00a0 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 tomechanical ventilation for welding and states as follows:General mechanical ventilation shall be of sufficientcapacity and so arranged 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 respiratoryprotection for employees and states:Protection against particulate contaminants notimmediately dangerous to life.\u00a0 (1) When employees are exposed to unsafeconcentrations or particulate contaminants, such as dusts and fumes, mists and fogs orcombinations of solids and liquids, they shall be protected by either air line or filterrespirators, except as otherwise provided in the regulations of this part.The alleged violations are described in the citationas: (a) During the day shift on June 3, 1981, employeeswhile welding, inside the wing walls of barges in the erection area and inside of the rakeends of barges in the rake area, were exposed to eight (S) hour time weighted averageconcentrations of welding fumes (total) and iron oxide fume in excess of the AmericanConference of Governmental Industrial Hygienists’ threshold limit values [welding fumes -5.0 mg\/M3, iron oxide fume — 10.0 mg\/M3] as follows:1) rake areaa.\u00a0 employee number 1\u00a0 welding fumes – 26.85mg\/M3iron oxide fume – 11.26 mg\/M3b.\u00a0 employee number 2welding fumes – 20.78 mg\/M3iron oxide fume – 19.16 mg\/M3c.\u00a0 employee number 3 welding fumes -8.47 mg\/M3 2) erection areaa.\u00a0 employee number 1welding fumes – 7.81 mg\/M3b.\u00a0 employee number 2 welding fumes – 10.25 mg\/M3The violation of section 1916.82(d)(1) is describedas:Four of the employees wore 3M Number 8710 Dust Masksand one wore no respirator at all.\u00a0 3M Number 8710 Dust Masks were not approved forprotection against welding fumes and would not protect wearers from fume exposure. \u00a0In addition two of the employees wore the mask over a full beard which would haveprevented a proper face to face piece seal.Respondent did not refute the evidence of personalmonitoring results that established five employees were overexposed to welding fumeparticulates and\/or iron oxide fumes (Ex. C-10).\u00a0 This included Mr. Crawford’stestimony that failure to provide sufficient general mechanical ventilation to welders inthe rake and erection areas resulted in the exposure of employees to fumes beyond safelimits in violation of section 1916.82(d)(1) (Tr. 189-190).\u00a0 The question was raised,however, the method of sampling by placing the cassette or filter outside the weldinghood.\u00a0 It was indicated that there is less exposure inside the hood.The issue was resolved, however, by Mr. Dean Wingo, an expert on respirators whosetestimony was most creditable.\u00a0 He testified that the procedure used in this case fortesting was correct (Tr. 414).\u00a0 Also, the primary purpose of a welding hood is toprotect the welder against splatter and radiation during the welding process and not as arespiratory protective device.\u00a0 He stated that the cassette containing the filtershould be placed within the employee breathing zone which is a one-foot sphere around hishead and, in addition, it is not practical to place the cassette under the hood (Tr.423-424).\u00a0 Mr. Crawford stated that if respondent’s employees used properrespirators, the citation would not have included the alleged violation of 29 C.F.R. ?1916.82(d)(1) (Tr. 225).\u00a0 Respondent, therefore, asserts that the central issue iswhether proper respirators were provided its welders and whether rules for use thereofwere enforced.The evidence clearly establishes that four welderswere using 3M 8710 dust mask respirators, which are not sufficient for protection againstwelding fumes and\/or iron oxide fumes, and one employee was observed wearing no respiratorat all (Ex. C-10; Tr. 137). The evidence also establishes, and there is no dispute, thatrespondent had a written respiratory program which provided that NIOSH approved 3M Model9920 respirators are to be used for protection against welding fumes. \u00a0 Clearly, useof Model 9920 would provide the required protection, but the question presented is theadequacy of respondent’s program for their use.\u00a0 Mr. Stein, the yard safetyinspector, testified that respondent’s policy was communicated to the employees throughnew employee orientation and the respective foremen in the work areas (Tr. 311).The crucial question in this instance is whether thesafety rule was properly enforced by respondent.\u00a0 The monitoring results as revealedin Exhibit C-10 show that Mr. Melvin Glass, a welder, was wearing a Model 8710 dustrespirator.\u00a0 He was subsequently called as a witness for respondent and testified hewas wearing the approved Model 9920 respirator at the time he was monitored (Tr. 280,282).\u00a0 His testimony was, thus, in direct conflict with Mr. Crawford, the inspectingofficer.\u00a0 Respondent contends the inspector erroneously believed the welders werewearing Model 8710 but, in fact, wore Model 9920 as required by the safety policy. Without determining the veracity of the testimonypresented, it is noted that the complainant, during its case in chief, was prepared tooffer testimony by several employees that they wore unapproved masks rather than the Model9920 respirator.\u00a0 The parties stipulated this fact, and complainant’s subpoenaedwitnesses were released prior to the conflicting testimony of Mr. Glass (Tr.136-137).\u00a0 Even if it were assumed Mr. Glass wore the approved respirator, theevidence remains that three employees wore the unapproved type respirator and one waswithout any protection.\u00a0 Since it is established that four employees were withoutproper protection, it must be held the safety policy of respondent was either notadequately communicated to the employees or it was not adequately enforced.\u00a0 SeeFloyd S. Pike Electrical Contractor, Inc., supra.\u00a0 The defense ofisolated incident of employee misconduct is, therefore, without merit and the standard wasviolated as alleged.The violations having been established, it must nowbe determined whether they are of a serious nature as alleged.\u00a0 For a violation to bedetermined serious under Section 17(k) of the Act, there must be a substantial probabilitythat death or serious physical harm could result therefrom.\u00a0 The record clearlyreflects that employees were exposed to excessive concentrations of welding and iron oxidefumes which necessarily show a substantial probability that serious physical harm couldresult.\u00a0 The violations must, therefore, be held as serious within the meaning of theAct.The next question for determination concerns the amount of penalty to be assessed for theviolations.\u00a0 Under section 17(j) of the Act, the Commission is required to find andgive \”due consideration\” to the size of the employee’s business, the gravity ofthe violation, the good faith of the employer, and the history of previous violations indetermining the assessment of an appropriate penalty.\u00a0 The gravity of the offense isthe principal factor to be considered.\u00a0 Nacirema Operating Company, Inc., 72OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).\u00a0 TheCommission stated in Secretary v. National Realty and Construction Co. Inc.,72 OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,188 (No. 85, 1971), that theelements to be considered in determining the gravity are:\u00a0 (1) the number ofemployees exposed to the risk of injury; (2) the duration of exposure; (3) the precautionstaken against injury, if any; and (4) the degree of probability of occurrence of injury.Weighing all the foregoing factors in light of thecircumstances, including respondent’s attempts at compliance, it is concluded that apenalty in the amount of $200 is deemed appropriate.FINDINGS OF FACT1.\u00a0 Equitable Shipyards, Inc., at all timeshereinafter mentioned, maintained a place of business, at Highway 21, Madisonville,Louisiana, where it is engaged in ship and barge construction.2.\u00a0 On February 19, March 31 and April 1, 1981, authorized representatives of theSecretary conducted inspections of the aforementioned work site.\u00a0 As a result of theinspections, respondent was issued three citations with notice of proposed penalties.3. In the rake end and erection areas of respondent’s work site manifold and header hoseconnections were not capped. Caps were provided, but the safety rule requiring use of suchcapping was not adequately enforced.\u00a0 4.\u00a0 Approximately 25,000 feet of welder’s cable was being used at the time of theinspection.\u00a0 5.\u00a0 Employees spray painting the outside sections of barges at the time of theinspections used \”3M Model 8711\” disposable paint spray respirators which werenot approved by NIOSH.\u00a0 Use of such respirators for the work being performed is notdeemed to have an immediate relationship to the employees’ health or safety.6.\u00a0 Employees working inside the wing walls of barges were withoutsufficient general mechanical ventilation to maintain welding fumes and smoke within safelimits.7.\u00a0 Welders inside the wing walls were not protected by respiratorsagainst the welding and\/or iron oxide fumes.CONCLUSIONS OF LAW1.\u00a0 Equitable Shipyards, Inc., at all timespertinent hereto, was an employer engaged in a business affecting commerce within themeaning of section 3(5) of the Occupational Safety and Health Act of 1970, and theCommission has jurisdiction of the parties and subject matter herein pursuant to section10(c) of the Act.2.\u00a0 Respondent is, and at all times pertinent hereto, required to complywith the safety and health regulations promulgated by the Secretary pursuant to section6(a) of the Act.3.\u00a0 Respondent was in violation of the standard at 29 C.F.R. ? 1916.35(a)(4) at thetime of the inspections herein.4.\u00a0 Respondent was not in violation of the standard at 29 C.F.R. ? 1916.36(b)(4) atthe time of the inspections herein.5.\u00a0 Respondent was in violation of the standard at 29 C.F.R. ? 1916.82(e) at thetime of the inspections herein.\u00a0 The violation was of a de minimisnature.6.\u00a0 Respondent was in violation of the standard at 29 C.F.R. ? 1916.31(a)(1)(ii) atthe time of the inspections herein.7.\u00a0 Respondent was in violation of the standard at 29 C.F.R. ? 1916.82(d)(1) at thetime of the inspections herein.Upon the basis of the foregoing findings of fact andconclusions of law, and the entire record, it is ORDERED:1.\u00a0 That part or Citation No. 2 of Docket No.81-1762 alleging violations of 29 C.F.R. ? 1916.35(a)(4) is hereby affirmed.2.\u00a0 That part of Citation No. 2 of Docket No. 81-1762 alleging a violation of 29C.F.R. ? 1916.36(b)(4) is hereby vacated.3.\u00a0 That Citation No. 1 of Docket No. 81-1685 is hereby affirmed as a de minimisviolation.4.\u00a0 That Citation No. 2 of Docket No. 81-2089 is affirmed and a penalty in the amountof $200 is hereby assessed.Dated this 8th day of April, 1982.PAUL L. BRADYJudgeSECRETARY OF LABOR,Complainant,EQUITABLE SHIPYARDS, INC.,Respondent.OSHRC DOCKET NOS. 81-168581-176281-2089ORDERNo response having been received from the Secretary, in accordance with the Commissiondecision issued March 26, 1987, these cases are final orders as of the date of this order.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 APRIL 14, 1987FOOTNOTES: [[1\/]] The text of the IHFOM as of January 1, 1979,is reproduced in CCH Employment Safety & Health Guide, OSHA Field Operations Manualand Industrial Hygiene Field Operations Manual (1979).[[2]] Section 7(d) states in part that \”[w]henan agency decision rests on official notice of a material fact not appearing in theevidence in the record, a party is entitled, on timely request, to an opportunity to showthe contrary.\”\u00a0 We will afford the Secretary this opportunity.[[3\/]] The latest edition of the ACGIH booklet alsocontains the same statement.\u00a0 See ACGIH, Threshold Limit Values for ChemicalSubstances in the Work Environment for 1984-85, 47 (1984).[[4]] The section states in full: 7. Sampling Technique 7.1 Breathing Zone Helmet Test7.1.1 Samples shall be taken within the welder’shelmet.\u00a0 The filter cassette assembly may be inserted through a hole in the helmet orclipped and positioned inside the helmet as shown in Fig. 1.\u00a0 In either case, thecassette inlet shall be positioned so that it is maintained approximately 2 in. (50 mm)from the center line of the breathing zone at the welder’s mouth level while the helmet isdown in the welding position.\u00a0 The cassette inlet shall not be positioned in theupward direction.\u00a0 Inlet extension tubes are not permitted.\u00a0 Properly assembledclosed face filter cassette assemblies shall be employed (i.e. with only the plugremoved)..[[1]] Immediately prior to the quoted exchange, theSecretary had presented his case on a different respirator item, which alleged that spraypainters were not protected by approved respirators.\u00a0 The Secretary’s evidenceshowed, and the parties stipulated, that Equitable’s spray painters had been using 3Mmodel 8711 respirators.\u00a0 It is possible that counsel’s reference to \”thisparticular respirator\” arose out of a misunderstanding as to which citation item wasbeing discussed and was meant to refer to the previously discussed 8711 respirators.[[2]] The judge stated that even if Glass was wearing a 9920 respirator during theinspection, Equitable would still be in violation because three other employees werewearing unapproved respirators and one was not wearing any respirator at all. We do notagree that the record supports these conclusions.\u00a0 First, if Glass’ testimony that hewore a 9920 respirator is believed, Crawford’s testimony that Revere and Sharp werewearing unapproved respirators must be rejected, for Crawford testified that Revere andSharp were wearing the same type of respirator as Glass.\u00a0 Second, Cannon’s testimonythat Cooper wore an unapproved respirator was based primarily on his observation thatCooper’s respirator had two straps.\u00a0 However, the 9920 respirator, like the 8710, hastwo straps, and Stein testified that the respirator Cooper wore was a 9920.\u00a0 Thus,the record does not support a finding that Cooper wore an unapproved respirator. \u00a0Finally neither Cannon nor Stein could positively state whether Mayfield wore a respiratorhe was welding, as neither could see him during that time.\u00a0 Their testimonyconflicted on whether Mayfield had a respirator with him when he went into the wingtank.\u00a0 Without a credibility determination, we cannot find that Mayfield was notprotected by a respirator when welding.\u00a0 See Evansville Materials 77OSAHRC 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’sdeposition could be taken as an alternative to his appearance at the hearing. On remand,the parties should consider this possibility.\u00a0 See section 12(h) of the Act,29 U.S.C. ? 661(g) (Commission may order testimony taken by deposition); 29 C.F.R. ? 2200.70 (deposition inlieu of testimony).”