Docket No. 81-1685_81-1762

SECRETARY OF LABOR,
Complainant,

v.

EQUITABLE SHIPYARDS, INC.,
Respondent.

OSHRC Docket Nos. 81-2089
81-1685
81-1762

DECISION

Before: BUCKLEY, Chairman; WALL Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. ї 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

Equitable Shipyards, Inc. maintains a ship and barge construction facility in Madisonville, Louisiana. On June 3, 1981, Richard K. Crawford, an industrial hygienist for OSHA, monitored three Equitable employees to measure their exposure to fumes produced by welding. The Secretary subsequently issued a two-item citation to Equitable in OSHRC Docket No. 81-2089. Item la alleges that Equitable violated the maritime standard formerly at 29 C.F.R. ї 1916.31(a)(1)(ii) by not providing general mechanical ventilation of sufficient capacity to produce the air changes necessary to maintain the fumes within "safe limits." Subitem 1b alleges that Equitable violated the maritime standard formerly at section 1916.82(d)(1) when its employees were exposed to "unsafe concentrations" of welding fumes while not protected by air-line or filter respirators approved for use in welding fumes. Judge Paul L. Brady affirmed both items. We conclude that the Secretary failed to prove that Equitable's welders were exposed to dangerous concentrations of welding fumes and vacate both items.

Section 1916.31(a)(1)(ii), since redesignated section 1915.51(b)(1)(ii), provides:

ї 1916.31 Ventilation and protection in welding, cutting and heating.
(a) Mechanical ventilation; requirements. (1) For purposes of this section, mechanical ventilation shall meet the following requirements:

(ii) General mechanical ventilation shall be of sufficient capacity and so arranged as to produce the number of air changes necessary to maintain welding fumes and smoke within safe limits. [Emphasis added.]

Section 1916.82(d)(1), since redesignated section 1915.152(d)(1), provides:

ї 1916.82 Respiratory protection.
(d) Protection against particulate contaminants not immediately dangerous to life. (1) When employees are exposed to unsafe concentrations of particulate contaminants, such as dust and fumes, mists and fogs or combinations of solids and liquids, they shall be protected by either air line or filter respirators, except as otherwise provided in the regulations of this part. [Emphasis added.]
To establish that section 1916.31( a)(ii) was violated, the Secretary must prove that the mechanical ventilation provided by Equitable was not sufficient to maintain welding fumes within "safe limits." Similarly, to prove section 1916.82(d)(1) was violated, the Secretary must prove Equitable employees were exposed to "unsafe concentrations" of welding fumes. The question here is whether the Secretary properly measured the concentrations of the fumes.

During the inspection, OSHA industrial hygienist Crawford placed devices on Equitable employees Melvin Glass, Richard Revere, and Thomas Sharp to monitor their exposures to air contaminants while they were welding inside the hull of a barge under construction. Mr. Crawford removed the sampling devices at the end of the employees' eight-hour work shifts. The results of the monitoring showed that the employees were exposed to concentrations of fumes generated by welding in excess of those recommended by the American Conference of Governmental Industrial Hygienists. Equitable argues, however, that these results are unreliable because the devices were improperly placed.

Industrial hygienist Crawford had clipped cassette sampling devices onto the shirt collars of the employees. Equitable vigorously argued before Judge Brady that the cassettes should have been placed behind the employees' welding hoods. It presented the testimony of Equitable witness Jerry Riddles, a certified safety professional who had given seminars for the Texas Safety Association and was employed by Equitable's parent company to help run its safety and health program. Mr. Riddles testified that to accurately sample the concentration of welding fumes breathed by employees, the cassette sampling device "should be within the confines of the welding shield." In explaining his view, he first noted that welders will spend about fifty percent of their 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 the breathing zone with [the cassette] inside the hood, the fumes hit the hood; the welding hood shield forms as disperse and go around the hood and upward. Some are drawn in, but nothing like the direct exposure to the cassette off of the molten metal.

Mr. Riddles also testified that he had conducted tests with sampling devices both outside and inside welding hoods and that "the one under the 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 regional industrial hygienist. Mr. Wingo testified that the placement of the sampling devices on the employees' collars was proper because the devices were within the breathing zone of the employees, "a one-foot [radius] sphere around the employee's head." He therefore testified that it did not make any difference whether the sampling devices were inside or outside the employees' welding hoods. He further testified that he had attempted to conduct tests with sampling devices placed inside welding hoods but had not been able to keep the sampling devices affixed to the welding hoods because of the welders' need to constantly pull their helmets up and down. Mr. Crawford testified that he had clipped the sampling cassettes to employees' shirt collars on the basis of an OSHA manual and because the cassettes would in that position be within 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 was correct . . . . Also, the primary purpose of welding hood is to protect the welder against splatter and radiation during the welding process and not as a respiratory protective device. [Wingo] stated that the cassette containing the filter should be placed within the employee breathing zone which is a one-foot sphere around his head and, in addition, it is not practical to place the cassette under the hood. . . .

The Secretary argues that the judge correctly credited Mr. Wingo and the Commission should accept the judge's evaluation of Mr. Wingo's credibility. The Secretary also argues that Mr. Riddles's tests, in which he recorded less exposure inside welding hoods, were not shown to have been conducted under laboratory conditions, and that their statistical significance was not presented. Further, Mr. Riddles was not testifying as an expert industrial hygienist

Although the question before us is a technical industrial hygiene issue, the Secretary's review brief presents it to us as primarily involving the relative credibility of witnesses. One witness, industrial hygienist Crawford, did refer in his testimony to provisions of OSHA's Industrial Hygiene Field Operations Manual ("the IHFOM") [[1/]] but the parties did not provide the judge with a copy of the manual or citations to the particular sections involved. Judge Brady therefore had no opportunity to examine the testimony of the witnesses in light of its actual provisions. On review, however, Equitable cites two administrative law judge decisions that refer expressly to not only the IHFOM but also several additional publications that address the proper placement of sampling devices when measuring airborne concentrations of welding fumes. We have reviewed the IHFOM, as well as those other publications. As we shall discuss below, a close examination of the IHFOM shows that Mr. Crawford relied upon the wrong air sampling provision. The other publications cited in the judge's decisions also are illuminating. To resolve this technical issue, we therefore think it appropriate to take official notice under section 7(d) of the Administrative Procedure Act, 5 U.S.C. ї 556(e), of the IHFOM and those other materials.[[2]] For these reasons, the issue before us involves more than the conventional credibility question discussed by the Secretary.

At the time of the inspection, OSHA compliance officers were expected to follow the guidelines in the IHFOM for conducting health inspections. The section of the IHFOM dealing with sampling certain air contaminants prescribed a general rule for placing sampling cassettes and a specific rule for placing them when sampling for welding fumes. These rules are as follows:

Chapter V OSHA Standardized Method for Sampling Total Dust, Metal Fumes, and Liquid Aerosols

II. Sampling Procedure

B. In Field.

6. Attach the cassette assembly to the shirt label of the employee in order to approximate the breathing zone.

C. For welding fumes, the cassette should be located under the welding hood in the breathing zone.

It would seem that industrial hygienist Crawford followed the general rule for air contaminants rather than the specific rule for welding fumes.

The failure to OSHA to follow the IHFOM does not automatically invalidate a citation. See FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1710, 1977-78 CCH OSHD І 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 be accorded significance." 5 BNA OSHC at 1710 n. 10, 1977-78 CCH OSHD at p. 22,060 n. 10. We find that the IHFOM's requirement that a sampling cassette be under a welding hood when testing for welding fumes is probative evidence of what the proper sampling technique is.

As we have noted, some of the evidence on sampling methods introduced into this record by the Secretary's attorneys in this litigation is seemingly inconsistent with the special rule in the IHFOM for welding fumes. Inasmuch as the IHFOM's sampling provision are not binding on the Secretary, he may repudiate them if he finds them incorrect or unduly stringent. The Secretary does not, however, expressly claim that the technique he used is as good or better than those required by the IHFOM; his brief does not mention the IHFOM. We shall therefore refer to the IHFOM with all the other evidence here to determine whether the sampling 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 before us, drawing a sharp distinction between a general case and the specific case here. Thus, it contains a separate chapter (Ch. V) detailing OSHA's standardized method for sampling metal fumes and giving step-by-step descriptions of sampling procedures. Second, the IHFOM was intended to comprehensively govern OSHA's sampling techniques for air contaminants, not merely provide informal advice to field personnel. The IHFOM provides that all sampling should be performed according to the 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 industrial hygiene question; its answer to that question represents the considered opinion of OSHA's national technical staff charged with prescribing the methodology for workplace inspections. We therefore accord the IHFOM substantial weight here.

The successor to the IHFOM continues its special rule for welding fumes. On March 30, 1984 the Secretary issued the Industrial Hygiene Technical Manual ("the IHTM") to replace much of the IHFOM. Like the IHFOM, the IHTM requires placement of the sampling cassette device inside and employee's welding hood. A section entitled "Special Sampling Procedures" states in part that "[i]n sampling for employee exposure to air contaminants generated during burning and welding operations, ensure that the filter cassette is located inside the employee's welding hood." Id., Ch. II, ї 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 respected safety and health organizations. OSHA's claim that excessive fumes were produced by welding here is based on a threshold limit value prescribed by the American Conference of Governmental Industrial Hygienists (ACGIH) in its publication, Threshold Limit Values for Chemical Substances and Physical Agents in the Workroom Environment for 1979 (1979). However, the ACGIH publication strongly implies that to determine whether a threshold limit value has been exceeded, fumes generated by welding must be measured inside the welding hood. Its discussion of welding fumes ends with the following statement: " Most welding, even with primitive ventilation, does not produce exposures inside the welding helmet above 5 mg/M3. That which does, should be controlled." Id. at 46.[[/3]] That the ACGIH expressly focuses on the level of fumes inside the welding helmet as the criterion for determining whether to introduce additional ventilation again supports Mr. Riddles's testimony.

Another private standard to much the same effect as the IHFOM was jointly published in 1985 by the American National Standards Institute (ANSI) and the American Welding Society (AWS) to prescribe procedures for sampling welding fumes. Section 7.1.1 of ANSI/AWS F1.1-1985, Method for Sampling Airborne Particulates Generated by Welding and Allied Processes, provides that "[s]amples shall be taken within the welder's helmet."[[4]] It also states that the distance between the sampling device and an employee's mouth should be only about two inches. A picture in the ANSI/AWS standard also shows precisely how and where the cassette is to be placed inside the welding hood. Although the ANSI/AWS standard has not been adopted as an OSHA standard, it is evidence of what well informed safety professionals familiar with welding believe is the proper way to sample welding fumes.

As we have noted, Judge Brady did not in his decision evaluate the significance of the IHFOM 's special provision requiring that cassettes for sampling welding fumes be place inside the welding hood. This is because neither the parties nor the witnesses introduced, mentioned or otherwise brought the special welding fumes provision to the judge's attention. The judge also did not have before him the IHTM or the ANSI/AWS standard, for they were issued after he made his findings on this point. Yet, these publications lend substantial support to Riddles's testimony.

Judge Brady was, of course, aware of the conflicting testimony of Messrs. Wingo find Riddle. He decided the issue in favor of the Secretary, stating that the issue was resolved . . . by Mr. Dean Wingo . . . whose testimony was most creditable." But it is not clear that Judge Brady made a credibility finding. He neither mentioned nor explained why he rejected Mr. Riddles's testimony. He did not state that Mr. Wingo had a greater propensity than Mr. Riddles to speak truthfully or that Mr. Wingo had greater expertise in the matter. He did not attribute his evaluation to any quality of the witnesses that he had observed as they testified. In any event, we have many times stated that a judge's credibility evaluation must be explained if the Commission is to defer to it. See generally C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297-98, 1977-78 CCH OSHD І 22,481, pp. 27,099-27,100 (No. 14249, 1978) and P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1192, 1977-78 CCH OSHD І 22,413, p. 27,024 (No. 76-431, 1977). Finally, Judge Brady did not have before him the two OSHA publications and the ANSI/AWS publication. We are therefore able to view Mr. Wingo's testimony in a considerably different light than Judge Brady did.

Mr. Wingo's testimony that the placement of the cassette made no difference was not based on any test results. Instead, his opinion was based on four points: his general view that placing a sampling cassette within an employee's general breathing zone was sufficient; that he was not satisfied by the empirical evidence he had seen that the location of a sampling cassette is significant when measuring welding fumes; that it was not possible to keep the sampling cassette affixed to welding hood; and that welding hoods were not primarily designed as respiratory protection devices. We are not convinced by Mr. Wingo's testimony.

That OSHA, ACGIH, ANSI and AWS all prescribed that sampling cassettes are to be placed inside the welding hood persuades us that the location advocated by Mr. Wingo is not appropriate for measuring welding fumes. We also are unconvinced by the implication in Mr. Wingo's testimony that cassettes cannot be placed inside the welding hood. For one thing, Mr. Wingo did not testify that they could never be so placed; he stated only that it could not be done with the cassettes that OSHA used in this case. The ANSI/AWS standard illustrates a way that cassettes can be clipped to the inside of a welding hood; we also doubt that OSHA, ACGIH, ANSI and AWS would have prescribed that method if it were truly impractical. Finally, that welding hoods are not 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 fumes from the mouth and nose of a welder.

In sum, we agree with Equitable that the Secretary must prove that sampling cassettes for welding fumes were placed inside the welding hood. We also find that the Secretary failed to prove that they were. As we have said, industrial hygienist Crawford clipped the cassettes to the shirt collars of three employees. When he did so, none of the three employees were wearing a welding hood. Crawford nevertheless testified that, although he did not see the monitored employees at all times during the day, every time he did see them with their welding hoods over their faces the sampling devices were located under the welding hoods of the employees. Judge Brady did not evaluate this testimony in his decision. We shall do so ourselves. See generally C.Kaufman, 6 BNA OSHC at 1298, 1977-78 CCH OSHD p. 27,100.

We are not convinced by Crawford's testimony that the cassettes were in the proper place. Employee Glass, the only one of the three monitored employees who testified at the hearing, testified that the sampling device was outside his welding hood when the hood was down and he was welding. Mr. Riddles testified, moreover, that the sampling devices shown attached to the shirt collars of the three monitored employees in the Secretary's photographic exhibits C-7, C-8, and C-9 would not be inside the welding hoods of the employees. We view those exhibits the same way. The exhibits show the sampling devices attached to the employees' shirt collars. All three employees were wearing open-collared shirts. On two of the employees, the devices rested near the employees' hearts; on the third employee, the device rested in the same general area, but was on the right side of the employee's chest. Although the Secretary introduced no evidence on the size of the welding hoods used here, it seems implausible to us that any commonly used welding hood could have regularly covered the cassettes depicted in the photographic exhibits. In sum, despite the testimony of Mr. Crawford that the sampling devices were under the welding hoods when he happened to notice them, we are not convinced that they were regularly so located during the entire period that the cassettes were worn.

Because we find that the Secretary has not proved the propriety of Mr.Crawford's sampling technique, we are unable to find that the results obtained from the sampling show that the employees were exposed to unsafe concentrations of welding fumes. Accordingly, we will vacate citation items la and 1b, in Docket No. 81-2089.

Judge Brady's decision of April 8, 1982, affirmed citation items alleging Equitable's noncompliance with 29 C.F.R. ї 1916.82(e)(OSHRC Docket No. 81-1685) and 29 C.F.R. ї 1916.35(e)(4)(OSHRC Docket No. 81-1762), and vacated a citation item alleging Equitable's noncompliance with 29 C.F.R. ї 1916.36(b)(4)(OSHRC Docket No. 81-1762). The parties do not dispute the judge's action on those citation items. Accordingly, the citation item alleging noncompliance with section 1916.82(e) in Docket No. 81-1685 is affirmed, the citation item alleging noncompliance with section 1916.35(e)(4) in Docket No. 81-1762 is affirmed, and the citation item alleging noncompliance with section 1916.36(b)(4) in Docket No. 81-1762 is vacated. Items 1a and 1b of the citation in Docket No. 81-2089 are vacated for the reasons we have discussed, unless the Secretary requests an opportunity to introduce evidence contrary to officially-noticed documents within 15 days of this decision.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: MAR 26, 1987

SECRETARY OF LABOR,
Complainant,

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, Rader and
Mash, Ennis, Texas, on behalf of respondent.

DECISION ON REMAND

BRADY, Judge: This cast was remanded by the Commission for the purpose of taking the testimony of respondent's former safety director, Tim Dorman. It was believed Mr. Dorman's testimony could be crucial in resolving certain conflicting testimony relating to employee use of respirators for protection against welding fumes.

The initial decision in 81-2089 was concerned with allegations of employee use of the unapproved 3M Model 8710 type respirator. It was based on the record as a whole; but chiefly, the testimony of Industrial Hygienist Cannon as it related to employee Mayfield. The Commission did not agree that the conclusions reached in the decision were supported in the record and held respondent should have the opportunity to present the testimony of Mr. Dorman who did not testify at the hearing.

The conflicting testimony in this case involved that of Industrial Hygienist Crawford and employee Melvin Glass. During the course of his inspection, Crawford positively identified the respirators worn by Employees, Glass, Revere and Sharp as the unapproved Model 8710. Mr. Glass, however, was equally unequivocal in testifying that he wore the approved Model 9920 at the time of the inspection. The record shows that Dorman accompanied Crawford at the time of the inspection 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. Such action was taken over the objection of the Secretary who pointed out that, at the time of the hearing, it did not appear a subpoena had been properly served in order to invoke its enforcement. 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 the initial inspection (Tr. 10). At that time, he saw "a couple of fellows" wearing 9920 respirators. He agreed they were not accompanied when they entered the holds to weld but assumed they all wore 9920's (Tr. 13). Mr. Dorman acknowledged the distinction between the 9920 respirator and the 8710 but indicated such difference was easily detectable only if one were specifically looking for either type (Tr. 10). During 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 he assembled the five welders and was present when Mr. Crawford conducted air sampling tests. Although he observed two employees wearing 9920 respirators, they were not identified nor did he give any other testimony concerning use of respirators by the other welders. Accordingly, his testimony failed to resolve 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, a safety professional, not only testified as to his observations at the time of the inspection but also wrote down the NIOSH approval number from the respirator Mr. Glass was wearing. This documentation, made in the course of the inspection, shows the NIOSH number corresponded to that of the unapproved 8710 respirator which was received into evidence. This evidence, in light of no further evidence in support of Glass' testimony, is convincing and sufficiently supports the allegations that the standard was violated.

Dated this 28th day of October, 1985.

PAUL L. BRADY
Judge

SECRETARY OF LABOR
Complainant,

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 Commission under 29 U.S.C. ї 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

Administrative Law Judge Paul L. Brady affirmed a citation alleging that Equitable Shipyards, Inc.("Equitable") failed to protect certain employees against overexposure to welding fumes by assuring that the employees wore respirators and by providing sufficient mechanical ventilation. In addition to arguing that it has not violated the cited standards, Equitable contends that (1) all evidence gathered by the Secretary of Labor during his inspection of Equitable's workplace should be suppressed because there was no probable cause for the inspection; (2) The judge erred in declining to enforce a subpoena Equitable had issued to Tim Dorman, Equitable's safety director at the time of the alleged violations; and (3) the judge erred in not ordering the Secretary to turn over to Equitable written statements the Secretary had obtained from certain Equitable employees. We conclude that Equitable's motion to suppress was properly denied. We further conclude, however, that the judge erred in declining to enforce the Dorman subpoena and that a remand for further proceedings is therefore required.

Equitable operates a shipyard in Madisonville, Louisiana. Following a complaint by employees of unsafe working conditions, two OSHA compliance officers attempted to inspect the facility. When Equitable refused to consent to the inspection, OSHA obtained a warrant from a federal magistrate authorizing it to inspect the areas in the shipyard that were mentioned in the employee complaint. Equitable again refused to permit the compliance officers to conduct the inspection and filed suit in federal district court seeking to have the warrant quashed on the ground it was not supported by probable cause. The district court found there was probable cause to support the warrant and ordered that the inspection be conducted according to its terms. Ultimately, the inspection was conducted, and Equitable was cited for violating several OSHA standards on the basis of information gathered during the inspection.

Equitable argues that the evidence gathered during the inspection should be suppressed and the citations vacated because probable cause for issuance of the warrant was lacking. We reject the argument.

In Chairman Buckley's view, the Commission has no authority to review or set aside the probable cause determination made by a federal judge or magistrate who issues a search warrant. Brooks Woolen Co., OSHRC Docket Nos. 79-45 and 79-128, slip op. at 2-3 (April 10, 1985) (view of Chairman Buckley). Where an inspection was conducted pursuant to a warrant, the Commission can consider challenges to the warrant based on allegations that the Secretary acted illegally in obtaining or executing the warrant. Id. In this case, Equitable claims no misconduct on the Secretary's part; it argues only that the probable cause determination made by the magistrate and upheld by the district court judge was in error. As the Commission has no authority to rule on such an argument, Chairman Buckley would deny the motion to suppress. Id.; Beauty Craft Tile of the Southwest, Inc., 84 OSAHRC, 12 BNA OSHC 1082, 1083, 1984 CCH OSHD І 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, signed complaint from five employees listing a number of purportedly unsafe conditions in the Erection and Rake areas of Equitable's shipyard. The complaint stated that employees were exposed to toxic air contaminants from painting and welding operations, to fire hazards due to improperly maintained welding equipment, to fall hazards due to improperly tightened safety lines, to a slipping hazard due to oil leaking on barge decks, and to electrical shock due to improperly maintained welding lines and to welding in wet and rainy weather. The warrant application set forth the substance of the employee complaint and sought to inspect only those areas of the shipyard mentioned in the complaint. The warrant that was issued was similarly limited. The information presented in the warrant application was sufficient to establish probable cause for the limited-scope warrant that the magistrated issued. See Sarasota Concrete Co. 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1615-16, 1981 CCH OSHD І 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, Commissioner Cleary would not suppress the evidence. The Supreme Court has held that evidence should not be suppressed when an officer acting with objective good faith has obtained a warrant from a judge or magistrate and acted within its scope. United State. v. Leon, 104 S.Ct. 3405, 3420 (1984). Commissioner Cleary would apply that same rule to Commission proceedings. Davis Metal Stamping, Inc., OSHRC Docket No. 78-5775 (April 15, 1985). In this case, the compliance officers who inspected Equitable's workplace were clearly entitled to rely on the validity of the warrant. The warrant had been duly issued by a magistrate and, prior to its execution, the magistrate's probable cause determination had been upheld by the federal district court. Equitable does not argue that the compliance officers acted in other than good faith in obtaining and executing the warrant and does not advance any reason why they were not entitled to rely on the warrant's validity. Cf. United States v. Leon, 104 S.Ct. at 3421-22 (suppression of evidence is appropriate if magistrate was misled 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 its existence entirely unreasonable.") Because the compliance officers conducted the inspection in objectively reasonable reliance on the validity of the warrant, there is no basis to suppress the evidence. See Donovan v. Federal Clearing Die Casting Co., 695 F.2d 1020 (7th Cir. 1982).

Equitable next asserts that the Judge erred in refusing to enforce a subpoena issued to Equitable's safety director, Tim Dorman. Dorman was the company's principal representative during the inspection. At the time of the hearing, Dorman was no longer employed by Equitable and had moved to San Francisco. Equitable attempted to obtain Dorman's testimony by means of a subpoena. See 29 C.F.R. ї 2200.55 (Commission rule governing subpoenas). The facts surrounding service of the subpoena are not fully developed in the record, but Dorman apparently received notice of it for he wrote a letter to Equitable's counsel declining to appear at the hearing. At the outset of the hearing, Equitable moved for enforcement of the subpoena. The judge reserved ruling at that point. When Equitable renewed its motion at the close of its evidence, the judge denied the motion, stating that Dorman's testimony "is not crucial to this proceeding."

We conclude that the judge erred in declining to enforce the subpoena on that ground. On at least one material issue of fact, there is a sharp conflict in the evidence, and Dorman's testimony could be crucial in resolving that point. Moreover, as Equitable's safety director and representative during the inspection, Dorman would ordinarily be expected to be an important witness for
Equitable. Under the circumstances, fundamental fairness requires that Equitable be given the opportunity to obtain Dorman's testimony.

The issue on which there is conflicting evidence concerns the type of respirator certain Equitable employees were using during the inspection. One of the citation items on review alleges that five welders were exposed to excessive levels of welding fumes while not wearing respirators approved for use against welding sample. Although four of the employees were observed by the Secretary's compliance officers to be wearing respirators, the Secretary alleged that those respirator not approved for welding fumes. The Secretary also alleged that the fifth employee was not wearing any respirator at all. Equitable contends that it provided respirators approved for use against welding fumes and that its employees were required to wear such respirators whenever welding. The company further contends that the evidence does not support the Secretary's allegation that the five employees in question were not wearing proper respirators.

During the inspection, OSHA compliance officers monitored the five employees to determine the concentrations of welding fumes to which they were exposed. Compliance officer Crawford monitored three of the employees: Glass, Revere, and Sharp. Crawford was accompanied by Dorman during this phase of the inspection. Crawford testified that Glass, Revere, and Sharp wore 3M model 8710 respirators, which provide protection against dust but are not approved for welding fumes. Crawford stated that he wrote down the NIOSH approval number from the respirator that Glass was wearing. That number, TC-21C-132, corresponds to the approval number of the 8710 respirator that was introduced into evidence. Crawford further testified that the 8710 respirator appeared significantly different from the 3M model 9920 respirator that Equitable claims the employees were wearing and which is approved for welding fumes. Samples of both respirators were introduced into evidence and support Crawford's testimony that two respirators are distinct in appearance and could not be confused.

Of the three employees observed by Crawford, only Glass testified. When shown a 9920 respirator, Glass stated that it was the type of respirator he had been at the time of inspection. Glass answered affirmatively when asked if he was absolutely positive that the 9920 was the type of respirator he been wearing. stating: "You wear one every day of your life while you're working, you ought to recognize it." Glass was no longer working for Equitable at the time of the hearing and had no apparent interest in the outcome of the case.

Two employees, Cooper and Mayfield, were monitored by compliance officer Cannon, who was accompanied by Equitable's safety inspector Stein. Cannon testified that Cooper was wearing a model 8710 respirator. He did not observe the model number on the respirator but identified it as an 8710 because it possessed two straps instead of only one. Stein identified the respirator that Cooper was wearing as a 9920. The respirator samples introduced into evidence show that both the 8710 and 9920 have two straps.

Cannon testified that Mayfield was not wearing any type of respirator and had no respirator with him when he went into the wing wall, where he performed welding that day. However, Cannon stated that he placed the sampling cassettes, on the employees before they went into the wing wall and that he would not have seen if Mayfield put on a respirator inside the wing wall. Nevertheless, Cannon was certain that Mayfield did not use a respirator inside the wing wall. He stated, "Every time he came out, he didn't take one off, and as far as I know, he had none available. He may have had one available, but he was not utilizing one." Stein testified that both Cooper and Mayfield had respirators with them when they went into the wing wall, and he did not observe either of them welding without wearing a respirator.

The judge did not resolve the conflicts in the evidence. Instead, he believed the parties had stipulated that the employees in question were wearing 8710 respirators at the time of the inspection and, on this basis, he affirmed

Equitable argues on review that no such stipulation was
At the beginning of the motion of the hearing devoted to the well citation. Equitable's counsel did express a willingness to
stipulated to the type of respirators being worn, but no such stipulation was ever completed. After the Secretary's counsel stated her intention to call several Equitable employees as witnesses, the following 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, I don't know, but if the purpose of calling - employees is to testify that they 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-record discussion meeting of the parties, there has been a stipulation reached. Do you want to cite the terms of the agreement, Mr. Rader?

MR. RADER: Your Honor, it's my understanding that the Secretary intends to call some employee witnesses for the
purpose of establishing that on a day personal monitoring was conducted, that their work load was normal, that the ventilation was normal. And we're certainly willing to stipulated to that point.

MS. GANNAWAY [Counsel for the Secretary]: Right Your Honor. For clarification, the purpose being that the Secretary is establishing that this was a routine work day, that it's representative of the nature and the extent and the quantity
of work performed by these workers on a typical work day, that there was nothing out of the ordinary on the day of personal monitoring.

The exchange cannot be construed to include a stipulation that Equitable's 8710 respirators. The offer by Equitable's counsel to stipulate to the type of respirator did not mention a model number, and there had been no previous mention at the hearing of the 8710 respirator that would indicate that the previous mention at the hearing of the 8710 respirator that would indicate that the reference to "this particular respirator" meant the model 8710.[[1]] Moreover, the stipulation that was ultimately entered involved only the representativeness of the work load and ventilation on the day monitoring was performed, not the type of respirator being worn. The subsequent course of the hearing is also inconsistent with any suggestion that the parties understood there was a stipulation concerning the type of respirator the welders were using. The parties introduced conflicting evidence on the point, and each side cross-examined the other party's witnesses who testified on the subject. At no time during the hearing did either party suggest that this lengthy testimony was unnecessary because a stipulation had resolved the issue.

In declining to enforce the subpoena on the basis that Dorman's testimony was not crucial, the judge apparently acted on his belief that the parties had stipulated that the welders wore unapproved respirators. However, that issue not only remains in dispute, the evidence on it is sharply contradictory. In particular, Crawford's testimony positively identifying the respirators worn by Glass, Revere, and Sharp as 8710's conflicts with Glass' equally unequivocal testimony that he was wearing a 9920. Dorman accompanied Crawford during the portion of the inspection when Crawford observed Glass, Revere, and Sharp. Equitable made an offer of proof that Dorman would testify that the 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 needed because other persons Revere and Sharp, could shed additional light on the issue. We are unwilling to second guess counsel's choice of one witness over another; that several persons may have knowledge of a particular fact should not preclude from presenting the witness of its choice.

The Secretary argues in his brief to the Commission that the subpoena should not be enforced because it was not properly served on Dorman. We see no reason to resolve this point now. 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 another person. See Lee Way Motor Freight, 75 OSAHRC 20/E12, 3 BNA OSHC 1843, 1846, 1975-76 CCH OSHD І 20,250, p. 24,144-45 (No. 7674, 1975. Second, the judge did not base his ruling on the Secretary's objection and has not yet had occasion to consider it. 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. National Labor Relations Board v. Strickland, 321 F.2d 811, 814 (6th Cir. 1963).

III

During the inspection, the compliance officers obtained written statements from a number of Equitable employees. Equitable sought to obtain those statements through discovery and submitted to the Secretary written forms signed by nineteen employees authorizing the release of their statements to Dorman, who was then still Equitable's safety director. The Secretary refused to produce the statements and the judge did not order them produced. Equitable contends that the judge erred in failing to order the Secretary to turn over the statements.

We find it unnecessary to resolve this issue. Equitable had claimed before the judge that the employees' statements pertained to "several" citation items and that the employees had made effective waivers of the informer's privilege. The judge did not order disclosure. In his decision, the judge affirmed several citation items and modified one to a de minimis notice. Equitable sought and obtained discretionary review of the judge's disposition of only two of these items -- subitems 1(a) and 1(b) of serious citations 2 in docket no. 81-2089. These items allege that five named employees were overexposed to welding and iron oxide fumes on June 3, 1981, that mechanical ventilation was inadequate, and employees were not wearing the appropriate respirators. The Secretary argues in answering brief on review, and Equitable does not in its reply brief dispute, that the issue of the production of the statements does not pertain to the citation items still in controversy. Aside from a technical dispute over where personal sampling devices should have been placed on the five employees, the only disputed question of fact on review is whether the five employees wearing respirators approved for welding fumes. The nineteen statements that Equitable sought were made by any of those five employees about two months before the alleged violations before us occurred. Equitable does not seek the disclosure of any statements made by the five employees and it has not produced any written waivers signed by them. Although the statements sought were apparently relevant to two other items that the judge had respectively affirmed without penalty and had modified to a de minimis notice, Equitable did not seek discretionary review as to them. We therefore have no occasion at this time to address the disclosure issue.

Accordingly, the judge's decision is set aside to the extent it is inconsistent with this decision, and the case is remanded for further proceedings in accordance with Part II of this opinion.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: APR 18 1985

SECRETARY OF LABOR,
Complainant,

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 complainant

Robert E. Rader, Jr., Esquire, Ennis, Texas, on behalf of respondent

DECISION AND ORDER

BRADY, Judge: This proceeding is brought pursuant 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 with violating specific occupational safety and health standards at Madisonville, Louisiana, where it is engaged in ship and barge construction. Three separate dockets have been consolidated into the proceeding for purposes of hearing and decision.

Preliminary Matters
Respondent's answer to the complaint in this case contains an allegation that the inspection herein was conducted pursuant to an illegal warrant and, therefore, evidence obtained as a result of the inspection must be suppressed for lack of sufficient probable cause. At the commencement of the hearing, respondent renewed the motion to suppress all evidence under the precedent of Secretary v. Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD І 25,360 (No. 78-5264, 1981).
At that time respondent was permitted to examine Mr. Carl Grose regarding his affidavit, upon which the warrant was issued. The record discloses that following a hearing on the validity of the warrant, a United States District Court judge entered an order on March 26, 1981, denying respondent's motion for a preliminary injunction and its application to quash the warrant.

Clearly, respondent had ample opportunity to be heard on any question of probable cause at the time of the hearing in the District Court. In addition, the order of March 26, 1981, must be held determinative as it was entered prior to the Commissions decision on April 28, 1981, in Sarasota Concrete Co., supra.

Alleged Violation of 29 C.F.R. ї 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 connections shall be capped.

The citation describes the alleged violation as follows:

Manifold and header base connections were not capped in the Rake End Erection Areas; threads were exposed to damage and or accumulation of grease/oil.

Mr. Richard Crawford, industrial hygienist, testified that he observed the violative conditions as depicted in Exhibits C-2 and C-3 in more than one location. He explained 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 across the manifolds in an attempt to protect the threads, but respondent argues it is impossible to continually provide the required protection (Tr. 107). The alleged conditions are not denied, but respondent contends no hazard has been shown to exist as a result thereof.

When asserting employee conduct has prevented an employer from compliance with a standard, it is necessary that the employer show that it has established work rules designed to prevent the violation, has adequately communicated these rules to its employees, has taken steps to discover violations, and has effectively enforced the rules when violations have been discovered. Asplundh Tree Expert Co. 78 OSAHRC 77/E12, 6 BNA OSHC 1951,1978 CCH OSHD І 23,033 (No. 16162, 1978); Mountain States Telephone & Telegraph Co., 78 OSAHRC 30/A2, 6 BNA OSHC 1504, 1978 CCH OSHD І 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 and work rules, which were communicated to employees. There has been a failure, however, to demonstrate that such rules were effectively enforced regarding these alleged violative conditions. The record shows that the inspections were conducted on February 19, March 31, and April 1, 1981. On a follow-up inspection June 3,1981, the condition was again found to exist. Since there is a showing respondent was aware of the condition at the time of the initial inspection, it cannot be heard to argue there is effective enforcement of rules when a violation has been so recently discovered (Tr. 86).

Even though the inspecting officer did not recall whether employees were in the immediate vicinity of the uncapped manifold and hose connections, the evidence sufficiently shows there was access to the hazard. He stated employees were in the area of the manifolds and "walking virtually in all directions in the (Tr. 83). Further, the record reveals a great deal of welding was taking place which required active use of the manifolds by employees, as shown in Exhibits C-2 and C-3, at the time of the initial and follow-up inspections.

Alleged Violation of 29 C.F.R. ї 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 connected shall be used, except that cables with standard insulated connectors or with splices whose insulating quality is equal to that of the cable are permitted.

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 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 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 asserted the defense of an isolated incident of employee misconduct. Even though respondent did not call the employee using the cable as a witness, the record sufficiently establishes adequate precautions were taken to comply with the standard.

Mr. Bruce Stein, a yard safety inspector, testified that respondent has a program for inspecting and repairing cable and of effectively communicating and enforcing such a program. He stated that new employees are required to attend a safety orientation program, are provided safety manuals (Ex. R-5) and are 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 welding cable on the ground in the rake and erection areas. The fact that only one cable was in need of repair in two places must be viewed as an effective demonstration of administering its work rules to prevent the violation (Tr. 300). Under the circumstances, it has not been sufficiently established that respondent possessed knowledge of the violative condition essential to proof of a violation in light of the asserted defense. Respondent is deemed to have done all that reasonably could have been expected of it to insure compliance with the standard. See Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD І 22,805 (No. 3069, 1978).

Alleged Violation of 29 C.F.R. ї 1916.82(e)

This standard applies to respiratory protective equipment and states in pertinent part as follows:

Protection against combinations of gaseous and particulate contaminants not immediately dangerous to life. (1) When employees are exposed to combinations of gaseous and particulate contaminants not immediately dangerous to life, as in spray painting, they shall be protected by respiratory protective equipment approved for use in the type and concentration of the contaminants ....

The alleged violation is described in the citation as:

Employees, while spray painting the outside sections of barges, were provided with and instructed to use "3M Model 8711" disposable paint spray respirators. That model was not approved by the National Institute for Occupational Safety and Health.

There is no dispute that spray painting is only permitted with "approved" use of respiratory equipment, and respondent conducted such operations with an unapproved 3M 8711 model respirator (Tr. 119-120).

Respondent contends that the Model 3M 8711 is as good as or better than a respirator which is NIOSH approved. Mr. Crawford agreed that if such was the case, there would be no immediate relationship to safety and health (Tr. 124). Complainant insists, however, that if the respirator is not "approved" for a work operation, the employer should be required to establish the effectiveness of such a respirator.

Complainant agreed to reduce the nonserious, no penalty classification to a de minimis character if respondent furnished an affidavit from a qualified respirator expert that the 3M 8711 is appropriate for use in paint spray operations (Tr. 34).

Attached to respondent's brief was a copy of an affidavit of a Mr. Jerry who states that he is involved in the development of products in the safety and health field, including the Model 8711 respirator, for the 3M Company. He avers that in his capacity he has knowledge of the design, industries and capabilities of the Model 8711 respirator and, when used in with instructions, it will perform as well as, if not better than, conventional NIOSH/MSHA approved spray respirators. Although an affidavit was not provided counsel for the Secretary prior to filing briefs 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 a particular hazard through use of the respirator, but the only issue relates to employee protection with "approved" respiratory equipment.

Mr. Crawford stated that the employees in the exterior painting operation were exposed to paint particulates and vapors, and the manufacturer represents that the respirator provides the necessary protection for employees against such spray and vapor.

The brochure of the 3M Company which relates to the Model 8711 states:

NIOSH/MSHA APPROVAL STATUS

The 3M Brand Spray Paint Respirator #8711 is not approved by NIOSH/MSHA at this time because there are no performance testing criteria for this type of respirator. NIOSH/MSHA has been requested to develop performance criteria tests for this type of spray paint respirator. We have on file data to show that the #8711 respirator performs as well as if not better than a NIOSH/MSHA approved respirator for spray painting applications.

Considering all the evidence, the violation comes within the purview of those that are so remotely related to employee health as not to warrant imposition of an abatement requirement or assessment of a penalty. Therefore, it is held to be de minimis. See Southwestern Electric Power Co., 80 OSAHRC 81/C7, 8 BNA OSHC 1974, 1980 CCH OSHD І 24,732 (Nos. 77-3890 & 77- 3391).

Alleged Violations of 29 C.F.R. ї 1916.31(a)(1)(ii) and 1916.82(d)(1)

The standard at section 1916.31(a)(1)(ii) pertains to mechanical ventilation for welding and states as follows:

General mechanical ventilation shall be of sufficient capacity and so arranged as to produce the number of air changes necessary to maintain welding fumes and smoke within safe limits.

Section 1916.82(d)(1) relates to personal respiratory protection for employees and states:

Protection against particulate contaminants not immediately dangerous to life. (1) When employees are exposed to unsafe concentrations or particulate contaminants, such as dusts and fumes, mists and fogs or combinations of solids and liquids, they shall be protected by either air line or filter respirators, except as otherwise provided in the regulations 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 the rake ends of barges in the rake area, were exposed to eight (S) hour time weighted average concentrations of welding fumes (total) and iron oxide fume in excess of the American Conference of Governmental Industrial Hygienists' threshold limit values [welding fumes - 5.0 mg/M3, iron oxide fume -- 10.0 mg/M3] as follows:

1) rake area
a. employee number 1
welding fumes - 26.85mg/M3
iron oxide fume - 11.26 mg/M3
b. employee number 2
welding fumes - 20.78 mg/M3
iron oxide fume - 19.16 mg/M3
c. employee number 3
welding fumes -8.47 mg/M3

2) erection area
a. employee number 1
welding fumes - 7.81 mg/M3
b. employee number 2
welding fumes - 10.25 mg/M3

The violation of section 1916.82(d)(1) is described as:

Four of the employees wore 3M Number 8710 Dust Masks and one wore no respirator at all. 3M Number 8710 Dust Masks were not approved for protection against welding fumes and would not protect wearers from fume exposure. In addition two of the employees wore the mask over a full beard which would have prevented a proper face to face piece seal.

Respondent did not refute the evidence of personal monitoring results that established five employees were overexposed to welding fume particulates and/or iron oxide fumes (Ex. C-10). This included Mr. Crawford's testimony that failure to provide sufficient general mechanical ventilation to welders in the rake and erection areas resulted in the exposure of employees to fumes beyond safe limits in violation of section 1916.82(d)(1) (Tr. 189-190). The question was raised, however, the method of sampling by placing the cassette or filter outside the welding hood. It was indicated that there is less exposure inside the hood.

The issue was resolved, however, by Mr. Dean Wingo, an expert on respirators whose testimony was most creditable. He testified that the procedure used in this case for testing was correct (Tr. 414). Also, the primary purpose of a welding hood is to protect the welder against splatter and radiation during the welding process and not as a respiratory protective device. He stated that the cassette containing the filter should be placed within the employee breathing zone which is a one-foot sphere around his head and, in addition, it is not practical to place the cassette under the hood (Tr. 423-424). Mr. Crawford stated that if respondent's employees used proper respirators, the citation would not have included the alleged violation of 29 C.F.R. ї 1916.82(d)(1) (Tr. 225). Respondent, therefore, asserts that the central issue is whether proper respirators were provided its welders and whether rules for use thereof were enforced.

The evidence clearly establishes that four welders were using 3M 8710 dust mask respirators, which are not sufficient for protection against welding fumes and/or iron oxide fumes, and one employee was observed wearing no respirator at all (Ex. C-10; Tr. 137). The evidence also establishes, and there is no dispute, that respondent had a written respiratory program which provided that NIOSH approved 3M Model 9920 respirators are to be used for protection against welding fumes. Clearly, use of Model 9920 would provide the required protection, but the question presented is the adequacy of respondent's program for their use. Mr. Stein, the yard safety inspector, testified that respondent's policy was communicated to the employees through new employee orientation and the respective foremen in the work areas (Tr. 311).

The crucial question in this instance is whether the safety rule was properly enforced by respondent. The monitoring results as revealed in Exhibit C-10 show that Mr. Melvin Glass, a welder, was wearing a Model 8710 dust respirator. He was subsequently called as a witness for respondent and testified he was wearing the approved Model 9920 respirator at the time he was monitored (Tr. 280, 282). His testimony was, thus, in direct conflict with Mr. Crawford, the inspecting officer. Respondent contends the inspector erroneously believed the welders were wearing Model 8710 but, in fact, wore Model 9920 as required by the safety policy.

Without determining the veracity of the testimony presented, it is noted that the complainant, during its case in chief, was prepared to offer testimony by several employees that they wore unapproved masks rather than the Model 9920 respirator. The parties stipulated this fact, and complainant's subpoenaed witnesses were released prior to the conflicting testimony of Mr. Glass (Tr. 136-137). Even if it were assumed Mr. Glass wore the approved respirator, the evidence remains that three employees wore the unapproved type respirator and one was without any protection. Since it is established that four employees were without proper protection, it must be held the safety policy of respondent was either not adequately communicated to the employees or it was not adequately enforced. See Floyd S. Pike Electrical Contractor, Inc., supra. The defense of isolated incident of employee misconduct is, therefore, without merit and the standard was violated as alleged.

The violations having been established, it must now be determined whether they are of a serious nature as alleged. For a violation to be determined serious under Section 17(k) of the Act, there must be a substantial probability that death or serious physical harm could result therefrom. The record clearly reflects that employees were exposed to excessive concentrations of welding and iron oxide fumes which necessarily show a substantial probability that serious physical harm could result. The violations must, therefore, be held as serious within the meaning of the Act.

The next question for determination concerns the amount of penalty to be assessed for the violations. Under section 17(j) of the Act, the Commission is required to find and give "due consideration" to the size of the employee's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Company, Inc., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD І 15,032 (No. 4, 1972). The Commission stated in Secretary v. National Realty and Construction Co. Inc., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD І 15,188 (No. 85, 1971), that the elements to be considered in determining the gravity are: (1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of injury.

Weighing all the foregoing factors in light of the circumstances, including respondent's attempts at compliance, it is concluded that a penalty 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, authorized representatives of the Secretary conducted inspections of the aforementioned work site. As a result of the inspections, 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 hose connections were not capped. Caps were provided, but the safety rule requiring use of such capping was not adequately enforced.
4. Approximately 25,000 feet of welder's cable was being used at the time of the inspection.
5. Employees spray painting the outside sections of barges at the time of the inspections used "3M Model 8711" disposable paint spray respirators which were not approved by NIOSH. Use of such respirators for the work being performed is not deemed to have an immediate relationship to the employees' health or safety.
6. Employees working inside the wing walls of barges were without sufficient general mechanical ventilation to maintain welding fumes and smoke within safe limits.
7. Welders inside the wing walls were not protected by respirators against the welding and/or iron oxide fumes.

CONCLUSIONS OF LAW

1. Equitable Shipyards, Inc., at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein pursuant to section 10(c) of the Act.
2. Respondent is, and at all times pertinent hereto, required to comply with the safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.
3. Respondent was in violation of the standard at 29 C.F.R. ї 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. ї 1916.36(b)(4) at the time of the inspections herein.
5. Respondent was in violation of the standard at 29 C.F.R. ї 1916.82(e) at the time of the inspections herein. The violation was of a de minimis nature.
6. Respondent was in violation of the standard at 29 C.F.R. ї 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. ї 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 alleging violations of 29 C.F.R. ї 1916.35(a)(4) is hereby affirmed.
2. That part of Citation No. 2 of Docket No. 81-1762 alleging a violation of 29 C.F.R. ї 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 penalty in the amount of $200 is hereby assessed.

Dated this 8th day of April, 1982.
PAUL L. BRADY
Judge

SECRETARY OF LABOR,

Complainant,

EQUITABLE SHIPYARDS, INC.,

Respondent.

OSHRC DOCKET NOS.
81-1685
81-1762
81-2089

ORDER

No response having been received from the Secretary, in accordance with the Commission decision issued March 26, 1987, these cases are final orders as of the date of this order.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: APRIL 14, 1987

FOOTNOTES:

[[1/]] The text of the IHFOM as of January 1, 1979, is reproduced in CCH Employment Safety & Health Guide, OSHA Field Operations Manual and Industrial Hygiene Field Operations Manual (1979).

[[2]] Section 7(d) states in part that "[w]hen an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary." We will afford the Secretary this opportunity.

[[3/]] The latest edition of the ACGIH booklet also contains the same statement. See ACGIH, Threshold Limit Values for Chemical Substances in 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 filter cassette assembly may be inserted through a hole in the helmet or clipped and positioned inside the helmet as shown in Fig. 1. In either case, the cassette 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 is down in the welding position. The cassette inlet shall not be positioned in the upward direction. Inlet extension tubes are not permitted. Properly assembled closed face filter cassette assemblies shall be employed (i.e. with only the plug removed)..

[[1]] Immediately prior to the quoted exchange, the Secretary had presented his case on a different respirator item, which alleged that spray painters were not protected by approved respirators. The Secretary's evidence showed, and the parties stipulated, that Equitable's spray painters had been using 3M model 8711 respirators. It is possible that counsel's reference to "this particular respirator" arose out of a misunderstanding as to which citation item was being 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 the inspection, Equitable would still be in violation because three other employees were wearing unapproved respirators and one was not wearing any respirator at all. We do not agree that the record supports these conclusions. First, if Glass' testimony that he wore a 9920 respirator is believed, Crawford's testimony that Revere and Sharp were wearing unapproved respirators must be rejected, for Crawford testified that Revere and Sharp were wearing the same type of respirator as Glass. Second, Cannon's testimony that Cooper wore an unapproved respirator was based primarily on his observation that Cooper's respirator had two straps. However, the 9920 respirator, like the 8710, has two straps, and Stein testified that the respirator Cooper wore was a 9920. Thus, the record does not support a finding that Cooper wore an unapproved respirator. Finally neither Cannon nor Stein could positively state whether Mayfield wore a respirator he was welding, as neither could see him during that time. Their testimony conflicted on whether Mayfield had a respirator with him when he went into the wing tank. Without a credibility determination, we cannot find that Mayfield was not protected by a respirator when welding. See Evansville Materials 77 OSAHRC 143/M9, 3 BNA ,OSHC 1741, 1742, 1975-76 CCH OSHD І 20,187, p.24,046 (No. 3444, 1975).

[[3]] At one point, Equitable suggested that Dorman's deposition could be taken as an alternative to his appearance at the hearing. On remand, the parties should consider this possibility. See section 12(h) of the Act, 29 U.S.C. ї 661(g)
(Commission may order testimony taken by deposition); 29 C.F.R. ї 2200.70 (deposition in lieu of testimony).