Docket No. 88-0391

SECRETARY OF LABOR
Complainant,
v.
HACKNEY,INC.,
Respondent.

OSHRC Docket No. 88 -0391[[*]]

DECISION

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commisioners

BY THE COMMISSION:

Hackney, Inc. operates a pipe ,manufacturing plant in West Memphis, Arkansas. Following a 1987 inispection of its facility, the Occupational Safety and Health Adminstration ("OSHA") issued to Hackney a citation alleging four willful violations of the OSHA noise standard. Three of the items are before the Commission on review.

Item 2 of the cotation alleged that Hackney violated the noise standard at 29 C.F.R. § 1910.95 (g) (1) by failing to institute an audiometric testing program for all employees exposed to noise levels above 8-hour time weighted average ("TWA") of 85 decibels. Item 3 charged Hackney with volated 29 C.F.R. § 19910.95(i)(5) by failing to properly supervise employees in the correct use of hearing protectors. Finally, item 4 alleged that Hackney violated 29 C.F.R. § 1910.95(i)(5) by failing to comply with the compliance officer's request to turn over records of monitoring conducted in 1982. Penalties of $1000 were proposed for each item.

The matter was heard before Review Commission Adminstrative Law Judge Louis G. LaVecchia. The judge vacated item 4, but affirmed items 2 and 3 as nonserious and assessed a penalty of $500 for each of the items. For the reasons that follow, we reverse the judge, vacate items 2 and 3, affirm item 4, and assess a penalty of $500.

A. The alleged willful violations of section 1910.95(g)(1) and 1910.95(i)(5)

During the inspection, Compliance Officer Linda Sullivan noticed that several employees were wearing their hearing protectors, in this case earmuffs, over knit caps and baseball caps. She testified that this prevented the earmuffs from properly coverings the ears. The compliance officer also testified that when she pointed out the condition to the earmuffs were worn properly. Following the, the Secretary cited Hackney for a willful violation of section 1910.95(g)(1)2 for its failure to have an audiometric testing program.

Hackney makes the threshold argument that the Secertary has failed to establish that employees were exposed to an 8-hour time-weighted average of 85 decibels or greater. Such a showing is a prerequiste to requirement to requiring an employer to comply with sections 1910.95(g)(1) and 1910.95(i)(5). See sections 1910.95(g)(1) and 1910.95(i)(5)3.

The Secretary's evidence of employee exposure comes from three full-shift are noise samples the compliance officer took in Bay 4 of the plant, using a sound level meter and three dosimeters. The compliance officer testified that she was not allowed to get closer than four feet from the employees of to talk to them. She therefore took area samples rather than personals by placing dosimeters on metal structures or equipment near the employee workstations. The record does not show how far away the dosimeters were from the employees. One of the workstations sample registured a noise level of 90.1 dBA, which exceeded the action level of 85 dBA. The other two sample yielded results below 85 dBA. The compliance officer admitted that placing the dosimeter on metal sheveles subjected them to vibrational noise, but the record fails to disclose the extent to which this vibration might distort noise level readings.

Judge LaVecchia found that the sample that showed exposure of 90.1 dBA established employee exposure to noise above the action level. He rejected Hackney's claims that the sampling flawed because it was not taken within the employees' hearing zone. He also found that the record showed that Hackney prevented the compliance officer from conducting her durveys within the hearing zone of it \s employees and that Hackney could not benefit from these actions.

The Secretary argues that the judge's finding that Hackney prevented personal sampling constitutes a credibility determination that is entitled to substantial weight and deference. Citing Trumid Constr. Co., 14 BNA OSHC 1784, 1787-88, 1990 CCH OSHD ś 29,078, p. 38,858 (No. 86-1139, 1990), she contends that because she was prevented from taking personal samples, the Commission should look at the evidence in toto. The Secretary also points out that, in addition to the noise reading establishing an 8-hour TWA exceeding 85dBA, Hackney admitted, in its brief before the Commission, that at times noise levels could exceed 85 dBA. The Secretary contends that the best evidence she was allowed to obtain established and 8-hour TWA exceeding the 85-dBA limit.

The Secretary's argument that the judge's finding constituted a credibility determination that deserves deference is not persuasive. The Commission normally will not disturb a judge's credibility finding because it is the judge "who has lived with the case, heard the witnesses, and observed their demeanor." C. Kaufman, Inc., 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD ś 22,481, p. 27,099 (No. 14249, 1978). However, to warrant Commission deference, the finding must specifically resolve conflicting testimony or doubts as to credibility. Typically, such a finding would involve the identification of testimony that is conflicting and the providing of reasons for crediting the testimony of one witness over another or for failing to credit a witness whose testimony is neither contradicated nor impeached. P & Z Co.m 6 BNA OSHC 1189, 1192, 1977-1978 CCH OSHD ś 22,413, p. 27,024 (No. 76-431, 1977).

The judge's conclusion that Hackney's officials interfered with the inspection meets none of these criteria. Here, the judge's finding rests solely on statements from the compliance officer that she was not allowed to talk to employees or do personal sampling. Those statements, however, do not demonstrate that Hackney's management officials stopped her from talking to the employees or taking personal samples. In fact, it was brought out at oral argument that these circumstances may have been due to the employees' choice.[[4]] Moreover, the judge never stated that his conclusion involved a credibility finding. Rather, it would appear that his conclusion was based on his subjective assessment of the probability of events. Therefore, we conclude that the judge's conclusion was not a credibility finding, All Purpose Crane, Inc., 13 BNA OSHC 1236, 1239, 1986-87 CCH OSHD ś 27,877,p. 36,550 (No. 82-284, 1987), and we decline to defer to it. Archer-Western Contrac. Ltd., 15 BNA OSHC 1013, 1016, 1991 CCH OSHD ś 29,317, p. 39,377 (No. 87-1067, 1991), petition for review filed, No. 91-1311 (D.C. Cir. July 1, 1991).

The evidence of interference with the compliance officer's ability to conduct the inspection was limited to nonspecific statements that indicated only that the compliance officer was not allowed to talk with employees or attach dosimeters to them. There was no showing that the prohibition was enforced or induced by Hackney's management, nor is there a basis from which to draw such an inference. Therefore, we conclude that the evidence is insufficient to establish that Hackney obstructed the inspection.

Given the Secretary's failure to establish that Hackney obstructed the inspection, we must determine whether the record evidence establishes that Hackney's employees were exposed to the threshold noise levels. To be valid, sound measurements generally must be taken within the employee's hearing zone. See Collier-Keyworth C., 13 BNA OSHC 1208, 1211, 1986-87 CCH OSHD ś 27,867, p. 36,510 (No. 80-2848-1987). The readings here were not taken within the "hearing zone" of the two employees identified at thtat station. Rather, the dosimeter was located on a metal shelf at an unknown distance from the employees exposed to the noise. Moreover, the compliance officer conceded that the vibrations from the metal could affect the integrity of the sample. Because the sample was not take in the employee's hearing zone and could have been distorted by vibrations from the metal shelf, we cannot conclude that the hearing zone noise levels exceeded 85 dBA.

We also do not find that Hackney's statement, made in its initial brief on review that, at certain times, noise levels would exceed 85 dBA, supports the Secretary's contention that employees were exposed to the action level. An admission that employees were exposed to occasional transient noise levels exceeding 85 dBA does not establish that the time weighted average of noise exposure would exceed a TWA of 85 dBA over an 8-hour period. The record reveals neither the duration of the noise above 85 dBA nor the actual noise levels above 85 dBA. Without adequate sampling, which we do not have, the record does not establish that Hackney's employees were exposed to an 8-hour TWA of 85 dBA or greater.[[5]] Accordingly, items 1 and 2 must be vacated.

B. The alleged willful violation of section 1910.95(m)(4)[[6]]

During the 1987 inspection, the compliance officer requested copies of the results of a noise survey conducted at the Hackney facility in 1982. Hackney's Environmental and Safety Director, Jerry Riddles, stated that Hackney had the monitoring results, and told the compliance officer on three separate occasions that the company's attorney would have to be contacted before they would be released. However, Hackney did not make a copy of the noise survey available during the inspection, and for that reason, the Secretary cited Hackney for a willful violation of section 1910.95(m)(4).

The judge vacated the item on the grounds that section 1910.95(m)(3)(i)[[7]] provides that the noise records must be retained for only two years. Citing Erie Bottling Corp. v. Donovan, 539 F.Supp.600.606-07 (W.D.Pa. 1982), the judge held that the Secretary is not entitled to records that are not required to be maintained. He also noted that the records were provided during discovery.

The Secretary argues that the judge ignored the last sentence of the standard that incorporates section 1910.20(a)-(e) and (g)-(i). She notes that section 1910.20(b)(2)[[8]] specifically includes employment exposure records among those to which employers must provide access regardless of whether they are required to be maintained under specific standards. Because section 1910.20(b)(2) is incorporated in section 1910.95(m)(4), the Secretary contends that failure to provide the noise survey records when requested constituted a violation of the cited standard.

Hackney maintains that section 1910.20(b)(2) is inapplicable. It points out that section 1910.20(d) states that "[u]nless a specific occupational safety and health standard provides a different period of time, each employer shall assure the preservation and retention of records as follows...." Hackney claims that because section 1910.95(m)(3)(i) sets its own two-year period for record retention, the provisions of section 1910.20 by its own terms do not apply.

We agree with the Secretary that, under section 1910.20(b)(2), Hackney was required to make available to the Secretary all monitoring records that it had in its possession, regardless of whether it was under a regulatory duty to maintain the records. Even though the records were turned over during discovery, Hackney's refusal to make them available when the compliance officer requested them during the inspection was a clear violation of the standard.

Hackney's argument that the record retention periods of section 1910.20 do not apply because they were preempted by a noise standard that applied specifically to retention periods for noise monitoring records is correct as far as it goes. However, Hackney is not being cited for failing to maintain records. The Secretary alleges that Hackney failed to make avaialble those employee exposure records that it had in its possession. There is no specifically applicable noise standard that preempts the applicability of section 1910.95(m)(4), set forth Hackney's obligation to make its noise records available to the Secretary "whether or not the records are mandated by specific occupational safety and health standards." § 1910.20(b)(2).

Contrary to the judge's holding, Erie Bottling does not control the disposition of this item. In Erie Bottling, the court declined to order an employer to turn over private employee medical records that were not required to be maintained under the Act, specifically because of its concern for employee privacy. 539 F. Supp. at 607. Here, there is not even a suggestion that employee privacy concerns might be compromised by requiring Hackney to "provide upon request" these plant noise records. Thus, Erie Bottling is inapposite. Accordingly, the judge is reversed and the item affirmed.

Willfulness

Although Hackney failed to comply with the standard, we find that the record fails to support a conclusion that the violation was willful. A violation iw willful if committed "with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indiffernece to employee safety." Williams Enterp., 13 BNA OSHC 1239, 1256, 1986-87 CCH OSHD ś 27,893, p. 36,589 (No. 85-355, 1987); Asbestos Textile Co., 12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD ś 27,101, p.34,948 (No. 79-3831, 1984). A willful violation is differentiated from a nonwillful violation by a heightened awareness -- of the illegality of the conduct or conditions -- and by a state of mind -- conscious disregard or plain indifference. General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2068, 1991 CCH OSHD ś 29,240, p. 39,168 (No. 82-630,1991)(consolidated); Williams, 13 BNA at 1256-57, 1086-87 CCH OSHD at p. 36,589. The willfulness charge relates to the employer's underlying state of mind when it committed the violation. General Motors, 14 bna OSHC at 2069, 1991 CCH OSHD at p. 39,168. However, a violation is not willful if the employer shows that it had a good faith opinion that the cited condition did not violate the standard. Mel Jarvis Constr. Co., 10 BNA OSHC 1052, 1053, 1981 CCH OSHD ś 25,713,p. 32,060 (No. 77-2100,1981).

Here, there is no evidence that Hackney's underlying motive for not providing the records to the compliance officer was willful. The compliance officer testified that Riddles, Hackney's environmental and safety director, told him that he wanted to contact Hackney's attorney before turning over the records. Although Riddles did not act with dispatch in securing the opinion of Hackney's attorney, we cannot say that this lack of diligence establishes that the violation was willful. See Marmon Group, Inc., 11 BNA OSHC 2090, 2092, 1984 CCH OSHD ś 26,975, p. 34,643 (No. 79-5363, 1984). Moreover, although it appears to have been an afterthought and not the reason Hackney turned down the request, Hackney's argument that is was not required to provide the records because section 1910.95(m)(3)(i) no longer required that they be retained is not unreasonable and would have provided an objective good faith basis for Hackney to believe it was excused from compliance. See Monfort of Colorado, Inc., 14 BNA OSHC 2055, 2062-63, 1991 CCH OSHD ś 29,246, p. 39,188-87) (No. 87-1220, 1991)(good faith belief must exist at time of violation). Accordingly, we conclude that under these circumstances, the Secretary has failed to establish that Hackney's underlying motive in not providing the records was willful.

Order and Penalty

Hackney is a large corporation that employed approximately 68 employees at this facility at the time of the inspection. Hackney's failure to make employee noise exposure records available to the Secretary during the inspection could have deprived the Secretary of information vital to the proper conduct of the inspection and, therefore, could have adversely affected her ability to fulfull her obligation to ensure employee safety. Under these circumstances, we find a penalty of $500 to be appropriate.

Accordingly, the judge's decision is reversed. Items 2 and 3 of the willful citation are vacated. Item 4 is affirmed as other-than-serious, and a penalty of $500 is assessed

Edwin G. Foulke,
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: March 6, 1992

SECRETARY OF LABOR
Complainant,
v.
HACKNEY,INC.,
Respondent.

APPEARANCES:

Daniel Curran, Esquire
Dallas, Texas
For the Complainant

Robert E. Rader, Jr., Esquire
Dallas, Texas
For the Respondent.

DECISION AND ORDER

LaVecchia, Judge:

This is a proceeding brought before the Occupational Safety and Health Review Commission ("the Commission") pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et. seq. ("the Act"). Respondent contests four alleged willful violations of the occupational noise standard, which are discussed below.

The case arose after the Occupational Safety and Health Administration ("OSHA") inspected Hackney's West Memphis, Arkansas plant. Hackney is a division of Trinity Industries, Inc. The West Memphis plant manufactures pipe and has 68 employees. )Tr. 28-29; 37). The inspection began on February 24, 1983, but was not completed until November 20, 1987, because Hackney initially resisted it. See Donovan v. Trinity Industries, Inc., 824 F.2d 634 (8th Cir. 1987).

As a result of the inspection, OSHA issued two citations. The first alleges willful violations of 29 C.F.R. §§ 1910.95(d)(3), 1910.95(g)(l), 1910.95(i)(5) and 1910.95(m)(4), and proposes a penalty of $1,000 for each violation. The second alleges "other" violations of §§ 1904.2(a) and 1910.1200 (f) (4) (i) , which were withdrawn at the hearing. (Tr. 3-4). The hearing took place on December 9, 1988. No additional persons intervened.

29 C.F.R. 1910.95(d) (3)

The cited standard provides as follows:
Monitoring shall be repeated whenever a change in production, process, equipment or controls increases noise exposures....

The subject standard, as well as the other contested standards, supra, are required by 29 C.F.R. 1910.95(c)(l), which provides that an "employer shall administer a ... hearing conservation program ... whenever employee noise exposures equal or exceed an 8-hour time-weighted average sound level (TWA) of 85 decibels...." (Tr. 15) . The four contested standards apply to Hackney's West Memphis plant, therefore, only if the evidence demonstrates its employees were exposed to action-level noise.

Linda Holt Sullivan is the OSHA compliance officer ("CO") who inspected Respondent's West Memphis plant. She has been an industrial hygienist CO since 1985 and has had extensive training with OSHA. She has a master's degree in biological sciences. Her undergraduate studies included experiments in the physics of sound in mock industrial settings. (Tr. 29-35). She testified about her inspection, which took place from November 18 through November 20, 1987. She met with management officials, conducted a walkaround and took full-shift noise samplings. (Tr. 36; 40; 56-57; 74).

Sullivan used a sound level meter to screen noise levels in various bays in the plant during her walkaround on November 19. Her screening indicated levels ranged from the low 70's up to 102 decibels. Sullivan explained that screening determines areas that need full-shift sampling. She calibrated the meter before and after the screening to ensure its accuracy. (Tr. 45-57; Exh. C-1; Exh. C-2).

Sullivan conducted three full-shift area samplings in Bay 4 on November 20, using her sound level meter and three dosimeters. She recorded her findings on noise survey report forms. She explained that sound level meter readings, which are like spot checks, must be taken to ensure correlation with dosimeter data, which are accumulated readings, but that citation information can only be based on dosimeter data. The sound level meter readings she took were within an acceptable range of the dosimeter readings. (Tr. 46; 56-61; 64-65; 68-71; Exh. C-3; C-4).

Two of Sullivan's samplings did not demonstrate action-level noise, and she did not recommend citations on the basis of those samplings. She took her third sampling in the area of a compressor and other operating equipment in Bay 4, where employees David Granger and J. C. Gary were working. She placed a dosimeter on a shelf near their work station, where she took accumulated readings over a seven hour and 49 minute period. She also took frequent sound level meter readings of the area during this period. Sullivan recommended a citation on the basic of this sampling because the dosimeter reading showed an eight-hour TWA of 90.1 decibels on the A scale ("dbA") and because Granger and Gary were exposed to the condition. Although she did not testify about how much time Gary spent at the work station, she said Granger was "pretty much" at the station the entire day. (Tr. 51-52; 56-69; 76-82; 121-22; 134; 139-40; 149-152; 155-61; 164; 171; Exh. C-3; C-4; C-6; C-7).

Sullivan's third noise sampling is the only one that establishes employee exposure to action-level noise. Its findings appear on Exhibit C-5. Sullivan testified that she calibrated the dosimeter she used both before and after taking the third sampling and that it was working properly. There were lines drawn through the dosimeter calibration information on Exhibit C-5. Sullivan not know why the lines were drawn; she did not do it and did not know who had. (Tr. 47-48; 62-63; 123; 137-39).

Sullivan further testified that the fact lines were drawn through the information did not affect any of the calibration data. If the dosimeter had not been working properly, she would have drawn lines across the entire front of the form to show the sampling was invalid. She has exclusive custody of her dosimeters and is responsible for calibrating them and sending them for their yearly checks. She would have known if there had been a problem with them. She still has the dosimeter she used in the third sampling; there are no problems with it. (Tr. 136-39; 148; 165-66).

The undersigned judge did not admit Exhibit C-5 into evidence, but did allow Sullivan to testify about the findings of her third sampling. Her testimony was credible and her expertise in conducting occupational noise surveys was. apparent. On balance, Sullivan's testimony demonstrates the dosimeter used in the third sampling was working properly and accurately recorded noise levels in the surveyed area. The evidence demonstrates her sound level meter was also working properly. I find the results of the third sampling show that employee Granger was exposed to action-level noise and that the contested standards apply to Respondent's West Memphis plant. (Tr. 131-32; 139; 149-164; Exh. C-3; C-4).

Having found the standards apply, I must now decide whether the evidence demonstrates a violation of 1910.95(d) (3). Sullivan testified that during the walkaround, her sound level meter readings indicated an impact drill was running at about 101 to 102 decibels. She saw the drill operating for about ten minutes on the walkaround and said it was not operating very consistently the day she took her samplings. Jerry Riddles, Trinity's corporate safety environmental director, told her noise level monitoring had been done in 1982. He also told her he felt noise levels were probably less at the time of the inspection because production was down. Sullivan asked him if monitoring had been done since the drill had been installed; he said it had not. She recommended the citation because Hackney had added a piece of equipment with the potential to increase noise and had not remonitored noise levels. (Tr. 39; 72-75; 86-87).

Although the record demonstrates Respondent did not remonitor sound levels after the installation of the impact drill, it does not demonstrate noise levels at the plant increased after the drill was installed. Sullivan herself testified the drill was operating inconsistently while she was there. Moreover, there was no evidence to controvert Riddles' statement that noise levels were probably lower at the time of the inspection than they were in 1982. Because the evidence does not establish a violation of 1910.95(d)(3), this item of the citation must be vacated.

29 C.F.R, 1910,95(g)(l)

The cited standard provides as follows:

The employer shall establish and maintain an audiometric testing program as provided in this paragraph by making audiometric testing available to all employees whose exposures equal or exceed an 8-hour time-weighted average of 85 decibels.

Respondent does not dispute that it does not provide audiometric testing. It contends, rather, that the Secretary failed to prove employee exposure to action-level noise. It points out that Exhibit C-5, the basis of the Secretary's citation, was not admitted into evidence. Notwithstanding, as discussed above, the undersigned judge has found that Sullivan's testimony about her third sampling demonstrates employee exposure to action-level noise.

Respondent further contends that Sullivan's third sampling was flawed because it was not taken within the employees' "hearing zone," which the OSHA Industrial Hygiene Technical Manual defines "as a sphere within a two foot diameter surrounding the head." Chapter VI, E.l.d.(1). It notes the Commission has held that sound measurements must be taken within the employee's hearing zone, by either holding a sound level meter microphone within the employee's hearing zone, or by having the employee wear a dosimeter throughout the workday. Collier-Keyworth Co., OSAHRC , 13 BNA OSHC 1208, 1211, 1987 CCH OSHD 27,867 (No. 80-2848, 1987), vacated on other grounds, 13 BNA OSHC 2165, 1989 CCH OSHD 28,515 (1989).

Respondent points out that Sullivan conducted her third sampling by placing the dosimeter on metal shelving some feet away from Granger and Gary, and that no measurements were taken within their hearing zone. It notes Sullivan testified that when dosimeters are placed on metal, vibrational noise can cause a higher reading. (Tr. 122-23). Respondent also points out there was no evidence regarding how long Granger and Gary worked in the surveyed area during the day or how long they were exposed to any particular noise level.

Respondent's arguments must be considered in light of the circumstances under which Sullivan conducted her surveys. Sullivan testified there are two kinds of noise samples - area samples and personal samples. She acknowledged Respondent's employees were moving around in the areas she surveyed and said that when employees are extremely mobile it is advisable to conduct personal samplings. She conducted area samples, however, because she could not conduct personal samples. Respondent did not allow her to get within four feet of its employees or to talk to them. She therefore had very little choice in her sampling areas. (Tr. 57-58; 117; 123; 126; 158; 171; 176; 182). Since the record shows Respondent prevented Sullivan from conducting her surveys within the hearing zone of its employees, it may not now benefit from its conduct by complaining that her surveys are flawed for that reason.

Moreover, even though Respondent asserts there is no evidence about how long Granger and Gary worked in the surveyed area, Sullivan testified Granger was "pretty much" at the surveyed work station the entire day. (Tr. 171). Respondent's argument that Sullivan's third sampling was flawed is therefore rejected.

Respondent's final argument is that its hearing conservation program exceeds the standard because, unlike the standard, it does not wait until employees suffer a hearing loss before requiring them to wear protection. Jerry Riddles, Trinity's corporate safety environmental director, has been responsible for the West Memphis plant's hearing conservation program since 1976. He testified the program's action level is 82 decibels and requires that all plant employees wear hearing protection and undergo training. He said the hearing protection employees use ensures they are seldom exposed to over 70 decibels. (Tr. 4-8; 17; 22-27; Exh. R-1; R-2; R-3; R-4). Sullivan testified Riddles told her hearing protection use was mandatory at levels above 82 decibels and that training was conducted at the facility. She acknowledged that all plant employees wore approved hearing protection. (Tr. 39; 103; 114-15; Exh. C-2).

Respondent urges that because it already enforces hearing protection, the ultimate remedy of the occupational noise standard, there is no reason to conduct audiometric testing since it would add nothing to the safety or health of its employees. Respondent asserts its program complies with the purpose of the standard, which is to prevent hearing loss. It also asserts the likelihood its employees would suffer hearing loss is remote, since they are never exposed to noise in excess of 70 decibels. Respondent concludes that since its failure to conduct audiometric testing has no direct or immediate relationship to safety or health, and since the possibility of injury is remote, any violation must be classified as de minimus.

The Secretary, however, contends Respondent is estopped from arguing it is not in violation of the standard because of a previous decision involving Hackney's Enid, Oklahoma, facility. Hackney. Inc., 88 OSAHRC 22/A3, 13 BNA OSHC 1901, 1988 CCH OSHD 1 28,279 (Botkin, J., No. 86-1322, 1988), aff'd, 895 F.2d 1298 (10th Cir. 1990).

In that case, which involved the same hearing program at issue in this case, the First Circuit affirmed Judge Botkin's holding that Hackney was in nonserious violation of the noise standard because it failed to give its employees the audiometric testing the standard requires. The Court rejected Respondent's claim that its program was superior to the standard, finding it lacked a means of determining whether employees were complying with the program or whether the protection was effective. The Court also found Respondent's program deprived both the employer and OSHA of the information necessary to ascertain if employees' hearing remained undamaged by workplace noise. Id. at 1301. In light of this decision, Respondent's contention that the citation must be classified as de minimus cannot succeed.

Based on the foregoing, I find that Respondent's failure to conduct audiometric testing violated 1910.95(g) (1). The Secretary urges the violation should be classified as willful. I will address the characterization of the violation infra, after determining whether Respondent was in violation of the two remaining contested standards.

29 C.F.R. 1910.95(i)(5)

The cited standard provides as follows:

The employer shall ensure proper initial fitting and supervise the correct use of all hearing protectors.

Sullivan testified she recommended the subject citation because during her inspection she saw three employees wearing earmuffs improperly, with the tops of the muffs resting on the tops of caps they were wearing. She saw one employee wearing his muff improperly during her walkaround, but did not photograph him or mention him to management. She saw two more employees, David Granger and David Busby, wearing muffs improperly the next day. She photographed them and mentioned them to a management official, who responded that employees were told how to wear muffs correctly. She did not remember which manager it was, but said it was Riddles, Grey Hays or Neil Foreman, since they were the ones that accompanied her that day. To her knowledge, the manager did not correct the situation. Sullivan said it is "quite obvious" if earmuffs are not being worn properly. (Tr. 36; 76-78; 80-85; 123-26; Exh. C-6; C-7; C-8).

Respondent contends that to establish a violation of the subject standard, the Secretary must prove both (1) that employees were exposed to action-level noise, and (2) that they had suffered a significant threshold shift ("STS") in hearing, such that they were required to wear hearing protection. 29 § C.F.R. S 1910.95(g)(8)(A). It concludes that since the Secretary proved neither, she has not established a violation. As I have already found the evidence demonstrates employee exposure to action-level noise, I need not address Respondent's first argument. However, I will address its second.

The standard does require that employees use protection only after they have suffered an STS in hearing, and there is no evidence of this in the record. However, Respondent's failure to conduct audiometric tests made it impossible for OSHA to determine if any employee had undergone an STS. Hackney, supra, at 1301. Respondent may not, therefore, benefit from its own failure to conduct audiometric tests by complaining that the Secretary did not prove employees had suffered an STS in hearing.

Respondent further contends, however, that the three instances of improper earmuff use Sullivan observed were isolated instances of employee misconduct. It points out Sullivan herself testified she observed the condition "in an isolated type incident on the walkaround." (Tr. 83). It also points out Sullivan testified Hackney's program required all employees to wear hearing protection and that they did in fact wear protection. (Tr. 103: Exh. C-2). It notes Riddles testified, and Sullivan acknowledged, that the program was enforced and employees were trained. (Tr. 17; 39).

Respondent asserts there is no evidence that management took no corrective action after Sullivan called the condition to its attention. She did not mention the first employee she observed to management at all. And, while she did mention the other two employees to management, she did so outside of Bay 4. She had no knowledge whether management corrected the situation, and did not testify that employees continued to wear protectors incorrectly after she brought them to management's attention. (Tr. 83-84).

Respondent urges the citation should be vacated, since it did not know and could not have foreseen that two or three employees, out of 68, would wear their protectors improperly. In support of its position, it cites to The Duriron Co., Inc., 83 OSAHRC 22/A2, 8 BNA OSHC 1575, 1578, 1978 CCH OSHD 22,918 (Brenton, J., No. 77-2847, 1978). In that case, Judge Brenton vacated the citation as an isolated incident because the evidence showed the employer required hearing protection and all employees except one were wearing protection.

To prove that a violation is the result of unpreventable employee misconduct, Respondent must show that it both established and effectively communicated work rules designed to prevent the violation. Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1479, 1979 CCH OSHD 23,664 (No. 76 1538, 1979). The record demonstrates Respondent required its employees to wear hearing protection. However, it does not demonstrate Respondent instructed employees to not wear earmuffs over caps or hats or otherwise specifically trained them about the proper use of earmuffs.

Riddles testified Hackney trained its employees. Sullivan testified management told her employees were trained and "told how to correctly wear" earmuffs. Riddles told her "training was done" at the plant. (Tr. 17; 39; 83). However, these statements do not constitute evidence that Respondent gave specific instructions that would have prevented the violations. Therefore, Respondent has not shown the violations were the result of unpreventable employee misconduct. Further, Respondent's reliance on Duriron, supra, is misplaced. While the case was directed for review, the portion of the case that dealt with hearing protection was not reviewed by the Commission and has no precedential value. Consequently, a violation of 1910.95(i)(5) has been shown.

29 C.F.R. 1910.95(m)(4)

The cited standard provides as follows:

All records provided by this section shall be provided upon request to employees, former employees, representatives designated by the individual employee, and the Assistant Secretary.

Sullivan testified she recommended the subject citation because Riddles did not give her access to the West Memphis plant's 1982 noise monitoring results, even though he had them. (Tr. 85-86).

Respondent, however, points out that 1910.95(m)(4) is modified by 1910.95 (m)(3) , which provides that records of noise exposure measurements shall be retained for two years. It contends that since it conducted its survey in 1982, and since such records need only be kept for two years, then under the standard it had no duty to provide or even have the records when Sullivan requested them. Erie Bottling Corp, v. Donovan, 539 F. Supp. 600, 606-07 (W.D. Pa. 1982). That case held the Secretary is not entitled to records that are not required to be maintained by the Act.

Respondent also points out Riddles was not sure he should turn the records over when Sullivan requested them. (Tr. 86). He told her he would have to check with Hackney's counsel, who gave the records to the Secretary in response to her request for production of documents. Respondent asserts the Secretary should have withdrawn the citation after it gave her the records.

Since Respondent was not required to keep noise monitoring results for more than two years, it was not required to have its 1982 records when Sullivan requested them and, accordingly, had no duty to provide them to her. Erie Bottling Corp., supra. Further, even though Respondent initially did not give OSHA its records, its counsel apparently provided the records to the Secretary during discovery. Since the record does not show a violation of 1910.95(m)(4), this item of the citation must be vacated.

Whether the Violations were Willful

Having found Respondent in violation of §§ 1910.95(q)(l) and 1910.95(i)(5), the undersigned judge must now decide whether the violations were willful. To prove a willful violation, the Secretary must show it "was committed with intentional disregard of the Act's requirements or plain indifference to workers' safety." R. D. Andersen Constr. Co., Inc., 86 OSAHRC 6/A14, 12 BNA OSHC 1665, 1669, 1986-87 CCH OSHD 41 27,500 (No. 81-1469, 1986) ; United States Steel Corp., 86 OSAHRC 8/B2, 12 BNA OSHC 1692, 1703, 1986-87 CCH OSHD 27,517 (No. 79-1998, 1986).

Riddles testified he was aware of the occupational noise standard at the time of the inspection. He knew it stated that hearing conservation was to be implemented without regard to attenuation. He admitted that in spite of that language, he made a conscious decision to implement Trinity's program, which measures noise exposure by subtracting the attenuation hearing protection affords from the actual noise level. He also admitted he knew OSHA's position was that it would enforce the standard without regard to attenuation, but said he did not know this until an earlier case which involved Hackney's Enid, Oklahoma, facility. After that decision, Hackney applied for a variance because it believed it would be infeasible to follow the standard. It also believed it was in compliance since it felt its program exceeded the standard. (Tr. 5-7; 13-21; 28).

Sullivan testified she recommended the violations be classified as nonserious because. of an OSHA directive that provides serious violations will not be issued except for noise levels that reach an eight-hour TWA of 92 dbA. She found the severity of the violations to be "zero," based on criteria set out in the OSHA Field Operations Manual. She acknowledged the West Memphis plant had a safety program in effect that included safety meetings, a corporate safety manual and an employee safety manual. She did not take Riddles' interpretation of the standard as indifference, or feel that Hackney's program showed a conscious disregard for employee safety. (Tr. 106-13; 120; 133-34; 164; Exh. R-5).

Although Hackney has been found to have violated two requirements of the occupational noise standard, its conduct does not demonstrate the intentional disregard or plain indifference required for a willful violation. On the contrary, the evidence shows it has a safety program which includes safety meetings, a corporate safety manual and an employee safety manual.

Respondent asserts there is a difference of opinion between the parties regarding the interpretation and application of the standard. However, as it points out, this does not establish a willful violation. C. N, Flagg & Co., Inc., dba Northeastern Contracting Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1541, 1974-75 CCH OSHD 19,251 (No. 1409, 1975).

In that case, the Commission stated:

[T]here is a difference of opinion between Flagg and Labor as to whether a violation existed on the facts. Certainly an employer is entitled to have a good faith opinion that his conduct conforms to regulatory requirements in a given factual situation. And such conduct should not be construed as constituting a willful violation of the Act merely because Labor holds a contrary opinion on the facts and advises the employer of that opinion.

Id. at 1541.

The record in this case does not support a finding of willful violations. Moreover, on the basis of Sullivan's testimony, it does not support a finding of serious violations. However, a showing of nonserious violations has been made. Therefore, items 2 and 3 of citation number 1, alleging violations of 1910.95(g) (l) and 1910.95(i) (5), respectively, are affirmed as nonserious.

I turn now to the assessment of an appropriate penalty. The Secretary proposed a penalty of $1,000 for each of the four alleged willful violations. However,two of the violations have been vacated, and the remaining two have been affirmed as nonserious. I conclude that a penalty of $500 is appropriate for each nonserious violation, for a total penalty of $1,000. This reflects Respondent's size, history, good faith and gravity of the violations.

Conclusions of Law

1. Respondent, Hackney, Inc., is engaged in a business affecting commerce and has employees within the meaning of § 3(5) of the Act. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2. On November 20, 1987, Respondent was in nonserious violation of 29 C.F.R. §§ 1910.95(g)(l) and 1910.95(i)(5). Respondent was not in violation of 29 C.F.R. §§ 1910.95(d)(3) and 1910.95 (m) (4).

ORDER

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1 . Items 1 and 4 of willful citation number 1 and the proposed penalties therefore are VACATED.

2. Items 2 and 3 of willful citation number 1 are AFFIRMED as nonserious and a penalty of $500 for each item is assessed.

Louis G. LaVecchia
Administrative Law Judge
DATE: September 13, 1990

FOOTNOTES

[[*]]Because of certain common issues, this case was consolidated with Trinity Industries, Nos. 88-1545 and 88-1547 for purposes of the oral argument heard before the Commission on November 13, 1991. However, the cases remain separate for decisional purposes.

[[1]] The standard provides:

§ 1910.95 Occupational noise exposure.

....

(i)Hearing protectors.

....

(5) The employer shall ensure proper initial fitting and supervise the correct use of all hearing protectors

[[2]] The standard provides:

§ 1910.95 Occupational noise exposure.

....

(g) Audiometric testing program. (1) The employer shall establish and maintain an audiometric testing program as provided in this paragraph by making audiometric testing available to all employees whose exposures equal or exceed an 8-hour time-weighted average of 85 decibels.

[[3]] Under section 1910.95(i)(l), employers are only required to make hearing protectors available to "employees exposed to an 8-hour time-weighted average of 85 decibels or greater."

[[4]] COMMISSIONER MONTOYA: With respect to the noise levels at Hackney, I want to know whateveidence is there that supports your assertion that Hackney has interfered with the inspection....

MR. CONNELL: Well, the compliance officer testified that she was prohibited from getting within four feet of the employees. That she was not allowed to put personal monitoring equipment on the employees.

Now this was a subject of dispute or it's a subject of dispute now. The administrative Law Judge made a credibility determination in crediting her testimony to this effect.

CHAIRMAN FOULKE: Well, she didn't specifically state in her testimony what specific actions Hackney did to interfere with her taking--interfered with th einspection or taking the measurements.

MR. CONNELL: That's correct. The testimony--when you read her testimony, she sort of speaks in terms of almost like this wasn't a matter of dispute. That it was clear from the beginning that she wasn't allowed to put on personal monitoring devices.

CHAIRMAN FOULKE: So why didn't she just say the plant manager said no.... As far as we know, the employees may have made a personal decision that they didn't want the monitoring and told her that. And she may have inferred that that was something from the company.

MR. CONNELL: Well, unfortunately her testimony is not as specific as that. That's true.

[[5]] In view of our disposition we need not address HJackney's unpreventable employee misconduct and de minimis arguments.

[[6]] The standard provides:

§ 1910.95 Occupational noise exposure.

....

(m) Recordkeeping

....

(4) Access to records. All records reqruied by this section shall be provided upon request to employees, former employees, representatives designated by the individual employee, and the Assistant Secretary. The provisions of 29 C.F.R. 1910.20(a)-(e) and (g)-(i) apply to access to records under this section.

[[7]] The standard provides:

§ 1910.95 Occupational noise exposure.

....

(m) Recordkeeping

....

(3) Record Retention. The employer shall retain records required in this paragraph

(m) for at least the following periods.

(i) Noise exposure measurements records shall be retained for two years.

[[8]] The standard provides:

§ 1910.20 Access to employee exposure and medical records.

....

(b) Scope and application.

....

92) This section applies to all employee exposure and medical records, and analyses thereof, of such employees, whether or not the records are mandated by specific occupational safety and health standards.