Equitable Shipyards, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Equitable Shipyards built ships and barges at a Louisiana facility where OSHA sampled welders' exposure to welding fumes. OSHA attached sampling cassettes to the workers' shirt collars, but its own industrial-hygiene guidance and other technical authorities called for placing welding-fume cassettes inside the welding hood. Because the Secretary did not prove that the samples reliably measured what the welders breathed, the Commission vacated the mechanical-ventilation and welding-respirator items and the related $200 penalty. It separately affirmed an item involving uncapped gas-manifold connections and a de minimis item involving an unapproved spray-paint respirator, while vacating a welding-cable item. The Secretary did not request an opportunity to rebut the officially noticed technical materials, and the consolidated cases later became final orders.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1916.31(a)(1)(ii); 29 C.F.R. § 1916.82(d)(1); 29 C.F.R. § 1916.82(e); 29 C.F.R. § 1916.35(a)(4); 29 C.F.R. § 1916.36(b)(4)
• Outcome: Welding-fume ventilation and respirator items and $200 penalty vacated; manifold and de minimis spray-respirator items affirmed; welding-cable item vacated.
• Key point: Welding-fume exposure samples did not prove unsafe concentrations when the Secretary failed to show that cassettes were properly placed inside the welding hoods.

Full text (OSHRC public release)

Docket No. 81-1685_81-1762_81-2089

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. � 661(j), section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 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.
� 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. � 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.

I.

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

� 1916.31  Ventilation and protection in
welding, cutting and heating .

(a) Mechanical ventilation; requirements .  (1) For purposes of 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:

� 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. � 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 � 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, � 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 � 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 � 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. � 1916.82(e)(OSHRC Docket No. 81-1685) and 29 C.F.R. �
1916.35(e)(4)(OSHRC Docket No. 81-1762), and vacated a citation item alleging Equitable's
noncompliance with 29 C.F.R. � 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,

v.

EQUITABLE SHIPYARDS, INC.,

Respondent.

OSHRC Docket Nos.

81-1685, 81-1762 and 81-2089

(Consolidated)

APPEARANCES:

Eve Chesbro, Esquire, Office of the Solicitor, U. S.
Department of Labor, Dallas, Texas, on behalf of complainant.

Robert E. Rader, Jr., Esquire, McCarty, Wilson, 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,

v.

EQUITABLE SHIPYARDS, INC.,

Respondent.

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

& 81-2089

DECISION

Before:  BUCKLEY, Chairman, and CLEARY,
Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and
Health Review Commission under 29 U.S.C. � 661(i), section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 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. � 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.

I

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 � 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 � 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).

II

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. � 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 � 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,

v.

EQUITABLE SHIPYARDS, INC.,

Respondent.

OSHRC Docket Nos.

81-1685, 81-1762 & 81-2089

(Consolidated)

APPEARANCES:

Bobbie J. Gannaway, Esquire, Office of the Solicitor,
U. S. Department

of Labor, Dallas, Texas, on behalf of 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 � 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. � 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 � 23,033 (No. 16162, 1978); Mountain
States Telephone & Telegraph Co ., 78 OSAHRC 30/A2, 6 BNA OSHC 1504, 1978
CCH OSHD � 22,668 (No. 13266, 1978), appeal filed , No. 78-1438 (10th Cir.,
June 2, 1978).

In this case respondent introduced evidence of its
safety program 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. � 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 � 22,805
(No. 3069, 1978).

Alleged Violation of 29 C.F.R. � 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 � 24,732 (Nos.
77-3890 & 77- 3391).

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

The standard at section 1916.31(a)(1)(ii) pertains to
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. �
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 � 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 � 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. � 1916.35(a)(4) at the
time of the inspections herein.

4.  Respondent was not in violation of the standard at 29 C.F.R. � 1916.36(b)(4) at
the time of the inspections herein.

5.  Respondent was in violation of the standard at 29 C.F.R. � 1916.82(e) at the
time of the inspections herein.  The violation was of a de minimis
nature.

6.  Respondent was in violation of the standard at 29 C.F.R. � 1916.31(a)(1)(ii) at
the time of the inspections herein.

7.  Respondent was in violation of the standard at 29 C.F.R. � 1916.82(d)(1) at the
time of the inspections herein.

Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record, it is ORDERED:

1.  That part or Citation No. 2 of Docket No.
81-1762 alleging violations of 29 C.F.R. � 1916.35(a)(4) is hereby affirmed.

2.  That part of Citation No. 2 of Docket No. 81-1762 alleging a violation of 29
C.F.R. � 1916.36(b)(4) is hereby vacated.

3.  That Citation No. 1 of Docket No. 81-1685 is hereby affirmed as a de minimis
violation.

4.  That Citation No. 2 of Docket No. 81-2089 is affirmed and a 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 � 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. � 661(g)

(Commission may order testimony taken by deposition); 29 C.F.R. � 2200.70 (deposition in
lieu of testimony).