Marshall Durbin (ALJ decision, March 27, 1995)

Plain-English summary

Marshall Durbin operated a chicken-processing plant in Jasper, Alabama. The judge found that two employees exposed above the permissible noise limit were not required to wear hearing protection, affirming that item as serious. A second item was affirmed but reduced to other-than-serious because employees wore hearing protectors incorrectly yet still received enough attenuation to avoid serious harm. The judge also affirmed a recordkeeping item because disputed hearing-threshold shifts had to be recorded unless timely retesting supported removal. Total penalties of $5,400 were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1904.2(a); 29 C.F.R. § 1910.95(i)(2)(i); 29 C.F.R. § 1910.95(i)(5)
• Outcome: One serious hearing-protection item affirmed; fitting item reduced to other-than-serious; recordkeeping item affirmed; $5,400 in total penalties
• Key point: Questionable audiogram results still had to be recorded promptly and could be lined out later if valid retesting showed they were not recordable.

Full text (OSHRC public release)

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                                   UNITED STATES OF AMERICA
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                     One Lafayette Centre
                              1120 20th Street, N.W. - 9th Floor
                                  Washington, DC 200364419
  
        SECRETARY OF LABOR
                    CbplGMIl~
              v.                                                    OSHRC DOCKET
                                                                    NO. 944549
        MARSHALLDURBIN
                    Respondent.
  
                             NOTICE OF DOCKETING
                      OF ~MINISIl&4’TTVE UW JUDGE’S DECISION
             The Administrative Law Judge’s Report in the above referenced case was
        docketed with the Commission on February 24, 1995. The decision of the Judge
        will become a final order of the Commission on March 27,199s unless a
        Commission member directs review of the decision on or before that date. ANY
        PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
        COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
        Any such petition should be receives    the Executive Secretary on or before
        March 16 1995 in order to rmit        ciet time for its review. See
        Commissibn Rule 91,29 C.& 2200.91.
           All further pleadings or communications regarding this case sh%llbe
        addressed to:
                               Executive Secretary
                               Occupational Safety and Health
                                Review Commission
                               1120 20th St. N.W., Suite 980
                               Washington, D.C. 200363419
        Petitioning parties shall also mail a copy to:
                               Daniel J. Mick, Esq.
                               Counsel for Regional Trial Liti ation
                               Of&e of the Solicitor, U.S. DOH.
                               Room S4OO4
                               200 Constitution Avenue, N.W.
                               Washington, D.C. 20210
        If a Direction for Review is issued by the Commission, then the Counsel for
        Regional Trial Litigation will represent the Department of Labor. Any party
        having questions about review nghts may contact the Commission’s Executive
        Secretary or call (202) 606-5400.
                                              FOR THE COMMISSION
  
                                                fly-Qy,b/y
        Date: February 24, 1995               Ray Hi Darling, Jr.
                                              Executive Secretary
  

  DOCKET NO. 94-0549
  NOTICE IS GIVEN TO ‘IME FOLIDWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial I&i ation
Office of the Solicitor, U.S. DO5
Room !MOO4
200 Constitution Ave., N.W.
Washington, D.C. 20210

Associate Re ‘onal Solicitor
Oflice of the so licitor
Chambers Bldg., Highpoint Office
Center, Suite 150
100 Centerview Drive
Binningham,AL35216

William E. Hester, III, Esq.
I(ullman,I==o=,~~g&
BiiIltZL
1600 Energy Centre
1100 PO dras Street
New Or rearn,, LA 70163

Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an d Health
Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00109191114:04
 UNITEDSTATES
OF AMERICA
OCCUPATIONAL SAFETY AND HEALfH REVIEWCOMMISSION 136s PEACHTREESTREET,ME., SUITE 240
AMA. GEORGIA 30309-3119

FAX:
PHONE: cou (404) 347-ow
COM (4w) 34t4197
Fls (404) 3474113
FTS (404) 3474197

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SECRETARY OF LABOR,
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Compkxinan~
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.v. l l OSHRC Docket ho.: 94449

MARSHALL DURBIN COMPANIES,
.
Respondent.

.
Appearances: .
i
t+thia WelchBrown,Esquire
Office of theSolidtar
U. S. Dqartmentof Labor .
.
Birmingham,AIabama _
For Complainah -
. .
Before: Achinistrative-La~ Judge NanCy Spies
Je
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  DECISION AND ‘ORDEU

Marshall Durbin timpani& . .(Mar&@‘Dtibin) tmms
. and operates a chicken-
a
processing plant in Jasper, Alabama. ‘On October 2!5,1993, the Occupational safety-and
Health Administration (OSIS$) began an .inspection of Marsball.Durbin’s p&t. OSHA -
compliance officer Isaac IaSalle conducted the inspection Subsequently, the&cre~ ’
issued two citations to Marshall Durbin on January 27,1994. Citation No. 1 am&
.
two
items, each alleging a serious violatbn of a provision of 5 1910.95, O&A% c&patio& hearing standard Citation No. 2 conbins one item, which aIleges 8n other-than-serious recordkeeping violation under 5 @04.2(a). Marshall Durbin contests all items. and penalties
.
‘.
charged in the citations.
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 To establish a violation of a standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applied, (2) its terms were not met, (3) employees had access to the violative condition, and (4) the employer knew or could have known of it with the exercise of reasonable diligence. Skibel Mbdem Manufacthzg &

Welding Cop., 15 BNA OSHC 1218, 1991 CCH OSHD 129,442, p. 39,678 (No. 88-821, 1991). Marshall Durbin claims that the Secretary failed to prme that Thompson and Simon were not wearing hearing protection. Marshall Durbin’s case is not strong. It offers no positive evidence that its employees were wearing hearing protection. It is the Secretary’s burden to establish that the employees were not wearing hearing protection. The Secretary did this when LaSalle testified that Thompson and Simon told him that they did not wear any such protection during the sampled shift. It is up to Marshall Durbin to rebut the evidence. Instead, Marshall Durbin argues that Me’s uncontradicted testimony is insufficient to establish the company’s noncompliance with the cited standard Marshall Durbin points out that LaSalle did not observe Thompson and Simon for the complete duration of their sampling. Exhibit C-l indicates that LaSalle observed Thompson at 545 a.m, 1055 a.m., 11% a.m., 153 pm., 290 p.m., and 251 p.m. Exhiiit C-2 slmws La!Mle observing Simon at 6~22a.m., lkl6 a.m., 11:40 a.m., 2~10p.m., 2:18 p.m., and 252 p.m. Marshall Durbin argues that it cannot be inferred that LaSalle was observing Simon and Thompson during the unaccounted tir time.
Such an inference is not necessary, however, because IaSalle specifically stated that he asked each of the employees whether or not they wore hearing protection, and both replied that Marshall Durbin had never required them to wear hearing protection (Tr. 21), LaSalle’s testimony remains unrebutted on the record.
Marshall Thompson attempts to label IaSalle’s statements regardingwhat Thompson and Simon told him as hearsay. Federal Rufes of Evidence 801(d) provides:
-

A statement is not hearsay if -

(2) Admission by party-opponent. The statement is offered against a party and . . . (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship . . l

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 Citation No. 1

Item 1: Alleged Serious Violation of 6 1910.95(iJ2)@

The Secretary alleges that Marshall Durbin committed a serious violation of 5 1910.95(i)(2)@),which provides:

Employers shall ensure that hearing protectors are worn:
(i) By an employee who is required by paragraph (b)(l) of this section to wear personal protective equipment.

Paragraph (b)(l) of 0 1910.95provide

When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

According to Table G-16, the permissible noise exposure for an employee working eight hours is 90 decibel level (dBA). If an employee is exposed to a level greater than 90 dBA over a period of ei@ hours, 6 1910.95(i)(2)(i) requires the employee to wear hearing protection.
LSalle used Mark II DuPont dosimeters to sample the noise levels to which
employees Anthony Thompson and Willie Simon were exposed (‘I?. 14). Thompson’s noise level emsure was sampled on October 26,1993, in the hanging area. LaSalle sampled Thomp;on for 481 minutes. His time-weighted average (TWA) for eight hors was 93.07 dl3A LaSalle: sampled Simon’s noise level exposure in the washout area for 474 minutes on October 26, 1993. His TWA for eight hours was 95.5 dBAs (B&s. C-l, C-2; Tr. 17-18). LaSalle testified that neither Thompson nor Simon were wearing hearing protection (Tr. 18).
Marshall Durbin does not .dispute that the TW.. for eight hours for Thompson and Simon exceeded 90 dBAs. It does dispute the Secretary’s contention that Thompson and Simon did not wear hearing protection during the entire eight-hour work shift that LaSalle sampled.

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 Thompson and Simon made statements to IMalle regarding their use of hearing protection, a matter within the scope of their employment. Their statements were made during the existence of their employment relationship. LaSalle’s testimony regarding their statements was, therefore, not hearsay.
Marshal Durbin complains that it would have been more probative for the Secretary to call Thompson and Simon as witnesses. Calling the employees as witnesses, however, was not necessary to establish the Secretary’s case. Marshall Durbin could have called the employees as witnesses if it believed that their testimony would have rebutted that of LaSalle.
The Secretary established that Thompson and Simon were exposed to noise levels in excess of 90 dBAs over an eight-hour TWA The employees were not wearing hearing protection during this time. LaSalle testified that supervisors were in the areas where the employees were working (Tr. 23-24). The Secretary has established that Marshall Durbin violated 8 1910.95(i)(2)(i).
The Secretary charges that the violation was serious. A violation is serious under section 17(k) of the Act, 29 U.S.C 8 666(k), if it creates a substantial probability of death or serious physicalharm. LaSalIe testified that the hW to which Thompson and Simon were exposed was occupational hearingloss (Tr. 24). Marshall Durbin argues that “[ijn one , day’s period, there would be no measurable harm” from being exposed to a noise level of 93.07 dBA vr. 137). The remrd establishes, however, that Thompson and Simon were never required to wear hearing protection, so their exposure was greater than one day’s period. Bill Ashenfelter, Marshall Durbin’s director of human resources, confkmd to IaSalle that the company’sapproachto the use of hearing protection was optional: “If their ears hurt, wear them” (Tr. 22). The standard presumes that, once the threshold levels of noise as listed in Table G-16 have been exceeded, hearing loss can result if hearing _ protection is not used. Marshall Durbin’s violation of 0 1910.95(i)(2)(i) is serious.
 Item 2: AlIe& Serious Violation of d 1910.95(i)(S>

Section 1910.95(i)(S) provides:

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

LaSalle observed employee Debra Winchester, in the hanging department, and employee Portia Hubbard, a machine operator in the eviscerating area, both of whom were wearing hearing protectors (I’r. 31). LaSalle testified that Winchester and Hubbard were wearing their hearing protectors incorrectly because he believed that most of the hearing protectors were outside of the employees’ ears (Tr. 32-33). The decbel level to which Winchester was exposed was 94 dBA Hubbard was exposed to a decibel level of 97.5 dBA (Exhs. C-3, C-4; Tr. 31). LaSalle testified that supervisors were in the areas where the employees were working (Tr. 34).
Exhibit GS is a photograph showing Winchester’s head in profile. The photograph is blurry. It is unclear from the photograph whether the hearing protector is being worn correctly or .not. Exhibit C-6 is a photograph of Hubbard. She is facing the camera and her left ear is vi&k. A hearing protector inserted into her ear can be seen.
The Secretary’s evidence regarding this item is slight. LaSalle claims that the hearing protectors were worn improperly, but that is not apparent fkom the photographs introduced to show the violation. LaSalle is an experienced compliance officer and a credible witness, but he has scant training in occupational hearing conse~tion pr. 5142).
Marshall Durbin, however, did nothing to rebut Te’s assertion that Wmchester
and Hubbard were wearing their bearing protectors in&ectly. The company failed to call any empIoyees.or supervisors as witnesses to test@ that the hearing protectors were being worn properly. Marshall Durbin called only one witness, James Davidson, the director of audiology for Acoustic Consultants Industrial Health (Tr. 118). Davidson examined exhiiiiitsC-5 and C-6 and conceded that the ear protectors were “not being worn ideally’ rr. 159). Based on what evidence there is, it is concluded that Marshall Durbin violated 8 1910.95(i)(S).Marshall Durbin’s supervisor failed to ensure that Winchester and Hubbard wore their hearing protectors correctly.
The Secretary alleges that the violation is serious. L&lle stated that the hazard was occupational hearing loss (Tr. 35). LaSalle admitted he did not know what, if any, reduction in the decibel level the hearing protectors would provide while being worn incorrectly (Tr. 6&M). Davidson, on the other hand, testified without contradiction that, even being worn improperly, the hearing protectors would provide sufficient protection to reducethe employee’s qure to less than 90 dBA=

[Winchester] would not suffer any harm, and I feel clearly that this ear plug would reduce her exposure below 90 dBA, which is the limit.

(Ir. 142).

I believe there would be no harm [to Hubbard]. They were ear plugs with a rating of 29. Even incorrectly worn, they should clearly provide at least six or seven decibels of attenuation.

(Tr. 143).

The Secretary has not established that MarshalI Durbin’s failure to ensure that Winchester and Hubbard worn their hearing protectors properly could result in serious physical harm. Item 2 will be affirmed as other&in-seriou&

Citation No. 2

Item 1: Alleged Other-Than-Serious Violation of S 1904.2(a)

The Semtary charged Marshall Durbin with an other-than-serious violation of 8 1%)4.2(a),which provides:

(a) Each employer shall, except as provided in paragraph (b) of this section, (1) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment; and (2) enter each recordable injury and illness on the log and summary as early as practicable but no later than 6 working days after receiving Formation that a recordable injury or illness has occurred. For this purpose form OSHA No. 200 or an equivalent which is as readable and comprehen&le to a person not finilk

6 with it shall be used. The log and summary shall be completed in the detail provided in the form and instructions on form OSHA No. 200.

LaSalle reviewed Marshall Durbin’s OSHA 200 logs and discovered that the log for 1993 did not include entries for two employees who were reported to have experienced threshold shifts greater than 25 dBA (Exh. C-7; Tr. 38-39). A threshold shift is a change in hearing threshold compared to the baseline audiogram of 25 dBA at 2,000, 3,000, and 4,000 hertz frequency. Threshold shifts greater than 25 dBA must be recorded on tlk OSHA 200 form within 6 days of the assessment being made (Tr. 39,42).
LaSalle obtained the 1993 audiograms and the baseline audiograms fkom Marshall Durbin (Tr. 76, 88). He compared the documents and found that employees Anthony Thompson and Felicia Clay had experienced threshold shifts in excess of 25 dBA LaSalle computed a threshold shift of 46.6 dBA on Clay’s left ear and a threshold shift of 77.3 dBA on both of Thompson’s ears (Tr. 41-42).
Marshall Dubin does not dispute any of these facts. Marshall Durbin argues that Davidson reviewed the audiograms for Clay and Thompson and determined that they were inAid. Davidson sent a Ietter to Marshall Durbin informing the company that the audiograms of Thompson, Clay, and one other employee were invalid (Bch. R-4, Tr. 133).
Marshall Durbin claims that it had no obligation to record the results of tests that had been determined to be invalid.
But Davidson also sent a handwritten note on a copy of a test result to Marshall * .
Durbin which stated (Exhibit C-10, emphasis in on’rginal):

These 2 workers [one of whom was Thompson] have had a 25 dBA decline in hearing. The audiograms look suspect. I suggest you have them retested by a local audiologist and send me the results to review before you list them on OSHA form 200.

Davidson had written “Importantl” with an arrow pointing to a paragraph which stated:

.
These workers must be entered on OSHA Form 200. They must be refitted
and retrained in the use of hearing protectors and be given more effective hearing protectors if necessary.

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Section 1910.95(g)(7)(ii) provides:

If the annual audiogram shows that an employee has suffered a standard threshold shift, the employer may obtain a retest within 30 days and consider the results of the test of the annual audiogram.

Thus, the employer has two options. It can retest the employee within 30 days and use the results of that test, or it can use the origin&ltest results. But the employer must reccxd the threshold shift within six days after receiving the information. ‘%cmikeeping Guidelines for Occupational Injuries and Ilh~esses,“~section B-19 of chapter V contains this question and answer (p. 32):

Q0 Must occupational injuries and illnesses that are disputed be recorded?

Aa Within 6 workdays after receiving Formation that an injury or illness has occurred, the employer must determine whether the case is recordable. Questionable cases shotid be entered on the log, OSHA No. 200, and Iined out at a later date if they are found not recordable.

The Secretary has established an other-than-serious violation of 6 1904.2(a).

Section 17(j) of the Act, 29 U.S.C Q 666(j), requires that when assessing penalties, the Commission mst give “due consideration” to four criteria= the size of the employer’s business; gravity of the violation; good faith; and prior history of violatioxu. J. A. Jones CW& Co., 15 BNA OSHC 2201,221s14, 1993 CCH OSHD 129,964, po 41,032(No. 8702059,1993). These factors are not necessarily accorded equal weight. Generally speaking, the gravity of a violation is the primary element in the penalty assessment, Z&i@ Z*, 15BNA OSHC 1481, 1483, 1992 CCH OSHD r29,582, p. 40,033 (No. 88-2691,1992). The gravity of a particular violation depends upon such matters as the number of employees eqosed, the duration of the exposure, the precautions taken against injury, and the likelihood that 811yinjurywould result. J. A JOPUSS, 15 BlWi OSHC at 2214,1993 CCH OSHD at p. 41,032

Hem Iin Wb& I~zc, 16 BNA OSHC 1247,1994CCH OSHD 130,155 (NO.88-1%2,1994).

1 S&h publicationsconstitutereasonableinterpretations of the regulationand we accordedgreatwight b determiningwhich injuriesshould be recordedon theOSHA20. KM&rCa, md UAW, 16 BNA OSHC1769, 1994 cm OSHD 130,457 (No. 8&237,1994).
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Marshall Durbin employed approximately 325 employees at its Jasper, Alabama, plant. It employs approximately 2,000 employees company-wide (Tr. 29). The Secretary had cited Marshall Durbin for serious violations of the Act within the three years prior to the instant inspection (Tr. 30).There was no evidence of lack of good faith on Marshall Durbin’s part.
The gravity of the violation of Q 1910.95(i)(2)(i) (item 1 ofCitation No. 1) is high.
The employees used no hearing protection whatsoever and were subjected to noise levels in excess of 90 dBA. Continued exposure to such noise levels without hearing protection can cause hearing loss. A penalty of $5,000.00is appropriate.
The gravity of the other-than-serious violation of Q 1910.95(i)(i (item 2 of Citation No. 1) is low. It is not expected that serious physical harm would result when the hearing protectors (even though improperly worn) reduced exposure from noise levels recorded for those areas. However, without proper supewisor, employees’ use of hearing protectors will predictably be ineffective. A penalty of $300.00 is assessed, The other4han-serious violation of 8 1904.2(a) is a violation of the regulatory standard intended to assist in identifying the extent of injuries occuning at an employer’s facility. Marshall Durbin was recording the injuries and illnesses of its employees as required by the Act. It failed to record the threshold shifts of Thompson and Clay because it was told that their audiograms were invalid. While Marshall Durbin should have either retested the employees or recorded the suspect test results, its failure to do so was not without some basis, however misguided. A penalty of $100.00 is assessed, -

FINDINGS OF FACT AND CONCLUSIONS OF IAW

The foregoing decision constitutes the findings of f&t and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).
 Based upon the foregoing decision, it is ORDERED:
1l Item 1 of Citation No. 1 is affirmed, and a penalty of $S,OOO.OO is assessed;
2. Item 2 of Citation No. 1 is affirmed as other-than-serious, and a penalty of $300.00 is assessed; and
3. Item 1 of Citation No. 2 is affirmed and a penalty of $100.00 is assessed.

Is/ Nancy J. Sks
NANCY J. SPIES
Judge
Date: February 16, 1995

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