Great Lakes Packaging Corp.

Plain-English summary

Great Lakes Packaging made cardboard packaging and displays at a Germantown, Wisconsin facility. Its workers' compensation insurer repeatedly warned that measured noise levels triggered OSHA hearing-conservation requirements, including baseline and annual audiograms. Great Lakes gave audiograms at a 1994 health fair but provided no annual tests in 1995 or 1996 and did not compare the health-fair results with employees' pre-employment audiograms. The Commission held that failing to provide annual audiograms was willful because the safety director knew of that requirement and the company took no meaningful action despite repeated reminders. It found the comparison violation nonwillful because the insurer's letters did not clearly tell Great Lakes that the pre-employment tests had to serve as the baseline, and it assessed a combined $6,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(g)(6); 29 C.F.R. § 1910.95(g)(7)
• Outcome: Annual-audiogram violation affirmed as willful, audiogram-comparison violation affirmed as nonwillful, and combined penalty increased from $3,000 to $6,000.
• Key point: Repeated notice of a clear annual-testing duty can establish willfulness when management knows testing is not being done, even if the employer has a good safety record in other areas.

Full text (OSHRC public release)

                                  United States of America
                   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                             1120 20th Street, N.W., Ninth Floor
                                Washington, DC 20036-3419




                                               :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 97-2030
:
GREAT LAKES PACKAGING CORP., :
:
Respondent. :
:

                                             DECISION

BEFORE: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.
BY THE COMMISSION:
This case is before the Commission pursuant to a petition for review filed by the Secretary of
Labor. The Secretary takes issue with a decision of Administrative Law Judge Stanley M. Schwartz in
which the judge affirmed a citation alleging violations of the Hearing Conservation standards at 29
C.F.R. §§ 1910.95(g)(6) and 1910.95(g)(7),1

1
The standards state in pertinent part:

§ 1910.95 Occupational Noise Exposure
* * *
(g) Audiometric testing program.
* * *
(6) Annual audiogram. At least annually after obtaining the baseline audiogram,
the employer shall obtain a new audiogram for each employee exposed at or above an 8-
hour time-weighted average of 85 decibels.
(7) Evaluation of audiogram. (I) Each employee’s annual audiogram shall be
compared to that employee’s baseline audiogram to determine if the audiogram is valid
and if a standard threshold shift as defined in paragraph (g)(10) of this section has
occurred. This comparison may be done by a technician.

                                                                                  2000 OSHRC No. 7

2
but reduced the characterization of the citation from willful to other than serious. The Secretary
petitioned for review of the judge’s decision on the grounds that the judge erred by reducing the
characterization of the violation. On review, respondent does not dispute the violations, but argues that
the judge properly found the violations to be nonwillful.2 For the reasons that follow, we find that the
judge erred in reducing the characterization of the violation and that the violation was willful.

                                            Background
    Great Lakes maintains a facility in Germantown, Wisconsin where it manufactures cardboard

packaging, point of operation displays, and large cardboard signs, using printing, laminating and rotary
die cutting equipment, and bailers. Great Lakes’ workman’s compensation policy is carried by Casualty
Insurance (Casualty), which works with the company to detect and abate hazards in the workplace. Prior
to the 1997 inspection in this case, Great Lakes received five letters from Casualty, which discussed or
mentioned the need for a hearing protection program. The first letter, dated September 28, 1994, was
sent to Kenn Ferron, Great Lakes’ Vice President of Finance and Chief Financial Officer. It informed
him that noise level monitoring conducted by the insurance company revealed that employees in four
areas of the facility were exposed to noise levels of 85-90 decibels (dba), while employees at the
bandsaw area were exposed to noise levels exceeding 90 dba. The letter further advised Great Lakes that
the results triggered

2
On review, the Secretary also argues that the judge erred by denying, at the
commencement of the hearing, the Secretary’s motion to amend the citation to allege, in
the alternative, that the violation was serious. Because we find that the citation was
properly characterized by the Secretary as willful, we do not reach this issue.
 3
OSHA requirements for a formal hearing conservation program and that such a program must include
baseline and annual audiograms, a written program, employee training, and various types of hearing
protection. Finally, the letter stated that Casualty had a videotape on hearing conservation which would
be useful for employee training and invited Ferron to contact the company if he had any questions. The
letter was forwarded to Bruce Peterson who, at the time, was in charge of safety at the plant. Peterson
was succeeded as Great Lakes’ safety coordinator by Robert Harmant on Jan. 16, 1995.
On November 18, 1994, Ferron received a second letter from Casualty which was concerned
primarily with an accident investigation not relevant to this case. However, at the end of the letter,
Casualty noted that it had discussed with Ferron how to implement a hearing conservation program.
According to the letter, during this discussion, Casualty pointed out that the first step was to require the
use of hearing protection, and that the second step was to provide baseline audiograms with annual
updates. The letter also reiterated the availability of the videotape.
Because of a good safety record for the year, Casualty paid Great Lakes a substantial premium
rebate or “dividend.” The company used that dividend to conduct, on December 15, 1994, a “health fair”
for its employees. At the health fair, employees were given cholesterol and vision tests, had their blood
pressure checked and were given audiograms. The decision to provide these audiograms was not
prompted by Casualty’s noise sampling. However, having been informed by Casualty about its noise
problem, respondent decided that the audiograms would serve as baseline audiograms. These
audiograms were not compared to pre-employment audiograms the company routinely gave to its
employees as part of its hiring process.
On March 31, 1995, Casualty sent Ferron another letter summarizing topics discussed during a
meeting between the company and its insurer. Casualty noted its understanding that a written hearing
conservation program, though not ready, was being developed by Great Lakes, and that the use of ear
protection needed to be more strictly enforced.
In a fourth letter, dated November 20, 1995, Casualty outlined the details of a loss control visit
 4
conducted earlier that month. In that letter, Casualty again pointed out that Great Lakes had yet to
implement a hearing conservation program. That reminder was finally repeated in a fifth letter, dated a
week later, on November 27, 1995.
As a result of these communications, employees in the bandsaw area were required to wear
hearing protection. Hearing protection was optional in other areas of the facility. However, no annual
audiograms were given, no written program was established, no formal training for employees on the use
of hearing protection was provided, and employees were not taught about the hazards of noise exposure
in excess of 85 dba.
Ferron testified that he believed that safety coordinator Harmant was working with Casualty on a
hearing conservation program, but he had never spoken to Harmant on the topic. Ferron further testified
that his only purpose in dealing with Casualty was to discuss the terms of renewal for the company
insurance policy. According to Ferron, there never was a conscious decision by management not to
implement the required hearing conservation programs. He testified that the subject was never brought up
or discussed by management.
Harmant, who succeeded Peterson as safety officer in January 1995, had no formal training in
safety and health. He testified that he had read the correspondence from Casualty and spoke with the
insurer about a hearing conservation program approximately three times in the two years he was safety
officer. However, he did not familiarize himself with the relevant OSHA occupational noise exposure
requirements, nor did he ever consider drafting a hearing conservation program until after the 1997
OSHA inspection. Harmant testified that hearing conservation was not his safety priority. Rather, he was
primarily concerned about reducing lost-time accidents that were affecting the company’s workman’s
compensation rates. His efforts were successful and since a 1995 accident, the company had 600 days
without a lost-time accident. In January, 1997 the company began awarding employees $15 for each
quarter the company went without a lost-time accident. As a result, safety improved and the company
won an industry safety award. Harmant characterized his failure to act on a hearing conservation
program as an oversight; as something that “fell through the cracks.” Harmant also testified that, because
he did not know how to implement such a program, he was waiting for Casualty to specifically tell him
what to do.
 5
Harmant noted that although Casualty noted the need for a hearing conservation program, it never
actually told him how to go about implementing the program.
Compliance officer Galen Lemke conducted an OSHA inspection in July 1997. Lemke testified
that Ferron told him that the reason employees were not given audiograms in 1995 and 1996 was because
dividends were lower and management determined that employees “would rather have 50 bucks than an
audiogram.” However, Lemke never talked to any employee who claimed to have received this bonus,
and he never asked to see any records that would establish that such bonuses were ever given. Also,
during his discussions, Lemke concluded that both Ferron and Harmant were familiar with the OSHA
hearing conservation regulations. During the inspection, Lemke found respondent to be cooperative as it
readily provided the records and information he requested. Lemke also testified that Great Lakes had a
clean safety record and an active safety committee system run by employees. He also found that Great
Lakes was “very responsive” to the implementation of a proper hearing protection program.
As a result of the OSHA inspection, Great Lakes was issued a willful citation alleging a failure to
comply with the hearing conservation standards at 29 C.F.R. §§ 1910.95(g)(6) (failure to provide annual
audiograms) and 1910.95(g)(7)(failure to compare audiograms given at the health fair to baseline
audiograms given at the beginning of employment). A single penalty of $44,000 was proposed.

                                          Judge’s Decision
    Judge Schwartz held that respondent violated the hearing conservation standard, but he

concluded that the violations were not willful. He found that Harmant’s failure to take appropriate action
was due primarily to his inexperience and that Harmant was negligent in believing that Great Lakes’
insurer, Casualty, would step in and ensure the company’s compliance. The judge concluded that this
constituted a lack of due diligence, but found that it did not establish that the violations were willful.
 6

      The judge concluded that the Secretary’s decision to charge the violations as willful was largely

based on her belief that Great Lakes made a deliberate decision to award $50 cash bonuses rather than
provide the required audiometric testing. He found nothing in the record to support the proposition.
Rather, the judge found Ferron to be a “truly credible witness” and credited his explanation of the
company’s incentive program which had nothing to do with offering employees a choice between cash
bonuses and audiograms. The judge agreed with Ferron’s observation that it would not make economic
sense to give employees a choice between a $50 bonus and a $10 audiogram, and he concluded that
Lemke simply misunderstood the substance of his conversation with Ferron3. The judge also found that
there was abundant evidence to establish Great Lakes’ concern for employee safety.
In assessing a penalty of $3000, he found that the gravity of the violation alleged by the Secretary
was overstated. He noted that, while nine employees demonstrated standard threshold shifts between
either their prehire or 1994 audiogram and the 1997 audiograms, none of these employees worked in
areas where noise exposures were measured in excess of 85 decibels and, therefore, they would not have
been required to utilize hearing protection.4

3
The Secretary does not dispute this finding on review.
4
Lemke testified that two employees measured a standard threshold shift (STS)(ten
decibel loss in an employee’s hearing threshold), between the 1994 and 1997
audiograms. One of the employees showed no hearing loss on a retest, the other
employee has worn a hearing aid since childhood. Seven additional employees registered
an STS between their prehire and 1997 audiograms. However, no employee with an STS
worked in an area where they were exposed to 85 decibels over an 8 hour period.
Therefore, the hearing protection requirements would not have been triggered in any of
the reported STS cases.
 7
Discussion
A willful violation is one “committed with intentional, knowing or voluntary disregard for the
requirements of the Act, or with plain indifference to employee safety.” Falcon Steel Co., 16 BNA
OSHC 1179, 1181, 1993-95 CCH OSHD ¶ 30,059, p. 41,330 (No. 89-2883, 1993)(consolidated); A.P.
O’Horo Co., 14 BNA OSHC 2004, 2012, 1991-93 CCH OSHD ¶ 29,223, p. 39,133 (No. 85-0369, 1991).
A showing of evil or malicious intent is not necessary to establish willfulness. Anderson Excavating and
Wrecking Co., 17 BNA OSHC 1890, 1891, n.3, 1995-97 CCH OSHD ¶ 31,228, p. 43,788, n.3 (No. 92-
3684, 1997), aff’d, 131 F.3d 1254 (8th Cir. 1997). A willful violation is differentiated from a nonwillful
violation by an employer’s heightened awareness of the illegality of the conduct or conditions and by a
state of mind, i.e., conscious disregard or plain indifference for the safety and health of employees.
General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2068, 1991-93 CCH OSHD ¶ 29,240,
p. 39,168 (No. 82-630, 1991)(consolidated). See also Caterpillar, Inc. v. Herman, 154 F.3d 400, 402 (7th
Cir. 1998); U.S. v. Ladish Malting Co., 135 F.2d 484, 490 (7th Cir. 1998). A willful violation is not
justified if an employer has made a good faith effort to comply with a standard or eliminate a hazard,
even though the employer’s efforts were not entirely effective or complete. Williams Enterp., Inc., 13
BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987). The test of
good faith for these purposes is an objective one--whether the employer’s belief concerning a factual
matter or concerning the interpretation of a rule was reasonable under the circumstances of the case.
Falcon Steel, 16 BNA OSHC at 1181, 1993-95 CCH OSHD at p. 41,330; General Motors Corp., Electro-
Motive Div., 14 BNA OSHC at 2068, 1991-93 CCH OSHD at p. 39,168; Williams Enterp., Inc., 13 BNA
OSHC at 1256-57, 1986-87 CCH OSHD at pp. 36,589.
Although the Secretary issued a single willful citation, that citation alleged violations based on
the employer’s noncompliance with two separate provisions of the hearing conservation standard.
Reviewing the circumstances with respect to each of the cited provisions independently, we find that
Great Lakes’ failure to provide annual audiograms was willful, but that the Secretary did not prove
willfulness with regard to Great Lakes’ failure to compare the health fair audiograms to the pre-
employment audiograms.
We first conclude that the letters from Casualty to Great Lakes that the Secretary relies on did
not give Great Lakes heightened awareness that § 1910.95(g)(7) required it to compare the health fair
audiograms to the pre-employment audiograms it administered to its employees. The testimony of Ferron
establishes that, based on Casualty’s letters, the company planned to treat the audiograms it had already
decided to give at the health fair as a baseline rather than compare them with the pre-employment
 8
audiograms it had already given. The Secretary alleges that the standard required that the health fair
audiograms be compared to the pre-employment audiograms in the circumstances of this case, and Great
Lakes does not contest the violation. We note, however, that while the standard requires that a “baseline
audiogram” be administered within six months of an employee’s first exposure at or above the action
level, 29 C.F.R. § 1910.95(g)(5)(i) and that the pre-employment audiograms here met that criteria, the
standard does not make any specific reference to pre-employment audiograms. Also, the letters from
Casualty did not clearly define a baseline audiogram or state that the pre-employment audiograms had to
serve as the baseline to which any subsequent audiograms had to be compared. The first letter from
Casualty, dated September 28, 1994, informed Great Lakes only that it was required to implement a
hearing conservation program which must include: “baseline & annual audiograms, a written program,
employee training, and various types of hearing protection” (emphasis added). In the November 18, 1994
letter from Casualty, the insurer stated that “[t]he first item is to offer and require hearing protection to
be worn. The second step is to have baseline audiograms given with annual updates. You mentioned you
intend to include these exams in a yearly physical” (emphasis added).
Based on these letters, we cannot find that Great Lakes had a heightened awareness that §
1910.95(g)(7) required it to treat the pre-employment audiograms as the baseline. We therefore find that
the Secretary failed to prove that the violation was the result of either “intentional disregard” or “plain
indifference” to the standard and that Great Lakes’ failure to compare the health fair audiograms to the
pre-employment audiograms was not willful.
On the other hand, we find that Great Lakes had a heightened awareness of its obligations under
§ 1910.95(g)(6), sufficient to characterize its failure to provide annual audiograms as willful. Unlike the
situation with the baseline audiograms, the evidence establishes that both the September 28, 1994 and
November 18, 1994 letters from Casualty, clearly informed Great Lakes of the requirement of the
standard, that an adequate hearing conservation program required that employees be given annual
audiograms. Although it is not clear whether Ferron, to whom the letters were addressed, read them,
Harmant testified that he read the letters after taking over as safety director in January, 1995.5

5
Commissioner Weisberg takes issue with the view expressed in Commissioner
Visscher’s concurring opinion that it is improper to cite or rely on the letters sent to Great
Lakes from Casualty Insurance, the company’s workers compensation insurer, as
evidence of Great Lakes’ state of mind with respect to willfulness. He questions his
colleague’s reasoning in seeking to exclude these letters as evidence of Great Lakes’
knowledge or heightened awareness of the requirements of the OSHA hearing
 9
Harmant attempted to excuse the failure to administer annual audiograms as something that just
“fell through the cracks.” However, not only does the record contain five separate letters from Casualty
in little more than a year specifically advising Great Lakes to implement a hearing conservation program,
Harmant also testified that within a span of two years, he had three discussions with Casualty regarding
implementation of a hearing conservation program. Moreover, a month before the anniversary date of the
health fair audiograms, when the company should have been preparing to administer the annual
audiograms, Casualty sent two letters reminding Great Lakes that it had not formally adopted a hearing
conservation program Thus, the record clearly shows that Great Lakes knew of OSHA’s requirement to
conduct audiometric testing and its own failure to do so. Despite this, Harmant testified that prior to the
OSHA inspection, the company never considered drafting a hearing conservation program.
While Great Lakes tries to place part of the blame on its insurer, upon whom it claims it was
relying, it never heeded Casualty’s warnings or took advantage of the opportunities Casualty provided for
assistance in meeting its obligations under the hearing conservation standards. For example, Safety
Director Harmant testified that he relied heavily on Casualty to help him implement a hearing
conservation program. Yet, Vice-President of Finance Ferron, testified that in its letter of November 18,
1994, the insurer mentioned that it was enclosing a copy of a sample hearing conservation program, but
that, in fact, he never received such a sample. Yet, the company failed to seek a replacement for the
missing prototype hearing conservation program offered by Casualty and it never requested the hearing
conservation videotape offered by the company. To the contrary, rather than taking advantage of the
offers from its insurer, both Ferron and Harmant testified that they never even discussed implementation
of a hearing conservation program with other members of management. Indeed, Harmant’s testimony

conservation standards while at the same time relying on the testimony by Great Lakes’
safety director Robert Harmant at the hearing that he knew of OSHA’s requirement for
annual audiometric testing, where Harmant’s knowledge of the OSHA requirement came
exclusively from Casualty! Harmant, who had no formal training in safety and health
prior to becoming safety director in January 1995, testified that he had read the letters
from Casualty and spoke with the insurer about a hearing conservation program
approximately three times, but did not familiarize himself with the relevant OSHA
hearing conservation requirements. The concept that it is improper to rely on these letters
from Casualty, but that it is otherwise okay to rely on the knowledge gained from reading
the letters, does little to advance the policy advocated by Commissioner Visscher of not
penalizing employers for their voluntary efforts to identify conditions that threaten safety
and health.
 10
makes it clear that hearing conservation was given a low priority in favor of efforts designed to abate
safety violations that could result in immediate injury.
Harmant’s lack of safety knowledge is no excuse for the company’s failure to comply. Indeed,
Great Lakes appointed Harmant as Safety Director with full knowledge of his limited safety credentials.
Certainly, being aware of Harmant’s limitations, it might have been reasonable for the company to take
the often repeated advice of Casualty. Yet, the evidence establishes that the company never took or even
considered taking steps to implement a hearing conservation program. Under these circumstances, Great
Lakes’ failure to respond to the numerous admonitions and offers of assistance from its insurer
establishes that the company intentionally disregarded its obligation to conduct annual audiometric
testing.
Judge Schwartz found the violation to be nonwillful essentially because of the good-faith
displayed by Great Lakes in other areas of safety. While Great Lakes’ overall good-faith may be relevant
when determining an appropriate penalty, it does not dispel the evidence that the company consciously
disregarded its obligation to conduct annual audiometric testing.
Although the Secretary cited two separate standards, she exercised her prosecutorial discretion to
cite them as a single willful violation for penalty purposes. See H.H. Hall Constr. Co., 10 BNA OSHC
1042, 1046, 1981 CCH OSHD ¶ 25,712, p. 32,056 (No. 76-4765, 1981). The Secretary’s proposed
penalty of $44,000 assumed that Great Lakes willfully violated both standards. For this reason alone, we
find that a substantial penalty reduction is in order. We have found that the violation was willful only on
the basis of Great Lakes’ failure to provide annual audiograms. In addition, Chairman Rogers finds that
Great Lakes is entitled to credit for good-faith. Aviation Constructors, Inc., 18 BNA OSHC 1917, 1922,
1999 CCH OSHD ¶ 31,933 , p. 47,379 (No. 96-0593, 1999). Although it failed to follow-up the effort,
the company did begin to implement a hearing protection program with the administration of the health
fair audiograms. The record also demonstrates that, beyond its failure to implement a hearing
conservation program, the company has made extensive efforts to provide its employees with a safe
workplace and that it has a good safety record. Great Lakes worked closely with its insurance carrier to
reduce lost time accidents, has a solid in-house safety program, and has won industry safety awards.
When the company earned a rebate from its insurer, it used the proceeds to conduct a health fair for its
employees. It also mandated the use of hearing protection in all areas of the plant where employees were
exposed to noise levels exceeding 85 decibels, and provided pre-employment audiograms to its
employees. Chairman Rogers also agrees with the compliance officer that the gravity of the violation is
low, especially since all employees exposed to noise levels of 85 dba or above were required to wear
 11
hearing protection. Finally, we find the company to be of moderate size with a little over 100 employees.
Considering these factors, Chairman Rogers finds that a penalty of $6000 is appropriate.6

6
Commissioner Weisberg takes issue with his colleagues’ decision to impose but a
$6,000 penalty for a willful violation of the hearing conservation standard that was
based on the employer’s willful noncompliance with one provision of the standard and
its nonwillful failure to comply with another provision of the standard. The Secretary,
alleging that the employer’s noncompliance with both provisions was willful, had
proposed a single penalty of $44,000. The judge, finding the employer’s noncompliance
as to both provisions to be nonwillful, assessed a single penalty of $3,000. Noting that
his colleagues do not explain how they calculated the penalty for this willful violation,
Commissioner Weisberg assumes that they imposed $5,000, the statutory minimum, for
the willful portion of the violation and $1,000 for the nonwillful portion. While
Commissioner Weisberg agrees with his colleagues that a substantially lower penalty
than that proposed by the Secretary is appropriate based on the Commission’s finding
that the employer willfully violated one, but not both, of the cited provisions, he believes,
for the reasons discussed below, that the reduction in penalty assessed by his colleagues
in this case is excessive rather than merely substantial.

Commissioner Weisberg would find that the gravity of this violation is moderate rather
than low. The annual testing provides a basis for evaluating whether an exposed
employee has suffered a “standard threshold shift” in hearing (29 C.F.R.
§1910.95(g)(10)) that would invoke the standard’s “follow-up procedures” (29 C.F.R.
§1910.95(g)(8)). Absent such testing, therefore, any need for interventions, such as
refitting and retraining regarding the proper use of hearing protectors or providing
hearing protectors that offer greater attenuation, would be impossible to detect. 29
C.F.R. § 1910.95(g)(8)(ii)(B). In Trinity Industries, Inc., 15 BNA OSHC 1579 (No. 88-
1545, 1992), 1991-93 CCH OSHD ¶ 29,662 (consolidated), the Commission found that
the employer’s hearing conservation program, which included requiring all exposed
employees to wear approved hearing protection, did not relieve the employer of
complying with the audiometric testing provisions of § 1910.95(g). The Commission
there agreed with the Secretary that audiometric testing is necessary to verify the
“propriety and efficacy of [the employer’s] hearing protection program. Without testing,
[the employer] can only assume that its employees have been properly fitted with
personal hearing protection, that its training and enforcement programs are adequate, and
that its employees have suffered no hearing loss.” 15 BNA OSHC at 1584, 1991-93
CCH OSHD at p. 40,187. Consequently, on remand from a reversal of its nonwillful
characterization of the violation by the Court of Appeals (16 F.3d. 1149 (11th Cir.
1994)), the Commission assessed a penalty of $3000 each for the employer’s failures to
 12

                                           Conclusion
    For reasons given above, we affirm the violation of § 1910.95(g)(6) as willful and find that the

violation of § 1910.95(g)(7) was not willful. A penalty of $6000 is assessed.

provide baseline and annual audiometric tests at a time when the statutory maximum for
a willful violation was $10,000. 17 BNA OSHC 1003, 1004, 1993-95 CCH OSHD ¶
30,643, p. 42,513 (No. 88-1545, 1994). In light of the subsequent increase in the penalty
range for a willful violation to $5,000 - $70,000, Commissioner Weisberg believes that
the reduction in penalty assessed by his colleagues in this case is excessive. Moreover,
by imposing the bare statutory minimum penalty of $5,000 for an employer’s willful
failure to provide annual audiograms, he believes that his colleagues have undermined
the important goals and purposes embodied in the hearing conservation standards.

While Commissioner Weisberg is generally reluctant to accord credit for good faith for
willful violations, he believes that such good faith credit is particularly inappropriate in
this case where the employer’s otherwise laudable efforts to reduce injuries in the
workplace appear to have come directly at the expense of its compliance with the hearing
conservation standards. Great Lakes safety director Harmant testified that hearing
conservation was not a safety priority because it did not involve lost work time and that
he was primarily concerned with those injuries that had a more immediate impact on the
company’s workman’s compensation rates. Commissioner Weisberg notes that this is
like robbing Peter to pay Paul and then receiving good faith credit on the robbery charge
for prompt payment. Moreover, Great Lakes was repeatedly and unambiguously notified
by Casualty over a three-year period that it needed to implement a hearing conservation
program, including providing annual audiograms. Casualty informed Great Lakes that
noise level monitoring conducted by the insurance company revealed that employees in
four areas of the plant were exposed to noise levels of 85-90 dba and employees in
another part of the plant, the bandsaw area, were exposed to noise levels exceeding 90
dba, and advised the company that the results triggered OSHA requirements for a
hearing conservation program. However, Great Lakes did not even consider
implementing a full hearing conservation program as required by OSHA standards until
after the July 1997 OSHA inspection. In these circumstances, the employer’s other
efforts to provide a safe workplace (such as awarding employees $15 for each quarter the
company went without a lost-time accident) cannot offset its willful failure to comply
with the cited standard.
 14

                         ______/s/_______________
                         Thomasina V. Rogers
                         Chairman




                         _____/s/_________________
                         Stuart E. Weisberg
                         Commissioner

Dated: April 28, 2000
VISSCHER, Commissioner, concurring:
Though I agree with the majority that Great Lakes’ violation of 1910.95(g)(6) was willful, I
would base the finding of willfulness on different factors.
In finding that the violation was willful, my colleagues emphasize the letters from Casualty
Insurance, Great Lakes’ workers compensation insurer, which were written to Great Lakes in the context
of providing loss control services. Each of these five letters, with varying specificity, mentions the
requirement for a hearing conservation program. All of the letters also address other issues, either
individual workers compensation claims or recommendations for safety and health programs. Most of the
letters primarily focus on issues other than hearing conservation.
The Commission has in some cases considered the recommendations of an employer’s safety
consultant or insurance carrier in determining whether a violation was willful. In J.A. Jones Constr. Co.,
15 BNA OSHC 2201, 2211-12, 1991-93 CCH OSHD ¶ 29,964, p. 41,030-31 (No. 87-2059, 1993), the
Secretary argued that the testimony of an engineering supervisor from employer’s insurance carrier,
together with his written reports, supported its argument that a violation for failure to have an appropriate
safety program was willful. Though the Commission did consider this evidence, it concluded that the
company had a general practice of addressing deficiencies identified by its insurer which helped the
Commission determine that the violation was not willful. In Pepperidge Farm, Inc., 17 BNA OSHC
1993, 2009, 1995-97 CCH OSHD ¶ 31,301, p. 44,019-20 (No. 89-0265, 1997), on the other hand, the
Commission majority considered memoranda from the company’s insurance carrier concerning injuries
from lifting activities, along with other communications from the company’s own employees, in
determining that a violation of section 5(a)(1) was willful.
In Falcon Steel Co., 16 BNA OSHC 1179,1182, 1993-95 CCH OSHD ¶ 30,059, p. 41,331 (No.
89-2883, 1993)(consolidated), however, the Commission declined to consider recommendations made in
a comparable safety consultant’s report as evidence of willfulness. There the Commission recognized
that:
[i]n most cases, the hiring of a safety consultant will help to establish that an employer was
making a good faith effort at compliance. However, we find no basis for extending such credit
here because we are uncertain how seriously Falcon took the consultant’s advice. At the same
time, we recognize that penalizing employers for their response (or lack thereof) to their own
consultant’s warnings might discourage employers from creating and developing their own
safety programs. Consequently we will ascribe neither credit nor blame for the results of
Falcon’s self audits.

Id. at 1182, 1993-95 CCH OSHD at p. 41,331. The Commission then went on to find the violation willful
on other grounds.
 2
I would follow the Commission’s practice in Falcon Steel in this case. Penalizing an employer
on the basis of records generated by that employer’s voluntary efforts to identify conditions or practices
that may threaten employees’ safety and health might discourage employers from conducting such
evaluations, or at least from conducting evaluations in the thorough and open manner that will be most
effective. I believe this applies whether the employer is aided by a safety consultant or, as here, by their
insurer’s loss control representatives. 1 As a further point of concern, I note that the Secretary acquired
the Casualty Insurance letters by a subpoena that was served during the OSHA inspection. 2 Presumably
the information in these letters was then used by OSHA as a "road map" for the completion of the
inspection. Taking all of these circumstances into consideration, I would follow the lead taken by the
Commission in Falcon Steel, and exclude Casualty’s letters to Great Lakes from my determination of
whether Great Lakes’ violations of section 1910.95 were willful.
That being said, I do agree with my colleagues that Great Lakes’ violation of section
1910.95(g)(6) was willful. The test for a willful violation in the Seventh Circuit Court of Appeals, to
which this case is appealable, is whether the violation involves "a conscious disregard of the regulation."
Caterpillar, Inc. v. Herman, 154 F.3d 400, 402 (7th Cir. 1998). In Caterpillar, the Court of Appeals
wrote that "[i]f Caterpillar (which is to say its managers or supervisors, whose knowledge, Caterpillar
does not deny, is imputed to the company) knew about the violation and could have corrected it but

1
See also Donovan v. General Motors Corporation, GM Parts Division, 764 F. 2d 32, 36
(1st Cir. 1985) (employer’s safety recommendations to employees held not the basis for
employer knowledge of a hazard, as such a rule “would needlessly discourage an
employer from taking every possible safety precaution,”quoting Cape & Vineyard Div.,
New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148, 1154 (1st Cir. 1975));
and Diebold, Inc. v. Marshall, 585 F.2d 1327, 1338 (6th Cir. 1978)("If employers are not
to be dissuaded from taking precautions beyond the minimum regulatory requirements,
they must be able to do so without concern that their efforts will later provide the sole
evidentiary basis for and adverse finding"). I would also note that the Secretary has
recently responded to similar concerns by issuing her Proposed Policy Statement
Concerning the Occupational Safety and Health Administrations’s Use of Voluntary
Employer Safety and Health Audits. 64 Fed. Reg. 54,358 (1999).
2
The inspection that resulted in these citations began on July 28, 1997. The record
indicates that on August 20, 1997, the Secretary issued a subpoena for these documents
to Steven Buck of the Fremont Compensation Insurance Group. The inspection then
continued until October 16, 1997.
 3
failed to do so, then the violation was willful." Id. See also U.S. v. Ladish Malting Co., 135 F.3d 484, 490
(7th Cir. 1998)("willfulness means knowledge that the conditions violate the statute or regulations-actual
rather than imputed knowledge").
The record in this case shows that Great Lakes’ supervisors and managers knew of the
requirement to conduct annual employee audiograms, and also knew that the company was not
conducting audiograms. The record indicates that Great Lakes knew, in the fall of 1994, that it was
required to conduct baseline and annual audiograms, and understood that it was initiating such testing
with what it considered baseline testing at the December, 1994 health fair. Furthermore, Harmant, Great
Lakes’s safety director beginning in January 1995, testified that while he knew of OSHA’s requirement
for audiometric testing, he gave no serious consideration to establishing such a program prior to the 1997
OSHA inspection. Harmant’s admissions, made on the record at the hearing, are sufficient to meet the
requirements the Seventh Circuit Court of Appeals has established for a willful violation. The record
does not show that Great Lakes similarly knew that it was required to compare the 1994 health fair
audiograms with pre-employment audiograms. In fact the evidence suggests it did not know, since it
treated the 1994 audiograms as baseline audiograms, and as my colleagues point out, the standard itself
is not specific as to the requirement that Great Lakes violated. I therefore agree with my colleagues that
the violation of 1910.95(g)(7) for which the company was cited was not willful.
Having concurred in the majority’s conclusion that Great Lake’s violation of section
1910.95(g)(6) was willful and that the violation of section 1910.95(g)(7) was not willful, I also agree
with Chairman Rogers’ view that $6000 is an appropriate combined penalty for these violations.

                                                       /s/
                                                      Gary L. Visscher
                                                      Commissioner

Date: April 28, 2000
 SECRETARY OF LABOR,
Complainant,

                            v.                              OSHRC DOCKET NO. 97-2030

GREAT LAKES PACKAGING CORP.,
Respondent.

APPEARANCES:

      For the Complainant:
              Lisa R. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois


      For the Respondent:
              Jeffrey P. Clark, John G. Pawley, Reinhart, Boerner, Van Deuren, Norris & Rieselbach, SC, Milwaukee,
              Wisconsin

Before: Administrative Law Judge: Stanley M. Schwartz

                                         DECISION AND ORDER


      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651 et seq.; hereafter called the “Act”).
Respondent, Great Lakes Packaging Corp. (Great Lakes), at all times relevant to this action
maintained a place of business at W190 N11393 Carnegie Drive, Germantown, Wisconsin, where it was
engaged in cardboard processing. Respondent admits it is an employer engaged in a business affecting
commerce and is subject to the requirements of the Act.
On July 28, 1997 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Great Lakes’ Germantown worksite. As a result of that inspection, Great Lakes was issued
citations alleging violations of the Act together with proposed penalties. By filing a timely notice
contesting Willful citation 2, items 1a and 1b, which allege violations of 29 CFR §1910.95(g)(6) and
(g)(7), Great Lakes brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
 On April 15, 1998, a hearing was held in Milwaukee, Wisconsin, on the contested items. The
parties have submitted briefs on the issues and this matter is ready for disposition.
Alleged Violations
Willful Citation 2, item 1a alleges:
29 CFR 1910.95(g)(6): New audiograms were not obtained annually for each employee exposed to noise
at or above an 8-hour time-weighted average of 85 dBA:

(a) Employees exposed at or above the 8-hour time-weighted average of 85 dBA (documented during
monitoring performed by Casualty Insurance on September 8, 1994) were given audiograms on
December 15, 1994, but have not been given annual audiograms since that time.

    Willful Citation 2, item 1b alleges:

29 CFR 1910.95(g)(7)(i): Each employee’s audiogram was not compared to that employee’s baseline
audiogram to determine if the audiogram was valid and if a standard threshold shift had occurred:

(a) Employees who were given an audiogram on December 15, 1994 did not have their audiograms
compared to a baseline as determined by their pre-employment audiograms to determine if a
standard threshold shift had occurred.

    The cited standards provide:

    (6) Annual audiogram. At least annually after obtaining the baseline audiogram, the employer shall
    obtain a new audiogram for each employee exposed at or above an 8-hour time weighted average
    of 85 decibels.
    (7) Evaluation of audiogram. (i) Each employee’s annual audiogram shall be compared to that
    employee’s baseline audiogram to determine if the audiogram is valid and if a standard threshold
    shift as defined in paragraph (g)(10) of this section has occurred. . . .

Facts
In the summer or fall of 1994 a noise survey was conducted in the Great Lakes facility by its
insurance carrier, Casualty Insurance (Tr. 19). In September, Casualty Insurance notified Kenneth Ferron,
Great Lakes’ chief financial officer (Tr. 15), that the noise survey showed that five Great Lakes’ employees
were exposed to a TWA [time weighted average] of above 85 decibels. The work areas where the over
exposures were found were: FNE printing press; Flexo-dye cutter; Flexo-folder/gluer; baler (Tr. 22; Exh.
C-1). One employee, in the band saw area, was exposed to noise levels in excess of 90 decibels (Tr. 22;
Exh. C-1). Casualty insurance notified Great Lakes that the levels surveyed trigger OSHA requirements

                                                 5

for a formal hearing conservation program, which must include baseline and annual audiograms, a written
program, employee training and the provision of hearing protection (Tr. 23).
Ferron testified that copies of the Casualty report were distributed to Bruce Peterson, who was
manager for safety and health at Great Lakes at that time, and to Robert Harmant, who became Great
Lakes’ manager of quality and safety in January 1995 (Tr. 15-17, 24, 44).
Hearing protection was provided by Great Lakes, on a voluntary basis, to all its employees prior
to September, 1994 (Tr. 40). Ferron testified that following receipt of Casualty’s report, Great Lakes made
the use of hearing protection in the band saw area mandatory (Tr. 23). Voluntary hearing protection
remained available to all other employees (Tr. 174). Great Lakes also added audiometric testing to its
December 1994 health fair, during which baseline audiograms were obtained (Tr. 23, 70).
In a November 18, 1994 letter, Casualty acknowledged Great Lakes’ intention to implement a
hearing conservation program, and informed Kenneth Ferron that it could supply Great Lakes with a
training video on hearing conservation (Tr. 29; Exh. C-2). The November letter indicates that a sample
written hearing conservation program was attached; however, Ferron testified that he did not receive the
written sample (Tr. 29-32; Exh. C-2).
In a March 31, 1995 letter, Casualty notes that during a February 16, 1995 loss control service call,
Ferron told them that baseline audiograms had been obtained, and that a hearing conservation program was
being developed (Tr. 36; Exh. C-4).
Ferron testified that Harmant was introduced to the Casualty representative as the new Great Lakes
safety contact during the February service call (Tr. 37). Ferron testified that he believed Harmant was
working with Casualty on the program, though he had never spoken to Harmant about hearing conservation
(Tr. 50-52). Ferron stated that his sole purpose in dealing with Casualty was to discuss the terms of
renewal for Great Lakes insurance policy (Tr. 42). Ferron testified that he was not then, and never had been
in charge of safety and health issues at Great Lakes and so had no role in the implementation of a written
hearing conservation program (Tr. 42, 46). Ferron stated that there was no conscious decision not to
implement the required program; the topic simply was never brought up or discussed by management (Tr.
38, 47).
Ferron admitted that no regular audiometric testing was performed at Great Lakes prior to 1994,
though an audiogram was taken during a prospective employee’s pre-employment physical (Tr. 35, 39).
Great Lakes provided no audiometric testing after the 1994 audiograms until after the initiation of the 1997

                                                 6

OSHA inspection (Tr. 25-26, 35). A written hearing conservation plan was not implemented; employees
received no training in the use of hearing protection (Tr. 25). The employees’ 1994 audiograms were not
compared to those taken during their pre-employment audiograms to determine if a standard threshold shift
had occurred (Tr. 39).
Bruce Peterson, now vice president of manufacturing (Tr. 57), recalled the correspondence with
Casualty Insurance, and Great Lakes’ response, i.e. making hearing protection mandatory in the band saw
area (Tr. 61). Peterson testified that following receipt of the noise survey results he tried to obtain a copy
of the relevant OSHA standards for review, but otherwise took no action to implement a hearing
conservation program (Tr. 63-64). Peterson testified that Bob Harmant, who took over Peterson’s safety
responsibilities in January 1995, was responsible for developing that program (Tr. 66). Peterson testified
that he had Harmant read the correspondence from Casualty (Tr. 67). Peterson stated that there was no
conscious decision made not to provide annual audiograms (Tr. 75).
Bob Harmant testified that he had worked in shipping and warehousing at Great Lakes prior to his
appointment as quality and safety coordinator in January 1995 (Tr. 85). Harmant stated that he received
no training in safety and health, but did work with Casualty Insurance, which offered him a selection of
instructional videos on how to organize a safety committee (Tr. 86). Representatives from Great Lakes’
three shifts participated in monthly safety meetings with Harmant and the vice president of marketing (Tr.
86). The committee discussed safety concerns, utilizing a plant-wide safety checklist, and drafted
employee safety rules (Tr. 87, 139).
Harmant was familiar with the Casualty correspondence concerning hearing conservation;
moreover, he spoke with the Casualty representative about a hearing conservation program perhaps three
times in the two years he was safety coordinator (Tr. 89-95). Harmant did receive the occasional memo
about hearing conservation; see Casualty memos of November 20 and 27, 1995 (Tr. 123, 150-52; C-3, R-
6). Nonetheless, Harmant did not familiarize himself with the relevant OSHA requirements, or ever
consider drafting a written hearing conservation program until the OSHA inspection in 1997 (Tr. 89-90,
95). Harmant stated that hearing conservation was not his number one priority (Tr. 90). Great Lakes and
Casualty were more concerned about lost-time accidents, which were affecting their workmen’s
compensation rates (Tr. 123-24, 140). Harmant stated that he put his effort into reducing those numbers;
his failure to arrange for annual audiograms was simply an oversight on his part (Tr. 115, 123). Harmant

                                                  7

put the hearing conservation program on the “back burner,” while waiting for the Casualty loss control
representative to provide him with direction (Tr. 108).
Galen Lemke, an OSHA Compliance Officer (CO), testified that during the 1997 inspection
Kenneth Ferron told him that the 1994 health fair was provided to employees out of funds provided by
Casualty Insurance; because no lost-time accidents had been posted that year, the insurance company was
refunding a portion of Great Lakes’ premiums (Tr. 167). Lemke stated that Ferron told him no audiometric
testing was provided in either 1995 or 1996 because dividends were lower, and because management
determined that the employees would rather have any dividends refunded in a cash payment (Tr. 167-68,
192, 199-202).
Kenneth Ferron testified that Great Lakes never made any conscious decision not to conduct
audiograms, or to pay cash dividends in lieu of providing audiograms (Tr. 258). Ferron stated that there
was never any relation between audiometric testing and insurance dividends (Tr. 261). Ferron denied
making any such statement to CO Lemke (Tr. 264-65). According to Ferron, Great Lakes did implement
a program whereby a $15 cash prize is awarded to employees for every calendar quarter during which there
are no lost time accidents (Tr. 249). Ferron stated that the program was not implemented until 1997, and
was not related to the hearing conservation program (Tr. 249). Ferron stated that it would make no
economic sense to give a cash award in lieu of a $10.00 audiogram (Tr. 265).
Great Lakes cooperated with OSHA in its 1997 investigation, providing records and correspondence
to the OSHA Compliance Officers (Tr. 77-78, 219). CO Lemke admitted that Great Lakes had made some
effort to comply with OSHA hearing protection requirements, in providing and mandating the use of
hearing protection in the band saw area (Tr. 214). Great Lakes has an active safety committee, and has
developed OSHA required safety programs on chemical hazard communications and fire and lock-out/tag-
out hazards (Tr. 227-28). A hearing conservation program was drafted and implemented prior to the
conclusion of the OSHA inspection (Tr. 232).
Great Lakes has no history of serious or willful OSHA violations within the last three years (Tr.
197).
Discussion
Great Lakes admits that the cited standards were violated. It denies, however, that those violations
were willful in nature.

                                                 8

A willful violation is one committed with intentional, knowing or voluntary disregard for the
requirements of the Act, or with plain indifference to employee safety. It is differentiated from other types
of violations by the employer’s heightened awareness of the illegality of the conduct or conditions.
Because the issue of willfulness focuses on the employer’s state of mind, its general attitude toward
employee safety is relevant to the determination. Seward Motor Freight, Inc., 13 BNA OSHC 2230, 1987-
90 CCH OSHD ¶28,506 (No. 86-1691, 1989).
Based on the evidence in the record, I cannot find that Great Lakes either intended to violate the
Act, or that it was indifferent to employee safety. The cited violation, therefore, was not willful. My
reasons follow.
The evidence establishes that Great Lakes’ safety coordinator, Harmant, knew that some kind of
hearing conservation program was required, but Harmant was inexperienced and failed to take the
necessary action to implement the program. Harmant failed to exercise due diligence, believing that Great
Lakes’ insurance carrier would step in and assure Great Lakes’ compliance with OSHA requirements.
Absence of due diligence, or neglect, however, is insufficient to establish willfulness.
The record shows that CO Lemke believed, based on his conversation with Kenneth Ferron, that
Great Lakes made a deliberate decision not to provide annual audiograms, and to give employees cash
prizes rather than the required audiometric testing. His recommendation to classify the cited violations was
based largely on that belief If this were true, a willful violation bordering on criminal would be found.
However, I find no support for Lemke’s position in the record. Based on the observation of the witnesses,
I have concluded that CO Lemke misunderstood the substance of his conversation with Ferron.
Having had the opportunity to observe Kenneth Ferron’s testimony and demeanor at the hearing,
I find him a truly credible witness. Ferron provided a reasonable and plausible explanation of Great Lakes’
safety incentive program, and most importantly pointed out that Lemke’s interpretation of events made no
economic sense. This judge agrees, and finds that the safety incentive program was unrelated to Great
Lakes’ failure to provide audiograms, and shows only Great Lakes’ concern with safety issues.
There is abundant evidence establishing Great Lakes’ concern with employee safety. Great Lakes
had developed required safety programs in hazard communication, fire safety and lock-out/tag-out. Great
Lakes worked with its insurer’s loss control coordinator in an effort to reduce accidents and to comply with
OSHA regulations. During his tenure as safety coordinator, Bob Harmant initiated and served on a plant
wide safety committee, which drafted safety rules for the company. Great Lakes responded to a noise

                                                 9

survey by conducting audiograms and making hearing protection mandatory in those areas of the plant
where employees were exposed to noise levels requiring such protection.
I find that Great Lakes’ failure to implement a hearing conservation program including annual
audiograms resulted from a lack of diligence, and was not intentional. I also find that Great Lakes is not
indifferent to employee safety. Based on these findings, I find that the cited violations were not willful.

Penalty
Where the Secretary alleges that a violation is willful but fails to prove willfulness, an other-than-
serious violation may be affirmed. A serious violation will not be found unless the parties have expressly
or impliedly consented to try the issue of whether the violation was serious. Atlas Industrial Painters, 15
BNA OSHC 1215, 1991-93 CCH OSHD ¶29,439 (No. 87-619, 1991). The Commission has clear authority
to assess an appropriate penalty based on the gravity of the violation, however, regardless of their
classification as serious or nonserious. R & R Builders, Inc., 15 BNA OSHC 1383, 1991-93 CCH OSHD
¶29,531 (No. 88-282, 1991).
Prior to the hearing, Complainant moved to amend the citation to allege, in the alternative, a
“serious” violation of the Act (Tr. 10-11). That motion was denied, and the violation will be affirmed as
“other than serious.”
CO Lemke testified that annual audiograms are designed to measure the standard threshold shift
(STS), i.e. any ten decibel change in the employee’s hearing threshold. Where an employee is exposed to
noise levels above 85 decibels, and regular testing shows such a hearing loss, hearing protection is required
to avoid permanent loss of hearing. Without access to regular audiograms, employees are unable to track
whether they are sustaining such hearing loss, and take appropriate precautions (Tr. 196-98). Lemke
testified that two Great Lakes’ employees sustained such a standard threshold shift between 1994 and 1997
(Tr. 129, 197). Seven additional employees showed a standard threshold shift between their prehire
audiograms and 1997 (Tr. 197). None of the employees showing an STS, however, worked in areas where
noise exposures were measured in excess of 85 decibels: i.e, band saw; FNE printing press; Flexo-dye

                                                10

cutter; Flexo-folder/gluer; baler (Tr. 22, 242-45; Exh. C-1). Therefore, the hearing protection requirement
would not have been triggered in any of the reported STS cases.
None of the employees showing an STS worked in areas of excessive noise; none should have been
required to utilize hearing protection. Great Lakes’ employees working in areas where noise levels were
above 90 decibels, however, did use required hearing protection. The record establishes that the gravity
of the cited violation was overstated, and the proposed penalty excessive. A penalty of $3,000.00 is
appropriate and will be assessed.

                                            ORDER

1. Citation 2, item 1a and 1b, alleging violations of §1910.95 (g)(6) and (g)(7) are AFFIRMED as

“other than serious” violations, and a penalty of $3,000.00 is ASSESSED.

                                                  Stanley M. Schwartz
                                                  Judge, OSHRC

Dated:

                                               11