American Sterilizer Co.

Plain-English summary

American Sterilizer monitored employees for noise and lead exposure at its Erie, Pennsylvania plant. It allowed monitored and other affected employees to observe the work and ask questions, but its policy barred union representatives acting in their official capacity from observing despite a standing union request. The Commission held that the noise and lead standards give affected employees a qualified right to choose whether to observe personally or through a designated representative. An employer may prevent observation that unreasonably disrupts production or the sampling process, but it may not categorically choose the observer for employees. Because the company interfered with that choice, the Commission affirmed both other-than-serious violations. No penalties were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(f); 29 C.F.R. § 1910.1025(o)(1).
• Outcome: Noise and lead monitoring-observation violations affirmed as other-than-serious with no penalties.
• Key point: Employees, not the employer, hold the qualified right to designate who observes exposure monitoring, subject to reasonable limits against disruption.

Full text (OSHRC public release)

Docket No. 86-1179, American Sterilizer Co.

SECRETARY OF LABOR.

Complainant,

v.

AMERICAN STERILIZER CO.,

Respondent.

U.A.W. LOCAL 832,

Authorized Employee

Represenative.

OSHRC DOCKET NO. 86-1179

DECISION

Before: FOULKE, Chairman, WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

At issue in this case is whether the American Sterilizer
Company ("Amsco") violated the monitoring requirements of the noise and lead
standards issued by the Secretary's Occupational Safety and Health Administration
("OSHA").

The facts are stipulated. At its Erie, Pennsylvania plant,
Amsco allowed employees who were being monitored for exposure to noise and lead to observe
each step in the monitoring process. It further provided monitored employees with a full
explanation of the procedures and their purpose "[a]t the start of the monitoring and
at various steps throughout." In most cases, other affected employees--those who
worked in the specific area job classification and shift involved--were aware that
monitoring or testing was taking place. These affected employees were also allowed to
observe the monitoring, and their questions were answered. [[1]] However, based upon its
past practice, Amsco declined to permit any union representative in his or her official
capacity [[2]] to observe noise or lead monitoring, despite the union's standing request
to be present.

Following a complaint by officials of Local 832 of the United
Automobile, Aerospace and Agricultural Implement Workers of America ("U.A.W." or
"the union"), the authorized employee representative for collective bargaining
purposes, OSHA inspected the Erie plant. OSHA subsequently cited Amsco for nonserious
violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-678
("the Act") for failing to comply with the observation of monitoring provisions
of 29 C.F.R. �� 1910.95(f) [[3]] and 1910.1025(o)(1). [[4]] The parties stipulated that
during the six months covered by the citation, Amsco had conducted air lead level
monitoring in the plant on seven days, and noise level monitoring on four days. [[5]]

Administrative Law Judge David Knight ruled that Amsco's
decision not to permit a union representative to observe the monitoring violated the
observation requirements of both cited standards. For the reasons given below, we also
find that Amsco's policy violated these requirements. No penalties were proposed by the
Secretary, and we hold that none are warranted in this case.

I. Whether it is the employee's right, or the
employer's right, to designate a monitoring observer

The basis of the citation is Amsco's refusal, based on its
policy, to permit a union representative to observe the monitoring. Amsco argues that its
refusal was permissible under the cited standards. Both standards provide in essence that
"the employer shall provide affected employees or their designated representatives an
opportunity to observe any monitoring of employee exposure" conducted pursuant to
those standards.

We hold that Amsco violated the standards, because it
interfered with the employees' qualified right to designate a monitoring observer. We need
not, and do not, determine in this case how employees who have an authorized employee
representative for collective bargaining purposes will interact with that representative
in designating the monitoring observer. In that regard, the relationship between the
employees and their union goes beyond the scope of the Act.

By way of background, the cited standards were promulgated
under the authority of section 8(c)(3) of the Act, 29 U.S.C. � 657(c)(3), which provides
that:

The Secretary, in cooperation with the Secretary of Health and
Human Services shall issue regulations requiring employers to maintain accurate records of
employee exposures to potentially toxic materials or harmful physical agents which are
required to be monitored or measured under section 6 of this Act. Such regulations shall
provide employees or their representatives with an opportunity to observe such monitoring
or measuring, and to have access to the thereof...

Id . (emphasis added). The legislative history of the
Act does not discuss how that opportunity is to be provided. However, the Senate Committee
Report indicates that section 8(c)(3) was designed for the protection of employees:

Since such exposure [to potentially toxic materials and harmful
physical agents] is a matter of crucial concern to affected employees, provision is also
made for employee observation of such monitoring and for employee access to the records
thereof...

S. Rep. No. 91-1282. 91st Cong., 2d Sess.17 (1970), reprinted
in 1970 U.S. Code Cong. & Admin News 5177.5194.

a. The HCA Preamble

The Preamble to the Hearing Conservation Amendment
("HCA"), which is the origin of section 1910.95(f), [[6]] indicates that the
Secretary considered it to be the right of employees to choose whether to observe the
monitoring personally or through a representative, subject to the qualification that
unreasonable interference with production or the monitoring process would not be allowed.

The hearing conservation amendment requires employers to
provide monitored employees or their representatives an opportunity to observe any noise
exposure measurements that are conducted for compliance with the amendment. Employees may
desire to have someone else observe the monitoring, such as a union health and safety
representative. Under certain circumstances, an outside professional may be allowed to
observe....

........

The Agency understands that in some circumstances a cessation
of work might cause the noise levels to change [due to a large number of employees
stopping work to observe the monitoring], and it would not be in the interest of either
the worker or the employer to take measurements under conditions that did not reflect the
employee's true exposure. For reasons such as these, the amendment (as did the proposal)
specifics that observation shall be permitted so long as it does not interfere with the
monitoring process.

OSHA does not expect that employee observation of monitoring
will be disruptive of the production process or the monitoring itself. While the precise
method in which this employee right is exercised will vary from workplace to workplace, it
is expected that, in most cases, employees will select a single representative to act as
an observer... It has been OSHA's experience in the context of other health standards that
the observation of monitoring by a representative employee successfully implements this
provision without undue disruption. In any event the employee right to observe monitoring
must be tempered with [a] "standard of reasonableness," and observation which
seriously disrupts production or the sampling itself in not permitted.

Occupational Noise Exposure, Hearing Conservation Amendment:
Final Rule, 46 Fed. Reg. 4078.4155-56 (1981) (emphasis added).

b. Amsco's contentions

Amsco's makes a number of arguments to the effect that the HCA
should be read to permit it to freely deny a union representative the opportunity to
observe the monitoring. We must reject Amsco's arguments. The Supreme Court has
specifically held that the Secretary's interpretation of OSHA regulations are entitled to
deference, if reasonable:

In situations in which "the meaning of [regulatory]
language is not free from doubt," the reviewing court should give effect to the
agency's interpretation so long as it is "reasonable,"...Because applying an
agency's regulation to complex or changing circumstances calls upon the agency's unique
expertise and policymaking authoritatively to interpret its own regulations is a component
of the agency's delegated lawmaking powers.

Martin v. OSHRC (CF & I Steel Corp.), 111 S. Ct. 1171, 1176
(1991) (citations omitted). Moreover, the Commission has held that where a standard is
susceptible to different interpretations, "the permeable is the best and most
authoritative statement of the Secretary's legislative intent."Phelps Dodge Corp., 11
BNA OSHC 1441, 1444, 1983-84 CCH OSHD � 26,552, pp. 33,920-21 (No. 80-3203, 1983) aff'd,
725 F.2d 1237, 1240 99th Cir. 1984). In the HCA Preamble, the Secretary interpreted the
HCA monitoring observation requirements to give the effected employees the qualified right
to determine who the monitoring observer will be. We hold that the Secretary's
interpretation is reasonable, considering the qualification it puts on that right, to
prevent unreasonable disruption.

Amsco argues specifically that the use of the term
"'or" in the cited standards gives them the "plain meaning" that the
employer has the choice of whether, the employees or their representatives" shall
have opportunity to observe. Amsco relies on L.E. Myers Co., 12 BNA OSHC 1609, 1612 n.6,
1986-87 CCH OSHD � 27,476, p. 35,602 n.6 (No. 82-1137, 1986) (term "or"
normally disjunctive, rather than conjunctive like term "and"), rev'd on other
grounds, 818 F.2d 1270 (6th Cir. 1987), cert. denied, 484 U.S. 989 (1987). However, the
word "or" does not resolve the issue of who has the right to designate an
observer even assuming that "or" has its normal disjunctive meaning. The
language of the standard does not have the "plain meaning" that Amsco urges.

Assuming for purposes of argument that the standard's language
is not "free from doubt," because of the use of the disjunctive term
"or," the CF & I case, quoted above, makes clear that the Secretary's
interpretation of it should be given effect, so long as that interpretation is reasonable.
The Secretary's statements in the HCA Preamble reasonably resolve ambiguity as to what the
HCA provision was intended to require in this regard. Thus, Amsco's arguments based on the
word "or" in the standards are rejected.

Amsco asserts that "since both the Act and the standards
are performance-oriented and favor allowing employers the flexibility to achieve
compliance in the most efficient manner, these standards permit the employer to determine
whether, in a given situation, the employees or their representatives should observe
monitoring." (Emphasis in original). Amsco argues that this conclusion is supported
by the Preamble to the Secretary's 1983 revisions to the HCA. Occupational Noise Exposure:
Hearing Conservation Amendment: Final Rule, 48 Fed. Reg. 9738 (1988).

The 1983 Preamble states that the revisions were designed to be
more performance oriented and to give the employer sufficient flexibility to adapt a
program suited to the unique needs of the particular workplace. 48 Fed. Reg. at 9741
(1983). [[7]] However, the Secretary's general comments there do not change the previous
interpretation of section 1910.95(f) set forth in the original HCA Preamble, and that
section was not modified in the 1983 revisions. 48 Fed. Reg. at 9777. During that revision
process, OSHA's only comments on the provision cited here were consistent with the
original Preamble. Those comments were made when OSHA lifted the administrative stay on
that provision on August 21, 1981. 46 Fed. Reg. 42,622 (1981). OSHA stated that:

Some comments expressed concern that allowing employees to
observe monitoring would disrupt production because employees would leave their work
stations en masse to watch the procedure. It has not been OSHA's experience that employee
observation of monitoring is disruptive since in most cases a representative of the
employees acts as an observer.

46 Fed. Reg. at 42,624. [[8]] Thus, the Secretary has not
changed the interpretation of the HCA monitoring observation provision contained in the
original HCA Preamble.

Amsco argues in addition that allowing union representatives to
leave their jobs in other parts of the plant in order to observe monitoring could he more
disruptive than allowing the affected employees to observe. It notes that many types of
monitoring, including lead monitoring, must be done over an entire shift. [[9]] As a
result, Amsco argues, plant production could be adversely affected if a union
representative had a right to leave his job at the plant and stay at the monitoring site
throughout the monitoring. Amsco also identifies eight standards in addition to the noise
and lead standards that have similar observation requirements. [[10]] Thus, it argues,
allowing representatives who work elsewhere the plant to observe monitoring could have a
great impact on employers who must monitor under a number of those standards.

The stipulated facts, though extensive nonetheless do not
address the question of whether there were disruption problems in Amsco's plant. Even
there were a disruption problem of the kind that Amsco suggests, it would have a right to
prevent unreasonable interference with production, or the monitoring itself, under the
Secretary's interpretation. There is no indication that Amsco could not deal effectively
with a disruption problem under the Secretary's interpretation.

Amsco further argues that it should not be required to provide
employee representatives an opportunity to observe its monitoring, because it already is
required to give individual employees a great deal of information about noise and lead
hazards under the noise and lead standards. However, that argument challenges the wisdom
of the standard, rather than its legality. Amsco has not established that the standard, as
the Secretary interprets it, is invalid. Clearly, Amsco's argument provides no basis for
vacating the item. E.g., Austin Engg. Co., 12 BNA OSHC 1187, 1188, 1984-85 CCH OSHD �
27,189, p.35,099 (No. 81-168, 1985) (Commission lacks power to question wisdom of a
standard). See, e.g., Associated Builders and Contractors, Inc. v. OSHA, 862 F.2d 63, 68
(3d Cir. 1988) (judicial review of propriety of standard is limited to whether "the
Secretary carried out [her] essentially legislative task in a manner reasonable under the
state of the record before [her]") cert. denied, 490 U.S. 1065 (1989), 494 U.S. 1003
(1990); Phoenix Roofing, Inc. v. Secretary of Labor, 874 F.2d 1027, 1031 (5th Cir. 1989)
("an employer must follow the law even if it has a good faith belief that its own
policy is wiser").

We therefore reject Amsco's challenges to the Secretary's
interpretation of the HCA monitoring observation requirements. So far as the record shows,
the Secretary's interpretation of the cited noise monitoring provision is reasonable, and
we defer to that interpretation. Thus, section 1910.95(f) gives employees the qualified
right to designate the monitoring observer(s).

C. Comparison of lead monitoring observation provision
to HCA provision

The Preamble to the lead standard does not address whether the
employer or employees have the right to designate the observer(s). 43 Fed. Reg. 52,952
(1978). However, there is no reason to interpret the lead provision differently from the
noise monitoring provision. The Secretary, interprets the nearly identical language of the
two standards in the same way. The lead standard was signed by the same Assistant
Secretary for OSHA who signed the HCA. [[11]] The principles of the HCA Preamble regarding
observation rights are equally reasonable under the lead standard, based on this record.
Thus, we defer to the Secretary's reasonable interpretation of the lead provision at
section 1910.1025(o)(l) to give employees the same qualified right to designate the
monitoring observer(s) that they have under section 1910.95(f).

2. Whether the employees' failure to specifically
   designate a representative as monitoring observer affects the outcome

The direction for review raised the issue of whether a
violation may be found where, as here, the employees did not specifically designate a
representative to observe the monitoring. We hold that that factor does not affect the
outcome of this case. As discussed above, Amsco did not give the employees a full
opportunity to freely choose the observer by themselves. In fact, the record does not
indicate that Amsco even offered the employees a specific opportunity to choose who would
observe the monitoring. Thus, the failure of employees specifically to designate an
observer does not negate a violation, and we find a violation under both the cited lead
and noise standards.

As discussed above, we need not, and do not, determine in this
case how employees who have an authorized employee representative for collective
bargaining purposes will interact with that representative in designating the monitoring
observer. We merely hold that Amsco violated the cited standards by interfering with the
employees' qualified right designate a monitoring observer.

There is no claim that the judge cited in classifying the
violation's as nonserious and in assessing no penalties. Accordingly, we affirm
other-than-serious violations of 29 C.F.R. � 1910.95(f) and 1910.1025(o)(1), and access
no penalties.

Edwin G.Foulke,

Jr. Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: January 22, 1992

SECRETARY OF LABOR,

Complainant v.

AMERICAN STERILIZER COMPANY,

Respondent

and

U.A.W., Local 832, Employee Representative

OSHRC Docket No. 86-1179

Decision & Order

Appearances:

For the complainant

Marshall H. Harris, Regional Solicitor

U. S. Department of Labor Philadelphia, Pennsylvania

By: James Swain , Esq.

For the respondent

Edward W. Goebel, Jr., Esq .

McDonald, Illig, Jones & Britton

Erie, Pennsylvania

For the affected employees

Lowell Peterson and Richard W. McHugh, Esq.

General Counsel's Office, UAW

Detroit, Michigan

Statement of Proceedings:

American Sterilizer Company (respondent or AMSCO) was cited
[[1/]] by the Occupational Safety and Health Administration of the U. S. Department of
Labor (complainant or OSHA) for the alleged violation of

29 C.F.R. � 1910.95

Observation monitoring. The employer shall provide affected
employees or their representatives with an opportunity to observe any noise measurements
conducted pursuant to this section. (Emphasis mine)

and

29 C.F.R. � 1910.1025

(o) Observation of monitoring.

(1) Employee observation. The employer shall provide affected employees or their
designated representatives an opportunity to observe any monitoring of employee exposure
to lead conducted pursuant to paragraph (d) of this section. (Emphasis mine)

Specifically, the charge is that the employee representatives
were not permitted to observe the monitoring.

Local 832 in Erie, Pennsylvania, of the United Automobile,
Aerospace, Agricultural Implement Workers of America (UAW) asserted party status and
participated fully.

The Facts

The parties, at the hearing, stipulated the facts:

AMSCO manufactures medical sterilization equipment in Erie,
Pennsylvania, employing approximately 1,600 persons.

It works with union-designated members of the company's Union
Safety Committee on certain safety and health matters as well as with other employees
directly (Tr. 7). It has a full-time Manager of Safety and Plant Protection who is
responsible for health and safety matters at the plant, and who retains consultants to
work with him with regard to health and safety monitoring (Tr. 7).

In 1985, a member of the Safety Committee of the union gave
AMSCO written notice that he wanted to be present at any health or safety monitoring which
took place at the plant (Tr. 4).

In the manufacturing process, lead is used and some operations
produce noise at high levels. Because of the presence of noise and lead, AMSCO monitors
the levels of these agents in its plant. In March and May 1986, AMSCO performed air lead
level monitoring of its employees in certain locations in the plant (Tr. 4). In February
and June, 1986, AMSCO conducted noise level monitoring.

AMSCO did not invite a member of the Union's Safety Committee
to be present at any of these monitorings (Tr. 5). As a matter of company practice, no
union representative in that capacity may observe despite the Union's standing request to
be present (Tr. 5).

At the time testing began, no formal announcement was made to
non-monitored employees of this fact nor of their right to observe nor to obtain an
explanation of the procedures nor to receive the results (Tr. 5).

When monitoring was occurring with respect to a particular job
specification in a specific area of the plant, in most cases, employees who worked in that
area and job classification on that shift were award, that some type of monitoring or
testing was taking place (Tr. 5).

At the start of the monitoring and at various steps throughout, the monitored employees
were given a full explanation of the monitoring procedures and the purpose of the
monitoring ( Tr. 5).

On occasion, other employees who were present at the work area
listened to, or had the opportunity to listen to, these explanations, in accordance with
company policy (Tr. 5).

During the monitoring, affected employees, both being monitored
and not being monitored, asked questions concerning the monitoring procedures and the
purposes of the monitoring, and all such questions were answered by those conducting the
monitoring (Tr. 6).

In accordance with company policy, the monitored employees and
other affected employees who were not being monitored could go and see all steps of the
monitoring being conducted at that time (Tr. 6).

No formal advance notice was given to affected employees of the
ending of monitoring for lead or noise (Tr. 5).

AMSCO posted the results of the monitoring at specific
locations in the areas where the monitoring took place and gave copies to the monitored
employees and to the Union's Safety Committee representatives after the testing was
completed (Tr. 6).

Contentions of the Parties, the Issue, Discussion and
Conclusion:

The Commission has recognized that "and" or
"or" may not mean what the drafter of a statute or regulation intended and, as a
result, applying their usual and dictionary meaning could frustrate the point of the law.

Secretary v. L. E. Myers Co., High Voltage Systems Div., 12 BNA
OSHC 1609 at 1612, n. 6 (1986). While that is not the case here, respondent's analysis
produces a similar result. It argues:

I] "Or" is disjunctive and means here that the
employees have an opportunity to observe the monitoring and, because of the use of the
term "or", the employee representatives are necessarily excluded (Brief, pp.
5-10).

II] Congress in adopting section 8(c)(3) [29 U.S.C. � 657
(c)(3)] under which these regulations were promulgated, used the terms "and" and
"or" with care and intended their normal meanings. In fact, respondent points
out, when this was not sufficient, the complainant changed an "or" to an
"and" in a specific case (providing records to employees and designated
representatives). More importantly, however, the "or" in question here has gone
untouched. (Brief, pp. 11-118, 13-14 in particular) [[2/]]

III] The employer chooses the best manner in which to
accomplish the mandate of the regulation. "By giving the affected employees an
opportunity to observe the monitoring or by giving their designated representative an
opportunity...." (Emphasis in the original, Brief p. 19).

AMSCO must perform many types of monitoring and,

If AMSCO was required to allow the union representative to
leave his job each time monitoring was to take place some place in the plant and to be at
the site of the monitoring, this would double AMSCO's staff at the monitoring site (Brief,
pg. 20).

This would affect production since a man (union representative)
could be away from his job for as long as seven days. Each of the many times AMSCO must
monitor would mean that these absences are multiplied greatly and production would suffer.

Hence, argues respondent, the term "or" is used
purposefully disjunctive, to give the employer the option (Brief p. 21).

IV] Finally, argues respondent, even if AMSCO has violated
these regulations by somehow not properly affording the employees an opportunity to
observe the monitoring, the complainant's recourse is to issue a citation for that
violation but not, ipso facto, to require (emphasis respondent's) union attendance at the
monitoring (Brief pp. 23-24).

Complainant's major point is just that: Respondent violates the
cited standards by denying the union representative an opportunity to monitor the
monitoring. Secondly, complainant argues that respondent's opportunity for employees to
observe was insufficient.

Both complainant and the employee representative (UAW) argue
that the standard's use of "representative" means the collective bargaining
representative or union. And the Act together with its regulations favors a policy of
union involvement. Therefore, respondent may not deny the union an opportunity to observe.
That union is the employee's representative and the disjunctive, "or", is never
taken to mean a prohibition against him (UAW Brief. pp. 12-14).

In fact, runs this argument, "or" in the statute and
regulations simply means that the opportunity to observe must be given

a) to the employee when he is not represented by a union, or

b) to the union when the employee is so represented (Complainant's brief, p. 7 and UAW
brief, p. 11).

The issue developed by these facts and argument is not whether
"or" means "and" but whether "or" must be strictly defined,
i.e., if a union represents an employee that union must be given the right to observe to
the exclusion of the employee; if not, the affected employee himself must be given the
right. Or, may the term be loosely defined, i.e., if a union represents affected
employees, the employer may choose either the employee of the union as the party holding
the right to observe.

The Act, section 8(c)(3) [29 U.S.C. � 657(C)(3)) obliges the
complainant to issue regulations guaranteeing "employees or their
representatives" an opportunity to observe monitoring. The guarantee specifies that
the regulations require employers to insure that opportunity to observe.

The regulations promulgated under this provision and allegedly
violated here require that "[T]he employer shall provide...an opportunity to
observe."

Nothing in the preface to either regulation or, for that
matter, is there any other source or authority indicating that "or" necessarily
excludes the employee if he is represented by a union as claimed by the complainant and
the employee-representative. While union representatives play definite and inclusive roles
as these parties point out, those roles are not exclusive.

The Commission's rule 22 grants limited exclusiveness to the
union as a party before it. But, should the union elect not to participate, individual
employees may become a party. See, Secretary v. U.S. Steel Corp.,11 8NA OSHC 1301, which
overruled the holding in Secretary v. Babcock & Wilcox, 8 BNA OSHC 2102, that where a
union which elected not to participate, the individual employee could not become a party.
In the U.S. Steel Corp., above, Chairman Rowland points out that where Congress intended
the union to be the exclusive actor for employees, it accomplished that intent citing 29
U.S.C. � 669(a)(6) ".. a written request by any employer or authorized
representative of employees...." 11 BNA OSHC at 1364, n. 4.

Further, the preface to the final regulation on noise exposure
(of which, administrative notice is being taken) shows that complainant considered that
observing the monitoring process to be a basic right of the employees as well as the
explanation of the process. 48 F.R. at 9752. Workers who observe then become more aware of
the hazard and, in turn, increase the effectiveness of the program. Id Or, an employee may
desire to have someone else observe such as a union health and safety representative. 46
F.R. at 4156. Those, persons, too, are entitled to an explanation of the process. Id.

Thus, it does not appear that the framers of the regulation
intended any party to have exclusive rights. The right to observe is the employee's right
which the employer must accord. The employee may wish to have his representative observe
which the drafters acknowledged by assuring "the affected employees or their
[designated] representatives" the right to observe.

This regulation, I conclude, allows the employee to elect to
have his representative observe the monitoring in his stead.

By the very same token, the employer may not sua sponte elect
between the employee and his representative and satisfy the demand of the regulation. As
noted above, the right is the employee's or his representative if the former so chooses.

Hence, "or" is used in the Act and its regulations in
its disjunctive sense: the employee himself must be given an opportunity to knowledgeably
observe the monitoring or elect to have his representative so observe in his stead. The
employer may not choose who shall observe; nor may the union claim to be the exclusive
observer. [[3/]]

But the employee's choice is not unfettered. For example, with
regard to the noise standard, complainant noted in the rule-making proceeding the problem
also described in respondent's brief--that

A number of comments of suggested that the observation
provisions would be disruptive to the production process and to the monitoring itself. 46
F.R. 4156

These comments included possibilities that all workers might
exercise their rights so that machinery would not be operated; or the employees might
interfere with the monitoring process by stopping work to observe and the entire process
might become too expensive for the employer. Id.

While complainant, according to this preface to rule, did not
expect any disruption in the production process or the monitoring itself because the
likely event would be that "employees would select a single observer to act as an
observer" (46 F.R. 4156, col. 3), it was acknowledged that the situation will vary
from place to place but:

In any event, the employee right to observe monitoring must be
tempered with "standard of reasonableness," and observation which seriously
disrupts production or the sampling itself is not permitted. Id., col. 3.

Since it appears that complainant (1) had before it a proposal
for exclusive representation at observation, (2) elected to leave this to the employee's
choice for the specified reason of enhanced safety awareness and (3) tempered that choice
because of the possibility that the development of some situations would emasculate the
effectiveness of the regulation's purpose and acknowledged that a standard of
reasonableness must govern, then "or" in the regulations must mean that either
the employee or one of his choosing may observe the monitoring providing the production
process or monitoring itself is not unreasonably upset by the observation. Synthetic
Organic Chemical manufacturers Assoc. v. Brennan, 503 F.2d 1155, 1159-60 (1974)

Applying this to the issue presented produces the result that

(1) Respondent violated the standards cited by unilaterally
permitting only the employee to observe the monitoring and excluding the employee's
representative without regard to the employee's privilege of election (stipulated fact
that no union representative in that capacity may observe as a matter of company policy);
and

(2) The union has no exclusive right to observe by virtue of
its position as the employee representative. This depends on the employee's election and
that the observation may not disrupt the process of production or monitoring.

Therefore, the order below affirms the citation. How future
observation of the monitoring will be must first be left to the parties' (employer and
employee) determination. Whatever system is devised must be reasonable in terms of the
respondent's needs and the purpose of the regulation. Hence, should another citation
erupt, the issue there should be only the reasonableness of the observation process
developed.

ORDER:

Based on the stipulated facts and conclusions of law reached
after considering the parties' arguments and proposals, which to the extent shown are
adopted or rejected as having insufficient support in the preponderance of the evidence or
precedent, it is ORDERED that the citation issued August 14, 1986, alleging
other-than-serious violations of 29 C.F.R. � 1910.95(f) and 1025(o)(1) be affirmed with
the last sentence of these allegations of ["The Employee Representatives (U. A. W.)
were not permitted to observe monitoring "] deleted.

DAVID J. KNIGHT

Judge, OSHC

Dated: March 18, 1988

Boston, Massachusetts

FOOTNOTES

[[1]] After the monitoring, the results were posted in the
monitored area, and copies were given to monitored employees and union representatives.

[[2]] The term "union representative," as used
subsequently in this decision, refers to an individual acting in his or her official
capacity.

[[3]] � 1910.95 Occupational noise exposure.

(f) Observation of Monitoring. The employer shall provide
affected employees or their representatives with an opportunity to observe any noise
measurements conducted pursuant to this section.

[[4]] � 1910.1025 Lead.

(o) Observation of monitoring. (1) Employee observation. The
employer shall provide affected employees or their designated representatives an
opportunity to observe any monitoring of employee exposure to lead conducted pursuant to
paragraph (d) of this section.

[[5]] The duty to monitor employee exposure arises under
section 1910.95 (d) of the noise standard and section 1910.1025(d) of the lead standard.

[[6]] That provision originally was designated as section
1910.95(i). 46 fed. Reg. 4161, 4162 (1981).

[[7]] The passage relied on by Amsco states in full:

The revised amendment being issued today has adopted a
performance approach insofar as possible. This is in marked contrast with the detailed
specifications of the January [1981] amendment, which did not fully consider the mandate
of Section 6(b)(5) of the Act that standards he expressed in terms of performance criteria
where practicable. The revised amendment generally allows the employer to choose his own
method of complying with the obligations imposed by the amendment This approach is
particularly appropriate where the standard applies to many different types of industrial
settings and work environments. The flexibility inherent in the performance approach
allows the employer, who is familiar with the unique circumstances and problems of his
workplace, to use this knowledge to develop the most effective and efficient mechanism to
protect his employees. The employer is given sufficient leeway to adopt a hearing
conservation program which will be compatible with all of the peculiarities of the work
environment and the needs of his business, rather than having to implement a number of
requirements that would be inadequate, inappropriate or unnecessary in his working
environment, merely because they are required by the standard. The performance approach
allows and even encourages employers to develop creative and innovative methods of meeting
the obligations imposed by the amendment.

Id. (emphasis added)

[[8]] In the 1983 HCA revisions, OSHA revoked part of the
original noise monitoring observation provision (1910.95(i)(2)). 48 Fed. Reg. at 9777.

However, the provision cited here was not changed. The revoked
provision had stated specific rights of observers to have the procedures explained,
observe all relevant steps, and record the results. See, 46 Fed. Reg. at 4162.

[[9]] For example, full shift monitoring is required in at
least some situations for:

Lead (� 1910.1025(d)(l)(ii);

Asbestos, (� 1910.1001(d)(6);

Inorganic arsenic (� 1910.1018(c)(l));

Coke oven emissions (� 1910.1029(c)(1));

1.2 dibromo 3 chloropropane (� 1910.1044(f)(l));

Acrylonitride (� 1910.1045(c)(l)); and

Ethylene oxide (� 1910.1047(d)(l))

[[10]] The other standards are:

Asbestos (� 1910.100 (n)(1)).

Vinyl chloride (� 1910.1017(d)(5)):

Inorganic arsenic (� 1910.1018(r)(1)).

Coke oven emissions (� 1910.1029(n)(1)),

Cotton dust (� 1901.1043(2)(l)):

1.2-dibromo 3-chloropropane (� 1910.1044(q)(1):

Acrylonitrile (� 1910.1045(r)(1)) and

Ethylene oxide (� 1910.1017 (l)(1)).

[[11]] The lead standard was promulgated on November 14, 1978.
The HCA was originally promulgated on January 16, 1981.

[[1/]] Under the Occupational Safety and Health Act of 1970, 29
U.S.C. �� 651, et. seq., citations are issued after inspection and may be contested
within a 15-working day period. See � 658(a) and 659(a). The citations were issued on
August 14, 1986, and respondent's notice of contest is dated August 27, 1986. At the
hearing all parties were represented by counsel. Final briefs by all were filed by
February 12, 1987. Respondent, in its answer to the complaint, admits to the jurisdiction
of the Commission.

[[2/]] Respondent's point that Secretary v. RSR Corporation.,
11 BNA OSHC 1163, where the Commission affirmed a decision holding "or" means
"and", is not controlling here because that question was specifically excluded
from Commission consideration on appeal. The decision only dealt with it from an aspect of
willfulness. See 11 BNA at 1180.

[[3/]] That only the employee representative be allowed to
observe was suggested to the complainant in the rule-making proceeding preceding
promulgation of the noise standard. It is not reflected in the final standard. It is not
reflected in the final standard. 46 F.R. 4156, col. 3.