Fieldbrook Farms, Inc.

Plain-English summary

Fieldbrook produced ice cream and frozen desserts at a New York plant where employees were exposed to occupational noise. The company stopped the plant's annual audiometric testing program despite prior test records, consultant communications, an insurer's warning, and managers who knew OSHA's hearing-conservation requirements. It scheduled testing in 1998 but canceled it for cost reasons, then did not resume testing until OSHA began its inspection. The judge found that Fieldbrook willfully failed to maintain an audiometric testing program and provide required employee training. Both violations were affirmed as willful, with penalties of $32,000 each and a total penalty of $64,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.95(g)(1) and 1910.95(k)(1)
• Outcome: Two willful hearing-conservation violations affirmed; $64,000 total penalty assessed.
• Key point: Repeated warnings, prior testing, and cancellation of scheduled testing for cost reasons showed conscious disregard of known hearing-conservation duties.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


                                                  :

SECRETARY OF LABOR, :
Complainant, :
:
v. : OSHRC DOCKET NO. 99-1752
:
FIELDBROOK FARMS, INC., :
Respondent. :
:

Appearances: Esther D. Curtwright, Esquire
Office of the Solicitor
U.S. Department of Labor
New York, NY
For the Complainant

           Michael R. Moravec, Esquire
           Phillips, Lyle, Hitchcock, Blaine & Huber, LLP
           Buffalo, NY
                   For the Respondent

BEFORE: MICHAEL H. SCHOENFELD
Administrative Law Judge

                             DECISION AND ORDER

Background and Procedural History

   This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§

651-678 (1970) (“the Act”). From February 24, 1999 through August 18, 1999, the Occupational
Safety and Health Administration (“OSHA”) conducted an inspection of Respondent’s work site
in Dunkirk, New York. On August 23, 1999, OSHA issued to Respondent citations alleging
various willful, serious and other-than-serious violations of safety standards appearing in Title
29 of the Code of Federal Regulations (“C.F.R.”). Respondent timely contested the citations.
After assignment to an Administrative Law Judge (“ALJ”) on October 13, 1999, the matter was
designated for mandatory settlement proceedings under Rule 120, 29 C.F.R. § 2200.120 and,
on December 21, 1999, reassigned to a settlement judge. As a result of those proceedings, the
parties settled all issues with the exception of the alleged two willful violations.1 The case was
reassigned to the initial ALJ on August 7, 2000 and an order approving the settlement agreement
was issued on October 13, 2000. The matter was then assigned to the undersigned ALJ on
October 18, 2000. A hearing was held on April 17 and 18, 2001 in Buffalo, New York. No
affected employees sought party status. Both parties have filed post-hearing briefs.
Jurisdiction
It is undisputed that at all relevant times Respondent has been an employer engaged in
the production of ice cream and frozen desserts. In addition, Respondent admits it handles goods
and/or materials which have moved in interstate commerce. I thus find Respondent was engaged
in a business affecting interstate commerce.
Based on the above finding, I conclude that Respondent is an employer within the
meaning of section 3(5) of the Act. Accordingly, the Occupational Safety and Health Review
Commission (“the Commission”) has jurisdiction over the parties and the subject matter.
Factual Background
On June 28, 1996, Fieldbrook Farms (“Fieldbrook”) acquired Dunkirk Ice Cream
(“Dunkirk”). (Tr. 32, 221.) Respondent hired Rosemary Olow as director of human resources
and Zenon Olow as plant manufacturing manager in February 1997.2 (Tr. 190, 223.) As director
of human resources, Ms. Olow was hired in part to put together a system of procedural and
operating manuals for Fieldbrook. (Tr. 215-18.) Ms. Olow also shared safety duties with the
vice-president of operations. (Tr. 190-92, 209-11.) The vice-president of operations supervised
Leslie Guichard, who was primarily responsible for safety programs. (Tr. 179, 190-92, 201.) In
August 1997, Fieldbrook hired Charles Davis as vice-president of operations. (Tr. 146-47.)

    1
     All 11 alleged serious items of Citation 1 were settled, as were all 10 items alleged as other-

than-serious violations in Citation 3. Only the two items in Citation 2, which both allege violations
of OSHA’s occupational noise standard, remain in contest.
2
Rosemary Olow and Zenon Olow are wife and husband. Ms. Olow was promoted to vice-
president of human resources in 1998, the position she held at the time of OSHA’s inspection. (Tr.
192.) Mr. Olow was promoted to corporate director of safety on August 31, 1999. (Tr. 223.)

                                              -2-

In October 1997, Respondent hired Richard Dill to replace Leslie Guichard as the safety
director/human resource manager. (Tr. 31, 179.) Mr. Dill reported to Ms. Olow, rather than to
the vice-president of operations. (Tr. 197.) Ms. Olow testified that Fieldbrook did not have any
written programs when Mr. Dill was hired and that she directed him to become familiar with the
facility and create the necessary safety and health programs. (Tr. 219-21.) According to Ms.
Olow, Mr. Dill began putting a number of programs in place by writing policies and operating
procedures. (Tr. 218-19.) As his supervisor, she discussed with Mr. Dill his activities and the
programs he was in charge of. (Tr. 197.) On November 4, 1997, shortly after Respondent hired
Mr. Dill, James Tippett, a senior loss prevention consultant for Wausau, Fieldbrook’s insurance
carrier at that time, visited and evaluated the facility. (Tr. 12, 15-16.) At all times during his
visit, either Mr. Dill or another Fieldbrook representative accompanied him. (Tr. 17.) Mr.
Tippett spoke to Respondent about various issues related to lowering losses and injury history.
(Tr. 19.)
From 1997 to 1998, Ms. Olow, Ms. Guichard and Mr. Dill received numerous letters
from consultants about employee audiometric testing. (Tr. 59-61, 66-67; C-10-12, 14.) On
October 26, 1998, Mr. Dill scheduled employees to be tested on November 25, 1998, by Enviro-
Health Technologies, Inc. (“Enviro-Health”). (C-14.) In November 1998, however, Fieldbrook
canceled the scheduled audiometric testing. (Tr. 43; C-14.)
On February 24, 1999, OSHA attempted to inspect the facility, but Fieldbrook at that
time would not allow the inspection. (Tr. 30-31.) OSHA’s industrial hygienist (“IH”) returned
to the facility two days later to evaluate the company’s OSHA 200 logs and other information
related to worker injuries and hours worked. (Tr. 40.) When OSHA returned to the facility at 9
a.m. on March 9, 1999 for a full inspection, Fieldbrook representatives would not allow OSHA
to begin the inspection until 2 p.m. when James Greco, Respondent’s chief executive officer,
gave permission to allow the inspection. (Tr. 32-33.) During the inspection on March 22, 23 and
26, 1999, OSHA conducted noise sampling of the facility and dosimeter testing of employees.
(C-6.) Thereafter, in May 1999, Respondent’s insurance company also conducted noise
sampling and dosimetry testing, and those tests confirmed OSHA’s findings. (Tr. 51-53; C-7.)

                                           -3-

Subsequent to its insurer’s testing, Respondent implemented a hearing conservation program
that included audiometric testing and training of employees. (Tr. 189, 228.)
Discussion
The issue in this case is whether the two items in Citation 2 are properly characterized
as willful violations. Those items allege, respectively, violations of 29 C.F.R. § 1910.95(g)(1),
for failing to establish and maintain an audiometric testing program, and 29 C.F.R. §
1910.95(k)(1), for failing to institute a training program for all employees whose noise exposure
equaled or exceeded an 8-hour time-weighted average (“TWA”) of 85 decibels (“dBA”). In
particular, Item 1 alleges that 12 specific employees tested by OSHA were found to have been
exposed to noise levels exceeding the permissible exposure limit of 85 dBA on an 8-hour TWA.
Extrapolating from the 12 tested employees, the IH based the citation on the belief that
approximately 240 employees were exposed to excessive noise. (Tr. 54-55, 81-82, 116-18.) In
exactly the same language, Item 2 alleges that the same 12 employees as well as additional
exposed employees were not provided with a training program for protection against excessive
noise. The Secretary has proposed a civil penalty of $49,500 for each item. It is Respondent’s
position that these violations “do not constitute willful violations, but should be classified as
serious and that the penalties for such violations are excessive and must be reduced.” (R. Brief,
p. 1.) The determination of both of these issues, that is, the classification of the violations and
the penalties for those violations, rests within the sound discretion of the Commission.3
Although the Act does not define the term, the Commission has defined a willful
violation as one committed “with intentional, knowing or voluntary disregard for the
requirements of the Act, or with plain indifference to employee safety.” Williams Enter., Inc.,
13 BNA OSHC 1249, 1256 (No. 85-355, 1987) (citing Asbestos Textile Co., 12 BNA OSHC
1062, 1063 (No. 79-3831, 1984)); see also, Falcon Steel Co., 16 BNA OSHC 1179, 1181 (No.
89-2883, 1993) (consolidated). The Commission further elaborated that
[a] willful violation is differentiated by a heightened
awareness–of the illegality of the conduct or conditions–and by

   3
    See section 10(c) of the Act, 29 U.S.C. § 659(c).

                                           -4-

a state of mind–conscious disregard or plain indifference. There
must be evidence that an employer knew of the applicable
standard or provision prohibiting the conduct or condition and
consciously disregarded the standard....It is therefore not enough
for the Secretary simply to show carelessness or lack of diligence
in discovering or eliminating a violation; nor is a willful charge
justified if an employer has made a good faith effort to comply
with a standard or eliminate the hazard, even though the
employer’s efforts are not entirely effective or complete.
Williams Enter., 13 BNA OSHC at 1256-57.
Fieldbrook does not dispute that it knew of the cited standards in this case.4 Rather, it
argues that it reasonably did not believe that it was in violation of the standards. (R. Brief, p. 9.)
In support of this argument, Respondent refers to some of the factors listed in Appendix G of
29 C.F.R. § 1910.95–the lack of employee complaints, the lack of worker compensation claims,
and “normal conversation” in the plant.5 (Tr. 153-59, 162, 168-69.) Although Respondent did
not have any employee complaints or worker compensation claims dealing with hearing loss,
the company’s argument that it reasonably did not believe it was in violation of the standards,
is far outweighed by reliable, probative evidence showing that Fieldbrook was well aware of its
obligations under the Act.

    4
      The record clearly reflects that at the very least Ms. Olow and Mr. Dill had knowledge of

OSHA’s hearing conservation requirements. (Tr. 77-78, 194.) The unrebutted testimony of the IH
established that Mr. Dill was knowledgeable of the OSHA standards because he had worked as a
health and safety manager for a local food manufacturing plant that had a hearing conservation
program which he coordinated. (Tr. 77-78.) In addition, Ms. Olow testified that she administered the
hearing conservation program at her former place of employment. (Tr. 194.) Although the record is
not as clear as to the extent of Mr. Davis’ knowledge of OSHA’s hearing conservation requirements,
Mr. Davis testified that he was aware of hearing conservation programs from his previous
employment even though he was not involved with the program itself. (Tr. 157.)
5
Appendix G states as follows:
Factors which suggest that noise exposures in the workplace may be at this level
include employee complaints about the loudness of noise, indications that employees
are losing their hearing, or noisy conditions which make normal conversation
difficult. The employer should also consider any information available regarding
noise emitted from specific machines. In addition, actual workplace noise
measurements can suggest whether or not a monitoring program should be initiated.

                                             -5-

Rosemary Olow testified that soon after her employment with Fieldbrook began she
became aware that Dunkirk had conducted annual audiometric testing of employees. (Tr. 211.)
She admitted that Enviro-Health, the company that had tested Dunkirk employees every year for
the previous three years, contacted her in 1997 about audiometric testing. Id. She also admitted
that she “kept asking” Leslie Guichard, Fieldbrook’s safety officer at the time, about the calls,
and that she was told that audiometric testing was a “very informal process.”6 (Tr. 202-04, 211;
C-12.) At one point, Ms. Guichard brought to Ms. Olow a “sealed box” which Ms. Olow
assumed were the previous test results. (Tr. 62-65, 211-12; C-13.) Ms. Olow claimed, however,
that she did not examine the contents of the box.7 (Tr. 212). This claim is simply not credible
in view of Ms. Olow’s position at the facility and her admitted knowledge of Dunkirk’s then
existing annual audiometric testing program.8 Those test results clearly establish that in previous
years someone with managerial authority at the facility instituted an annual audiometric testing
program for a reason–most likely that someone thought it was necessary at the facility. (C-13).

    6
      The IH testified on record without any objections that she spoke with Enviro-Health

representatives who told her they had repeatedly contacted Fieldbrook about the need for audiometric
tests. (Tr. 127.) The IH further testified that these representatives also told her that Ms. Olow had said
that she would schedule audiometric testing in the last quarter of 1997 and that she requested quotes
for the testing. (Tr. 127.) Although Ms. Olow does not remember speaking to Enviro-Health in this
regard, she stated that she may have referred Enviro-Health to Ms. Guichard and Mr. Dill. (Tr. 193-
94.) I specifically find the IH’s testimony regarding her conversations with Enviro-Health to be
reliable, and find that Ms. Olow did indeed have a conversation with Enviro-Health about scheduling
audiometric testing in the last quarter of 1997. In addition, Ms. Guichard herself received two letters
from consultants about hearing and noise testing in March of 1997, which was approximately a year
from the last audiometric test. (C-10-11.) From the substance of those letters, I find that Ms. Guichard
also requested estimates for audiometric testing.
7
The unexamined “sealed box” defies both logic and the simple human experience of
curiosity.
8
As a general matter, I find Ms. Olow’s testimony to be far from credible in many aspects. Not
only were there inconsistencies with the testimony of others and with the documents on record, but
there were also many inconsistencies within her own testimony. In addition, she denied any
knowledge of matters well within the scope of her job duties and responsibilities. Especially revealing
were her claimed lapses of memory as to parts of some events while remembering other facets of the
same subject or transaction. As it will be evident from the discussion infra, Ms. Olow’s testimony
was, at times, simply unreasonable or inherently improbable.

                                               -6-

Yet, despite her knowledge of the repeated prior testing, and without any reason to believe that
such testing was no longer necessary, Ms. Olow failed ensure that Dunkirk’s practice of testing
employees’ hearing was continued as required.
In addition to the foregoing, the evidence demonstrates that Wausau, Fieldbrook’s
insurance carrier, informed company representatives in November 1997 that the facility would
likely need to implement a hearing conservation program. (Tr. 12, 15-16.) Mr. Tippett, the
senior loss prevention consultant for Wausau, testified that he and Mr. Dill discussed at length
the noise levels at the plant and the possible need for a hearing conservation program. (Tr. 19.)
Mr. Tippett further testified that he sent a confirmation report of his visit that stated he was
“reasonably confident that [Fieldbrook] will be required to have a formal hearing conservation
program.” (Tr. 17, 24; C-3.) Respondent does not question the credibility of Mr. Tippett’s
testimony that he sent a copy of the report to company, but claims that its witnesses never saw
the report. (R. Brief, p. 4.) Respondent suggests that, because it was not among the other
documents he provided to OSHA, Mr. Dill did not receive a copy of the Wausau report. (Tr. 51,
57, 59-67.) I am not persuaded by Respondent’s suggestion. The report on its face shows not
only that it was addressed to Mr. Dill but also that copies were sent to both Ms. Olow and
William Wells, Fieldbrook’s president. (C-3.) I find it highly unlikely that none of these
individuals received the report and equally unlikely that Ms. Olow, who deals regularly with
Fieldbrook’s insurers, was unaware of Wausau’s visit and evaluation of the facility.9 I find that
the discussions on noise levels and hearing conservation that Mr. Dill had with Mr. Tippett were

    9
     Although Mr. Davis was not an official recipient of the Wausau report, I find it improbable

that he was not aware of the report or aware of the noise readings conducted at the facility as he
claims. (Tr. 151.) The CO’s testimony clearly contradicts Mr. Davis’ claims. According to the CO,
Mr. Davis told him that Mr. Tippett had taken noise readings and that Fieldbrook had been working
with Wausau for about a year. (Tr. 33-34, 36.) I find the CO’s testimony to be reliable and that Mr.
Davis was at the very least aware of the Wausau noise readings.

                                            -7-

sufficient to alert Respondent to its obligation to test and train its employees as required by the
cited standards.10
Mr. Dill’s actions following the Wausau visit provide further support for a conclusion
that Respondent was well aware that it was required to conduct audiometric testing. About a
month after Wausau’s visit to the plant, Mr. Dill received a letter from a particular company
with respect to the acquisition of an audiometric testing booth. (C-14.) Contrary to Respondent’s
assertion that it often received “pitch” letters from consultants, this letter was clearly a response
to an inquiry Mr. Dill had made. In addition, approximately a year later, Mr. Dill received a
letter from Enviro-Health that confirmed his scheduling of audiometric testing for November
25, 1998. (C-14.) Based upon Mr. Dill’s background and experience, his duties at Respondent’s
facility, his conversation with Mr. Tippett and all of the documents on record, the only rational
explanation for these actions is that Mr. Dill believed that employee exposure to noise was such
that Fieldbrook was required to comply with the occupational noise standard.
Ms. Olow’s testimony regarding the cancellation of the audiometric testing scheduled
for late 1998 also establishes the extent of Respondent’s awareness of its obligations under the
standard. As indicated above, on October 26, 1998, Mr. Dill scheduled employees to be tested
by Enviro-Health on November 25, 1998, but he canceled the test soon thereafter.11 (Tr. 43; C-
14.) Ms. Olow at first asserted that she was not aware that Enviro-Health was trying to conduct
audiometric testing in 1998. (Tr. 197.) She then admitted that Mr. Dill told her he was
scheduling audiometric testing in 1998 and that she may have asked him about the cost, but she
claimed that she did not ask him why testing was necessary or what the noise levels were.12 (Tr.

    10
     Mr. Dill did not testify at the hearing. In light of his responsibility for the facility’s safety

and health programs, however, I conclude that he was a managerial employee such that his knowledge
may be imputed to Fieldbrook.
11
There is no evidence that this testing was ever rescheduled. On the first day of the OSHA
inspection, however, Mr. Dill arranged for testing to be done at the facility. (C-14).
12
Ms. Olow testified that Mr. Dill had to clear expenditures over $500 or $1000 with her. (Tr.
198-99.) Enviro-Health quoted the cost of audiometric testing at $7.25 per person for 200 employees.
(C-14.) At this rate, Mr. Dill would have had to obtain Ms. Olow’s approval, as the total cost of the

                                               -8-

197-99, 209.) I find it difficult to believe that Ms. Olow would ask about the cost of audiometric
testing without also asking why the expenditure was necessary, and Respondent’s assertion that
it was not aware that noise levels in the plant triggered the standard’s requirements cannot be
reconciled with Ms. Olow’s admission that she knew about the testing and the fact that it was
canceled. Moreover, Respondent admits to canceling the test in 1998, but it gives no explanation
for the cancellation. (R. Brief, pp. 3-4.) The only explanation on record is the IH’s testimony that
Mr. Dill gave many reasons for not conducting audiometric tests, including high butter and
cream prices. (Tr. 43, 76-77.) The IH also stated that Mr. Dill told her that Ms. Olow knew that
audiometric testing needed to be done, but that she would not let him schedule it because it was
too expensive. (Tr. 126.) In view of the record and Fieldbrook’s failure to provide an
explanation, I find that the company canceled the testing for cost reasons.
Respondent’s argument that it did not reasonably believe that it was in violation of the
OSHA standard is further undermined by other evidence of record. Charles Davis, the vice-
president of operations, told both the CO and the IH to wear ear plugs when they entered the
facility, and his testimony about why they needed to wear ear plugs at the start of the inspection
is inconsistent with Respondent’s assertion that ear plugs are necessary only in the compressor
room. (Tr. 34, 41-42, 150-51.) Respondent’s assertion is also inconsistent with the IH’s
testimony that she saw signs indicating the need for hearing protection at the entrances to both
the compressor room and the “half- gallon” room. (Tr. 122.) In addition, Mr. Dill gave the IH
a binder of programs that included documents on hearing conservation. (Tr. 57-59, 70-74.)
Respondent asserts that these documents were not adopted by Fieldbrook, pointing out that the
company name on the binder is not Respondent’s official name. Respondent fails to explain,
however, why Mr. Dill, an official of the company, would have given these documents to OSHA
if Fieldbrook had not in fact adopted them as company documents. (Tr. 57-59, 70-74, 187-88;
C-15.) All of these facts contradict Respondent’s claim that it did not reasonably believe that
it was in violation of the cited OSHA standards.

tests would have been at least $1,450, not including the value of employees’ time.

                                            -9-

In considering this matter, it might be viewed that, standing alone, none of the above
incidents showing Respondent’s knowledge should result in the finding of a willful violation.
I am cognizant of the fact that had the evidence established only one, or perhaps fewer of the
above incidents, Respondent’s noncompliance with the cited standards might be viewed as
simply negligent. Taken as a whole, however, the cumulative evidence on this record leads me
to conclude that Fieldbrook was very much aware of its obligations under the Act and that
despite repeated warnings and advisories that it was required to comply with the cited standards
it chose not to do so. While the requirements of the cited standards are not rhadamanthine,
Respondent nonetheless decided not only to take no action towards compliance, but rather elected
to stop the annual employee hearing testing program which had been underway. Moreover, as set
out above, the record shows that the reason the company did not provide the required
audiometric testing of its employees was due to the cost of the testing. Finally, the record shows
that Respondent did not arrange for resumption of audiometric testing at the facility until the
first day of the OSHA inspection which it had delayed. Only then did Mr. Dill contact Enviro-
Health in that regard. (C-14.) Based on the above, I find that Respondent acted “with intentional,
knowing or voluntary disregard for the requirements of the Act” and that the violations in this
case were willful.13 Items 1 and 2 of Citation 2 are therefore affirmed as willful violations.
The Secretary has proposed a penalty of $49,500 each for Items 1 and 2, for a total
proposed penalty of $99,000. When the Secretary’s proposed penalties are contested, as is the
case here, section 17(j) of the Act, 29 U.S.C. § 666(j), expressly grants to the Commission the
sole authority to assess penalties giving “due consideration” to four factors: the employer’s size,
prior history of violations, good faith, and the gravity of the subject violation. The Act does not
establish any particular relative weight to assign to these factors. Roberts Pipeline Constr., Inc.,

    13
      In a similar case, the Commission found that the failure to provide annual audiograms was

willful because the employer had had several letters from and discussions with its insurer about the
need for a hearing conservation program. Great Lakes Packing Corp., 18 BNA OSHC 2138, 2142
(No. 97-2030, 2000). Although Fieldbrook may not have received as many specific warnings about
the need for a hearing conservation program, the notice Fieldbrook received from its insurer, along
with the other evidence of record, warrants the willful classification of the violations in this case.

                                            -10-

16 BNA OSHC 2029, 2030 (No. 91-2051, 1994.) However, of these factors, gravity normally
is the most significant factor. Natkin & Co., 1 B NA OSHC 1204, 1205 (No. 401, 1973); see
also, J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993); Orion Constr.,
Inc., 18 BNA OSHC 1867 (No. 98-2014, 1999). The record shows that Fieldbrook was given
credit for prior history. (Tr. 83.) The record, however, is ambiguous as to Respondent’s size.14
As to good faith, I find that a credit for good faith is not appropriate based on the record. Finally,
I find the gravity of the violation to be relatively low.15 In determining an appropriate penalty,
I also note that an employer who willfully violates the Act or any standard promulgated pursuant
to the Act “may be assessed a civil penalty of not more than $70,000 for each violation, but not
less than $5,000.” Section 17(a) of the Act, 29 U.S.C. § 666(a), amended by Omnibus
Reconciliation Act of 1990, Pub. L. No. 101-508, § 3101 (1990). For these reasons, I conclude
that a penalty of $32,000 for each item is appropriate.16

                                     Findings of Fact
    All findings of fact necessary for a determination of all relevant issues have been made

above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent
with this decision are hereby denied.

    14
     Because Respondent’s business is seasonal, busy in March and slow in August or

September, the number of employees fluctuated depending on the time of year. (Tr. 116-17.) Although
the IH estimated that a minimum of 240 employees were exposed to the hazardous condition, the
Secretary has failed to clearly establish how many employees Respondent employed and how many
employees were actually exposed. (Tr. 55, 116-17, 134, 138.)
15
While I find that loss of hearing is a serious injury, the risk of such an impairment to
Respondent’s employees was minimal. Although audiometric tests of some employees in 1999 and
2000 initially showed standard threshold shifts, subsequent retests of these employees indicated no
standard threshold shifts. (Tr. 229-30.)
16
Respondent urges that a single penalty is appropriate for both items. However, the
Commission has held that violations are duplicative only when they require the same abatement. J.A.
Jones Constr. Co. 15 BNA OSHC at 2207. The abatement of the two items in this case is clearly
different.

                                            -11-

Conclusions of Law
1. Respondent was, at all times pertinent hereto, an employer within the meaning of
section 3(5) of the Act.
2. The Commission has jurisdiction over the parties and the subject matter.
3. Respondent was in willful violation of 29 C.F.R. § 1910.95(g)(1), as alleged in
Citation 2, Item 1, and a civil penalty of $32,000 is appropriate for this violation.
4. Respondent was in willful violation of 29 C.F.R. § 1910.95(k)(1), as alleged in
Citation 2, Item 2, and a civil penalty of $32,000 is appropriate for this violation.

                                        ORDER


     1. Citation 2, Item 1 is AFFIRMED as a willful violation.
     2. Citation 2, Item 2 is AFFIRMED as a willful violation.
     3. A total civil penalty of $64,000 is assessed.


                                                           /S/

                                                   Michael H. Schoenfeld
                                                   Judge, OSHRC

Dated: 8/27/01
Washington, D.C.

                                           -12-