BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety & 

      Health Division			)  Docket No: SH90191

    Plaintiff,				)  CITATION NO. J380101290

THE BRAND CO. INC., Defendant.		)  OPINION AND ORDER



Pursuant to Notice, hearing was held on February 10, 1992, and
February 11, 1992, in Portland, Oregon. Kevin Shuba, Assistant
Attorney General, represented the Oregon Occupational Safety and
Health Division and Roger Luedtke represented the Brand Company.
Exhibits A-K and 118 were admitted at hearing. The record was
closed on June 2, 1992, after receipt of Exhibit K, a survey of
OSHA's records; Exhibit 18, a copy of the corporate safety
program; Exhibit 19, workers' compensation documents for Dale
Dixon; Exhibit 20, Craig Dwyer's deposition, Exhibit 21,
Randolph Evans' deposition and written closing arguments.



                          ISSUES:



The employer contests a nine page Citation Optional Report No.
J380101290, issued August 17, 1990, at the U. S. Veterans
Hospital in Portland, Oregon. At hearing, OSHA amended the
citation to drop items 1-4, 3-12 and 3-14 and consolidated 1-3
and 1-8 to carry a single penalty of $150.00. The employer does
not contest items 1-1, 1-2, 1-7, 3-10 and 3-13. The employer
does contest the combined 1-3 and 1-8, 1-5, 1-6, 2-9 and 3-11.
The employer primarily contests 2-9, a charged willful violation
for alleged failure to monitor asbestos exposure.



                           FACTS:



The Brand Companies is a national construction company, hired by
the Veterans Administration to remove and abate asbestos in five
old buildings that were being demolished. The project took
several years and ran from November 1989, to June 1991. Hall
Kimbrell was hired by the Veterans Administration to oversee the
project. The Brand Companies hired HAZCON, an independent
consulting firm, that had certified many of the asbestos
workers, to perform the asbestos monitoring. The Brand Company
had a safety engineer on the site and regularly held safety
meetings.



HAZCON had technicians on the work site that placed area
monitors in the asbestos containment areas. The technicians also
randomly placed monitors on individual workers. Occasionally the
HAZCON technicians entered unannounced into the containment
areas to be sure that the air monitors were being used
correctly. The results of the air monitoring was posted and
individuals wearing personal monitors were required to sign off
on the sampling results.



In late 1989, and again in early 1990, HAZCON technicians
suspected that the air monitoring was incorrect and being
manipulated, which was not an uncommon practice in the industry.
HAZCON informed the Brand Companies. The Brand Companies
discussed the problem at safety meetings and threatened to fire
employees tampering with the air monitoring equipment.



HAZCON changed technicians on the job and began using pumps with
timers that could not be turned off without detection. The
practice of tampering with the individual air monitors, which
involved two Brand leadmen, continued. In early summer 1990,
several Brand employees went to the media with complaints.
OROSHA then conducted a three day investigation in late July
1990, that resulted in the citation involved in this case. When
the Brand Co. learned of the names of the leadmen involved in
the tampering from the OSHA Investigator at a conference in
August 1990, the company fired the individuals involved and
changed its practices to prevent further occurrences of air
monitoring tampering.



                         OPINION:



1) Item 2-9, violation of OAR 437-03-001. 29 CFR 192658 (3)
willful $10,000 fine.



OROSHA alleges that the employer did not conduct daily
monitoring representative of the exposure of each employee
assigned to work within the regulated area as evidenced by
employees being instructed to turn off their air monitoring
pumps or perform work with less exposure when wearing the pumps.



The standard provides: "The employer shall conduct daily
monitoring that is representative of the exposure of each
employee who is assigned to work within the regulated area.
Exception: when all employees within a regulated area are
equipped with supplied air respirators operated in the positive
pressure mode, the employer may dispense with the daily
monitoring required by this paragraph (Exhibit 919)."



The employer argues that it did not violate this standard and
that the violation should not be characterized as willful.
OROSHA acknowledges that the employer through HAZCON daily
monitored asbestos levels by area sampling of air and personal
sampling pumps, randomly placed on workers in the containment
area, but contends that the monitoring was not representative of
the air conditions because two leadmen instructed employees to
not wear their air monitoring units, turn them off, tape them or
ordered them to work in clean areas while wearing them in
knowing disregard for the standard. The OROSHA investigator
explained the importance of the monitoring process in
determining the level of asbestos in the work area to determine
the type of respirator needed to protect the workers. He based
this citation upon several workers' statements. These workers
testified at hearing.



The Brand Company admitted that two of its lead foremen, Dan
Heffernan and Skip Larson, inside the containments where
abatement was occurring were involved in the tampering of air
monitoring pumps, but contends that the company was unaware of
their acts until the closing conference with the OROSHA
investigator, after which they were disciplined by firing.



I find that the Brand Company did not violate this standard.
There is no evidence that the sampling was not representative,
as required by the standard, even assuming that some employees
tampered with their air monitoring pumps. OROSHA did not do any
sampling and did not point out in what way HAZCON's sampling
(Exhibit K) was not representative. The sampling results do not
establish by themselves that the sampling was unrepresentative.
There is no evidence that the area samples were affected in any
way. HAZCON certified that all testing was performed and working
conditions were safe.



While there is some evidence that individuals tampered with
their individual machines and some samples were not accurate,
the HAZCON technicians, including those called by OROSHA, felt
that the sampling was overall representative. HAZCON technicians
placed the air monitoring pumps of workers randomly and after
February 1990, used pumps with timers that would indicate if the
pumps had been turned off during the time that they were to be
worn. There was no direct evidence of tampering after February
1990, according to HAZCON employees and the employer's field
engineer, who oversaw the air monitoring results for the project
manager, but just reports from individual workers who said that
they continued to turn off their pumps or tamper with them in
accordance with their leadman's direction.



Of the five employees who testified for OSHA, one could only
recall two times when he pursued this practice, one refused to
turn the pump off and the others who were designated to wear the
pumps more frequently may not have been representative of the
samples taken. I do not find that the testimony of the five
employees called to testify by OROSHA constitutes evidence of
widespread tampering. Several workers, one interviewed by the
OROSHA investigator, reported that they were not asked to turn
off their air monitoring units.



Many people moved through the containments unannounced,
including HAZCON employees and the employer's field engineer,
but no tampering was noted, even though these people were
looking for it. These people entered the containment area,
unannounced. Some workers' testimony that they always knew in
advance of the technicians' entry was contradictory and I do not
accept it. As one worker pointed out, when they were working in
the containment, at times it was difficult to tell who was
there. If the tampering were so widespread that it invalidated
the sampling results, I think that these people would have
detected it. In addition, there is no real evidence of a
conspiracy by Brand to tamper with the air monitoring to meet
project deadlines. The only evidence was that tampering with air
pumps is a common practice among asbestos workers.



The employer also contends that the citation is invalid because
it was issued more than six months after the period for which
the alleged violation occurred in violation OROSHA's field
compliance manual (Exhibit 142). I do not find that this is a
valid reason to overturn the citation. As pointed out by OROSHA
the manual serves as a guideline and has not been adopted as an 
administrative rule.



ORS 654.071 (3) allows OSHA to issue a citation after 180 days
following the director's knowledge of the occurrence of the
violation, which in this case was in July 1990. Therefore the
citation was timely. In addition, there is some evidence from
the employees who testified for OSHA that the practice of
tampering with the personal air sampling occurred into the
spring of 1990.



For a similar reason, I reject the employer's argument that if
the exposure had occurred within six months prior to the
citation, the citation is invalid because the alleged violation
was not observed or shown to be continuing as part of an
integral part of the employer's operations. Even though Officer
Jackson did not determine that the condition continued to exist
at the time of his inspection, and there was evidence that the
employer after learning of the problem took steps to eliminate
it, the manual is not mandatory and there was some evidence from
OROSHA's witnesses that the practice continued into the spring
of 1990.



Finally, the employer objects to the violation characterization
as willful. OAR 437-01-015 (55) (b) (A) defines a willful
violation as:



"A violation that is committed knowingly by an employer or
supervisory employee who, having a free will or choice,
intentionally or knowingly disobeys or recklessly disregards the
requirements of a statute, regulation, rule standard or order."



OROSHA has the burden of proving the employer's knowledge as set
forth in the regulation; Skirvin v. APD, 32 Or App 109 (1978).
OROSHA contends that the leadmen involved in the tampering acted
as agents for the employer and therefore the knowledge of the
leadmen is knowledge of the employer. Knowledge of the leadmen,
however, is not necessarily knowledge of the employer; PP&L v.
OSHRC, 511 F2d 350 (1984); Ocean Electric Corp.. v. Secy. of
Labor; 594 F2d 396 (1978).



I find that OROSHA has not proved that the employer knew or
reasonably could be charged with knowing of the occurrence of
the air tampering incidents or could have reasonably foreseen a
violation of its statutory duty under the act to provide
representative air monitoring. OROSHA has not shown that the
employer intentionally or knowingly disobeyed or disregarded the
requirements of the law.



Several witnesses testified that employee tampering with air
monitoring is widespread in the industry. While the employer was
informed by HAZCON about possible tampering with the individual
air monitors in late 1989, and again in early 1990, the employer
called safety meetings and strongly urged that the employees
comply with the monitoring or be fired. There was no evidence of
a continued practice of tampering, according to HAZCON
employees. The employer took affirmative steps to comply with
the act. It hired an outside monitoring firm, informed its
employees to comply with the act at safety meetings, made
reasonable efforts to discover violations, looked for
noncompliance after it was informed by HAZCON of the possible
tampering, cooperated in OSHA's investigation and enforced the
rules by suspending and firing the leadmen once it knew their
names.



The employer's safety program was not a sham as evidenced by the
safety manual (Exhibit 18) and the records of the safety
meetings (Exhibit A). Air monitoring was covered in several of
the meetings in addition to the two meetings where tampering was
specifically condemned. A Brand safety engineer conducted a
safety inspection in December 1989, which included air
monitoring (Exhibit A-24). There is no evidence of past
violations by Brand. While some of the employees testified that
they were urged to tamper with the air monitoring pumps to speed
production, there is no evidence that there was a conspiracy by
the company to thwart the air testing. Employees were provided
with protection that exceeded that indicated by the sampling
results and there is no evidence that production time was a
problem on the project.



Furthermore, there is no indication that the employer knew of
any tampering that occurred after early 1990, or that the
employer knew that two leadmen were involved in the tampering
until after being informed by the OSHA officer in July 1990.
While Mike Tackett testified that he told his supervisors and
that the employer's field engineer told a Brand supervisor,
Craig Dwyer, to turn off air monitoring pumps, I do not accept
his testimony. The supervisors who testified at hearing denied
knowing about the tampering. Both Valerie Estep and Craig Dwyer
denied any such conversation took place in which Dwyer was
instructed to turn off pumps. Mike Tackett's credibility is
eroded by the inconsistencies in his testimony, his hassles with
the company over his wage and hours and his theft of copper from
the company that led to his firing. Also Kevin Wilson testified
that he heard Scott Nelson tell Dan Heffernan to turn off pumps,
but I do not accept this testimony as it is inconsistent with
the evidence from other witnesses that Scott Nelson was angry he
learned of possible tampering and threatened at a safety meeting
to fire employees for engaging in this practice.                
                        



The leadmen and the employees acted contrary to the employer's
instructions. There is no evidence that they acted on behalf of
the company or that the company knew that they were violating
the standard in derogation of the company policy. Thus the
knowledge of the foremen cannot be imputed to the company.



2) Item combined 1-3 and 1-8 violation of OAR 436-03-001. 29 CFR
126.58 (e) (6) (ii), serious $150 fine.



OROSHA alleges that the employer did not ensure that a
designated competent person supervised all employee exposure
monitoring to insure that proper sampling procedures were
followed or the integrity of the enclosure for a regulated work
area.



The standards provide: "1-3. The employer shall designate a
competent person to perform or supervise the following
duties:...(D) Supervise all employee exposure monitoring
required by this section; (Exhibit 9-18)"



"1-8. The employer shall designate a competent person to perform
or supervise the following duties;...(B) Ensure the integrity of
the enclosure; (Exhibit 9-18) "



A "competent person" is defined in 29 CFR 126.58 (b) as one who
is capable of identifying existing asbestos in the workplace and
who has the authority to take prompt corrective measures to
eliminate it, with duties of establishing the negative pressure
enclosure, ensuring its integrity, controlling entry to and exit
from the enclosure, supervising employee exposure monitoring,
ensuring that employees wear appropriate personal protective
equipment, are trained in its use and the appropriate methods of
exposure control, use hygiene facilities and decontamination
procedures specified in the standard and ensure that engineering
controls in use are in proper operating condition and are
functioning properly (Exhibit 9-16).



OROSHA does not dispute that Brand appointed a person to act in
the capacity of a "competent person" but argues that the person
did not fulfill the minimum duties required of establishing
negative pressure enclosure and insuring its integrity and
supervising the employee exposure monitoring required by the
standard.



OROSHA reads too much into the standard. The standard just
requires that the employer appoint a person with specified
qualifications to perform certain functions and does not require
that they do the functions at a certain level. In addition there
is no evidence to support OROSHA's argument that the competent
person did not adequately perform his duties.



OROSHA cites the torn enclosure noted by Officer Jackson as
proof that the competent person did not adequately insure the
integrity of the enclosure. I accept the testimony of the other
witnesses that the "negative air" in the enclosure was good and
such small tears in the plastic caused an intake of exterior air
rather than an exhaust of the enclosure air. Officer Jackson did
not test the air at the tears to determine if there was a breach
of the enclosure's integrity. There is no evidence that the
employer was cited for exceeding threshold levels.



In regard to the OROSHA's allegation that the competent person
did not adequately supervise the air monitoring, the employer
argues that this is an improper duplication of Item 2-9 and
OROSHA can only impose one penalty as recognized in a decision
Guardian Roofing, CCH 28,720 (9/89) and recognized in the Oregon
field compliance manual (Exhibit 146). I do not have to decide
the question posed by the employer, because I do not find that
the employer violated the standard cited. There is no evidence
that the appointed competent person did not adequately supervise
the air monitoring. The employer did not violate the standards
cited in this item.



3) Item 1-5 violation of OAR 437-030-001 29 CFR 1926.58 (ii)
serious $150 fine.



OROSHA alleges that the employer did not permit each employee
who uses a filter respirator to change the filter elements
whenever an increase in breathing resistance was detected, or an
adequate supply of filter elements was not maintained for this
purpose as evidenced by leadmen telling employees to tap out
their  filters.



The standard provides that the employer shall permit each
employee who uses a filter respirator to change the filter
elements whenever an increase in breathing resistance is
detected and shall maintain an adequate supply of filter
elements for this purpose (Exhibit 9-21).



I do not find that the employer violated this standard. The
evidence indicates that an adequate supply of filter elements
were available and employees were permitted to change filters
when necessary. At a safety meeting employees were told to take
as many filters as were necessary (Exhibit A-59). Even some of
the workers called by OROSHA testified that they were allowed
all the filters they needed and did not indicate that they were
asked to tap out the filters.



Dale Dixon testified that Dan Heffernan told him to tap out the
filters, but his testimony is not corroborated by other
witnesses, and he was found not credible in his own workers'
compensation case by another referee. Randolph Evans also
testified that Skip Larson told him to tap out filters, but I do
not find his evidence on this point credible as it is not
supported by the rest of the evidence and because of the other
inconsistencies in his testimony.



Even if some employees were told by the two leadmen involved in
the air monitoring tampering to tap out their filters, this does
not mean that this was a company policy or practice or that the
employer knew about the practice.



violation of OAR 437-03-001. 29 CFR 192658



4) Item 1-6 (q) (1) (i) serious $500 fine.



OROSHA alleges that the employer did not make appropriate
attempts to utilize wet methods, use wetting agents, or use
removal encapsulates to control employee exposure during
asbestos handling as evidence by employees interviews and
documentation of refusal of Brand Site Services Inc. waste at
Saint Johns landfill due to material being "very dry"



The standard provides that the employer shall use one or any
combination of specified control methods including use of wet
methods, wetting agents, or removal of *encapsulant to control
employee exposures during asbestos removal and cleanup
(Exhibit9--19).



OROSHA argues that the employer did not use the wet method or
wetting agents to control exposure during asbestos removal as it
was required by 29 CFR 1926.58 (e) because of its lack of
accurate air monitoring. It relies upon the testimony of workers
that they saw visible clouds of asbestos throughout the VA
project and that at times they were not able to use water.



I do not find that the employer violated this standard. I have
already found that OROSHA did not prove that the air monitoring
was inaccurate. It also did not prove that the exposure levels
exceeded that allowed. Wet methods are only one method of
control that is required to achieve compliance with exposure
levels. There is evidence that negative air was used as well as
water to achieve the proper exposure levels. There is no
provisions for what constitutes appropriate wet methods. There
was evidence that water was available for use and was used on
the project. The presence of dry containers at the landfills
does not mean that proper wet methods were not used without
additional evidence as to when the material was removed and how
long it was stored before being transferred to the landfill.



5) Item 3-11. violation of OAR 437-03-001. 29 CFR 1926.58 (n)
(2) general $300 fine.



OROSHA alleges that the employer did not keep an accurate record
of all measurements taken to monitor employee exposure to
asbestos as the records were not accurate in reflecting employee
exposure to asbestos because the sample values were not properly
determined during the sampling periods.



The standard provides that the employer shall keep an accurate
record of all measurements taken to monitor employee exposure to
asbestos. OROSHA again argues the record keeping was not
accurate because the leadmen were tampering with the air
monitoring pumps. Again, I think that OROSHA is reading too much
into this standard. The standard requires that an accurate
record be kept of all measurements, rather than the measurements
be accurate. There is no evidence that the employer did not keep
an accurate record of the measurements taken.



Even if this standard did require accurate measurements to
constitute accurate record keeping, I have already found in
connection with item 2-9 that the leadmen's actions are not
imputed to the employer and that despite the inaccuracy of a few
samples the samples were representative. Thus the record keeping
of those samples was accurate.



                         ORDER:



IT IS THEREFORE ORDERED that Items 1-4, 3-12 and 3-14 are
dropped, Items 2-9, 1-3/1-8, 1-5, 1-6 and 3-11 are vacated, but
the rest of Citation no J380101290 is affirmed.



NOTICE TO ALL PARTIES



If you are dissatisfied with this Order, you may, not later than
sixty (60) days after the mailing date on this Order request a
review by the Court of Appeals, Third Floor, Justice Building,
Salem, OR 97310, pursuant to ORS 656.740(4) and 183.480 et seq.
A request for review shall be mailed to the Court of Appeals at
the above address with copies of such request mailed to all
other parties to this proceeding. Failure to mail such a request
for review within sixty (60) days after the mailing date of this
Order will result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER



	ENTERED at Portland, Oregon, on JUN. 1 6 1992 



				Vinita J. Neal

 				Referee