CONTINENTAL STEEL CORPORATION
OSHRC Docket No. 3162
Occupational Safety and Health Review Commission
July 16, 1975
[*1]
Before MORAN, Chairman; CLEARY, Commissioner
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On March 15, 1974, Judge John S. Patton rendered his decision and order in this case affirming, inter alia, citations issued by the Secretary alleging, in part, one serious violation of section 5(a)(2) of the Act for non-compliance with 29 CFR § 1910.95(a) and one non-serious violation of the Act for non-compliance with 29 CFR § 1910.95(b)(1). United Steelworkers of America, District 30 is a party to the proceeding. The Judge held that respondent's notice of contest was directed only to the proposed penalties. The Judge also assessed a penalty of $150 for non-compliance with 29 CFR § 1910.95(b)(1), but assessed no penalty with respect to the serious violation of 29 CFR § 1910.95(a).
Consistent with our disposition in Florida East Coast Properties, Inc., No. 2354 (February 5, 1974), the decision of the Fifth Circuit in Brennan v. O.S.H.R.C. & Bill Echols Trucking Co., 487 F.2d 230 (1973) and the evidence noted in the record by the Judge's opinion, and after a complete review of the record, we adopt and affirm the Judge's decision with respect to the notice of contest.
Other objections [*2] and defenses raised by the respondent and going to the merits of the citation are therefore waived, including objections as to whether the citation was issued contrary to section 9(a) of the Act, whether the cited standards are unenforceably vague, and whether the affirmance of the citation will disadvantage employees. Florida East Coast Properties, Inc., supra. Section 10(c) of the Act.
The Secretary contends that the Judge erred in failing to assess a penalty for the cited serious violation of the Act. We agree. Section 17(b) of the Act expressly commands the assessment of a penalty for a serious violation of the Act, even though the penalty may be small. For the reasons stated in the Judge's opinion, particularly the respondent's good faith efforts to follow the Secretary's bulletin on noise exposure, we believe that a $1 penalty is appropriate.
Moreover, we are convinced of respondent's substantial good faith in seeking to adhere to the requirement that feasible engineering or administrative controls be used. Respondent has had nearly a twenty-year program for engineering out noise, and it is an ongoing program. Accordingly, we would assess no penalty for [*3] the violation of 29 CFR § 1910.95(b)(1).
The Judge's order is therefore affirmed as modified. So ORDERED.
[The Judge's decision referred to herein follows]
United Steelworkers of America District 30 intervened in the proceeding and is a party to the cause. It was alleged that respondent violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ), hereinafter referred to as the Act and Occupational Safety and Health Standards 29 CFR 1910.95(a), 29 CFR 1910.145(f)(1)(i), 29 CFR 1910.134(a)(1) and 29 CFR 1910.95(b)(1). Hearing was held before the undersigned Judge in Indianapolis, Indiana on December 4, 1973. Mr. John C. Nangle appeared as counsel for the complainant. Mr. George E. Preonas appeared as counsel for the respondent and Mr. Carl N. Morris represented the intervenor.
LAW AND ISSUES
It was alleged in the complaint that on the 17th of April, 1973, respondent [*4] violated standard 29 CFR 1910.95(a) in that respondent failed to require the use of properly selected ear protection for employees exposed to noise levels in excess of the limit given in Table G-16 of the standards in the melt shop charging floor area, nail mill area and the barbed wire area. It was alleged that this was a serious violation and a penalty in the amount of $600 was proposed. It was further alleged that the respondent violated standard 29 CFR 1910.145(f)(1)(i) in that respondent failed to use a positive means to effectively block out the main source of power at the billet line in that an oiler was placing lubricant on the mill drive motors without tagging or locking out the main power source. A penalty in the amount of $150 was proposed. It was alleged that the respondent violated standard 29 CFR 1910.134(a)(1) in that respondent failed to provide adequate engineering controls to control local ventilation on the acid tank enclosure at the galvanized department at the Broadway Plant, in that the employees had excessive exposure to steam and acid fumes. A penalty in the amount of $150 was proposed. It was alleged that respondent violated standard 29 CFR [*5] 1910.95(b)(1) in that respondent failed to provide or utilize feasible engineering or administrative controls to reduce the employees' exposure to noise levels to within the limits of said Table G-16 in such areas as the melt shop charging floors, nail mill and the barbed wire area. A penalty in the amount of $150 was proposed.
At the hearing the respondent stated that it did not contest either the violation or the penalty as to standards 29 CFR 1910.145(f)(1)(i) and 29 CFR 1910.134(a)(1). It was the contention of the complainant that the contest of citation filed by the respondent only contested the penalty and did not contest the allegations of violation of any of said standards. When respondent's answer denied violation of the above cited standards complainant filed a motion to strike the amended answer or portions thereof alleging that respondent had contested only the penalty and that, therefore, this Judge had no jurisdiction over the issue of violation as to any of said standards. At the time the contest of citation was filed and at the time the original answer was filed, the respondent was not represented by counsel, but drafted its own pleadings. The respondent was [*6] represented by counsel at the time the amended answer was filed and at all times thereafter. Said motion was granted by this Judge only as to alleged violations of standard 29 CFR 1910.145(f)(1)(i) which alleged violation was not contested at the hearing. The motion was in all other respects denied. At the hearing of this cause, the manager of employee relations of respondent admitted that he had advised the attorney for the complainant that the respondent was only contesting the penalty. This Judge advised the parties at the hearing that he would reconsider his ruling in the light of said testimony and therefore an issue for determination is whether the respondent ever contested the charges of violation of said standards, or whether the respondent only contested the penalties. If the question of violation is before this Judge, the issues would have to be determined as to whether the respondent has exceeded the permissible standards to noise and, if so, whether it would be necessary for the complainant to establish that there were feasible means which could be employed to reduce the noise to that permitted by the standard. If the respondent has such responsibility, [*7] the issue arises as to whether the respondent has carried this burden. The issue is before this Judge as to whether a penalty shall be assessed and, if so, how much for violation of the noise standard.
The issue also arises as to whether the respondent has contested the alleged violation of standard 29 CFR 1910.95(a) and, if so, whether the respondent has violated said standard by failing to require wearing of ear protection by its employees. If a violation of said standard has occurred, the issue arises as to whether a penalty should be assessed and, if so, how much.
EVIDENCE IN THE CASE
The respondent, in its amended answer, admitted that respondent is a corporation with its principal office in Kokomo, Indiana, which engages in the manufacture of steel and steel products. It was admitted that respondent at all times relevant to this cause was engaged in a business affecting interstate commerce and that respondent engaged in producing goods, a substantial portion of which was purchased for interstate commerce and was produced for shipment in interstate commerce to states other than the state wherein it was produced. The parties stipulated that respondent's noise level in the [*8] areas set forth in the complaint was in excess of the levels permitted by Table G-16. It was the position of the respondent, however, that they had been utilizing all feasible engineering controls and therefore had not violated the Act. It was also stipulated that at the time of inspection some employees were not using ear protection and there was no mandatory program requiring it. Mr. Isaac David Breeden testified that Safety Director Sam Allen told him that they did have some personal molded ear plugs available at no cost if they wanted to use them, but the witness testified that there was no requirement that he do so. Mr. Clarence Cameron, an employee of the respondent working in the melt shop, testified that he was not aware of any signs posted telling the employees they had to wear ear plugs, although the supervisor told him that in the future it would be mandatory. The witness testified that it was not mandatory at the time of inspection. He stated they were available at the plant hospital. He was advised that he could secure them at said place by the supervisor. Mr. Lawrence David Nichols testified that he had worked for the respondent approximately eleven [*9] years and that he worked as a nail picker in the nail mill. The day before the inspection he was told that an inspection would occur and that they wanted everyone to wear ear plugs. He stated this was the only time they were told they had to do it. Mr. William A. Shively, Manager of Employee Relations for the respondent, testified that he had held said position for four years. He stated that there was no mandatory program for wearing hearing protection, although they had a voluntary program. In August 1972, the company began an educational program to have employees wear hearing protection and began to actively promote it. Prior to July 1972, they required wearing of hard hats and safety glasses and approximately in the middle of July encountered a slow down in protest of wearing them. He stated he found that it was not a violation of law for employees not to wear them and, therefore, they made it voluntary and the slow down stopped. He stated they discussed the matter with the union and after this discussion determined that an educational program should be instituted before they made it mandatory and therefore this procedure was followed. He stated they showed employees a [*10] film emphasizing the importance of wearing such equipment. He stated they secured the ear muffs and ear plugs and put up signs encouraging them to be worn. They had them fitted to individual employees. They explained the hearing problem that could result to employees. He stated that they followed this procedure not only because the union suggested it, but because the guidelines of the Department of Labor's Occupational Noise Standards, Bulletin 334, revised in 1971, stated that it would be best for an educational program to precede a mandatory program. He stated that in doing so they felt they were following the wishes of the Department of Labor. When he was told by the compliance officer at the time of inspection that it was required that the ear plugs be worn, they made it mandatory. He stated that all affected employees are now required to wear them. Said bulletin of the Department of Labor was introduced into evidence as Complainant's Exhibit 1-B. He stated that not all of the employees saw the film and that not all were ask to attend, although all the employees affected by the excess noise were ask to attend. He stated that following issuance of the citation [*11] one employee had been disciplined for violating instructions to wear ear plugs. He stated that the prior violation had been completely abated in this regard. Mr. Douglas Jarvis, Compliance Officer for the complainant, testified that his inspection consumed four days. He stated that the respondent was advised that some did not wear ear plugs and that he noticed that some were not wearing them in the nail mill. He was advised by the company officials that they had a voluntary program as to wearing them. The respondent promised to make it mandatory. Respondent advised him they were fearful of a work stoppage and that was the reason for the educational campaign before making it mandatory. There was no strike or slow down, however, when the respondent did make it mandatory. Mr. Samuel Allen, supervisor of employee relations testified that the decision not to make it immediately mandatory was made after conference with the union. He stated that approximately 80 per cent of the employees in the nail mill voluntarily used the equipment but not as many in other areas did so. He stated the record was poorest in the barbed wire area. He stated that he ask every department head to [*12] make the wearing of such equipment a special subject in the weekly safety contacts and they had a weekly safety contest. He stated that he told the employees to wear them two or three hours a day at first and then it would be mandatory. In addition to said testimony of the executives, it was testified by several of the employees that some of the employees wore the equipment prior to the inspection and some did not. Mr. Cameron testified that he used such equipment prior to the inspection approximately 90 per cent of the time. He testified some of the employees in the melt shop were wearing the hearing aids and some were not. Mr. Lawrence Nichols testified that he tried the ear muff type and it restricted too much noise so he could not hear employees which he stated caused a greater hazard. He stated he is not using that now. He stated prior to the inspection the protective equipment was worn by approximately 50 per cent of the employees. Mr. Thomas A. Sartain testified that he is the president of the local union and that he accompanied the compliance officer on the inspection. He stated that he did not see any employees in the barbed wire area wearing ear protection. [*13] The complainant introduced evidence that the employees were in the area of the noise a considerable part of the time. Mr. Breeden testified that the average day he was in the pit area of the melt shop 95 per cent of the time. He stated that other employees worked in the melt shop 95 to 100 per cent of the time. The first helper worked in the panel room of the melt shop approximately 80 per cent of the time and the second helper approximately 60 percent of the time. He stated, however, that these percentages as to the helper was based largely upon hearsay as he was not in the area the entire day. Mr. Cameron testified that approximately 80 per cent of his time is in the control room. He stated the second helper spends 90 to 100 per cent of his time on the floor. Mr. Cameron stated he works the entire floor and touches the furnace at times. When he was in the control room he was 15 to 20 feet from the furnace. He stated the room has two doors closed only in the winter when it is cold; that there is quite a difference in the sound level when the doors are opened or closed. The complainant introduced complainant's Exhibit 2 which was the report of the compliance officer setting [*14] forth the decible findings as to noise in the respondent's plant. Mr. Jarvis stated that said exhibit represented an accurate report of his actual findings. He testified that the testing was done with a sound meter. The results of said testing as reflected on complainant's Exhibit 2 were as follows:
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Operation |
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Permissible |
Number of |
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and/or |
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Sound |
Actual Exposure |
Exposure |
Employees |
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Location |
Time |
Level |
Hours Per Day |
Hours |
Involved |
|
Electric |
9:05 |
98 db |
2 hrs. based on |
2 |
1 |
|
melt shop |
|
100 db |
information supplied |
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|
|
charge floor |
|
|
by Wm. Shively, Mgr. |
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|
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at melters |
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Labor Relations |
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office 150 |
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||||
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ton electric |
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furnaces |
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#1 FCE |
9:07 |
100 db |
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||||
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#2 FCE |
9:10 |
105 db |
10 min. average on |
1 |
6 |
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25 Ft. from |
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each drop, 6 drops |
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|
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furnace on |
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per shift, 2 |
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charge floor |
|
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furnaces, estimated |
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time 1 hour each FCE |
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|
|
|
|
|
2 hrs. |
|
|
|
Charge |
9:12 |
99 db |
Intermittent |
2 |
2 |
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floor |
|
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exposure -- PTO'S |
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|
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electric melt |
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||||
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shop below lime |
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bins ventilating |
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||||
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fans |
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||||
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||||
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Ground |
9:15 |
85 db |
8 |
|
12 |
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level in |
9:16 |
86 db |
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||
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teeming |
9:17 |
84 db |
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||
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area |
9:18 |
85 db |
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||
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|
||||
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South end |
11:22 |
86 db |
8 |
|
|
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welded |
|
88 db |
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||
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fabric 20 |
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||||
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ft. from |
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||||
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operator |
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||||
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station |
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At operator |
11:23 |
90 db |
8 |
8 |
1 |
|
station |
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||||
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||||
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Lunch |
11:30 |
86 db |
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||||
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#5 Welded |
11:31 |
90 db |
7 |
8 |
1 |
|
fabric |
11:32 |
92 db |
7 |
6 |
|
|
machine |
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||||
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Rod Mill |
2:25 |
88-89 db |
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||
|
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2:30 |
91 db |
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||||
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Nail mill |
2:45 |
96 db |
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||
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south end |
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||||
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entrance |
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||||
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||||
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Nail mill |
2:46 |
102 db |
8 |
300 est. |
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200 People -- |
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|
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3 shifts 60 |
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per shift |
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|
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average |
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||||
|
|
|
|
|
1 1/2 |
|
|
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||||
|
S.E. end |
2:47 |
104 db |
8 |
1 1/2 |
All |
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nail mill at |
|
103 db |
|
||
|
operators |
|
||||
|
station |
|
||||
|
|
|
||||
|
Behind |
2:48 |
103 db |
8 |
1 1/2 |
All |
|
operators |
|
||||
|
station |
|
||||
|
|
|
||||
|
Nail mill |
2:52 |
100 db |
8 |
2 |
All |
|
Set L |
|
||||
|
|
|
||||
|
Nail mill |
2:52 |
104 db |
8 |
1 1/2 |
All |
|
Set E |
|
||||
|
|
|
||||
|
Nail mill |
2:53 |
105 db |
8 |
1 |
All |
|
operator |
|
||||
|
station |
|
||||
|
|
|
||||
|
Nail mill |
2:54 |
102 db |
8 |
1 1/2 |
All |
|
Set F |
|
||||
|
|
|
||||
|
Nail mill |
2:54 |
104 db |
8 |
1 1/2 |
All |
|
machine C-4 |
|
||||
|
|
|
||||
|
Nail mill |
2:55 |
107 db |
8 |
1 |
All |
|
machine C-7 |
|
107 db |
8 |
1 |
|
|
|
|
||||
|
Nail |
3:03 |
98 db |
8 |
3 |
All |
|
dumping |
|
||||
|
station |
|
||||
|
|
|
||||
|
Packaging |
3:05 |
98 db |
8 |
3 |
All |
|
area |
|
||||
|
|
|
||||
|
#2 Galvanize |
10:00 a.m. |
82 db |
|
||
|
line |
|
||||
|
|
|
||||
|
#4 Galvanize |
10:10 |
86 db |
|
||
|
line |
|
||||
|
|
|
||||
|
#4 at |
10:12 |
90 db |
8 |
8 |
2 |
|
operator |
|
||||
|
control |
|
||||
|
station |
|
||||
|
|
|
||||
|
Area 4 |
10:20 |
85 db |
|
||
|
galvanize |
|
88 db |
|
||
|
|
|
||||
|
Wire mill |
10:30 |
86 db |
|
||
|
HRX #3 |
|
||||
|
|
|
||||
|
Barbed wire |
11:55 |
90 db |
8 |
|
|
|
area at |
|
||||
|
entrance |
|
||||
|
|
|
||||
|
Barbed wire |
11:56 |
97 db |
8 |
3 |
4 operators |
|
area S. end |
|
||||
|
of line |
|
||||
|
Machine #1 |
|
||||
|
|
|
||||
|
Machine #10 |
11:57 |
97 db |
8 |
3 |
Total |
|
|
|
||||
|
Machine #17 |
11:58 |
99 db |
8 |
3 |
Total |
|
|
|
||||
|
W. end pit |
8:30 |
92 db |
4 |
6 |
6 |
|
|
|
96 db |
4 |
3 |
6 |
|
|
|
||||
|
Pit pouring |
9:00 |
95 db |
|
4 |
|
|
stage |
|
98 db |
|
3 |
|
[*15]
Mr. Albert Edwards, Industrial Hygienist for the Department of Labor, testified as to the adverse results of the employees from the alleged excessive noise. Mr. Edwards testified that he has a bachelor of science degree from Rose-Huhlman Institute of Technology. He does not have advanced degrees but has had service training in various industrial hygenist fields. He testified he is certified by the American Board of Industrial Hygiene that he also is a certified safety professional, certified by the Safety Professional Association, with specific reference to industrial hygiene. He detailed a long period of employment in this type of work. Mr. Edwards testified that if people worked for a working day from exposure to noise above 100 decibles on the A scale for a number of years that in excess of 50 per cent of such persons would suffer a hearing loss. The amount of time a man may work in a noise environment depends on the extent of the exposure. He stated that many medical authorities are of the opinion that high pitch noise will cause more rapid hearing loss than low noise. He stated there are basic methods of engineering controls that can be evaluated but they are [*16] not successful in all instances. He stated it generally takes years rather than months to have hearing loss. He stated, however, that the loss is irreversible.
EVALUATION OF THE EVIDENCE
The first issues for consideration is whether the respondent, in his notice of contest, contested only the penalty or also contested the issue of violation of said standard. As above noted, this Judge prior to the hearing and ruling on pre-hearing motions, held that as to the two standards contested at the hearing, the respondent did contest the issue of violation in the contest of citation. In the light of additional evidence adduced at the trial, however, this Judge indicated to the parties at the hearing that he would reconsider the issue of whether the contents of citation contested only the penalty or also contested the issue of violation and would cover said issue in his decision. Counsel for both parties argued said issue in their briefs.
This Judge, at the time he ruled upon said motion and at the present time, feels that in interpreting a document drawn by a layman and ascertaining his intent due consideration should be made for the fact that a layman does not, on all occasions, [*17] use the same language that an attorney uses. This Judge is of the opinion that contest of the penalty without any reference to contest of the issue of violation in a contest of citation does not constitute a contest of the alleged violation. It will be noted that section 10(a) of the Act provides:
If within 15 working days from the receipt of the notice issued by the Secretary, the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty and no notice is filed by an employee or representative of employees under section (c) within such time the citation and the assessment as proposed shall be deemed a final order of the Commission and not subject to review by any court or agency (Emphasis supplied).
It will be noted that the conjunction "or" is used in stating that the contest of the citation or proposed assessment of penalty may be filed. In the opinion of this Judge this implies that a contest of penalty does not constitute a contest of the violation.
In the case of Brennan v. Occupational Safety and Health Review Commission and Bill Echols Trucking Company, CCH Para. 16,990, at page 21,661, the United States [*18] Court of Appeals for the 5th Circuit ruled upon this question.
In said case, the contest of citation read as follows:
This is to inform you that the signaling device has been installed within the three day period of the citation. We request that the penalty be abated since corrective action has been taken well within the time alloted.
The Court said:
Even construing the letter in the manner most favorable to Echols, we cannot conceive of any way it could be interpreted as a notice of contest of the citation. The September 5, letter, written by Echols' attorney, raised no objection whatsoever to the citation; to the contrary the letter noted that corrective action had been taken after receipt of the citation, and thus, in effect, conceded the existence of the violations at the time of issuance of the citation. Because the letter requested that the penalty be abated, and because the regulation requires that a complaint specify whether it is contesting the citation or the penalty, 29 CFR 1903.17 supra, the inescapable conclusion is that the letter could only have been a notice of contest of the penalty -- if it was a notice of contest at all.
The Court held that the [*19] Commission was justified in holding the letter a contest of the penalty.
In the opinion of this Judge the contest of citation filed by the complainant is extremely ambiguous. The first sentence of the letter of contest states "This letter is in protest of the penalties assessed Continental Steel as a result of the OSHA inspection." This Judge is of opinion that in interpreting a document, however, it is necessary to examine the entire document in order to ascertain the intent of the one drafting it. As to the alleged violation of standard 29 CFR 1910.95(a), the respondent stated that the Department of Labor's recommendation for the use of an educational promotion program was followed by respondent and respondent listed the actions taken. As to the alleged violation of standard 29 CFR 1910.95(b)(1), the respondent, in the contest of citation stated that no steel company had made any progress as to curing the problem set forth in the item and they did not know of any consulting firms that currently had knowledge to solve the problem. It could be argued that this constituted an allegation of impossibility of performance indicating that respondent was contending it should not be [*20] held in violation. In view of these considerations, although the ruling might have been to the contrary had the document been drafted by an attorney, this Judge held that it was the contention of the respondent to contest the issue of violation as well as penalty and, therefore, the pretrial motion was denied.
In the opinion of this Judge, however, the ambiguity was conclusively resolved by the testimony of Mr. William A. Shively, manager of employee relations for the respondent, in which he testified under cross-examination as follows:
Q And at that time did I ask you whether or not the Respondent intended to contest the citation, or whether or not they contested only the notification of proposed penalty, and that your response was that the contest was in reference to 'just the amount of penalty'?
A Yes, I recall telling you that.
In the opinion of this Judge, there is no better interpretation of the construction intended by the draftsman of said documents than the statement against interest of the respondent itself. It is a rule of law that a written document may not be varied by parol evidence. It is equally settled, however, that an ambiguity in a document may [*21] be explained by parol evidence. In the opinion of this Judge, the contest of citation is very ambiguous as to whether only the penalty is being contested and it is extremely difficult to ascertain the intent of the draftsman in this regard. In view of this fact, there is an ambiguity which is explained by Mr. Shively's testimony rather that Mr. Shively's testimony constituting a contradiction of a written document. In view of these facts, this Judge is of the opinion that the respondent never contested the issue of violation of said standard and in view of the fact that section 10(a) of the Act provides that unless a contest is made within 15 working days of receipt of the notice issued by the Secretary, said issue is "not subject to review by any court or agency" this Judge has no jurisdiction to rule upon the question of violation of said standard, but is required by the facts of law of this case to hold that the issue of violation was admitted by the respondent by the failure of respondent to contest said issue.
This Judge has carefully considered whether in view of the fact that the case was heard under a ruling by this Judge that said issues were before this Judge, the parties [*22] are prejudiced by said prior ruling. This Judge is of the opinion that no party is prejudiced thereby. The only effect of the prior ruling is that an issue was thoroughly tried which was not necessary to try. This Judge cannot see that any evidence as to the remaining issue of penalty might not have been presented as a result of the fact that the additional issue of violation was tried. Certainly, it would appear that all evidence relating to the issue of penalty that the parties would have presented had the issue of violation not been tried was presented at the hearing of this cause. The issue of penalty has been thoroughly tried and thoroughly briefed by the parties. It therefore would appear that no purpose would be served by a reopening of the record.
On the issue of the alleged violation of standard 29 CFR 1910.95(a), in which it was alleged that the respondent had failed to require the wearing of ear plugs or ear muffs to reduce the volume of noise, it will be noted that the bulletin entitled Guidelines to the Department of Labor's Occupational Noise Standard, being Bulletin 334, Revised 1971, provides as follows:
In addition, the regulations require both [*23] provision and use of personal protective equipment. How the latter is accomplished is up to the employer. The Department recommends, however, that an educational and promotional program precede initiation of required use of such equipment, and continue as long as necessary to achieve 100-percent acceptance by employees. In the absence of an observable high proportion of use, the Department would consider the lack of a training and promotional program as constituting a violation of the regulation. (Respondent's Exhibit 1, Page 10).
It is true that the complainant could not by a bulletin repeal or negate a standard. Such a bulletin would not justify a conclusion that there has been no violation of the standard. This Judge is of the opinion, however, that said bulletin is highly relevant to the issue of the good faith of the respondent and the question of penalty. The evidence clearly establishes that the respondent relied upon such bulletin and did its best to follow it. The Respondent had previously encountered employee resistance when it required the wearing of other types of protective equipment not related to the issue of noise and in the light of the recommendation of [*24] the Department of Labor, the recommendation of the union and its entire experience, it adopted an educational campaign prior to making the wearing of ear protection mandatory. The ear protection equipment was secured, films were exhibited to the employees, emphasizing the importance to the employees of wearing such equipment and the resulting damage that could result to the employees for failing to do so. Safety meetings were held at which a similar emphasis was made and the employees' supervisors of the various involved departments were instructed to press to the employees the importance of wearing such equipment. It seems to this Judge highly inequitable to penalize a company for following the directives of the Department of Labor. It will be noted that said bulletin recites "how the latter (wearing of protective equipment) is accomplished is up to the employer." Said bulletin also states that "it is the recommendation of the Department of Labor that an educational and promotional program precede initiation of required use of such equipment and continue as long as necessary to achieve 100-percent acceptance by employees" (Emphasis supplied). The instruction [*25] is that the Department recommends an educational program before there is a required use of the equipment. It will further be noted that in the next sentence, the complainant states that "in the absence of an observable high proportion of use, the Department would consider the lack of a training and promotional program as constituting a violation of the regulation." Certainly the last sentence would infer that if there is a promotional program, the law is complied with in the absence of universal use. Otherwise, the words "in the absence of an observable high proportion of use" have no meaning. The Department of Labor appears to have instructed the respondent to do exactly what the respondent did. The respondent in good faith made every effort to comply with said directives. Under these circumstances, this Judge is of the opinion that no penalty should be assessed and, therefore, no penalty will be assessed by this Judge as to the alleged violation of standard 29 CFR 1910.95(a)(1).
The same argument does not apply to the alleged violation of standard 29 CFR 1910.95(b)(1). There is no allegation that as to that standard the respondent was mislead by any bulletin or directive [*26] of the Department of Labor. Since there was no contest of the issue of excessive noise in the area in which employees were working, the issue of whether the evidence shows feasibility of any curative measure that might be taken is resolved by the failure to contest and is not before this Judge. This Judge is of the opinion that under these circumstances the proposed penalty of $150 for violation of said standard is proper. The possibility of damage to the hearing of a number of employees is serious enough to justify a penalty in said amount, making due consideration for the evidence of good faith by the respondent. In view of the lack of contest as to the issue, the abatement date of July 11, 1974, must be affirmed. This Judge is not unmindful of the fact that from an engineering standpoint, the abatement of noise under the circumstances does often present a complex problem and does require substantial time to cure. In the event subsequent efforts reveal that the abatement date does not allow adequate time for the respondent to solve the problem, the remedy of a petition for change of abatement date is open to the respondent.
FINDINGS OF FACT
1. Respondent, at all [*27] times relevant to this cause, was a corporation engaged in a business in Kokomo, Indiana, where it engaged in the manufacturing of steel and steel products.
2. At all times relevant to this cause, respondent produced products which were shipped to points beyond the State of Indiana.
3. The contest of citations only contested the penalties.
4. On April 17, 1973, respondent failed to utilize engineering or administrative controls to reduce the employees' exposure to noise levels to bring them within the limit of Table G-16 of the standard, in areas of the melt shop charging floor, the nail mill and barbed wire area.
5. The respondent's employees were exposed in the melt shop charging floor, the nail mill and the barbed wire area to said excessive noise level.
6. The noise levels in said areas were reflected in Complainant's Exhibit 2 as quoted above.
7. On April 17, 1973, respondent was providing ear plugs and ear muffs to its employees.
8. Prior to April 17, 1973, and on said date, respondent engaged in an educational campaign to persuade its employees as to the value and necessity of wearing ear plugs and ear muffs by means of films, safety meetings, persuasion of supervisors [*28] and other means.
9. On April 17, 1973, the respondent did not make the wearing of ear plugs or ear muffs mandatory.
10. Bulletin 334, as Revised in 1971, of the Department of Labor, constituting guidelines to the Department of Labor's occupational noise standard, constituted advice and instructions to respondent and other employers that an educational and promotional program should precede the initiation of required use of protective equipment against excessive noise and instructed such persons that they were in compliance with the standard if such training or educational program was being promulgated and utilized. Respondent in good faith relied upon said Bulletin 334 of the Department of Labor in attempting to comply with standard 29 CFR 1910.95(b)(1).
11. Respondent failed to use a positive means to effectively block out the main source of power as the billet line in that an oiler was lubricating the mill drive motors without tagging or locking out the main power source.
12. Respondent failed to provide adequate engineering controls to control local ventilation on the acid tank enclosure at the galvanize department in the Broadway Plant in that the employees [*29] had excessive exposure to steam and acid fumes.
CONCLUSIONS OF LAW
1. Respondent is engaged in interstate commerce as said term is defined by the Act and falls under the jurisdiction of the Occupational Safety and Health Review Commission.
2. The respondent having failed to contest the issue of violation as to any of the standards, the issue of penalty is the only issue over which this Judge has jurisdiction.
3. On or about April 17, 1973, respondent failed to require the use of properly selected ear protection for employees exposed to noise levels in excess of the limits given in Table G-16 of the standard in the melt shop charging floor, the nail mill and the barbed wire area which constituted a violation of standard 29 CFR 1910.95(a).
4. The respondent having relied upon a bulletin of the complainant in its actions in this cause, no penalty should be assessed for violation of standard 29 CFR 1910.95(a).
5. Respondent's action in failing to provide or utilize feasible engineering or administrative controls to reduce the employees' exposure to noise levels to within the limits of Table G-16 in said areas constitutes a violation of standard 29 CFR 1910.95(b)(1).
[*30] 6. Respondent's failure to use a positive means to effectively block out the main source of power at the billet line in that an oiler was lubricating into the mill drive motors without tagging or blocking out the main power source constituting a violation of standard 29 CFR 1910.145(f).
7. Respondent's action in failing to provide adequate engineering controls to control local ventilation on the acid tank enclosure at the galvanized department at the Broadway Plant in that the employees had excessive exposure to steam and acid fumes, constitutes a violation of standard 29 CFR 1910.134(a)(1).
ORDER
It is therefore Ordered that:
Respondent is in violation of section 5(a)(2) of the Act and the following standards:
Respondent is in violation of standard 29 CFR 1910.95(a). No penalty is assessed for said violation. The abatement date of June 11, 1973, is affirmed.
Respondent is in violation of standard 29 CFR 1910.95(b)(1). A penalty in the amount of $150 is assessed for said violation. The abatement date of June 11, 1974, is affirmed.
Respondent is in violation of standard 29 CFR 1910.145(f)(1)(i). A penalty in the amount of $150 is assessed. The abatement date of June [*31] 11, 1973, is affirmed.
Respondent is in violation of standard 29 CFR 1910.134(a)(1). A penalty in the amount of $150 is assessed. The abatement date of August 13, 1973, is affirmed.