DETROIT PRINTING PRESSMEN LOCAL NO. 13, INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS UNION OF NORTH AMERICA, AFL-CIO
OSHRC Docket No. 1503
Occupational Safety and Health Review Commission
November 8, 1972
[*1]
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: On September 14, 1972, Detroit Printing Pressmen Local No. 13, International Printing Pressmen and Assistants Union of North America, AFL-CIO (hereinafter "Pressmen Local No. 13" or "petitioner") filed a petition to modify an abatement period n1 prescribed by a citation for nonserious violation issued to the Evening News Association, a Michigan corporation. Specifically, on June 14, 1972, the Secretary of Labor (hereinafter "the Secretary"), following an inspection of the Evening News Association's workplace, issued the employer a citation for an alleged violation of the occupational health standard prescribed by 29 C.F.R. 1910.95(a) and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter "the Act"). The citation required the Evening News Association to abate the alleged violation as follows:
June 30, 1972 a. Immediate temporary protection by way of ear plugs or ear muffs.
July 17, 1972 b. Evidence of exposure reduction by submission of engineering study for long range abatement of noise hazard or proposed [*2] administrative controls.
September 13, 1972 c. Submission of final time table for reduction of noise or final determination of administrative controls.
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n1 The petition is titled as a "Petition for Modification of final Order of Commission." However, the only relief sought is that we extend an abatement period prescribed by a final order of this Commission. Because of our disposition of this case, it is not necessary at this time to answer the question of whether a representative of affected employees has a statutory right to seek the type of relief petitioner requests.
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Neither the Evening News Association or petitioner filed a notice of contest and the citation and abatement dates and procedures set forth therein became a final order of the Commission on July 10 by virtue of the provisions of section 10(a) of the Act. Accordingly, the Evening News Association was in violation of 29 C.F.R. 1910.95 and of section 5(a)(2) of the Act and was required to abate the hazard within the time limits and according to the procedures [*3] set forth above.
By way of supporting its request for relief Pressmen Local No. 13 shows that it understood that the employer would implement final abatement through the use of engineering control. However, on August 29, petitioner was informed by the employer that abatement would be achieved on September 11 through the implementation of administrative controls. Specifically, the petitioner was informed that affected employees would be rotated out of high level noise areas, i.e., the employer would abate the hazard through the use of administrative controls. This abatement method, says Pressmen Local No. 13, will affect the job classification or job tasks, seniority, and rates of pay of affected employees. We are then told that "sudden unilateral changes in job functions which employees have become accustomed to by virtue of seniority and long standing practice tend to foster labor unrest." Indeed, petitioner admits that its members have resisted the Evening News Association's efforts to implement abatement.
We conclude that these reasons do not, as a matter of law, provide a basis upon which the requested relief may be granted. The standard and therefore section [*4] 5(a)(2) of the Act, in pertinent part, requires an employer to provide employee protection against the hazard of high noise levels as follows:
(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16. . . .
(b)(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16 personal protective equipment shall be provided and used to reduce sound levels within the levels of the table. (Emphasis added.)
According to these plain terms an employer may, at his option, comply with the requirements of the standard and therefore of the law according to either of two methods. He may reduce employee exposure to high noise levels through the use of feasible administrative controls or he may reduce noise levels through the use of feasible engineering controls.
In this case the petition shows that the Evening News Association elected to abate the hazard by implementing feasible administrative controls. No showing is made that such method of abatement would not [*5] accomplish the desired result within the period for abatement prescribed in the citation. Accordingly, the employer, so far as we know, is doing all that is required of it by the standard and the Act. Under these circumstances we conclude that a decision to grant the relief requested by the petition would be contrary to the congressional purpose to ". . . assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . ." n2
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n2 29 U.S.C.A. 651(b).
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Moreover, we could not grant this petition even if abatement had not been achieved. The only reasons given for the requested relief relate to problems of labor-management relations and not to problems of occupational safety and health. Labor relations matters are not within our jurisdiction. Petitioner is undoubtedly aware of the fact that another agency of the Federal Government is statutorily empowered to deal with labor relation matters.
Accordingly, it is ORDERED that petitioner be denied the relief requested [*6] and that the petition for modification of our final order be and the same is hereby dismissed.
CONCURBY: BURCH
CONCUR:
BURCH, COMMISSIONER, concurring: The Commission had before it a "petition for Modification of Final Order of the Commission" filed by the union representing affected employees in this case. My colleagues have seen fit to dismiss the petition on the merits. I agree that it must be dismissed, but on other grounds.
As mentioned, the opinion of the majority is addressed to the merits of the petition, and states, in footnote 1:
Because of our disposition of this case, it is not necessary at this time to answer the question of whether a representative of affected employees has a statutory right to seek the type of relief petitioner requested.
I believe that this is error. The question is one of jurisdiction, and must be answered before the merits are reached. The decision of the majority, in disposing of the petition on the merits, assumes an affirmative answer to the question. I disagree.
The pleading may be construed in one of three ways. If it is construed as a notice of contest, pursuant to section 10(a) of the Act, it is untimely as more than 15 working [*7] days have elapsed since the employer received the citation. If this pleading is construed as a petition for modification of the abatement period as contemplated by section 10(c) of the Act, the Act reserves this course of action to employers. Affected employees or their authorized representatives have no standing to file such petition. If the pleading is considered as a petition for modification of a final order, as it is denominated, this Commission still does not have jurisdiction.
Once jurisdiction attaches, the Commission retains such jurisdiction for the purpose of reconsideration or modification of its order. In this case, the Commission's jurisdiction was not timely invoked. Jurisdiction of the Review Commission is invoked only by a timely notice of contest or a petition for modification of abatement. Here, the citation and proposed penalty was "deemed a final order of the Commission" pursuant to section 10(a) of the Act. Such a "final order" is ". . . not subject to review by any court or agency.
While it may be argued that the Secretary of Labor retains inherent jurisdiction over his citation for certain purposes, it is clear that the Review Commission is an "agency" [*8] within the meaning of section 10(a) of the Act and may not review or modify this final order. The circumstances thus require dismissal of the instant petition for lack of jurisdiction.
The gratuitous comments contained in the majority decision are unnecessary and misleading. There is no record and, therefore, no evidence upon which to base such assertions as ". . . the Evening News Association elected to abate the hazard by implementing feasible administrative controls."
On what grounds has the majority concluded that the controls instituted by the employer are "feasible?" In addition, the majority decision further states:
In this case the petition shows that the Evening News Association elected to abate the hazard by implementing feasible administrative controls. No showing is made that such method of abatement would not accomplish the desired result within the period for abatement prescribed in the citation. Accordingly, the employer, so far as we know, is doing all that is required of it by the standard and the Act. Under these circumstances we conclude that a decision to grant the relief requested by the petition would be contrary to the congressional purpose [*9] to ". . . assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . ."
Why do the above "circumstances" lead the majority to any conclusion whatever as to granting or denying the petition? They are irrelevant to the decision and are set forth without factual or evidentiary basis.
The majority has opined that this is a "labor-management relations" matter and calls petitioner's attention to the fact that there is another federal agency empowered to deal with these matters. Such unwarranted opinion and its inclusion in a Commission decision is inappropriate at best. If the majority saw fit to include extraneous instruction, one wonders why it failed to draw petitioner's attention to other possible avenues of relief.
I disassociate myself from all comments contained in the majority decision except the dismissal of the petition.