Docket No. 2786

FORD MOTOR COMPANY, METAL STAMPING DIVISION

OSHRC Docket No. 2786

Occupational Safety and Health Review Commission

May 25, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Herman Grant, Regional Solicitor, USDOL

Joseph A. O'Reilly, Associate Counsel, Ford Motor Company, for the employer

Jerome Schurr, for the employees

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: The litigation in this case was initiated by Local 588, United Auto Workers, which contested the propriety of the abatement period for item 81 of an 82-item citation which complainant issued to the Ford Motor Company's Metal Stamping Division. The union, which represents employees at the cited plant, also questioned the adequacy of an abatement plan submitted by the employer pursuant to the complainant's direction. Following two amendments by the complainant of the abatement date specified in the citation, the employer asserted party status and contended that the abatement period was unreasonably short.

On September 10, 1974, Review Commission Judge George W. Otto issued a decision in the case which is before us for review pursuant to 29 U.S.C. § 661(i). That decision, which is attached hereto as Appendix A, n1 correctly held that the time period for abatement specified on the amended citation was unreasonably short and that the [*2] Commission lacked authority to determine what specific abatement measures should be prescribed in the abatement plan. Additionally, the Judge ordered the complainant to establish a new abatement date. We find that the Judge erred is not himself prescribing a reasonable abatement time on the basis of the evidence before him.

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n1 Chairman Barnako does not agree to this attachment.

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Item 81 of the citation charged the employer with violating 29 U.S.C. § 654(a)(2) by failing to utilize feasible administrative or engineering controls to protect its employees from excessive sound levels in contravention of 29 C.F.R. § 1910.95(b)(1). That standard provides in pertinent part that:

"When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized."

The union's right to contest a citation is provided for in 29 U.S.C. § 659(c) which specifies that:

"[I]f, within fifteen working days of the issuance of a citation under section 658(a) of this title, [*3] any employee or representative of employees files a notice with the Secretary alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing . . . ." (Emphasis added.)

Because the clear language of the statute limits employee contests to the reasonableness of the period of time which is fixed in the citation for abatement, we hold that sufficiency of the so-called abatement plan cannot be directly contested by the union. See Secretary v. Oil, Chemical and Atomic Workers International Union, AFL-CIO, 2 OSAHRC 1243, 1244-1245 (1973); Detroit Printing Pressmen Local No. 13, International Printing Pressmen v. Secretary, 1 OSAHRC 1015 (1972).

Although the Act says nothing about an abatement plan, it is our opinion that the Secretary of Labor's general responsibility for enforcing compliance with the Act's requirements is adequate authority for reviewing an employer's abatement plan in those situations where abatement can only be achieved in phases over a relatively long period of time. [*4] This review enables the Secretary to ascertain whether an employer's efforts to come into compliance are proceeding at the proper pace and whether a reasonable time has been allowed for this purpose. Since the sole power to issue citations rests exclusively with the Secretary, his actions in exercising this authority could be made to depend on an employer's progress in abatement.

On the other hand, if the Commission issues an order respecting an abatement plan, the result could be to force an employer into a method of abatement which may subsequently prove to be inferior or infeasible. It might also subject the employer to an action for failure to abate even though he later discovers a superior abatement method which is different from the ordered plan. Furthermore, since 29 U.S.C. § 659(c) is specific in limiting employees or their representatives to an adjudication before the Commission on the reasonableness of the period of time fixed in a citation for abatement, we conclude that the union is not entitled to seek, and the Commission is not empowered to grant, a modification in the abatement plan.

In stating the above, we are not holding that a union is precluded from showing [*5] as an evidentiary matter, in those cases where an abatement plan is required by the citation, that abatement could be accomplished in less time than that provided in the plan. Such a right is clearly implied in the language of § 659(c). Moreover, in presenting its case the union may properly adduce evidence to show that the employer's abatement plan does not include all feasible abatement methods or controls that are presently available. Such specific methods or controls and the time required for their implementation are determinative of the length of time needed for abatement. Although, for the reasons given above, the Commission will not determine what specific measures should be prescribed by an abatement plan, it will consider this kind of evidence for the purpose of deciding the reasonableness of the abatement period set in a citation. In this case, however, the evidence indicates that the abatement period set by the Secretary is unreasonably short.

At the hearing which was conducted in February of 1974, an industrial hygienist employed by the complainant testified that it would take three to fifteen years to reduce the plant noise to the sound levels required by the [*6] standard. The complainant's area director agreed with this estimate. The supervisor of the employer's industrial hygiene section was of the opinion that a minimum of fifteen years would be required to achieve compliance with Table G-16. A notice reduction expert, who appeared for the union, testified that three to fifteen years was unreasonably long and that two years would be more realistic. He conceded, however, that reduction of noise levels to 90 dBA in all areas of the plant might not be feasible within that time.

In view of 29 U.S.C. § 659, the statutory authority for litigating issues in dispute before this Commission, we are satisfied that it is the Commission's duty to prescribe a reasonable period of time for abatement when that matter is in dispute and the credible evidence establishes that the time period specified in the contested citation is unreasonable. Accordingly, after considering all of the evidence concerning a reasonable abatement date, it appears that two years from the date that our order herein becomes final will afford a reasonable time for implementing the engineering and administrative controls necessary to achieve compliance with Table G-16. If [*7] the employer finds that it cannot comply within that time, a petition for modification of the abatement period can be filed with the Secretary of Labor in accordance with Rule 34 of the Commission's Rules of Procedure, 40 Fed. Reg. 3594 (1975). As a further point, we would suggest, but do not direct, that the employer and union attempt to resolve any further abatement disputes by consultation with each other. Such a procedure might prove more beneficial to both parties than continuing litigation and threats thereof.

Accordingly, the employer is ordered to implement feasible administrative or engineering controls to comply with 29 C.F.R. § 1910.95(b)(1) within two years of the date this order becomes enforceable.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I dissent because the majority errs as a matter of law in holding that the United Auto Workers is not enpowered under section 10(c) of the Act to seek the Commission's review of the abatement plan and that the Commission is not empowered to modify an abatement plan.

As my colleagues observe, the Act says nothing expressly about the use of plans for accomplishing abatement. Rather, in section 9(a) concerning the issuance of citations [*8] and in section 10(c) in connection with contests by employees concerning abatement requirements, the terms of the Act speak only of the time allowed for abatement. Yet in cases involving hazards to the safety and health of employees that may require elaborate engineering changes, the use of abatement plans has either implicitly or explicitly been recognized as a lawful approach to abatement under section 9(a) of the Act. There may be no other way of dealing with situations where the use of engineering controls is dependent upon the technology potential of employers in developing ways of alleviating hazards. Cf. Society of Plastics Indus., Inc. v. OSHA, 509 F.2d 1301, 1309 (2d Cir. 1975). My colleagues recognize the soundness of this approach.

The essential difficulty is that the Act does not plainly address the troublesome problem of abatement in these situations. The problem may be appropriately resolved by asking, as Justice Cardozo once did, "which choice is it more likely that Congress would have made," Burnet v. Guggenheim, 288 U.S. 280, 285 (1933), should the use of the plans be permitted or not. Given the strong remedial objectives of the Act, I agree with [*9] my colleagues that section 9(a) should be read to permit the use of abatement plans in these engineering cases.

My point of departure from my colleagues is with their failure to recognize that section 70(c) suffers from the same drafting problem as section 9(a) concerning the setting of time limits for abatement. I find much force in the argument of the United Auto Workers that section 10(c) should not be read literally in determining the scope of review upon a contest filed by employees when a citation does not fix an abatement date for the violation, but rather provides for a plan for abating a violation. Again, in considering what choice Congress would have likely made if it addressed this problem it seems to me that this choice would be for review of the plan since employees are the major beneficiaries of this legislation and the plan.

As a matter of parallel construction, I add that Commission Rule 34, 29 CFR § 2200.34, unduly narrows the scope of review by the Commission under section 10(c) when an employer files a request for a change in abatement requirements. Rule 34 speaks only of relief in terms of changing abatement periods. Consistent with the foregoing, I submit [*10] that an employer may also seek a change in abatement requirements so long as the other tests in section 10(c) are made. It is for this reason that I find little force in the majority's argument that if the Commission were to issue an order concerning an abatement plan the result could be to force an employer into a method of abatement that may prove subsequently to be inferior or infeasible. I read section 10(c) to permit relief to an employer in such a situation.

The majority's literal reading of section 10(c) is also inconsistent with the Commission's earlier decision in H.K. Porter Co., Inc., CCH 1973-74 OSHD para. 17,471, 1 BNA OSHC 1600 (No. 1210-P, 1974), holding that the Commission rather than the Secretary is empowered to review petitions by employers for changes in abatement requirements.

In reviewing an abatement plan, as in reviewing any other element of a citation, the Commission is expressly empowered to grant "appropriate relief" against an employer. See General Electric Co., Inc., 3 BNA OSHC 1044, 1974-75 CCH OSHD Para. 19,567 at 23,369 (No. 2739, 1975) and Van Raalte Co., Inc., No. 5007 (April 19, 1975). Atlantic & Gulf Stevedores, Inc. v. O.S.H.R.C., [*11] No. 75-1584 (3d Cir., March 26, 1976).

To the extent that Oil, Chemical & Atomic Workers International Union, AFL-CIO, 2 OSAHRC 1243, 1244-1245 (1973) and Detroit Printing Pressmen Local No. 13, International Printing Pressmen v. Secretary, 1 OSAHRC 1015 (1972), may support the majority's position they should be reversed because they would deal inadequately with providing a remedy for review upon contest by employees of citations requiring extensive engineering changes. Stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision when adherence involves collision with an approach that is intrinsically sounder. See Helvering v. Hallock, 309 U.S. 106, 119 (1940). In any event reliance upon Oil, Chemical & Atomic Workers International Union, AFL-CIO, 1 BNA OSHC 1104, 1971-73 CCH OSHD para. 15,447 (No. 562, 1973) is misplaced. That case concerned an employee contest under section 10(c) after the abatement date had elapsed. It involved an attempt to raise under section 10(c) what is properly the subject of an action concerning failure to correct a violation. Here, the abatement date has not passed, and a section 10(c) [*12] contest is the proper means of raising the abatement issue.

The majority's decision is inconsistent with the basic structure of the Act in having the Secretary's enforcement actions subject to review first by the Commission and then the Courts of Appeals.

Under the majority's opinion, the Secretary's approval of an abatement plan would appear to be a final agency action subject to judicial review under the Administrative Procedure Act itself. Cf. Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97, 101 (2d Cir.), cert. denied 400 U.S. 949 (1970). This would be reviewable by a Federal district court. See, for example, Sobell v. Reed, 327 F. Supp. 1294 (S.D.N.Y. 1971). That such review would be outside the mainstream of judicial review by the Courts of Appeals of Commission decisions under section 11 of OSHA is an indication that the majority's result is at odds with the essential statutory scheme of having expeditious Commission review of the Secretary's actions before there would be resort to the courts. See Staff of Senate Comm. on Labor & Public Welfare, 92d Cong. 1st Sess. Legislative History of the Occupational Safety & Health Act of 1970, [*13] 463 (Comm. Print 1971).

The majority's interpretation of section 10 should be avoided because it may well raise a question of unreasonable or unequal treatment of employers and employees forbidden by the Fifth Amendment. Under section 10(a), an employer can contest before the Commission the abatement requirements of a citation -- not just the period prescribed for abatement, but the whole citation. Yet, the majority reads section 10(c) as foreclosing a contest by employees, or their representatives, as to abatement requirements. There is a basic lack of fairness here.

Also consider this. Under sectin 8(f), an employee, or his representative can file a complaint with the Secretary of Labor requesting an inspection; under section 8(e) the employees have an opportunity of having a representative accompany the inspector during the inspection; but if a citation is issued as a consequence of the inspection, under section 10(c) the employees, or their representative are not empowered to challenge the abatement requirements of the citation. I submit that this reads section 10(c) in an arbitrary and capricious manner.

Turning to another matter, I differ with my colleagues in suggesting [*14] but not directing that the employer and United Auto Workers attempt to resolve any further abatement differences by consulting with each other. The reason assigned for the suggestion is that the procedure may prove more beneficial to both parties, than other legislation. I submit that the reason is conjectural. Yet the record does support the need for an order requiring consultation because of the employer's refusal to disclose the contents of reports by its noise consultants to the union. There is precedent for an order of this kind. See General Electric Co., supra.

The gravity of the majority's errors can perhaps be best demonstrated by describing the plan that it declines to review.

The plan reads as follows:

1. The on-going Noise Control and Hearing Conservation Program outlined above will be continued and improved.

2. Noise control installation will be maintained and extended as feasible engineering controls are developed and become available.

3. Information from other stamping plants in the Division and from other Company locations will be considered for local application.

4. Development tests will be made as new ideas, proposals and designs are advanced. [*15]

5. Pipe manifolds will be installed on all major presses and machines for air valve exhaust by May, 1974.

6. Air valve exhaust silencers will be installed on assembly lines by February, 1974.

7. Trim die scrap slides and hoppers on 31 major presses will be sound dampened by September, 1974.

8. Silencers will be installed on small part air blow-offs by September, 1973.

9. When new machinery is purchased, low noise emission will be specified.

-- Major presses are currently being purchased with a maximum noise emission of 84 dBA.

-- Air compressors are currently being purchased with maximum noise emission of 85 dBA.

10. Although the plant regularly assigns maintenance personnel to the repair of compressed air leaks, a more vigorous effort is being made to reduce leaks.

11. An acoustical enclosure will be provided in the pump house to reduce the exposure of the operators to excessive noise levels by October, 1973.

The Secretary considers the plan to be adequate. Although recognizing that the first four paragraphs are generalities, the Secretary points out that specific target dates are set for "utilization and implementation of engineering and administrative controls [*16] to reduce noise, which process is often by necessity, a trial and error proposition. Accordingly, if the target date, cannot be met . . . the employer may file a Petition for Modification of Abatement." June 1, 1974, was the proposed "abatement date" set by the Secretary, assertedly after a complete review of the employer's plan and plant layout.

The plan is so general that it could be construed as allowing abatement at the employer's convenience. It provides for installing various noise reducing devices but sets no goals for reduced noise levels. Also, the plan has no provision for noise surveys in order to assess effects of noise on personnel and progress in reducing noise.

The Secretary's Field Operations Manual provides a guide to the multistep abatement of hazards such as noise. It states that the Area Director, in issuing the citation, should set a short-range date requiring prompt temporary protection consisting of protective equipment and short-range administrative controls. The approved "plan" has no provision whatsoever for any administrative controls.

The plan calls for installation of various devices on "31 major presses," on "asembly lines" and in other locations, [*17] by specified dates. But, there is no predicted dBA level to be achieved by those dates. In addition, 31 presses is a fraction of the total in the plant. The Secretary regards such "trial and error" techniques as reasonable. The union's expert witness n2 asserts that a plan should provide for noise reductions to set levels and that some presses, for example, can result in a 10 dBA reduction through the use of known methods.

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n2 This witness is a manager of a firm engaged in industry hearing conservation, has authored numerous industrial acoustic plans, and is listed in American Men of Science and Who's Who in the West.

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The same witness states that the first step in a plan submitted to remedy a noise hazard is a full description of that hazard. He asserts that a complete noise survey is a prerequisite to a plan. This survey, in turn, allows for more meaningful goals to be set in terms of dBA reduction. The absence of a detailed timetable for achieving specific reduced levels makes it nearly impossible [*18] to consider any subsequent petition for modification of abatement filed by an employer. The Commission is unable to asses progress if no goals have been set.

The plan fails to deal with one source of noise, the tow truck operations, which the Secretary identified as a major noise source. Only some noise producing aspects of presses are treated by the plan. The Secretary's witness states that the worst conditions are treated, but he states that one of the two major noise sources is the stamping operation. When asked where the plan deals with this hazard he replied, "Nowhere."

The majority allows the employer two years from the date of the Commission's order to comply with this general plan. We are not told how the two years is arrived at except that it is upon consideration of all of the evidence concerning a reasonable abatement date. I submit that more of a factual predicate is needed than this to pass muster under 5 U.S.C. section 558. Also, there should be a painful awareness that more than two years have elapsed since the testimony was taken in this case. This delay should be considered in framing any order. Section 10(c) does not toll the time for abatement during the [*19] pendency of a proceeding commenced by employees. Cf. Carl A. Morse of Illinois, d/b/a Diesel Constr. Co. v. Brennan, CCH OSHD para. 16,885 (N.D. Ill. 1973).

Appendix A

DECISION AND ORDER

Edward A. Bobrick, for Complainant

Jerome Schur, for Respondent

Joseph A. O'Reilly, for Employer

George W. Otto, Judge, OSAHRC

On March 6, 1973 the Secretary of Labor issued a citation containing 82 items of alleged violation, together with a notification of proposed penalties. The issue relates only to the abatement date for item 81.

This proceeding originated pursuant to 29 USC § 659(c) under a notice of contest filed April 20, 1973 by Local 588, United Auto Workers, representing affected employees of Ford Motor Company, Metal Stamping Division, Chicago Heights, Illinois. The notice contested the reasonableness of the period allowed for submission of an abatement plan relative to item 81 of an amended citation issued March 29, 1973, and objected to the Secretary of Labor conferring with the Ford Motor Company, after the original citation and before the amendment of item 81, without prior notice to the employee representative or to the employees who initiated the complaint or [*20] to any other parties. The Secretary of Labor served a response to employee contest on April 26, 1973 with an answer to response served by Local 588 on May 7, 1973. On June 4, 1973 the Secretary of Labor moved to further amend citation item 81 to provide an abatement date of June 1, 1974 for citation item 81. By letter of May 10, 1973 Ford Motor Company elected party status and on June 18, 1973 filed a response objecting to the abatement date of June 1, 1974.

A pre-hearing conference was held July 2, 1973 with formal hearings on February 13, 1974 and February 25, 1974. n1

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n1 The transcript of the February 13, 1974 hearing is identified by I and the transcript of the February 25, 1974 hearing by II, followed by page number.

Transcript corrections: [from] Government to Complainant (I-18, 78), Government to Respondent (II-1, 48, 84, 95), Government to Employer (II-149), wrecks to racks (I-44), shoot to chute (II-3, 7, 57, 157).

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The Secretary of Labor, complainant, is identified hereafter as "Secretary," Local 588 [*21] UAW, respondent, as "Union" and Ford Motor Company as "Employer."

Although the pre-hearing conference was followed by some areas of disagreement as to the exact understanding informally resolved, pursuant thereto the Employer filed an abatement plan by letter of August 31, 1973 (Petitioner's Exhibit 1). n2

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n2 In both hearings and prior thereto the Secretary of Labor was incorrectly identified as "Petitioner." Since this proceeding was commenced by the filing of a notice of contest, under Rule 31(a) the Secretary is the complainant. Petitioner's Exhibit 1 was offered by the Secretary.

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The issue: whether the period of time fixed in the citation as amended for the abatement of the violation is unreasonable -- specifically, whether the date of June 1, 1974 fixed in the citation as amended for the abatement of the violation set forth in citation item 81 is unreasonable.

Citation item 81 alleges violation of 29 CFR 1910.95(b)(1) with a description

"Failure to utilize feasible administrative or engineering controls when [*22] employees are subjected to sound levels exceeding those listed in Table G-16. For example: (1) Small press SB-87 operator station. (2) Press 3.8 operator's station at column G-3. (3) Press 4.7 at column G-3. (4) Crane #9 operator's station. (5) Press 27.6R at column G-28. (6) Small press area SB-20. (7) Column K-10 press 53.1. (8) #922 cross member exit station. (9) Pump house employee work area. (10) Tow truck operator when pulling racks."

29 CFR 1910.95 (b)(1) provides:

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.

TABLE G-16 -- PERMISSIBLE
NOISE EXPOSURES n1
	Sound level
	dBA slow
Duration per day, hours	response
8	90
6	92
4	95
3	97
2	100
1-1/2	102
1	105
1/2	110
1/4 or less	115

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n1 When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C1/T1+C2/T2 Cn/Tn exceeds unity, then, the mixed exposure should be considered to exceed the limit value. Cn indicates the total time of exposure at a specified noise level, and Tn indicates the total time of exposure permitted at that level.

Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level.

[*23]

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Under 29 USC § 659(c), if within fifteen working days of the issuance of a citation under 29 USC § 658(a), any employee or representative of employees files a notice with the Secretary alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in accordance with section 554 of title, 5, United States Code, but without regard to subsection (a)(3) of such section). The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance.

The abatement history of item 81 is as follows:

Original citation issued March 6, 1973 -- "60 days for submission of abatement plan."

Amend citation issued March 29, 1973 -- "the abatement date for item 81 is amended as follows: 10-15-73."

Order of undersigned Judge dated June 22, 1973 granting Secretary's [*24] motion pursuant to which the amended citation is further amended "by specifying (in addition to the date for the submission of a plan of abatement already contained therein) the date of June 1, 1974 as the abatement date for completion of implementation of utilization of feasible engineering and administrative controls as required by 29 CFR 1910.95(b)."

The abatement plan appears in petitioner's Exhibit 1, Part III -- Proposed Program with 11 items as follows:

1.	The on-going Noise Control and Hearing
	Conservation Program outlined above
	will be continued and improved.
2.	Noise control installation will be
	maintained and extended as feasible
	engineering controls are developed and
	become available.
3.	Information from other stamping plants
	in the Division and from other Company
	locations will be considered for local
	application.
4.	Development tests will be made as new
	ideas, proposals and designs are
	advanced.
5.	Pipe manifolds will be installed on
	all major presses and machines for air
	valve exhaust by May, 1974.
6.	Air valve exhaust silencers will be
	installed on assembly lines by February,
	1974.
7.	Trim die scrap slides and hoppers on
	31 major presses will be sound dampened
	by September, 1974.
8.	Silencers will be installed on small
	part air blow-offs by September, 1973.
9.	When new machinery is purchased, low
	noise emission will be specified.
	o Major presses are currently
	being purchased with a maximum
	noise emission of 84 dBA.
	o Air compressors are currently
	being purchased with maximum
	noise emission of 85 dBA.
10.	Although the plant regularly assigns
	maintenance personnel to the repair of
	compressed air leaks, a more vigorous
	effort is being made to reduce leaks.
11.	An acoustical enclosure will be provided
	in the pump house to reduce the exposure
	of the operators to excessive noise
	levels by October, 1973.

[*25]

The Secretary contends the abatement date of June 1, 1974 is reasonable, that it allowed enough time for the Employer to go through an engineering study, procure materials and to install feasible controls on existing equipment, that the proposed abatement date was not meant to provide for specific engineering techniques to be incorporated in the plan, but instead it sought of the Employer that the company investigate and test various engineering techniques, that the abatement date envisioned that upon one technique not working the Employer was bound to carry forward and keep working on the problem until full compliance was achieved or until such time as a limit of known technology was exhausted. Further, the Secretary attacks the Union's selection of remedy and contends that if the Union desired to have the Employer's compliance by way of the abatement plan put in issue, the authority and manner for this type of action is found in 29 USC § 657(f).

The Employer contends the time available before June 1, 1974 has been too short to permit abatement of the violation and that Section 29 USC § 659(c) does not permit the Union to contest the reasonableness of the abatement plan which [*26] has been found adequate by the Secretary.

The Union refers to guidelines to the Department of Labor's Occupational Noise Standards for Federal Supply Contracts, Bulletin 334 of the Department of Labor Workplace Standards Administration, Bureau of Labor Standards, and to the Compliance Operations Manual, January 1973, page X-9 which states "The plan should include the details of abatement and a specific time-table for specific actions leading to complete abatement." The Union contends the abatement plan in Petitioner's Exhibit 1 does not contain or indicate it is based upon a detailed survey of sound levels, does not contain any administrative controls, follow-up audiogram program has not been effectively carried out, repeated noise surveys have not been adequate to measure the effectiveness of attempted engineering changes and some of the abatement plan items have completion dates and some do not.

Since this proceeding was commenced by the filing of a notice of contest, the burden of proof rests with the Secretary, under Commission Rule 73(a). As stated in Secretary v. Kawecki-Berylco Industries, Inc., Docket Nos. 1942 and 2017, April 27, 1973, "In the instant case OCAW filed a [*27] notice of contest and the Secretary thus has the burden of proving that his proposed abatement date is not unreasonable."

The Union is entitled to consideration of the abatement plan solely for the purpose of determining whether the period of time fixed in the amended citation for the abatement of the violation is unreasonable. To hold otherwise would defeat the purpose of 29 USC § 659(c) as a remedy available to any employee or representative of employees as related to the above standard.

Paragraphs 1, 2, 3 and 4 of the abatement plan set forth under III -- Proposed Program, Petitioner's Exhibit 1, are commendable and reflect a management policy necessary to accomplish, if possible, the intent of the standard. However, they are not identified with any specific date of completion and do not extend the date of June 1, 1974 fixed by the Secretary for the abatement of the violation.

The reduction of excessive sound to levels to Table G-16 limits may or may not be possible in all areas of the Employer's plant. The results of installations, etc., under plan paragraphs 5, 6, 7, 8 and 11 can now be evaluated. An assessment of a more vigorous maintenance program with regard to compressed [*28] air leaks, plan paragraph 10, might be made. The Secretary does not contend this plan will effect abatement through feasible administrative or engineering controls.

It is highly significant that neither the Secretary, the Union nor the Employer consider that abatement may have been completed by June 1, 1974. Daniel S. Jenetka, industrial hygienist employed by the Department of Labor, Occupational Safety and Health Administration, testified that assuming the company carried out everything in this plan by June 1, 1974, the noise level would not be down to an acceptable standard, and it would take anywhere from three to fifteen years, maybe longer, to get the noise level down but he still thought the plan reasonable in that the plan will reduce the sound levels (I-69, 70). William E. Funcheon, Jr., area director, Occupational Safety and Health Administration, testified that he agreed with Mr. Jenetka's estimate of three to fifteen years (I-93). Paul E. Toth, supervisor of industrial hygiene section, Ford Motor Company, testified that fifteen years is about the minimum he would put on doing some noise controls on some of the plant operations (I-172, 173). James Mills, called by [*29] the Union and employed by a concern engaged in hearing conservation for industry as regional manager and physicist, testified that three to fifteen years is an unreasonably long period of time and that two years would be a more realistic figure (II-110, 111, 120).

The question is not how many years it will take to reduce the noise levels to conform to Table G-16. The above standard does not necessarily require that this be done. The standard does require that feasible administrative or engineering controls shall be utilized. If the sound levels can be brought to the Table G-16 level through engineering controls, then no administrative controls are necessary. The standard recognizes that such controls may fail to reduce sound to within the G-16 levels, in which event personal protective equipment shall be provided and used.

The abatement plan contains no reference to feasible administrative controls nor to specific, timed engineering controls beyond June 1, 1974. The estimates ranging from two years to fifteen years or more took into consideration abatement of excessive noise in areas and to an extent beyond the 11 items comprising the plan in Petitioner's Exhibit 1.

In informally [*30] agreeing on July 2, 1973 to the filing of an abatement plan by the Employer by August 31, 1973 (which became the final abatement plan of the Employer), the Union did not abandon its contest of the period of time fixed in the citation as amended for the abatement of the violation as unreasonable. The period of time fixed by the date of June 1, 1974 is unreasonable because the undisputed record places a minimum time limit of two years to accomplish abatement, which time period extends considerably beyond June 1, 1974.

It would be untimely for the Union to attempt to proceed under 29 USC § 657(f)(1) as suggested by the Secretary because the inspection has been made and the violation has been found and established.

There is no way in which the Secretary could successfully cite the Employer for failure to abate, pursuant to proceedings under 29 USC § 659(b) where the Employer complied with an abatement plan within time limits fixed by the Secretary, even though the violation remained unabated thereafter.

No present purpose is served in discussing the Employer's attempts to reduce the excessive sound levels in various plant operations nor the Union's contention that important noise [*31] sources, including that generated by tow truck trailer wheels, have not been considered or identified or that adequate and comprehensive engineering goals have not been set with specific accomplishment dates. It is not the Commission function to determine what an abatement plan should contain in order to effect abatement of a violation. The Commission jurisdiction in this proceeding is limited to determining whether the period of time fixed in the amended citation for the abatement of the above violation is unreasonable.

Citation item 81 remains within the Commission jurisdiction. The question of abatement of the standard violated remains unresolved and citation item 81 remains incomplete. 29 USC § 658(a) requires that each citation shall fix a reasonable time for the abatement of the violation. The circumstances of this case make necessary the directing of appropriate relief other than affirming, modifying or vacating the citation item 81 as amended. According to Petitioner's Exhibit 1, the Employer has been engaged in the field of noise abatement since 1954 with a more active involvement since 1970. The Employer retained a recognized firm of acoustic consultants which came [*32] to the plant in July 1973 and filed with the Employer a preliminary report dated October 17, 1973. An extended period of time does not appear necessary to formulate a comprehensive abatement plan. This does not relieve the Secretary of his responsibility to determine the abatement date. This order accomplishes nothing more than the removal of the June 1, 1974 date for the abatement of the violation of 29 CFR § 1910.95(b).

It is therefore necessary to remand the citation to the Secretary to fix a reasonable time for the abatement of the violation, the parties preserving their respective rights under the Act including 29 USC § 659(c).

FINDINGS OF FACT

1. Ford Motor Company, Metal Stamping Division, Chicago Heights, Illinois at times relevant has engaged in a business affecting commerce with employees.

2. A citation was issued by complainant on May 6, 1973 including as item 81 alleged violation of 29 CFR 1910.95(b)(1) with an amendment for this item issued March 29, 1973 extending the date to October 15, 1973 for the filing of an abatement plan.

3. The Complainant consulted with the Employer but not with the Respondent before issuing the amended citation

4. On June 4, [*33] 1973 Complainant filed a motion to amend the abatement date for item 81 to June 1, 1974. On June 22, 1973 Complainant's motion was granted.

5. On April 19, 1973 the Respondent filed a notice contesting the reasonableness of the period allowed for submission of the abatement plan for citation item 81.

6. The Employer by letter of May 10, 1973 requested and acquired party status and on June 18, 1973 contested the amended abatement date of June 1, 1974.

7. At times relevant there were about 3,850 employees, most of whom were subjected to sound exceeding the levels listed in Table G-16 of the cited standard.

8. The abatement plan accepted by the Secretary did not permit abatement of 29 CFR 1910.95(b)(1) by June 1, 1974.

9. The period of time to June 1, 1974 for the abatement of the violation is unreasonable.

CONCLUSIONS OF LAW

1. At times relevant the Employer was and remains engaged in a business affecting commerce within the meaning of 29 USC § 652(5).

2. The conference between the Complainant and the Employer, resulting in the amendment of item 81 to reflect the date of October 15, 1973 for filing an abatement plan, was not part of the physical inspection of the [*34] workplace within the meaning of 29 USC § 657(e), and the Respondent was not entitled to participate in such conference.

3. The Employer has failed to comply with occupational safety and health standard 29 CFR 1910.95(b)(1).

4. No reasonable time has been fixed for the abatement of the violation of citation item 81, 29 CFR 1910.95(b)(1).

5. The validity of citation item 81 requires the fixing of a reasonable time for the abatement of the violation.

ORDER

It is therefore Ordered that the Secretary of Labor shall fix a reasonable time for the abatement of the violation of 29 CFR 1910.95(b)(1), citation item 81, the parties preserving their respective rights under the Act, including but not limited to 29 USC § 659(c).

George W. Otto, Judge, OSAHRC

Dated: September 10, 1974