OSHRC Docket No. 10996

Occupational Safety and Health Review Commission

September 18, 1975


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners


BY THE COMMISSION: On January 31, 1974, the Brookhaven, Mississippi, plant of the Keystone Seneca Wire Cloth Company (Keystone) was inspected by a compliance officer of the Secretary of Labor. On February 5, 1974, a citation was issued containing 10 items alleging that Keystone had violated the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). Item 3 of the citation alleged that Keystone failed to provide administrative or engineering controls over excessive noise levels, an alleged violation which had a direct and immediate effect on the safety of the workers. The citation required that the violation be abated no later than February 26, 1974.

On February 13, 1974, the Secretary amended the abatement date to require immediately audiometric testing of employees and the provision of ear protection; the submission of a plan to reduce the excessive noise by March 14, 1974; and the total elimination of the excessive noise by January 14, 1975.

Keystone did not contest the citation, and it therefore became a final order of this Commission by operation of law.

Subsequently, [*2] in November 1974, Keystone requested a six-month extension of the January 14, 1975, deadline. The Commission noted its receipt of the case, and explicitly ordered Keystone to comply with the posting and notice requirements set forth in Rule 7 (29 CFR 2200.7) of the Commission's Rules of Procedure. These requirements are intended for the benefit of employees so that they may exercise their rights under section 10(c) of the Act to contest extensions of abatement periods. Keystone did not inform the Commission that it had complied with the posting and notice requirements.

At first, the Secretary of Labor opposed Keystone's request. The case was assigned to Judge Paul L. Brady, who on January 10, 1975, ordered Keystone to post a notice of a hearing to be held on Keystone's request. There is no indication in the record that Keystone complied with the Judge's order.

At the hearing on January 22, 1975, no employees stepped forward to oppose the petition. Thereupon, counsel for the Secretary of Labor stated that he would not oppose Keystone's petition. On February 3, 1975, Judge Brady granted Keystone's petition, noting the lack of opposition.

Review was directed of [*3] Judge Brady's action. We conclude that Keystone has not complied with the Commission's Rules of Procedure with respect to providing notice to affected employees.

Rule 7 (29 CFR 2200.7) of the Commission's Rules of Procedure sets forth the requirements for notifying affected employees of their employer's petition. Without such notice, affected employees may be effectively deprived of their right to oppose Keystone's request for an extension of the abatement date. Keystone subsequently certified that a copy of Judge Brady's order of February 3, 1975, had been posted. But this is insufficient. There is no evidence that affected employees were notified of the petition, or of the hearing, or of the Secretary's ultimate agreement to Keystone's request.

It is evident, however, that the period for abatement is past, and it is no longer practical to do anything but accept the Judge's disposition. See e.g. Standard Transformer Co., No. 8618-P (March 18, 1975); Carling Electric, Inc., No. 6762 (May 14, 1975).

The Judge's order is AFFIRMED.

[The Judge's decision referred to herein follows]

BRADY, JUDGE: On February 13, 1974, the Secretary of Labor issued Respondent herein [*4] a citation setting forth ten violations of the Occupational Safety and Health Act of 1970.

On November 13, 1974, Respondent filed a request for a six-month extension of the abatement date, January 14, 1975, as set forth in item 3 of the amended citation. In response, the Secretary denied that such request should be granted.

Prior to commencement of the hearing in this cause, it was indicated by Complainant that upon further review an extension of the abatement date would not be opposed.

Therefore, it is ORDERED:

The petition for modification of abatement is hereby granted and the abatement date for the alleged violation of the standard at 29 CFR 1910.95 is extended until July 14, 1975.