OSHRC Docket No. 3651

Occupational Safety and Health Review Commission

June 11, 1975


Before MORAN, Chairman; and CLEARY, Commissioner



CLEARY, COMMISSIONER: On December 12, 1973, Judge Ben D. Worcester issued his decision in this case, approving a stipulated settlement agreement executed by the parties on December 3, 1973.

On January 7, 1974, the Commission directed review of the decision in accordance with section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. Submissions were invited on the issue of whether the stipulated settlement agreement had been served on the authorized employee representative.

On May 6, 1975, respondent filed a motion with the Commission, requesting two years from the date of the Commission's final decision to abate item 2e of the citation. The settlement agreement, in an attached abatement plan, had set an abatement date for that item of December 1, 1975, a period approximately two years after executing the settlement agreement. Respondent gave two reasons for its motion. It stated, "Since there is no final order [of the Commission] and due to present economic conditions, of which the Commission is requested to take judicial notice, the respondent has not expended the substantial [*2] sums of money required to install the machinery necessary to lessen the noise to the cure men as required in item 2e of the citation" (emphasis added).

Respondent's motion certified that, By May 1, 1975, it had served a copy of the motion on the authorized employee representative. The motion refers to the settlement agreement and to the Commission's order for review concerning service of the agreement. Because of this notice to the authorized employee representative of the pendency of the settlement, we will not insist upon additional service on the facts of this case. This would reduce the use of procedural rules to a "game theory." No response has been forthcoming from the authorized employee representative. In light of these circumstances it is appropriate to affirm the Judge's approval of the settlement agreement. In so doing, we dispose of the first reason for respondent's motion. With this decision there is a final order of the Commission requiring abatement of item 2e of the citation.

Respondent by its motion seeks an abatement period after issuance of a final order that equals in duration the period set forth in the settlement agreement. In doing so, the [*3] respondent relies upon present economic conditions; i.e., conditions not present at the time of the agreement. In effect, respondent is petitioning for a modification of the abatement period under section 10(c) of the Act. But its motion fails to comport with the Commission's Rules of Procedure published at 29 CFR 2200.34 for filing petitions for modification of abatement period. n1 The motion is therefore denied without prejudice to the filing of a petition complying with the rule. n1

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n1 As amended in 40 F.R. 3594, January 23, 1975.

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MORAN, CHAIRMAN, concurring: I agree with the affirmance of the judge's decision. My colleague characterizes respondent's post decision motion as a petition for modification of abatement; it could also be interpreted as a request for a legal opinion on when a decision of the Commission becomes effective. n2 This Commission, of course, can only adjudicate issues in dispute. Madden v. Hodgson, 502 F. 2d 278 (9th Cir., 1974). It cannot give advisory [*4] opinions.

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n2 29 U.S.C. 661(i) provides for the finality of judges decisions 30 days after filing "unless" directed for review within that period. 659(b) and 666(d) provide that the period of time for correction of a violation "shall not begin to run until" the entry of the final order of the Commission. 659(c) provides that an order of the Commission "shall become final thirty days after its issuance."

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[The Judge's decision referred to herein follows]

WORCESTER, JUDGE: This proceeding arises as the result of a Notice of Contest of a Citation issued by the Complainant Secretary of Labor on June 12, 1973, pursuant to the provisions of Section 10 of the Occupational Safety and Health Act of 1970. The Citation consisted of two items. One alleged a violation of 29 CFR 1910.93(a)(2) by excess exposure of employees to p-phenylenediamine. Item 2 alleged that there was a violation of 29 CFR 1910.95(a) and (b) by exposing employees to excessive occupational noise.

The Complainant, upon further consideration [*5] of Item 1, has concluded that there is no evidence to sustain the burden of proof that this alleged violation occurred and moves that Item 1 and the proposed penalty of $80.00 be vacated. The Respondent simultaneously in a joint stipulation has moved to withdraw its Notice of Contest with respect to Item 2 with the understanding that the Respondent will abate this violation according to a long term plan of abatement to be submitted by the Respondent at an unspecified time in the future.

The Respondent has agreed to pay the proposed penalty of $60.00, to post the stipulation at the workplace where the violation occurred in Oaks, Pennsylvania, and to continue to comply with the pertinent standards in the future.

The Respondent in an attached Schedule of Abatement agreed to abate the violations described in subparagraphs (a) through (d) of Item 2 by April 15, 1974, and subparagraph (e) by December 1, 1975.

In its Notice of Contest the Respondent asserted that it had fully complied with the provisions of 29 CFR 1910.95(b) by furnishing protective equipment and requiring all employees in areas described in subparagraphs (a) through (d) to wear them but did not mention what, if any, [*6] protection was furnished to the employees referred to in subparagraph (e).


Upon consideration of the record as a whole it is hereby ordered that:

1. Item 1 of the Citation and the proposed penalty of $80.00 be vacated.

2. That Item 2 of the Citation be affirmed and the Respondent assessed a penalty of $60.00.

3. That if the Respondent fully complies with the requirement of 29 CFR 1910.95(b) that personal protective equipment which will reduce sound levels to the limits prescribed in Table G-16 be furnished to all employees in the locations described in each of the 5 subparagrphs of Item 2 including the Cure Men during the time the violations are being abated, that the time for abatement of excess noise levels be extended to April 15, 1974, in the area where Tire Line Operators, Head Set Operators, Drum Breakers and High Base Men are employed, and to December 1, 1975, in the area where Cure Men are employed.

There being no other issues to be disposed of this proceeding is dismissed.