UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 12817
BETHLEHEM STEEL CORPORATION,
Respondent.

February 19, 1981

DECISION

Before CLEARY, Chairman; and COTTINE, Commissioner.*

A decision of Administrative Law Judge David H. Harris is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). In his decision, Judge Harris affirmed 11 subitems and vacated the remaining 27 subitems of a citation alleging Respondent Bethlehem Steel Corporation’s failure to comply with the noise standard, 29 C.F.R. § 1910.95,[1] at its Lebanon, Pennsylvania plant. The judge ordered a two year abatement period for the affirmed subitems and assessed no penalty. Former Commissioner Moran directed review ‘for error’ and Chairman Cleary directed review of the following issues raised in a petition for discretionary review filed by the Secretary of Labor (‘the Secretary’):

(1) Whether the Administrative Law Judge erred in vacating the alleged violation of 29 C.F.R. § 1910.95(b)(1) for [four] items . .. of the citation?

(2) Whether the Administrative Law Judge erred in finding that the standard at 29 C.F.R. § 1910.95 does not include the dosimeter as a recognized means of determining violations or compliance?

Chairman Cleary also granted Respondent’s ‘cross-petition’ raising eight issues, ‘most of which concern evidentiary rulings by the Judge and also his finding that respondent violated 29 C.F.R. § 1910.95(b)(1).’[2] For the reasons that follow, we set aside the judge’s decision and remand this case for further proceedings. Our holding that the judge erred in failing to permit Respondent to examine a memorandum prepared by the compliance officer and our conclusion that the parties must be afforded an opportunity to introduce additional evidence preclude us from considering the merits of the alleged violation.

I

On January 15, 1975, the Occupational Safety and Health Administration (‘OSHA’) began a general inspection of Respondent’s Lebanon, Pennsylvania plant where Respondent manufactures steel, metal products and machinery. As part of this inspection, OSHA compliance officer and industrial hygienist Leonard Renner conducted a noise survey of the Lebanon facility on February 10, 18, 21, 25, 26, 27, and March 4, 1975. Renner relied on two types of sound measuring devices: (1) a sound level meter that instantaneously measures noise levels in decibels (dBA) on the A scale at slow response and (2) five audio dosimeters. Spot sound level readings at 38 subsequently cited machine locations indicated noise levels in excess of 90 dBA at each location at various times. Actual or projected dosimeter readings or both, made at 37 of the 38 locations, also showed exposure to noise in excess of the Table G–16 limits.[3] As a result of the inspection the Secretary cited Respondent for an other than serious violation of the Act, alleging specifically that Respondent failed to comply with section 1910.95 because employees at 38 designated machine locations were exposed to noise levels in excess of the noise standard’s Table G–16 limits and their exposure was not limited as required by the standard. The Secretary proposed no penalty for the alleged violation. Respondent timely contested the citation and a hearing was held before Judge Harris.

II

In his decision on the merits, Judge Harris ultimately concluded that the Secretary established noncompliance with the noise standard at 11 of the 38 cited locations. The judge preliminarily noted the Secretary’s reliance on dosimeter readings as well as sound level meter readings to establish the alleged violation. He concluded that section 1910.95 does not permit use of audio dosimeters to determine exposure to excessive noise levels. Although he did not comment on the scientific accuracy and reliability of a dosimeter’s correlation of sound levels to time periods, the judge stated his view that the standard provides only two methods for gauging ‘when the sound levels exceed those shown in Table G–16’: (1) measurement of sound levels ‘on the A scale of a standard sound level meter at slow response,’ or (2) use of figure G–9 to measure the equivalent A-weighted sound levels ‘when noise levels are determined by octave band analysis.’

Judge Harris then analyzed the Secretary’s case, assessing the proof submitted on the noise levels and duration of employee exposure for each subitem in the citation, but excluding from his consideration the evidence concerning actual and projected dosimeter readings. He concluded that the Secretary failed ‘to establish a need for protection’ (employee exposure to excessive noise) at 11 locations. In arriving at this result, the judge cited Sun Shipbuilding and Drydock Co., 74 OSAHRC 61/A2, 2 BNA OSHC 1181, 1974–75 CCH OSHD ¶ 18, 537 (No. 268, 1974), noting that the Secretary presented no evidence concerning the nature and extent of the noise levels before, between or following the sound level meter readings and that the Secretary failed to demonstrate the constancy of noise levels between readings at those 11 locations. Judge Harris found concomitantly that the Secretary had established ‘a need for protection’ at the remaining 27 locations.

The judge then considered the feasibility of noise controls suggested by the Secretary. The judge noted that the Secretary’s noise expert, Paul Ostergaard, had testified that controls were available to reduce noise levels at 19 of the 38 cited locations.[4] However, in view of his finding that the Secretary had not established exposure to excessive noise at seven of the 19 locations where noise reduction was assertedly possible, the judge considered the availability of noise controls at only the remaining 12 locations. In evaluating the sufficiency of proof for those 12 subitems, Judge Harris concluded that, while the Secretary has the burden of establishing that engineering controls are available for utilization, he is not additionally required to prove that such controls will ‘reduce sound levels within the levels of Table G–16.’[5] Defining a feasible engineering control as one that is ‘practicable and capable of being carried out,’ the judge found that the controls recommended by the Secretary’s expert for 11 of the 12 locations were feasible and ordered their implementation. Thus, the judge affirmed a violation based on noncompliance with the noise standard at those 11 locations. The parties did not raise as an issue, and Judge Harris did not consider, the economic feasibility of the proposed controls.

In his decision, Judge Harris also disposed of evidentiary and procedural issues raised by Respondent. These rulings are described below.

III

We conclude that Judge Harris correctly decided several procedural and evidentiary issues raised by Respondent before the judge and re-argued before us on review.

A. Motion to Compel Discovery Inspection

In a letter to Respondent, dated April 21, 1975, the Secretary asked for permission to reinspect the Lebanon facility to determine the availability of feasible engineering and administrative controls for the 38 cited locations. Respondent denied the request. The Secretary then filed a motion under Federal Rule of Civil Procedure 37(a) for an order to compel inspection of Respondent’s workplace.[6] Judge Harris granted the Secretary’s motion. The Commission later denied Respondent’s request for interlocutory appeal of this ruling.

Pursuant to the order compelling inspection, the Secretary’s noise expert, Paul Ostergaard, conducted a survey of the 38 designated locations. Ostergaard later testified that feasible engineering controls were available to reduce sound levels at 19 of the 38 cited locations to within or close to the permissible levels of Table G–16.

At the close of the hearing, Respondent moved to dismiss on the ground that the Secretary failed to sustain his burden of establishing the availability of feasible engineering or administrative controls to reduce the noise levels at the 38 cited locations to within Table G–16 limits. In connection with this motion, Respondent asked the judge to reassess his granting of the Secretary’s motion to compel inspection. If the judge favorably reconsidered his prior order, Respondent asked for dismissal of the citation because Ostergaard was the only witness of the Secretary to testify about feasible controls. Judge Harris took the motion under advisement. In his decision, the judge denied Respondent’s motion to reconsider the discovery order.

On review, Respondent argues that Judge Harris should have denied the Secretary’s motion to compel discovery because the Secretary failed to conduct a proper initial inspection sufficient to identify feasible engineering or administrative controls that would be adequate to meet the Table G–16 limits. Further, the Respondent contends that the second inspection, conducted ‘under the guise of discovery’, was burdensome and oppressive. Thus, it urges reversal of the judge’s denial of its motion to reconsider and further urges the suppression of Ostergaard’s testimony and his report.

In its brief on review, Respondent relies heavily on a judge’s decision denying a motion to compel discovery inspection in Pabst Brewing Co., 1975–76 CCH OSHD ¶ 19,956 (No. 13068, 1975), arguing that Pabst ‘is on all fours’ with this case and is therefore dispositive. In reviewing that decision in Pabst Brewing Co., 77 OSAHRC 12/A2, 4 BNA OSHC 2003, 1976–77 CCH OSHD ¶21, 472 (No. 13068, 1977), however, the Commission found that the judge erred in denying a motion to compel a discovery inspection for the purpose of assessing the availability of feasible noise controls under section 1910.95(b)(1). Citing Reynolds Metal Co., 78 OSAHRC 51/F1, 3 BNA OSHC 1749, 1975–76 CCH OSHD ¶ 20,214 (No. 4385, 1975), the Commission noted in Pabst that discovery inspections are ordinarily permissible even if the information sought could have been obtained by the Secretary during the initial inspection. Moreover, the Secretary’s request for discovery may not be interpreted as an admission that a citation was improperly issued, Thomas A. Galante & Sons, Inc., 78 OSAHRC ——, 6 BNA OSHC 1945, 1978 CCH OSHD ¶ 22,984 (No. 77–2512, 1978), because a citation may issue on less evidence than is necessary to prove a contested violation, Bristol-Myers Co., 78 OSAHRC 106/D13, 7 BNA OSHC 1039, 1979 CCH OSHD ¶ 23,223 (No. 77–3854, 1978). See also Ralston Purina Co., 79 OSAHRC 81/F6, 7 BNA OSHC 1730, 1979 CCH OSHD ¶ 23,897 (No. 78–145, 1979).

Consequently, we conclude that Respondent’s arguments concerning the judge’s order granting the Secretary’s motion to compel inspection are without merit, and we affirm the judge’s ruling.

B. Subpoenas Duces Tecum and Respondent’s Noise Surveys

On July 25, 1975, the Secretary served subpoenas duces tecum both on a representative of Respondent, Donald S. Aurand, and on Respondent Bethlehem Steel Corporation. The subpoenas required Aurand and Bethlehem Steel to appear at the hearing, to testify, and to bring with them the following documents:

1. All documentation, results and conclusions of any noise survey taken in January and February, 1975, at the Lebanon Plant by Mr. Thomas Civic or any other employee of the Respondent; and

2. All documentation, results, and conclusions of any noise survey taken at the Lebanon Plant since August 1, 1974, by Mr. Edwin Toothman or any other employee of the Respondent which deals with the existence or non-existence of engineering and/or administrative noise controls at the locations listed in the Citation.

Before the hearing, Respondent filed a motion to quash the subpoenas duces tecum. Judge Harris quashed Item No. 1 of the subpoena issued to Respondent as being improperly vague and nonspecific, and modified Item No. 2, requiring only production of reports and documentation to be used as the basis of testimony by Respondent’s expert witness, senior noise control engineer Edwin H. Toothman. At the hearing, the judge took the same actions on the subpoena issued to Aurand.

Early in the hearing, the Secretary’s attorney asked Judge Harris to reconsider his order quashing portions of the two subpoenas duces tecum as being improperly vague and unspecific. The judge refused to disturb his decision. However, he allowed the Secretary’s attorney to examine a noise survey prepared by Respondent’s employees, a document later marked as Exhibit C–6, over Respondent’s objection that the material was privileged under the work product rule.

As a result of the subpoenas, the Secretary eventually obtained Exhibit C–6 (‘Feasible Noise Reduction Recommendations at 38 Cited Machines and Locations’, written by employees of Respondent, April 7 and 8, 1975), and another noise report by an employee of Respondent, Exhibit C–13 (noise survey by J.F. Savell, a noise control engineer with Respondent, December 9, 1974). The Secretary’s counsel urged admission of Exhibit C–6 as an admission against interest by Respondent and proposed to use the earlier study, Exhibit C–13, to show that Respondent was aware of feasible controls yet failed to implement them by the time of the citation. Judge Harris initially rejected these exhibits, ruling that the Secretary had failed to lay a proper foundation for their admission. At the close of the hearing, however, Judge Harris admitted Exhibits C–6 and C–13 for a ‘clear record’ despite Respondent’s objections. The judge considered the exhibits to be important prehearing statements attributable to Respondent on recommendations it received from employees about the plant’s noise emissions and noted that they were discussed at length on direct and cross-examination. Respondent contended that the exhibits were ‘just recommendations’ and excepted to their admission. In his decision, Judge Harris denied Respondent’s motion to reconsider his ruling on the subpoenas duces tecum.

Respondent argues on review that its motion to quash the subpoenas duces tecum should be reconsidered by the Commission and granted in total, that its noise surveys (Exhibits C–6 and C–13) should be struck, and that all testimony elicited as a result of the subpoenas should be struck from the record.

Respondent contends that the Secretary failed to avail himself of Federal Rule of Civil Procedure 26(b)(4)(a)(i) regarding the expert testimony of Toothman. That rule provides an avenue for discovery of expert testimony as follows:

A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Respondent also maintains that its response to Judge Harris’s pre-hearing order requiring the exchange of certain information between the parties satisfied the basic provisions of Rule 26(b)(4)(A)(i).[7] Thus modifications of the two subpoenas by the judge, to the extent that Respondent was required to produce reports and other evidence relevant to anticipated testimony, was unnecessary and beyond the requirements of Rule 26(b), according to Respondent.

Respondent also contends that Exhibits C–6 and C–13 should not have been admitted into evidence because they were produced in response to these unwarranted subpoenas. According to Respondent, Judge Harris further erred in admitting the exhibits for three additional reasons. First, Exhibit C–6 was prepared by James Savell, a subordinate of Toothman, after the citation was issued and as part of the Respondent’s trial preparation. According to Respondent, the exhibit therefore is privileged as work product. Second, Savell prepared the information in both exhibits but was not called by the Secretary to authenticate the reports. Finally, Exhibits C–6 and C–13 were originally rejected by the judge because the Secretary failed to lay a proper foundation for their admission. Respondent thus concludes that there was no need or justification for the admission into evidence of its noise surveys.

We conclude that Judge Harris properly exercised his discretion in upholding a modified version of the Secretary’s subpoenas duces tecum. Under Rule 55 of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.55, Judges are authorized to revoke or modify subpoenas.[8] The judge here narrowed the scope of the subpoenas and determined that the information relating to the testimony of Toothman, Respondent’s noise expert, was properly subject to production at hearing. He quashed all other aspects of the subpoenas as improperly vague and nonspecific.

In particular, we conclude that the judge’s decision to require the production of documents relating to Toothman’s testimony was proper. Under Federal Rule of Evidence 705,[9] the Secretary was entitled on cross-examination to disclosure of those underlying facts on which Respondent’s noise expert based his testimony. The judge’s ruling merely ensured that the Secretary would have access at the hearing to the documents he was entitled to under Rule 705. Thus Judge Harris properly modified the subpoenas to require production at hearing of information relating to Toothman’s expert testimony.

Respondent’s argument that the Secretary should have proceeded under the pretrial discovery provision regarding expert testimony, Fed. R. Civ. P. 26(b)(4)(A)(i), is without merit. The subpoenas in question directed Respondent Bethlehem Steel Corporation, and Donald S. Aurand, a representative of Respondent, to testify and to bring the requested documents to the hearing. The Secretary was not using the subpoenas as a tool of pretrial discovery. Moreover, there is nothing in the rule that either expressly or impliedly restricts the Secretary’s authority to seek the issuance of a subpoena duces tecum. Thus Respondent’s reliance on Rule 26(b) is misplaced.

We disagree with Respondent’s argument that its noise surveys, Exhibits C–6 and C–13, were inadmissible as privileged attorney work product. Respondent’s noise expert, Toothman, supervised preparation of these documents and referred to them during the hearing. Facts and opinions held by an expert that are relied on in the course of litigation are not privileged attorney work product. See, e.g., United States v. Meyer, 398 F.2d 66, 73–75 (9th Cir. 1968). Thus, the judge correctly denied Respondent’s motion to exclude the exhibits as privileged work product. We further reject Respondent’s assertion that the judge erred in admitting its noise surveys because James Savell, the employee who prepared the reports, was not called to authenticate them. The reports were prepared at the direction of Toothman, Respondent’s senior noise control engineer, who relied on the exhibits in giving his expert testimony. Thus, authentication by Savell was unnecessary. Finally, we find that Respondent’s contention that the Secretary failed to lay a proper foundation for admission of the exhibits is without merit. Judge Harris correctly allowed admission of the documents because, as he noted, they were referred to at length during the hearing.

For these reasons, we find that Judge Harris correctly admitted Exhibits C–6 and C–13 for the purpose of developing a clear record.

C. Respondent’s Settlement Proposal

In a letter to Judge Harris, dated June 6, 1975, the Secretary noted that ‘. . . the parties are attempting to enter into a stipulation to amicably resolve at least portions of the contested case.’ On June 13, 1975, Respondent sent to the Secretary a proposed abatement plan concerning 18 of the cited locations. The parties, however, never reached agreement on these locations.

At the hearing, the Secretary’s noise expert, Paul Ostergaard, admitted on cross-examination that he was aware of the settlement proposal submitted by the Respondent to the Secretary. He testified, however, that his conclusions were independent of the Respondent’s abatement recommendations. Respondent moved to suppress the testimony of Ostergaard, his resume (Exhibit C–9), and his noise survey (Exhibit C–10), to the extent they related to 15 subitems mentioned in the settlement proposal. Respondent argued that the Secretary had violated Federal Rule of Evidence 408, which prohibits the use of an offer of compromise to prove liability or invalidity of a claim or amount.[10] Respondent noted that it had not reached an agreement with the Secretary. It contended that, of the 19 subitems for which Ostergaard had concluded feasible controls were available, 15 had been mentioned in the settlement plan. The Secretary’s counsel replied that Ostergaard’s conclusions were ultimately his own and that Ostergaard did not rely on the plan to reach those conclusions. The Secretary’s attorney conceded that he could not submit the proposal as evidence and explained that he was not attempting to do that. Judge Harris reserved judgment on the question but admitted Ostergaard’s resume, Exhibit C–9, and his noise survey, Exhibit C–10, into evidence. At the close of the hearing, Respondent restated its motion to suppress Ostergaard’s testimony concerning the 15 subitems mentioned in the settlement proposal and asked that those subitems be dismissed. Judge Harris took the motion under advisement.

In his decision, Judge Harris denied Respondent’s motion to suppress Ostergard’s testimony and report based on the asserted violation of Federal Rule of Evidence 408 because Respondent failed to show that the compromise offer was used as evidence to prove the allegations of the citation. The judge observed that Ostergard’s alleged agreement with facets of Respondent’s proposal was outside of Rule 408 because the Secretary did not offer the settlement plan as evidence. Instead, Respondent’s counsel brought out the facts about the settlement agreement and negotiations on cross-examination.

In its brief on review, Respondent renews its contention that Ostergaard relied on Respondent’s settlement plan in reaching his conclusions on feasible controls. In a detailed chart, Respondent analyzes the recommendations of Ostergaard and those of its expert, Toothman, and concludes that there is agreement in the recommendations with respect to 14 of 15 locations. According to Respondent, this agreement is more than coincidental and establishes that, despite his denials, Ostergaard considered and adopted numerous recommendations of Respondent’s expert as his own.

Noting the policy encouraging the settlement of contested cases, Respondent argues that it is well-established that neither party can introduce evidence of a settlement offer to support its case, a principle embodied in Federal Rule of Evidence 408. Respondent contends that Ostergaard’s adoption of Respondent’s recommendations as his own is an attempt by the Secretary to introduce the offer of compromise under the guise of recommendations by its expert, a mere subterfuge to circumvent the clear prohibition of Rule 408. Thus, Respondent requests reversal of the judge’s denial of its motion to suppress the testimony of Ostergaard, Ostergaard’s resume (Exhibit C–9), and his recommendations in Exhibit C–10 concerning 15 subitems.

Respondent asks the Commission to reconsider its arguments made before the judge. Because Judge Harris correctly decided the issue, we adopt the judge’s findings and conclusions on this issue. Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1976–77 CCH OSHD ¶ 22,737 (No. 14281, 1977).[11]

D. Respondent’s Exhibit R–7

In connection with the testimony of its senior noise control engineer, Toothman, Respondent sought to introduce into evidence Exhibit R–7, a summary of an Industrial Fastener Institute (‘IFI’) study. Toothman prepared the summary for use at the hearing. The document divides the machines listed in the citation into four categories depending on the degree of relevance of the IFI study to the noise problem created by each machine. Toothman explained that the exhibit was based on an ongoing study to determine noise controls for typical machines used in the industry. The machines surveyed were not those at the Lebanon plant but ‘typical machines located in other plants.’ Respondent’s attorney asserted that Exhibit R–7 would show that Respondent ‘is participating in [a] good-faith, industry-wide attempt to solve noise reduction problems under laboratory conditions.’ Respondent added that the exhibit would indicate that there are ‘no current feasible engineering controls’ for the machines under the first heading, ‘Noise Sources (machines) definitely included in IFI Study.’ The Secretary’s counsel objected to Exhibit R–7 as irrelevant. He argued that, because the IFI study was not completed, Exhibit R–7 could not reflect any results about feasibility. Judge Harris observed that Exhibit R–7 did not establish the infeasibility of noise controls. At the close of the hearing, Respondent renewed its request to admit Exhibit R–7 and the Secretary’s attorney objected that it had no relevance to the alleged violation. Judge Harris concluded that nothing would be gained by admitting Exhibit R–7 and rejected it. Respondent excepted to the ruling. In his decision, Judge Harris reaffirmed his decision not to admit Exhibit R–7.

On review, Respondent argues that Exhibit R–7 should have been admitted for the purpose of having a clear record and because it was discussed at length on direct and cross-examination. Respondent contends that the exhibit establishes a relationship between the cited equipment and the IFI study. Furthermore, Respondent urges that the document is relevant because it establishes, in conjunction with Toothman’s testimony, that there are not any available feasible engineering controls to reduce or eliminate the noise levels of some typical industrial fastener equipment ‘such as heading equipment, boltmakers, thread rollers and slot furnaces.’ Respondent also argues that other information in Exhibit R–7 is pertinent to determination of the feasibility of controls for particular machines.

We conclude that the disputed document is a bare outline of the IFI study and that it contains no substantive information on the availability or feasibility of noise controls for the designated locations. As Toothman testified, the study was an ongoing one which began on June 1, 1975, only about ten weeks before the hearing commenced. Given the incompleteness of the IFI study, we agree with the Secretary that, Exhibit R–7 was irrelevant because there were no results to consider. In addition, the study on which the exhibit was based did not concern Respondent’s machinery at the Lebanon plant but, instead, ‘typical’ machinery at other plants. In view of the shortcomings of the document and its tenuous relationship to the facts of this case, Judge Harris properly concluded that Exhibit R–7 would add nothing to the record and excluded it. We accordingly affirm the judge’s decision not to admit Exhibit R–7 at that stage in the proceedings.

IV

Although we affirm the judge’s rulings discussed above, we conclude that, by failing to permit Respondent to inspect a memorandum prepared by the compliance officer, Judge Harris committed a procedural error that requires us to set aside his decision.

A. Compliance Officer’s Memorandum, Exhibit C–8

Compliance Officer Renner admitted on cross-examination that, on August 5, 1975, he had written a memorandum to his supervisor ‘regarding feasible engineering controls for those operations’ not covered in the report of the Secretary’s noise expert. Respondent’s counsel asked for a copy of the document. Counsel for the Secretary replied that it was a privileged work product, developed at his direction within two weeks of the hearing ‘as part of the preparation for this case . . ..’ Judge Harris reviewed the document, marked it Exhibit C–8, and explained to Respondent that it concerned the noise expert’s report. He remarked that Renner had not testified about that report, with the exception of ‘two or three peripheral occasions.’ Judge Harris found that the memorandum, an ‘in-house comment by Mr. Renner on various aspects of Ostergaard’s report,’ was a privileged work product. The judge withheld the exhibit and Respondent excepted to the ruling.

In its post-hearing brief, Respondent moved to strike Renner’s testimony and the exhibits related to the testimony—C–1, C–2, C–3, C–4 and C–5[12]—on the ground that it was improperly denied an opportunity to examine Exhibit C–8. In his decision, Judge Harris summarily rejected this motion for the reasons noted at the hearing.

On review, Respondent argues that the judge improperly found that Exhibit C–8 was a privileged work product and consequently erred in refusing to allow the Respondent an opportunity to inspect the memorandum.

Respondent contends that the principle of Jencks v. United States, 353 U.S. 657 (1957), applies to this proceeding. in Jencks, the United States Supreme Court held that a defendant is entitled to inspect all reports of undercover agents who appear as government witnesses so long as the reports relate to the events and activities the witnesses testify to at trial. Further, the Court determined that it is not necessary that the defendant show that the reports are inconsistent with the testimony of the witness if they are related to the same subject. The Court observed that, ‘[b]ecause only the defense is adequately equipped to determine the effective use for [the] purpose of discrediting the Government’s witness and thereby furthering the accused’s defense, the defense must initially be entitled to see [such reports] to determine what use may be made of them.’ Id. at 668–69. Respondent notes that the rule of Jencks v. United States, supra, has been applied to administrative hearings, citing United States v. Bostic, 336 F.Supp. 1312 (D.S.C. 1971), aff’d, 473 F.2d 1388 (4th Cir. 1972), cert. den., 411 U.S. 966 (1973).

In addition, Respondent relies on Frazee Construction Co., 73 OSAHRC 34/B5, 1 BNA OSHC 1270, 1973–74 CCH OSHD ¶ 16,409 (No. 1343, 1973), in which the Commission affirmed a judge’s order vacating a citation and proposed penalty because the Secretary refused to produce certain notes and memoranda prepared by a compliance officer. In Frazee, the Secretary maintained the documents were exempt from production on four grounds: (1) irrelevance; (2) untimeliness; (3) executive privilege; and (4) privilege under exception (b)(7) of the Freedom of Information Act, 5 U.S.C. § 552, as ‘investigatory records compiled for law enforcement purposes.’ The Commission dismissed each of these arguments, finding that the documents formed the foundation on which the alleged violation was predicated and therefore the Secretary was required to disclose them. Respondent argues that under Frazee withholding evidence that may aid an employer violates procedural due process and denies the employer its right to a fair and impartial hearing.

Respondent concludes that Judge Harris clearly erred in not allowing it an opportunity to inspect Exhibit C–8 and that, because Respondent was denied this opportunity, the Commission should strike the entire testimony of the compliance officer and Exhibits C–1, C–2, C–3, C–4 and C–5, and dismiss the citation.

B. Employer Opportunity to Examine Compliance Officer’s Memorandum.

In Massman-Johnson (Luling), 80 OSAHRC ——, 8 BNA OSHC 1369, 1980 CCH OSHD ¶ 24,436 (No. 76–1484, 1980), appeal filed, No. 80–3413 (5th Cir. June 2, 1980), we stated the following with respect to information that we had previously found to be exempt from discovery under both the work product privilege, Fed. R. Civ. P. 26(b)(3), and the informer’s privilege:

During the hearing itself, different considerations come into play. The respondent is entitled to an opportunity for full and effective cross-examination of each witness. This includes an opportunity to test the veracity and accuracy of a witness’s testimony against prior statements by that witness on the same subject.

8 BNA OSHC at 1376, 1980 CCH OSHD at p. 29,808. See Frazee Construction Co., supra; Blakeslee-Midwest Prestressed Concrete Co., 77 OSAHRC 191/A2, 5 BNA OSHC 2036, 1977–78 CCH OSHD ¶ 22,284 (No. 76–2552, 1977). We then noted that this need for effective cross-examination is recognized under the approach of the Jencks Act.[13]13 Accordingly, we adopted the following rule in Massman-Johnson (Luling):

[W]hen a witness has completed testifying for the Secretary on direct examination, the Secretary shall, upon motion by a respondent, turn over to it all the witness’s prior statements that are in the government’s possession and that relate to the subject matter of the witness’s testimony.

8 BNA OSHC at 1376, 1980 CCH OSHD at p. 29,808.

We therefore conclude, with respect to the case now before us, that the judge should have granted Respondent’s request to examine the document at issue. As our decision in Massman-Johnson (Luling) indicates, the fact that the document may have been exempt from pre-hearing discovery as a privileged work product did not justify the judge’s decision to deny Respondent access to the document at the hearing. Indeed, under the Jencks Act, the work product doctrine does not bar production of writings that are otherwise producible. See Goldberg v. United States, 425 U.S. 94 (1976); United States v. Hilbrich, 341 F.2d 555 (7th Cir. 1965), cert. denied, 381 U.S. 941 (1965), reh. denied, 382 U.S. 874 (1965), 384 U.S. 1028 (1966) (two mems.). Further, the protection of work product under Federal Rule of Civil Procedure 26(b)(3) applies to the discovery stage only.[14] The rule does not affect use of the evidence at trial.[15] 15 8 Wright and Miller, FEDERAL PRACTICE AND PROCEDURE § 2023, p. 63 n. 17.1 (Supp.1979). Moreover, although Judge Harris found that the document related ‘only peripherally’ to the testimony of compliance officer Renner, we are not free to speculate on the use Respondent would have made of the memorandum during cross-examination.[16]

Accordingly, to assure Respondent an opportunity for effective presentation of its case, we set aside the judge’s decision regarding Exhibit C–8. On remand, the Secretary should be provided an opportunity to turn over to Respondent a copy of that document, Renner’s August 5, 1975 memorandum to his supervisor. In addition, Respondent should be provided an opportunity to present additional evidence on any matter that is related to the information or opinions contained in Exhibit C–8 and also within the scope of our remand order. In turn the Secretary should be provided an opportunity to rebut any new evidence introduced by Respondent. However, if the Secretary does not turn over a copy of Exhibit C–8 to the Respondent, the judge should enter an order striking the compliance officer’s testimony and the related exhibits from the record.

V

We therefore conclude that the judge’s decision must be set aside and the case remanded for reconsideration. Accordingly, this case is remanded to the chief judge for assignment to an administrative law judge who shall conduct proceedings necessary to dispose of the case on its merits.[17] In addition to observing the instructions set forth in part IV B of this decision, the judge should also take note of and adhere to the following instructions. First, the remand of this case is limited to the fifteen subitems of the citation that have not been finally disposed of by this decision. See note 2 supra. The judge should reconsider Judge Harris’s disposition of these subitems in light of the record, including any new evidence introduced by the parties. Second, in reassessing the case, the judge should apply pertinent intervening precedent announced since Judge Harris’s decision. For example, the Commission has determined that dosimeter readings may be used to measure exposure under the noise standard, section 1910.95. E.g., Wheeling-Pittsburgh Steel Corp., 79 OSAHC 66/A2, 7 BNA OSHC 1581, 1979 CCH OSHD ¶ 23,784 (No. 14702, 1979); Love Box Co., 76 OSAHRC 45/D5, 4 BNA OSHC 1138, 1141 n. 2, 1975–76 CCH OSHD ¶20, 588 at p. 24,629 n. 2 (No. 6286, 1976). In addition, the Commission has held that the Secretary must prove the technological and the economic feasibility of engineering or administrative controls for reducing employee noise exposure. E.g., Samson Paper Bag Co., 80 OSAHRC ——, 8 BNA OSHC 1515, 1980 CCH OSHD ¶ 24,555 (No. 76–222, 1980); Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976–77 CCH OSHD ¶21,009 (Nos. 3973 et al. 1976), appeal withdrawn, No. 76–3229 (9th Cir. April 26, 1977). Both parties presented virtually no evidence on the economic feasibility of the suggested controls and Judge Harris made no findings on the issue. Therefore, the parties should have the opportunity to present further evidence and argument on economic feasibility.[18] SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: FEB 19 1981

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 12817
BETHLEHEM STEEL CORPORATION,
Respondent.

April 12, 1976

DECISION

Appearances:

Alan J. Davis, Esq.

Marshall H. Harris, Regional Solicitor

U. S. Department of Labor

14480 Gateway Building

3535 Market Street

Philadelphia, Pennsylvania 19104

Attorneys for Complainant

Jack D. Shoffner, Esq.

Bethlehem Steel Corporation

663 Martin Tower

Bethlehem, Pennsylvania 18016

Attorney for Respondent

Mr. George Heblow

Chairman, Safety Committee

Local Union No. 1374

United Steelworkers of America

134 Cumberland Street

Lebanon, Pennsylvania 17042

Appearing for Local Union No. 1374

Harris, Judge

On March 6, 1975, Bethlehem Steel Corporation (Bethlehem) was issued a citation pursuant to the provisions of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (the Act) alleging it was in non-serious violation of Section 654(a)(2) thereof in that an inspection initiated on January 15, 1975, disclosed that the standard at 29 C.F.R. 1910.95 was not being complied with at Bethlehem’s plant at 1 Cumberland Street, Lebanon, Pennsylvania. The citation detailed the alleged violation to employees engaged in operations at 38 listed machine locations.[19]

The said citation required ‘Short Term Abatement’ for Item (a) within 30 days and for Items (b) and (c) ‘Immediately upon receipt of citation.’ In addition Bethlehem was required to submit a detailed plan for ‘long term abatement to the Area Director of the Occupational Safety and Health Administration (OSHA) by April 5, 1975 and to accomplish complete abatement by March 6, 1977. Complainant’s definitions of these terms are set out below.[20]

A Notification of Proposed Penalty, issued to Bethlehem on the same day, proposed no penalty for the alleged violation.

The standard at 29 C.F.R. 1910.95 (39 FR 22157–22158, October 18, 1972) provides:

(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G–16 when measured on the A scale of a standard sound level meter at slow response. When noise levels are determined by octave band analysis, the equivalent A-weighted sound level may be determined as follows:

(Fig. G–9 is not applicable and not reproduced.)

(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.

(2) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous.

(3) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.

Table G–16—Permissible Noise Exposures

Duration per day, hours	Sound level dBA slow response
8	90
6	92
4	95
3	97
2	100
1 ½	102
1	105
½	110
¼	115

1

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.

Bethlehem filed a Notice of Contest to the said citation dated March 27, 1975 pursuant to Section 659 of the Act. Thereafter, by virtue of the terms of an order dated May 28, 1975, Complainant conducted a further inspection of Bethlehem’s said plant on July 9, 1975.

Bethlehem is a corporation organized in the State of Delaware and maintains a principal office at Bethlehem, Pennsylvania. It owns and operates the plant in Lebanon, Pennsylvania, together with all of the equipment therein (including the machines listed on the citation, supra) wherein it manufactures steel, metal products and machinery which it sells and distributes to states other than Pennsylvania. Bethlehem sales for the year 1974 approximated $5.38 billion; it is the second largest manufacturer in the United States steel industry and employs some 2,127 hourly employees. The citation herein was posted at the time clock, at or about the time of its receipt, remains posted at that place and service of the said citation and of the Notice of Proposed Penalty are conceded (Tr. 4–9).

It was proposed, without objection, that the citation be amended to locate Item (b) in Factory Division No. 1 and that Item N refer to ‘wire drawer #211’ rather than #14, and it is so ordered.

No objection having been received, the corrections to the transcript of the hearing herein, as detailed by Bethlehem in Attachment ‘D’ to its brief filed herein, be and they are hereby adopted.

Bethlehem’s motion to suppress the testimony of Leonard Renner and Exhibits C–1, C–2, C–3, C–4 and C–5 (Br. pp. 12–14) is denied for the reasons heretofore expressed (Tr. 291–292).

Complainant’s Compliance Officer (CO) conducted an inspection at Bethlehem’s Lebanon facility on February 10, 18, 21, 25, 26, 27 and on March 4, 1975. During these inspections he took a number of instantaneous sound level readings on a sound level meter which measured noise levels in decibels (dBA) on the A scale at slow response (Tr. 24–25). In addition, he used five Dupont Audio Dosimeters (dosimeter). The dosimeters as well as the sound level meter were calibrated and their readings checked prior to their use in Bethlehem’s plant (Tr. 30; 35). The dosimeter measures the percentage of permissible daily exposure to noise and correlates the amount of time that an employee is exposed. The instrument is carried on the person of the employee and its microphone, which is non-directional, is attached to his clothing in the vicinity of his hearing level. Noise impulses are converted to electrical energy which, in turn, produces a reading on the dosimeter in numbers which indicate a percentage of exposure. Readings above 100% indicate non-permissible exposure keyed to the Table G–16 in the standard at 1910.95, supra (Tr. 25–30). However, where the dosimeter readout for 3 hours indicated 100% but the employee involved was actually exposed to the same noise source for 6 hours, a projection is made by doubling the readout to produce 200%, an impermissible exposure for the 6-hour period (Tr. 36). In addition, a morning readout of 50% will be added to an afternoon readout of 75% to produce a sum of 125% for the time covered by both exposures (Tr. 36–37). For the purposes of the inspection herein, the CO rejected dosimeter readings below 133% to allow for a plus or minus 2% error which results in a grey range from 78% to 132% (Tr. 31–32). Dosimeter readouts taken during his said inspection were recorded by the CO in Exhibit C–2 (Tr. 38) and in Exhibit C–4 (Tr. 224–225).

Work at almost all of the 38 cited locations herein requires the employee or employees to move about and in some instances to go from one area in the plant to another for irregular periods of time during the 8 hours each spends on the job (Tr. 35). And, according to the CO, the dosimeter obviated the necessity to follow the affected employee around to determine each sound level and the time period he was exposed to such sound level. However, he took instantaneous sound level meter readings, in dBA, in the area such employee was working and noted the readings and the time such readings were taken (Tr. 35–36; 44–45; Exh. C–3).

Complainant relies not only upon the aforesaid sound level meter readings and the testimony of employee witnesses, but upon the dosimeter readouts, actual and projected (Complainant Br. pp 4–6).

Without comment on the scientific accuracy and reliability of the dosimeter as an instrument to correlate sound levels to time periods and expressing the result in percentage terms related to permissible exposures to stated noise levels in the standard at 29 CFR 1910.95, I find that the standard does not include the dosimeter as a recognized means of determining violation or compliance, i.e., determining when ‘Protection against the effects of noise exposure shall be provided. . . .’ There are but two methods provided in the standard for determining ‘when the sound levels exceed those shown in Table G–16; and they are, measurement of sound levels ‘on the A scale of a standard sound level meter at slow response’ or use of Figure G–9 to determine the equivalent A-weighted sound level ‘when noise levels are determined by octave band analysis.’

I am aware of but four opinions, none of which are decisions of the Review Commission, which have considered the use of the dosimeter, Secretary of Labor v. Love Box Company, Inc., Docket No. 6286 (October 10, 1974), presently under review; Secretary of Labor v. Seaboard Coast Line R. R. Co., 18 OSAHRC 316 (Final Order May 30, 1975); Secretary of Labor v. Tom Brown, Inc., Docket No. 11524 (Final Order August 7, 1975) and Secretary of Labor v. Ford Motor Company, Inc., Docket No. 11542 (November 3, 1975).

In Love Box Company, supra, the trial judge concluded ‘that the regulation in its present form neither endorses nor prohibits the measurement of noise by means of audio dosimeters.’ He was of the opinion that the reference in the standard to the additional method of determining noise levels by octave band analysis was an indication that the standard ‘was not intended to specify exclusive instrumentation for the measurement of noise.’ I am, most respectfully, unable to discern any ambiguity, and adhere to my opinion that the meaning of the standard is plain. It is of interest to note that reference is made in Love Box Company, supra, (fn. 4), to an exhibit indicating that the OSHA Standards Advisory Committee has proposed a revised noise standard which specifically includes the dosimeter as an approved instrument for measuring noise exposure.

In Seaboard Coast Line R.R. Co., supra, the trial judge held that the standard prohibits primary reliance on dosimeter readings to establish the initial determination of a violation of the permissible sound exposure set out in Table G–16. In Tom Brown, Inc., supra, the trial judge concluded that ‘The standard sound level meter at slow response is the method of measurement which is apparently the mandate of the regulation at § 1926.52(a)’.[21] In Ford Motor Company, Inc., supra, the respondent contended that because of the various duties of the single employee tested, a noise exposure sampling should be conducted over a five-day workweek and raised no objection to the use of a dosimeter.

No evidence was offered concerning the overall noise level in the plant on any of the inspection dates and the evidence was limited to the 38 cited locations. I am therefore called upon to make a separate determination in each instance whether sound levels exceeded those shown in Table G–16 requiring that protection be provided against the effects of noise exposure.

Item a, Roll hand, ten inch mill: Complainant failed to establish a need for protection at this location. Sound level meter readings were taken on February 10, 1975, at 10:10 a.m., 90–92 dBA; 10:40 a.m, 94–95 dBA and 95–97 dBA; 12:20 p.m., 95–96 dBA and 2:25 p.m., 93–95 dBA. There are six roll hands each 8-hour shift who rotate to various work areas. The noise varies in these different areas although the noise in each location is constant throughout the day. The employee who testified concerning conditions on February 10, 1975, stated he was on the bridge for one hour and then proceeded to the lower end of the mill about 400 feet away where the noise is less. He spent three hours there sorting bars before returning to the bridge. Although he stated he did not take time out for lunch, he spent three hours outside the mill beginning at 12:30 p.m. Sometimes he remains outside the mill from 1 o’clock to 5 o’clock in the afternoon. In addition, the mill shuts down for a changeover once or twice each day for a period of 20 minutes and that the noise level is low during these changeovers. He stated that there was at least one changeover on February 10, 1975 (Tr. 41–78; C–3 p. 2).

This employee spent 5 1/2 hours in the mill on February 10, 1975, from 7 a.m. to 12:30 p.m. Three hours of this time was spent at a point 400 feet from the bridge where the noise was less. There was one changeover at 11 a.m. lasting 20 minutes during which time the noise level was less than 90 dBA (C–3 pp. 1–2). He therefore was subjected to dBA varying from 90–97 during a period of two hours 10 minutes. G–16 permits up to three hours at 97 dBA.

Item b, Automatic Bundling unit: A need for protection was established at this location. Sound level meter readings were taken on February 10, 1975 at a.m., 95–97, 93–95 dBA; 11:45 a.m., 95–98 dBA; 12:45 p.m., 93–97 dBA, 91–94 dBA, 92–94 dBA and at 2:50 p.m., 94–96 dBA (C–3 p. 6).

The employee-operator spent eight hours at this location. The work during the entire day is the same. He takes 1/2 hour for lunch and 30 minutes cleanup time with a 10-minute break. Although he rotates jobs with others the area in which they rotate is about 20 feet. Allowing 20 minutes for one plant changeover, he spends six hours and 30 minutes at his post exposed to dBA readings from 92 to 98 (Tr. 79–85). See, Reynolds Metals Company Docket No. 1551 (February 25, 1976); Sun Shipbuilding and Drydock Company, 11 OSAHRC 171 (1974).

Item c, Snag Grinder #249: G–16 sound levels were exceeded on February 25, 1975. Sound level meter readings were taken at 9:04 a.m., 93–97 dBA; 9:06 a.m., 93–96 dBA, 91–94 dBA; 10:17 a.m., 90–91 dBA; 10:19 a.m., 110 dBA, 111 dBA; 10:20 a.m., 95–98 dBA; 11:12 a.m., 91–94 dBA; 11:45 a.m., 91–94 dBA (C–3 p. 18). The employee-operator testified that he spends eight hours per day at the machine which grinds die markings from forgings with a wheel which revolves at 1700 revolutions per minute. He has a 10-minute break in the morning, takes 30 minutes for lunch and 15–20 minutes cleanup time. Allowing 20 minutes for a changeover, he spends six hours and forty minutes at his machine. He testified that the work is the same during the entire shift and that the noise level is constant (Tr. 85–92). See, Reynolds Metals, supra: Sun Shipbuilding, supra.

Item d, Furnace Shear, ten-inch mill: Complainant has not established a need for protection at this location. Sound level meter readings were taken on February 10, 1975 at 9:30 a.m., 97–99 dBA; 10:40 a.m., 96–100 dBA; 11:00 a.m., 82 dBA (mill was not operating); 12:20 p.m., 97–98 dBA; 2:25 p.m., 99–100 dBA (C–3 p. 1). No evidence appears to indicate the noise levels between readings on the noise levels after 2:25 p.m. See, Sun Shipbuilding, supra.

Item e, Shear #02–11 and thread roller #08–309: Complainant has not established a need for protection at this location. Sound level meter readings were taken on February 10, 1975 at 9:05 a.m., 98–99 dBA, 94–96 dBA, 96–104 dBA, 96 dBA; 11:15 a.m;, 98–100 dBA, 92 dBA, 94–96 dBA; 2:40 p.m., 95–96 dBA, 98–100 dBA (C–3 p. 3). No evidence appears to indicate the noise levels between readings and after 2:40 p.m. See, Sun Shipbuildings, supra.

Item f, Header #131: Complainant has established a need for protection at this location. Sound level meter readings were taken on February 10, 1975 at 12:40 p.m., 94–96 dBA; 2:30 p.m., 94–95 dBA. The employee-operator testified that he worked eight hours on that date and that the noise is constant all day long. He takes lunch for 30 minutes and is allowed a 10-minute break. He is not allowed cleanup time (Tr. 93–97; C–3 p. 4 #2). Allowing a deduction for lunch and break time and 20 minutes for changeover time, this employee is exposed to at least 94 dBA for a period of approximately seven hours. See, Sun Shipbuilding, supra.

Item g, Press Q–151: A need for protection at this location has been established. Sound level meter readings were taken on February 10, 1975 at 9:45 a.m., 105–108 dBA, 96–100 dBA, 97–99 dBA; 11:30 a.m. to 11:40 a.m. the mill was down, 11:40 a.m., 96–100 dBA, 97–100 dBA, 105–107 dBA (C–3 p. 5). No employee-operator testimony was offered to establish the nature of and the constancy of the noise levels at this location. However, while complainant’s inspection was in progress, Bethlehem took sound level meter readings and, in conjunction with its estimation of operating time by plant personnel, determined the daily noise does at this location to be 2.94 which is an equivalent dBA level of 98 (Tr. 753). This result compares quite well with the projected exposure at this location indicated by use of a dosimeter (Tr. 58; C–2 p. 1 #2). See, Secretary v. Lee Way Motor Freight, Inc., Docket No. 7674 (December 22, 1975).

Item h, Press Q–153: Complainant has failed to establish a need for protection at this location. Sound level meter readings were taken on February 18, 1975, at 9:30 a.m., 97–100 dBA, 92–95 dBA; 10:41 a.m, 96–99 dBA, 89–93 dBA; 1:30 p.m., less than 90 dBA; 2:45 p.m., less than 90 dBA; 2:57 p.m., 92–98 dBA. No evidence appears concerning noise levels between sound level meter readings and after 2:57 p.m. See, Sun Shipbuilding, supra.

Item i, Press Q–153 (Takeoff and bundler): A need for protection has been established at this location. Complainant made sound level meter readings on February 18, 1975 at 9:25 a.m., 95–102 dBA; 9:27 a.m., 94–102 dBA, 98–105 dBA; 10:40 a.m., 94–107 dBA; 11:50 a.m., 86 dBA; 30:00 p.m., 102–107 dBA; 2:45 p.m., under 90, the press was down (C–3 p. 10, #2).

No testimony was offered concerning the noise and its constancy between readings. However, Bethlehem, on the same day, took sound level meter readings and in conjunction with the operating time determined by plant personnel found a daily noise does at this location of 6.0 or an equivalent of 103 dBA (Tr. 755). A dosimeter projection based upon an actual exposure time of just under 3 hours, also indicated an exposure in excess of that permitted in Table G–16 (Tr. 194–195; 333–334), Lee Way Motor Freight, supra.

Item j, Ear press #11–48: Complainant failed to establish a need for protection at this location. The CO made sound level meter readings on February 18, 1975 at 9:20 a.m., 96–102 dBA, 93–95 dBA; 10:38 a.m., 96–102, 93–95 dBA; 10:45 a.m., 92–93 dBA; 1:20 p.m., 96–102 dBA, 92–93 dBA; 2:52 p.m., 92–102, 92–94 (C–3 p. 8, #2). No evidence appears concerning the noise levels and their constancy between readings. See, Sun Shipbuilding, supra.

Item k, Spike machine #17: A need for protection at this location has been established. The CO made sound level meter readings at this location on February 18, 1975 at 10:08 a.m., less than 90 dBA (break period); 10:25 a.m., 99–100 dBA, 95 dBA; 1:06 p.m., under 90 dBA; (the machine was being hand-fed at this time) 1:10 p.m., 95–96 dBA; 2:33 p.m., 93–94 dBA (C–3 p. 9). One of the employee-operators testified tht he works eight hours at this machine; the noise is constant all day long; he takes lunch for 30 minutes, is allowed a ten-minute break and does not take cleanup time (Tr. 98–101). The average exposure time here is more than seven hours and exceeds the permissible noise exposure limited in Table G–16.

Item 1, Spike machine #19: A need for protection has not been established at this location. Sound level meter readings were made on February 18, 1975, at 10:08 a.m., under 90 dBA (general area—break period); 10:25 a.m., 100–101 dBA, 97–98 dBA; 1:08 p.m., 100–102 dBA; 2:33 p.m., 100–102 dBA (C–3 p. 9). The employee-operator was not offered as a witness. The employee-operator of spike machine #17, Item k, testified that there are five spike machines, each with its own furnace, all of which are very noisy and roar all day (Tr. 100–101). The CO stated that the major noise source came from the operation of the furnaces in the area and from the forming mechanism of the spike machine (Tr. 335–336). The dosimeter readout projected an exposure of 192% of the permissible noise exposure permitted by the Table at G–16 (C–2 p. 2, Col 4) and Bethlehem’s survey, done in October 1974, found a daily noise does of 5.21, the equivalent of 102 dBA (Tr. 757). However, as I have determined, supra, the dosimeter is not specified in the standard as an instrument whose readings will support a determination that protection against the effects of noise exposure shall be provided. Such a determination can be supported only by measurements on the A scale of a standard sould level meter at slow response or by octave band analysis equivalents on the A scale by the use of Figure G–9 (29 CFR 1910.95(a)). It was conceded by the CO that he made no sound level meter readings at each phase of the operation at each station cited, nor did he record the time each employee spent at each such phase of that operation.

It seems clear from the language of the standard that in order to make a finding that protection against the effects of noise exposure shall be provided, a determination must be made that an employee or employees have been exposed to the listed sound levels at dBA slow response for periods in excess of the number of hours set out in Table G–16. This cannot be a matter of conjecture but must be based on evidence upon which such a conclusion may fairly be arrived at. The record in this instance is barren of any testimony or other evidence touching the actual duration of the exposure of the operator of the spike machine at Item 1 to the sound levels shown by the three-sound level meter readings, the first at 10:25 a.m., the second about two and one-half hours later and the last about an hour and one-half after that. See, Sun Shipbuilding, supra.

Item m, Hand spike machine #24: The need for protection at this location has been established. Sound level meter readings were made on February 18, 1975 at 10:14 a.m., 91–94 dBA; 10:25 a.m., 97–98 dBA; 96–98 dBA; 1:06 p.m., under 90 dBA; 2:30 p.m., 93–95 dBA (C–3 p. 9). The employee-operator testified that he spends 7 1/2 hours each day at this machine and that the sound is constant. stant. He takes a 10-minute break in the morning and 30 minutes for lunch. He works on piecework and does not leave his machine (Tr. 102–103). See, Sun Shipbuilding, supra.

Item n, Wire drawer #14: A need for protection at this location has been established. Sound level meter readings were made on February 18, 1975 at 8:52 a.m., 92–100 dBA, 102–103 dBA; 8:55 a.m., 100 dBA, 110–113 dBA, 117 dBA, 115 dBA; 9:03 a.m., 114 dBA; 9:05 a.m., 92–95 dBA; 9:07 a.m., 115 dBA; 9:10 a.m., 116 dBA; 9:11 a.m., 93 dBA; 9:16 a.m., 95–97 dBA; 10:31 a.m., 100–102 dBA; 11–42 a.m., under 110 dBA, 98–100 dBA; 1:15 p.m., 112–116 dBA, 111–114 cBA; 1:18 p.m., 112–114 dBA; 1:20 p.m., 11–115 dBA; 2:45 p.m., 111–113 dBA, 96–98 dBA, 100–101 dBA (C–3 p. 11–12). The employee-operator testified that the noise levels appear to him to be the same all day, that he works an eight-hour shift, that he takes a 10-minute break in the morning and takes 30 minutes for lunch. There are three machines at this operation. The first welds the wire, the second drills the wire to size and the third winds the wire on a spool (Tr. 107–112). The dosimeter readout projected 127% of the permissible noise exposure in Table G–16 (C–2 p. 2, Col. 5). As additional corroboration Bethlehem surveyed this location during the inspection and found the daily noise dose to be 3.67 the equivalent of 99 dBA (Tr. 758). See, Sun Shipbuilding, supra.

Item o, Pickling room: A need for protection has been established at this location. Sound level meter readings were taken on February 18, 1975 at 9:13 a.m., 93–94 dBA, 94 dBA, 93–96 dBA; 10:35 a.m., (same readings); 11:44 a.m., (same readings); 1:20 p.m., (same readings); 2:50 p.m., (same readings) (C–3 p. 8, #1). The employee-operator testified that he worked readings) (C–3 p. 8, #1). The employee-operator and that there is no change in the noise level during the day. He takes a 10-minute break in the morning, takes 30 minutes for lunch and does not leave the work area (Tr. 113–115). See, Sun Shipbuilding, supra.

Item p, Cold rivet headers and cold rivet spike machines: A need for protection at this location has been established. Sound level meter readings were taken on February 18, 1975, at 8:37 a.m., 95–97 dBA; 8:40 a.m., 89–91 dBA; 8:42 a.m., 93–95 dBA; 8:45 a.m., 89–91 dBA; 8:46 a.m., 96–98 dBA; 8:48 a.m., 97–99; 10:31 a.m., 104–105 dBA, 92–93 dBA; 10:45 a.m., 99–101 dBA; 11:35 a.m., 101–102 dBA; 2:35 p.m., 93–94 dBA (C–3 p. 7, #2). The employee-operator testified that he works eight hours at this location and that the work and noise remains constant. There are nine machines in a row, eight are rivet machines while one machine produces spikes. The latter is electrically operated and produces 168 spikes per minute using cold steel stock varying from 1/4 inch to 3/8 inch square. On the date of the inspection he operated two of these machines and sometimes three. He takes a 10-minute break in the morning, his lunch from 12 to 12:30 p.m. and does not take cleanup time. These machines do not shut down during the morning break. He moves up and down this row of machines while performing his work, a distance of between 40 and 50 feet (Tr. 116–120). The CO made eleven readings at this location because the operator moves along the row of machines during the operation but did not measure the time spent at each location (Tr. 340–341). The dosimeter readout in this instance projected 125% of Table G–16 permissible noise exposure (C–2 p. 2), while Bethlehem’s October 1974, noise survey produced a daily noise does at this location of 101 dBA (Tr. 760). See, Sun Shipbuilding, supra.

Item q, Drill press #17–82: A need for protection was established at this location. Sound level meter readings were taken at this location on February 21, 1975, at 8:59 a.m., 96–97 dBA; 9:50 a.M., 96–97 dBA, 10:50 a.m., 96–98 dBA; 11:30 a.m., 97–98 dBA, 100 dBA (C–3 p. 14, #1). The employee-operator testified that he works eight hours at this machine with a 10-minute break in the morning and 30 minutes for lunch and that the noise is the same at all times. He works all day and does not take time to cleanup. The machine is shut down during his morning break. He takes his lunch at the location after throwing coffee from a coffer machine (Tr. 122–125). The dosimeter readout projected 118% of the permissible noise exposure according to Table G–16 (C–2 p. 3, #2). See, Sun Shipbuilding, supra.

Item r, Sucker rod header #127: A need for protection was established at this location. Sound level meter readings were made on February 21, 1975 at 9:03 a.m., 114–116 dBA; 9:05 a.m., 111–116 dBA, 113 dBA; 11:35 a.m., 101–102 dBA, 105–107 dBA (C–3 p. 14, #2). The employee-operator testified that he works eight hours on his shift and that the noise during his workday is the same. His machine has a furnace and there is another furnace about 30 feet distant for a drill press which is immediately behind him. He works on piecework and attends his machine all day except for time to get a drink of water. He has a 10-minute break in the morning during which he shuts the machine down and he takes 20 minutes for lunch. He stated that due to the noise he had difficulty hearing instructions given him by the CO concerning the wearing of a dosimeter (Tr. 133–138). The CO stated that the noise level in the vicinity of this machine while it was not in operation was 113 dBA and that at 9:05 a.m. an air discharge produced a dBA reading of 116 (Tr. 202). See, Sun Shipbuilding, supra.

Item s, Coupling tapper #218: A need for protection was established at this location. Sound level meter readings were made on February 21, 1975 at 8:55 a.m., 101–103 dBA; 9:40 a.m., 99–100 dBA; 9:56 a.m., machine shut down; 11:20 a.m., 101–102 dBA; 11:35 a.m., changeover; 11:40 a.m., 101–102 dBA (C–3 p. 15 #1). The employee-operator testified he works an eight-hour shift with a 10 minute-break in the morning during which the machine is shut down, and 30 minutes for lunch. When his machine is operating there is no difference in the noise level. On the date of the inspection his machine was shut down for repairs for several hours in the morning during which time he remained in the same area. He stated that when in operation, his machine, which reams and taps couplings, sounds like grinding gears (Tr. 127–132). On the day of the inspection herein the operator’s machine was shut down from 9:56 a.m. to 11:20 a.m. and, allowing for 30 minutes cleanup time, the operator was exposed to the noise levels indicated for approximately five hours and 26 minutes. See, Sun Shipbuilding, supra.

Item t, Nut former #09–58: A need for protection was established at this location. Sound level meter readings were made on February 25, 1975 at 1:41 p.m., 94–96 dBA, 93–94 dBA; 1:44 p.m., 96–98 dBA, 98 dBA; 2:52 p.m., 91–93 dBA, 96–99 dBA, 92–94 dBA; 3:37 p.m., 96–98 dBA (C–3 p. 20, #1). The employee-operator testified that he worked a full shift of eight hours, that he does the same work all day long and that the noise is the same both morning and afternoon. He stated that the machine is subject to occasional breakdowns and that on February 25, 1975, the machine did not function until just before noon and thereafter operated until quitting time at 4 p.m. Nut former #09–58 is electrically operated. It is 15 feet long and six feet wide. Bars of metal 30 feet long are heated in an electric induction furnace and are cut and formed into nuts which are not threaded. The machine makes square or hexagonal nuts. A large furnace is positioned to his left with another located to his right rear. He does not shut his machine down during his 10-minute break (Tr. 139–147). The sound level meter readings indicate operation of the machine from 1.41 p.m., deducting 10 minutes for a break and 30 minutes for cleanup, leaves an approximate exposure time of two hours and 19 minutes. Bethlehem made a survey at this location at the same time and produced a daily noise does of 1.58, equivalent to 93 dBA (Tr. 768). See, See Shipbuilding, supra.

Item u, Burring machine #10–62: A need for protection has been established at this location. Sound level meter readings were made February 25, 1975, at 1:56 p.m., 97–99 dBA and at 3:06 p.m., 96–98 dBA (C–3, p. 21, #1). There was testimony that one, Jean Decker, the employee-operator of this machine worked from 8 a.m. until 4 p.m. with a 10 o’clock break in the morning, 20 minutes for lunch and an allowance for cleanup time. An employee, who worked the same day on a similar machine, Burring machine #63, stated that Jean Decker worked on the machine at Item u at a distance of eight feet from #63 and that the noise is constant when both machines are running. After deducting the morning break, 20 minutes for lunch and 30 minutes for cleanup time, Jean Decker was exposed to the noise levels indicated for approximately seven hours. Computing the exposure time from 1:56 p.m. and allowing 30 minutes for cleanup, the approximate exposure is two hours and four minutes at 96 dBA, taking the minimum reading without interpolation. See, Sun Shipbuilding, supra.

Item v. Hand header #159: A need for protection has been established at this location. Sound level meter readings were made on February 25, 1975, at 9 a.m., 92–93 dBA, 96–97 dBA; 10:13 a.m., 92–94 dBA; 10:37 a.m., 96–98 dBA; 11:10 a.m., 95 dBA; 11:47 a.m., (same) (C–3 p. 17, #1). The employee-operator testified that he worked eight hours with a 10–minute break and 20 to 30 minutes for lunch, that the machine ran all day, that he is in the area during the entire shift and that the noise is the same all day long. (Tr. 153–157). See, Sun Shipbuilding, supra.

Item w, Heavy duty heater #160: A need for protection has been established at this location. Sound level meter readings were made on February 25, 1975 at 9:10 a.m., 96–97 dBA, 97–98 dBA; 9:32 a.m., 98–100 dBA; 11:15 a.m., (same); 11:48 a.m., 97–99 dBA (C–3 p. 17, #2). The employee-operator did not testify; however, Bethlehem surveyed the location during the inspection and produced a daily noise does of 3.25, equivalent to 98 dBA. Noise measurements and estimates of operating time were used to determine the daily noise does (Tr. 771). See, Secretary v. Lee Way Motor Freight, Inc., Docket No. 7674 (December 22, 1975).

Item x, Press #148: A need for protection at this location has not been established. Sound level meter readings were made at this location on February 25, 1975 at 9:15 a.m., 105–107 dBA; 10:35 a.m., (same); 11:20 a.m., 101–104 dBA; 11:50 a.m., (same) (C–3 p. 19, #1). The employee-operator did not testify and except for a dosimeter projection of 212% (C–2 p.4, line 4) and an October 1974 survey made by Bethlehem which produced a daily noise dose of 2.96, equivalent to 98 dBA (Tr. 772), there is no evidence concerning the nature of the noise levels between and following the sound level meter readings made on February 25, 1975 at this location which could support a conclusion of exposure to the stated noise level in excess of the periods provided in the Table G–16. See, Sun Shipbuilding, supra.

Item Y, Billet Shear #135: A need for protection at this location was established. Sound level meter readings were made at this location on February 25, 1975 at 9:17 a.m., machine down; 10:34 a.m., machine down; 11:15 a.m., machine down, backgrown noise 91–93 dBA; 11:47 a.m., machine down; 1:46 p.m., background noise 93 dBA, 100–103 dBA, 109 dBA; 2:57 p.m., background noise 92–94 dBA; 3:41 p.m., background noise 92–94 dBA (C–3 p. 19, #2). The employee-operator did not testify. According to the CO the machine ran only in the afternoon beginning at 12:31 p.m. and a dosimeter readout, carried by the operator from that time until 3:42 p.m., projected 183% of the permissible noise exposure in the Table G–16 (Tr. 208; 347; C–2 p. 4 line 5–6). However, a survey made by Bethlehem on the same day, produced a daily noise dose of 2.6 equivalent to 97 dBA which was based on noise measurements and estimations of working time of the employee-operator. See, Lee Way Motor Freight, Inc., supra.

Item z, Alligator Shear #60: A need for protection has been established at this location. Sound level meter readings were made on February 25, 1975 at 1:51 p.m., 91–97 dBA; 2:01 p.m., 91–94 dBA; 2:08 p.m., 93–95 dBA, 102–108 dBA; 3:02 p.m., 103–110 dBA, 98–100 dBA (C–3 p. 20, #2). The employee-operator did not testify. A dosimeter readout indicated a projection of 270% of the permissible noise exposure provided in Table G–16 (C–2 p. 4, line 3). However no evidence was offered by complainant indicating the noise levels prior to, between, or following any of the sound level meter readings to form a basis for a reasonable conclusion that the employee operating the machine was exposed to the noise levels indicated for a period in excess of that provided for in Table G–16, Sun Shipbuilding, supra. Nonetheless, Bethlehem made a survey of the noise levels at this location on the same day the result of which, based upon sound level meter readings and times of employee exposure, indicated a daily noise dose of 2.75 equivalent to 97 dBA (Tr. 776). See, Lee Way Motor Freight, Inc., supra.

Item aa, Automatic bolt maker #99: A need for protection has been established at this location. Sound level meter readings were made on February 25, 1975 at 1:52 p.m., 99–101 dBA and at 3:04 p.m., 98–100 dBA (C–3 p. 21, #2). A dosimeter readout projected 147% of the permissible noise exposure, but again, no proof was offered to establish the nature and existence of the noise levels before, between or following the sound level meter readings during the employee-operator’s presence at the machine. However, Bethlehem conducted a noise survey on the same day and using sound level meter readings and the times of operation produced a daily noise dose of 3.5 equivalent to 99 dBA. See, Lee Way Motor Freight, Inc., supra.

Item bb, Square nut machines: A need for protection was established at this location. Sound level meter readings were made on February 26, 1975 at 9:35 a.m., 93–98 dBA; 10:25 a.m., 93–98 dBA; 11:05 a.m., 93–103 dBA, 102–103 dBA; 11:15 a.m., 93–94 dBA; 1:42 p.m., 93–104 dBA, 100–104 dBA; 2:26 p.m., 93–96 dBA; 3:27 p.m., 93–96 dBA (C–3 p. 22, #1). A dosimeter readout here made a projection of 135% of the permissible noise exposure in Table G–16 (C–2 p. 5) but no evidence was offered by the complainant concerning the nature and existence of noise levels during the employee-operator’s at this location before, during or following the sound level meter readings. However, here again, a contemporaneous study by Bethlehem of the sound level meter readings and exposure times of the employee at this location indicated a daily noise dose of 3.46 an equivalent of 99 dBA. See, Lee Way Motor Freight, Inc., supra.

Item cc, Nut Former #62: need for protection at this location was not established. Sound level meter readings were made on February 26, 1975 at 9:39 a.m., 98–105 dBA; 10:29 a.m., 97–98 dBA, 98–105 dBA; 11:07 a.m., 89 dBA, 89–90 dBA; 11:40 a.m., 89–90 dBA; 1:47 p.m., 98–104 dBA; 2:27 p.m., 98–104 dBA (C–3 p. 22, #2). The employee-operator did not testify. No evidence was offered concerning the nature and extent of the noise levels prior to, during or following the sound level meter readings while the employee was present at the machine. See, Sun Shipbuilding, supra.

Item dd, Parts former #66: A need for protection was established at this location. Sound level meter readings were made on February 26, 1975 at 9:31 a.m., 94–99 dBA; 9:41 a.m., 91–99 dBA; 10:20 a.m., 95 dBA, 96–100 dBA; 11:02 a.m., 90–91 dBA, 94–95 dBA; 11:42 a.m., 96–100 dBA; 1:41 p.m., 96–100 dBA,; 2:27 p.m., 96–100 dBA; 3:29 p.m., 95–100 dBA (C–3 p. 27). The employee-operator testified that he worked eight hours on the date of the inspection; that he works continuously and takes no break for lunch or for a rest period; that the noise is the same all day long; that he cannot operate the machine unless he can listen to its operation and that he cannot hear the machine with ear plugs in his ears. He operates three nut former machines while operating the parts former and that on the date of the inspection there were other nut tappers in operation about 20 to 25 feet distant. During the operation he is required to change coils. A coil lasts 1 1/4 hours, unless a special product is involved in which case the coil will last 20 minutes. The coil change takes about 15 seconds. He is required to move around the parts former machine to make adjustments and he moves continuously in an area of 50 by 30 feet. He works on a piecework basis (Tr. 161–165). The CO testified that the noise is constant, fluctuating only when the machine is shut down to make a coil change, which takes about one minute and that the lowest dBA recorded during the time the machine was running was 92–94 (Tr. 211–212). The CO took sound level meter readings at each of the locations at which the operator is required to perform operations but he did not measure the time spent at each location. He estimated that the coil is changed about 10 times during the shift (Tr. 351–352). See, Sun Shipbuilding, supra.

Item ee, Bolt maker #54: A need for protection was established at this location. Sound level meter readings were made on February 26, 1975 at 9:26 a.m., 96–100 dBA; 9:50 a.m., 90–92 dBA; 10:18 a.m., 92–94 dBA, 96–100 dBA; 10:56 a.m., 91–92 dBA; 11:40 a.m., 97–100 dBA; 12:06 p.m., 97–100 dBA; 2:15 p.m., 98 dBA; 2:50 p.m., 96–98 dBA (C–3 p. 26, #2). The employee-operator testified that he worked eight hours at this machine and that the work is the same and the noise is constant during the eight hours of his shift. He takes a break in the morning but the machine is not shut down. His machine does not break down often and he could not recall if there had been a breakdown during this inspection. There are eight bolt making machines in a circle around his machine. On the inspection day he operated two bolt makers, numbers 54 and 79 and a bolt making machine in front of him was also in operation (Tr. 168–72). A dosimeter which he had worn for between five and six hours, projected 129% of the permissible noise exposure in Table G–16 (Tr. 171; C–2 p. 5, line 2). See, Sun Shipbuilding, supra.

Item ff, Thread rollers: A need for protection was established at this location. Sound level meter readings were made on February 26, 1975 at 9:29 a.m., 90–92 dBA; 10:20 a.m., 90 dBA (machines not running); 10:20 a.m., 91–93 dBA (machines started running); 10:52 a.m., 91–92 dBA; 11:32 a.m., 95 dBA, 94–98 dBA; 1:37 p.m., 92–94 dBA; 2:29 p.m., 92–94 dBA; 3:25 p.m., 95 dBA (C–3 p. 23). The employee-operator testified that he worked eight hours on this date; that the noise is constant all day long; he takes a 10-minute break in the morning and 30 minutes for lunch. A dosimeter, which he had worn for 3 1/2 hours during the morning only, projected 83% of the permissible noise exposure in Table G–16 (Tr. 178; C–2 p. 5, line 3). See, Sun Shipbuilding, supra.

Item gg, Tapper #221: A need for protection was not established at this location. Sound level meter readings were made on February 26, 1975 at 1:50 p.m., 102–105 dBA; 2:07 p.m., 102–104 dBA; 2:34 p.m., 102–104 dBA; 3:22 p.m., machine shut down, under 90 dBA (C–3 p. 26, #1). The CO stated that he had attached a dosimeter to the operator which was worn by him from 12:46 p.m. to 3:23 p.m. The readout projected 170% of the permissible noise exposure in Table G–16 (Tr. 214; C–2 p.5, line 11). No evidence was offered concerning the nature and extent of noise levels prior to, between or following the sound level meter readings in the time during which said operator was exposed to such noise levels. See, Sun Shipbuilding, supra.

Item hh, Press #22: A need for protection was established at this location. Sound level meter readings were made on February 27, 1975 at 9:18 a.m., 92–98 dBA, 92–98 dBA; 9:37 a.m., 94–96 dBA, 94–98 dBA; 10:21 a.m., 94–96 dBA, 94–98 dBA; 10:15 a.m., 93–95 dBA, 93–98 dBA; 11:39 a.m., 93–96 dBA, 93–98 dBA (C–3 p.28, #1). The employee-operator did not testify. The CO stated that the operator wore a dosimeter from 8:29 a.m. to 11:55 a.m. and that the readout projected 104% of the permissible noise exposure in Table G–16 (C–2 p. 6, line 1). He stated that the operator was at this press almost all of the time except for time spent in the men’s room. He stated that the operator worked eight hours, was allowed a 10-minute break in the morning, 30 minutes for lunch, 30 minutes for cleanup and that his total work time was estimated at less than seven hours (Tr. 214–217). In addition, a survey made by Bethlehem on the same day, by using sound level meter readings and estimated time of exposure at this location, produced a daily noise dose of 1.30, equivalent to 92 dBA (Tr. 785). See, Sun Shipbuilding, supra.

Item ii, Conomatic #257: A need for protection was established at this location. Sound level meter readings were made February 26, 1975 at 9:21 a.m., 93–94 dBA, 105 dBA, 94–97 dBA; 9:25 a.m., 94–95 dBA; 9:41 a.m., 95–96 dBA; 10:20 a.m., 95–96 dBA; 10:55 a.m., 94–95 dBA, 94–97 dBA, 105 dBA; 11:32 a.m., 91–93 dBA; at 9:36 a.m., general area, 97–102 dBA (C–3 p. 29). The employee-operator testified that the conomatic #257 cuts pipe into couplings and that ends of the couplings are bored and reamed in preparation for threading out on a machine called conobore #131. The conomatic is six feet long and three feet wide and stands side by side with the conobore which is four feet long and two feet wide. He operates both machines (Tr. 805) and spends more time at the conobore than he does at the conomatic and remains in the immediate area of these machines during his eight-hour shift. On February 26, 1975 he was running 5/8 inch stock through the conomatic to make sleeve nuts. He takes a 10-minute break in the morning during which the machines are left running. He wore a dosimeter on February 26, 1975 from 8:30 a.m. until 12 noon. He performs the same work all day long and the noise is constant (Tr. 180–184). The dosimeter readout projected 102% of the permissible noise exposure in the Table at G–16 (C–2 p. 6, line 2).

The citation herein makes no reference to the conobore #131 machine. The testimony of Bethlehem’s Senior Noise Control Engineer, which is not disputed, indicates that the two machines are operated by the same employee and are not more than three to four feet apart (Tr. 814). This coincides with the employee-operator’s description of this operation. While it may be true that the citation does not make reference to the conobore machine, the omission can have no effect on a finding that the employee-operator at this location needs protection from excessive noise levels under the circumstances disclosed here. His employment requires that he operate both machines as a unit in the performance of his assigned tasks. The machines are side by side and are tended by the operator all during the day. In fact, he spends 75% of his time in the performance of duties at the conobore (Tr. 182; 814) and it is clear that any steps taken to afford protection from excessive noise levels of any employee engaged in this operation must of necessity include consideration of the conobore and its contribution to the noise levels which affect such employee-operator. See, Sun Shipbuilding, supra.

Item jj, Press #132: A need for protection at this location has not been established. Sound level meter readings were made on February 27, 1975 at 9:06 a.m., 109–113 dBA, 109 dBA, 113 dBA; 9:08 a.m., 108–113 dBA, 112–115 dBA; 9:10 a.m., 92–94 dBA; 9:45 a.m., 107–112 dBA, 105–108 dBA; 10:18 a.m., 108–112 dBA; 10:54 a.m., 107–112 dBA, 11:32 a.m., 107–113 dBA (C–3 p. 30). The employee-operator did not testify. A dosimeter, attached to the operator from 8:31 a.m. to 11:45 a.m. projected 310% of the permissible noise exposure in Table G–16 (C–2 p. 6, line 3). No evidence appears of record concerning the nature and extent of the noise levels between sound level meter readings which will support a finding that the employee-operator was subjected to noise levels in excess of the permissible noise exposure listed in Table G–16. See, Sun Shipbuilding, supra.

Item kk, Gridley machine #224: A need for protection has been established at this location. Sound level meter readings were made on February 27, 1975 at 9:15 a.m., 93–95 dBA, 9:43 a.m., 94–96 dBA; 10:25 a.m., 92 dBA, 11:01 a.m., 93–94 dBA, 93–95 dBA; 11:35 a.m., 92–95 dBA (C–3 p. 31). The employee-operator testified that he spent seven hours at this location less his lunch hour and other breaks. He spent 20 minutes at a grinder, about 50 feet away, to sharpen tools and the rest of the day within 10 to 20 feet of the Gridley machine. He stated that the machine was not down at all on the day of the inspection, that his work is the same during the entire day and the noise level remains constant (Tr. 185–189). Deducting time for lunch at 30 minutes and two 10-minute breaks, this employee’s exposure was in excess of 6 hours at a minimum dBA level of 92 with maximum sound level meter readings 95 dBA and 96 dBA. See, Sun Shipbuilding, supra.

Item ll, Natco Reamer: A need for protection was not established at this location. Sound level meter readings were made on February 27, 1975 at 9:12 a.m., 94–96 dBA; 9:13 a.m., 96–98 dBA; 9:39 a.m., 97–99 dBA; 10:24 a.m., 96–98 dBA; 11:00 a.m., 97–99 dBA; 11:34 a.m., 96–99 dBA (C–3 p. 28). The employee-operator did not testify. The CO stated that the operator’s shift ran from 8 a.m. to 4 p.m. with 30 minutes for lunch, 30 minutes for cleanup and a 10-minute break (Tr. 221). It has been established that many of the men move about the plant during the day and that the CO did not make time records at each station or operation. No evidence appears that he remained with the operator at the Natco Reamer during the entire period covered by the sound level meter readings and in spite of the high dBA readings, it cannot be assumed that the noise levels remained constant between readings i.e., between 9:13 and 10:24 a.m., between 10:24 and 11:00 a.m. and between 11:00 and 11:34 a.m. See, Sun Shipbuilding, supra; Secretary v. Weyerhaeuser Company, 10 OSAHRC 791 (1974).

Recapitulating, the complainant has failed to establish a need for protection pursuant to the standard in the following locations: Items a, d, e, h, j, l, x, ee, gg, jj and 11. Need for protection has been established in the following locations: Items b, e, f, g, i, k, m, n, o, p, q, r, s, t, u, v, w, y, z, aa, bb, dd, ee, f, hh, ii, kk.

Applying the quite recent approval by the Review Commission of a determination that the complainant has the burden of showing that Bethlehem failed to utilize available feasible engineering and administrative controls to reduce the offending sound levels, Secretary v. Reynolds Metals Company, Docket No. 1551 (February 25, 1976), the testimony on this phase of the dispute reveals the following.

Complainant’s expert made an inspection and examination of Bethlehem’s facility on July 9, 1975 (Tr. 370). He did not examine Items e, m, r, u, w, y, bb, ee, ff, gg, hh and 11, which were not in operation, and he offered no opinion on the feasibility of engineering or administrative controls as to these items (Tr. 398).[22] He stated that his examination indicated that no feasible controls are possible in connection with Items f, k, l, p, t, v and aa (Tr. 402; C–10). It was his opinion that feasible engineering controls were possible in locations Item a, b, c, d, g, h, i, j, n, o, q, s, x, z, cc, dd, ii, jj and kk (Tr. 371). Of these, as we have found supra, Items a, d, h, j, x, ee and jj failed of the necessary proof to establish a need for protection. We have left for determination as to the availability of feasible engineering controls, the conditions found in Items b, c, g, i, n, o, q, s, z, dd, ii and kk, which will be treated in that order.

Item b, Automatic Bundling unit: Complainant’s expert was of the opinion that a sound-absorption lined partial enclosure could be provided over the top of the conveyor; that the parts on the conveyor should be spaced to prevent clanking (Tr. 374). However, he was not aware at the time of his inspection of this location on July 9, 1975 that the employee-operators rotate to the ear press (Item j) which cannot be brought into compliance. He conceded that the employees’ exposure should be considered over a longer period than one day, perhaps for a week, and, while he felt that the automatic bundling machine can be brought into compliance with the standard by means of the engineering controls he recommends, he expressed concern over the fact that the employees rotate to the ear press which cannot be brought into compliance (Tr. 423–428). Bethlehem’s engineering expert agreed that the engineering controls recommended by the complainant’s expert would in fact reduce the noise level at Item b, with some criticism that a glass partition would interfere with the need for good visibility by the operator (Tr. 613–615; 643). Its sound expert agreed that the recommended engineering controls would reduce the noise level at Item b to 89–91 dBA. However, he maintained that the major source of noise was the ear press at Item j and that ear protection would continue to be needed (Tr. 748).

In this posture of the proofs, I cannot conclude that the complainant has established that the engineering controls which he recommends will bring the automatic bundling unit into compliance with the requirements of Table g,–16. See Secretary v. Crescent Wharf & Warehouse Co., 2 OSAHRC 1318 (1973); Secretary v. Armor Elevator Company, Inc., 5 OSAHRC 560 (1973); Secretary v. Bechtel Corp., 12 OSAHRC 744 (1974). However, I do not consider that the complainant, having established that feasible engineering controls are available for utilization by Bethlehem, is under the duty of additionally proving that such utilization will ‘reduce sound levels within the levels of Table G–16.’ cf. Secretary v. B. F. Goodrich Co., 9 OSAHRC 44 (1974); Secretary v. Turner Company, Docket No. 3635 (February 18, 1975, on review). The B. F. Goodrich case supra, on appeal to the 6th circuit court of appeals, has been remanded to the Review Commission with the instruction that additional evidence be taken:

For a more definite statement whether the feasible controls ordered will bring the noise level to or below 90 decibels during an 8 hour day as required by 1910.95 Table G–16 so that individual protective devices will not be required, and if not, the extent to which feasible controls ordered will reduce the noise level. (Emphasis added).

No Review Commission majority has spoken to this issue.[23] I am also mindful that in a number of cases, not yet determined on review, trial judges have held that the standard requires the Secretary to establish that there are engineering and/or administrative controls available for utilization which are capable of reducing noise exposure levels within the levels of Table G–16.[24]

It seems to me that the language used by the Congress in subparagraph (b)(1) of the standard contains no ambiguity and must be applied as written. It should be noted that the word ‘feasible’ which modifies administrative or engineering controls, appears only in the first sentence. In this posture the adjective must be used in its meaning of practicable; capable of being carried out in action; capable of being used. See, The Oxford Universal Dictionary, Oxford University Press, Third Ed. 1955 p. 682; 1560. H. W. Fowler in his A Dictionary of Modern English Usage, Second Ed. 1965, in speaking of the word ‘feasible’ says, at p. 191:

Its proper sense is practicable, ‘capable of being done, accomplished, or carried out.’

Applying this meaning the controls which must be utilized by the employer must first be found to be practicable and capable of being carried out. The second sentence of the subparagraph provides merely that in the event the controls described in the first sentence do not reduce the sound level within the levels of Table G–16 the employer shall provide personal protective equipment. No reference is made to nor is there any indication that the second sentence excludes the first. Rather they must be read as written, without interpolating a nonexistent alternative, i.e., where the utilized practicable controls do not bring the sound levels down to conform, personal protective equipment must be provided. As noted supra, the 6th circuit court of appeals on remand, requested additional evidence not only that the ordered controls would bring the noise level to or below 90 decibels but, if not, to what extent they would reduce the noise level.

I find therefore, that in connection with Item b, the complainant has established that engineering controls are feasible but that the said controls will not reduce the sound levels within the levels of Table G–16. However, I find that such controls as are described by complainant’s expert will reduce the sound levels from a range of 91–98 dBA to a range of 89–91 dBA, which is a substantial reduction and that such engineering controls should be and they are hereby so ordered.

Item c, Snag grinder #249: Complainant’s expert recommended a partial enclosure; the lining of drums which receive parts, with sound damping material and providing the drums with covers which will dampen the sounds. He could not state that these controls would bring the location into compliance and suggested that the employee-operator be removed from the vicinity while the parts are dropped into the hopper (Tr. 374–376; 428–430). Bethlehem’s engineer expert as well as its sound expert, agreed that the hopper and the parts drums can be lined with acoustical material but that only a partial screen is feasible since the operator needs to be open on three sides and that such a barrier must be portable (Tr. 617–620; 645; 671; 766; 794–795). However, none of these experts could state that the location would be brought into compliance because of the existence of background noises nor is there any indication that the recommended controls will result in a substantial reduction in the noise levels (Tr. 428; 767–768). I cannot find, in this instance, that the recommended controls are practicable in the absence of a showing that they will have any appreciable effect.

Item g, Press Q–151: Complainant’s expert, here recommended a partial enclosure; the damping of the conveyor with sound absorbing material, a slot, lined with sound absorbing material, through which parts could be introduced into the press and lining the parts chute with sound absorbent material. In his opinion these controls would bring the noise level within the levels of Table G–16 and produce a reduction of 10 dBA. In addition, controlling the air jets would allow a reduction of 10–15 dBA (Tr. 377–378; 433–435). Bethlehem’s engineer expert agreed that the machine could be quieted by modification and the noise of the counterweight eliminated by replacing the leather connection. Both he and Bethlehem’s sound expert were of the opinion that a barrier or enclosure would be ineffective but both approved the remaining suggestions offered by the complainant. They recommended enclosing the noisy parts; lining the chutes; and silencing the counterweight. The sound expert was of the opinion that these changes would reduce the noise level from 98 dBA to 92 dBA (Tr. 621–624; 649–651; 753). I am not persuaded that the complainant has established the practicability of the partial enclosure. The remaining suggestions, as indicated above, will produce a substantial reduction in the noise level and are hereby ordered.

Item i, Press Q 153: Complainant’s expert recommended enclosing and lining the hopper with sound absorbent material. He conceded that he did not make a study of noise from the adjacent machines and was not certain that these controls would bring the noise level at this location to the level of Table G–16 (Tr. 379–389; 437–438). Bethlehem’s engineer suggested a two-foot opening to allow the passage of 18-inch plates. (Tr. 624–652). Its sound expert agreed with the complainant’s recommendations and with the two-foot opening. In his opinion, these controls would produce a reduction of 5 dBA (Tr. 755–756). The reduction here is substantial and the recommendations outlined herein with a two-foot opening are hereby ordered.

Item u, Wire Drawer #14: Complainant’s expert recommended a partial enclosure with windows to enable the operator to watch the spool (high hat) and the wire drawer. The roof of the enclosure is to be lined with sound absorbent material and the speed of the fall of the wire on the spool is to be reduced by tipping the spool to slow the slide of the wire or altering the supply to horizontal feed instead of vertical. The spool should be covered with noise absorbent material. He did not furnish an estimate of the reduction in noise these controls would produce but was of the opinion that they would reduce the sound level to within the levels of Table G–16 (Tr. 380–382; 389; 440–442). Bethlehem’s engineer agreed that a resilient bottom plate would be practical and that the rack can be silenced. He stated however, that tilting the spool would make the work much more difficult and that because of the confined space the recommended enclosure would not be practicable (Tr. 628–633; 655–656). Bethlehem’s sound expert agreed with the engineer that a partial enclosure was not practicable. He also agreed with the sound absorbent lining suggestions and added that the wire drawer gears could be enclosed. He sided with the engineer that the spool could not be tilted. However, he was of the opinion that without the partial enclosure and tilting of the spool, the remaining suggested controls would reduce the sound level to within 90 dBA and suggested a further study, after the controls are instituted, to determine whether personal protective equipment would be needed (Tr. 759–760). It is noted that complainant’s expert also recommended a further study (Tr. 442) and under the circumstances herein it is ordered that the controls suggested herein, with the exception of the partial enclosure and the tilting of the spool, be installed and that installation of the partial enclosure and tilting the spool be deferred pending the result of a further study of noise levels.

Item o, Pickling room: Complainant’s expert and the sound expert for Bethlehem are in accord that the fans in the room should be slowed down which will reduce the noise completely and bring the sound levels within the levels of Table G–16 (Tr. 382; 389; 745). It is so ordered.

Item q, Drill press #17–82: Complainant’s expert recommended air mufflers and the erection of a sheet metal or masonry barrier, treated with noise damping material, the screen to be 10 to 12 feet high and 20 feet long. The barrier is to be erected so as to protect against noise emanating from Item r, Sucker rod header #127. He estimated that this barrier would produce a reduction of 15 to 20 dBA and bring the location into compliance with Table G–16 (Tr. 382–383; 442–443; 461). Both of Bethlehem’s experts agreed that air mufflers should be installed but considered the screen impractical since in order to be of any effect against noises emanating from furnaces across the aisle the screen would have to be located across the aisle; the barrier would have to be 54 feet long to screen the three offending furnaces and there is not sufficient space to afford room for the screen and access to the furnaces. In addition there is other background noise, and the barrier would not reduce the sound level to within the levels of the Table G–16 (Tr. 633–634; 657–658; 762–763). It is clear that air nozzles should be installed upon the furnaces but I cannot conclude, under the circumstances here, that the barrier is a feasible, i.e., practicable engineering control. It is so ordered.

Item s, Coupling tapper #218: Complainant’s expert recommended an enclosure which would allow the levers of the machine to remain accessible. He suggested that a damping device, such as covers the gear shift in an automobile be installed and he was of the opinion that this control would bring the location into compliance (Tr. 383–384; 389; 444, 462). Bethlehem’s engineer did not think there was room to install the gear box cover and expressed concern that the seal would wear out. Its sound expert was of the opinion that the device would not reduce the sound level to 90 dBA (Tr. 634–635; 664–665; 674; 765–766). I find that the suggested control recommended by complainant is feasible and will produce a substantial reduction in the sound level and it is so ordered.

Item z, Alligator shear #60: Complainant’s expert recommended that the machine be enclosed; that the air noise from adjacent machines be reduced; that the flame flywheel gear and clutch be enclosed and that the chutes be lined with sound damping material. He was of the opinion that these controls would produce compliance (Tr. 385; 389; 448–449; 776). Bethlehem’s sound expert agreed that these controls are feasible and would serve to reduce idling noise to 90 dBA although he did not believe that the sound level would be reduced to within the levels of Table G–16 (Tr. 776). I find therefore, that the controls recommended are feasible, will produce a substantial reduction in the sound level and it is so ordered.

Item dd, Parts former #66: Complainant’s expert recommended an enclosure for the operator and was of the opinion that the employee need not spend more than 2 or 3 hours outside the enclosure. He was not certain that the engineering and administrative controls suggested would bring the location into compliance (Tr. 386; 389; 450–452). Bethlehem’s sound expert thought that the enclosure, installing point of operation guards and damp lining the chutes and hoppers would produce a reduction of 5 dBA (Tr. 782). I find that the engineering and administrative controls described hereinabove are feasible and will produce a substantial reduction in the noise level at this location and it is so ordered.

Item ii, Conomatic #257: Complainant’s expert recommended lining the chutes on the outside with noise damping material. He was of the opinion that this control would reduce the noise level by 5 dBA but he offered no opinion that this location could be brought into compliance (Tr. 386–387; 389; 452). Bethlehem’s sound expert, although he had not made a sound study, did not think that covering the chutes would reduce the noise level nor was he certain that enclosing the burring machine (Conomatic #257) would be practical and effective (Tr. 788; 805; 807; 811–812; 814). I find that complainant’s recommendation is feasible and will result in a substantial reduction in the noise level. It is so ordered.

Item kk, Gridley machine #224: Complainant’s expert recommended an enclosure of the gear area and the use of silent stock tubes. He considered that these controls would result in a reduction of 10 dBA (Tr. 387; 390; 453). Bethlehem’s noise expert agreed with these recommendations but thought the noise reduction would be 2 or 3 dBA (Tr. 746–747). I find that the recommended controls are feasible and will produce a substantial reduction in the noise level and it is so ordered.

The only testimony in the record touching the time within which abatement should be accomplished by Bethlehem is that of complainant’s expert which appears at transcript page 391, wherein be estimates that two years would be a reasonable period to be allowed for that purpose. Bethlehem took no issue with this statement and offered no evidence in this connection and I find that two years is a reasonable period in which Bethlehem shall accomplish the engineering and administrative controls ordered hereinabove and it is so ordered.

The citation herein also alleges that the impermissible sound level exposures to which Bethlehem’s employees were exposed ‘were not limited in accordance with the requirements’ of 29 CFR 1910.95(b)(1). As has been found hereinabove, exposure of Bethlehem’s employees to sound levels exceeding those shown in Table G–16 has been established at locations Item b, c, f, g, i, k, m, n, o, p, q, r, s, t, u, v, w, y, z, aa, bb, dd, ee, ff, hh, ii and kk. At the time of the inspection herein, employees at the following location were wearing ear protection furnished by Bethlehem: Item b (Tr. 48;80); Item c (Tr. 54); Item f (Tr. 56; 95); Item g (Tr. 192); Item i (Tr. 195); Item k (C–2 p. 2, line 5); Item m (Tr. 103); Item n (Tr. 108); Item o (Tr. 115); Item p (Tr. 120); Item q (Tr. 123); Item r (Tr. 136, 201 C–2, p. 3, line 3); Item s (Tr. 129; C–2 p. 3, line 4); Item t (Tr. 141; C–2 p. 3, line 1); Item u (Tr. 150; C–2 p. 4, line 9); Item w (C–2 c. 4, line 2); Item y (C–2 p. 4, line 5); Item z (Tr. 208; C–2 p. 4 line 8); Item aa (C–2 p. 4, line 10); Item bb, part of the time (Tr. 347; C–2 p. 5, line 1); Item dd (Tr. 162–163; Exh. R–1); Item ee (C–2 p. 5, line 2); Item ff (Tr. 176–177; Exh. R–2; C–2 p. 5, line 3); Item hh (C–2 p. 6, line 1); Item ii (Tr. 181; C–2 p. 6, line 2) and Item kk (Tr. 186; C–2 p. 6, line 4). At Item v, the employee admitted he had been directed to wear ear protection but that he dislikes to do so since he perspires and the ear plugs irritate him, they fall out to the dirty floor and he will not put them back into his ears. He said, however, that Bethlehem permits him to use cotton which he prefers (Tr. 155–156; 157). Furthermore, there is evidence that wearing ear protection was directed by management and enforced (Tr. 85; 89–90; 111; 120; 150, 169, 175) and under the circumstances developed here I cannot find that the allegation that personal protective equipment was not provided and used, has been sustained.

Bethlehem’s motion to reconsider the order for inspection dated May 28, 1975, is denied for the reasons therein stated (Br. Point IV, pp. 37–43).

Bethlehem’s motion to reconsider the action taken in connection with the subpoenae duces tecum (Exh. C–11 id.; C–12 id.; Br. Point V, pp. 44–47) is denied for the reasons stated in the order dated August 8, 1975, and on the record on August 14, 1975 (Tr. 480–482).

Bethlehem’s motion to suppress the testimony of Ostergaard, complainant’s expert, under Federal Rule of Evidence 408 (Br. Point VI, pp. 48–52) is denied. There is no showing that Bethlehem’s offer to compromise was used as evidence to prove the allegations of the citation. The fact that Ostergaard agreed with Bethlehem’s experts with regard to the feasibility of a number of engineering controls designed to control noise emissions, which appeared in its offer of compromise, was not offered as evidence by the complainant, it was developed by Bethlehem’s counsel on cross-examination and therefore falls outside of Rule 408.

Bethlehem’s motions to dismiss (Br. Point VII, pp. 53–55; Point IX, pp. 59–64 and Point X, pp. 65–81) have been considered and disposed of by determinations made hereinabove affecting the Items referred to therein.

My determination to exclude Bethlehem’s Exhibit R–7, id. is reaffirmed for the reasons expressed (Tr. 825–826).

So ordered.

DAVID H. HARRIS

Judge, OSAHRC

Dated: April 12, 1976

Hyattsville, Maryland

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* Commissioner Barnako disqualified himself from consideration of this case.

[1] The noise standard provides, in pertinent part:

§ 1910.95 Occupational noise exposure.

(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G–16 when measured on the A scale of a standard sound level meter at slow response. When noise levels are determined by octave band analysis, the equivalent A-weighted sound levels may be determined as follows:

[Figure G–9 is not reproduced]

(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.

(2) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous.

(3) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.

Table G–16—Permissible Noise Exposures

Duration per day, hours	Sound level dBA slow response
8	90
6	92
4	95
3	97
2	100
1 ½	102
1	105
½	110
¼	115
[footnote omitted]

[2] The Secretary takes exception only to the judge’s vacating of four subitems of the citation. Respondent takes exception only to the judge’s affirmance of eleven other subitems. Notwithstanding former Commissioner Moran’s general direction for review, neither party has challenged the judge’s disposition of the remaining 23 subitems of the citation at issue. There is also no compelling public interest warranting further review of those portions of the judge’s decision that relate solely to those 23 subitems. Therefore, those portions of the judge’s decision will not be considered on review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976–77 CCH OSHD ¶ 20, 780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975–76 CCH OSHD ¶20,428 (No. 9507, 1976). Those portions of the decision are accorded the significance of an unreviewed judge’s decision. See Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD ¶ 20,387 (No. 4090, 1976), appeal withdrawn, No. 76–4070 (2d Cir. May 17, 1976).

[3] Compliance officer Renner testified that he obtained dosimeter readings for employees at 37 of the 38 cited locations. Renner explained that the dosimeter readings indicated the percentage of daily permissible noise exposure for the period an employee actually wore the dosimeter. He projected this data to determine noise exposure for the entire time an employee was assigned to the location (less time off). These dosimeter readings were supplemented by sound level meter readings at the 37 locations.

[4] Ostergaard concluded that no feasible controls were available to reduce noise levels at seven locations. He made no conclusion about 12 locations because the machines at those locations were not operating on the day of his discovery inspection.

[5] The judge determined that suggested controls for the disputed locations should be implemented if they would produce a ‘substantial reduction’ in noise. This determination correctly anticipated the Commission’s analysis of technological feasibility in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976–77 CCH OSHD ¶ 21,009 (Nos. 3973 Et al., 1976), appeal withdrawn, No. 76–3229 (9th Cir. April 26, 1977).

[6] Section 12(g) of the Act, 29 U.S.C. § 661(f), provides in pertinent part that ‘[u]nless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure.’ See also Commission Rule of Procedure 2(b), 29 C.F.R. § 2200.2(b).

[7] Respondent’s letter to the Secretary included copies of articles written and addresses given by Toothman.

[8] Commission Rule 55 provides for the issuance of subpoenas and for petitions to revoke or modify as follows:

(a) Any member of the Commission shall on the application of any party directed to the Commission, forthwith issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence, including relevant books, records, correspondence, or documents, in his possession or under his control. Applications for subpoenas, if filed subsequent to the assignment of the case to a judge, shall be filed with the judge. A judge shall grant the application on behalf of any member of the Commission. Applications for subpoenas may be made ex parte. The subpoena shall show on its face the name and address of the party at whose request the subpoena was issued.

(b) Any person served with a subpoena, whether ad testificandum or duces tecum, shall, within 5 days after the date of service of the subpena upon him, move in writing to revoke or modify the subpena if he does not intend to comply. All motions to revoke or modify shall be served on the party at whose request the subpoena was issued. The judge or the Commission, as the case may be, shall revoke or modify the subpoena if in its opinion the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. [emphasis added] The judge or the Commission, as the case may be, shall make a simple statement of procedural or other grounds for the ruling on the motion to revoke or modify. The motion to revoke or modify, any answer filed thereto, and any ruling thereon shall become a part of the record.

[9] Federal Rule of Evidence 705 provides:

Disclosure of Facts or Data Underlying Expert Opinion. The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Commission Rule of Procedure 72, 29 C.F.R. § 2200.72, provides that ‘[h]earings before the Commission and its judges shall be in accordance with § 554 of Title 5 U.S.C. and insofar as practicable shall be governed by the rules of evidence applicable in the United States District Courts.’

[10] Federal Rule of Evidence 408 provides:

Compromise and Offers to Compromise.

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

[11] We note that Respondent fails to cite any authority for its argument that the testimony of a witness allegedly based on information provided in a compromise offer is a violation of Rule 408. On the contrary, the rule by its terms ‘does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.’

[12] As a result of his inspection, compliance officer Renner prepared Exhibits C–2, C–3 and C–4, which are essentially records of sound level and dosimeter readings at the 38 cited locations. Photographs taken by Renner were marked as Exhibit C–5. Renner identified and, in his testimony, referred to Exhibit C–1, a dosimeter operating manual.

[13] The Jencks Act, 18 U.S.C. § 3500, is the legislative embodiment of the rule announced in Jencks v. United States, supra. The National Labor Relations Board adopted a similar rule providing that statements of government witnesses need not be disclosed in its proceedings until the witness has testified for the government. 29 C.F.R. § 102.118(a), (b)(1). The Jencks Act approach has been held to apply to administrative proceedings. Harvey Aluminum, Inc. v. NLRB, 335 F.2d 749 (9th Cir. 1964); Great Lakes Airlines, Inc. v. CAB, 291 F.2d 354 (9th Cir. 1961).

[14] Under the work product doctrine of Federal Rule of Civil Procedure 26(b)(3), documents prepared in anticipation of litigation or for trial are not disclosable before the hearing absent a showing of ‘substantial need’ and inability to obtain the information by other means without undue hardship.

[15] In view of a respondent’s compelling need to effectively cross-examine a witness, when a respondent seeks a witness statement for cross-examination purposes, the request should be permitted at hearing even if no prehearing request was made. In this case, Respondent only learned of the document in question on cross-examination of the compliance officer. It is well-settled that a party may move for production of documents at hearing without a prehearing request, particularly if the documents are in the hearing room. See, e.g., General Motors Acceptance Corp. v. American Ins. Co., 50 F.2d 803 (5th Cir. 1931). cert. denied, 284 U.S. 676 (1931). Given the preparation of the memorandum here at the direction of the Secretary’s counsel, a prehearing request for disclosure probably would have been futile. Thus Respondent’s request was properly made at hearing.

[16] The Secretary retained Exhibit C–8 rather than including it for the record. Consequently, we cannot independently assess its relation to the compliance officer’s testimony. Even if we could examine the document, however, we could not speculate on Respondent’s use of it for impeachment, corroboration, and other purposes.

[17] Judge Harris has retired from the Commission since the issuance of his decision in this case.

[18] This case was tried and decided before the Commission issued its decision in Continental Can Co., supra, requiring the Secretary to prove the economic feasibility of engineering or administrative noise controls under section 1910.95. Under such circumstances, it is general Commission policy to afford the parties an opportunity to present additional evidence bearing on the issue in light of the intervening precedent. See Truland-Elliot, A Joint Venture, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976–77 CCH OSHD ¶20,908 (No. 11259, 1976).

[19] Employees, engaged in the following operations, were subjected to sound levels which exceeded the permissible exposures listed in Table G–16 of this section, and their exposures were not limited in accordance with the requirements of 29 CFR 1910.95(a) and/or (b)(1). The sound levels were obtained at the hearing zones of the employees. Employees were subjected to sound levels for which the noise exposure fraction Cn/Tn (see Table G–16, Note #1) exceeded 1.0.

a) roll hand, ten-inch mill; b) automatic bundling unit—Mine Roof Products Department, Factory Division #2; c) snag grinder #249—Nos. 1 and 2 forge, Factory Division #2; d) furnace shearman, ten-inch mill

Factory Division #1: e) shear #02–11 and thread roller #08–309—Mine Roof Products Department; f) header #131—Mine Roof Products Department; g) press #Q–151—Mine Roof Products Department; h) press #Q–153—Mine Roof Products Department; i) press #Q–153 (take-of and bundler)—Mine Roof Products Department; j) ear press #11–48—Mine Roof Products Department; k) spike machine #17 (heater)—Cold Rivet & Spike Shop; l) spike machine #19—Cold Rivet & Spike Shop; m) hand spike machine #24—Cold Rivet & Spike Shop; n) wire drawer #14—Cold River & Spike Shop; o) pickling room—Cold Rivet & Spike Shop; p) cold rivet headers and cold rivet spike machines (die setter operator)—Cold Rivet & Spike Shop

Factory Division #2: q) drill press #17–82—Rod & Nut Shop; r) sucker rod header #127—Rod & Not [sic] Shop; s) coupling tapper #218—Rod & Nut Shop; t) nut former #09–58—Rod & Nut Shop; u) burring machine #10–62—Tract Bolt Warehouse; v) hand header #159 (heater)—Nos. 1 and 2 forge; w) heavy duty #160 (heater)—Nos. 1 and 2 forge; x) press #148—nos. Nos. 1 and 2 forge; y) Billet shear #132—Nos. 1 and 2 forge; z) alligator shear #60—Nos. 1 and 2 forge; aa) automatic bolt maker #99—Nos. 1 and 2 forge

Factory Division #3: bb) square nut machines—Cold Nut Department; cc) nut former #62—Cold Nut Department; dd) parts former #66—Cold Nut Department; ee) blot maker #54—Cold Bolt Department; ff) thread rollers—Cold Bolt Department; gg) tapper #221—Hot Nut Finishing Department; hh) press #22—MSP Department; ii) Conomatic #257—MSP Department; jj) press #132—MSP Department; kk) Gridley machine #224—MSP Department; ll) Natco reamer #139—MSP Department

[20] Short Term Abatement initial temporary abatement is to be provided by short range administrative controls and/or personal protective equipment.

Detailed plan this detailed plan for the implementation of the longterm program is to include feasible engineering and/or administrative controls, and a time schedule of proposed action. Upon approval, this plan is to be implemented in accordance with its provisions.

Complete Abatement the date by which feasible engineering and/or administrative controls must be implemented to completely eliminate the employees’ exposure to noise levels in excess of those listed in Table G–16.

Until final abatement is achieved, written progress reports should be submitted to the Area Director by the fifth day of each month.

[21] 29 CFR 1926.52(a) is similar in language to the standard herein except that no reference is made to octave band analysis and a corresponding compensating curve plot as in fig. C–9.

[22] The transcript makes reference to Item oo. There is no Item oo and the reference should be to Item 11.

[23] Secretary v. Anchor Hocking Corp., Docket No. 3783, affirmed by non-precedential action on July 22, 1975.

[24] Del Monte Corp., Docket No. 11865 (June 4, 1975) on review; Pabst Brewing Co., Docket No. 13068 (August 25, 1975) on review; C. F. & I. Steel Corp., 16 OSAHRC 45 (1975) on review; International Paper Co., 12 OSAHRC 243 (1974) final order.