GANNETT ROCHESTER NEWSPAPER CORPORATION

OSHRC Docket No. 6352

Occupational Safety and Health Review Commission

April 21, 1981

[*1]

BEFORE: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Counsel for Regional Litigation, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S Department of Labor

William E. McKnight, for the employer

Edward W. Henry, President, Rochester Newspaper Pressman's Union, Local 36, for employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Joseph Chodes is before the Commission for review pursuant to 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"). Judge Chodes affirmed that part of a citation alleging that Respondent, Gannett Rochester Newspaper Corporation, violated section 5(a)(2) n1 of the Act by failing to comply with the occupational noise exposure standard at 29 C.F.R. 1910.95(b)(1) n2 in its south press room and in its north and south reel rooms. n3 The judge vacated that part of the citation relating to Respondent's north press room, concluding that the Secretary of Labor ("the Secretary") had failed to prove the feasibility of his proposed engineering controls for that room.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - [*2] - - - - - - - -

n1 29 U.S.C. 654(a)(2).

n2 This standard provides:

1910.95 Occupational noise exposure.

* * *

(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.

* * *

Table G-16 -- PERMISSIBLE NOISE EXPOSURES

Sound level

Duration per day, hours

dBA slow response

8

 90

6

 92

4

 95

3

 97

2

100

    1 1/2

102

1

105

1/2

110

        1/4 or less

115

(footnote omitted)

n3 At the time of the alleged violation, Respondent's printing facility consisted of two adjacent press rooms, separated by a closed aisle, storage room and offices. The larger, north press room contained a row of sixteen printing press units, three double-width folders and one quarter-folder. The smaller, south press room contained a row of eight printing press units and one double-width folder. Below the press rooms was an area called the reel room, where rolls of paper were fed through the floor to the printing units on the level above. Although the reel room was not physically divided, the area beneath the north press room is sometimes referred to in the record as the "north reel room," while that below the south press room is called the "south reel room."

[*3]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent petitioned for discretionary review, asking the Review Commission to determine:

Whether the citation violates due process because the standard is unenforceably vague;

Whether the standard's preference for engineering controls over personal protective equipment -- when personal protective equipment must still be used -- is arbitrary, capricious, and a violation of due process;

Whether a violation can be sustained when abatement is impossible due to physical changes in the cited conditions occurring after the alleged violation;

Whether the evidence obtained during the inspection should be suppressed on the basis that it was obtained in violation of the fourth amendment; and

Whether there was sufficient evidence to establish the existence of a violation in Respondent's south press room.

Commissioner Cottine directed review on all of the issues raised by Respondent's petition. n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 In its brief on review, Respondent raised two additional issues. First, it asserted that the judge erred in admitting and relying upon evidence that was prepared as part of settlement negotiations. Second, it argued that the Secretary's failure, prior to Respondent's substantial renovations in the rooms, to specify the major sources of noise prejudiced Respondent and also violated the particularity requirement in section 9(a) of the Act, 29 U.S.C. 658(a) ("Each citation. . . shall describe with particularity the nature of the violation. . ."). Nevertheless, any issue neither raised in a petition for review nor directed for review by an individual member upon his own motion is not before the Commission on review. Austin Bldg. Co. 80 OSAHRC 98/E1, 8 BNA OSHC 2150, 1980 CCH OSHD P24,839 (no. 77-3878, 1980). Accordingly, the two additional issues raised by Respondent will not be addressed by the Commission.

[*4]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Because we conclude that the Secretary has failed to prove noncompliance with the occupational noise standard in Respondent's south press room, we vacate that portion of the citation. However, we reject Respondent's challenges to the citation as a whole.

I

Prompted by an employee complaint concerning noise, ventilation and an air contaminant, Thomas Muldowney, an industrial hygienist employed by the Occupational Safety and Health Administration (OSHA), visited Respondent's printing plant in December 1973, accompanied by another OSHA compliance officer. At the plant, the two officers presented their credentials to Respondent's publisher, Eugene Dorsey, who questioned their authority to conduct an inspection. They responded that they were acting pursuant to the Act in response to an employee complaint, a copy of which they showed to Dorsey. The officers did not claim to be acting under the authority of a search warrant. Dorsey neither inquired if they had obtained a warrant nor refused to permit them to enter Respondent's premises.

Once admitted to the facility, Muldowney surveyed the noise in [*5] the press rooms and reel rooms using a sound level meter. Based upon this preliminary screening, Muldowney attached dosimeters to three pressmen in the north pressroom. n5 These employees were selected because Muldowney believed that they were subject to the greatest noise exposure. In his testimony at the hearing, Muldowney conceded that "certainly more than three" dosimeters should be used in order to achieve statistically significant noise exposure measurements in an industrial setting; if more dosimeters had been available, he would have used them in the south press room and in the reel rooms, but he had only three dosimeters with him. After he fitted the three pressmen with dosimeters, Muldowney circulated periodically -- every ten to fifteen minutes -- among the press rooms and reel rooms taking spot readings with the sound level meter. To obtain these spot readings, Muldowney would hold the microphone for the meter at a distance approximately six inches from an employee's head for ten to fifteen seconds and then would write down the dBA level readings. After about four hours, Muldowney ceased taking spot sound level readings. He then "summarized" these spot readings by [*6] drawing a sketch of the floor plan of the press rooms and reel rooms, noting only the range of the readings in each of the rooms. Thus, the range of the sound level readings was: in the north press room, 95-107 dBA; in the south press room, 99-104 dBA; in the north reel room, 96-99 dBA; and in the south reel room, 95-97 dBA. This sketch was the sole record of the spot sound level readings which Muldowney took at Respondent's facility.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 A sound level meter provides an instantaneous reading of the noise level (on a dBA scale) at a particular location. A dosimeter is a sound measuring device which provides a cumulative reading -- expressed as a percentage of the amount of exposure permissible under the standard -- of an employee's exposure to noise throughout his work shift.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Muldowney also obtained readings from the dosimeters which had been worn by the three employees in the north press room. The dosimeters registered readings of 185 percent in 248 minutes, 162 percent in 244 minutes and 158 percent in 239 minutes. [*7] According to Muldowney, if the noise exposure had continued at comparable levels for a full 7-1/2 hour shift, these readings would have nearly doubled, thereby demonstrating exposures in the north press room well in excess of the standard's permissible levels. Muldowney testified initially that he had kept the dosimeter-equipped employees under constant observation, but he later admitted that they had not been in his sight at all times because he had left to take sound level readings in the other rooms at ten to fifteen minute intervals. During the course of the survey, he observed 15-20 employees in the north press room, 6-8 employees in the south press room, 8-10 employees in the north reel room and 4-6 employees in the south reel room. Nevertheless, Muldowney was unable to say how long any of the employees had spent in the rooms while he was present at the plant. He did not know what the employees did while he was out of their presence. He did not know what they did for the balance of their 7-1/2 hour shift after he left the plant; Muldowney conceded that the presses might not have been running and the employees might have been in a clean-up period. Muldowney could not recall [*8] whether anyone had said anything to him regarding how long the employees spent in the press rooms. Furthermore, although he did recall that the presses and reels had started and stopped while he was there, he did not know how many of the machines had actually been running or for how long. Muldowney himself had taken a break of undetermined length during the inspection.

Again, Muldowney did not obtain any dosimeter readings in the south press room or in the reel rooms. Nevertheless, he based his finding that the employees in these rooms were exposed to excessive noise upon the spot sound level readings which he took there, in conjunction with the dosimeter data obtained in the north press room.

Three years later, n6 Muldowney returned to Respondent's plant accompanying the Secretary's acoustical consultant, Paul Jensen. Muldowney did not participate in any of Jensen's noise survey activities. Muldowney noted that in the interim Respondent had installed a personnel enclosure in the south press room, where employees could take refuge from the noise. He also noted that Respondent had built a "quiet room" in the reel room area where employees could take breaks.

- - - - - - - [*9] - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 This three-year interval is partially attributable to difficulties in scheduling a follow-up inspection by an acoustical consultant and to unsuccessful efforts at settlement. Also during this period, the Commission affirmed on interlocutory appeal Judge Chodes' denial of Respondent's pretrial motion to dismiss. However, the Commission remanded the case for further proceedings so that the judge might reconsider on the completed record Respondent's claims that the citation had had not been issued with reasonable promptness and that it lacked sufficient particularity. Gannett Rochester Newspaper Corp., 4 BNA OSHC 1383, 1976-1977 CCH OSHD P20,915 (No. 6352, 1976).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Jensen testified in pertinent part that he visited Respondent's plant in December 1976, and again in March 1977. He was accompanied on the December visit by Thomas Muldowney. Based on his inspection, Jensen determined that in December 1976 employees were exposed to excessive noise in the north press room, whereas their exposure in the south press room and the reel [*10] rooms was within permissible limits. Jensen based his opinions on conditions as he found them in December 1976. He never reviewed Muldowney's data and these had no influence on Jensen's analysis. Indeed, he had no knowledge of the conditions during Muldowney's 1973 inspection. Jensen attributed the acceptable exposure levels which he found in 1976 in the south press room and in the reel rooms to the presence there, respectively, of the personnel enclosure and of the "quiet room." Jensen further testified that, because he initially found these areas to be in compliance with the standard, he did not take additional time to do a detailed analysis. The Secretary's counsel at the hearing stated that he was not presenting Jensen's testimony for the purpose of showing excessive noise levels, but rather to establish the feasibility of controls at the time of Muldowney's 1973 inspection. Jensen testified that the controls in effect in 1976 were available in 1973.

Respondent's Assistant Director of Production, Gordon Pratt, estimated that on a normal work day in 1973 the running time for the presses on the first shift (9a.m. - 5p.m.) n7 would have been about two hours and fifty-five [*11] minutes. He also stated that in December 1973 the pressmen probably were exposed to excessive noise levels, but he had no actual knowledge of their exposure levels in terms of decibels. Furthermore, he believed that the levels of noise in the rooms in the period from December 1973 through December 1976 were constant and that the running times for the presses had not changed significantly. Nevertheless, he stated that he had no personal knowledge about the actual exposure times of pressmen to various noise levels in the press rooms.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 Muldowney conducted his 1973 inspection from approximately 11 a.m. - 3 p.m.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent's expert witness, George Cashau, asserted that Muldowney's data was insufficient to establish impermissible exposure. Cashau, a veteran of over 200 noise surveys in newspaper plants, emphasized that Muldowney's spot reading summary only presents ranges of the noise levels. "There is no tie-up," he stated, "between the noise levels and any man's exposure or even any man's position for any period [*12] of time." Cashau conceded that Respondent's employees were exposed to noise levels over 90 dBA, but he could not say whether they were actually exposed in excess of the permissible time limits, because he had not conducted an exposure study.

II

Judge Chodes affirmed the citation's allegation that Respondent failed to comply with 29 C.F.R. 1910.95(b)(1) in the south press room and in the reel rooms. With respect to the issue of whether Respondent's employees were exposed to noise levels in excess of the allowable limits provided in the standard, he noted that Muldowney had recorded sound level meter readings of 95 dBA - 107 dBA, considering the inspected work areas as a whole. He also asserted that the dosimeter readouts established that the employees had been exposed in only four hours of a 7-1/2 hour workday to noise levels in excess of the allowable limits for eight hours. Apparently, the judge did not limit the applicability of the dosimeter data only to the north press room where it had been obtained, for he concluded that Muldowney's data was "consistent with all other evidence in the record" and, thus, that employees had been exposed to excessive noise levels in all of [*13] the rooms as alleged in the citation.

III

On review, Respondent argues that the standard at 29 C.F.R. 1910.95(b)(1) contravenes the due process requirements of the fifth amendment because the regulation fails to define the terms "feasible administrative or engineering controls" so as to impart reasonable guidance to any employer who seeks to bring his workplace into compliance with the Act. n8 Respondent further claims that the standard's preference for engineering or administrative controls, even where such controls fail to reduce noise exposure within the levels prescribed by Table G-16 (so that personal protective equipment still would have to be used), is arbitrary and capricious and therefore is a violation of due process. We reject the arguments. It is well-settled that the occupational noise standard is not unenforceably vague. Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD P21,854 (No. 10925, 1977), appeal filed, No. 77-2565 (9th Cir. July 14, 1977); Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976-77 CCH OSHD P21,023 (No. 3635, 1976), rev'd on other grounds, 561 F.2d 82 (7th Cir. 1977). Moreover, the Commission [*14] has rejected previously the arguments that controls are not feasible unless they achieve Table G-16 limits and that the standard's preference for engineering and administrative controls is arbitrary and capricious. Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977); Turner Co., supra.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 Although the Secretary did not petition for review, he did express his intention to file a brief. The Commission subsequently granted the Secretary's motion to extend the filing date for briefs for a period of sixty days. Respondent met the Commission's deadline and, when the Secretary failed to do so, Respondent requested that the Commission not consider the Secretary's brief, which was not received until one month later. The Commission ultimately denied with prejudice the Secretary's motion to accept the late-filed brief and returned it to the Secretary. Consequently, because the Secretary did not file a brief before the administrative law judge and because his late-filed brief before the Review Commission was returned, there is no written statement by the Secretary of his arguments in this case.

[*15]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent also questions whether a violation can be sustained if abatement is impossible. It notes that, since the 1973 inspection, it has completed major renovations of its facilities, including the replacement and repositioning of the machinery that was deemed to be the major source of noise. Respondent argues that, even if the Commission finds that a violation existed in the plant at the time of the inspection, the citation must still be vacated because the feasible controls proposed by the Secretary pertain to a press room that no longer exists: abatement is, therefore, impossible. Respondent also alludes to the Act's basic purpose -- which Respondent characterizes as "determining whether an abatement procedure can be instituted to ensure the safety of Respondent's employees" -- and asserts that, under these changed circumstances, it would exalt form over substance to sustain this citation.

In Whirlpool Corporation, 80 OSAHRC    , 8 BNA OSHC 2248, 1980 CCH OSHD P24,957 (No. 9224, 1980), rev'd on other grounds, No. 80-2426 (D.C. Cir. March 12, 1981), the Commission reaffirmed on remand [*16] its earlier decision and order in the case despite Respondent's asserted correction of the hazardous condition during the course of the litigation. The Commission held that abatement following the issuance of a citation neither negates nor excuses an employer's failure to comply with the Act. Here, Respondent's argument that an alleged violation can be defeated by subsequent remodeling of the premises must be rejected. The determination as to the feasibility of controls must be predicated upon facts as they existed at the time of the alleged violation, Turner Company, 80 OSAHRC    , 9 BNA OSHC 1184, 1981 CCH OSHD P25,098 (No. 3635, 1980), and is not affected by Respondent's subsequent renovations. See G.A.F. Corporation, 81 OSAHRC    , 9 BNA OSHC 1451, 1981 CCH OSHD P25,281 (No. 77-1811, 1981).

Respondent's final broad challenge to the citation raises the issue of whether evidence obtained during the inspection should be suppressed on the basis that it was obtained in violation of the fourth amendment's guarantees against unreasonable searches and seizures. It is undisputed that the Secretary's December 1973 inspection of Respondent's facility was conducted without [*17] the authority of a warrant. Moreover, Respondent argues that its publisher's mere acquiescence to the search in the face of the OSHA officials' assertions of lawful authority cannot be construed as consent. Because the United States Supreme Court held in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), that the Act violates the fourth amendment to the extent that it purports to authorize warrantless, nonconsensual searches, Respondent insists that the inspection here violated the fourth amendment and, thus, that all evidence derived from the inspection must be suppressed.

In Meadows Industries, Inc., 79 OSAHRC    , 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, 1979), the Commission held that the fourth amendment principles announced in the Supreme Court's Barlow's decision would not be given retroactive remedy. Thus, the Commission will not exclude evidence obtained by the Secretary in a warrantless search that occurred before the announcement of the Barlow's decision in May 1978. The inspection challenged here took place more than four years prior to the Barlow's decision. Accordingly, even if the inspection failed to conform to the fourth amendment [*18] tests set forth in Barlow's, Respondent is not entitled to suppression of the evidence.

IV

Respondent also challenges the judge's affirmance of the citation insofar as it relates to the south press room. Respondent initially argues that the Secretary's data failed to establish impermissible employee exposure in the south press room in December 1973. n9 It notes that Muldowney did not monitor actual employee exposure for the periods prescribed in Table G-16. No dosimeter readings based on the south press room were offered to supplement the spot sound level readings recorded there, Respondent asserts, because none were obtained during Muldowney's inspection. Respondent further contends that Muldowney was unable to determine the duration of employee exposure because he failed to consider such factors as: speed of press runs, length of press runs, "down time", employee mobility and break time. His observations merely suggest a range of noise levels. They do not, in Pespondent's view, correlate sound levels with an employee's actual exposure or with a specific job function in the press room.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 In addition, Respondent argues that the Secretary failed to prove that the engineering controls ordered implemented in the south press room (a) were technologically feasible, (b) were economically feasible, and (c) would result in a substantial reduction in the noise level. In view of our disposition, we need not reach these issues.

[*19]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We agree with Respondent's contention. In Sun Shipbuilding and Drydock Co., 74 OSAHRC 61/A2, 2 BNA OSHC 1181, 1182, 1974-75 CCH OSHD P18,537 at p. 22,518 (No. 268, 1974), the Commission explained that:

[The Secretary] may establish a case with monitoring data for the entirety of any of the periods prescribed by Table G-16 so long as the data is of actual employee exposure. Or, [the Secretary] may establish a case with instantaneous monitoring data (grab or spot samples of sound levels) so long as this data is supported by other evidence from which it may reasonably be inferred that employeees were exposed to excessive sound levels as defined by Table G-16.

Here the Secretary made no attempt to establish actual employee exposure in the south press room; there was no monitoring data covering the entirety of any of the duration limits prescribed by Table G-16 with which he could do so. Therefore, he failed to satisfy the first alternative of the Sun Shipbuilding test.

As to the second alternative, Sun Shipbuilding indicates that spot noise level samples do not, standing alone, establish [*20] impermissible exposure. This fact is fatal to the Secretary's case, for he did not support Muldowney's spot noise level samples with other evidence from which it can reasonably be inferred that employees in the south press room were exposed in excess of Table G-16 limits. The cosimeter data from the north press room fails to support a violation in the south press room in the absence of evidence that the duration and degree of exposure in the rooms were comparable. Neither can the exposure data from Jensen's 1976 and 1977 visits to Respondent's plant be used to show a violation in 1973. Such data, tainted by intervening physical alterations at the plant, is of no probative value.

In Boise Cascade Corp., 77 OSAHRC 43/A2, 5 BNA OSHC 1242, 1977-78 CCH OSHD P21,714 (No. 802, 1977), appeal filed, No. 77-2201 (9th Cir. May 31, 1977), the Commission reiterated its rejection of the contention that noise level samples must be taken for a period of time in excess of the maximum permissible duration of exposure at a particular noise level. In affirming a violation of the occupational noise standard, the Commission specifically noted the absence in that case of any evidence that [*21] any of the specific operators had spent any significant time outside the areas encompassed by the sound measurements during the actual workday of 7-1/2 hours. Moreover, the noise samplings were taken with respect to employees who were the operators of specific machines. The compliance officer accounted for employee movement in part by taking readings for some operators at the various areas in which they worked.

Here, in contrast, Muldowney's samplings were haphazard rather than systematic. Furthermore, he could not account for employee movement or for variations in noise levels caused by changes in press speed and "down time." Also, because his readings in the south press room were preserved only in summary form to indicate a range of noise levels, he could not determine the duration of exposure of any particular employee to any particular noise level. See Weyerhaeuser Co., 77 OSAHRC 9/A2, 4 BNA OSHC 1972, 1976-77 CCH OSHD P21,465 (Nos. 1231 and 1758, 1977), affirmed in part and remanded in part, 614 F.2d 199 (9th Cir. 1980); Weyerhaeuser Co., 74 OSAHRC 57/F4, 2 BNA OSHC 1152, 1974-75 CCH OSHD P18,468 (Nos. 2116 and 2250, 1974).

Thus, [*22] the Secretary has failed to prove noncompliance with the noise standard in the south press room on Dec. 13, 1973. We therefore modify the judge's decision and order by vacating the citation's allegation with respect to the south press room. IT IS SO ORDERED.