THE SINGER COMPANY-FURNITURE DIVISION
OSHRC Docket No. 7134
Occupational Safety and Health Review Commission
March 5, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Mrs. Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor
Mr. John P. Cooleen, Manager, Labor Relations, The Singer Company, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
The report of Administrative Law Judge James D. Burroughs in this case, dated November 20, 1974, is before the Commission pursuant to an order issued under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"]. The citation alleged a willful violation of the noise standard 29 C.F.R. § 1910.95(b)(3) at two different locations, a polyester fill line and a print room. Judge Burroughs vacated the citation to the extent it alleged a violation in the print room, but affirmed the citation as nonserious as to the polyester fill line location. He assessed no penalty for the violation.
The order for review was issued sua sponte by Commissioner Moran on the following issues:
(1) That the citation was not issued with reasonable promptness, and
(2) That the occupational safety and health standard at issue was unenforceably vague.
The parties did not petition for review [*2] of the Judge's report; they have not briefed the issues listed in the direction for review. This being so, we decline to address these issues or any other aspect of the Judge's disposition in the absence of a compelling public interest. See Boring & Tunneling Co., of America, Inc., No. 5782, OSHD Para. 20,253, OSHC (December 29, 1975). Accordingly, the Judge's decision is affirmed.
So ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
In view of the position taken by the majority, the logical question to ask is why should a Commission member be permitted to direct a Judge's decision for review? This decision and a number of previous decisions have taken the position that the Commission should automatically affirm the Judge's decision - without discussion of "any aspect" thereof - where the parties have not asked for review by the Commission members. If this is a valid principle, what, then is the purpose of authorizing discretionary review? What is the need of having Commission members at all?
The answer is simple. There is no need for discretionary review nor is there any need for having Commission members. If my colleagues are to be consistent in their [*3] positions, I call upon them to propose appropriate changes in the basic legislation.
My position on this matter was set forth in testimony I gave to the Labor-HEW Subcommittee of the House Appropriations Committee on May 8, 1975. The following exchange is quoted from the record of that hearing (pp. 1187-1188):
"Mr. Natcher. Based on your experience, would you recommend any changes in the Occupational Safety and Health Act?
Mr. Moran. Yes, I would, Mr. Chairman, but it would be very extensive and it would probably be academic, because I don't think there is any possibility of any changes.
Mr. Natcher. Well, we would like for you to develop that for the record, if you will, please.
Mr. Moran. I will do that, Mr. Chairman.
[The information follows:]
There are a number of legislative changes which, in my opinion, ought to be made in the Occupational Safety and Health Act of 1970. I shall summarize them as briefly as I can:
(1) The most needed change is to move the Occupational Safety and Health Review Commission (OSAHRC) from the executive branch to the judicial branch. This is essential if we are to preserve and protect the impartiality and independence of judicial decisions [*4] on disputed enforcement actions.
OSAHRC is the only agency in the executive branch which has no policy-making functions. Its one and only function is to decide cases. It performs no function that a court doesn't perform. Its continuance in the executive branch threatens to reduce its independence. OSAHRC must rule on disputes between the Secretary of Labor and employers - yet the Secretary of Labor has been allowed by the White House to decide who shall serve as a member of the commission. Labor Department officials have also attempted to interfere in the operations of the commission in other ways. It is only through 4 years of sheer obstinacy on my part, with help from judges and others, that our independence has been preserved nearly intact. I fear that OSAHRC will, in the future, come to be dominated by the Secretary of Labor if it is not moved to the judicial branch where it belongs.
There are many other reasons why this change would be beneficial. Some of them appear in the following Law Review articles: A Court in the Executive Branch: The Strange Case of the Occupational Safety and Health Review Commission, 20 Wayne Law Review 999 - (July 1974) -: Parties to Proceedings [*5] in the Court of Appeals under the Occupational Safety and Health Act of 1970, 15 Boston College Industrial and Commercial Law Review 1089 - (July 1974) -: and Discretionary Review by the Occupational Safety and Health Review Commission: Is it Necessary?, 46 Colorado Law Review 139 - winter, 1974. OSAHRC is currently in the same anomalous position as the tax court was for many years prior to its transfer to the judicial branch in 1969. The same reasoning which caused Congress to move the tax court from the executive to the judicial branch applies in every respect for the Review Commission.
(2) The law should be changed in order to eliminate the members of the commission, leaving only the judges and their support staff in place. This would save $1 1/2 million a year, expedite the disposition of cases and not decrease the quality of justice one iota. The two-level system presently in effect - judges as one level and commission members as the other - is duplicative, unnecessary, delays decisions, and adds nothing to the final outcome of the cases. Such a two-level system may well be justified in the Federal Trade Commission, Civil Aeronautics Board, Federal Communications Commission [*6] and similar regulatory bodies because the members of such boards and commissions set policy, grant licenses, establish rates and have responsibility for enforcement of various laws. But OSAHRC can only adjudicate issues in dispute. The Secretary of Labor sets all policy under the Occupational Safety and Health Act and he alone has all enforcement and regulatory authority thereunder. Parties to OSHA litigation do not need two bites of the apple - one before the judge, a second before the commission members - prior to the time a case reaches the Circuit Court. The judges do excelient work and the members cannot improve on their dispositions - they must operate from the exact same record. Other reasons for such a change appear in the Colorado Law Review article cited above.
(3) If neither of the above two changes are made, the law should be amended to eliminate discretionary review of judges' decisions by commission members and substitute direct appeal therefor. Nearly one-third of all judges' decisions which have been ordered to be reviewed by the commission members to date were cases which were settled by the parties or where neither party desired any further litigation of the [*7] matter. To review - and change - such dispositions is an unnecessary exercise and can often be harmful. Yet nothing can prevent it if any commission members want to do it so long as the right to order review remains solely within the discretion of the members. The members should not have the right to act on a judge's decision unless one of the parties files an appeal from that decision."
This response also covers nine other suggested changes which are not pertinent to the matters discussed in this case. Nevertheless I stand by each of those suggestions and submit that if my colleagues truly believe in the principle they enunciate in this decision, they should support the legislative changes suggested above.
Until those changes are made, however, the law continues to authorize a member of this Commission to direct review whether or not any party desires further consideration of the matters raised in the hearing before the Judge. Since the Act permits it, I shall proceed to discuss those matters in this particular case.
Prior to the hearing, respondent moved for dismissal of the citation because the abatement period set for the alleged violations pursuant to a previous inspection [*8] had not run at the time of the second inspection. The issue was fully briefed for the Judge's consideration. Since the parties have never indicated any disinterest in the issue I find my colleagues' assumption of disinterest unwarranted.
For reasons that follow, I find that the citation is void. Accordingly, I also conclude that the Commission errs in not granting the respondent relief under the plain error rule. See Secretary v. Puterbaugh Enterprises, Inc., 9 OSAHRC 718, 723 (dissenting opinion) and the authorities cited therein. Furthermore, as the United States Court of Appeals for the Fifth Circuit correctly stated in Accu-Namics, Inc. v. OSAHRC, 515 F.2d 828, 834 (5th Cir. 1975):
"Once the Commission decides to review, it may review the entire record . . . . Here, although the Commission invited submission on two questions, this cannot be construed as a limitation on its review power."
The citation at issue in this case resulted from an inspection on February 13, 1974, of the respondent's plant at Toccoa, Georgia, and involved exposure of employees to high levels of noise in the polyester fill line, a production area within the large plant. Respondent showed, [*9] however, that in March 1972 it had been cited for the same offenses involved in this proceeding. That citation did not specify any particular parts of the plant, but referred instead to the Toccoa plant as a whole. Respondent did not contest the 1972 citation, but several extensions of the original abatement date were subsequently granted upon respondent's requests which were unopposed by complainant. The last extension set a final abatement date of July 24, 1974. The effect thereof was to give respondent a period of time extending until July 24, 1974 so that it could take whatever action was necessary to bring the noise levels within that plant into compliance with the requirements of the cited regulations. At the time of the inspection involved in this case, that final abatement date was still five months in the future.
Complainant contends that the 1972 citation does not cover the conditions of this citation because the polyester fill line was not in operation at the time of the first inspection. I find that contention unpersuasive.
A citation must "describe with particularity the nature of the violation." 29 U.S.C. § 658(a). The citation in this case, by failing to specify [*10] particular violative conditions within the plant, must be read to apply to the plant as a whole. Thus, new operations begun within respondent's plant during the period before the plant-wide abatement order became effective are not excluded. They had the same abatement deadline.
The period allowed for coming into compliance with the noise regulations within the plant had not expired at the time of the 1974 inspection. Consequently, the citation for new violations of the same regulation within that plant during that time period was void and should be vacated.
Since this decision does not discuss any of the matters covered in Judge Burroughs' decision, the same is attached hereto as Appendix A.
APPENDIX A
DECISION AND ORDER
Edwin G. Salyers, for complainant
John P. Cooleen, for respondent
STATEMENT OF CASE
This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter referred to as the Act). Respondent seeks review of a citation for willful violations issued to it by the complainant on February 21, 1974, n1 pursuant to section 9(a) of the Act, and amended on February 26, 1974. Review [*11] is also sought of the notification of proposed penalty issued on February 21, 1974, and amended on February 26, 1974.
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n1 A non-serious citation alleging two violations was also issued to respondent on February 21, 1974, but was not contested.
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The citation for willful violations was issued as the result of an inspection conducted on February 13, 1974, of a workplace located at 506 Avon Street, Toccoa, Georgia. Respondent is engaged in the manufacture of furniture at the plant facilities located at the Toccoa, Georgia, address.
The citation for willful violations issued on February 21, 1974, and amended on February 26, 1974, alleges violations of the standards published at 29 CFR 1910.95 and 29 CFR 1910.95(b)(3). The alleged willful violation of 29 CFR 1910.95 is described in the amended citation as follows:
"Willfully failed to reduce sound levels below values of Table G-16 by use of feasible administrative or engineering controls, exposing employees to the hazard of excessive noise in the following areas:
(a) [*12] Polyester Fill Line;
(b) Print Room - Sanders.
"(Engineering Compliance Program is to be submitted within 60 calendar days as well as progress reports every 30 calendar days from date of Citation.)"
The complaint amended the citation to specifically refer to 29 CFR 1910.95(b)(1) as that part of 29 CFR 1910.95 allegedly violated.
The alleged willful violation of 29 CFR 1910.95(b)(3) is described in the amended citation in the following manner:
"Willfully failed to administer a continuing and effective hearing conservation program, exposing employees to the hazard of excessive noise in areas that exceeded the values of Table G-16."
The notification of proposed penalty, as amended, proposed a penalty of $540 for the alleged violation of 29 CFR 1910.95. A penalty of $270 was proposed for the alleged violation of 29 CFR 1910.95(b)(3).
The respondent, by notice dated March 15, 1974, and received on the same date, timely advised the complainant that it desired to contest the willful citation and the penalties proposed for the alleged willful violations.
Subsequent to the filing of the complaint and answer, respondent filed a "Motion for Summary Dismissal of Complaint." The motion [*13] was based on the fact that a non-serious citation had been issued to respondent on March 15, 1972, alleging, among other violations, that it had violated the standards published at 29 CFR 1910.95(a) [item 1 of the citation] and 29 CFR 1910.95(b)(3) [item 2 of the citation]. n2 The abatement dates were specified as July 24, 1972, and April 28, 1972. A series of extensions of abatement dates were granted which extended the abatement date for both items to July 24, 1974. Respondent contended that the operations of the plant were substantially the same as they were at the time of the issuance of the March 15, 1972, citation. A polyester fill line had been added in the plant in January 1973 and a sander which had been operating in the plant at another location was relocated for utilization in the polyester fill line which included new equipment. (Tr. 18). The motion was denied by Judge Joseph L. Chalk on May 22, 1974, without prejudice to renew at the hearing.
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n2 The citation of March 15, 1972, also alleged violations of 29 CFR 1910.94(f)(6)(1) [item 3] and 29 CFR 1910.94(b)(2) [item 4].
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The hearing was held in Atlanta, Georgia, on July 23, 1974. No additional parties desired to intervene in the proceedings. At the commencement of the hearing, complainant conceded the alleged violation of the standards as they applied to the sanders in the print room. Complainant explained that the print room sanding operation was in existence at the time the March 15, 1972, citation was issued and was covered by that citation. The abatement date for the applicable items contained in that citation had been extended to July 24, 1974. Thus, respondent was not required to have the violations as applied to the print room corrected at the time of the inspection on February 13, 1974. (Tr. 5-6). Complainant contends that the polyester fill line was a new operation commenced after the issuance of the March 15, 1972, citation and not covered by that citation. (Tr. 7).
Respondent renewed his motion at the hearing to dismiss the citation on the grounds that the citation issued March 15, 1972, covered the polyester fill line. (Tr. 15). Judgment was reserved on the motion until evidence was introduced to show [*15] the source of the excessive noise level in the polyester fill line. (Tr. 20-21). This motion to dismiss was denied after complainant had presented its evidence. (Tr. 153-154). Respondent also moved to dismiss the alleged violation of 29 CFR 1910.95(b)(3) for the reason that the standard was vague and unenforceable. (Tr. 21). The motion was denied. (Tr. 24).
Pursuant to Commission Rule 52, complainant mailed a Request for Admission of Facts to respondent on July 9, 1974. Respondent replied to the request on July 19, 1974. At the commencement of the hearing, respondent objected to the relevancy of paragraphs 25, 26, 35, and 36 of the request for admissions. Respondent admitted the facts but objected to their relevancy. These paragraphs were stated as follows:
Paragraph 25
"The Singer Furniture Company did not ask any advice from the Secretary of Labor (Occupational Safety and Health Administration) as to any 'relocation' of its operations, machinery, or equipment at the jobsite located at Toccoa, Georgia.
Paragraph 26
"The Singer Furniture Company did not file with the Occupational Safety and Health Administration a report in regard to the "relocation" of operations, [*16] machinery or equipment at its jobsite at Toccoa, Georgia.
Paragraph 35
"At the time of the Occupational Safety and Health Administration inspection of February 13, 1974, there were employees of the respondent working at the Polyester Fill Line and Print Room-Sanders which had not been subjected to an audiogram during the last twelve (12) months preceeding such inspection.
Paragraph 36
"At the time of the Occupational Safety and Health Administration inspection of February 13, 1974, there were employees of the respondent working at the Polyester Fill Line and Print Room-Sanders which had never been examined or subjected to an audiogram."
A motion to strike was granted as to paragraph 25 for the reason that the Act does not require an employer to seek advice from the complainant prior to the relocation of its business operations. The remaining paragraphs were deemed relevant to the determination of the issues in dispute. (Tr. 11-15).
At the conclusion of complainant's evidence, respondent moved for dismissal on the grounds that the evidence did not support a violation of the noise levels specified by Table G-16. Judgment was reserved on the motion. (Tr. 151-152).
JURISDICTION [*17] AND ISSUES
Respondent concedes that at all times material to this proceeding it was engaged in a business affecting commerce within the meaning of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein. (Pars. I, II, Complaint and Answer).
The following issues are deemed pertinent to a disposition of this case:
1. Should the willful citation issued on February 21, 1974, and amended on February 26, 1974, be dismissed because it is a duplication of the citation issued on March 15, 1972?
2. Is the standard published at 29 CFR 1910.95(b)(3) vague and unenforceable?
3. Did respondent violate section 5(a)(2) of the Act by failing to comply with the standards published at 29 CFR 1910.95(b)(1) and 1910.95(b)(3)?
4. Were the violations, if any, willful violations within the meaning of section 17(a) of the Act?
5. What penalties, if any, should be assessed for any violations determined against respondent?
FINDINGS OF FACT
The evidence of record has been carefully considered in its entirety. The following facts are specifically determined in resolving the issues in this case:
1. The Singer Company is a New Jersey corporation with [*18] its principal place of business at New York, New York. Its furniture division, at all times material to this proceeding, was engaged in the manufacture of furniture at a place of business, among others, at 506 Avon Street, Toccoa, Georgia. (Par. II, Complaint and Answer).
2. Respondent's Toccoa facility consists of plant 1, plant 2, and a warehouse. Plant 1 is a complex of principally old wooden buildings of various ages. Plant 2 is a recent steel, concrete, and masonry building approximately five or six years old. The warehouse is of a prefab metal type construction. (Tr. 156).
3. Respondent manufactures miscellaneous tables at the Toccoa facilities. Aprpoximately 600 persons are employed at the Toccoa location. (Tr. 156-157).
4. On March 9, 1972, complainant, through a duly authorized industrial hygienist, Robert Tremblay, conducted an inspection of respondent's Toccoa plant. (Tr. 56-57).
5. As a result of the inspection conducted on March 9, 1972, a non-serious citation was issued to respondent on March 15, 1972. (R.A. n3 par. 1; Tr. 60). Items 1 and 2 of the citation alleged violations of the standards published at 29 CFR 1910.95(a) and 29 CFR 1910.95(b)(3), [*19] respectively. The alleged violations were described as follows: (Citation; R.A. par. 1)
1. 29 CFR 1910.95(a)
Failure to provide protection against the effects of noise exposure (Progress report every 30 days).
2. 29 CFR 1910.95(b)(3)
Failure to provide a continuing, effective hearing conservation program.
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n3 Reference is to the Request for Admissions and respondent's reply thereto.
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6. After the receipt of the March 15, 1972, citation, respondent sought outside assistance in an effort to reduce the excessive noise level. The Liberty Mutual Insurance Company was requested to and did survey the noise situation. Their evaluation was set forth in a letter dated June 23, 1972, with a separate report attached. (Exs. A, B; Tr. 160, 162).
7. Respondent concluded that Liberty Mutual and it were not knowledgeable enough to effectively engineer a noise correction program. Respondent then secured the services of Bolt, Beranek and Newman, an accoustical engineering firm located in Cambridge, Massachusetts. [*20] The firm made a two-day survey of the plant and rendered a written report on August 14, 1972. (Tr. 164-165).
8. Bolt, Beranek and Newman recommended 13 measures that might be taken to control the noise. As of July 15, 1974, respondent had tried 9 of the measures. Seven of them were successful and two did not work. Three of the recommendations were not followed since they had been tried by others in the industry without success. The remaining measure was at the time of the hearing in the process of being tried. (Tr. 166-168).
9. After exhausting the measures recommended by Bolt, Beranek and Newman, respondent had not overcome all of the noise problems in the plant. Respondent then sought and retained the services of Dr. John S. Stewart, an expert on noise control with an expertise related to the woodworking industry. (Tr. 33, 168-169).
10. In January 1973, respondent commenced a polyester fill line operation at its Toccoa plant (R.A. par. 13; Tr. 69, 103). This operation was not in existence at the time of the inspection conducted at the facilities on March 9, 1972. (R.A. pars. 4, 5, 37).
11. The polyester fill line process involves the sanding and coating of chip [*21] board or other material with a ployester fill. The resulting product is used in the construction of furniture. (Tr. 35, 104-105, 107).
12. The chip board or other material is fed by two employees through a three-drum type sander at the head of the line which sands the material. The material is then conveyed down the line and passes over the rollers of a machine, referred to as a ployester fill machine, which applies a ployester coating to the surface. The material is then passed through an ultraviolet system and skuff sanded prior to exiting from the line. (Exs. 2, 3; Tr. 35, 36, 44, 46, 107).
13. A noise level survey was made by respondent of the polyester fill line after it became operational. (Tr. 182, 190, 204). The noise survey was made on February 22, 1973. (Tr. 190-191). The survey revealed the following dBA levels for the areas indicated: (Ex. D; Tr. 191-193)
|
Area |
dBA level |
|
In-feed sander |
86 |
|
Coater operator |
90 |
|
Oven |
86 |
|
Sander (after coater) |
85 |
|
Out-feed (end) |
83 |
The sound level meter was not calibrated prior to taking the readings. (Tr. 198-199). The reading referred to as the coater operator was taken opposite the line from where the operator [*22] actually stood. (Tr. 192).
14. With the exception of the three-drum sander, the equipment and machinery used in the polyester fill line was purchased subsequent to March 15, 1972. (R.A. par. 20; Tr. 46-47).
15. The three-drum sander was in operation at a different location during the inspection which led to the issuance of the March 15, 1972, citation. (Tr. 46-47). The sander was relocated in the plant to the polyester fill line operation. (R.A. par. 21).
16. Three-drum sanders generally develop higher noise levels as wear and tear progresses. The general tendency is for mechanical systems to deteriorate and noise to increase to some degree. (Tr. 45, 47, 48). The noise level might easily vary depending on when the noise reading was taken. (Tr. 45, 47).
17. An operator stands between the three-drum sander at the head of the line and the polyester fill machine. (Ex. 4; Tr. 37).
18. A polyester fill is pumped into the machine and the rollers of the machine apply the coating to the wood material. The operator keeps the machine operational by keeping it filled with polyester and continually stirring the liquid with a knife. (Tr. 66, 106, 107, 108, 118).
19. A follow-up [*23] inspection of the Toccoa plant was conducted by industrial hygienist Tremblay on February 13, 1974. The purpose of the follow-up inspection was to determine compliance with the standards published at 29 CFR 1910.94(f)(6)(i) and 29 CFR 1910.94(b)(2), which were set forth as items 3 and 4 of the citation issued March 15, 1972. (Tr. 61, 73).
20. Noise levels readings were made of the polyester fill line at two separate locations during the inspection of February 13, 1974. A calibrated Broel and Knoer sound level meter was used to make the readings. (Tr. 62-63, 64, 66, 81-82).
21. One reading was taken at ear level between the two employees feeding material into the three-drum sander. The reading at that location lasted for 5 or 10 minutes and varied from 90 to 92 dBA. Tremblay determined an average dBA of 91. (Tr. 64, 76, 96, 98).
22. The second reading was taken at the lccation of the operator between the three-drum sander and the polyester fill machine. The meter was placed in the vicinity of the operator's ear. The operator was standing next to the rollers on the polyester fill machine. A 5 to 10 minute reading was taken. The sound level was measured at 94 dBA. n4 [*24] (Tr. 64, 65, 77, 78, 79, 80, 109).
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n4 Tremblay testified that the sound meter varied between 94 to 96 dBA. (Tr. 65, 77, 79). On cross-examination his notes reflected a continuous reading of 94 dBA. Tremblay testified that his notes would be more accurate than his memory. (Tr. 79-80).
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23. A noise measurement made at the end of the polyester fill line reflected a reading of 90 dBA. (Tr. 98).
24. The accuracy of the sound level meter used by Tremblay will vary at least one dBA. (Tr. 100).
25. There is a large exhaust hood over the polyester fill machine to carry out the vapors emitted from the fill material. (Ex. 5; Tr. 66-67). During the inspection of February 13, 1974, the exhaust system was regarded as a major noise source. (Tr. 68).
26. The material fed into the sander is brought to the area on a pallet and usually placed within a couple of feet of the sander. The employees feeding the material into the sander merely turn around, pick up a piece of the material, and feed it into the sander. (Tr. [*25] 97-98, 104, 106, 117).
27. The polyester fill line usually commences operation around 7 a.m. in the morning. (Tr. 109). The operator takes a 10 minute break at 9:30 and a 30 minute break for lunch at 12 p.m. The line is shut down, except for the dryer, during the break, and lunch periods. The line ceases operations at 3:30 p.m. (Tr. 110).
28. The functions of the operator necessitate that he go to the opposite side of the machine from his usual position approximately 8 to 10 times during the work shift. These trips usually take from 1 to 1 1/2 minutes. (Tr. 112-113, 114, 132-133, 134). The trips are necessary to keep the ends of the rollers clean. (Tr. 120, 132-133).
29. The operator usually has 3 or 4 restroom breaks of 5 minutes duration during the day. (Tr. 121-122). He averages around six hours at his normal work area. n5 (Tr. 126-127, 130-131, 133, 139, 140). He stays in the general vicinity of the rollers on the polyester fill machine but not in one particular spot. (Tr. 142, 143).
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n5 This takes into account time required for setting up the machine in the mornings, interruption in the flow of material through the line, lights going out on the dryers, cleaning of filters, and pumping polyester into the machine when it gets empty. (Tr. 123-127).
[*26]
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30. The operator and the two feed-in employees were not wearing earplugs or muffs at the time of the inspection on February 13, 1974. (R.A. par. 33; Tr. 114, 116).
31. At the time of the inspection of February 13, 1974, there were employees of the respondent working at the polyester fill line which had not been subjected to an audiogram during the last 12 months preceeding such inspection. (R.A. par. 35; Tr. 115).
32. At the time of the inspection of February 13, 1974, there were employees of the respondent working at the polyester fill line which had never been examined or subjected to an adiogram. (R.A. par. 36; Tr. 115).
33. The next noise level survey made by respondent of the polyester fill line after the initial survey conducted on February 22, 1973, was made on March 13, 1974. (Tr. 200).
34. On April 9, 1974, respondent took sound level readings at various locations on the polyester fill line. The center drum of the sander had been immobilized prior to the noise measurements. This was the only change in the conditions as existing at the time of the inspection on February 13, 1974. [*27] The reading at ear level of the in-feed operators was 88 and 89 dBA. The reading at the roll coater operator position with the exhaust fan running was 91 and 92 dBA. The reading at the same position with the exhaust fan off was 87 dBA. (Tr. 171-173).
35. A reading was also made on April 9, 1974, on the side of the sander between the sander and the wall. There was a cutout on the door at that location. The reading was 93 dBA by the sander and 89 dBA at the wall. (Tr. 173-174). The side of the sander was open at the time of the February 13, 1974, inspection, and noise was being emitted from the side. (Tr. 82).
36. Subsequent to the inspection of February 13, 1974, three changes were made in the polyester fill line. The center roll or center belt on the three-drum sander was permanently put out of operation. Bearing and mechanical problems on the center roll contributed to the noise level, and respondent determined the sanding operation was adequate without the use of the center drum. (Tr. 40-43, 48, 170, 183-185).
37. The motor and fan of the dust collection or air removal particle exhaust system were relocated from a position near the polyester fill line to a position [*28] on top of the building. (Tr. 42).
38. The third change on the polyester fill line subsequent to February 13, 1974, involved the placing of an accoustical barrier on the open side of the sander to partially block the noise and absorb it. (Tr. 43).
39. All of the changes made on the polyester fill line to lower the sound levels cost approximately $500. (Tr. 186).
40. On July 22, 1974, Dr. John S. Stewart n6 measured the sound level of the polyester fill line at different locations. He took noise measurements at the position of the two in-feed operators, which reflected a reading of 8/ dBA, and at the position of the operator between the sander and polyester fill machine, which reflected a reading of 87 dBA. (Ex. 2; Tr. 38-39, 40).
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n6 The parties stipulated that Dr. Stewart was a recognized expert in the field of noise contamination as it relates to wood processing. (Tr. 33).
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41. The sound level measured by Dr. Stewart did not vary as the material went into the machine or as it came out of the machine from [*29] what it was when the machine was not processing any material. (Tr. 40, 46).
42. Respondent received one citation prior to that issued on March 15, 1972. The citation alleged 15 violations. In order to fully comply with that citation, respondent expended $250,000 to complete a new electrical power system in plant 1. The structural integrity of the multi-storied buildings in plant 1 was investigated and resulted in a decision to abandon the upper levels for manufacturing. Some of the upper floors were shored up. Approximately $25,000 was expended on the improvements to the dust extraction system. (Tr. 157-159).
43. Since March 1972, respondent has expended in excess of $400,000 in implementing safety programs at its Toccoa plant. (Tr. 179-180).
44. Respondent's personnel manager is responsible for the general safety of the plant operations. (Tr. 207, 211).
LAW AND OPINION
Section 5(a)(2) of the Act provides that every employer shall comply with occupational safety and health standards promulgated under the Act. Complainant alleges that respondent willfully violated the standards published at 29 CFR 1910.95(b)(1) and 29 CFR 1910.95(b)(3). In addition to the issues [*30] emanating from complainant's allegations, respondent has raised two collateral issues which must be resolved prior to determining the metits of the issues raised by the issuance of the willful citation.
I. The orders extending the abatement dates for items 1 and 2 of the citation issued March 15, 1972, do not apply to the inspection conducted on February 13, 1974.
On March 15, 1972, respondent was issued a citation for violation of the standards published at 29 CFR 1910.95(a) and 29 CFR 1910.95(b)(3). The citation did not describe with any particularity the areas of the Toccoa plant or machinery and equipment to which the violations applied. It simply stated that respondent failed to provide protection against the effects of noise exposure and failed to provide a continuing effective hearing conservation program. A series of extensions were granted to extend the abatement dates for correction of the violations until July 24, 1974. n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 The first request was made for an extension on April 18, 1972. On April 20, 1972, the Area Director granted an extension until March 16, 1973. A further extension was requested on February 28, 1973. On April 4, 1973, the Commission extended the abatement dates to July 24, 1973 (item 1) and April 30, 1973 (item 2). The last extension was granted by the Commission by order dated August 30, 1973, and extended the abatement date for both items until July 24, 1974.
[*31]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Respondent submits that the abatement date of July 24, 1974, applied to the polyester fill line and that it should not have been issued a citation as a result of the follow-up inspection conducted on February 13, 1974. This position is based on respondent's contention that the source of the excessive noise level was the three-drum sander which was in operation at the time of the March 9, 1972, inspection and was covered under the citation issued March 15, 1972.
Complainant concedes that the three-drum sander was in operation on March 9, 1972, and that it was relocated to the polyester fill line which was commenced in January 1973. However, he submits that the sander was not the major source of noise, or at least not the only source, and that since the polyester fill line became operational after the issuance of the March 15, 1972, citation it was not covered by that citation. The issue must be decided for complainant.
The preponderance of the evidence clearly supports the conclusion that there were two major sources that contributed to the noise level of the polyester fill line. These sources were: [*32] (1) the three-drum sander, and (2) the exhaust or ventilating system which was overhead of the polyester fill machine.
These conclusions are supported by the following facts: (1) the dBA levels determined by the complainant's industrial hygienist, (2) the dBA levels determined by respondent on April 9, 1974, and (3) the fact that respondent relocared the motor and fan of the exhaust system from a position near the polyester fill line to a position on top of the building. It is further noted that complainant's industrial hygienist testified that most of the noise was coming from the ventilation system over the polyester fill machine. (Tr. 83, 84).
The sound level determined by complainant's industrial hygienist at the head of the sander varied from 90 to 92 dBA. The sound level at the location of the operator some distance down the line and near the exhaust hood was 94 dBA. The only logical explanation for the higher dBA level at the operator's location was that the exhaust ventilation system was a major contributor to the noise levels. There is no evidence to indicate how a lower noise level at the sander would become a higher level at the operator's location without the major [*33] noise source being associated with the ventilation system.
On April 9, 1974, respondent took noise level readings on the polyester fill line. These readings were taken after the center drum of the sander had been immobilized. The reading at the operator's position with the exhaust fan running was 91 and 92 dBA. When the exhaust fan was shut off, the noise level reading dropped to 87 dBA. This is convincing evidence that the exhaust ventilation system was a major contributor to the noise level. Respondent must also have come to this conclusion since it relocated the motor and fan of the ventilation system. There was no necessity to relocate the motor and fan unless it was contributing to the excessive noise level.
II Section 1910.95(b)(3) of 29 CFR is not too vague to be enforceable.
Section 1910.95(b)(3) of 29 CFR provides as follows:
"In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered."
Respondent argues that the standard fails to describe what must be done and thus is so vague as to deprive it of the protection afforded by the due process clause of the Fifth Amendment.
Respondent [*34] The motion was denied at the hearing and is discussed herein solely because respondent has treasted the matter as an issue in its brief.
One of the issues raised on review of the B.W. Harrison Lumber Co., Inc. case was whether 29 CFR 1910.95(b)(3) was sufficiently definite to be enforceable. Thus, that case has no binding affect on the decision in this matter.
The standard in effect tells an employer that where the sound exceeds the levels and time exposures permitted by Table G-16, he must administer a continuing, effective hearing conservation program. An employer, at the very least, is informed that he must take some action to protect employees by a hearing conservation program when sound levels to which an employee is exposed become excessive. It is true that the standard does not advise an employer as to the specific acts he must take to insure compliance with the standard, but this does not render the standard vague and unenforceable. "A [*35] permissible 'leeway' is allowed in the field of regulatory statutes governing business activities in narrow categories." Secretary v. Occupational Safety and Health Review Commission and Sante Fe Trail Transport Co., (No. 74-1049, 10th Cir., October 22, 1974).
As pointed out in the Judge's decision in Secretary v. Union Camp Corporation, Docket No. 3905 (April 1, 1974), a distinction must be made between the applicability of the due process clause in criminal and civil litigation. The standard for civil cases is the "reasonableness" of ends and means. The following comments on the alleged vagueness of 29 CFR 1910.95(b)(1) expressed in Union Camp Corporation, supra, are equally applicable in this case:
"The choice of words of the standard is not unreasonable, arbitrary, capricious or an abuse of discretion. The standard involves an application of the Act to the area of noise control in an effort to protect employees against dangers associated with excessive noise levels. The means selected . . . has a real and substantial relationship to the object sought to be attained. The standard has a direct and reasonable relationship to the accomplishment of a proper legislative [*36] purpose -- to assure safe and healthful working conditions for working men and women.
"* * * The fact that many instances may occur when its application may be difficult is merely to emphaslze the nature of the administrative problem. The standard does not violate substantive due process merely because it is imperfect. Dandridge v. Williams, 397 U.S. 471 (1970). The standard cannot be said to be so arbitrary or unreasonable as to infringe due process. The Fifth Amendment is not a guarantee of untrammeled freedom of action. Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 558 (1937)
"Any standard given the necessary specificity, as respondent suggests, to meet the objection of one employer would by necessity contain variable factors which would call for different conclusions by different employers under different or even the same circumstances. * * * Yet all must be subject to regulation if the objective of the Act is to be achieved. * * * Thus the standard must necessarily be expressed in general terms and depend for its application upon the circumstances of each case. The employer is required to think and and use his expertise gained in the [*37] operation of his business in order to comply with the standard. This is not grounds for declaring a standard vague and unenforceable. Due process does not require that an employer be informed as to every course of action he is to take."
In Miller v. Strahl, 239 U.S. 426 (1915), which was a civil action, the argument was made that a statute requiring innkeepers in case of fire "to do all in their power" to save guests was lacking in due process because it failed to inform a man of ordinary intelligence what he must or must not do under given circumstances. The Supreme Court in rejecting this contention stated: (239 U.S. at 434)
"Rules of conduct must necessarily be expressed in general terms and depend for their application upon circumstances, and circumstances vary. It may be true, as counsel says, that 'men are differently constituted,' some being 'abject cowards, and few only are real heroes,' that the brains of some people work 'rapidly and normally in the face of danger while other people lose all control over their actions.' It is manifest that rules could not be prescribed to meet these varying qualities. Yet all must be brought to judgment. And what better test [*38] could be devised than the doing of 'all in one's power' as determined by the circumstances?"
The standard in issue in this case is in essence asking an employer to do all in his power to protect employees from excessive noise levels through the use of a continuing and effective hearing conservation program.
In Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974), the court upheld the constitutionality of the standard published at 29 CFR 1910.132(a), which like 29 CFR 1910.95(b)(3) does not inform an employer as to what course of action he must take to comply with the standard. The standard involved in Ryder is even more nebulous than 29 CFR 1910.95(b)(3). In upholding the constitutionality of 29 CFR 1910.132(a), the court stated (p. 233):
"Ryder also claims that 29 C.F.R. § 1910.132 (a) is constitutionally void for vagueness because it sets up no ascertainable standard of conduct consonant with due process of law. Although the regulation may not be a model of perfect precision, we do not believe that its imprecision renders it constitutionally infirm.
"In considering the claimed vagueness of the regulation, we are mindful of two critical factors: first, [*39] this regulation involves remedial civil legislation in contradistinction to criminal legislation; secondly, the rights guaranteed by the First Amendment are not remotely related to this case. Hence, we must consider the statute "not only in terms of the statute 'on its face' but also in light of the conduct to which it is applied." United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S. Ct. 594, 600, 9 L.Ed.2d 561 (1963). The regulation appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury. Moreover, we think inherent in that standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries to dockmen, in a somewhat confined space, from falling freight and the rapid movement of heavy mechanical and motorized equipment, which would warrant protective footwear. So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster. United States v. Petrillo, 332 U.S. 1, 4, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947)." [*40]
* * *
Respondent's contention is without merit. An employer is amply protected against abritrary interpretations of standards described in general terms by the application of the "reasonable man" test. As stated in Union Camp Corporation, supra:
"Where an employer takes a course of action pursuant to a standard which is general in nature, he will be judged on the basis of whether his action was reasonable under the facts. The complainant will not be permitted to retrospectively impose his judgment on a course of action taken by an employer which was reasonable when undertaken. This presupposes that the standard did not state specific requirements which the employer had to undertake to protect his employees."
* * *
"The standard of reasonableness as applied to conduct or actions is an old one and long accepted in the law of this nation. It is based on the assumption that the actions of the reasonable average person may be used as a standard by which to measure conduct. While it attempts to measure the subjective reaction of the assumed reasonable person in certain circumstances, the test is external and objective.
"The employer who takes a reasonable course of action [*41] in complying with a general standard is fully protected by the Act from arbitrary or unreasonable requirements deemed essential by the complainant. He can bring his case before the Commission to seek an impartial determination of whether his course of action was unreasonable. The Act gives him the right to obtain an impartial determination of whether a violation existed in the first instance, and if penalties are proposed for failure to abate, he can obtain a hearing as to the reasonableness of the action taken by him to abate. The employer is better protected by employing his expertise to remedy the situation than he is by failing to take no action. Where he takes no action, he is in essence guessing that the Commission or court, in the case of an appeal, will hold the standard to be too vague to be enforceable."
The Fifth Circuit approved the use of the "reasonable man" test in its decision in Ryder Truck Lines, Inc., supra. This test was also adopted by the Tenth Circuit in Sante Fe Trail Transport Company, supra, where the court stated that a standard designed to protect workers requires flexibility rather than specificity.
III Alleged Violation of standards [*42]
A. 29 CFR 1910.95(b)(1)
Section 1910.95(b)(1) of 29 CFR provides as follows:
"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 provides:
|
|
Sound level |
|
|
dBA slow |
|
"Duration per day, hours |
response |
|
8 |
90 |
|
6 |
92 |
|
4 |
95 |
|
3 |
97 |
|
2 |
100 |
|
1 1/2 |
102 |
|
1 |
105 |
|
1/2 |
110 |
|
1/4 or less |
115" |
Table G-16 makes it clear that excessive noise levels in violation of the standard depend on: (1) the dBA level, and (2) the duration of exposure if the level is between 90 and 115.
At the time of the hearing, three changes had been made by respondent to the polyester fill line which reduced the dBA level below 90 dBA. n8 Thus, respondent does not contest the fact that feasible engineering controls existed to reduce the sound levels within the levels of Table G-16. (Tr. 55-56, 186). Respondent does contend that it was unaware of a violation of the standard, if such a violation [*43] did in fact exist. It submits that while the noise level at the operator's location exceeded 90 dBA the evidence does not support the necessary time exposure.
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n8 Complainant's expert, Dr. John S. Stewart, surveyed the noise level of the polyester fill line on July 22, 1974, and determined that the two in-feed employees and the operator were exposed to a dBA level of 87.
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The dBA level determined by complainant's industrial hygienist for the in-feed operators varied from 90 to 92. He determined, by some unexplained method, that the average dBA level was 91. He also acknowledged that the accuracy of the meter being used will vary at least 1 dBA. (Tr. 100). The Commission stated:
"The respondent in his brief contends that the sound actually measured fluctuated and thus the readings taken were not [*44] accurate. What is clear, however, is that while the readings did fluctuate, their lowest point was 97 dBA, and the fluctuations were between the 102 and 97 dBA levels. The respondent further contends that since the inspector did not calculate the precise cumulative effect of the fluctuating noise, his readings were insufficient. This is not so. So long as the lowest reading is used and duration of time is sufficient, higher readings perforce confirm that the standard was violated." (underlining added)
When the rationale expressed in Weyerhaeuser Company, supra, is considered in conjunction with the accuracy of complainant's sound meter, it is concluded that there has been no violation established for the in-feed employees. The record also does not establish the duration the two employees were exposed to a 91 dBA level even if such was conclusively proven by the evidence. Employees could be exposed to a 91 dBA level for seven hours. The operator testified that he averaged around six hours at his normal work area. This took into account many factors such as interruptions due to the flow of materials, lights going out on the dryers, and cleaning of filters. If the operator [*45] averaged only six hours, it seems unlikely that the in-feed employees would average seven hours. The evidence certainly does not establish a seven-hour exposure for the in-feed employees.
The evidence does support a violation of the standard as it applies to the operator. Complainant's industrial hygienist determined a dBA level of 94 at the operator's ear level at the time of the inspection conducted on February 13, 1974. There is nothing in the record to dispute the accuracy of this determination. The reading made by the respondent on February 22, 1973, for the operator was 90 dBA. However, this reading was actually made opposite the line from the operator. In addition, Dr. Stewart testified that it was not unusual for the noise levels of such equipment to increase with normal usage. The noise survey conducted by respondent on April 9, 1974, which was after the inspection and the immobilization of the center drum on the sander, disclosed a dBA reading of 91 and 92 at the location of the operator. This fact corroborates complainant's determination.
The evidence also establishes that the operator remained at or in the immediate vicinity of the location where the 94 dBA reading [*46] was made for a total of six hours. This duration exceeds that allowed for a 94 dBA level by Table G-16. The violation as of February 13, 1974, has been established. As stated earlier, the violation has been corrected and the determination is made as of the inspection date and not at the date of the hearing.
Respondent submits that the evidence fails to establish the necessary duration of exposure to constitute a violation of the standard. This is based on the fact that the testimony of the operator, Thurmond Campbell, is at times confusing with regard to his movements. However, his testimony as a whole supports the determination that he remains in the area where the 94 dBA level was recorded for approximately 6 hours per day. He testified on four occasions that he remained for three-fourths of an 8-hour day in the area where the 94 dBA level was recorded. (Tr. 126-127, 133, 139, 140). This takes into account restroom breaks, lunch period, movements to the other side of the line and interruption in the flow of material along the line which might occur for numerous reasons.
Respondent's motion to dismiss for failure to establish the duration of exposure is granted as to the [*47] two in-feed employees and denied as to the operator.
B. 29 CFR 1910.95(b)(3)
Section 1910.95(b)(3) provides as follows:
"In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered."
Complainant limits the alleged violation of this standard to the polyester fill line. The same standard set forth in the citation issued on March 15, 1972, covers the other areas of the plant.
The operator was exposed to a 94 dBA level on February 13, 1974, for a period of 6 hours. He was not wearing any type of hearing protection. The violation has been established as of February 13, 1974. However, since the noise has been reduced to a level below 90 dBA, there is now no necessity for a hearing conservation program as it applies to the operator or other employees of the polyester fill line.
IV Nature of Violations
Complainant contends that the violations of 29 CFR 1910.95(b)(1) and 29 CFR 1910.95(b)(3) were willful violations within the meaning of section 17(a) of the Act. The facts do not support such a conclusion. The issue must be decided for respondent. The violations are determined to be of [*48] a non-serious nature.
Complainant alludes to the fact that respondent was aware of the requirements of the standards due to the issuance of the previous citation on March 15, 1972. It is also pointed out that the noise survey conducted by respondent of the polyester fill line on February 22, 1973, reflected a level of 90 dBA at a location near the operator. This, according to complainant, would have suggested to a reasonable person that continual monitoring would be necessary to insure that the noise level did not exceed the permissible [*49] limits. According to complainant, this is especially true when it is known that machinery generally increases in its noise level as wear and tear progresses. Complainant suggests that respondent undertook an ostrich-like approach and ignored the area.
Complainant's argument implies a "bad motive" on the part of respondent was responsible for the excessive noise level on the polyester fill line. The facts do not support such an implication. Complainant conceded at the hearing that respondent had done a commendable job on noise areas within the plants where it was aware of them. (Tr. 87-88). There is not one scintilla of evidence to indicate that respondent was aware that excessive noise levels existed at any area on the polyester fill line.
The polyester fill line was commenced in January 1973. A noise survey was made of the line on February 22, 1973. A reading of 90 dBA was determined at the area of the exhaust hood but across from where the operator actually stood. This survey reflects that respondent was aware of the standard and decided to ascertain if the noise level was in compliance with the standard. There is no evidence to impugn the good faith of the respondent [*50] in making the survey or to conclude that it in some way purposely failed to take accurate measurements of the noise levels. The product engineer of the plant, Myron L. Newton, testified that he had no explanation for the failure to make follow-up surveys "except to plead the press of other work in connection with product engineering." (Tr. 202).
Since March 1972, respondent has expended in excess of $400,000 to improve the safety of its employees at the Toccoa facilities. After receipt of the citation in this case, it immediately took corrective action to reduce the dBA level to below 90. The changes necessary to reduce the sound level cost approximately $500. Respondent makes a valid reference to these two facts. It seems absurd to imply that an employer would spend in excess of $400,000 in two years on safety and then willfully fail to take corrective action in an instance that would cost only $500.
Respondent has expended a great deal of time, effort, and money in order to reduce the noise level within its facilities. It employed the services of Bolt, Beranek, and Newman, a well recognized accoustical engineering firm, to assist with the noise reduction program. It diligently [*51] followed up on the recommendations of the firm but was unable to completely resolve the problem. It then obtained the services of a recognized noise expert with a specialization with respect to woodworking machinery. These facts certainly do not indicate that respondent was displaying a careless disregard for the requirements of the noise standard.
There is no evidence to indicate that respondent was aware of any exposure of employees on the polyester fill line to excessive noise levels. When respondent learned of the violation, it immediately undertook corrective action to comply with the standard. There is also no evidence to suggest that the failure of respondent to make a follow-up survey of the polyester fill line was attributed to any intentional, deliberate, or voluntary conduct aimed at ignoring the standard. The simple fact is that respondent was unaware of the violation until the inspection of February 13, 1974.
V. Penalty Determination
The Commission is required by section 17(j) of the Act to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations [*52] in determining the assessment of an appropriate penalty. Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972). In Nacerima, the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. The principal factor to be considered is the gravity of the offense.
No useful purpose would be served by assessing penalties for the violations in this case. Only one employee was exposed to excessive noise levels. Respondent was totally unaware of the violations and took immediate corrective action to reduce the dBA level. It has expended in excess of $400,000 on employee safety in the last two years. Considerable amounts of time, money, and effort have been devoted to reducing noise levels at the Toccoa facilities as a result of the citation issued on March 15, 1972.
The purpose of the Act is to achieve safe working conditions for employees. The punitive aspect of the Act providing for a penalty assessment is simply an instrument that can be utilized to achieve the purposes of the Act. No penalty was proposed for the violations of the same standards in the citation issued March 15, 1972, and respondent's [*53] subsequent conduct has demonstrated that none was essential to achieving the purposes of the Act. Respondent's past good faith in resolving the safety problems at its Toccoa facilities negates the need for penalties in this case.
Conclusions of Law
1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.
2. The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.
3. The polyester fill line was not covered by the citation issued on March 15, 1972, and was properly subject to inspection on February 13, 1974, and the violations includible in the citation issued on February 21, 1974, as amended on February 26, 1974.
4. The standard published at 29 CFR 1910.95(b)(3) is not vague and unenforceable.
5. Respondent violated section 5(a)(2) of the Act by failing to comply with the standards published at 29 CFR 1910.95(b)(1) and 1910.95(b)(3).
6. The violations of the standards were of a non-serious nature.
7. No penalty is assessed for the [*54] violations.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
ORDERED:
(1) The willful citation issued respondent on February 21, 1974, and amended on February 26, 1974, is modified to provide that respondent committed non-serious violations of the standards with respect to the polyester fill line; the alleged violations as they pertain to the sanders in the print room are vacated; and
(2) The notification of proposed penalty issued on February 21, 1974, and amended on February 26, 1974, is vacated.
Dated this day of November 1974.
James D. Burroughs, Judge, OSAHRC