INTERNATIONAL HARVESTER CO.  

OSHRC Docket No. 76-4572

Occupational Safety and Health Review Commission

January 31, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO, Commissioner. *

* Commissioner Cottine took no part in the consideration or decision of this case.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Ronald J. Hein, for the employer

Robert A. Keller, Jerome Schur, Stephen Wodka, Oil, Chemical & Atomic Workers International Union and Peter Bommarito, President, United Rubber, Cork, Linoleum and Plastic Workers of America, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678, ("the Act").   A decision of Administrative Law Judge Louis J. Rubin is before the Commission for review pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).   The issue is whether Judge Rubin erred in approving a settlement agreement between the Secretary and the respondent, International Harvester Company, despite objections to the settlement by Local 6 of the United Auto Workers ("the Union"), a union representing certain of International Harvester's employees.   Having reviewed the record, the Commission members are divided on the appropriate disposition of the case.   Commissioner Barnako [*2]   would affirm the judge's decision, while Chairman Cleary would hold that the judge erred in approving the settlement agreement and would remand for further proceedings.   In view of the statutory purpose of expeditious adjudication, the members agree to resolve their impasse by affirming the judge's decision but according it the precedential value of an unreviewed judge's decision.   Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, 1977), aff'd, 591 F.2d 991 (4th Cir. 1979).

I

Following an inspection of International Harvester's tractor and earth moving equipment manufacturing plant in Chicago, Illinois, the Secretary, on September 15, 1976, issued a citation alleging that the company violated the Act for failure to comply with the noise standard at 29 C.F.R. §   1910.95(b)(1). n1 The citation stated:

In the Endurance Testing Area of Department 72, a sound level existed between approximately 57 dBA and 108 dBA when measured on the A scale of a standard sound level meter, with a weighted mean dBA of approximately 94 dBA.   The Endurance Testers and Test Engineers were exposed to said noise levels for a period of time totalling [*3]   between at least 4.5 hours and 7.5 hours during the work day.

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n1 This standard provides:

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

 

[Footnote omitted].

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International Harvester's Endurance Testing Area consists of a number of small rooms, or test cells, located on either side of a central corridor. Large engines being tested for endurance are run almost continuously in the rooms.   Neither the rooms nor the corridor have ceilings, so that noise generated by the running engines enters the corridor unattenuated by any barrier.

The alleged [*4]   violation, as stated in the citation and reliterated by the Secretary throughout these proceedings, concerns the exposure to excessive noise of certain salaried, non-union employees, referred to as Endurance Testers and Test Engineers.   However, certain union employees, referred to as Mechanics, also work in the same area.   It appears that the Mechanics sometimes work in the test cells in which engines are running, where they are exposed to noise both from the engine in the cell they are in and from engines in surrounding cells. Beyond this, the record does not reveal the work stations and duties of either the Mechanics, Endurance Testers, and Test Engineers. n2

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n2 No evidentiary hearing has been held in this case.   The facts stated in this opinion are based on undisputed assertions made in various documents filed in the case and at a hearing at which the proposed settlement agreement was discussed.

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International Harvester timely contested the citation, initiating proceedings before this Commission.   29 U.S.C. §    [*5]   659(c).   The Union thereafter notified the Commission that, as the authorized representative of the Mechanics who work in the Endurance Testing Department, it was asserting party status in the case. n3

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n3 Commission Rule 20(a), 29 C.F.R. §   2200.20(a), provides that:

Rule 20 Party status.

(a) Affected employees may elect to participate as parties at any time before the commencement of the hearing before the Judge, unless, for good cause shown, the Commission or the Judge allows such election at a later time. . . .

The term "affected employee" is defined in Commission Rule 1(e), 29 C.F.R. §   2200.1(e), as:

Rule 1 Definitions.

* * *

(e) "Affected employee" means an employee of a cited employer who is exposed to the alleged hazard described in the citation, as a result of his assigned duties.

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Following various pretrial motions and discovery, including an unsuccessful motion by International Harvester to have the Union dismissed as a party, n4 the Secretary and the company entered into a settlement agreement.   [*6]   The agreement provided that the company would withdraw its notice of contest to the citation and proposed penalty, and would abate the violation by August 15, 1977, by erecting an acoustical ceiling over the central corridor of the Endurance Testing Area.   The Union objected to the settlement on the basis that the agreement would not protect the employees it represents, who do not work in the central corridor. The Union asserted that other controls, such as building ceilings over the test cells themselves or limiting the amount of time Mechanics were permitted to spend in the cells, were necessary to adequately protect its members from the noise hazard.

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n4 International Harvester asserted that it was notified by the Secretary's representative, at the closing conference following the inspection of its plant, that the measurements made during the inspection did not reveal that the Mechanics were exposed to excessive noise. Based on this information, International Harvester contended that the Union was not a proper party because the Union's members were not "affected employees" within the meaning of 29 C.F.R. §   2200.20(a).   Judge Rubin denied the company's motion on the basis that an employee may be "affected" by a hazardous condition even if that employee is not exposed to that hazard on the day of an inspection. The Commission denied International Harvester's request for an interlocutory appeal of this ruling.

  [*7]  

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Judge Rubin convened a hearing on the Union's objections to the settlement. At the hearing, the Secretary contended that the settlement should be approved because it provided for abatement of the hazard for which International Harvester was cited.   Specifically, the Secretary contended that the citation did not reach the exposure of mechanics to excessive noise because no mechanics were exposed to excess noise during the inspection. Thus, since the settlement would be fully effective in correcting the cited hazard, the Secretary urged that the settlement be approved.   International Harvester also sought approval of the settlement, reiterating its position that the Union was not a proper party because none of the employees it represented were encompassed within the hazard described in the citation.   The Union continued to press its objections to the agreement.   While the Union agreed that its members were not exposed to excessive noise during the inspection that led to the citation, it contended that the work its members perform in the Endurance Testing Area varies, depending on how the company arranges [*8]   work schedules.   Thus, the Union contends that its members may be exposed to excessive noise on days other than those on which the inspection took place, and that any agreement to abate the noise problem in that area should include provisions to assure that its members are not exposed to excessive noise in the future.

In briefs filed with the judge subsequent to the hearing, both the Secretary and International Harvester also argued that employees or a representative of employees have no standing to object to a plan of abatement contained in a settlement agreement. They asserted that, under Commission precedent, an employee or employee representative can object only to the reasonableness of an abatement date contained in a settlement agreement, and that the Union's objections here did not concern the August 15, 1977, abatement date included in the agreement.   In support of this position, the Secretary and the company cited, among other cases, Local 588, United Auto Workers (Ford Motor Co.), 76 OSAHRC 58/B8, 4 BNA OSHC 1243, 1976-77 CCH OSHD P20,737 (No. 2786, 1976), aff'd, 557 F.2d 607 (7th Cir. 1977), and United States Steel Corp., 77 OSAHRC 12/C3, 4 BNA OSHC 2001,   [*9]   1976-77 CCH OSHD P21,463 (No. 2975, 1977).

Judge Rubin approved the settlement agreement. He concluded that since the alleged violation did not encompass the Union's members, the Union had no standing to object to the agreement.   He stated that it would be meaningless to hold otherwise, for "(t)he Review Commission is without authority to compel abatement of a condition not charged in the citation." The judge also held that, if the Union did have standing to object to the settlement, such standing would only permit it to object to the reasonableness of the abatement date, a subject to which the Union did not object here.   The judge relied on Local 588, United Auto Workers, supra, and United States Steel Corp., supra.

On review, the Secretary and International Harvester contend that the judge properly concluded that the Union did not represent affected employees and therefore had no standing to object to the settlement agreement. They also argue that the judge was correct in holding that even if the Union did have standing to object to the agreement, it could only object to the time set for abatement, and that its objection did not reach this aspect of the agreement.   [*10]  

The Union contends that, because it was a party to the case, the judge improperly approved the settlement agreement over its objections.   The Union points out that its members work in the area where high noise levels exist, and it argues that its members are therefore sufficiently affected by the cited condition to justify party status.   Although the Union does not dispute the assertion of the Secretary and the company that its members were not exposed to excessive noise on the day of the inspection, the Union argues that Commission Rule 20, 29 C.F.R. §   2200.20, and section 10(c) of the Act, 29 U.S.C. §   659(c), should be broadly construed to provide party status to employees whose exposure to a hazardous condition may not rise to the level of a violation of the Act.   The Union points out that the noise exposure of its members depends on their work schedules and the number of engines being tested at any given time, factors totally within the company's control.   Therefore, the potential for overexposure of its members exists.   Furthermore, even without such overexposure, the union members nevertheless work in areas containing high noise levels and are therefore affected by the condition [*11]   that is the subject of the citation.   Party status for the Union is therefore appropriate in order that the union members have a voice in a condition that affects their work environment.

The Union next argues that its rights as a party go beyond the right to object to the time allowed for abatement in a settlement agreement, and includes the right to object to the plan of abatement. The Union contends that it is meaningless to talk about an abatement date provided in a plan if the plan will not actually achieve abatement. Thus, consideration of the adequacy of the abatement plan must accompany any objection to the abatement date.   As employees clearly have the right to contest the reasonableness of an abatement date, that right must therefore include the right to question whether abatement will actually occur.

The Union further argues that the Commission should consider the adequacy of an abatement plan because abatement of hazardous conditions is the central purpose of the Act and will not be achieved if the Commission approves an agreement that will not in fact secure abatement. Because the Commission has the authority to specify the means of abatement an employer must employ,   [*12]   affected employees who are a party to the Commission proceedings must have the right to be heard on this subject.   To hold otherwise, the Union argues, will result in their right to participate in Commission proceedings being nothing more than a "hollow shell." Thus, the Union argues, the Commission should not approve a settlement agreement when an employee party objects that the agreement is inadequate to achieve abatement.

Finally, the Union argues that even if it is limited to disputing the time allowed for abatement, its objections in fact reach that issue.   The Union points out that it has suggested that administrative controls are available to protect its members.   As such controls can be implemented immediately, its suggestion of such controls concerns the time for abatement. Further, by arguing that the plan will not achieve abatement for its members, the Union is in effect saying that any time allowed for abatement must be considered unreasonable.   Thus, the Union asks that the case be remanded for consideration of its objections to the settlement agreement.

Commissioner Barnako would affirm the judge's decision approving the settlement agreement. He agrees with the judge [*13]   that the Union is not a proper party under the Act and the Commission's rules.   Employees are only proper parties to a Commission proceeding if they are "affected" by the conditions alleged to be in violation of the Act.   29 U.S.C. §   659(c); 29 C.F.R. §   2200.20(a).   In order to be so "affected," employees must be exposed to the alleged hazard described in the citation.   29 C.F.R. §   2200.1(e).

The citation is directed to a noise hazard existing in a particular part of the plant -- the corridor where the Endurance Testers and Test Engineers are employed.   The union employees do not work in the corridor and neither the Secretary nor the Union assert that the union employees are exposed to noise in the corridor. Indeed, the Union objects to the settlement agreement because it does not provide for abatement of a noise hazard in another area of the plant -- the test cells where the union employees work.

The Commission has held that it is within the Secretary's discretion as the prosecutor under the Act to decide what conditions he will cite, and this discretion necessarily includes the authority to limit the scope of any citation he issues.   Carnation Can Co., 78 OSAHRC 54/D9, 6   [*14]   BNA OSHC 1730, 1978 CCH OSHD P22,837 (No. 8165, 1978), appeal filed, No. 78-2894 (9th Cir. Aug. 18, 1978).   The Secretary's assertion, consistently reiterated throughout these proceedings, that the citation only covers the corridor where the Endurance Testers and Test Engineers work thus determines the appropriate scope of the citation.   The Commission cannot enlarge this scope.   As the judge observed, the Commission cannot require abatement of a condition not charged in a citation.   Since the Union's members are not exposed to the noise hazard alleged in the citation, those employees are not affected by the violation here at issue, and the Union is therefore not a proper party to this proceeding.   Thus, the Union's objections to the settlement agreement should not be considered, n5 and the agreement should be approved.

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n5 Commissioner Barnako concludes, however, that the judge acted properly in initially denying International Harvester's motion to dismiss the Union as a party and in affording the Union an opportunity to voice its objections.   Prior to the hearing on the settlement agreement, it was not clear that the Union was not in fact a proper party, and the judge was correct in conditionally granting the Union party status and affording the Union an opportunity to present its objections to the agreement.   See Reynolds Metals Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979) (separate opinion).   However, the fact that the Union was conditionally entitled to party status does not imply, as the Union argues, that it can thereafter use such status to block any settlement submitted by the other parties.   Once the record demonstrated that the Union was not a proper party, the judge properly withdrew its party status and disregarded its objections to the settlement agreement.

Even if the Union was a proper party, Commissioner Barnako would conclude that the settlement agreement should be approved.   Commissioner Barnako would limit the scope of the objections that an employee party can raise to a settlement agreement to objections to the reasonableness of the abatement date contained in the agreement.   Reynolds Metals Co., supra; United States Steel Corp., supra. Any further objections should be made to the Secretary, who should consider them in deciding whether to proceed with the settlement in light of the employee party's objections.   Reynolds Metals Co., supra. In this case, the Union does not object to the abatement date contained in the agreement.   Its objection is that the plan of abatement provided in the agreement is inadequate.   The Secretary has been made aware of the Union's objections, and nevertheless has asked, both before the judge and the Commission, that the settlement be approved.   Under these circumstances, Commissioner Barnako would conclude that the Union has been accorded its full right to participate in the settlement process and that its objections provide no basis for disapproving the agreement.

  [*15]  

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Even if the citation was addressed to a noise hazard in the cells, Commissioner Barnako notes that in order to be entitled to party status, the Union must establish exposure of its employees to noise levels exceeding the limits of the cited standard.   The Union, however, does not dispute that its members were not exposed to excessive noise in the cells on the inspection date.   Nor does the Union assert that its members were exposed to excessive noise in the past while working in the cells. Instead, the Union is concerned that its members may be exposed to excessive noise in the future if the settlement agreement now before the Commission does not provide for limiting the exposure of its members to the existing noise levels.   In support of its concern, the Union cites a study made by an acoustical engineer, who was retained by the Union to conduct a discovery entry of International Harvester's plant to determine the extent to which its members were exposed to noise. The acoustical engineer examined a log maintained by one mechanic from May 9, 1977, to June 14, 1977, and concluded that the [*16]   mechanic's work schedule for that period was "marginally adequate" to preclude excessive noise exposure. The engineer noted that any increase in work schedule or number of engines tested would therefore lead to excessive exposure. The Union is concerned that, because matters such as work schedules and numbers of engines tested are exclusively within the control of management, its members are potentially exposed to excessive noise in the absence of any restraint on management taking steps that would increase their exposure.

In Commissioner Barnako's opinion, the Union's concern is speculative.   An employer's duty under the standard is to limit the exposure of each employee to the limits provided in the standard.   An employer who does so fulfills its duty, and there is no basis to find that employer in violation or to order "abatement" simply because the employer might take steps that would lead to a situation of noncompliance in the future.   Moreover, Commissioner Barnako finds no merit in the Union's argument that the noise levels affect the working conditions of its members even absent overexposure, so as to justify party status.   Where a specific standard is applicable, an employer [*17]   fulfills its duty under the Act by complying with that standard.   If employees seek relief from a condition that affects them but does not violate the Act, they must seek such relief in another forum.   This Commission has no authority to order an employer to alter working conditons that comply with the Act.   See Detroit Printing Pressmen Local No. 13, 72 OSAHRC 12/A11, 1 BNA OSHC 1071, 1971-73 CCH OSHD P15,315 (No. 1503, 1972).

III

Chairman Cleary would hold that the Union is entitled to party status.   In determining whether the Union's members are sufficiently "affected" by the alleged hazard to be entitled to party status, the Commission must consider the nature of the hazard. This is not a typical case involving a safety hazard, where it is relatively simple to determine whether particular employees are exposed to or have access to the hazard. Instead, it takes sophisticated instrumentation and careful measurements to establish that an employee is exposed to noise in excess of the limits provided in section 1910.95(b)(1).   See, e.g., Sun Shipbuilding and Drydock Co., 74 OSAHRC 61/A2, 2 BNA OSHC 1181, 1974-75 CCH OSHD P18,537 (No. 268, 1974).   The difficulty   [*18]   in determining excessive exposure is magnified where, as appears to be the case here, the noise levels are not constant and the exposure is neither continuous nor systematic.   Moreover, measurements made by the Secretary during an inspection necessarily represent the noise exposure of employees for a limited period of time; they may not represent employees' typical working conditions.

For these reasons, a noise citation issued by the Secretary will often encompass only a limited part of the entire noise problem in a workplace. The Commission has held that the Secretary's need to allocate his resources in the most efficient manner possible justifies such a procedure.   Carnation Can Co., supra, 6 BNA OSHC at 1735, 1978 CCH OSHD at p. 27,621. That does not, however, mean that an employer who receives such a citation need only abate the violation to the extent cited, and may ignore other aspects of what may be a more sizable noise problem.   An employer's abatement obligation extends to the entire noise problem in its workplace. Id, 6 BNA OSHC at 1739, 1978 CCH OSHD at p. 27,625.

The Union's arguments must be viewed in this context.   The Union asserts, and it is not contradicted,   [*19]   that its members work in the area that is the subject of the citation.   Indeed, it appears that union members work in the test cells where the engines that generate high noise levels are being run.   While the Union does not claim to have evidence demonstrating that its members are exposed to excessive noise, it refers to the problems in making such measurements and to the fact that variables such as work schedules and engine test schedules affect its members' exposure. Thus, the Union is genuinely concerned that its members may in fact be exposed to excess noise, although it lacks specific evidence that such exposure has occurred in the past.

The Secretary's assertion that his citation does not encompass the Union's members does not permit the Commission to ignore the Union's concern.   A citation involves a particular hazard, not particular employees.   Indeed, the Commission has held that a violation can be predicated on exposure of an employee other than those mentioned in a citation. R. Colwill Excavating Co., 77 OSAHRC 182/F5, 5 BNA OSHC 1984, 1977-78 CCH OSHD P22,243 (No. 13920, 1977).   To limit a citation, and a subsequent abatement order, to particular employees would   [*20]   be inconsistent with the purpose of the Act "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. §   651(b) (emphasis added).

The Secretary's decision to issue a citation is based on an inspection or investigation covering a limited period of time. Of lously, the Secretary may not be able to identify each and every employee exposed to a specific hazard. This is particularly true for a health hazard such as noise for which, as discussed above, accurate exposure measurements are difficult to make.   Employees who are familiar with conditions in the workplace on a day-to-day basis may have considerably more information about a cited hazard than does the Secretary.   If, however, the right of employees to participate in Commission proceedings is conditioned on the Secretary's belief that such employees are exposed to the cited hazard, the opportunity for certain employees to participate in a proceeding that will directly affect their working conditions will be lost.   If this right to participate is lost, the Commission will never learn the true extent of the problem, and, as a result, the Commission's abatement [*21]   order may be inadequate.   Where, as here, employees seek party status in a case that directly involves their working conditions, Chairman Cleary believes that the Act requires the Commission to allow the employees to participate.   See IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978), appeal filed, No. 79-3041 (6th Cir. Jan. 16, 1979).

Accordingly, Chairman Cleary would whold that the judge erred in rejecting the Union as a party on the basis of the Secretary's assertion that the Secretary does not consider the citation to encompass the Union's members.   The Union has shown a sufficient nexus between the cited hazard and the assigned work duties of its members to justify participation in this proceeding. n6

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n6 Commissioner Barnako would require the Union to demonstrate that its members are exposed to excessive noise before he would accord it party status.   Chairman Cleary does not agree.   The Chairman would not interpret Commission rules 20(a) and 1(e), note 3 supra, as requiring an employee representative to prove that its members were actually exposed to the alleged hazard in order to obtain party status.   Whether employees are actually exposed to a hazard is a question going to the merits of a case, and should not enter into a procedural issue that should be resolved before a hearing on the merits.   In this case, it is undisputed that the Union members are employed by International Harvester and work in the general area of the plant in which the alleged violation occurred.   In Chairman Cleary's view, that is sufficient to find that they are "affected employees" for the purpose of according them party status.

Even if the Union is not entitled to party status as of right, Chairman Cleary would conclude that the Union has shown a sufficient interest in the case to be permitted to intervene pursuant to Commission Rule 21, 29 C.F.R §   2200.21.   See Brown & Root, Inc., 79 OSAHRC    , 7 BNA OSHC 1526, 1979 CCH OSHD P23,731 (No. 78-127, 1979), appeal filed, No. 79-2802 (5th Cir. August 1, 1979).   As an intervenor, the Union should be afforded the opportunity for meaningful participation in the settlement process. Id. Accordingly, even if Commission rules 20(a) and 1(e) are interpreted so narrowly as to deny the Union party status, Chairman Cleary would nevertheless remand the case to the judge for consideration of the Union's objections to the settlement agreement.

  [*22]  

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Having concluded that the Union is properly a party to this proceeding, Chairman Cleary would hold that there is nothing limiting the Union's status as a party.   In his dissent to the Commission's decision in United States Steel Corp., supra, Chairman Cleary stated:

There is nothing in either the Act or in the Commission Rules that limits the participation of an employee representative once party status has been elected.   Neither the Act nor our rules envision that an employee representative be a party for limited purposes.   I submit that an employee representative is a full party with all rights of any party, including the right to join or object to settlement.

4 BNA OSHC at 2003, 1976-77 CCH OSHD at p. 25,742. Therefore, the employee representative in this case is entitled to full and meaningful participation in the settlement process. Kaiser Aluminum & Chemical Corp., 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 1978 CCH OSHD P23,200 (No. 76-2293, 1978), appeal filed, No. 79-7047 (9th Cir. Feb. 2, 1979).   Under current Commission law, such participation includes the right to be heard [*23]   on all matters involved in a settlement agreement, not simply the abatement date.   Id.

In Chairman Cleary's view, the Act's reason for being is the abatement of hazards. See, e.g., Brennan v. OSHRC (Kesler & Sons Construction Co.), 513 F.2d 553 (10th Cir. 1975); Dunlop v. Haybuster Manufacturing Co., 524 F.2d 222 (8th Cir. 1975). Thus, an assurance that the violation will be adequately abated is a necessary predicate for approval of the settlement. If the abatement element is missing, or at least open to serious question, the reason for approving the settlement is missing.   It follows, therefore, that when employees who have elected party status contend that the plan of abatement set forth in a settlement will not in fact achieve abatement, the Commission must determine the adequacy of the plan, and should not approve an agreement that does not adequately provide for abatement. Accordingly, Chairman Cleary would remand the case to the judge with instructions to conduct the proceedings necessary to determine whether the settlement agreement submitted by the Secretary and International Harvester will assure that all employees who are assigned to work in   [*24]   the company's Endurance Testing Area are protected from exposure to excessive noise.

As stated above, despite their differing views on the proper disposition of the case, Chairman Cleary and Commissioner Barnako affirm the judge's decision, according it the precedential value of an unreviewed judge's decision.   SO ORDERED.