UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 1942 AND 2017 (CONSOLIDATED)
KAWECKI-BERYLCO INDUSTRIES,
Respondent.

April 27, 1973

ORDER OF REMAND

Before VAN NAMEE and BURCH, Commissioners

BURCH, COMMISSIONER:

On April 3, 1973, Judge Charles K. Chaplin issued his decision in this case, dismissing the Union’s ‘petition,’[1] approving the settlement agreement between respondent and the Secretary, and granting the employer’s motion to withdraw its notice of contest.

On April 19, 1973, pursuant to authority vested in Commission members by section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as ‘the Act’), I directed that the Judge’s decision be reviewed.

The Commission has reviewed the record noting that the employer was issued a citation for an alleged other than serious violation of 29 CFR 1910.93(e) for failing to implement appropriate controls to reduce the exposure of its employees to beryllium. The Secretary did not propose a penalty but required that respondent submit, within 30 days, a detailed plan for the long-term abatement of the alleged violation.

The authorized employee representative, Oil, Chemical and Atomic Workers International Union (hereinafter referred to as OCAW or authorized employee representative), timely filed a notice of contest, contending that the ‘period of time fixed in the citations for abatement of the violations is unreasonable.’ Subsequently the employer also timely filed a notice of contest.[2]2 Prior to the consolidated hearing of the two cases the Secretary and employer entered into a stipulated settlement providing for abatement of the violation within a period of from four to 13 months. Judge Chaplin refrained from ruling on the agreement before hearing. In his decision and order the stipulation of settlement was approved, the employer’s withdrawal of its notice of contest was granted, and the authorized employee representative’s ‘petition’ was dismissed. With regard to this final ruling, Judge Chaplin committed error which requires that both cases be remanded for rehearing on all issues.

The Judge found that OCAW had the burden of proving the asserted unreasonableness of the proposed abatement period. On the basis of its failure to sustain that supposed burden the Judge rendered the aforementioned rulings.

The following Commission Rules of Procedure[3] reveal Judge Chaplin’s error.

Rule 34 Petitions for modification of abatement period.

(a) An employer may file with the Secretary a petition for modification of an abatement period . .

(b) The burden of proving the need for modification of the abatement period shall rest with the petitioner.

Rule 35 Employee contests.

(a) Where an affected employee or authorized employee representative files a notice of contest with respect to the abatement period, the Secretary shall, within 10 days from his receipt of the notice of contest, file a clear and concise statement of the reasons the abatement period prescribed by him is not unreasonable.

Rule 73 Burden of proof.

(a) In all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary.

(b) In proceedings commenced by a petition for modification of the abatement period, the burden of establishing the necessity for such modification shall rest with the petitioner.

These rules clearly establish that an employer may challenge an abatement period by filing a petition for modification of abatement. An employee may challenge the abatement date by means of a notice of contest. Rules 34 and 35 are consistent with the provisions of Rule 73, all stating that petitioner has the burden of proving the need for modification when a petition for modification of abatement is filed and that the burden of proof rests with the Secretary when an employee challenge is filed by a notice of contest.

In the instant case OCAW filed a notice of contest and the Secretary thus has the burden of proving that his proposed abatement date is not unreasonable. As stated by Judge Chaplin, ‘The essential ingredient of the Stipulation of Settlement is an amendment of the Citation and the Complaint by extending the period of abatement from 30 days for the submission of a plan to an indeterminate period between 4 and 13 months to in fact abate excessive concentrations of beryllium. . . .’ Thus, the Secretary’s originally proposed abatement period has been amended and he has the burden of proving that the amended period is not unreasonable. Accordingly, rehearing in conformity with these rules is required.

Upon remand, with respect to OCAW’s exhibits, Judge Chaplin is advised to consult Rules 71 and 72 of the Commission’s Rules of Procedure[4] regarding the admissibility of evidence. Under the Commission’s rules, as in any administrative proceeding, exclusionary rules are less applicable than in a jury trial. See, 2 Davis, Administrative Law Treatise Sections 14.04, 14.07, 14.08, 14.09.

It is ORDERED that the Judge’s decision be vacated and that the case be remanded for a determination not inconsistent with this decision.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 1942 AND 2017 (CONSOLIDATED)
KAWECKI-BERYLCO INDUSTRIES,
Respondent.

July 12, 1972

CHAPLIN, JUDGE, OSAHRC:

This is a consolidated proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter the Act), wherein Oil, Chemical and Atomic International Union, hereinafter the Union and Kawecki-Berylco Industries, Inc., hereinafter KBI, contested a Citation dated December 4, 1972, by the Secretary of Labor, hereinafter the Secretary. A nonserious violation was alleged, i.e.

Item Number

Standard or regulation allegedly violated

Description of alleged violation

Date on which alleged violation must be corrected

CFR 1910.93(e)

Feasible engineering or administrative controls were not implemented at the following operations, in the Fabrication plant, to reduce the employees exposure to beryllium to within the 8-hour time weighted average limit prescribed in Table G–2. (1) Detailed Plan—this detailed plan for the implementation of the long term program is to include feasible engineering and/or long range administrative controls and a time schedule of proposed action. Upon approval, the plan is to be implemented in accordance with its provisions.

Submission of a detailed plan for long-term abatement to be submitted to the Area Director at the above address by Jan. 4, 1973.

a) attrition mill operator

b) powder makers, while working in the Rotex room and at the upper deck area.

c) vacuum melt furnace operator.

No penalty was proposed.

The Union submitted its Notice of Contest December 18, 1972, in OSHRC Docket #1942 and KBI submitted its Notice of Contest December 27, 1972, in OSHRC Docket #2017. The Union contested the reasonableness of the abatement period and the Employer filed a general contest. On December 27, 1972, the Secretary replied to the Union’s Notice of Contest and defended the period of 30 days authorized for submission of an acceptable plan for long term abatement. Further it was indicated that:

6. Upon submission and acceptance of the said plan to and by the Philadelphia Area Director, Occupational Safety and Health Administration, the plan and the time table contained therein shall be deemed incorporated by reference into the present Citation. Therefore, should the employer not submit the said plan or should the employer fail to meet the time schedule set forth therein, such failure will constitute a failure to abate and such action as may be deemed appropriate will be taken.

On January 9, 1973, the Secretary filed his Complaint against KBI where he amended, for the purpose of clarity and conciseness, the Citation as follows:

VIII

29 CFR 1910.93(e) requires that where employees are exposed to any material listed in Table G–2, contained therein, and where such exposure exceeds the maximum set forth in the said Table, feasible administrative or engineering controls must be implemented to reduce such exposure to within the permissible limit contained in the said Table. On December 4, 1972, Respondent violated the said section in that: ‘Feasible engineering or administrative controls were not implemented at the following operations, in the Fabrication plant, to reduce the employees [’] exposure to beryllium to within the 8-hour time weighted average limit prescribed in Table G–2. a) attrition mill operator, b) powder makers, while working in the Rotex room and at the upper deck area, c) vacumn [sic.] melt furnace operator.’

At the same time he submitted a Motion to Consolidate the two dockets, i.e., 1942 and 2017. On January 12, 1973, the Union filed an application for Expedited Proceeding. On the same date the Secretary moved to amend his Complaint to provide that ‘. . . in no case is final abatement to occur later than 90 days from the date the Commission enters an order allowing this amendment.’ On January 22, 1973, KBI opposed this motion, as well as the Union Request for Expedited Proceedings.

On January 24, 1973, there was received KBI’s Answer to the Complaint wherein it was admitted that the Occupational Safety and Health Review Commission had jurisdiction of this action, and that it was engaged in a business affecting interstate commerce. However, it was averred that it was without knowledge as to the reasons for the amendment set forth in paragraph VIII.

On February 1, 1973, Commissioner Alan F. Burch, Occupational Safety and Health Review Commission, directed that expedited proceedings be convened in this case. On February 2, 1973, these two cases were assigned to me for hearing. All parties were contacted to determine an acceptable early date for hearing. On February 8, 1973, Dockets #1942 and 2017 were consolidated, the Secretary’s Motion to Amend his Complaint was denied and the hearing was scheduled for February 27, 1973, the earliest date acceptable to the Union.

On February 16, 1973, there was submitted to the undersigned a Stipulation of Settlement in Docket #2017. A copy of this stipulation was furnished the Union which verbally indicated its continuing objection to the abatement date. (This was subsequently confirmed in writing.) The stipulation follows:

STIPULATION OF SETTLEMENT

AND NOW, this 13th day of February, 1973, the respective parties hereto stipulate as follows:

I. On December 4, 1972, Peter J. Brennan, Secretary of Labor, United States Department of Labor, (hereinafter, Complainant) issued a Citation against Kawecki-Berylco Industries, Inc. (hereinafter, Respondent) alleging inter alia a violation of the standard for beryllium concentration as set forth in 29 CFR 1910.93(e), at Respondent’s Hazleton plant.

II. The said Citation provides for abatement of the alleged violation through the ‘submission of a detailed plan for long-term abatement . . . this detailed plan for the implementation of the long-term program is to include feasible engineering and/or long range administrative controls and a time schedule of proposed action.’

III. The said Citation further provides that upon approval by the Complainant, ‘the plan is to be implemented in accordance with its provisions.’

IV. Respondent, by its counsel, by letter dated December 27, 1972, filed a timely notice of contest to the said Citation.

V. Subsequent thereto, on January 11, 1973, Complainant, by his counsel, filed a Complaint in support of the allegations contained in the said Citation.

VI. Respondent has now submitted to Complainant, on a without prejudice basis, a plan for long-term abatement including proposed engineering and administrative controls together with a time schedule of proposed action. A copy of the said plan is attached hereto, made a part hereof, marked Exhibit A and will hereinafter be referred to as ‘the Plan.’

VII. Based on the submission of the Plan, Complainant and Respondent have reached a settlement of their differences and therefore, Respondent without admitting that it has violated the Occupational Safety and Health Act or the regulations promulgated thereunder, and Complainant agree as follows:

1. Complainant hereby approves the Engineering Program and Administrative Control Program set forth in the Plan.

2. Respondent agrees to implement the Engineering Program and Administrative Control Program within the time limit set forth in the Plan.

3. Abatement shall be as set forth in the Plan. Should the implementation of the Engineering Program and Administrative Control Program not result in abatement within the period set forth in the Plan, Respondent may submit to the Occupational Safety and Health Review Commission a timely petition for modification of abatement date.

4. Complainant agrees to monitor the implementation of the Plan as set forth in the abatement section of the Plan except that:

A. Complainant will take air samples on a gross basis and does not agree that respirable sampling satisfies the standards as set forth in 29 CFR 1910.93(e).

B. Respondent will sample on a gross and respirable basis and takes the position that respirable sampling is required by 29 CFR 1910.93(e) and further reserves the right to assert this position at the completion of the implementation of the Engineering Program, should the abatement provisions contained in the said plan prove ineffective.

C. Complainant agrees to compute the average employee exposure in accordance with the computation formula set forth in 29 CFR 1910.93(d)(1)(i) and (ii), to wit: computations shall be based on an eight-hour weighted average, except that the parties may agree to an 8 1/2 hour time period. The parties’ agreement that an 8 1/2 hour time period may be utilized is made in light of the fact that affected employees may be exposed to berllium concentrations for periods of up to 8 1/2 hours in each work shift.

D. Respondent in determining final compliance with the standards of 29 CFR 1910.93(e), will use sampling devices having flow rates of 6 to 9 and 15 to 21 cubic feet of air. Complainant neither agrees nor disagrees that the use of the aforesaid samplers is the correct method of sampling and reserves the right to use personal (‘lapel’) type samplers in determining final compliance.

E. Complainant and Respondent will exchange all monitoring information throughout the period of implementation of the Plan.

5. Upon approval of this Stipulation and the attached Exhibit A, the Citation shall be deemed amended to include the abatement calendar contained in the said Exhibit.

6. Upon approval of this Stipulation of Settlement, by the Occupational Safety and Health Review Commission, and for the purpose of reaching an amicable disposition, the notice of contest filed by Respondent shall be deemed withdrawn.

7. Nothing contained herein shall be deemed to restrict the applicability or effect of the subsequent proceeding under the Occupational Safety and Health Act.

Attached to the stipulation as an exhibit was an Engineering plan which also included attachments in the form of brochures and a Report dated December 29, 1972, on the Evaluation of ‘Beryllium in Air at KBI, Hazleton Plant, December 14, 15 and 18.’ Under the plan abatement would require a minimum of 4 months to a maximum of 13 months.

On February 20, 1973, I verbally (because of the time constraints) advised Mr. Wodka and Mr. Ernst, who was to relay the information to Mr. Coughlin who was out of town, that since the Stipulation in OSHRC Docket 2017 substituted a revised abatement date I would not rule on the proposed settlement until the Union had been afforded a hearing but that, at the hearing in OSHRC Docket 1942, I would permit the Union to challenge the proposed time schedule for abatement and whether abatement could be accomplished within these periods since I construed this as going to the reasonableness of the proposed abatement.

On February 22, 1973, I participated in a conference telephone call with the attorneys for the Secretary and KBI and repeated the gist of the February 20, 1973 conversations and further advised that I had accepted the stipulation except as to the abatement date. I also advised the parties that the Union would be the moving party in the hearing scheduled since they were the Contestant in the remaining issue. At the request of the Secretary, and all parties agreeing, the scheduled hearing was postponed to March 7, 1973, when the hearing was held.

On March 7, 1973, a hearing was held to afford the Union an opportunity to question the reasonableness of the penalty. Prior to the Union presenting its case, Motions to be presented were considered. KBI objected to the entire proceeding because the Secretary and KBI had settled their case. I overruled this since I had not as yet accepted the settlement and the Union still contested the abatement. The Union offered in evidence 6 exhibits which were objected to by both the Government and KBI on various grounds. The objections were sustained. In arguing for its objection KBI stated ‘. . . The time weighed exposure is the test under the regulation’ (Tr. 32). Robert Petruce, a maintenance employee of KBI (Tr. 43) and a health and safety committeeman of the local union (Tr. 43), testified that he had, in his work experience with KBI, performed all phases of maintenance on ‘just about everything there’ (Tr. 48), that some parts of the proposed plan of machine modification had been considered previously (Tr. 50), that he estimated he could change the connectors referred to in paragraph 1(a)(b) of Exhibit A to the stipulation within two weeks (Tr. 55), that 2 months would be required for the move contemplated in paragraph 1(c) of Exhibit A, that he agreed with the 2 weeks provided for in 3(a) (Tr. 59), and that he wore a respirator where required (Tr. 59). Further, that any new equipment he would install would be designed by someone else (Tr. 67). Mr. Lettiere, an employee of KBI, testified that he had worked in many areas of the plant (Tr. 74) and presently he was a vacuum cast operator (Tr. 74) and he uses the scoop referred to in paragraph 3 of the Engineering plan (Tr. 75). During this testimony the parties to the stipulation agreed to amend paragraph 3 by changing A to An and adding ‘improved’ after An (Tr. 79).

At the conclusion of the Union’s case the Secretary and KBI moved to dismiss the Union’s petition for failing to sustain the burden of proof. The Union argued that the motivation for its participation in this matter was the realization that every day of delay in abating the high levels of beryllium in the air increased the incidence of disease therefrom. It could understand an expert feeling 13 months was reasonable but because of the insidious nature of the process it felt every day was vital. The Secretary argued that in an earlier Citation KBI had been cited for a different violation and subsequently on reinspection the readings which formed the basis of the present Citation were so low that it was not believed the Secretary could sustain his burden of establishing a ‘serious’ violation. In fact the beryllium concentration had been sufficiently reduced to the point it was going to be exceedingly difficult to continue to reduce the exposure.

APPLICABLE LAW AND REGULATION

The Act provides:

Sec. (2)(b) The Congress declares it to be its purpose and policy, . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources—

(13) by encouraging joint labor-management efforts to reduce injuries and disease arising out of employment.

Sec. 9(a) If . . . the Secretary . . . believes that an employer has violated a . . . standard . . . promulgated pursuant to section 6 of this Act . . . he shall . . . issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the . . . standard . . . alleged to have been violated . . ..

The applicable standard provides:

§ 1910.93 Air contaminants.

An employee’s exposure to any material listed in table G–1, G–2, or G–3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.

(b) Table G–2:

(1) 8-hour time weighted averages. An employee’s exposure to any material listed in table G–2, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that material in the table.

(2) Acceptable ceiling concentrations. An employee’s exposure to a material listed in table G–2 shall not exceed at any time during an 8-hour shift the acceptable ceiling concentration limit given for the material in the table, except for a time period, and up to concentration not exceeding the maximum duration and concentration allowed in the column under ‘acceptable maximum peak above the acceptable ceiling concentration for an 8-hour shift.’

(3) Example. During an 8-hour work shift, an employee may be exposed to a concentration of Benzene above 25 p.p.m. (but never above 50 p.p.m.) only for a maximum period of 10 minutes. Such exposure must be compensated by exposures to concentrations less than 10 p.p.m. so that the cumulative exposure for the entire 8-hour work shift does not exceed a weighted average of 10 p.p.m.

(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with § 1910.134.

Table G–2 provides limits for beryllium and beryllium compounds of 2 micrograms per cubic meter of air in an 8-hour time weighted average.

DISCUSSION

While the issue was not raised by the parties I must first direct my attention to the Citation and Complaint and that part of the Act requiring a Citation describing with particularity the nature of the violation. KBI was cited for not implementing feasible engineering or administrative controls to reduce the employees exposure to beryllium to within the 8-hour time weighted limit prescribed in Table G–2. In its complaint the Government made a slight change in wording when it said ‘. . . and where such exposure exceeds the maximum set forth in the said Table . . . controls must be implemented to reduce such exposure to the . . . limit contained in the Table.’ The Citation was based on 29 CFR 1910.93(e) which comes into play to achieve compliance with paragraph (b). The question is whether the Citation should have alleged a violation of (b) and the failure to do so lacks that particularity which deprives KBI of fair notice. Certainly a Citation alleging a violation of (b) and a failure to implement the controls under (e) would have ‘described with particularity’ the alleged violation but we are not here concerned with what would be desirable. We are concerned with denying KBI due process.

It is well settled that under the Federal Rules of Civil Procedure the purpose of the Complaint is to discharge the function of giving the Respondent fair notice of the nature and basis or grounds of the Secretary’s claim, (Wright & Miller, Federal Practice and Procedure, Civil ¶1215, 2A Moore’s Federal Practice 8.13). Did the Citation and Complaint in this case give KBI fair notice of the nature of the Secretary’s claim? In the Stipulation of Settlement executed February 13, 1973, KBI agreed that the Citation alleged ‘.. . inter alia a violation of the standard for beryllium concentration . . . at Respondent’s Hazleton plant,’ and paragraph 4 thereof pertains to the testing techniques to determine the amount of beryllium concentrations on a weighted average. As an attachment to the Stipulation there was an exhibit which dealt with the amount of beryllium in the air. At the hearing KBI’s attorney conceded that the test of the regulation was the time weighted exposure. Where there is no allegation in the pleadings that KBI had violated the standard, the Review Commission may not supply the missing allegation. (See Globe Indemnity Co. v. Liberty Mutual Ins. Co., 138 F. 2d 180 (3d Cir., 1943)). The language of the Citation, while not specific or particular respecting what had preceded the failure to implement the controls, left little room for doubt that acceptable levels of beryllium had been exceeded when KBI was advised the controls not implemented were required to reduce the exposure to beryllium to within the prescribed time weighted average limit in G–2. All parties to this action, including the Union, knew that KBI was charged with having too much beryllium in the air at its workplace and further that it had not implemented controls. Under modern procedural methods pleadings are not to be struck down for nonprejudicial deficiencies. (See Albertson v. F.C.C., 182 F. 2d 397 (D.C. Cir., 1950); Mansfield Journal Co. v. F.C.C. 180 F. 2d 28 (D.C. Cir. 1950); A. E. Staley Mfg. Co. v. F.T.C., 135 F. 2d 453 (7th Cir. 1943); National Labor Relations Board v. Piqua Munising Wood Products Company, 109 F. 2d 552, 557 (6th Cir. 1940). Accordingly, it is determined that the Citation under 29 CFR 1910.93(e) put KBI adequately on notice of the violative condition spelled out in subsection (b) and Table G–2.

The only actions available to the undersigned after this hearing are to affirm the abatement date or reduce it.[5] We must look to the practical effect of this Stipulated Settlement. If the abatement date of 13 months is affirmed there is for consideration the Employer’s Motion to Withdraw contained in paragraph VII, 6. If the abatement period is reduced, thus varying the terms of the stipulated settlement agreed to between the parties the parties would not necessarily be bound by the revised agreement. The Union did not offer any testimony that reflects in any way the abatement as proposed is unreasonable. The credible testimony by Mr. Petruce pertained to the span necessary for maintenance personnel to accomplish the physical alternations but there was no testimony respecting engineering or design time or the lead time on new procurement generated thereby. In the absence of expert testimony creating doubt as to the feasibility of the abatement date proposed and since the plan meets the approval of KBI and the Secretary, both of whom had expert advice available to them in the preparation of the plan (Tr. 89), I must find that the Union has not sustained the burden of proof in questioning the reasonableness of the proposed abatement date.

The essential ingredient of the Stipulation of Settlement is an amendment of the Citation and the Complaint by extending the period of abatement from 30 days for the submission of a plan to an indeterminate period between 4 and 13 months to in fact abate excessive concentrations of beryllium in the air breathed in by KBI’s employees at its workplace. Such an abatement goes beyond what the Secretary sought initially and is a greater benefit to the employees than the initial abatement. Accordingly, the Stipulation of Settlement is accepted in its entirety and the abatement proposed in the Citation is amended. Since the agreement also contained a withdrawal of KBI’s Notice of Contest contingent upon approval of this Stipulation of Settlement by the Review Commission and since all notice requirements were complied with, there was no penalty proposed, abatement will be accomplished by this plan and KBI’s continuing compliance is inferred from its actions to date, the Motion to Withdraw is approved.

In a letter of March 19, 1973, considered a ‘Summation of Arguments and Conclusions of Law . . .,’ the Union requested that the plan be amended to include the Union in the exchange of monitoring data between KBI and the Secretary. Since I do not consider this material to be germane to the issue raised by the Union in docket 1942 and the stipulation had previously been accepted, except as to reasonableness of abatement, such request is not granted.

It appearing from the entire record that the public interest will be served by accepting this Stipulation of Settlement, it is ORDERED that:

1. The Secretary’s motion to dismiss the Petition of Oil, Chemical and Atomic Workers International Union is granted;

2. The Stipulation of Settlement is approved;

3. The Citation as herein amended by the Stipulation of Settlement together with the $0 penalty is affirmed;

4. The Motion to Withdraw the Notice of Contest by KBI is granted;

5. KBI shall comply with the abatement requirements of the amended Citation and with the provisions of 29 CFR 1910.193.

[1] The Judge erroneously regards the Union’s notice of contest as a petition for modification of abatement. See, infra.

[2] This case presents the anomalous situation created by section 10 of the Act whereby an employer notice of contest (filed in good faith and not solely for delay or avoidance of penalties) tolls the abatement period as well as vitiating a notice of contest previously filed by affected employees, which, for obvious reasons, does not toll the abatement period.

[5] Since the Secretary and the Union are interested in the shortest date the facts warrant and the Employer has stipulated to 13 months, any date beyond 13 months would be more than any party sought.