UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NOS. 79-1625, 79-2592, 79-2690, 79-2691 & 79-2692

OTIS ELEVATOR COMPANY,

 

                                              Respondent.

 

September 25, 1980

ORDER

            These are cases under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (‘the Act’). The cases were consolidated[1] for hearing and decision by Administrative Law Judge Paul L. Brady, whose decision is before the Commission for review pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i).

            Following a January, 1979 inspection of Respondent’s facility in London, Ohio, the Secretary of Labor (‘Secretary’) issued to Respondent seven citations—serious citation No. 1 and repeated citation No. 2, issued on March 7, 1979; serious citation No. 3, repeated citation No. 4, and nonserious citation No. 5, issued on March 23, 1979; and serious citation No. 6 and repeated citation No. 7, issued on April 26, 1979. Respondent filed timely notices of contest to each group of citations. The Secretary also issued several amended citations concerning one item of citation No. 3 on May 7, 1979, and concerning the abatement dates required for several items of citation Nos. 6 and 7 on May 9, 1979. Respondent also filed notices of contest to these amended citations.

            The Secretary duly forwarded the various notices of contest and the related citations to the Commission, and the Commission docketed five cases, assigning them Nos. 79-1625, 79-2592, 79-2690, 79-2691, and 79-2692. At Respondent’s request, Judge Brady consolidated the cases for hearing and decision pursuant to Commission Rule 9. Prior to the hearing, the parties entered into a settlement agreement resolving the dispute as to citation Nos. 1, 4, 5, 6, and 7, and as to all items of citation No. 3 except for item 22(c). The agreement was filed with the judge and a hearing was scheduled on citation No. 2 and on item 22(c) of citation No. 3. At the outset of the hearing, the Secretary moved to withdraw this latter item and the related proposed penalty, and the judge granted the motion. The evidentiary hearing accordingly concerned only citation No. 2, in which the Secretary alleged that Respondent repeatedly failed to comply with the noise standard at 29 C.F.R. § 1910.95(b)(1).

            In his decision, the judge approved the settlement agreement and disposed of the citations it covered as the parties had agreed. He also vacated item 22(c) of citation No. 3 in accordance with his hearing ruling granting the Secretary’s motion to withdraw. The judge additionally entered factual findings, legal conclusions, and an order vacating citation No. 2.

            The Secretary filed a petition for discretionary review taking exception to the judge’s decision vacating citation No. 2. The petition was granted by Commissioner Cottine. No issues relating to any of the other citations were directed for review.

            Because review has not been directed concerning any issue in citation Nos. 1, 3, 4, 5, 6, and 7, the cases relating to them are not before the Commission for review. See Commission Rule of Procedure 92(c), 44 Fed. Reg. 70106, 70111 (1979), to be codified in 29 C.F.R. § 2200.92(c) [formerly Rule 91a(c), 29 C.F.R. § 2200.91a(c)]. The docket numbers which relate exclusively to citations not on review—No. 79-2690 relating only to citation Nos. 3, 4, and 5; and Nos. 79-2592 and 79-2692 relating only to citation Nos. 6 and 7—are accordingly severed pursuant to Commission Rule 10.[2] The judge’s decision as to those cases is the final order of the Commission. Docket No. 79-1625 is properly before the Commission insofar as that case concerns citation No. 2. Docket No. 79-2691, which also concerns citation No. 2, was assigned as a result of administrative error and is hereby cancelled. Any documents contained in the official record in No. 79-2691 shall be made part of the official record in No. 79-1625.

            Accordingly, Docket Nos. 79-2690, 79-2592, and 79-2692 are hereby severed, and the judge’s decision insofar as it concerns those docket numbers is the final order of the Commission. Docket No. 79-2691 is cancelled. The issues directed for review by Commissioner Cottine remain before the Commission for review under Docket No. 79-1625. SO ORDERED.

 

FOR THE COMMISSION:

 

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: SEP 25, 1980

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NOS. 79-1625, 79-2592, 79-2690, 79-2691 & 79-2692

OTIS ELEVATOR COMPANY,

 

                                              Respondent.

 

June 12, 1980

DECISION AND ORDER

APPEARANCES:

Andrew W. Hoffmann, Esquire U.S. Department of Labor 881 Federal Office Building 1240 East Ninth Street Cleveland, Ohio 44199

 

Robert A. Minor, Esquire Vorys, Sater, Seymour & Pease 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216

 

BRADY, Judge:

            This consolidated proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (Act) to contest seven citations and proposed penalties issued by the Secretary of Labor (Secretary) pursuant to section 9(a) of the Act.

            The citations were issued as a result of an inspection of respondent’s iron foundry between January 23, 1979, and February 1, 1979. A hearing was initially set for October 1, 1979, which was continued from time-to-time at the request of the parties to allow every opportunity to resolve the numerous alleged violations. During the course of a pre-trial hearing held January 31, 1980, settlement was reached in all matters except two alleged violations. Specific provision was made at the hearing for further inspection of respondent’s manufacturing facility by complainant’s experts.

            At the commencement of the hearing on the merits April 8, 1980, complainant’s motion to withdraw the alleged violation of 29 C.F.R. § 1910.179(f)(2)(IV) was granted, and its motion for another order to compel permission to enter land was denied.

            The remaining unresolved issue pertains to the alleged repeated violation of 29 C.F.R. § 1910.95(b)(1) which states as follows:

(1) When employees are subjected to sound exceeding those listed in Table G–16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G–16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

 

            The findings that employees were exposed to noise in excess of permissible limits are not in dispute (Tr. 19–20). The record also reveals that as a result of an inspection of April 2, 1974, a citation was issued respondent charging the above violation in some of the same areas of the facility (Tr. 13).

            The industrial hygienist who conducted the inspection in this case testified that controls were available for reducing the noise levels, however, no evidence was offered regarding specific methods of abatement, nor was it shown such methods were feasible. His testimony indicated that no cost-benefit analysis for noise reduction was undertaken. He found that personal protective equipment was provided the exposed employees.

            Following the testimony of the inspecting officer, the Secretary renewed the motions filed March 20, 1980, for another continuance and an order for further inspection to determine the feasibility of engineering controls. Both motions were again denied and respondent’s motion to dismiss was granted.

            While the Secretary acknowledges his burden of establishing feasible administrative or engineering controls no such controls were shown to exist. The central issue presented is the Secretary’s contention that he has been deprived of an opportunity to present such evidence. The motion to dismiss was granted in this case based on a full consideration of the facts and established Commission precedent.

            The Commission recognizes that discovery inspections are ordinarily permissible where a violation of the noise standard is alleged. Pabst Brewing Company, 77 OSAHRC 12/A2, 4 BNA OSHC 2003, 1876–77 CCH OSHD ¶21, 472 (No. 13068, 1977). The decision to allow discovery, however, is within the sound discretion of the judge. KLI, Inc., 77 OSAHRC 202/A2, 6 BNA OSHC 1097, 1977–79 CCH OSHD ¶ 22,350 (Nos. 13490, 1978).

            In Ralston Purina Company, 79 OSAHRC 81/E6, 1979 CCH OSHD ¶23,897 (No. 78–145), the Commission stated:

The sound discretion should be guided by the objective or providing a fair and prompt hearing to the parties. Moreover, the judge should consider the need of the moving party for the information sought, any undue burden to the party from whom discovery is sought, and, on balance any undue delay in the proceedings that may occur.

 

            In light of the foregoing decisions, further discovery inspection in this case is not justified. The facts show that respondent was previously cited for a violation of the noise standard. It must be assumed complainant was aware of feasible means to abate the condition within the one year period provided. Upon the most recent inspection which gave rise to the alleged repeat violation, complainant must have necessarily known what respondent had failed to do, or what it was specifically required to do in the cited areas in order to comply with the standard. Following a protracted delay in this case coming on for hearing, an order was entered granting complainant the requested discovery, and its experts inspected respondent’s facility. The order was entered with the understanding that a final hearing would be held as soon as practicable.

            In its objection to the request for further in-depth study by complainant’s experts, respondent points out its right to a prompt and fair hearing and contends a reasonable time and reasonable manner for inspection has been allowed, consistent with Rule 34(b) of the Federal Rules of Procedure.

            The ruling denying the Secretary’s motion has not been shown to result in substantial prejudice to the Secretary’s case, as discovery has been granted for the express purpose of allowing experts to further inspect the plant. The results of the inspection of February 19, 1980, have not been shown, but it is indicated that further in-depth study is necessary to ‘arrive at professional opinions and conclusions’. The required burden of proof in these circumstances has been recognized for several years and in providing a fair and prompt hearing, further delay for the purpose indicated is unjustified.

Findings of Fact

            1. Otis Elevator Company, at all times pertinent hereto, maintained a place of business at 350 East High Street, London, Ohio, where it operates an iron foundry.

            2. Authorized representatives of the Secretary conducted an inspection of the aforesaid worksite between January 23, 1979, and February 1, 1979. As a result of such inspection, respondent was issued seven citations with notice of proposed penalties.

            3. Hearing in this consolidated proceeding was initially set for October 1, 1979, but was continued from time-to-time at the request of the parties to allow every opportunity to amicably resolve the numerous alleged violations.

            4. During a pre-trial hearing on January 31, 1980, the parties entered into an agreement whereby all matters in issue were resolved except two alleged violations. The agreement which amended certain citations and proposed penalties was approved.

            5. At the pre-trial hearing, complainant’s motion for discovery was granted and experts inspected respondent’s facility on February 19, 1980.

            6. Complainant’s motion filed March 20, 1980, seeking further discovery was denied as further delay of the hearing on the merits was not justified.

            7. At the hearing on April 8, 1980, an alleged violation was withdrawn, and a hearing on the merits proceeded in reference to 29 C.F.R. § 1910.95(b)(1). (The noise standard).

            8. A citation was issued respondent on April 25, 1974, alleging violation of the noise standard which was not contested. In defending the alleged repeat violation respondent asserts no feasible engineering controls exist.

            9. At the hearing in this cause, complainant failed to establish the existence of feasible administrative or engineering controls to reduce noise levels.

            10. Respondent has instituted an effective hearing conservation program at the facility and enforces use of personal hearing protection.

Conclusions of Law

            1. Otis Elevator Company, at all time pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein pursuant to section 10(c) of the Act.

            2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.

            3. The agreement of the parties is consistent with the provisions and objectives of the Act.

            4. Respondent was not in violation of the standard at 29 C.F.R. § 1910.95(b)(1) during the period January 23, 1979, to February 1, 1979, as alleged.

            Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is

ORDERED:

            1. The settlement agreement is approved and incorporated herein by agreement.

            2. That part of citation no. 1 alleging serious violation of 29 C.F.R. § 1910.95(a) is hereby affirmed, and a penalty in the amount of $300.00 is assessed.

            3. The amended part of citation no. 1 alleging violation of 29 C.F.R. § 1910.151(c) is affirmed.

            4. Citation no. 2 alleging violation of 29 C.F.R. § 1910.95(b)(1) is hereby vacated.

            5. Citation no. 3 items 1, 2, 4, 5, 6, 7, 8(b)(c)(d), 9, 11, 12(b)(c), 13, 14(a)(b)(c), 16(b)(c)(d)(e), 17, 18(a)(b)(c), 19, 22(a)(c)(e)(h), 23(a)(b)(c), 24, 25(a)(b), 26(a)(b), 27(a)(b), 28(a)(b)(c), and 29(a)(b)(c)(d) are hereby affirmed as serious violations, and a penalty in the amount of $2,000 is assessed; items 16(a), 20(a)(b), 21(b), 22(d) and 22(g) are hereby affirmed as ‘other’ than serious violations; items 3(a), 8(a), 10, 12(a), 15, 21(a) and 22(f) are hereby vacated.

            6. Citation no. 4 alleging repeat violations is hereby affirmed, and a penalty in the amount of $300.00 is assessed.

            7. Citation no. 5 is hereby affirmed.

            8. Citation nos. 6 and 7 for serious and repeat violations are hereby affirmed and a total penalty in the amount of $400.00 is assessed.

           

Dated this 12th day of June, 1980.

 

PAUL L. BRADY

Judge


[1] Commission Rule 9, 29 C.F.R. § 2200.9, provides:

Rule 9 Consolidation.

Cases may be consolidated on the motion of any party, on the Judge’s own motion, or on the Commission’s own motion, where there exist common parties, common questions of law or fact, or both, or in such other circumstances as justice and the administration of the Act require.

[2] Commission Rule 10, 29 C.F.R. § 2200.10, provides:

Rule 10 Severance.

Upon its own motion, or upon motion of any party or intervenor, the Commission or the Judge may, for good cause, order any proceeding severed with respect to some or all issues or parties.