UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 1551
REYNOLDS METALS COMPANY,
Respondent.

February 25, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

The issue in this case is whether Respondent (Reynolds) violated 29 C.F.R. § 1910.95(b)(1)[1] at its can manufacturing plant in Torrance, California. Judge Harold A. Kennedy found that Complainant has failed to prove the violation, and vacated the citation. For the reasons which follow, we affirm.

The plant at issue contains a production area 500 by 260 feet in size. Cans are manufactured on six production lines containing a total of 126 pieces of equipment. The plant operates 24 hours per day, with three shifts of workers. Each employee normally spends 7 hours and 20 minutes per shift in the production area. Each production line is shut down for one day every six weeks for regular maintenance. Otherwise, the plant runs continuously, with only occasional shutdowns of individual machines for emergency repairs.

Complainant’s representative made measurements of the noise levels throughout the production area. His measurements, made over durations ranging from 30 seconds to several minutes, showed levels ranging from 92½ to 105 dBA. At most locations, the noise levels were between 95 and 100 dBA. All employees working in the area were protected from the effects of excessive noise by the use of personal protective equipment.

Complainant presented an expert witness who was highly experienced in noise control, but had no personal knowledge of the conditions in Reynolds’ plant. He was of the opinion that standard noise control techniques, such as enclosing some machines and installing sound absorbing material on the walls and ceiling of the area, might achieve some reduction in the noise levels. When asked, however, whether he could recommend ‘specific things that could be done and that would, in fact reduce the noise level,’ this witness frankly answered. ‘No, I couldn’t, without an evaluation of the plant.’

Reynolds’ operations manager testified that a number of controls had already been implemented to reduce noise levels. For example, nylon facing had been added to the rails of the conveyers along which the cans moved. All equipment had been mounted on rubber cushions. Mufflers had been installed to reduce noise generated by air discharge. The effort to reduce noise was continuing, and Reynolds was planning to attempt further controls. The witness, however, did not think that enclosures between machines would be feasible because these might interfere with the air balance in the plant, causing fumes to accumulate and creating other problems. Additionally, he did not think that sound absorbing material on the walls and ceiling would achieve a significant reduction in noise.

The Judge found that the evidence failed to establish that the exposure of Reynolds’ employees to noise exceeded the levels specified in Table G–16. He found that ‘(t)he evidence indicates that Respondent’s operations were continuous, but it was not established that the noise levels in Respondent’s plant were continuous.’ We do not agree with the latter conclusion. It is true that, with insignificant exceptions, the operations in the plant were continuous. And since these operations were the source of the noise, the only reasonable conclusion which can be made is that excessive noise levels were also continuous within the range measured by Complainant’s representative. We have previously held that a showing of excessive noise can be made by the use of spot readings if other evidence shows that exposure of employees to the noise levels so measured existed for a period of time in excess of that permitted by the standard. Sun Shipbuilding and Dry-dock Company, 11 OSAHRC 171, BNA 2 O.S.H.C. 1181, CCH E.S.H.G. para. 18,537 (1974); See also WRP Lumber Co., OSHRC Docket No. 4612 (Dec. 16, 1975). The facts here are within the prior cases.

We agree, however, with Judge Kennedy’s conclusion that Complainant failed to prove the existence of feasible engineering controls to reduce noise.[2] The testimony of Complainant’s expert shows only that general techniques to reduce noise exist. It does not show that any particular controls are feasible to reduce the noise in Reynolds’ plant. Indeed, this witness specifically stated that he could not recommend any such controls.[3] Additionally, the testimony of Reynolds’ plant manager rebutted the suggestion that machine enclosures or sound treatment of the walls and ceiling would be feasible.

Complainant argues that the fact that Reynolds is planning to install further controls to reduce noise shows the feasibility of such controls. We do not agree. Simply because an employer may be attempting to reduce noise does not prove that his efforts will succeed. Additionally, it would be anomalous to find Reynolds in violation of the standard solely on the basis of evidence that it was attempting to comply.

Accordingly, the Judge’s decision vacating the citation for violation of 29 C.F.R. § 1910.95(b)(1) is affirmed. It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATE: FEB 25, 1976

MORAN, Commissioner, Concurring:

I agree with the disposition of this case because the complainant failed to establish that either administrative or engineering controls would have reduced the noise in the respondent’s plant to the permissible levels specified in 29 C.F.R. § 1910.95(b)(1).

It is also clear to me on the basis of the record in this case that complainant failed to prove that the noise in respondent’s plant to which its employees were exposed at the time of the inspection exceeded the levels of noise prohibited by § 1910.95(b)(1) for the durations of time listed therein. Accordingly, I agree that Judge Kennedy’s decision should be affirmed. In order that readers of this decision can study the full text of exactly what we are herewith affirming, I incorporate Judge Kennedy’s decision by reference and attach it hereto as Appendix A.

CLEARY, Commissioner, DISSENTING:

I agree with the Chairman that excessive noise levels in the plant were proved. But I respectfully disagree with his conclusion that the Secretary of Labor failed to prove the existence of feasible engineering controls to reduce noise. My disagreement stems from the apparent burden of proof placed upon complainant and the use of expert testimony in carrying that burden.

The lead opinion notes specifically that complainant’s expert was ‘highly experienced in noise control, but had no personal knowledge of the conditions in Reynolds’ plant’ (emphasis added). Rather, it was pointed out that the Secretary’s noise expert could not recommend specific things to reduce noise without an evaluation of respondent’s plant. This testimony is quoted verbatim.

The firsthand observation of an expert witness is only one of several possible sources for expert opinion. See, Rule 703 of the Federal Rules of Evidence. Here, the facts that complainant’s expert had before him were made known to him at the hearing. They are set out in some detail in the lead opinion. In addition to those facts, complainant’s expert knew that there were approximately 126 individual items of equipment in the 500 by 260 feet production area. The equipment was arranged in six separate, but similar production lines. The Secretary’s expert knew that the plant had a concrete floor and that the walls and ceiling consisted of steel framing covered with aluminum siding. He had available during his testimony, and had studied before hand, complainant’s exhibit 2, a detailed diagram of spot noise readings taken during the industrial hygienist’s noise survey. From all of these facts complainant’s expert was able to conclude that the noise in the Reynolds Metals’ facility created a ‘reverberant’ noise field.[4]

The Secretary’s expert then testified to the use of the propagation path approach to noise reduction. His testimony was that reverberation noise, generally, could be reduced by enclosing machines, by physically separating various parts of the process and by applying absorptive material to non-absorptive surfaces, thereby breaking up the paths of reverberating sound. The expert was present during the testimony of complainant’s other witnesses who testified to the physical structure of the facility. From their testimony, he concluded that the propagation path approach to noise reduction had not been implemented in respondent’s facility.

In the absence of an actual visit to respondent’s facility, the Secretary’s expert’s testimony was all that could be expected. As an expert, he gave his opinion based on relevant facts. The expert testified that there was a presently available feasible engineering control (the propagation path method) and that respondent had failed to implement it.

At that point the Secretary had established that respondent’s employees were exposed to excessive noise for a period in excess of that permitted by the standard. He had also established that there were presently available general engineering controls that are feasible. I would hold therefore that the Secretary has sustained his burden of proof.[5] I would presume[6] from the basic fact that there exist feasible engineering controls, the fact that they could be applied in respondent’s 500 by 260 foot facility. I would adopt the presumption because of (1) problems of access to proof, and (2) it is a policy that is more consonant with the legislative purpose than the approach of the majority.[7]

As to access to proof,[8] it is clear that respondent’s personnel are in a superior position to that of a compliance officer, or a noise expert who is not a Federal employee,[9] in having access to evidence as to whether the elements of the propagation path method of noise control are feasible for respondent’s facility. (See, the discussion of respondent’s evidence, infra.)

As to policy reasons, the role of the administrative agency is two-fold:

An administrative agency must serve a dual purpose in each case. It might decide the case correctly as between the litigants before it, and it must also decide the case correctly so as to serve the public interest which it is charged with protecting.[10]

The purpose of the Act is clearly stated in terms of Congressional policy.[11] Where decisions of this kind confront the Commission the achievement of this purpose must be given great consideration.[12]

The presumption would impose upon Reynolds Metals, the party against whom it is directed, the burden of proving that the non-existence of the presumed fact of controls is more probable than its existence.[13] The testimony of Reynolds Metals’ Can Operations Manager was that respondent has added nylon facing to its track rails; covered cables along the track with plastic; installed mufflers on certain air discharge outlets and mounted equipment on rubber cushions. In addition, the Can Operations Manager noted that the erection of physical barriers or enclosures to cut down on noise would cause an air imbalance causing cans in the ovens to be upset. Moreover, it was his testimony that the production tracks could not be enclosed because production quality control required clear visibility and easy access to the moving line of cans.

Respondent’s Can Operations Manager’s testimony, offered to rebut the Secretary’s expert testimony, although completely creditable, in effect confirms the Secretary’s prima facie case. Thus, at various places in his testimony he noted that Reynolds Metals was:

. . . [M]odifying the whole mechanism that drives the ram [on the D & I machines] . . . go from [an] air transfer

. . . [S]pending almost $200,000 on the printers, . . . to go from [an] air transfer to mechanical transfer . . ..

And this is a current situation. We have these fiber glass guards we’re putting on the D & I presses. We have plans of—of moving some of the end operations out of this facility which, of course, is going to render some implication that we should put in walls . . ., isolate the palletizers.

It was his testimony that Reynolds Metals had an on-going program that would continue to attack its noise problem. By testifying to the various methods of engineering controls then being implemented he was in essence saying: ‘Yes, there are presently available feasible engineering controls, but, no, Reynolds Metals had not completed their installation.’

These facts show a bona fide, albeit untimely, attempt on the part of Reynolds Metals to comply with the noise standard. Clearly, its efforts should be given full consideration in passing upon any abatement order and on the matter of whether any civil penalty should be assessed. But these efforts do not establish that, at the time of inspection, Reynolds Metals was in compliance with the noise standard.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 1551
REYNOLDS METALS COMPANY,
Respondent.

FINAL ORDER DATE: October 18, 1973

DECISION AND ORDER

Appearances:

Theresa Kalinski, Attorney, of Los Angeles, California for the Secretary of Labor.

Austin B. Graff, Esq. and William H. Bass III, Esq., of Richmond, Virginia for the Respondent.

STATEMENT OF THE CASE

Harold A. Kennedy, Judge, OSAHRC

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting one charge, Item No. 2, contained in a citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.[14] The citation alleges that as a result of the inspection of a workplace under the ownership, operation or control of the Respondent located at 500 Crenshaw Boulevard, Torrance, California, on August 28, 1972, the Respondent had violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.[15]

The citation, which was issued on September 13, 1972, alleges in Item No. 2 thereof that the violation results from a failure to comply with the standard set forth at 29 CFR 1910.95(b)(1). The description of the alleged violation as set forth in the said citation states:

Failure to control noise levels within those listed in Table G–16 by feasible engineering and/or administrative controls, i.e.

1. at washers and ovens

2. at coaters

3. at printers

4. washers and flangers

5. at super-sorters and palletizers

6. at Bliss presses

7. at active presses.

The Secretary’s complaint, filed with the Commission on October 26, 1972, also alleged violation of the standard appearing at 29 CFR 1910.95(b)(1) in the same areas and one other, viz., at the ‘D & I machines’.

The standard appearing at 29 CFR 1910.95(b) 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.

(2) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous.

(3) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.

Table G–16—Permissible Noise Exposure

Duration per day, hours	Sound level dBA slow response
8	90
6	92
4	95
3	97
2	100
1½	102
1	105
½	110
¼ or less	115

The citation prescribed abatement with respect to Item No. 2 as follows:

Study, research, and/or implement engineering controls with final report including abatement schedule due no later than March 1, 1973. (Monthly progress reports are required during study and abatement period.)

The Secretary’s representative, the Area Director of the Long Beach, California office of the Occupational Safety and Health Administration, U.S. Department of Labor (OSHA), proposed no penalty for the violation alleged in Item No. 2 of the citation. The case was heard on the merits at Los Angeles, California on June 21, 1973.[16] Testifying for the Secretary were: Lehi Lorus Pitchforth, Jr., an OSHA Industrial Hygienist; Boleslaw Andrew Kagler, a private consultant in industrial noise control; and three of Respondent’s employees, Leonard Davis, Dudley L. Washington and Walter Stewart. Respondent recalled Mr. Davis to testify briefly on its defense and also presented the testimony of William Korman, Operations Manager for the Respondent’s Can Division. No employee or representative thereof sought to participate in the proceeding.

FINDINGS OF FACT

1. The following matters were stipulated by the parties at the outset of the hearing (Tr. 9–12):

A. Respondent is an employer which has employees engaged in a business affecting commerce within the meaning of the Occupational Safety and Health Act of 1970 (hereinafter referred to as the ‘Act’).

B. On August 28, 1972, an inspection of Respondent’s workplace at 500 Crenshaw Boulevard, Torrance, California, was conducted by Mr. Gerald Holmes, Compliance Safety and Health Officer and by Mr. Lehi L. Pitchforth, Jr., Industrial Hygienist, U.S. Department of Labor Occupational Safety and Health Administration.

C. A noise survey of the plant was conducted by Mr. Pitchforth during the afternoon of August 28, 1972, between the hours of 4:30 pm and 5:25 pm. In making this survey, Mr. Pitchforth was accompanied by Mr. Ron Johnson, management representative. The instrument used by Mr. Pitchforth to make noise level readings is a General Radio Sound Level Meter, Model #1565–B. This instrument was calibrated by Mr. Pitchforth immediately before and after this inspection on the 28th.

D. The length of time spent at each point by Mr. Pitchforth for a reading was approximately 30 seconds to several minutes, but no more than 5 minutes. Only two employees were interviewed in this tour and they were in the deco area and were asked by Mr. Pitchforth how far they normally were from the pieces of machinery in question.

E. During the course of the walk-around survey the management representative asked Mr. Pitchforth whether he could see the noise level readings, and Mr. Pitchforth responded that the Department does not supply a copy of the readings although Mr. Pitchforth was not hiding the meter.

F. At the exit interview on August 28 the Department’s representative made no attempt to reveal to the Respondent the specific readings at the various locations in the plant, although he did allow that he felt the plant had a noise problem. The Company representatives pointed out that there was a mandatory hearing out that there was in effect. When asked during this exit interview on August 28 whether or not there were any other engineering steps that the Respondent might take, the representative of the Department of Labor did not have any specific suggestions. No other noise inspections of the plant have been made by OSHA representatives since August 28, 1972.

G. As a result of the inspection, Respondent was issued a citation and notified of proposed penalty on September 13, 1972. Item 2 in this citation alleged that the Company was violating Section 1910.95(b)(1) of the standards by failing to control noise levels within the limits listed in Table G–16 of that standard by feasible engineering and/or administrative controls in seven places:

(1) At washers and ovens

(2) At coaters

(3) At printers

(4) Waxers and flangers

(5) At super-sorters and palletizers

(6) At bliss presses

(7) At active presses

A letter containing a notice of contest of this citation was then transmitted to the Occupational Safety and Health Administration, Area Director, in Long Beach, California by the Respondent by letter dated September 27, 1972. This letter was in turn transmitted by the Area Director to the Occupational Safety and Health Review Commission on October 10, 1972.

H. A complaint was issued against the Respondent by the Department of Labor on October 24, 1972, alleging violation of Section 1910.95(b)(1) in the same areas as set forth in the citation, plus one other: The D & I machines.

I. A prehearing conference was held on February 15, 1973, at which time the parties agreed that the issues are:

(1) whether the noise levels at Respondent’s workplace exceeded the permissible noise exposures listed in Table G–16 of the standard set forth at 1910.95(b)(1);

(2) whether Respondent failed to utilize feasible engineering and/or administrative controls.

It is agreed that there is no issue in this case that Respondent has not provided personal protective equipment which is effective in reducing sound levels to permissible levels under Table G–16.

2. The parties also stipulated to the admissibility of a diagram that shows the location of various items of equipment and specific areas in Respondent’s Torrance can manufacturing plant (SX 1, Tr. 14–16). The manufacturing facilities are housed in an area 500 feet long and 260 feet wide. Approximately 126 individual items of equipment are arranged within the manufacturing area so as to provide six separate but similar production lines (Tr. 105, 299–300). Employee Davis testified that a line would include four D & I machines, a washer, oven, two coaters, coater oven, inner spray oven, a flanger, tester and palletizer (Tr. 29). The diagram shows that a warehouse area (262 x 311) is located immediately adjacent to the manufacturing area on the south.

3. The construction of the building housing Respondent’s manufacturing facilities and the arrangement and operation of Respondent’s equipment therein are not in dispute (Tr. 24–42, 94–105, 121–124, 136–8, 156–65). The building has concrete floors and metal walls and ceiling, consisting of steel framing and aluminum siding. There are windows on one side where the dye room, tool room and cafeteria are located. Walls made of cement block or brick separate offices and cafeteria and certain areas within the plant (Tr. 30–5).

4. Respondent’s Torrance plant operates 24 hours a day, seven days a week. Employee Davis explained that four shifts work in rotation to keep the plant in continuous operation as follows (Tr. 25):

* * * We have a continuous operation and we have four crews, A, B, C and D crew, and it’s set up in a rotation where I’m off Wednesday of one week, Thursday, Friday the following week. Saturday, Sunday, Monday and Tuesday of the following week and then it returns to Wednesday off. * * *

It is not usual for employees to work overtime. Mr. Davis testified that he had worked on the average six days a week during the preceding year (Tr. 25). Employees stay in their own work area during each work shift as a rule, except for two 10-minute coffee breaks and one 20-minute lunch break which they take in the cafeteria (Tr. 26, 121, 157).[17]

5. Each line is periodically scheduled to be shut down for at least six hours for maintenance. Previously a line would be shut down on a Tuesday and another on a Thursday of each week. Within the past year or so, however, only one line has been shut down each week, which means that each line is serviced about every six weeks. In addition, there are occasions when a line, or part of it, is closed down for repairs. See Tr. 28–30, 39–42.

6. Some of Respondent’s equipment at its Torrance plant has been changed in recent years, but none of the employees who testified had noticed any change in the noise level during their five years or more of employment (Tr. 38–9, 84, 125, 135, 168). Mr. Davis pointed out, however, that it is not always possible to notice the difference in the noise level even when a line is shut down, depending of course on one’s relative position to the equipment (Tr. 38–9).

7. Respondent’s Can Operations Manager, William Korman, testified concerning Respondent’s efforts to combat ‘a noise problem’ at Respondent’s Torrance plant (Tr. 293). Mr. Korman testified that a noise survey conducted in September 1968 indicated that there was ‘elevated noise’ in the plant which ‘caused us to go into a hearing protection program’ (Tr. 317). Mr. Korman pointed out that there were many sources of noise in the plant, including the release of air under pressure and empty cans bumping against one another (Tr. 293–4). According to Mr. Korman, Respondent had taken steps before the inspection to reduce noise levels in the plant, including the following: Added nylon facings on track rails; covered cables with plastic; mounted equipment on rubber cushions; installed mufflers on certain air discharge outlets; installed shieldings, etc. He said that consideration has been given to doing other things to improve the noise levels in the plant (e.g., removal of ‘End Department’ to a new location and installation of roller bearings on conveyor tracks), but they had not been accomplished at the time of the inspection. There are, according to Mr. Korman, certain practical considerations which would limit the erection of barriers or enclosures to cut down on noise, however. For example, an air imbalance in the ovens will upset cans in the ovens. Also, the production lines must be visible to Respondent’s employees in order to assure quality of the cans being produced. See Tr. 293–327.

8. OSHA Hygienist Lehi L. Pitchforth explained how he conducted the noise survey at Respondent’s plant on August 28, 1972. After calibrating his noise meter, Mr. Pitchforth stated that he went through different areas of the plant and took noise readings of ‘30 seconds to a minute or perhaps longer’ at various locations (Tr. 224). The readings were recorded first on a rough schematic map or diagram of the plant and later transferred to a cleaner copy (SX 2a-b-c-d-e, Tr. 224–31). It was his understanding, he said, that the six lines operated on ‘basically identical lines’ (Tr. 221). Mr. Pitchforth testified, and the diagram indicates, that the noise readings in the area of the foreman’s office ranged between 101–103 (Tr. 232). Reading in the 90’s were taken in the area of the washers and ovens along the East wall (supposedly a low noise area), coaters, printers, Bliss presses and other items of equipment (Tr. 232–4, SX 2).

9. Boleslaw Andrew Kugler is an Associate Manager in Charge of Industrial Noise Control for Bolt, Beranek and Newman, a Southern California consulting firm concerned with research and development in acoustics. He holds a bachelor’s and a master’s degree in engineering and has had experience in noise control. He was familiar with Mr. Pitchforth’s noise survey and the evidence presented by the Secretary, including the testimony of Respondent’s three employees.

10. Mr. Kugler testified that he was not in a position to suggest any ‘administrative noise control possibilities’ (Tr. 265–6), but he did undertake to express some opinions as to the use of engineering controls in Respondent’s Torrance plant. It was his view that a ‘reverberant’ noise field—where noise levels remain essentially the same in all locations (Tr. 267)—existed in certain areas of Respondent’s manufacturing facility. He thought that treatment of the walls and roof of the plant with absorptive surfaces could operate to reduce the noise in the areas of the machine shop and the inner-spray ovens to an acceptable level (Tr. 268). He also pointed out that the concrete floors could be covered with some absorptive material, such as carpeting, and that certain noise areas could be enclosed and others separated from quieter areas by a barrier. He added (Tr. 269):

‘Damping of vibrating panels on some of these machines is another approach that could be used in lowering noise levels for machines that are required.

From reading the information that was provided to me and from the testimony that was given this morning, I don’t see that none of these attempts have been made so far. So, although I cannot specifically say what can be done in terms of noise control, and how effective that noise control would be, I feel that I don’t see any evidence of any engineering noise control activities that haven’t taken place.[18]

DISCUSSION

The burden of proof is upon the Secretary to establish violation of the cited standard and the Act (Rule 73 of the Commission’s Rules of Procedure). Such standard requires, first, that the Secretary show that the noise exceeded the sound levels and the exposures indicated in Table G–16 and, second, that Respondent failed to utilize feasible administrative or engineering controls to reduce such noise levels. The Secretary established neither the first element nor the second, and, therefore, the citation must be vacated.

With respect to the first element, Respondent contends that the tests conducted by the Secretary were insufficient to establish that ‘the impermissible sound level existed for the prohibited length of time and that those sound levels coexisted with the employees’ exposure.’ According to Respondent, in order to show that the exposure limit was exceeded it was necessary for the Secretary to take noise level readings for the time periods specified in the standard—e.g., two hours for a 100 dBA reading or eight hours for a 90 dBA reading. Respondent also argues that the Secretary’s noise survey did not establish that employees were exposed to excessive noise inasmuch as it was not shown that employees were working where the meter readings were taken. On this phase of the case it is only necessary to consider the contention dealing with the duration of the Secretary’s sample noise readings.[19]

For the Secretary to prevail here, it was incumbent upon him to show that the impermissible noise levels continued for the times specified in Table G–16 (ranging from 15 minutes or less for a 115 dBA level to eight hours for 90 DBA). Such was not established. The evidence indicates that Respondent’s operations were continuous, but it was not established that the noise levels in Respondent’s plant were continuous. Without such proof the Secretary’s noise samples were inadequate and the evidence insufficient. It is possible that the sound levels in Respondent’s Torrance plant continued for the time periods prescribed (or even increased), but it can not be presumed that such occurred.

But it would not have been enough to sustain the citation and complaint even if the noise in any of the specific areas referred to in the citation and complaint had exceeded the sound levels set forth in Table G–16 for the time periods specified therein. The Secretary also had the burden of showing that there were feasible administrative or engineering controls available to reduce the sound levels in the plant, and Respondent failed to utilize them. There is no evidence that administrative controls were available to Respondent. With respect to engineering controls, it was stipulated that Mr. Pitchforth was unable to offer ay suggestions. And the Secretary’s acoustics expert, Mr. Kugler, only testified in general terms that noise levels could be reduced by enclosing machines by physical separation of various areas or by application of absorptive materials to building surfaces. He was unable to state that specific things would reduce noise levels effectively in Respondent’s plant. When he testified he did not know whether Respondent had in fact tried any engineering techniques in its Torrance plant.[20] The record, thus, does not contain probative evidence that feasible administrative or engineering controls were available to reduce effectively the sound levels in Respondent’s Torrance plant, and that Respondent had failed to utilize them.[21]

Based on the foregoing, and the whole record, the following are entered as

CONCLUSIONS OF LAW

1. Respondent is now, and at all times mentioned herein, an ‘employer’ within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and that the Commission has jurisdiction of the parties and the subject matter.

2. The Secretary did not establish that Respondent had violated the standard appearing at 29 CFR 1910.95(b)(1) or Section 5(a)(2) of the Act.

ORDER

Based on the foregoing, and the whole record, it is ORDERED that Citation No. 1 issued against Respondent herein on September 12, 1972, be VACATED.

Harold A. Kennedy

Judge, OSAHRC

Dated: September 18, 1973

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 1551
REYNOLDS METALS COMPANY,
Respondent.

FINAL ORDER DATE: April 27, 1973

DIRECTION FOR REVIEW AND ORDER

BEFORE VAN NAMEE and BURCH, Commissioners

VAN NAMEE, Commissioner:

On March 28, 1973 Judge Harold A. Kennedy’s decision in this case was issued. By his decision Judge Kennedy vacated the Complainant’s citation for the reason that Respondent’s notice of contest had not been forwarded to the Commission within seven days as required by Rule 32 of the Commission’s Rules of Procedure.

In accordance with the authority granted by section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq., hereinafter ‘the Act’) review of the Judge’s order is hereby directed. We have reviewed the record and the Judge’s decision. For the reasons given hereinafter we reverse.

The facts are as follows:

On September 13, 1972 Complainant issued Respondent a citation for alleged violations of section 5(a)(2) of the Act. In response thereto Respondent filed a letter which was received by Complainant on October 2. On October 5, Complainant’s compliance officer called Respondent and inquired as to the intended status of the letter. He was informed that it was a notice of contest. Thereafter, on October 10 (eight days after receipt of the letter) the Area Director forwarded the notice of contest to the Commission.

Respondent in reliance on Secretary of Labor v. Lennox Industries, Inc., OSHRC Docket No. 1106 (July 7, 1972) and Secretary of Labor v. Brent Towing Company, OSHRC Docket No. 1003 (December 29, 1972) moved for vacation. As is required by Secretary of Labor v. J. Dale Wilson Builder, OSHRC Docket No. 1625 (February 20, 1973) and Secretary of Labor v. ADM Grain Company, OSHRC Docket No. 1767 (February 20, 1973) Judge Kennedy afforded Complainant an opportunity to explain the delay.

Nevertheless, Complainant is not in violation of the letter of our rules. Rule 4 states in pertinent part as follows:

‘The last day of the period shall be included unless it is a Saturday, Sunday or Federal holiday in which event the period runs until the end of the next day which is not a Saturday, Sunday, or Federal holiday.’

The period prescribed by Rule 32 in this case expired on Monday, October 9, 1972. However, that Monday was a Federal holiday (Columbus Day). Therefore, under Rule 4 Complainant could wait until October 10 to file the notice of contest. Accordingly, the filing was timely and vacation is not warranted.

It is therefore ORDERED that (1) the Judge’s decision be set aside, and (2) the case be reinstated and remanded for further proceedings consistent with this decision.

WILLIAM S. McLAUGHLIN

EXECUTIVE SECRETARY

DATED: April 27, 1973

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 1551
REYNOLDS METALS COMPANY,
Respondent.

April 27, 1973

APPEARANCES:

For the Secretary: Theresa Kalinski, Attorney of Los Angeles, California

For Respondent: Austin B. Graff, Esq. William H. Bass III, Esq. of Richmond, Virginia

ORDER GRANTING MOTION TO DISMISS

On March 6, 1973, Respondent filed a motion with the Commission seeking dismissal of this proceeding before the Occupational Safety and Health Review Commission on the ground that the Secretary had not timely transmitted Respondent’s Notice of Contest to the Commission.[22] Section 10(c) of the Occupational Safety and Health Act of 1970 provides that ‘the Secretary shall immediately advise the Commission’ of a notification that an employer intends to contest a citation or a notification of any proposed penalty. Commission Rule 2200.32, in effect since September 28, 1972 (37 Fed. Reg. 20237), provides:

The Secretary shall, within 7 days of receipt of a notice of contest, transmit the original to the Commission, together with copies of all relevant documents.

The record shows that a letter dated September 27, 1972 (J 3), originating from Respondent’s inspected plant in Torrance, California and which was treated as a notice of contest, was received on October 2, 1972, at the Long Beach, California Office of the Secretary and by the Executive Secretary of the Commission on October 12, 1972. It is not disputed that the Secretary did not forward the notice of contest until October 10, 1972—eight (8) days after its receipt.

Recent decisions of the Commission indicate that the Secretary is to be given an opportunity to explain his failure to forward a notice of contest within the time prescribed in Commission Rule 2200.32; also, that Respondent may show that it has been prejudiced by the late transmittal of the notice of contest. See ADM Grain Company, DOCKET No. 1767 dated February 20, 1973 and J. Dale Wilson, Docket 1625, dated February 20, 1972.

The Secretary was given an opportunity herein to explain the delay in forwarding the notice of contest, and Respondent has responded thereto.

On March 13, 1973, the Secretary filed an affidavit of Compliance Officer Gilbert Garcia. The affidavit reads in part:

On October 2, 1972, the Occupational Safety and Health Administration received in the mail at its office in Long Beach, California, a letter from Respondent Reynolds Metals Company (such letter was forwarded to the Commission on October 10, 1972).

On October 5, 1972, I called the Respondent at its office at 500 Crenshaw Boulevard, Torrance, California, to determine whether the letter received on October 2, 1972 constituted a Notice of Contest, insomuch it was not at all certain from such letter whether respondent intended it to be a Notice of Contest. I was told by Mr. Johnson, an employee of Respondent, that managerial personnel were absent from the city and that he was unable to respond to my question but that he would call the corporate headquarters in Virginia to obtain a response to my question.

On October 5, 1972, 2:45 p.m., Mr. Johnson called me and stated that the letter was a Notice of Contest. Thus, it was not until October 5, 1972 that the Occupational Safety and Health Administration was definitely apprised that the letter from the Respondent received on October 2, 1972 constituted a Notice of Contest.

On October 10, 1972, the Occupational Safety and Health Administration forwarded to the Occupational Safety and Health Review Commission, the letter which it received from Respondent on October 2, 1972.

Respondent filed a memorandum of opposition to the affidavit on March 22, 1973. According to the memorandum, the affidavit is legally insufficient even when considered ‘in its most favorable light’. The undersigned agrees.

The Secretary’s affidavit indicates there was a three-day delay in making inquiry of Respondent as to whether the letter should be treated as a notice of contest. In any event, the Secretary’s representative knew by October 5, 1972 that it was to be so treated and had ample time to transmit it to the Review Commission within the prescribed seven-day period. Yet he did not do so until October 10, 1972.

It may not have been readily apparent to the Secretary’s representative that Respondent’s September 27, 1972 letter intended to contest any part of the citation issued. But as Respondent points out, the Commission has vacated citations where there was a doubt as to whether the document submitted by an employer was a notice of contest.[23] And while the Commission recent holdings indicate that the Secretary will be permitted to explain a delay in transmitting a notice of contest, the reason offered here remains an insufficient one. Said the Commission in J. Dale Wilson Builder, DOCKET No. 1625 dated February 20, 1972:

In the past the Commission has applied the extreme sanction of vacation of a citation where an Area Director has not forwarded a notice of contest because in his view the employer’s writing was not a notice of contest. (Secretary of Labor v. Pleasant Valley Packing Co., Inc., OSHRC DOCKET No. 464; Secretary of Labor v. Brent Towing Co., Inc., OSHRC DOCKET No. 1003, Pet. for Jud. Rev., Docket No. 72–3511, filed November 21, 1972, 5th Cir.; Secretary of Labor v. Lennox Industries, Inc., OSHRC DOCKET No. 1106). We used the sanction in these cases because the function of determining the legal sufficiency of a notice of contest is an adjudicatory function, and the action of the Area Director operated to deprive an employer of his statutory right to a hearing as provided for by section 10(c) and to usurp the responsibility of this Commission to provide the hearing.)

Finding the record in that case to be ‘silent regarding the reasons for delay in transmittal of the notice of contest.’, the case was remanded so the Secretary could explain the delay and Respondent could show how it had been prejudiced.

Here the Secretary has been given an opportunity to explain the delay for late transmittal of Respondent’s notice of contest, and he has failed to justify it. Accordingly, Item No. 2 of Citation No. 1 dated September 13, 1972 is VACATED[24].

Harold A. Kennedy

Judge, OSAHRC

Dated: March 23, 1973

[1] This standard states:

Table G–16—Permissible Noise Exposure

Duration per day, hours	Sound level dBA slow response
8	90
6	92
4	95
3	97
2	100
1½	102
1	105
½	110
¼ or less	115

[2] Complainant does not contend that administrative controls are feasible, and there is no evidence of record demonstrating the feasibility of such controls.

[3] My dissenting colleague would presume the existence of a violation on this evidence. He would do so because among other things he reads my opinion in Reynolds Metal Co., No. 4385, 3 OSHC 1749, OSHD para. 20,214 (1975) as presenting an access to proof problem for the Secretary. My colleague fails to note that the question presented in that case concerned trade secrets. The question is not presented in this case.

[4] A reverberant field is one in which noise levels result from combinations of noise producing machinery and which has the effect of producing noise levels of essentially the same intensity throughout the area.

[5] 5 U.S.C. section 556(d). See also 2 Davis, Administrative Law Treatise, § 14.14, citing, Sen. Doc. No. 248, 79th Cong. 2d Sess. 208, 270 (1946).

[6] As used here, the root term ‘presumption’ is limited to the description given by Professor McCormick,

. . . the establishment of fact B [there are feasible engineering controls available to reduce reverberant noise] is sufficient to satisfy a party’s burden of producing evidence with respect to fact A [the general controls are applicable to respondent’s noise problem.]

McCormick, Law of Evidence, 2d ed. § 342, 343 (1972).

[7] McCormick, § 343.

[8] ‘. . . Some presumptions are created to correct an imbalance resulting from one party’s superior access to proof.’ McCormick § 343, pp. 806–7.

[9] The ‘access to proof’ argument for allowing the presumption in cases of this sort is particularly compelling because in another case the Chairman stated that he would not, in the absence of a showing of good cause, permit complainant to avail himself of the best available noise expert for discovery inspections for excess noise if that expert is not a federal employee, and Commissioner Moran would restrict discovery inspections generally. See Reynolds Metals Co., No. 4385; BNA 3 OSHC 1749; CCH OSHD para. 20,214 (1975).

[10] Report of the Attorney General’s Committee on Administrative Procedure, p. 70 (1941), as quoted by Davis, § 14.08, p. 284.

[11] Section 2(b) states this purpose as: ‘. . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . .’ See also, Clarkson Construction Co. v. O.S.H.R.C. & Secretary of Labor, No. 75–1070 (10th Cir., January 21, 1976) slip op. 12.

[12] Brennan v. O.S.H.R.C. and John J. Gordon Co., 492 F.2d 1027, 1032 (2d Cir. 1974) and authorities cited therein.

[13] Rule 301 of the Federal Rules of Evidence.

¹ The citation contained three ‘Items’ or charges, but Respondent contested only one.

[15] Section 5(a)(2) provides that each employer subject to the Act ‘shall comply with occupational safety and health standards promulgated under this Act.’

[16] A prehearing conference was held in the case on February 15, 1973, primarily to resolve the issues raised in a Motion to Permit Discovery filed by the Secretary. The case was thereafter dismissed by the undersigned by order dated March 23, 1973 on the ground that the Secretary had failed to timely transmit the Respondent’s notice of contest to the Commission. The Commission by order dated April 27, 1973 reversed and remanded.

[17] The employees who testified indicated that they sometimes take more than the allotted time for lunch and coffee. Also, they may have occasion to leave their work station to go to the lavatory, to pick up supplies or to perform some other work function (Tr. 101, 124, 162, 171–6). The breaks are staggered so the machines can continue to operate (Tr. 146–7).

[18] See also Tr. 272–4. Mr. Kugler said it would be necessary to make an evaluation of the plant before he could state what specific things could be done to reduce the noise level (Tr. 274).

[19] With respect to Respondent’s other argument, the record indicates that Respondent’s employees would have been working for sufficient time periods in the general areas where the noise recordings were taken. This aspect of the Secretary’s sampling technique was, therefore, presumably valid—if it had been shown that the noise levels had continued (not declined) for the time periods prescribed in the standard.

[20] Mr. Kugler testified before Mr. Korman was called as a defense witness.

[21] The parties eliminated any issue involving the use of personal protective equipment by stipulation (Tr. 12).

[22] This proceeding grew out of an inspection of Respondent’s plant in Torrance, California on August 28, 1972. A citation issued on September 13, 1972 containing three charges or ‘Items’. Such items allege violation of occupational safety and health standards appearing at 29 CFR 1910, 101(b), 1910.95(b)(1) and 1910.252(a)(2)(iv)(c), respectively. A $40 penalty was proposed for Item No. 1, but no penalty was proposed for either item No. 1 or Item No. 2. Respondent only contested Item No. 2, involving the alleged failure to properly control noise levels ‘by feasible engineering and/or administrative controls’, which is the only charge before the undersigned.

[23] Respondent cites Lennox Industries, Inc., DOCKET No. 1106, dated July 7, 1972 and Brent Towing Company, DOCKET No. 1003, dated December 29, 1972. Respondent also points out that the Secretary’s own directives require him to treat a letter in a doubtful situation as a notice of contest and transmit it to the Commission, citing Compliance Operations Manual, page XXII—(B)(2), and OSHA Program Directive #200–15, 4c.(1) and (2), para. 8639, CCH Employment Safety and Health Guide.

[24] As indicated, only Item No. 2 is before the Review Commission, and no penalty was proposed as to it. [Footnote placed by editor; no microfiche available of original decision.]