“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 722 GURNEY MANUFACTURING DIVISION, GURNEY INDUSTRIES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 17, 1973ORDEROF REMANDBefore MORAN, Chairman;VAN NAMEE and CLEARY, CommissionersCLEARY, COMMISSIONER:OnMarch 9, 1972,[1]respondent was issued a citation and notification of proposed penalty for analleged failure to comply with the occupational safety and health standard at29 C.F.R. 1910.93(a)(2). Respondent timely filed a notice of contest. TheSecretary?s complaint was filed on April 12, 1972. On April 17, 1972, theCommission received a letter from the authorized employee representative, inwhich it stated that it was exercising its right to be a party to the proceedings.Respondent and the authorized employee representative filed answers to thecomplaint on April 24, and April 26, respectively. After a number ofpreliminary motions a hearing was scheduled for October 26.??????????? On October 10 respondent filed a motion to withdraw itsnotice of contest. By letter dated October 16 the authorized employeerepresentative opposed respondent?s motion to withdraw. [2]On November 14 the Judgedated and signed a recommended order granting respondent?s motion to withdrawits notice of contest. This recommended order was received by the Commission onNovember 16.OnDecember 18 former Commissioner Alan F. Burch directed that the Judge?srecommended order dated November 14 granting respondent?s motion to withdrawits notice of contest be reviewed by the Commission. On April 27, 1973, basedupon the December 18 direction for review, the Commission ordered the caseremanded to the Judge for further proceedings.OnJuly 12, 1973, respondent filed a motion to dismiss further proceedings on thegrounds that the December 18 direction for review had been untimely filed.Respondent?sJuly 12, 1973, motion to dismiss, contended that the Judge?s recommended orderdated November 14 granting respondent?s motion to withdraw its notice ofcontest became a final order of the Commission by operation of law pursuant tosection 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A 651et seq., 94 Stat. 1590, hereinafter referred to as ?the Act?), and thereforethe Commission was without jurisdiction to direct review and order remand ofthe Judge?s order dated November 14.OnSeptember 4, 1973, pursuant to section 12(j) of the Act, I directed review ofthe Judge?s recommended decision and order granting respondent?s motion todismiss further proceedings which is dated August 10, 1973, and is before usnow.[3]TheCommission has reviewed the entire record in this case, including all pleadingsand briefs filed by the parties. Based upon our review of the record we do notadopt the Judge?s decision.Theproblem before us is the interpretation of section 12(j) of the Act whichprovides, in pertinent part,A hearing examiner. . . shall hear, and make a determination upon, any proceeding institutedbefore the Commission . . . and shallmake a report of any such determination which constitutes his finaldisposition of the proceedings. The report of the hearing examiner shall becomethe final order of the Commission within thirty days after such report by thehearing examiner, unless within such period any Commission member has directedthat such report shall be reviewed by the Commission. [Emphasis added]\u00a0JudgeLarkin?s recommended order granting respondent?s motion to dismiss is basedupon the fallacious rationale that a Judge?s report is ?made? within themeaning of section 12(j) of the Act as of the date he affixes to that report.Thus, the issue here is whether, under section 12(j) ?A hearing examiner . . .make[s] a report of .. . [his] . . . determination . . .? as of the date heaffixes to the document or when the document is received by the Commission.Hisreasoning can be sustained only if one can ?make a report? without anyonereceiving the information. To ?make a report? under the terms of section 12(j)has one clear, unambiguous meaning: to return to the Commission with hisfindings, conclusions, and recommendations, a matter officially assigned to anAdministrative Law Judge. Regardless of the date affixed by the Judge to hisreport, he cannot ?make a report? unless and until that document is received bythe Commission.[4]?Despite the error on the face of our order ofremand of April 27, 1973,[5] it should have beenabundantly clear that the Commission had exercised jurisdiction over thematter. The Judge is bound to follow Commission order for remand.Wenoted, parenthetically, that the parties and the Judge refer to the date of theissuance of the direction for review as December 15, 1972. The correct date isDecember 18, 1972, for although it was signed on December 15, it was notreceived by the Executive Secretary until December 18.Accordingly,it is ORDERED that this case be and is hereby remanded to the Judge for furtherproceedings consistent with this decision and our order of remand dated April27, 1973.\u00a0MORAN, CHAIRMAN,concurring in part, dissenting in part:Iconcur with two principles enunciated in this order: (1) that a Judge?s reportis not made until it is received by the Commission, and (2) a direction forreview pursuant to section 12(j) of the Act takes effect with its filing by aMember of the Commission with the Executive Secretary of this agency.Itis my opinion, however, that this case should not be remanded now nor should ithave been remanded six months ago. Judge Larkin correctly decided this case onNovember 14, 1972, when he rulesThat Respondentmay withdraw its Notice of Contest pursuant to 20 C.F.R. 2200.50 and the dateon which the conditions must be corrected is extended from April 5, 1972, toDecember 1, 1972.\u00a0Hadthat decision not been directed for review this case would long since have beenconcluded to the satisfaction of all parties concerned. As things now stand itis quite likely that abatement of the hazard conceded to exist in this casewill not be accomplished for more than a full year after it would have beenachieved had this case not been directed for review.??????????? It is my view that this is a case where the authority todirect review of a Judge?s decision has set back the Act?s objective of earlyabatement of occupational safety and health hazards.Itshould be noted that both the complainant and the authorized employeerepresentative (hereafter Union) consented to the respondent?s desire towithdraw this case.Ina letter to Judge Larkin dated October 16, 1972, counsel for the TextileWorkers Union of America stated:We consent to thegranting of respondent?s motion to withdraw its notice of contest.\u00a0Atan open hearing held on the Motion at Montgomery, Alabama, on October 26, 1972,the same counsel stated:We view theRespondent?s motion as a two-part motion. The first part, as I say, we have noobjection to, namely the motion to withdraw the notice of contest.\u00a0Counselfor the Secretary of Labor filed a document with the Commission stating asfollows:The respondent haspaid the amount of the proposed penalty to the complainant and furtherrepresents: (1) that abatement will be accomplished by December 1, 1972; (2)that compliance will continue thru the continued use of respirators andcontinued determination and implementation of engineering and administrativecontrols.\u00a0Accordingly,complainant has no objection to the granting of the Motion and suggests a formof Decision reciting substantially the matters set forth in the last twoparagraphs[6] above and the concurrenceof complainant.?Ifthere are 3 parties to a case and all agree that the case should be withdrawn,and the Judge agrees with the parties and approves the withdrawal, what then isthe problem?Theproblem is that the Union is trying to use this proceeding to question both thefact and the particular method approved by the Secretary of Labor to accomplishabatement and the Commission is supporting the Union in this endeavor eventhough both of these issues are beyond the purview of the Commission in thisproceeding.[7]Thiscase involves only the single charge that respondent is in violation of the Actbecause, when the citation was issued, it allegedly was not complying with theoccupational safety and health standard published as 29 C.F.R. 1910.93(a)(2).[8]Theonly issue for the Commission to adjudicate in this case is whether or notrespondent violated the Act as alleged. The answer to that question is ?yes.?Respondent conceded that when it filed its motion to withdraw.TheUnion, however, seems to want this Commission to provide it with some kind ofguarantee that respondent will abate the violation in a manner the Unionconsiders to be satisfactory. As counsel for the Union stated at the October26th hearing while discussing the use of respirators to abate the allegedviolation:. . . respiratorsare an interim measure and . . . an unsatisfactory measure because it is ratherdifficult for employees to work eight hours a day with these respirators.?What we arelooking to is the ultimate solution of this problem.?We are also notparticularly concerned whether this thing is going to be abated, whether it be15 days after the withdrawal of the notice of the contest or 30 days.?I think ourposition today, what we are looking for is for a complete abatement . . ..?[emphasis supplied]\u00a0This Commissionrecognized and supported this Union position by stating in its April 27thremand orderA conclusion isrequired as to whether, on the record before us, respondent?s providing andrequiring the use of personal protective equipment satisfactorily met the citedstandard, (29 C.F.R. 1910.93) and was thus an abatement . . ..\u00a0Facedwith an order like that?to resolve an issue beyond the jurisdiction of theCommission?it is easy to understand why the Judge attempted to put the case torest with his August 10th ruling that the direction for review was untimely.Thisorder or remand is, as was the April order, a blatant attempt to usurp thepolice powers given to the Secretary of Labor under the Act?powers which thisCommission does not share in any way, shape or form. In short, the Judge istold to get information on whether the abatement method approved by theSecretary of Labor (use of personal protective equipment, i.e., respirators) isa satisfactory abatement of the hazard alleged in the citation.Ifthe Commission has this power, it has the right to second-guess the results ofevery investigation or inspection conducted by the Secretary of Labor underthis Act. I submit that there is no such power in this Commission. The solereason for its establishment is ?for carrying out adjudicatory functions underthe Act? (section 2(b)(3)). Those functions are limited to deciding thoseissues contested under the provisions of section 10 of the Act. It has no otherpower or authority.Theonly contested issue which is now or ever has been before this Commission inthis case is whether there was a violation of the Act. That has now beenanswered in the affirmative. Whether the hazard that caused that violation isnow abated, what particular device, method or process is employed to abate it,and whether or not there are grounds for bringing additional charges under theAct against this respondent, are all matters for the exclusive consideration ofthe Secretary of Labor, Section 9 mandates that whenever the Secretary believesan employer to be in violation of the Act, he shall issue a citation. Nowheredoes the Act provide that the Secretary must account to this Commission when hedoes not believe an employer is in violation, nor explain why he approves onetype of method to correct a hazardous condition rather than another.?CLEARY, COMMISSIONER:Afterconsideration of the record in this case, the importance of the issues therein,and the already protracted length of these proceedings, upon my own motion andpursuant to Commission Rule 101(a)(29 C.F.R. 2200.101(a)), I hereby order anexpedited proceeding in this case.\u00a0—————————————————————————————————————————————\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 722 GURNEY MANUFACTURING DIVISION, GURNEY INDUSTRIES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 14, 1972LARKIN, JUDGE, OSAHRC:OnAugust 10, 1973, an Order and Decision was issued granting Respondent?s Motionto Dismiss but containing an incorrectly worded Order.Whereforethe August 10, 1973 Order is amended to read as follows:?Respondent?sMotion to Dismiss is granted and the Order stands issued on November 14, 1972, grantingRespondent?s motion to Withdraw its Notice of Contest pursuant 29 C.F.R.2200.50 and the date on which the conditions must be corrected extended fromApril 5, 1972 to December 1, 1972.??LARKIN, JUDGE, OSAHRC:OnJuly 12, 1973, respondent filed motion to dismiss the case as the ReviewCommission?s direction for review (dated December 15, 1972) was issued 31 daysafter a final order of the hearing examiner (issued on November 14, 1972), andtherefore, was not within the 30-day period prescribed by Section 12(j) of theOccupational Safety and Health Act (referred to as the Act).Thecase, after becoming at issue on the pleadings, was originally assigned onApril 27, 1972, by the Review Commission Chairman for hearing. Followingdisposition of preliminary matters such as a motion for production ofdocuments, the case was set for hearing on October 12, 1972, and continued toOctober 26, 1972, at the request of the authorized employee representative.OnOctober 10, 1972, respondent with the concurrence of the complainant (referredto as the Secretary) filed a motion to withdraw notice of contest. This motionwas opposed by the authorized employee representative, and the motion was heardon October 26, 1972. On November 6, 1972, the respondent, with the concurrenceof the Secretary, filed an amended motion to withdraw its notice of contestsetting forth in greater detail its grounds for withdrawal, and on November 13,1972, the authorized employee representative filed its position on the motionto withdraw.OnNovember 14, 1972, an order was issued by the hearing examiner granting themotion to withdraw and copies were sent by certified mail to the parties. Onthis same day, the file together with the order was mailed to the ReviewCommission. The order and file were received by the Review Commission onNovember 16, 1972.OnDecember 15, 1972, one of the Commissioners issued a ?Direction for Review?pursuant to Section 12(j) of the Act. By order of the Executive Secretary datedApril 27, 1973, the case was reassigned. The order of the Commission of thesame date specified remand ?. . . for further proceedings consistent with thisdecision.? On June 11, 1973, respondent filed motion for stay due to Petitionfor Review with the United States Court of Appeals for the Fourth Circuit. Thismotion was denied by Review Commission ruling dated June 21, 1972, and the casewas again set for hearing on July 31, 1973.OnJuly 12, 1973, respondent filed motion to dismiss on the grounds that thehearing examiner?s decision had become a final order of the Commission pursuantto the provisions of Section 12(j) of the Act as 30 days had passed before theDirection for Review was issued. On July 20, 1973, and July 25, 1973, counselfor the authorized employee representative and complainant, respectively, filedbriefs opposing the motion to dismiss.Section12(j) of the Occupational Safety and Health Act as pertinent provides asfollows:A hearing examiner . . .shall hear, and make a determination upon, any proceeding instituted before theCommission and any motion in connection therewith, assigned to such hearingexaminer by the Chairman of the Commission, and shall make a report of any suchdetermination which constitutes his final disposition of the proceedings. Thereport of the hearing examiner shall become the final order of the Commissionwithin thirty days after such report by the hearing examiner, unless withinsuch period any Commission member has directed that such report shall bereviewed by the CommissionA study of theCongressional Committee Reports indicates that Section 12(j) originated as aportion of an amendment to the Act offered by Senator Javits. In support of hisamendment, Senator Javits stated:Inmost contested cases, between six months and two years would be saved under theprovisions which provide for true self-enforcing orders and discretionaryreview of trial examiner decisions . . .?Under my amendment,an enforceable order would issue at the end of the administrative review state,rather than after judicial review (unless the Court of Appeals issued a stay).Furthermore, the administrative review stage itself would be shortened by threeto six months in many cases by making review by the (Commission) of trialexaminers? decisions discretionary. If review were denied, the trial examiners?decision would automatically become the final order of the (Commission) andenforceable as such.?(Legislative Historyof the Occupational Safety and Health Act of 1970. Committee on Labor andPublic Welfare. United States Senate, June 1971, page 392).\u00a0Theforegoing language emphasizes Congressional intent that time was to be of theessence under the provisions of Section 12(j) in obtaining a final enforceableorder. Of greater import from the foregoing language is the emphasis that thetrial examiner decision would become the final decision of the Commission byoperation of law unless discretionary review was taken within the 30-daylimitation period.Turningthen to the precise language of Section 12(j) of the Act for direction as tothe commencement of the 30-day period, the language provides, ?The report ofthe hearing examiner shall become the final order of the Commission within 30days after such report by the hearing examiner? (emphasis supplied). Thelanguage of the statute has to be read in its usual and ordinary context. Hadthe filing date with the Commission been intended as controlling, it seemsreasonable that Congress would have so provided. It must be concluded from thelanguage of Section 12(j) that the 30 days runs from the date of issuance ofthe hearing examiner?s report.Suchinterpretation would seem to have been the interpretation by the Commissionwhen the hearing examiner?s report was considered by it. The Commission?sdecision states in opening, ?On November 14, 1972, Judge . . . issued an ordergranting respondent?s motion to withdraw its notice of contest . . .? In otherwords, the Commission recognizes the date of the order as the issuance daterather than the date received by the Commission. Excluding November 14, as thedate of mailing, 30 days hence would end on December 14, and pursuant to theprovisions of Section 12(j) of the Act, the hearing examiner?s decision becamethe final order of the Commission by operation of law and the Commission nolonger retained jurisdiction. Its Direction for Review issued on December 15,1972, was untimely.Muchof the argument of counsel for the Government and the authorized employeerepresentative has been answered in the decisions of U.S. v. Easement andRight-of-Way (C.A. 6 1967), 386 F. 2nd 769, cert. denied, 88 S.Ct.1034, 390 U.S. 947; Ewing v. Risher (C.A. 10, 1949), 176 F. 2nd. 641;and Robinson v. Celebrezze (E.D. Tenn. 1964), 237 F. Supp. 115. Thesecases emphasize that statutes containing limitation periods establishjurisdiction as distinguished from a procedural limitation and ?. . . thelimitation defines and controls the right and the right ceases to exist if notasserted within the time fixed in the statute therefore.? (See Ewing v.Risher, supra, p. 644).Theauthorized employee representative argues that to grant respondent?s motion todismiss in effect is reversing the order of the Commission. To deny this motionwithout considering it on its merits would be an easy out, but it would not befair to the parties nor meet a responsibility that it is concluded would beexpected by the Commission. More importantly, it would not be in conformancewith the mandate of Section 12(j). Section 12(j) specifically provides thatonce the case is assigned to the examiner that the examiner ?. . . shall hearand make a determination upon any proceeding instituted before the Commissionand any motion in connection therewith . . .? (emphasis supplied). Asjurisdiction is never waivable, it may be raised at any juncture of the theproceedings. The jurisdiction motion was never raised before the Commission andas far as known, the issue is a case of first impression for consideration ofthe Commision (see, however, Matt J. Zaich Construction Company v.Occupational Safety and Health Review Commission, No. 73?1955, pendingbefore the United States Court of Appeals for the Ninth Circuit). It isconcluded that the mandate of Section 12 stating that the examiner shall hearand make a determination upon any motion in connection with assigned casesplace upon the examiner a direct mandate to rule on the motion leaving to theCommission its discretion under Section 12(j) to reverse if it disagrees.Counselfor the authorized employee representative argues it is common practice of theCommission to calculate the 30-day review period from the date of filing of theJudge?s decision with the Commission and refers to the new internal practicewhich uses the date of filing of the Judge?s decision as the date of issuanceof the decision. The fallacy with this argument is that the controlling facetof the running of the 30-day period still remains the date stated on theexaminer?s report and such date is placed on the decision in the field andunder the direction of the examiner. Such new internal practice can only beinterpreted as recognition by the Commission of the controlling aspects of thedate of issuance of the report by the examiner in conformance with the languageof Section 12(j). Moreover, any practice or internal procedure by theCommission cannot take precedent over the mandate of the Act itself.Counselargues that three days as provided by Rule 6(e) of the Federal Rules of CivilProcedure and Rule 4(b) of the Rules of Procedure before the Review Commissionare to be added to the 30 days specified by Section 12(j). Rule 4(b) specifiesit is applicable to a pleading or document mailed pursuant to Rule 7. Rule 7 islimited to such documents as pleadings, notices of posting, notices ofhearings, proof of service, petition for modification of abatement period,response to modification of abatement, and similar documents only. Both Rule 4and Rule 7 do not apply to decisions or orders (cf. U.S. v. Easement andRight-of-Way, supra). Rule 2 of the Commission?s Rules of Proceduresprovides that the Federal Rules of Civil Procedure are applicable only in theabsence of a specific rule by the Commission. It is obvious that Rule 4 waspatterned after Rule 6 of the Federal Rules, and Rule 6 would be inapplicableby exclusion under Rule 2 of the Commission?s Rules. Even assuming that Rule6(e) of the Federal Rules is applicable, it has been held that Rule 6(e) doesnot apply to a limitation period operating as a jurisdictional condition (U.S.v. Easement and Right-of-Way, supra).Counselnext relies upon the Supreme Court case of N.L.R.B. v. J. H. Rutter-RexManufacturing Company, Inc., 396 U.S. 258 at 264?5, arguing that thefailure of the Commission to act within the 30-day period ?. . . cannot standas a basis for denying the authorized employee representative and the employeesit represents the substantial rights accorded to them under the Act.? TheRutter-Rex case is clearly distinguishable from the present case and in no wayapplicable. That case involves Section 6(a) of the Administrative ProceduresAct 5. U.S.C. 555(b), where the lower court found that the N.L.R.B. had beenguilty of ?inordinate? delay (approximately five years in fact) in violation ofSection 6(a). The Supreme Court, in reversing, held that the N.L.R.B?s delaycould not be used as a basis for shifting the consequences of the delay fromthe wronged employees to the benefit of the wrongdoing employers. That case inno way involved a statutory limitation period or any facts similar to the factsinvolved in the present case.Counselfor complainant argues that the word ?report? in Section 12(j) implies that thefiling date with the Commission must control as Webster?s Dictionary definesthe word ?report? as ?to return or present a matter officially referred forconsideration with conclusions or recommendations.? The complainant argues thatit could not be a report until filed. Complainant, in essence, argues that the definitionof one word taken out of context should control over the complete context ofthe statute. Such position is contrary to the normal concepts of statutoryconstruction.Complainantrefers to Rule 91 of the Commission?s Rules in permitting a petition fordiscretionary review to be filed ?. . . on or before the 25th day followingreceipt by the Commission of the Judge?s decision.? Complainant states, ?theintention to allow the Commission a minimum of five days to consider suchpetition seems clear.? The answer to counsel?s argument is as pointed out bythe Court in the Easement and Right-of-Way case, supra, and that is, thestatute (Section 12(j)) establishes a jurisdictional limitation asdistinguished from a procedural limitation (Rule 91). The establishment of aprocedural limitation lies within the authority of the Commission, but anextension of a jurisdictional limitation does not lie within the authority ofthe Commission (cf. Ewing v. Risher, supra).Counselargue that to require the filing date with the Commission as starting the30-day period provides consistency. This consistency is now maintained byrecently established internal procedure not effective at the time of issuanceof the hearing examiner?s report in the present case. Even so, any internalprocedure must conform to the mandate of the Act requiring ?the report of thehearing examiner shall become the final order of the Commission within thirtydays after such report by the hearing examiner . . .? (emphasis supplied). Aspreviously stated, apparently in establishing such internal procedure, theCommission recognizes that the language of the Act must be conformed with andthe date of the examiner?s report initiates the running of the 30-day period.??????????? Therefore, having considered the mandate of Section 12(j)and the argument of the parties,?It is Ordered:Respondent?smotion to dismiss is granted and the citation and notification of proposedpenalty issued on March 9, 1972, are vacated.[1] All dates are1972 unless otherwise specified.\u00a0[2] The authorizedemployee representative?s letter of October 16 was somewhat ambiguous as towhether the union opposed respondent?s motion to withdraw. It stated:We consent to thegranting of respondent?s motion to withdraw its notice of contest.We do not agreewith respondent?s offer of settlement on the grounds that such settlement isnot consistent with the provisions of the Act, and therefore does not meritapproval (29 C.F.R. 2200.33).This position wasclarified in the course of the following dialogue at the October 26 hearing onrespondent?s motion to withdraw:MR. ABBEY (Counselfor authorized employee representative): We view the Respondent?s motion as atwo-part motion. The first part, as I say, we have no objection to, namely themotion to withdraw the notice of contest.\u00a0JUDGE LARKIN:Well, let me say, Mr. Abbey, in regard to your letter of October 16th, I wasn?tquite clear, because you seem to concur in the Respondent?s motion to withdraw,but you do not agree to the terms of settlement.\u00a0I think that, frommy aspect, I have to consider this an all-inclusive package, so I am sorry,will you go ahead and state your position.\u00a0MR. ABBEY: Well, Ithink perhaps that is the rub, then. We think the offer of settlement isinadequate and is not in conformity with the [A]ct.Judge Larkin wascorrect in considering that the authorized employee representative was opposedto respondent?s motion to withdraw its notice of contest. This conclusion isre-enforced by the authorized employee representative?s petition fordiscretionary review in which it states:Theemployee representative opposed the granting of the employer?s motion [towithdraw its notice of contest] upon the conditions proposed.[3]Judge Larkinissued an amended order dated August 16, 1973. This amended order is null andvoid ab initio. Once a Judge?s report is received by the Commission he iswithout jurisdiction to amend the substance of his decision. Secretary ofLabor v. Singleton Sheet Metal Works, Inc., OSHRC Docket No. 878 (October19, 1972).\u00a0[4] Thearguments of the authorized employee representative are instructive as to theconsequences of holding otherwise. Any other interpretation would deny theCommission a full thirty day review period and ?. . . would give the Commissionand parties different review periods based on the vagaries of mailing andfiling.?\u00a0[5] The dateof the Judge?s report should have been November 16, 1972.[6] One ofthese 2 paragraphs is set forth in this opinion immediately above thissentence. The other paragraph is as follows: ?Respondent represents, in itsshowing of good faith efforts to come into compliance, that certain engineeringand administrative controls have heretofore been determined and implemented.?[7]Thisprecise principle was decided in Secretary of Labor v. Oil, Chemical andAtomic Workers International Union, AFL-CIO (Mobil Oil Corporation) OSAHRCDocket No. 562, February 6, 1973.\u00a0[8] The Respondentdid not contest the proposed penalty in this case.”