“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 1942 AND 2017 (CONSOLIDATED) KAWECKI-BERYLCO INDUSTRIES, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 27, 1973ORDEROF REMANDBefore VAN NAMEEand BURCH, CommissionersBURCH,COMMISSIONER:On April 3, 1973, JudgeCharles K. Chaplin issued his decision in this case, dismissing the Union?s?petition,?[1]approving the settlement agreement between respondent and the Secretary, andgranting the employer?s motion to withdraw its notice of contest.OnApril 19, 1973, pursuant to authority vested in Commission members by section12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.,hereinafter referred to as ?the Act?), I directed that the Judge?s decision bereviewed.TheCommission has reviewed the record noting that the employer was issued acitation for an alleged other than serious violation of 29 CFR 1910.93(e) forfailing to implement appropriate controls to reduce the exposure of itsemployees to beryllium. The Secretary did not propose a penalty but requiredthat respondent submit, within 30 days, a detailed plan for the long-termabatement of the alleged violation.Theauthorized employee representative, Oil, Chemical and Atomic WorkersInternational Union (hereinafter referred to as OCAW or authorized employeerepresentative), timely filed a notice of contest, contending that the ?periodof time fixed in the citations for abatement of the violations isunreasonable.? Subsequently the employer also timely filed a notice of contest.[2]2 Prior to the consolidatedhearing of the two cases the Secretary and employer entered into a stipulatedsettlement providing for abatement of the violation within a period of fromfour to 13 months. Judge Chaplin refrained from ruling on the agreement beforehearing. In his decision and order the stipulation of settlement was approved,the employer?s withdrawal of its notice of contest was granted, and theauthorized employee representative?s ?petition? was dismissed. With regard tothis final ruling, Judge Chaplin committed error which requires that both casesbe remanded for rehearing on all issues.TheJudge found that OCAW had the burden of proving the asserted unreasonablenessof the proposed abatement period. On the basis of its failure to sustain that supposedburden the Judge rendered the aforementioned rulings.Thefollowing Commission Rules of Procedure[3] reveal Judge Chaplin?serror.Rule 34 Petitions for modification ofabatement period.(a) An employer may file with theSecretary a petition for modification of an abatement period . . (b) The burden of proving the need formodification of the abatement period shall rest with the petitioner.\u00a0Rule 35 Employee contests.(a) Where an affected employee orauthorized employee representative files a notice of contest with respect tothe abatement period, the Secretary shall, within 10 days from his receipt ofthe notice of contest, file a clear and concise statement of the reasons theabatement period prescribed by him is not unreasonable.\u00a0Rule 73 Burden of proof.(a) In all proceedings commenced by thefiling of a notice of contest, the burden of proof shall rest with theSecretary.(b) In proceedings commenced by a petitionfor modification of the abatement period, the burden of establishing thenecessity for such modification shall rest with the petitioner.?Theserules clearly establish that an employer may challenge an abatement period byfiling a petition for modification of abatement. An employee may challenge theabatement date by means of a notice of contest. Rules 34 and 35 are consistentwith the provisions of Rule 73, all stating that petitioner has the burden ofproving the need for modification when a petition for modification of abatementis filed and that the burden of proof rests with the Secretary when an employeechallenge is filed by a notice of contest.Inthe instant case OCAW filed a notice of contest and the Secretary thus has theburden of proving that his proposed abatement date is not unreasonable. Asstated by Judge Chaplin, ?The essential ingredient of the Stipulation ofSettlement is an amendment of the Citation and the Complaint by extending theperiod of abatement from 30 days for the submission of a plan to an indeterminateperiod between 4 and 13 months to in fact abate excessive concentrations ofberyllium. . . .? Thus, the Secretary?s originally proposed abatement periodhas been amended and he has the burden of proving that the amended period isnot unreasonable. Accordingly, rehearing in conformity with these rules isrequired.Uponremand, with respect to OCAW?s exhibits, Judge Chaplin is advised to consultRules 71 and 72 of the Commission?s Rules of Procedure[4] regarding theadmissibility of evidence. Under the Commission?s rules, as in anyadministrative proceeding, exclusionary rules are less applicable than in ajury trial. See, 2 Davis, Administrative Law Treatise Sections 14.04,14.07, 14.08, 14.09.Itis ORDERED that the Judge?s decision be vacated and that the case be remandedfor a determination not inconsistent with this decision.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 1942 AND 2017 (CONSOLIDATED) KAWECKI-BERYLCO INDUSTRIES, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 12, 1972CHAPLIN, JUDGE,OSAHRC:Thisis a consolidated proceeding pursuant to Section 10 of the Occupational Safetyand Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter the Act), whereinOil, Chemical and Atomic International Union, hereinafter the Union andKawecki-Berylco Industries, Inc., hereinafter KBI, contested a Citation datedDecember 4, 1972, by the Secretary of Labor, hereinafter the Secretary. Anonserious violation was alleged, i.e. Item Number Standard or regulation allegedly violated Description of alleged violation Date on which alleged violation must be corrected 1 CFR 1910.93(e) Feasible engineering or administrative controls were not implemented at the following operations, in the Fabrication plant, to reduce the employees exposure to beryllium to within the 8-hour time weighted average limit prescribed in Table G?2. (1) Detailed Plan?this detailed plan for the implementation of the long term program is to include feasible engineering and\/or long range administrative controls and a time schedule of proposed action. Upon approval, the plan is to be implemented in accordance with its provisions. ? Submission of a detailed plan for long-term abatement to be submitted to the Area Director at the above address by Jan. 4, 1973. a) attrition mill operator b) powder makers, while working in the Rotex room and at the upper deck area. c) vacuum melt furnace operator. ? \u00a0 \u00a0Nopenalty was proposed.TheUnion submitted its Notice of Contest December 18, 1972, in OSHRC Docket #1942and KBI submitted its Notice of Contest December 27, 1972, in OSHRC Docket #2017.The Union contested the reasonableness of the abatement period and the Employerfiled a general contest. On December 27, 1972, the Secretary replied to theUnion?s Notice of Contest and defended the period of 30 days authorized forsubmission of an acceptable plan for long term abatement. Further it wasindicated that:6. Upon submission and acceptance of thesaid plan to and by the Philadelphia Area Director, Occupational Safety andHealth Administration, the plan and the time table contained therein shall bedeemed incorporated by reference into the present Citation. Therefore, shouldthe employer not submit the said plan or should the employer fail to meet thetime schedule set forth therein, such failure will constitute a failure toabate and such action as may be deemed appropriate will be taken.?OnJanuary 9, 1973, the Secretary filed his Complaint against KBI where heamended, for the purpose of clarity and conciseness, the Citation as follows:? VIII29 CFR 1910.93(e) requires thatwhere employees are exposed to any material listed in Table G?2, containedtherein, and where such exposure exceeds the maximum set forth in the saidTable, feasible administrative or engineering controls must be implemented toreduce such exposure to within the permissible limit contained in the saidTable. On December 4, 1972, Respondent violated the said section in that:?Feasible engineering or administrative controls were not implemented at thefollowing operations, in the Fabrication plant, to reduce the employees [?]exposure to beryllium to within the 8-hour time weighted average limitprescribed in Table G?2. a) attrition mill operator, b) powder makers, whileworking in the Rotex room and at the upper deck area, c) vacumn [sic.] meltfurnace operator.?\u00a0Atthe same time he submitted a Motion to Consolidate the two dockets, i.e., 1942and 2017. On January 12, 1973, the Union filed an application for ExpeditedProceeding. On the same date the Secretary moved to amend his Complaint toprovide that ?. . . in no case is final abatement to occur later than 90 daysfrom the date the Commission enters an order allowing this amendment.? OnJanuary 22, 1973, KBI opposed this motion, as well as the Union Request forExpedited Proceedings.OnJanuary 24, 1973, there was received KBI?s Answer to the Complaint wherein itwas admitted that the Occupational Safety and Health Review Commission hadjurisdiction of this action, and that it was engaged in a business affectinginterstate commerce. However, it was averred that it was without knowledge asto the reasons for the amendment set forth in paragraph VIII.OnFebruary 1, 1973, Commissioner Alan F. Burch, Occupational Safety and HealthReview Commission, directed that expedited proceedings be convened in thiscase. On February 2, 1973, these two cases were assigned to me for hearing. Allparties were contacted to determine an acceptable early date for hearing. OnFebruary 8, 1973, Dockets #1942 and 2017 were consolidated, the Secretary?sMotion to Amend his Complaint was denied and the hearing was scheduled forFebruary 27, 1973, the earliest date acceptable to the Union.OnFebruary 16, 1973, there was submitted to the undersigned a Stipulation ofSettlement in Docket #2017. A copy of this stipulation was furnished the Unionwhich verbally indicated its continuing objection to the abatement date. (Thiswas subsequently confirmed in writing.) The stipulation follows:STIPULATION OF SETTLEMENT?AND NOW, this 13th day of February, 1973,the respective parties hereto stipulate as follows:I. On December 4, 1972, Peter J. Brennan,Secretary of Labor, United States Department of Labor, (hereinafter,Complainant) issued a Citation against Kawecki-Berylco Industries, Inc.(hereinafter, Respondent) alleging inter alia a violation of the standard forberyllium concentration as set forth in 29 CFR 1910.93(e), at Respondent?sHazleton plant.?II. The said Citation provides forabatement of the alleged violation through the ?submission of a detailed planfor long-term abatement . . . this detailed plan for the implementation of thelong-term program is to include feasible engineering and\/or long rangeadministrative controls and a time schedule of proposed action.??III. The said Citation further providesthat upon approval by the Complainant, ?the plan is to be implemented inaccordance with its provisions.??IV. Respondent, by its counsel, by letterdated December 27, 1972, filed a timely notice of contest to the said Citation.?V. Subsequent thereto, on January 11,1973, Complainant, by his counsel, filed a Complaint in support of theallegations contained in the said Citation.?VI. Respondent has now submitted toComplainant, on a without prejudice basis, a plan for long-term abatementincluding proposed engineering and administrative controls together with a timeschedule of proposed action. A copy of the said plan is attached hereto, made apart hereof, marked Exhibit A and will hereinafter be referred to as ?thePlan.??VII. Based on the submission of the Plan,Complainant and Respondent have reached a settlement of their differences andtherefore, Respondent without admitting that it has violated the OccupationalSafety and Health Act or the regulations promulgated thereunder, andComplainant agree as follows:1. Complainant hereby approves theEngineering Program and Administrative Control Program set forth in the Plan.?2. Respondent agrees to implement theEngineering Program and Administrative Control Program within the time limitset forth in the Plan.?3. Abatement shall be as set forth in thePlan. Should the implementation of the Engineering Program and AdministrativeControl Program not result in abatement within the period set forth in thePlan, Respondent may submit to the Occupational Safety and Health ReviewCommission a timely petition for modification of abatement date.?4. Complainant agrees to monitor theimplementation of the Plan as set forth in the abatement section of the Planexcept that:A. Complainant will take air samples on agross basis and does not agree that respirable sampling satisfies the standardsas set forth in 29 CFR 1910.93(e).?B. Respondent will sample on a gross andrespirable basis and takes the position that respirable sampling is required by29 CFR 1910.93(e) and further reserves the right to assert this position at thecompletion of the implementation of the Engineering Program, should theabatement provisions contained in the said plan prove ineffective.?C. Complainant agrees to compute theaverage employee exposure in accordance with the computation formula set forthin 29 CFR 1910.93(d)(1)(i) and (ii), to wit: computations shall be based on aneight-hour weighted average, except that the parties may agree to an 8 1\/2 hourtime period. The parties? agreement that an 8 1\/2 hour time period may beutilized is made in light of the fact that affected employees may be exposed toberllium concentrations for periods of up to 8 1\/2 hours in each work shift.?D. Respondent in determining finalcompliance with the standards of 29 CFR 1910.93(e), will use sampling deviceshaving flow rates of 6 to 9 and 15 to 21 cubic feet of air. Complainant neitheragrees nor disagrees that the use of the aforesaid samplers is the correctmethod of sampling and reserves the right to use personal (?lapel?) type samplersin determining final compliance.?E. Complainant and Respondent willexchange all monitoring information throughout the period of implementation ofthe Plan.?5. Upon approval of this Stipulation andthe attached Exhibit A, the Citation shall be deemed amended to include theabatement calendar contained in the said Exhibit.?6. Upon approval of this Stipulation ofSettlement, by the Occupational Safety and Health Review Commission, and forthe purpose of reaching an amicable disposition, the notice of contest filed byRespondent shall be deemed withdrawn.?7. Nothing contained herein shall bedeemed to restrict the applicability or effect of the subsequent proceedingunder the Occupational Safety and Health Act.?Attachedto the stipulation as an exhibit was an Engineering plan which also includedattachments in the form of brochures and a Report dated December 29, 1972, onthe Evaluation of ?Beryllium in Air at KBI, Hazleton Plant, December 14, 15 and18.? Under the plan abatement would require a minimum of 4 months to a maximumof 13 months.OnFebruary 20, 1973, I verbally (because of the time constraints) advised Mr.Wodka and Mr. Ernst, who was to relay the information to Mr. Coughlin who wasout of town, that since the Stipulation in OSHRC Docket 2017 substituted arevised abatement date I would not rule on the proposed settlement until theUnion had been afforded a hearing but that, at the hearing in OSHRC Docket1942, I would permit the Union to challenge the proposed time schedule for abatementand whether abatement could be accomplished within these periods since Iconstrued this as going to the reasonableness of the proposed abatement.OnFebruary 22, 1973, I participated in a conference telephone call with theattorneys for the Secretary and KBI and repeated the gist of the February 20,1973 conversations and further advised that I had accepted the stipulationexcept as to the abatement date. I also advised the parties that the Unionwould be the moving party in the hearing scheduled since they were theContestant in the remaining issue. At the request of the Secretary, and allparties agreeing, the scheduled hearing was postponed to March 7, 1973, whenthe hearing was held.OnMarch 7, 1973, a hearing was held to afford the Union an opportunity toquestion the reasonableness of the penalty. Prior to the Union presenting itscase, Motions to be presented were considered. KBI objected to the entireproceeding because the Secretary and KBI had settled their case. I overruledthis since I had not as yet accepted the settlement and the Union stillcontested the abatement. The Union offered in evidence 6 exhibits which wereobjected to by both the Government and KBI on various grounds. The objectionswere sustained. In arguing for its objection KBI stated ?. . . The time weighedexposure is the test under the regulation? (Tr. 32). Robert Petruce, amaintenance employee of KBI (Tr. 43) and a health and safety committeeman ofthe local union (Tr. 43), testified that he had, in his work experience withKBI, performed all phases of maintenance on ?just about everything there? (Tr.48), that some parts of the proposed plan of machine modification had beenconsidered previously (Tr. 50), that he estimated he could change theconnectors referred to in paragraph 1(a)(b) of Exhibit A to the stipulationwithin two weeks (Tr. 55), that 2 months would be required for the movecontemplated in paragraph 1(c) of Exhibit A, that he agreed with the 2 weeksprovided for in 3(a) (Tr. 59), and that he wore a respirator where required(Tr. 59). Further, that any new equipment he would install would be designed bysomeone else (Tr. 67). Mr. Lettiere, an employee of KBI, testified that he hadworked in many areas of the plant (Tr. 74) and presently he was a vacuum castoperator (Tr. 74) and he uses the scoop referred to in paragraph 3 of theEngineering plan (Tr. 75). During this testimony the parties to the stipulationagreed to amend paragraph 3 by changing A to An and adding ?improved? after An(Tr. 79).Atthe conclusion of the Union?s case the Secretary and KBI moved to dismiss theUnion?s petition for failing to sustain the burden of proof. The Union arguedthat the motivation for its participation in this matter was the realizationthat every day of delay in abating the high levels of beryllium in the airincreased the incidence of disease therefrom. It could understand an expertfeeling 13 months was reasonable but because of the insidious nature of theprocess it felt every day was vital. The Secretary argued that in an earlierCitation KBI had been cited for a different violation and subsequently onreinspection the readings which formed the basis of the present Citation wereso low that it was not believed the Secretary could sustain his burden ofestablishing a ?serious? violation. In fact the beryllium concentration hadbeen sufficiently reduced to the point it was going to be exceedingly difficultto continue to reduce the exposure.APPLICABLELAW AND REGULATIONTheAct provides:Sec. (2)(b) The Congress declares it to beits purpose and policy, . . . to assure so far as possible every working manand woman in the Nation safe and healthful working conditions and to preserveour human resources?(13) by encouraging joint labor-managementefforts to reduce injuries and disease arising out of employment.\u00a0Sec. 9(a) If . . . the Secretary . . .believes that an employer has violated a . . . standard . . . promulgatedpursuant to section 6 of this Act . . . he shall . . . issue a citation to theemployer. Each citation shall be in writing and shall describe withparticularity the nature of the violation, including a reference to the . . .standard . . . alleged to have been violated . . ..?Theapplicable standard provides:? 1910.93 Air contaminants.An employee?s exposure to any materiallisted in table G?1, G?2, or G?3 of this section shall be limited in accordancewith the requirements of the following paragraphs of this section.(b) Table G?2:(1) 8-hour time weighted averages. Anemployee?s exposure to any material listed in table G?2, in any 8-hour workshift of a 40-hour work week, shall not exceed the 8-hour time weighted averagelimit given for that material in the table.?(2) Acceptable ceiling concentrations. Anemployee?s exposure to a material listed in table G?2 shall not exceed at anytime during an 8-hour shift the acceptable ceiling concentration limit givenfor the material in the table, except for a time period, and up toconcentration not exceeding the maximum duration and concentration allowed inthe column under ?acceptable maximum peak above the acceptable ceilingconcentration for an 8-hour shift.??(3) Example. During an 8-hour work shift,an employee may be exposed to a concentration of Benzene above 25 p.p.m. (butnever above 50 p.p.m.) only for a maximum period of 10 minutes. Such exposuremust be compensated by exposures to concentrations less than 10 p.p.m. so thatthe cumulative exposure for the entire 8-hour work shift does not exceed aweighted average of 10 p.p.m.?(e) To achieve compliance with paragraph(a) through (d) of this section, administrative or engineering controls mustfirst be determined and implemented whenever feasible. When such controls arenot feasible to achieve full compliance, protective equipment or any otherprotective measures shall be used to keep the exposure of employees to aircontaminants within the limits prescribed in this section. Any equipment and\/ortechnical measures used for this purpose must be approved for each particularuse by a competent industrial hygienist or other technically qualified person.Whenever respirators are used, their use shall comply with ? 1910.134.?TableG?2 provides limits for beryllium and beryllium compounds of 2 micrograms percubic meter of air in an 8-hour time weighted average.DISCUSSIONWhilethe issue was not raised by the parties I must first direct my attention to theCitation and Complaint and that part of the Act requiring a Citation describingwith particularity the nature of the violation. KBI was cited for notimplementing feasible engineering or administrative controls to reduce theemployees exposure to beryllium to within the 8-hour time weighted limitprescribed in Table G?2. In its complaint the Government made a slight changein wording when it said ?. . . and where such exposure exceeds the maximum setforth in the said Table . . . controls must be implemented to reduce suchexposure to the . . . limit contained in the Table.? The Citation was based on29 CFR 1910.93(e) which comes into play to achieve compliance with paragraph(b). The question is whether the Citation should have alleged a violation of(b) and the failure to do so lacks that particularity which deprives KBI offair notice. Certainly a Citation alleging a violation of (b) and a failure toimplement the controls under (e) would have ?described with particularity? thealleged violation but we are not here concerned with what would be desirable.We are concerned with denying KBI due process.Itis well settled that under the Federal Rules of Civil Procedure the purpose ofthe Complaint is to discharge the function of giving the Respondent fair noticeof the nature and basis or grounds of the Secretary?s claim, (Wright &Miller, Federal Practice and Procedure, Civil ?1215, 2A Moore?sFederal Practice 8.13). Did the Citation and Complaint in this case giveKBI fair notice of the nature of the Secretary?s claim? In the Stipulation ofSettlement executed February 13, 1973, KBI agreed that the Citation alleged ?… inter alia a violation of the standard for beryllium concentration . . . at Respondent?sHazleton plant,? and paragraph 4 thereof pertains to the testing techniques todetermine the amount of beryllium concentrations on a weighted average. As anattachment to the Stipulation there was an exhibit which dealt with the amountof beryllium in the air. At the hearing KBI?s attorney conceded that the testof the regulation was the time weighted exposure. Where there is no allegationin the pleadings that KBI had violated the standard, the Review Commission maynot supply the missing allegation. (See Globe Indemnity Co. v. LibertyMutual Ins. Co., 138 F. 2d 180 (3d Cir., 1943)). The language of theCitation, while not specific or particular respecting what had preceded thefailure to implement the controls, left little room for doubt that acceptablelevels of beryllium had been exceeded when KBI was advised the controls notimplemented were required to reduce the exposure to beryllium to within theprescribed time weighted average limit in G?2. All parties to this action,including the Union, knew that KBI was charged with having too much berylliumin the air at its workplace and further that it had not implemented controls.Under modern procedural methods pleadings are not to be struck down fornonprejudicial deficiencies. (See Albertson v. F.C.C., 182 F. 2d 397 (D.C.Cir., 1950); Mansfield Journal Co. v. F.C.C. 180 F. 2d 28 (D.C. Cir. 1950);A. E. Staley Mfg. Co. v. F.T.C., 135 F. 2d 453 (7th Cir. 1943); NationalLabor Relations Board v. Piqua Munising Wood Products Company, 109 F. 2d552, 557 (6th Cir. 1940). Accordingly, it is determined that the Citation under29 CFR 1910.93(e) put KBI adequately on notice of the violative conditionspelled out in subsection (b) and Table G?2.Theonly actions available to the undersigned after this hearing are to affirm theabatement date or reduce it.[5] We must look to thepractical effect of this Stipulated Settlement. If the abatement date of 13months is affirmed there is for consideration the Employer?s Motion to Withdrawcontained in paragraph VII, 6. If the abatement period is reduced, thus varyingthe terms of the stipulated settlement agreed to between the parties theparties would not necessarily be bound by the revised agreement. The Union didnot offer any testimony that reflects in any way the abatement as proposed isunreasonable. The credible testimony by Mr. Petruce pertained to the spannecessary for maintenance personnel to accomplish the physical alternations butthere was no testimony respecting engineering or design time or the lead time onnew procurement generated thereby. In the absence of expert testimony creatingdoubt as to the feasibility of the abatement date proposed and since the planmeets the approval of KBI and the Secretary, both of whom had expert adviceavailable to them in the preparation of the plan (Tr. 89), I must find that theUnion has not sustained the burden of proof in questioning the reasonablenessof the proposed abatement date.Theessential ingredient of the Stipulation of Settlement is an amendment of theCitation and the Complaint by extending the period of abatement from 30 daysfor the submission of a plan to an indeterminate period between 4 and 13 monthsto in fact abate excessive concentrations of beryllium in the air breathed inby KBI?s employees at its workplace. Such an abatement goes beyond what theSecretary sought initially and is a greater benefit to the employees than theinitial abatement. Accordingly, the Stipulation of Settlement is accepted inits entirety and the abatement proposed in the Citation is amended. Since theagreement also contained a withdrawal of KBI?s Notice of Contest contingentupon approval of this Stipulation of Settlement by the Review Commission andsince all notice requirements were complied with, there was no penalty proposed,abatement will be accomplished by this plan and KBI?s continuing compliance isinferred from its actions to date, the Motion to Withdraw is approved.Ina letter of March 19, 1973, considered a ?Summation of Arguments andConclusions of Law . . .,? the Union requested that the plan be amended toinclude the Union in the exchange of monitoring data between KBI and theSecretary. Since I do not consider this material to be germane to the issueraised by the Union in docket 1942 and the stipulation had previously beenaccepted, except as to reasonableness of abatement, such request is notgranted.Itappearing from the entire record that the public interest will be served byaccepting this Stipulation of Settlement, it is ORDERED that:1. The Secretary?smotion to dismiss the Petition of Oil, Chemical and Atomic WorkersInternational Union is granted;2. The Stipulationof Settlement is approved;3. The Citation asherein amended by the Stipulation of Settlement together with the $0 penalty isaffirmed;4. The Motion toWithdraw the Notice of Contest by KBI is granted;5. KBI shallcomply with the abatement requirements of the amended Citation and with theprovisions of 29 CFR 1910.193.[1] The Judgeerroneously regards the Union?s notice of contest as a petition formodification of abatement. See, infra.[2] This casepresents the anomalous situation created by section 10 of the Act whereby anemployer notice of contest (filed in good faith and not solely for delay oravoidance of penalties) tolls the abatement period as well as vitiating anotice of contest previously filed by affected employees, which, for obviousreasons, does not toll the abatement period.\u00a0[3] 29 CFR 2200.34,2200.35, 2200.73.[4] 29 CFR 2200.71and 2200.72.[5] Since theSecretary and the Union are interested in the shortest date the facts warrantand the Employer has stipulated to 13 months, any date beyond 13 months wouldbe more than any party sought.”