Brabham-Parker Lumber Company

Plain-English summary

The Commission vacated the judge's ruling on Brabham-Parker Lumber Company's alleged failure to use feasible noise controls because an intervening decision replaced the prior cost-benefit test with an achievable-controls test. It remanded for new evidence and reconsideration of technological and economic feasibility. The Commission also reinstated a hearing-conservation-program item that the judge had dismissed for lack of particularity. It held that the defense was raised too late and that the inspection, hearing, and evidence provided adequate notice of the alleged deficiencies. Docket 78-6061 was otherwise affirmed without review.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.95(b)(1) and 1910.95(b)(3).
• Outcome: Noise-control and hearing-conservation rulings vacated and remanded for merits proceedings.
• Key point: Citation particularity is tested across the full proceeding, and any deficiency can be cured through pleadings, discovery, or hearing when the employer had notice and suffered no prejudice.

Full text (OSHRC public release)

Docket No. 78-6060 78-6061

SECRETARY OF LABOR,

Complainant,

v.

BRABHAM-PARKER LUMBER COMPANY,

Respondent.

OSHRC Docket Nos. 78-6060 and 78-6061

ORDER OF REMAND

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

On December 17, 1982, the Commission issued its decision in Sun Ship, Inc.,
82 OSAHRC , 11 BNA OSHC 1028, 1983 CCH OSHD � 26,353 (No. 16118, 1982).  In
accordance with the decision of the U.S. Supreme Court in American Textile Manufacturers
Institute, Inc. v. Donovan, 101 S.Ct. 2478 (1981) ("ATMI"), the Commission held
that "feasible" under the occupational noise standard means achievable.  
The Commission overruled the cost-benefit test of feasibility previously set forth in
Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD � 21,009 (No.
3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977), and substituted a
test consistent with ATMI.

In view of this intervening change in law, the judge's decision in Docket No.
78-6060[[1/]] with respect to the alleged violation of section 1910.95(b)(1) is vacated.
  Accordingly, the case is remanded for further proceedings, including evidentiary
submissions, so that the interrelated issues of technological and economic feasibility can
be reconsidered in light of the test of feasibility established by Sun Ship, Inc.

The judge's decision in Docket No. 78-6060 is also vacated with respect to
citation subitem 1c, alleging that the Respondent failed to administer a "continuing
effective hearing conservation program," contrary to the requirements of 29 C.F.R. �
1910.95(b)(3).[[2/]] Because the citation did not specify how the company's program was
deficient, the judge vacated the citation item for lack of particularity.  The judge
concluded that he could not rely on the testimony at the hearing to cure the lack of
particularity in the citation.

The Commission has held consistently that the purpose of the particularity requirement in
section 9(a) of the Act is to put the employer on notice as to the nature of the alleged
violation so that an informed decision regarding whether to contest the citation can be
made.  Gold Kist, Inc. 79 OSAHRC 93/C8, 7 BNA OSHC 1855, 1862, 1979 CCH OSHD �
23,998 (No. 76-2049, 1979), citing Gannett Corp., 81 OSAHRC 35/A2, 4 BNA OSHC 1383,
1976-77 CCH OSHD � 20,915 (No. 6352, 1976).  In addition to the language of the
citation, the Commission looks to other factors, including circumstances of the inspection
and the employer's familiarity with its own work practices, as well as the pleading,
discovery, hearing and decisional stages of the case, to determine whether the employer
had adequate notice.  Id. As we held in Gold Kist, Inc., supra, "[w]here the
citation is contested, a deficiency, if any, in a complaint or citation can be cured by
further pleadings or discovery, thus avoiding the extreme sanction of dismissal." 7
BNA OSHC at 1862; see Pabst Brewing Co., OSHRC Docket No. 77-1985 (   ,1983);
cf. Cement Asbestos Products Co., 80 OSAHRC 26/C7, 8 BNA OSHC 1151, 1980 CCH OSHD �
24,343 (No. 78-1054, 1980).

In this case, the affirmative defense was not timely, because it was raised
for the first time in the Respondent's post-hearing brief to the judge.  The defense
of lack of particularity is an affirmative defense that must be raised pre-hearing, in a
pleading or by motion, or tried by the consent of the parties.  Wheeling-Pittsburgh
Steel Corp., 79 OSAHRC 66/A2, 7 BNA OSHC 1581, 1979 CCH OSHC � 23,783 (No. 14702, 1979),
citing Gannett Corp., supra.  Even if timely raised, the Respondent's defense lacks
merit.  The record does not indicate that the company lacked notice of the nature of
the alleged violation, nor does the Respondent claim either that it lacked sufficient
information to decide whether to contest the citation or that it was prejudiced in
preparing its case.  See Del Monte Corp., 81 OSAHRC 78/A2, 9 BNA OSHC 2136, 1981 CCH
OSHD � 25,586 (No. 11865, 1981); Gold Kist, Inc., 79 OSAHRC 93/C8, 7 BNA OSHC 1855, 1979
CCH OSHD � 23,998 (No. 76-2049, 1979).  Furthermore, any perceived deficiencies in
the citation could be, and were in this case, cured at the hearing.  See Whirlpool
Corp., 79 OSAHRC 32/A14, 7 BNA OSHC 1356, 1979 CCH OSHD � 23,552 (No. 9224, 1979),
vacated and remanded on other grounds, 645 F.2d 1096 (D.C. Cir. 1981).

Accordingly, the judge's decision upholding the defense is vacated and the
case is remanded with respect to this citation item for further proceedings, including
factual findings and legal conclusions on the merits.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  JAN 31 1983

The Administrative Law Judge decision in this matter is unavailable in this format. To
obtain a copy of this document, please request one from our Public Information Office by
e-mail ( [email protected] ), telephone
(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1/]] Docket No. 78-6061 was included along with Docket No. 78-6060 in the
caption of the direction for review but, because no issue involved in Docket No. 78-6061
was directed for review, the judge's severance of the case and his disposition are not
before us and are affirmed without review.

[[2/]] The dissent concludes that this subitem duplicates subitem 1a, which
alleges that employees were not required to wear personal protective equipment.  We
disagree with the dissent in light of the Secretary's evidence.

The judge vacated subitem 1c because he concluded that the citation was
insufficiently particular.  He did not enter any factual findings or legal
conclusions as to the merits.  Thus, the judge has not yet evaluated and weighed the
evidence bearing on Respondent's hearing conservation program.

The dissent concludes that there were duplicate charges because of the
Secretary's evidence that employees were not required to wear personal protective
equipment.  However, this was only a part of the Secretary's evidence in support of
the hearing conservation program charge.  The Secretary also presented evidence
indicating that Respondent did not instruct and train its employees in the proper use of
personal protective equipment.  The industrial hygienist who conducted the inspection
testified that a written program "concerning the use of the ear protection as well as
training employees on how to use the ear protection" was a requisite of an effective
hearing conservation program.  He also stated, on the basis of his inspection and his
discussions of Respondent's hearing conservation program with Mr. Brabham, that Respondent
did not have a written program for this purpose. Additionally, although Mr. Brabham
testified extensively about his policies toward hearing protection, he did not indicate
that the company had a program to train employees in the proper use of personal protective
equipment.  We conclude therefore that subitems 1a and 1c allege two distinct
violations.