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set forth in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD ¶ 21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977), and substituted a test consistent with ATMI.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 ( lwhitsett@oshrc.gov ), 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.