CONTINENTAL CAN COMPANY, U.S.A., a member of THE CONTINENTAL GROUP, INC.  

OSHRC Docket Nos. 7855; 10561; 12069; 76-0025; 77-2313; 77-4156; 78-0360; 78-0890; 78-2460

Occupational Safety and Health Review Commission

November 13, 1978

  [*1]  

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Herman Grant, Regional Solicitor, U.S. Department of Labor

Charles M. Chadd and Charles R. McKirdy, for the employees

J. P. Eckman, Regional Manager of Manufacturing Continental Can Company, Inc., for the employees

OPINION:

ORDER

BY THE COMMISSION:

These cases, n1 which had been assigned to Judge Alan M. Wienman, are hereby transferred to the full Commission and consolidated for purposes of complying with the Order of United States District Judge Robert D. Morgan, United States District Court for the Southern District of Illinois, Northern Division in Civil Action No. 78-1033, dated August 8, 1978. n2 The cases were, at the time of the District Court's order, and are at present the only cases pending before the Review Commission involving the issue of excessive noise at the facilities of Continental Can Company.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The docket numbers relate to respondent's facilities in the following locations: 7855 (Omaha, Nebraska), 10561 (Tampa, Florida), 12069 (St. Joseph, Missouri), 76-0025 (Albany, New York), 77-2313 (Miami, Florida), 77-4156 (Paterson, New Jersey), 78-0360 (Vineland, New Jersey), 78-0890 (Peoria Heights, Illinois), 78-2460 (Itasca, Illinois).

n2 The two principle functions of an administrative law judge are to preside at hearings and make initial decisions.   Administrative Procedure Act, §   7(a), 5 U.S.C. §   556(b); §   8(a), 5 U.S.C. §   557(b); 2 K. C. Davis, Administrative Law Treatise § §   10.02, 10.06 (1st Ed. 1958); K. C. Davis, Administrative Law of the Seventies § §   10.02, 10.03 (Admin. L. Treat. Supp. 1976).   Since compliance with the District Court's order will not require an initial decision by Judge Wienman, the transfer of the cases to the full Commission is proper.   Cf. National Labor Relations Board v. Red-More Corporation, 418 F.2d 890 at 892 (9th Cir. 1969); National Labor Relations Board v. W.S. Hatch Co., Inc., 474 F.2d 558 at 562 (9th Cir. 1973). Three of the cases, Docket Nos. 7855, 10561, and 12069, had been consolidated previously pursuant to a joint motion of the parties.   The remaining cases have been consolidated with these first three cases by the Commission's own motion.   Commission Rule 9; 29 C.F.R. §   2200.9.

  [*2]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I.

On August 24, 1976, a divided Commission issued a decision in which it vacated citations issued by the Secretary of Labor that alleged noncompliance with the "noise standard," 29 C.F.R. §   1910.95(b)(1), at eight of respondent's facilites.   Continental Can Co., Inc., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (1976), pet. for review withdrawn, No. 76-3229 (9th Cir. 1977) [hereinafter "Continental Can I"].   In that case, the Commission majority concluded that (1) the standard at §   1910.95(b)(1) requires the implementation of only those "engineering and administrative controls which are economically, as well as technically feasible," (2) in making a determination about whether controls are economically feasible "all relevant cost and benefit factors must be weighed," and (3) the burden of proving feasibility, both economic and technical, lies with the Secretary of Labor.   Because the Secretary declined to introduce evidence on the issue of economic feasibility in Continental Can I and the record as a whole did not demonstrate that engineering controls were economically feasible,   [*3]   the Commission held that the Secretary failed to sustain his burden of proving a violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq., for noncompliance with the "noise standard."

Following the Commission's decision in Continental Can I, respondent moved for summary judgment in those cases still pending before the Commission involving the issue of excessive noise in other facilities of Continental Can.   Respondent argued that the Secretary of Labor was collaterally estopped from relitigating the economic feasibility of noise controls at respondent's other facilities since the feasibility of such controls was litigated and decided in Continental Can I. In Continental Can Company, Inc., 77 OSAHRC 210/E9, 6 BNA OSHC 1184, 1977-78 CCH OSHD P22,491 (1977) [hereinafter "Continental Can II"], the Commission denied Continental's summary judgment motion and remanded the cases for further proceedings finding that the requirements for the application of collateral estoppel had not been met.

II.

On March 1, 1978, Continental Can Company filed an action in the United States District Court for the Southern District of Illinois, Northern [*4]   Division, seeking an injunction to restrain the Secretary of Labor and the Review Commission from enforcing or proceeding under the Commission's decision in Continental Can II. Essentially, Continental averred that the method of enforcement employed by the Secretary of Labor violates due process of law because it offends "the fundamental Fifth Amendment requirement that the government use its vast prosecutorial power in a fair manner." n3 Continental also argued that the Review Commission's failure to recognize and apply the doctrine of collateral estoppel under the circumstances presented by these cases was "an addional and separate deprivation of due process." n4 The Secretary of Labor countered Continental's summary judgment motion with a motion to dismiss pursuant to Rule 12(c), Fed. R. Civ. Pro., or in the alternative for summary judgment pursuant to Rule 56, Fed. R. Civ. Pro.   In support of his motion, the Secretary contended (1) that the court lacked subject matter jurisdiction, and (2) that Continental's complaint failed to state a claim against the defendants upon which relief could be granted.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - -   [*5]   - - - -

n3 Plaintiff's Prehearing Brief at 10.

n4 Id. at 11.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In his decision dated August 8, 1978, United States District Court Judge Robert D. Morgan sustained, in effect, the contentions of plaintiff Continental Can Company and found that the actions of the defendants, particularly the method of enforcement, violated due process of law "by harassment." n5 Accordingly, Judge Morgan ordered, among other things, that the Secretary "cease and desist from prosecuting any citations now pending on the issue of excessive noise in any of plaintiff's individual plants" and that the Review Commission "dismiss" those same matters. n6

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Continental Can Company, U.S.A., a member of The Continental Group, Inc. v. Ray Marshall, Secretary of Labor, United States Department of Labor and United States Occupational Safety and Health Review Commission, Civil Action No. 78-1033, slip op. at 10 (S.D. Ill., N.D., August 8, 1978); 6 BNA OSHC 1825 at 1829.

n6 Id.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - -   [*6]   - - - - - - - - - - -

On August 17, 1978, the Secretary and the Commission filed a joint appeal of Judge Morgan's decision with the United States Court of Appeals for the Seventh Circuit.   In addition, the Secretary filed in the District Court a motion for stay pending appeal of Judge Morgan's order of August 8, 1978.   Judge Morgan, on August 30, 1978, denied the motion for stay pending appeal.

The Secretary of Labor filed an application for stay pending appeal with the Seventh Circuit on September 20, 1978.   The Commission joined in the Secretary's application for stay to the extent that the District Court's order enjoins or interferes with our proceedings.   On October 11, 1978, the Court of Appeals denied the application for stay and thus left standing the District Court's order.

Accordingly, in compliance with the order of the United States District Court for the Southern District of Illinois, Northern Division in Civil Action No. 78-1033, dated August 8, 1978, these cases are hereby DISMISSED.

It is so ORDERED.