UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 11865
DEL MONTE CORPORATION,
Respondent.

January 28, 1977

DECISION (incorporating errata)

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

On June 4, 1975, Administrative Law Judge John J. Larkin granted a motion by respondent, Del Monte Corporation, to dismiss the Secretary of Labor’s complaint and vacate his citation. Both the citation and the complaint alleged that respondent had failed to comply with 29 CFR § 1910.95(b)(1) and had therefore violated section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereinafter ‘the Act’). On July 3, 1975, the Secretary’s petition for discretionary review was granted. The primary issue before us is whether the Judge correctly applied the requirement of section 9(a) of the Act that a citation describe with particularity the nature of an alleged violation and the part of Commission Rule 33(a)(2)(ii) requiring a complaint to state with particularity the time, location, and circumstances of the alleged violation. Both parties have filed briefs. We hold that the Judge Erred in granting the respondent’s motion, and we remand this case for further proceedings.

The circumstances of this case are not in dispute. On December 17, 1974, a compliance officer inspected respondent’s canning plant at 2900 East 7th Avenue in Tampa, Florida. As a result of the inspection a citation issued alleging a violation of section 5(a)(2) for respondent’s failure to comply with 29 CFR § 1910.95(b)(1). The citation described the alleged violation as follows:

Failure to reduce sound levels below the values of Table G 16 by use of feasible administrative or engineering controls, thereby exposing employees to the hazard of excessive noise in the following areas:

A. Cannery

1. Cold Sort Area

2. Slicer Oscillator Area

3. Hot Sort Area

4. Filler (Solbern) Area

5. Can Closing (Canco) Area

B. Can Manufacturing

1. Slitters Area

2. Body Maker Area

3. Quality Control Area

4. Seamer Area

5. Palletizer Area

Note 1. Compliance Schedule:

Engineering Compliance Program is to be submitted within 60 days (calendar), from date of receipt of this citation. Also, employer is to submit progress reports every 30 calendar days thereafter. Also, employer is to continue enforced usage of personal protective equipment.

The Secretary proposed that no penalty be assessed. Respondent filed a timely notice of contest, and the Secretary thereupon filed his complaint. The complaint essentially reiterated the allegations of the citation, but added allegations that 430 employees were affected by the conditions cited, and that they include general worker, can assembly line maintainers, machine operators, filler operators, attendants, palletizer operators, mechanics and inspectors.

Del Monte thereafter filed a motion to dismiss, a motion for a more definite statement, and an answer denying the substantive allegations of the complaint and also setting forth twelve affirmative defenses. Respondent contended, among other things, that: the standard cited unconstitutionally deprived it of its property, and is vague and unenforceable;[1] that it has already ‘utilized the only feasible engineering or administrative controls available to reduce noise levels’; that the Secretary must, but had failed to, specify the additional controls which should be utilized; and that noise levels in its plant did not exceed the levels permitted by Table G 16. In essence, Del Monte denied that it must comply with 1910.95(b)(1), that it had failed to comply with 1910.95(b)(1), and that it had any legal obligation to do more than what it contended it had already done to comply.

Thereafter the parties filed various discovery motions. Both Del Monte and the Secretary moved for the production of various documents, and requested various admissions of facts. The Secretary moved for an order requiring Del Monte to permit an entry onto Del Monte’s premises.[2] So far as we are able to determine none of these discovery motions and requests had been ruled upon or complied with when Judge Larkin scheduled a hearing on the various motions and requests.

The primary ground urged by Del Monte in support of its motion to dismiss is a lack of particularity in the citation and complaint. Judge Larkin granted the motion on that ground. He reasoned that Congress intended that the word ‘particularity’ be interpreted to mean ‘the quality of being detailed or minute, as a description; attention to detail; minute exactness’ as defined in a Webster’s dictionary. He therefore found that ‘[t]he particularity of the alleged violation in the instant case has not been described . . . with ‘the quality of being detailed or minute’ in either the citation or complaint.’ J.D. at 3. The Judge then held that in order to meet the particularity requirement of section 9(a), a citation alleging noncompliance with 1910.95(b)(1) must state the following: (1) the location of the excessive noise levels within the listed plant areas; (2) the location of the source of the excessive noise; (3) the specific magnitude and duration of the sound levels; (4) whether the Secretary applied any part of the cumulation formula contained in the note to Table G 16; (5) identification of the exposed employees; and (6) what feasible engineering or administrative controls are necessary to lower the noise levels within the limits specified in Table G 16.

The Particularity Requirement of Section 9(a)

Section 9(a) of the Act does not require that a citation state the elements of a cause of action, J. L. Mabry Grading, Inc., 9 OSAHRC 98, BNA 1 OSHC 1211, CCH 1971 73 OSHD para. 15,686 (No. 285, 1973), or that an employer be informed with particularity of how he must abate a hazardous condition. See Allis-Chalmers Corp., BNA 3 OSHC 1629, 1632, CCH 1975 76 OSHD para. 20,065 (No. 5599, 1975), aff’d No. 75 2125 (7th Cir., July 28, 1976). Del Monte concedes that it also does not require that the Secretary state his evidence. Rather, section 9(a) states that a citation ‘shall describe with particularity the nature of the violation . . .’ (emphasis added).

Even a citation facially lacking sufficient particularity to comply with section 9(a) need not, however, be declared void as a matter of law if, as Chairman Barnako observed in Gannett Corporation, BNA 4 OSHC 1383, 1384, CCH 1976 77 OSHD para. 20,915 (No. 6352, 1976), on the facts of the particular case before us, the purposes of the particularity requirement may be fulfilled in subsequent stages of the case.[3] In this case, Del Monte has already contested the citation, and adequate identification of the conditions which may require abatement may be accomplished during the pleading, discovery, hearing and decisional phases of the litigation. See Gannett Corp., supra; Ringland-Johnson, Inc., BNA 4 OSHC 1343, 1344 n.1 CCH 1976 77 OSHD para. 20,801 (No. 3028, 1976), pet. for review filed, No. 76 1687 (8th Cir., August 12, (1976); Allis-Chalmers Corp., supra. See also James L. Mills Painting Contractor, Inc., BNA 4 OSHC 1415, CCH 1975 76 OSHD para. 20,395 (No. 14425, 1976) (Administrative Law Judge) (evidence of noise levels not confined to allegations of citation). Also, it cannot be said here that Del Monte was prevented from making an informed choice on whether to abate or contest. Del Monte is of the view that it has no legal obligation to comply with the cited standard no matter how particular the citation may be initially. We therefore conclude that at this stage of this case, it does not serve the purposes of section 9(a) of the Act to consider a motion to vacate the citation on particularity grounds.[4]

The Secretary contends, however, that even at the conclusion of the litigation, the citation, as illuminated by the pleadings, by information gained through discovery, or by evidence in the hearing, need not meet the strict tests of particularity which the Judge would require. We agree.

We do not consider here the questions of whether the citation states a claim, or what are the elements of proof necessary to support a finding of a violation, or what facts the parties should disclose in preparation for a hearing, on the merits. Answers to those questions are given by rules of pleading, the substantive law governing section 5(a)(2) and subparagraph (1) of 1910.95(b), and various rules of discovery—not by section 9(a) of the Act.

Here, section 9(a) requires that the employer be given fair notice of the location of the excessive noise levels with enough particularity that he can proceed to abate the violative conditions established by the Secretary. Such fair notice does not require minute detail. J. L. Mabry Grading, Inc., supra. See Allis-Chalmers Corp., supra. The divided Commission decision in B. W. Harrison Lumber Co., BNA 4 OSHC 1091, CCH 1975 76 OSHD para. 20,623 (No. 2200, 1976), pet. for review filed, No. 76 2619, 5th Cir., June 14, 1976, does not require a contrary result. In that case, the Commissioners considered whether an uncontested citation was sufficiently particular to enable the Commission to determine whether the employer had failed to comply with its requirements, so as to justify the imposition of additional monetary penalties. Here, the question is how particular the citation should be when it becomes a final abatement order, and different considerations control.

Commission Rule 33(a)(2)(ii)

Judge Larkin also held, and Del Monte urges, that the Secretary’s complaint violates the particularity requirement of Commission Rule 33(a)(2)(ii). In pertinent part, the rule states:

Rule 33 Employer contests.

(a) Complaint

(2) The complaint shall set forth all alleged violations . . . which are contested, stating with particularity:

(ii) The time, location, place and circumstances of each such alleged violation;

(Emphasis added). We do not, however, give this rule a strict Commission construction. Our proceedings are formal adjudications subject to 5 U.S.C. 556 and 557. Hence, notice pleading is used. Allis-Chalmers Corp., supra. Rule 33(a)(2)(ii) must be considered in this context. In notice pleading an essential consideration is whether there is fair notice of the circumstances of the alleged violation that will permit a fair defense.

We hold that our rule had not been violated. Respondent knows when its plant was inspected, and has been sufficiently informed of the location and circumstances of the alleged violation to be put to its defense.

Even if the complaint were so lacking in particulars that the employer could not prepare his answer, dismissal would not necessarily be an appropriate avenue of relief. The employer may cure the problem by moving for a more definite statement under Fed. R. Civ. p. 12(e).[5] To prepare for trial, discovery may reveal whatever additional facts may be necessary. Also, the employer may test the sufficiency of the complaint by moving for dismissal under Fed. R. Civ. p. 12(b)(6). Because it did not yet appear beyond a reasonable doubt that the Secretary can prove no set of facts in support of his claim,[6] dismissal of the complaint was improper. proper. Smith’s Transfer Corp., BNA 3 OSHC 1088, 1974 75 OSHD para. 19,544 (No. 5786, 1975).[7]

The Judge’s order is therefore vacated, and the case is remanded for further proceedings. The Administrative Law Judge shall dispose of all pending motions and requests with expedition.

SO ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

EXECUTIVE SECRETARY

BY: Gloria W. White, Acting Executive Secretary

DATED: JAN 28, 1977

BARNAKO, Chairman, Concurring:

I join in the order for remand because our decision in Gannett Corporation, No. 6352, BNA 4 OSHC 1383, CCH OSHD para. 20,915 (May 3, 1976) requires that result. That is all that need be said, and I therefore do not join in my colleague’s discussion of the particularity issue.

MORAN, Commissioner, Concurring:

I agree with Chairman Barnako that this case should be remanded for the reasons set forth in Secretary v. Gannett Corporation, OSAHRC Docket No. 6352, May 3, 1976. As in the Gannett case, the limited record before us prevents us from determining whether the citation adequately informed respondent of the exact nature of the alleged violation in a manner which complies with the particularity requirements of 29 U.S.C. § 658(a).

It must be emphasized that respondent is free to renew its particularity argument on remand should the evidence indicate that the citation was not sufficiently precise to permit an informed decision on the question of filing a notice of contest, achieving required abatement, or preparing an adequate defense. Secretary v. B. W. Harrison Lumber Company, OSAHRC Docket No. 2200, April 14, 1975. An employer is not required to speculate on the scope of a citation. Brennan v. OSAHRC and Republic Creosoting Company, 501 F.2d 1196, 1201 (7th Cir. 1974).

The lead opinion, despite the use of the collective ‘we’ several times therein, represents only the views of Commissioner Cleary on the issue of particularity[8] insofar as they are not in consonance with, or go beyond, the Commission holding in the Gannett case. Respondent’s defense has not been rejected by this decision but has been merely postponed until a more informed determination as to its validity can be made.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 11865
DEL MONTE CORPORATION,
Respondent.

June 4, 1975

APPEARANCES:

Edwin A. Hernandez, Esquire, appearing for the United States Department of Labor, Atlanta, Georgia.

Allen M. Blake, Esquire, appearing for respondent, Tampa, Florida.

ORDER GRANTING MOTION TO DISMISS CITATION AND COMPLAINT

LARKIN, Judge

Respondent is a corporation doing business, among other places, at 2900 East 7th Avenue, Tampa, Florida. Its stock is listed on the New York Stock Exchange. As a result of an inspection made on December 17, 1974, by a compliance officer of the complainant, a citation was issued on December 24, 1974, alleging that respondent violated section 5(a)(2) of the Act for failure to conform with 29 CFR 1910.95(b)(1). The alleged violation is described in the citation as follows:

Failure to reduce sound levels below the values of Table G–16 by use of feasible administrative or engineering controls, thereby exposing employees to the hazard of excessive noise of the following areas:

A. Cannery

1. Cold Sort Area

2. Slicer Oscillator Area

3. Hot Sort Area

4. Filler (Solbern) Area

5. Can Closing (Canco) Area

B. Can Manufacturing

1. Slitters Area

2. Body Maker Area

3. Quality Control Area

4. Seamer Area

5. Palletizer Area

NOTE 1. Compliance Schedule:

Section 1910.95(b)(1) of 29 CFR states:

When employees are subjected to sound exceeding those listed in Table G–16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G–16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

Table G-16 Permissible Noise Exposures[9]
Duration per day, hours	Sound level dba response
8	90
6	92
4	95
3	97
2	100
1 ½	102
1	105
½	110

On January 17, 1975, respondent filed its notice of contest. Complainant filed his complaint on January 24, 1975. On March 11, 1975, respondent filed its answer in the form of a general denial together with a motion to dismiss the complaint. The parties briefed the motion and a hearing on the motion was held on April 23, 1975, in Tampa, Florida.

The respondent argues that the citation fails to meet the requirements of section 9(a) of the Act specifying as pertinent that ‘each citation shall be in writing and shall describe with particularity the nature of the violation . . .’

Respondent argues further that the complainant fails to meet the requirements of 29 CFR 2200.33(a)(2) of the Commission’s Rules of Procedure providing as pertinent as follows:

‘The complaint shall set forth all alleged violations and proposed penalties which are contested, stating with particularity:

(ii) The time, location, place and circumstances of each such alleged violation; . . .

The complainant argues that under the Federal Rules of Civil Procedure, practice and case law, its citation and complaint need only state generally the type of litigation involved and that pleadings before an administrative agency ‘. . . may be informal and the sufficiency of the statements therein is not to be measured by the requirements of a complaint or initial pleading in a court proceeding, whether civil or criminal.’

Respondent’s motion is granted.

Section 9(a) of the Act requires that the citation ‘shall describe with particularity the nature of the violation, . . .’ ‘Particularity’ is defined in Webster’s Dictionary as ‘the state, quality, or fact of being particular; specifically, the quality of being detailed or minute, as a description; attention to detail, minute exactness.’ 29 CFR 2200.33(2)(ii) of the Commission’s Rules of Procedure requires that the complaint state with particularity: ‘The time, location, place and circumstances of each such alleged violation; . . . ‘29 CFR 2200.2 of the Commission’s Rules of Procedure incorporates the Federal Rules of Civil Procedure only if a specific rule of the Commission is inapplicable.

The particularity of the alleged violation in the instant case has not been described to the respondent with ‘the quality of being detailed or minute’ in either the citation or complaint. Respondent has been advised only that the sound levels were excessive in specified areas. Respondent has not been advised, much less with any particularity, of the location of excessive noise levels within the above mentioned areas; the location of the equipment or source creating the alleged excessive noise; the specific time or duration of the sound levels; the dBA slow response; the Secretary’s application if any, of the footnote applicable to table G–16; or the employee or employees exposed. Respondent has not been advised of what constitutes ‘feasible administrative or engineering controls’ or in other words, the nature of the corrective action necessary to lower the noise levels to within the limits specified in table G–16 of the standard.

The reason the Congress required that the citation ‘shall describe with particularity the nature of violation’ is obvious. Upon receipt of the citation, section 10(a) of the Act gives the employer only fifteen working days to contest the citation or else it becomes a final order and is not subject to review or litigation even before the judiciary. If an employer is not given notice with particularity, he is in a quandary as to whether he is in violation of the Act or even whether the condition may be abated. Hence, he is forced to file a notice of contest in an attempt to obtain the ‘particulars’ of the alleged violation. The filing of the notice of contest may create legal complications not to mention extensive litigation costs otherwise avoidable if the citation is allowed to become final under section 10(a). For example, in the instant case, no penalty was proposed. However, under the Commission’s view, it may assess or increase a penalty even though the Secretary has proposed no penalty. Cf. Dale M. Madden Construction Inc. v. Hodgson and OSAHRC (CA 9, 1974) 502 F.2d 278. Such penalty under section 17 of the Act can be up to $1,000. If the employer allows the citation to become final by failing to contest, section 17 provides the penalty may amount to $10,000 per violation, if the violation is repeated or willful. The employer may be fined up to $1,000 per day for failure to abate the condition. If the Secretary prescribes immediate abatement of the alleged violation, the $1,000 penalty for failure to abate may apply even within the fifteen day working period provided for filing a notice of contest. Cf. Secretary of Labor v. OSAHRC and Kesler & Sons Construction Co. —— F.2d —— No. 74 1518, March 28, 1975. These references are to civil penalties only and do not include possible criminal sanctions under section 17 of the Act. Certainly, under such far reaching provisions, Congress intended that an employer is entitled to receive proper initial notification and a notice in strict conformance with the particularity requirements of section 9(a) of the Act. As stated by the United States Court of Appeals for the Seventh Circuit in Secretary of Labor v. OSAHRC and Republic Creosoting Company (1974, 501 F.2d, page 1201):

‘Employers subject to safety orders carrying the possibility of substantial penalties should not have to speculate as to the scope of a citation Imprecise orders, of course, run the risk of being set aside but resort to the expenses, delays, and uncertainties of litigation should not be necessary.’

It is concluded that Congress meant the word ‘particularity’ to be used in its common usage and definition to mean as stated in Webster’s ‘. . . specifically the quality of being detailed or minute, as a description; attention to detail; minute exactness.’

The complainant’s failure to describe the violation with particularity in the instant case must result in dismissal of the citation and complaint.

In view of the granting of respondent’s motion to dismiss, the other motions and issues raised need not be reached.

Wherefore it is ORDERED:

The citation issued on December 24, 1974, and the complaint filed on January 17, 1975, are dismissed with prejudice.

Dated this 4th day of June, 1975.

JOHN J. LARKIN

Judge OSAHRC

[1] The Commission recently rejected this defense in Turner Co., No. 3635 (August 24, 1976).

[2] The motion followed an unanswered request by the Secretary to enter upon Del Monte’s land for discovery purposes.

[3] We note that Del Monte could have received clarification of the citation at earlier stages of this case. Under the procedures prescribed by 29 CFR 1903.19, Del Monte could have requested an informal conference with OSHA’s Assistant Regional Director to discuss ‘any issues raised by [a] . . . citation . . ..’ The appropriate OSHA officials could then have issued an amended citation (see e.g., Acme Metal, Inc., BNA 3 OSHC 1932, CCH 1975 76 OSHD para. 20,364 (Nos. 1811 & 1931, 1976)), or could have, in accordance with Commission Rule 33(a)(3), amended the citation in the complaint. Henkels & McCoy, Inc., BNA 4 OSHC 1502, CCH 1976 77 OSHD para. 20,944 (No. 8842, 1976) (lead and concurring opinions). If no contest of the citation had been filed, the particularity issue could have been raised in a failure to abate proceeding under the divided Commission decision in B.W. Harrison Lumber Co., BNA 4 OSHC 1091, CCH 1975–76 OSHC para. 20,263 (No. 2200, 1976), petition for review filed, No. 76–2619, 5th Cir., June 14, 1976.

[4] In other words, because the filing of Del Monte’s notice of contest tolls any abatement period, it does not detract from the Act’s goal of prompt abatement to postpone consideration of a particularity objection until threshold questions of legal rights and obligations of the parties giving rise to this dispute are resolved. See 5 U.S.C. 554(e). Cf. American Airlines, Inc., No. 6706 (August 24, 1976).

[5] That rule states in pertinent part as follows:

(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. . . .

[6] The Secretary must show that employees were or are being subjected to excessive noise levels and that the employer failed to use feasible engineering or administrative controls. See generally the Commission’s divided decision in Continental Can Co., Inc., Nos. 3973, etc. (August 24, 1976). The controls need not reduce employee exposure to Table G 16 limits. Id.

[7] I have examined my colleagues’ concurring opinions, and I respectfully suggest that Gannett does not meet all of the contentions made by Del Monte. For example, respondent argues that the Judge’s action here is consistent with Commission Rule 33(a)(2)(ii); that the particularity requirement of section 9(a) requires that all of the elements of a noise violation be described in minute detail; and that forcing an employer to contest a citation simply to be informed of what he must abate, and thereafter awaiting the outcome of the litigation before the necessary facts are stated with particularity, frustrates the Congressional goal of prompt abatement. These contentions go far beyond the narrow holding and analysis of Gannett.

[8] Chairman Barnako specifically disassociates himself from Commissioner Cleary’s discussion on this issue. So do I. Consequently, the lead opinion of Commissioner Cleary is simply a separate concurrence to the Commission’s majority opinion in this case which, for reasons beyond my comprehension, is stated in the ‘concurring’ opinion of Barnako and Moran.

[9] When the daily noise exposure is composed of two or more periods of noise exposures of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C1/T1+,c2/T2+ . . . Ca/Ta exceeds unity, then, the mixed exposure should be considered to exceed the limit value. Cn indicates the total time of exposure at a specified noise level, and In indicates the total time of exposure permitted at that level.

Exposure to impulsive or impact noise should not exceed 140 DB peak sound pressure 140 dB peak sound pressure.