OSHRC Docket Nos. 7855; 10561; 12069; 76-974

Occupational Safety and Health Review Commission

December 12, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, 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 employer




BARNAKO, Commissioner:

These cases n1 present the issue of whether Respondent's motions for summary judgment based on the argument that the Commission's decision in Continental Can Co., Inc., 76 OSAHRC 109/A2, 4 OSHC 1541,1976-77 OSHD para. 21,009 (1976), pet. for review withdrawn, No. 76-3229 (9th Cir., Apr. 26, 1977) (hereinafter "Continental Can 1") effects a collateral estoppel against further prosecution of alleged occupational noise violations should be granted.   Judge Robert Burchmore granted Respondent's motion in No. 12069, and that case is before us for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.).   Judge Alan Weinman denied the motion in Nos. 7855 and 10561 and certified the issue for interlocutory appeal. Judge George Otto also denied the   [*2]   motion in No. 76-974, and the Commission granted Respondent's motion for interlocutory appeal. For the reasons below, we deny Respondent's motions for summary judgment and remand all cases for further proceedings.

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n1 The various docket numbers relate to can plants in the following locations: 7855 (Omaha, Nebraska), 10561 (Tampa, Florida), 12069 (St. Louis, Missouri), 76-974 (Glendale, Wisconsin).   The first three docket numbers have previously been consolidated for review purposes pursuant to a joint motion of the parties.   Since docket 76-974 presents an identical question, we hereby consolidate it with the others for decisional purposes pursuant to 29 C.F.R. 2200.9.

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In each case, Respondent was cited for allegedly violating the noise standard at 29 C.F.R. 1910.95(b)(1) n2 by failing to institute feasible engineering and administrative controls to reduce noise exposure to employees.   The citations were based on inspections at four can manufacturing plants within Respondent's Metal Division.   Various other can manufacturing [*3]   plants in the Metal Divison had been involved in the citations in Continental Can 1. n3

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n2 29 C.F.R. 1910.95(b)(1) provides:

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 Exposure

Duration per day, hours

Sound level dBA slow response











1 1/2






1/4 or less



n3 In Continental Can 1, eight dockets were consolidated.   Three of the plants were located in California, one in Mississippi, and four in Ohio.   Respondent adduced evidence on the cost of instituting enclosures as to the California plants and as to the entire Metal Division.   The parties stipulated that the record developed as to the California plants would govern the eight facilities.

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In Continental Can 1, the record showed that each plant in the Metal Division contains a number of machines used in the production of metal cans.   Each machine generates a certain amount of noise, and the noise levels resulting from all the machines operating together exceed the limits permitted by the standard.   According to Respondent's classification, there are fifty different types of machines and nineteen families of basically similar machines. The various plants in the Metal Division contain different numbers and mixes of the various types of machines.

The Secretary proved that the ambient noise levels could be reduced substantially by the installation of acoustical enclosures around the machines. He specifically declined to present evidence concerning the cost of such enclosures, contending that such evidence was not relevant to the question of their feasibility as long as the cost was not so great as to threaten Respondent's financial he 1th.   The Secretary contended that, by showing the technical feasibility of enclosures, he had proven that Respondent violated the standard.

Respondent's evidence showed that the development, fabrication, and installation [*5]   of effective enclosures for all the machines in its Metal Division would cost approximately $33,000,000, and that the annual cost of maintaining the enclosures would be $175,000.   The Metal Division required employees exposed to excessive noise to wear personal hearing protection equipment; the cost of providing such protection was $100,000 per year. n4

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n4 Respondent also presented evidence concerning the costs of engineering controls and personal protective equipment in several of the individual plants.

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Respondent agreed that the cost of enclosures would not jeopardize its financial health, but contended that their installation should nevertheless not be required.   It argued that if the standard was interpreted as suggested by the Secretary, it was arbitrary and capricious in preferring the use of costly engineering controls to the use of inexpensive personal protective equipment, and was therefore invalid.   Alternatively, Respondent argued that the standard should be interpreted to require only those engineering [*6]   controls which are economically feasible, and that the large cost differential between enclosures and personal protective equipment rendered the enclosures economically infeasible. n5

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n5 With regard to the evidence on cost of enclosures, the Secretary maintains in this case that Respondent's evidence in Continental Can 1 was admitted for the limited purpose of establishing Respondent's defense that 1910.95(b) arbitrarily prefers engineering controls over personal protective equipment.   However, Respondent consistently made the argument in Continental Can 1 that economic factors must be considered in evaluating the feasibility of enclosures. Hence, the evidence adduced by Respondent also went to the economic feasibility of enclosures.

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A divided Commission upheld the validity of the standard, but rejected the Secretary's interpretation insofar as it concerned the scope of his burden of proof. A majority of the Commission held that the word "feasible" in the standard requires proof that engineering controls [*7]   are economically feasible, and that economic feasibility is to be determined by weighing the cost of controls against the benefits they would achieve.   See Castle & Cooke Foods, Docket No. 10925, 5 OSHC 1435, 1977-78 OSHD para. 21,854 (May 19, 1977).   The Commission also held that, since the Secretary has the burden of proving a violation, he must establish the existence of economically as well as technologically feasible controls.   Since the Secretary had declined to introduce evidence to prove economic feasibility as the Commission subsequently required, and since the record as a whole including Respondent's evidence did not demonstrate the economic feasibility of engineering controls, the Commission held that the Secretary had not sustained his burden of proving by a preponderance of the evidence that the standard was violated.

In the cases now before us, Respondent moved before a hearing on the merits for summary judgment, arguing that the Secretary is collaterally estopped from relitigating the economic feasibility of controls since, says Respondent, the feasibility of controls as to the entire Metal Division was tried and decided in Continental Can 1. The parties are [*8]   in essential agreement that collateral estoppel acts to preclude the relitigation of matters arising out of different claims where both adjudications involve the same issue and the issue was litigated and decided as material to the judgment in the first adjudication.   They differ, however, in their application of this doctrine to the cases before us.

In arguing that collateral estoppel applies, Respondent first contends that the issue of economic feasibility of controls is identical in both proceedings because the cited plants are all part of the overall Metal Division, use the same families of machines, n6 and the various engineering and administrative controls were all known at the time of the first proceeding.   Respondent also contends that the Secretary did litigate, albeit ineffectually, the issue of economic feasibility in Continental Can 1. It further argues that collateral estoppel should apply even if the Secretary did not actually litigate the issue of economic feasibility since he was on notice that Respondent was litigating the issue and he had the opportunity to litigate it.

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n6 In support of this contention, Respondent submitted an affidavit by its Metal Division's manager of training and safety which states that all of the equipment at issue in the plants is of the types included in Respondent's evidence on cost-feasibility in Continental Can 1.


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The Secretary argues that collateral estoppel should not prevent the litigation of economic feasibility in the instant cases.   He contends that the issue of economic feasibility presented in the instant cases is not identical to that presented in Continental Can 1 since the first proceeding involved the feasibility of enclosures in certain can plants whereas the instant cases involve the feasibility of other engineering and administrative controls in totally different plants. n7 The Secretary also contends he did not recognize that economic feasibility was part of his burden of proof and therefore did not litigate the issue in the prior case.

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n7 In support of this contention, the Secretary submitted an affidavit by an acoustical consultant which states that there are significant differences in operations, plant layout, and equipment between Respondent's plants, and that the differences affect the general approach of noise reduction and the feasibility of controls.

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Having considered the parties' arguments, we conclude that the requirements for the application of collateral estoppel have not been met and that the Secretary is not precluded from litigating the issue of the economic feasibility of engineering and administrative controls in the cases now before us.

First, the defense that a party is collaterally estopped from relitigating an issue is limited to "situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding." Commissioner v. Sunnen, 333 U.S. 591, 597-8 (1948). We cannot conclude on the record before us that the issue of economic feasibility raised in Continental Can 1 is identical to that presented in the instant cases.   The only type of engineering control litigated in Continental Can 1 was enclosures. The affidavit submitted by the Secretary (See n.7) suggests that other types of controls may be feasible in the plants involved in the present cases.   Thus, at the very least there exists a material issue of fact concerning whether controls other than exclosures are feasible, a question not litigated in Continental Can    [*11]   1. Accordingly, this matter is inappropriate for summary judgment. Fed. R. Civ. P. 56(c).   For this reason alone, it would be necessary to deny Respondent's motions for summary judgment.

The question remains, however, whether the Secretary may litigate the economic feasibility of enclosures in the present cases.   We conclude that he may.

Collateral estoppel attaches only to issues which have actually been litigated by the parties.   As the Supreme Court stated in Commissioner v. Sunnen, supra:

But where the second action between the same parties is upon a different cause or demand, the principle of res judicata is applied much more narrowly.   In this situation, the judgment in the prior action operates as an estoppel, not as to matters which might have been litigated and determined, but "only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. ". . .   Since the cause of action involved in the second proceeding is not swallowed by the judgment in the prior suit, the parties are free to litigate points which were not at issue in the first proceeding, even though such points might have been tendered and [*12]   decided at that time.   But matters which were actually litigated and determined in the first proceeding cannot later be relitigated.   Once a party has fought out a matter in litigation with the other party, he cannot later renew that duel.   333 U.S. at 597-8 (citations omitted).

In our judgment, the Secretary did not actually and fully litigate the economic feasibility of enclosures in Continental Can 1. Respondent raised the issue of economic feasibility in the earlier case, but the Secretary consistently took the position that economic considerations were irrelevant to the feasibility of controls unless the cost of controls would seriously jeopardize Respondent's financial health.   The Secretary therefore did not adduce evidence relevant to the costs and benefits of engineering controls.   His failure to litigate the issue was consistent with the prior case law involving alleged noise violations; the Commission had not previously held that cost and benefit factors were relevant to determining whether engineering controls were feasible as that term is used in the cited standard nor had it assigned the burden of proof on the issue to the Secretary.   Accordingly, even though the [*13]   Secretary had the technical opportunity to litigate the economic feasibility of enclosures in the sense that Respondent injected the issue into the case, he did not in fact litigate the issue, and is therefore not collaterally estopped from litigating it now.   Commissioner v. Sunnen, supra; See also James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451 (5th Cir. 1971), cert. denied, 404 U.S. 940 (1971); Michini v. Rizzo, 379 F. Supp. 837 (E.D. Pa. 1974), aff'd 511 F.2d 1394 (3d Cir. 1975).

Respondent argues, however, that rather than failing to litigate the issue at all the Secretary merely failed to present his case on economic feasioility effectively.   However, the cases relied upon by Respondent in support of its argument n8 all involve instances where the party which lost on the issue in the earlier case had acknowledged that the issue was in contention and had litigated the issue.   Thus, those cases are distinguishable from the cases before us.

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n8 Tait v. Western Maryland Railway Co., 289 U.S. 620 (1933); James Talcott, Inc. v. Allahabad Bank, Ltd., supra; Jones v. U.S., 466 F.2d 131 (10th Cir. 1972), cert. denied, 409 U.S. 1125 (1973).


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Respondent's argument that the Secretary is precluded from relitigating economic feasibility since he should have litigated that issue in Continental Can 1 also misses the mark.   The doctrine of collateral estoppel applies only where the party has litigated an issue, not where the issue could have been litigated but was not.   Commissioner v. Sunnen, supra. The case relied upon by Respondent in support of this argument deals with res judicata as opposed to collateral estoppel. n9

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n9 MacDonnell v. Capital Co., 130 F.2d 311 (9th Cir. 1942), cert. denied 317 U.S. 692 (1942).

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Moreover, the doctrine of collateral estoppel applies only where there has not been an intervening modification or growth in legal principles rendering the prior determination erroneous.   The Supreme Court stated this requirement in Commissioner v. Sunnen, supra as follows:

A taxpayer may secure a judicial determination of a particular tax [*15]   matter, a matter which may recur without substantial variation for some years thereafter, But a subsequent modification of the significant facts or a change or development in the controlling legal principles may make that determination obsolete or erroneous, at least for future purposes. . .   Collateral estoppel is designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally.   It is not meant to create vested rights in decisions that have become obsolete or erroneous with time, thereby causing inequities among taxpayers.   333 U.S. at 599.

The Secretary acknowledges that the law enunciated in Continental Can 1 has not itself been rendered erroneous by an intervening case.   Rather, he argues by analogy that at the time of the hearing in that case, the Commission had not resolved the issue of economic feasibility so that he was not on notice that he should raise and litigate economic feasibility. He argues, in effect, that Continental Can 1 constituted an intervening modification of law between the rule of law on which the Secretary relied in litigating Continental Can 1 and the new [*16]   rule of law applicable after that case was decided.   Respondent counters by arguing that the intervening case doctrine literally requires an intervening case between the earlier case and the later case, and that has not happened here.

While we agree that the intervening case doctrine is not directly applicable, we conclude that the analogy the Secretary seeks to establish is valid.   The rationale of the intervening case doctrine is one of fairness.   The doctrine avoids the unjust result of mechanically attaching collateral estoppel to a case which is no longer good law.   It would be equally unfair to attach a collateral estoppel effect to an issue which was litigated in a different context than that presently prevailing.   In Continental Car 1, the Secretary litigated the issue of feasibility in the same manner he had done in prior cases.   The articulation of the Secretary's burden of proof as to economic feasibility was made only after the hearing.   Accordingly, to apply collateral estoppel would unfairly preclude the Secretary from seeking to meet the burden of proof placed on him by the clarification in the law articulated in Continental Can 1.

Respondent makes the final [*17]   contention that if the Secretary is not collaterally estopped from litigating the issue of economic feasibility in the cases before us, Respondent will be faced with endless litigation inasmuch as it maintains numerous can plants in its Metal Division, all of which contain similar equipment and face similar noise problems.   However, for the reasons discussed above, we conclude that collateral estoppel does not apply here only because the requirements for its application are not present in this case.   This is not to say hat collateral estoppel may never be invoked by Respondent to preclude the relitigation of an issue such as economic feasibility. n10 After all, the concept of collateral estoppel and res judicata "rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations." Commissioner v. Sunnen, supra, 333 U.S. at 597. These considerations would not be served by permitting repetitious suits alleging noise violations in all Respondent's plants where the only significant difference in circumstances is that different plants are involved.

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n10 We do, however, find some force in the Secretary's argument that collateral estoppel should not be applied inflexibly to adjudications under the Act.   The public policy behind the principle is that matters once tried be considered settled between the parties, regardless of the correctness or incorrectness of the original decision.   This policy must be weighed against the competing consideration of the remedial purpose of the Act in each case.   See Spilker v. Hankin, 188 F.2d 35, 38-39 (D.C Cir. 1951). A rigid application of collateral estoppel might significantly narrow the protection of employees that the Act seeks to afford.

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Accordingly, we deny Respondent's motion for summary judgment in each case and remand for further proceedings.   It is so ORDERED.

J. P. Eckman, Regional Manager of Manufacturing, Continental Can Company, Inc., 5745 East River Road, Chicago, Illinois 60631

Alan M. Wienman, Judge, Occupational Safety & Health Review Commission, 1114 Market Street, St. Louis, Missouri 63101

George W. Otto, Judge, Occupational Safety & Health Review Commission,   [*19]   55 East Monroe Street, Room 1530, Chicago, Illinois 60603