OSHRC Docket No. 76-1463

Occupational Safety and Health Review Commission

September 7, 1979


Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

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

H. Lane Dennard, Jr., for the employer




CLEARY, Chairman:

By order dated November 17, 1976, Administrative Law Judge John S. Patton granted a motion by respondent, Meadows Industries, to dismiss the citation and complaint in this case. That order is before us pursuant to section 12(j) of the occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"]. For the reasons below, we reverse that order and remand the case for further proceedings.

Respondent operates a yarn twisting plant in Milledgeville, Georgia. On March 18, 1976, an authorized representative of the Secretary of Labor ["the Secretary"] conducted an inspection of respondent's plant pursuant to section 8(a) of the Act. As a result of that inspection, a citation was issued on March 23, 1976, alleging that respondent had violated the occupational safety and health standard found at 29 CFR 1910.95(b)(1) n1 by failing to use feasible engineering and administrative controls to protect its employees [*2] from exposure to excessive noise levels in the primary and secondary twisting areas of its plant. A timely notice of contest was filed and the Secretary filed a complaint setting forth the allegations in the citation.

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n1 29 CFR 1910.95(b)(1) provides:

(b)(1) 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 omitted]

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A hearing was held before Judge Patton on September 22, 1976. At that hearing, respondent moved to dismiss the citation on the grounds that it failed to meet the requirements of section 9(a) of the Act because it failed to state with particularity the noise levels found at the plant or the exact locations where they were found. In support of its motion, respondent cited the Commission's decision in B.W. Harrison [*3] Lumber Company, 76 OSAHRC 49/A2, 4 BNA OSHC 1091, 1975-76 CCH OSHD P20,623 (No. 2200, 1976), aff'd sub nom. Marshall v. B.W. Harrison Lumber Company, 569 F.2d 1303 (5th Cir. 1978). The judge found that B. W. Harrison was controlling and dismissed the citation and complaint.

We reverse. This case is not governed by our decision in B. W. Harrison. That decision addressed itself to the sufficiency of a prior uncontested citation for the purposes of a subsequent failure to abate action. We specifically declined to rule on other situations, such as the one in this case. Moreover, that decision stated:

The test of particularity is whether the citation provided fair notice of the alleged violation. In determining whether fair notice has been afforded, consideration may be given to factors external to the citation, such as the nature of the alleged violation, the circumstances of the inspection, and the employer's knowledge of his own business.

The particularity requirement of section 9(a) does not require minute detail; it requires only that the employer be given fair notice of the general locations of excessive noise levels. Del Monte Corporation, [*4] 77 OSAHRC 17/D12, 4 BNA OSHC 2035, 1976-77 CCH OSHD P21,536 (No. 11865, 1977). The citation here was sufficiently particular to accomplish that purpose. Meadows was put on notice as to the nature of the violation and the general locations in its plant at which the excessive noise levels were found.

Even if we were to find that the citation was not sufficiently particular, dismissal of the complaint would not be proper. Lack of particularity in a citation may be cured at the hearing. Marshall v. B.W. Harrison Lumber Company, supra, at 1308; R.E.A. Express, Inc. v. OSHRC, 495 F.2d 822, 826 (2d Cir. 1974); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973). Whether a citation gives an employer fair notice of the nature of the alleged violation does not depend solely on the language of the citation but may be determined from factors external to the citation, such as the circumstances surrounding the inspection or the employer's familiarity with his own business. Gannett Corporation,    OSAHRC   , 4 BNA OSHC 1383, 1976-77 CCH OSHD P20,915 (No. 6352, 1976). Furthermore, available discovery procedures enable a respondent to obtain [*5] sufficient additional information about the alleged violations to remedy any lack of particularity in the citation and complaint. n2 Therefore, as the Commission stated in its decision in Gannett, the preferable course for the administrative law judge to have followed was to compile a complete record and then to determine whether the respondent was prejudiced by any lack of particularity in the citation.

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n2 In this respect, the instant case differs from B. W. Harrison, where the citation was not contested and no hearing was held. Subsequently, a failure-to-abate action was brought. At that point, Harrison maintained that it was unable to abate based on the information furnished by the Secretary in the initial citation.

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At the hearing, respondent made a motion to suppress the Secretary's evidence on the grounds that the inspection was an unconstitutional search under the fourth amendment. n3 The judge correctly stated that he did not have the authority to rule on he constitutionality of the Act. n4 Since [*6] then, on May 23, 1978, the United States Supreme Court has issued its decision in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), which held the Act's inspection provision unconstitutional to the extent that it authorizes warrantless inspections without the consent of the employer. The Court expressed the opinion that "the great majority of businessmen can be expected in normal course to consent to inspection without warrant." 436 U.S. at 316. n5

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n3 The fourth amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

n4 See Chromalloy American Corp., No. 77-2788 (July 17, 1979).

n5 In Schneckloth v. Bustamonte, 412 U.S. 218, (1973), the Court held that "whether consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." 412 U.S. at 227. One such circumstance, for example, would be misrepresentation. Bumper v. North Carolina, 391 U.S. 543 (1968).


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The inspection of Meadows' plant took place in 1976. Barlow's was announced in 1978. Thus, the relevant inquiry concerning respondent's fourth amendment argument is whether the exclusionary sanction for fourth amendment violations applies to OSHA inspections conducted before the Court's decision was issued, when the respondent had timely objected, on fourth amendment grounds, to a warrantless inspection.

Recently, two courts of appeals have addressed the question whether Barlow's should be given retroactive application. Although they followed different reasoning, both courts arrived at the same result, that the exclusionary sanction for fourth amendment violations would not be applied to OSHA inspections which took place prior to the announcement of the Barlow's decision.

In Todd Shipyards v. Secretary, 586 F.2d 683 (9th Cir. 1978), the United States Court of Appeals for the Ninth Circuit found that the Supreme Court has manifested its intention that the Barlow's warrant requirement was to apply retroactively. The court went one step further and examined the remedy available [*8] for an unconstitutional warrantless search. It concluded that the exclusionary rule could not be applied retroactively to an OSHA inspection which took place before Barlow's was announced. The court drew the distinction between Barlow's and the case before it because in Barlow's the employer sought declaratory and injunctive relief before any inspection took place. Consequently the Barlow's opinion had no occasion to discuss the exclusionary rule. The Todd court observed that the Supreme Court has never applied the exclusionary rule in a civil proceeding and that the Supreme Court has never given retroactive application to any of its fourth amendment decisions regarding the scope of the exclusionary rule. The court stated that the exclusionary rule is not a personal right but a judicially-created remedy to protect fourth amendment rights by deterring unlawful police conduct. It concluded that the deterrent effects of the exclusionary rule would not be enhanced by application of the rule to governmental activities which took place before the Barlow's decision.

Therefore, the court's holding was that the exclusionary rule could not be applied retroactively, [*9] so that, even if there were a fourth amendment defect in the inspection, that defect would not be grounds to prohibit the introduction of evidence gathered during that inspection. The court expressly declined to determine whether the exclusionary rule applies to Review Commission proceedings or whether the inspection in Todd violated the Barlow's standard.

In Savina Home Industries v. Secretary, 594 F.2d 1358 (10th Cir. 1979), the Court of Appeals for the Tenth Circuit examined the applicability of the exclusionary rule to Commission proceedings under the Act. The court reasoned that, even if the Barlow's warrant requirement is retroactive, there would be no remedy for a constitutional violation if the exclusionary rule does not apply. The Tenth Circuit reasoned that, if the exclusionary rule does not apply retroactively, it would therefore make no difference to the outcome of the case whether the Barlow's requirement applies retroactively or not.

Like the Ninth Circuit, the court recognized that the Supreme Court has never specifically determined whether the exclusionary rule applies in civil cases. It noted, however, that the Supreme Court had applied the [*10] rule in "quasi-criminal" cases and that several lower courts had applied it in various civil and administrative cases, and the court expressed the view that the exclusionary rule would apply in Review Commission proceedings.

The court then inquired whether the exclusionary rule would apply to a pre-Barlow's inspection. It concluded that the purpose of the exclusionary rule, to deter unlawful government action, would not be furthered by retroactive application of the exclusionary rule to pre-Barlow's OSHA inspections. The court stated that actual or constructive knowledge by an official that his conduct is unconstitutional is crucial to a retroactive application of the exclusionary rule, under Supreme Court precedent. The court of appeals found that the compliance officer conducting the inspection in the case before it had no reason to know that his warrantless inspection was not constitutional, because the state of the law at the time of the inspection did not give him notice that a warrantless inspection was unconstitutional.

In both Todd and Savina, then, the courts held that the exclusionary rule will not be applied retroactively to pre-Barlow's inspections, [*11] although the decisions followed different reasoning. Regardless of the approach taken, we believe that their conclusion is correct, that the exclusionary rule does not apply to inspections which were conducted prior to the announcement of the Supreme Court's Barlow's decision. Consequently, an OSHA inspection which took place prior to the date Barlow's was announced and which was conducted in violation of the warrant requirement set out in Barlow's cannot result in the exclusion of evidence gathered as a result of that inspection.

This conclusion is consistent with the Supreme Court's decision in U.S. v. Peltier, 422 U.S. 531 (1975), where the Court said:

Since 1965 this Court has repeatedly struggled with the question of whether rulings in criminal cases should be given retroactive effect. In those cases "[where] the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials," (citation omitted) the doctrine has quite often been applied retroactively. It is indisputable, however, that in every [*12] case in which the Court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the factfinding process, the Court has concluded that any such new constitutional principle would be accorded only prospective application. (footnote and citations omitted)

422 U.S. at 535. The Court has indicated that the rationale behind this decision is that "the 'prime purpose' of the rule, if not the sole one, 'is to deter future unlawful police conduct.'" (emphasis added) U.S. v. Janis, 428 U.S. 433, 446 (1976).

Consistent with the decisions in Todd and Savina, we conclude that the fourth amendment principles announced in Barlow's on May 23, 1978, are without retroactive remedy. Therefore, respondent's motion to suppress cannot prevail.

Accordingly, this case is remanded for further proceedings consistent with this Order.



BARNAKO, Commissioner, Concurring:

I agree with the majority that it is not proper to apply the exclusionary rule retroactively in Commission proceedings which arise out of inspections [*13] conducted prior to the Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). Accordingly, I join in my colleagues' ruling denying Respondent's motion to suppress. I disagree, however, with the majority's conclusion that the citation on its face satisfied the particularity requirement of the Act, 29 U.S.C. 659(a), and would remand for an evidentiary hearing on the particularity issue as well as for proceedings on the merits of the contested citation.

The citation at issue in this case alleged that Respondent failed to utilize feasible engineering or administrative controls to protect employees from noise levels in excess of Table G-16 at the "secondary twisting area and primary twisting areas." As the majority states, Respondent moved to dismiss on the ground that this citation was defective for failing to state either the noise levels measured by the Secretary's inspector or their specific locations. In concluding that the judge erred in granting the motion, my colleagues hold that the Act requires only that the employer be given notice of the "general" locations of the noise levels alleged to be excessive. They hold that the citation at issue on its [*14] face accomplished that purpose. And even in the event that the citation on its face failed to provide sufficient information, they hold that dismissal was not appropriate because circumstances external to the citation itself may indicate that the employer nevertheless had fair notice of the nature of the alleged violation. Furthermore, my colleagues reason that lack of particularity may be "cured" at the hearing or that the employer may through appropriate discovery procedures obtain the information lacking in the citation.

While I agree with my colleagues that a citation alleging a violation of the noise exposure standard, 29 C.F.R. 1910.95, need not set forth the specific noise levels measured by the Secretary's inspector, I would require that such a citation state the precise locations of the allegedly excessive noise levels in terms of either the machinery that is generating those levels of noise or the employee work stations affected, unless the circumstances are such that the employer was otherwise aware of those locations at the time the citation was issued. Wheeling-Pittsburgh Steel Corp., No. 14702, Aug. 8, 1979 (concurring opinion). I do not agree with my colleagues' [*15] opinion to the extent that they hold that an otherwise defective citation may be cured by information obtained by the employer during adjudication, through discovery or other means. Wheeling-Pittsburgh Steel, supra, slip op. at 23 n.2.

As noted above, the citation issued to Respondent alleged that the violations occurred at the secondary twisting area and the primary twisting areas. Because the record does not indicate the nature of these areas, I am unable to determine whether the apparently general description in the citation of the "areas" of the allegedly excessive noise levels was nevertheless sufficient when the citation was issued. Accordingly, I would remand for an evidentiary hearing not only on the merits of the contested citation but also on the particularity issue to determine whether factors external to the citation indicate that the employer had fair notice of the nature of the alleged violation at the time the citation was issued. Such factors as the circumstances surrounding the inspection, the nature of the employer's operations, and the employer's knowledge of those operations should be considered in deciding whether the citation was sufficiently [*16] particular when it was issued. See Gannett Corp., 4 BNA OSHC 1383, 1976-77 CCH OSHD P20,815 (No. 6352, 1976). n1

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n1 When Respondent made its motion to dismiss before the judge, its counsel also stated that in the event the judge ruled in Respondent's favor, Respondent nevertheless desired to proceed with the hearing and present evidence "so there will be alternative grounds for our defense in this case." In response, the judge indicated that he was inclined to grant Respondent's motion but would take it under advisement and proceed in order to avoid the need for a remand should his eventual ruling be reversed. The Secretary's counsel, however, asked that the judge rule immediately on the motion to dismiss. Before us on review, Respondent argues that the Secretary "refused" to proceed with the hearing and therefore has waived the right to an evidentiary hearing on the particularity issue.

I would reject Respondent's arguments. As my colleagues state, the preferred practice would have been for the judge to defer ruling on the particularity issue until completion of an evidentiary record on all issues in the case. Cf. Harrington Constr. Corp., 77 OSAHRC 7/B3, 4 BNA OSHC 1471, 1976-77 CCH OSHD P20,913 (No. 9809, 1976) (except in unusually obvious cases, judges should defer ruling on motions to dismiss made at the close of the Secretary's case until the close of all the evidence in order to avoid the need for a remand in the event the ruling is thereafter reversed). Indeed, the judge originally indicated that he intended to follow the preferred practice. However, unlike Respondent I do not construe the actions of Secretary's counsel as a "refusal" to proceed with the case. At no time did counsel state that he was unwilling or unable to participate in an evidentiary hearing. Moreover, had the judge ruled in favor of the Secretary, that is, had he denied Respondent's motion, the case would have proceeded to a hearing in any event for disposition of the merits of the alleged violation.


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