628 F.2d 982 (7th Cir. 1980), 79-2035, International Harvester Co. v. Occupational Safety and Health Review Com'n

Docket Nº79-2035.
Citation628 F.2d 982
Party NameINTERNATIONAL HARVESTER COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and The Secretary of Labor, Respondents. Local 6, United Automobile, Aerospace and Agricultural Implement Workers ofAmerica, Intervening Respondent.
Case DateJune 16, 1980
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 982

628 F.2d 982 (7th Cir. 1980)

INTERNATIONAL HARVESTER COMPANY, Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and The

Secretary of Labor, Respondents.

Local 6, United Automobile, Aerospace and Agricultural

Implement Workers ofAmerica, Intervening Respondent.

No. 79-2035.

United States Court of Appeals, Seventh Circuit

June 16, 1980

Argued May 9, 1980.

[*]

Page 983

Ronald J. Hein, Jr., Chicago, Ill., for petitioner.

John A. Amodeo, U. S. Dept. of Labor, Washington, D. C., for respondents.

Jerome Schur, Chicago, Ill., for intervening respondent.

Before SPRECHER and BAUER, Circuit Judges, and EAST, Senior District Judge. [**]

SPRECHER, Circuit Judge.

Petitioner International Harvester Company (Harvester) seeks review of an order of the Occupational Safety and Health Review Commission (OSHRC) finding it in violation of 29 C.F.R. § 1910.95(b)(1). 1 Harvester urges reversal of the order on three

Page 984

alternate bases. First, it asserts that this action is barred by res judicata. Second, Harvester contends that the OSHRC erred in concluding that engineering noise controls are technologically feasible for use in the production engine test department of its Melrose Park facility. Finally, Harvester argues that the OSHRC erred in concluding that such controls are economically feasible for use in that department. We find Harvester's arguments without merit and accordingly affirm the order of the OSHRC.

I

Harvester's contention that this action is barred by the doctrine of res judicata is wholly without merit. We mention only several of many factors making application of that doctrine inappropriate in this case.

Res judicata is applicable only when "a court of competent jurisdiction has entered a final judgment on the merits of a cause of action . . .." Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948). The doctrine is similarly formulated in the context of administrative agency actions:

When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.

U. S. v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966). Application of these fundamental principles in this case requires rejection of Harvester's argument.

Harvester's assertion that the issue presented in this action "has been fully, finally and exhaustively litigated before the Review Commission," Brief of Petitioner at 26, is without support in the record. In both prior actions cited by Harvester, the issue of Harvester's compliance with noise exposure regulations was not litigated or decided on its merits because Harvester chose not to contest the citations. Neither administrative action resolved any relevant "disputed issues of fact." Utah Construction, supra, 384 U.S. at 422, 86 S.Ct. at 1560. The Administrative Law Judge presiding over the 1972 action did not weigh the evidence to determine whether Harvester had failed to implement feasible administrative or engineering noise controls; the issue faced by the ALJ was whether to grant Harvester's motion to withdraw its notice of contest. Secretary v. International Harvester Co., 2 O.S.A.H.R.C. 81, 90-92 (1972). The decision to grant the motion did not involve resolution of any factual issues and was not a decision on the merits; it has no res judicata effect in this case where the feasibility issue has been contested by Harvester and decided by the OSHRC on its merits after compilation of an extensive record. Cf. U. S. v. International Building Co., 345 U.S. 502, 505-06, 73 S.Ct. 807, 808-809, 97 L.Ed.2d 1182 (1953); Anderson, Clayton & Co. v. U.S. 562 F.2d 972, 992-93 (5th Cir. 1977), cert. denied, 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978); Glimco v. Commissioner, 397 F.2d 537, 540 (7th Cir.), cert. denied, 393 U.S. 981, 89 S.Ct. 452, 21 L.Ed.2d 442 (1968).

Harvester, apparently in an effort to convince this court that its abatement program has been considered on its merits, repeatedly asserts that OSHA accepted its final position on abatement. 2 This contention

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is wholly unsupported by the record. It is undisputed that OSHA did not explicitly accept Harvester's position. See Transcript at 446. OSHA's failure to respond to the March 18, 1974 letter cannot be interpreted as acceptance of Harvester's unilateral decision with respect to engineering noise controls. Similarly, we cannot agree that OSHA's decision to cite Harvester in 1974 for violation of 29 C.F.R. § 1910.95(a) indicates approval of Harvester's abatement efforts. See Cedar Construction Co. v. O. S. A. H. R. C., 587 F.2d 1303, 1306 (D.C. Cir. 1978). 3 Furthermore, OSHA's position with respect to Harvester's abatement efforts whether approval, rejection or silence is irrelevant for purposes of res judicata. OSHA was not acting as an adjudicative body either when it received Harvester's letter or when it issued the 1974 citation. Res judicata applies in the administrative context when "an administrative agency is acting in a judicial capacity and resolves disputed issues of fact . . .." Utah Construction, supra, 384 U.S. at 422, 86 S.Ct. at 1560. OSHA has not acted in a judicial capacity with respect to Harvester's abatement efforts; neither OSHA nor the OSHRC has resolved disputed issues of fact relevant to that issue. In this context, res judicata is inapplicable.

Harvester's reliance on Secretary v. Georgia Power Co., 4 OSHC (BNA) 1497 (1976), and Continental Can Co. v. Marshall, 603 F.2d 590 (7th Cir. 1979), is misplaced. In both cases, the employers had contested OSHA citations for violation of noise exposure standards and had prevailed on the merits. In this case, Harvester contested neither of the prior citations, there has been no decision on the merits, and Harvester clearly did not prevail, on the merits or otherwise. In addition, the decisions in Georgia Power and Continental Can were influenced by the possibility that OSHA might harass employers through repeated citations for the same violation. See 4 OSHC (BNA) at 1497; 603 F.2d at 596-97. AS will be discussed below, the record in this case is devoid of evidence of OSHA harassment.

Application of res judicata is inappropriate in this case for the further reason that this case does not involve the same cause of action involved in either of the two prior citations. The situation presented here is analogous to that discussed in Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955). The Supreme Court, in Lawlor, held that the fact that a subsequent suit involves essentially the same course of wrongful conduct as a prior suit does not indicate that both suits are on the same cause of action:

That both suits involved "essentially the same course of wrongful conduct" is not decisive. Such a course of conduct for example, an abatable nuisance may frequently give rise to more than a single cause of action. And so it is here. The conduct presently complained of was all subsequent to the 1943 judgment. In addition, there are new antitrust violations alleged here deliberately slow deliveries and tie-in sales, among others not present in the former action. While the 1943 judgment precludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case.

349 U.S. at 327-28, 75 S.Ct. at 868 (footnotes omitted). Harvester's continuing failure to comply with 29 C.F.R. § 1910.95(b)(1) is a course of wrongful conduct

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analogous to the "abatable nuisance" described in Lawlor, giving "rise to more than a single cause of action." Res judicata is therefore inapplicable.

Finally, we note that even where the technical requirements of res judicata have been established, a court may nonetheless refuse to apply the doctrine. This court does not adhere to a rigid view of the doctrine in the administrative context:

The sound view is therefore to use the doctrine of res judicata when the reasons for it are present in full force, to modify it when modification is needed, and to reject it when the reasons against it outweigh those in its favor.

Bowen v. U.S. 570 F.2d 1311, 1321 (7th Cir. 1978), quoting 2 K. Davis, Administrative Law Treatise 548 (1958). Res judicata must yield on occasion to competing public policies. See Spilker v. Hankin, 188 F.2d 35, 38-39 (D.C. Cir. 1951); 1B Moore's Federal Practice P 0.405(11). This case presents such public policies. Acceptance of Harvester's res judicata argument would mean that an employer could secure immunity from enforcement of noise exposure standards by declining to contest an initial citation for violation of the standards and paying a nominal fine. Such a position would undercut the important public policies embodied in the Act and is inconsistent with the doctrine of res judicata as well. See Lawlor, supra, 349 U.S. at 329, 75 S.Ct. at 869.

Our view of the equities of this situation is not altered by Harvester's claim that it has been the victim of OSHA harassment. This claim finds no support in the record. Prior to the citation at issue here, Harvester had been cited once for violation of 29 C.F.R. § 1910.95(b)(1) and once for violation of 29 C.F.R. § 1910.95(a). Harvester contested neither citation. Contrary to Harvester's assertion, the record reveals that it has failed to correct the condition which gave rise to the first citation despite the fact that approximately eight years have elapsed since it withdrew its notice of contest to that citation. Rather than harassing Harvester, OSHA has been a model of patience, cooperation and reasonableness in the face of Harvester's continuing failure to...

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28 practice notes
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    ...and substantial findings of fact and the inferences drawn by the Commission from these findings. See International Harvester Co. v. OSHRC, 628 F.2d 982, 986-87 (7th Cir. 1980); RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979). Further, under the applicable standard, the ALJ's cre......
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    ...by the Sixth Circuit, RMI Co. v. Secretary of Labor, 594 F.2d 566 (1979), and the Seventh Circuit, International Harvester Co. v. OSHRC, 628 F.2d 982 (1980); Turner Co., Division of Olin Corp. v. Secretary of Labor, 561 F.2d 82...
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