Docket No. 14951

AMERICAN URETHANE CO., INC.

OSHRC Docket No. 14951

Occupational Safety and Health Review Commission

May 31, 1977

[*1]

Before BARNAKO, Chairman and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg., Sol., USDOL

H. Lee Orlove, President, American Urethane Corp., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

This case is before us by my order granting complainant's petition for discretionary review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et. seq. [hereinafter the "Act"]. n1 The issues specified for review are as follows:

(1) Whether Administrative Law Judge William E. Brennan erred in granting respondent's motion to strike item 9 from the "nonserious" citation?

(2) Whether Judge Brennan erred in amending the allegations of "nonserious" item 6?

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

n1 Commissioner Moran has issued a general direction for review pursuant to section 12(j) of the Act.

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

Respondent, a manufacturer of urethane tires and wheels, was inspected by Occupational Safety and Health Administration industrial hygienists on August 20, 1975, at [*2] its facility in Penndel, Pennsylvania. The inspection resulted in the issuance of one citation for "nonserious" violations and two citations for "serious" violations of the Act. Only items 6 and 9 of the "nonserious" citation are before us on review. Both citations were issued as a result of respondent's alleged failure to comply with the standards regulating the use of the chemical 3,3' - Dichlorobenzidine (DCB) set forth at 29 C.F.R. § 1910.1007. Respondent timely filed a notice of contest.

Before the hearing, the parties entered into a Stipulation Agreement. In paragraph "k" of the agreement, respondent admitted that if § 1910.1007 was validly promulgated, the allegations in the complaint are correct. At paragraph "m", respondent maintained its contest as to the amount of the penalty.

On November 28, 1975, complainant filed a motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, made applicable to this proceeding by section 12(g) of the Act and Commission Rule 2(b). Complainant argued that the Commission lacks jurisdiction to consider the validity of the standard n2 and that, assuming the Commission has the requisite jurisdiction, the [*3] validity of § 1910.1007 has been upheld by the Third Circuit in Synthetic Organic Chemical Manufacturers' Association, et. al. v. Brennan, 506 F.2d 385, 387 (3rd Cir. 1974), cert. denied 420 U.S. 973 (1975) (Synthetic Organic II). Judge Brennan took complainant's motion under advisement and a hearing was held.

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

n2 Complainant's argument was premised on the contention that section 6(f) of the Act provides the exclusive method for challenging the validity of OSHA standards. This issue was not raised in complainant's petition for discretionary review and is not pursued before us.

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

During the hearing complainant moved to strike a portion of item 6 of the "nonserious" citation relating to medical surveillance and first-aid procedures. Item 6 of the "nonserious" citation reads as follows:

The employer did not train employees working in an area containing 3,3' - Dichlorobenzidine as to its hazards, the specific operations involving potential exposure, decontamination and emergency procedures, (or [*4] the purpose of medical surveillance and first aid procedures.)

The parenthetical portion of this item was stricken by Judge Brennan upon complainant's motion. Complainant made his motion based on the belief that Synthetic Organic II had invalidated the provisions for medical surveillance and first aid at 29 CFR § 1910.1007(e)(5).

Respondent, over complainant's objection, moved to vacate item 9 of the "nonserious" citation, relating to medical examinations and surveillance. This item reads as follows:

A program of medical surveillance, including physical examinations and maintenance of medical records, was not established by the employer.

The motion was premised on respondent's belief that Synthetic Organic II had rendered the medical examination provision unenforceable. Judge Brennan granted the motion.

In his decision, the Judge granted complainant's motion for summary judgment as to all items not stricken during the hearing. He concluded that the opinion of the Third Circuit in Synthetic Organic II, supra, had established the validity of the DCB standards, with exception of the medical examination and surveillance portions of the standards, which had been remanded [*5] by the court. Judge Brennan held that the remand signified that the medical examination provisions had been found legally insufficient to support any further compliance action.

Complainant has filed a brief addressing the two issues specified in the direction for review. Respondent has not filed a brief with the Commission. Complainant takes the position that Judge Brennan erred in vacating item 9 of the "nonserious" citation. It asserts that the Judge misconstrued the effect of the remand of th medical examination provisions by the Third Circuit in Synthetic Organic II, supra. Complainant contends that a remand by a court to an administrative agency does not mean necessarily that the challenged standard cannot be enforced. Complainant stresses the fact that in Synthetic Organic II the court specifically vacated the standards it found to be legally invalid while merely remanding the medical examination provisions.

Additionally, it is asserted that a stay of enforcement cannot be implied in a situation where, as here, the court remanded the provision in order for OSHA to supply additional information necessary to rule upon a challenge to the provision. As to item [*6] 6, complainant contends that its motion to strike the medical surveillance and first aid provision was predicated upon its misconstruction of Synthetic Organic II, which complainant maintains was precipitated by Judge Brennan's statements at the hearing that this provision was invalid. Consequently, complainant argues that the deletion of the medical surveillance provision from the citation was erroneous.

We disagree with complainant's assertion that Judge Brennan erred in striking the medical surveillance and first-aid provisions from item 6. Complainant concedes that his own misreading of the standard was the basis for the motion to strike. It was not incumbent upon complainant to make such a motion and the fact that Synthetic Organic II was misread is irrelevant. That the Judge's opinion may have swayed the Secretary is also irrelevant, absent coercion on the part of the Judge, a factor not present in this case. See generally Constructora Metalica, Inc., 1 BNA OSHC 1058, 1971-73 CCH OSHD para. 15,209 (No. 49, 1972). In moving to strike, complainant abandoned the charge and it cannot be revived on review.

Judge Brennan's vacation of item 9 presents [*7] a more difficult question. Although the courts have on occasion obscured the distinction between remanding and vacating a cause, there is a conceptual difference between the two terms. Vacation of a cause constitutes a decision on the merits. In contrast, a remand is properly employed when a defect in the record must be corrected. The Secretary cites to Ford Motor Company v. N.L.R.B., 305 U.S. 364 (1939), in which the Supreme Court stated:

It is familiar appellate practice to remand causes for further proceedings without deciding the merits, where justice demands that course in order that some defect in the record may be supplied.

Such a remand does not dismiss or terminate the administrative proceeding . . . . If further evidence is necessary and available to supply the basis for findings on material points, that evidence may be taken. 305 U.S. at 373-374.

Thus, when a defect in an earlier proceeding must be corrected, a court will remand to the lower court or administrative agency. However, S.E.C. v. Chenery Corp., 318 U.S. 80 (1943), is more in point. Because the grounds of agency action on a matter delegated to the agency were not clearly disclosed, the case [*8] was remanded to the court of appeals for remand to the agency.

Several contemporary appellate decisions are instructive as to the question of remand versus outright vacation. In Synthetic Organic Chemical Manufacturer's Association v. Brennan, 503 F.2d 1155 (3d Cir. 1974), cert. denied, 420 U.S. 973 (1975) (Synthetic Organic I), the Third Circuit specifically vacated research laboratory provisions relating to EI, a suspected carcinogen similar to DCB. Similarly, in Dry Color Manufacturer's Association, Inc., et al. v. Department of Labor, 486 F.2d 98 (3d Cir. 1973), it was held that emergency temporary standards relating to EI and DCB must be vacated because of deficiencies in the statement of reasons given for promulgating the standards. The court noted that the Secretary had urged that the standards be remanded rather than vacated but held that because there were "considerable doubts" as to the sufficiency of the evidence to support findings that DCB and EI were carcinogenic in man, "the more drastic remedy of vacating the standard (was) appropriate." 486 F.2d at 107 n.13.

To be contrasted with the above decisions are those in which there is a remand to an agency [*9] rather than a vacating action. In AFL-CIO v. Brennan, 530 F.2d 109 (3d Cir. 1975) the court dealt with an OSHA "no hands-in-dies" standard which was replaced by a new standard covering mechanical power presses. It was held that the Secretary had failed to give adequate reasons why the new standard would better effectuate the purposes of OSHA and the cause was remanded for the preparation of a more complete statement of reasons. Wellford v. Ruckelshaus, 439 F.2d 598 (D.C. Cir. 1971) involved the Secretary of Agriculture's failure to suspend the use of the herbicide 2,4,5-T, which was alleged to have toxic effects on man, animals and plants. The court held that the possibility that the Secretary failed to give petitioner's allegations sufficient consideration required a remand for a decision supported by a reasoned analysis of the relevant factors. The case of Kennecott Copper, v. EPA, 462 F.2d 846 (D.C. Cir. 1972) dealt with certain air quality standards promulgated by the administrator of the Environmental Protection Agency. The court remanded the case to EPA, which was required to supply an implementing statement in order to enlighten the court as to the basis for [*10] the air quality standards. These standards were to remain in effect on remand. 462 F.2d at 851 n.21.

In other words, we are dealing with two classes of decisions. In the first, when a court holds evidence supporting a standard to be insubstantial the proper remedy is vacation. In the second, when a court does not know the basis for the agency action and seeks to ascertain the reasons therefor, the usual course is to remand the case to the agency.

We conclude that the portion of Synthetic Organic II dealing with medical examination provisions belongs in the second class of decisions. The remand order in the case allowed the Secretary to explain his action in not setting more specific requirements for the medical examination provisions and in departing from the recommendations of his advisory committee. The court wanted to have a more complete statement of reasons for the Secretary's action. It is important to note that the challenge to the validity of these provisions was made by the Oil, Chemical and Atomic Workers International Union (OCAW), which felt that specific medical protocals and diagnostic tests should have been provided. It would be ironic if OCAW's attempt [*11] to make the medical examination provisions more stringent resulted in the conclusion that there should be no requirement at all while the contentions are resolved. We do not attribute this absurd result to the court.

In contrast with the medical examination provisions, the remands of the "MOCA" regulations and laboratory usage provisions were based on the court's findings that the Secretary had failed to afford adequate notice to interested parties. Accordingly, the court's action as to these matters was predicated on the conclusion that promulgation did not meet the requirements of section 6 of the Act. This necessitated vacation of the relevant provisions.

A further consideration is the fact that section 6(f) of the Act provides that the filing of a petition for judicial review of a standard does not stay the standard, unless the court orders differently. The court in Synthetic Organic II did not stay the enforcement of the standard. It is logical to conclude therefore that in light of the nature of the challenge by OCAW and the fact there was no stay by the Court, the remand order was not intended to preclude enforcement of the standard while the Secretary took further [*12] action.

We hold that Judge Brennan erred in determining that the remand in Synthetic Organic II signified that the medical examination provisions had been found legally insufficient to support further compliance action.

Accordingly, that part of item 6 relating to medical surveillance and first-aid procedures is vacated and item 9 along with its proposed penalty of $70 is affirmed.

So ORDERED.